author: MOURSUND, J. MOURSUND, J.

text:
    INTERNATIONAL & G. N. R. CO. v. WALTERS.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 5, 1913.
    On Motion for Rehearing Dec. 17, 1913.)
    1. Appeal and Error (§ 7.73) — Dismissal-Delay in Filing Briefs.
    The record on appeal was filed with the clerk of the Court of Civil Appeals on July 30, 1912, and the cause was set for October 8th but at appellee’s request was postponed until October 15th. A typewritten copy of appellant’s brief was delivered to appellee’s counsel on September 25th and printed copies two days later. The brief covered only a few questions, chiefly questions of fact, and it was not alleged that appellee did not have sufficient time to brief the case after receiving the copy of appellant’s brief. Held, in view of the postponement granted, that appellee’s motion to dismiss the appeal for delay in filing of briefs would be denied.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dee. Dig. " 773.]
    '2. Master and Servant (§ 296) — Action fob Injuries — Instructions—Applicability to Evidence.
    In a car repairer’s action for personal injuries, where it appeared that defendant’s em-ployé on the engine which struck him saw him on the track while the engine was 12 feet away a charge that, if such employe saw and realized the danger, it was his duty to use all reasonable means that a person of ordinary prudence would have used under the circumstances to prevent injury, and that, if his failure to do so was the proximate cause of the injury, plaintiff could recover, was not without support in the evidence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.]
    3. Master and Servant (§ 289) — Action fob Injuries — Question for Jury — Discovered Peril.
    On evidence, in a car repairer’s action for personal injuries, held, that it was for the jury to say whether defendant’s employés, on the engine which struck plaintiff, exercised ordinary care to prevent the injury, and, if they did not, whether such care could have averted the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    4. Negligence (§ 59) — “Proximate Cause.”
    An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of a negligent act is not proximately caused by such act.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. § 72; Dec. Dig. § 59.

    For other definitions,'see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]
    5. Master and Servant (§ 248) — Action fob .Injuries — Discovered Peril.
    Where a car repairer riding cars on a side track jumped therefrom in anticipation of injury and ran in front of an engine on a parallel track, and where there was no evidence that the engineer and fireman knew that he was riding cars on the side track, nor that they could or would by ordinary care foresee that he would run in front of the engine, they could not anticipate probable injury to him until it became apparent that he was nearing the track without knowing of the engine’s approach.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. § 248.]
    6. Master and Servant (§§ 295, 296) — Action for Injuries — Instructions—Contributory Negligence and Assumed Risk.
    When plaintiff seeks a recovery upon the issue of discovered peril as well as upon other theories, charges on contributory negligence and assumed risk should be limited to be considered only upon the other theories, as such defenses cannot be urged to defeat liability arising by reason of discovered peril.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179, 1180-1194; Dec. Dig. §§ 295, 296.]

      On Motion for Rehearing.
    7. Master and Servant (§ 286) — Action eor Injuries — Question eor Jury.
    In a ear repairer’s action for injuries by being struck by an engine, held, on the evidence, that the question whether the engineer saw plaintiff on the side of the car from which he jumped and ran in front of the engine was for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. 1001, 1006, 1008, 1010-1016, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Action by Frank Walters against the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Wilson, Dabney & King, of Houston, for appellant.

      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

   MOURSUND, J.

Frank S. Walters filed this suit against T. J. Freeman, receiver, and afterwards, the receivership having terminated, the International & Great Northern Railway Company, the purchaser of the properties at the receiver’s sale, was made a party to the suit.

Plaintiff alleged that on September 16, 1909, he was in the employ of Freeman, receiver, as an inspector and car repairer in his yards at Spring; that it was his duty to inspect cars received in said yards for defects, and the air hose connected therewith, and to repair such defects when he could and couple up the air hose, and in the discharge of his duty it often became necessary for him to hang onto the side of cars while they were in motion in said yard; that on said date a number of cars were standing on a siding, and certain employés were in charge of an engine attached to other cars which they were backing- into the siding, where the others stood, for the purpose of coupling them together, and it became plaintiff’s duty to inspect said cars and the air hose and to couple up the air hose, and to this end he was riding on the ladder, on the side of one of the cars attached to the engine, as was usual and customary under such circumstances; that upon the moving cars approaching the stationary ones the speed thereof was not reduced, as he expected would be done and as should have been done, but rather increased, and it became manifest to him that the moving ears would strike the others with unusual force, and being thereby put in danger, and fearing for his safety, he jumped to the ground and undertook to cross another track running parallel with the one on which the cars were moving and eight or ten feet distant therefrom, when he was struck by the engine which had been detached from the said cars and run upon the said track, and which was being run at an unusual, dangerous, and excessive rate of speed, to wit, more than six miles an hour, in express- violation of the orders and rules of defendant, and was thereby knocked down and injured, the injuries being set out in detail. He further alleged: “That the proximate cause of the injury of plaintiff, as aforesaid, was the negligence and carelessness of defendant receiver, and those of his servants and employés in charge of the said engine, in this, that they ran the said cars into the said siding to be brought in contact with the stationary ones thereon, or when they knew, or in the exercise of ordinary care would have known, that they would probably come in contact with said cars, without the engine being connected therewith so as to control their movement and make it possible for the cars to come together without undue and unnecessary force, and without endangering the safety of those of defendant’s employés whose duties required them to be upon and about the said cars, and ran the said cars into the said siding with the engine detached therefrom at an excessive and unnecessary speed, in violation of the said rules and orders, well knowing, or in the exercise of ordinary care would have known, that the moving ears would thereby be caused to strike upon the stationary ones with undue and unnecessary force, which would endanger the safety of those employés whose duties required them to be upon and about the said cars; and in this, that the said employés in charge of the engine gave no warning of the movements of the said engine into and upon the said siding by ringing the bell or blowing the whistle, or in other manner, as was their duty to do, and kept no lookout ahead of the engine, as was their duty to do, and ran the engine at an unusual, dangerous, and excessive rate of speed, in violation of the orders and rules of defendant as aforesaid, and that, had they sounded the whistle and rung the bell or given other adequate warning, plaintiff would have been advised of the approach of said engine and have avoided contract therewith, or, if they had kept a reasonable lookout ahead of said engine, they would have discovered plaintiff in time to have avoided striking him by warning him of the approach of the engine, or by stopping the same, or slacking the speed thereof, or .had they run the said engine at the usual and proper rate of speed, he would not have been injured; and in this, that those in charge of the said engine saw plaintiff and realized the danger of his being struck by the said engine in time to have avoided striking him, by the reasonable use of all the means at their command, both by giving warning and by stopping the said engine or slacking the speed thereof, but to use such means they wholly failed; and plaintiff says that he was in the exercise of ordinary care in leaving the said car and in undertaking to cross over the adjacent track under the attending circumstances, and that his injury was without fault or neglect on his part.”

We quote from appellant’s brief its statement of defendant’s pleadings, viz.: “Defendant, International & Great Northern Railway Company, replied, first, by general denial, and second, by a plea of contributory negligence on the part of the plaintiff in general terms and by á plea that plaintiff, in riding on the side of the moving cars, was not acting in furtherance of or in the discharge of any duty of the defendant but was acting in violation of the rules, whereby he assumed all dangers resulting from his said action in riding on the moving ears; that if plaintiff, in so riding, was in the discharge of his duty, then the injuries complained of by plaintiff resulted from risks and dangers which were ordinarily incident to the service in which he was engaged, and which he had assumed; that the risks and dangers in getting upon said moving cars, as well as the danger of jumping from said cars or crossing the adjoining track of defendant, were obvious and open to the plaintiff, and known to him and were assumed by him; that plaintiff’s injuries were directly caused or contributed to by Ms own negligence in riding upon said moving cars and in alighting therefrom and in undertaking to cross the track of defendant in front of the approaching engine ; that the engine which struck the plaintiff was open to the view of plaintiff, and if plaintiff had exercised his sense of sight and hearing, or undertaken to do so, could wholly have avoided being hurt; that both plaintiff and T. J. Freeman, receiver, at the time of the accident, were engaged in interstate and international commerce, and that the liability, if • any, to plaintiff was governed by the laws of the United States, and that under these laws plaintiff was injured through risks . and dangers, if any, which he had assumed; that the risk of riding upon said moving train, as well as the risk of jumping from same or of crossing the adjoining track of defendant, were risks which, under the law, plaintiff assumed, and for which he could not hold the defendant liable.”

The trial resulted in a verdict and judgment for plaintiff for $7,500.

Appellee has filed, a motion to dismiss the appeal because briefs were not filed in the trial court nor in this court until September 26, 1913. The record was filed with the clerk of the Court of Civil Appeals of the First district on July 30, 19Í2, and the case, having been transferred to this court, was set for submission on October 8, 1913, but at the request of counsel for appellee the submission was postponed • until October 15th. It appears that a -typewritten copy of the brief was delivered by counsel for appellant to counsel for appellee about 11 o’clock a. m. on September 25, 1913, and on the morning of the next day two printed copies were delivered to said counsel for appellee; On September 29th appellee’s motion to dismiss the appeal was filed. It is not alleged in the motion that appellee’s counsel did not have sufficient time to brief the case after receiving the copy of appellant’s brief. The brief covers only a few questions, the most important being questions of fact, and it is apparent that it could have been answered by devoting a few days to the task; in fact, appellee’s counsel admitted in argument on the motion that it could be done in 12 hours if everything else was laid aside and attention given solely to the preparation of such reply.

Following the decision of the Supreme Court in the case of S. A. & A. P. Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751, our courts have frequently refused to dismiss appeals where the time left appellee was amply sufficient in which to answer appellant’s brief. Counsel for appellee, in an argument on the motion filed since the submission was taken, insists that his statement concerning briefing the case in 12 hours should not be made the test as to whether the appeal should be dismissed. Certainly it would be exceedingly unfair to require counsel for appellee to brief a case in the least time in which it could possibly be done, when counsel for appellant has taken over a year’s time. When' appellant’s briefs are not filed witMn sufficient time, appellee will be given the benefit of every doubt, and it must be evident from the nature of the brief that ample time has been afforded appellee to answer such brief, otherwise the appeal should be dismissed. While appellee had only 12 days .in which to answer from the time he received the typewritten copy of the brief, yet, having asked and obtained a postponement of the submission for one week, such additional time should be considered in passing upon, this motion, and, it not being alleged in the motion that appellee was injured or that he did not have ample time in which to answer appellant’s brief, we overrule the motion to dismiss the appeal.

Before taking up the assignments of error, we will make a brief statement of the facts bearing upon the issues submitted to the jury.

Plaintiff was a car inspector and repairer at Spring station and junction point, at which there were switching yards containing nine side tracks. A train had come in, and the engine crew and switchmen of same were busy “kicking” cars into a number of the side tracks for the purpose of carrying the .train forward to Plouston with such additional cars as ought to be switched into it The cars were being “kicked” from a curved lead track into the different side tracks. A number of cars were standing on track No. 1, not more than 200 yards from the lead track, from which the switching was being done, and, as nine, cars were “kicked” into track No. 1 to be added to the stationary train, plaintiff mounted the side of one of the cars to Tide dowiT to where the stationary cars were, for the purpose''of inspecting the" cars-which were being added to said train, so that the train could go to Houston. The-rules of the company forbade the riding of ears through the yards by car inspectors, but the men frequently rode them for their convenience and to get through their work promptly. Plaintiff rode the cars upon this occasion to save himself a walk of less than 200 yards. At the time plaintiff mounted the cars the engine was not visible to him, being hid by the curve of the cars. There is no evidence that the engineer or fireman, or any other member of the train crew, saw plaintiff mount the cars, and neither the engineer nor fireman knew he had gotten on the side of the cars until after plaintiff was injured. After “kicking” the string of ears into track No. 1, the engine was run back on track No. 2, distant about 10 feet from No 1, for the purpose of going after water and oil. The engineer was looking down the track in the direction he was going, watching for signals from the swing brakeman, W. W. Tucker, who was on the rear of the tender. He could have seen plaintiff on the side of the cars going down track No. 1 had he looked that way, but testified he did not do so on account of having his attention fixed down the track on which he was moving. Plaintiff concluded that the cars he was riding upon had been “kicked” with too much force and, fearing they would collide with such force as to subject him to danger, jumped off and ran diagonally across track No. 2 immediately in front of the engine, with his side toward the engine, and without looking to see whether the engine was coming on that track or not. He did not see the engine until he was on the track and the engine within about two or three feet of him. In fact, he did not know the engine had been detached from the cars he was riding. He heard no whistle or bell and saw the engine only in time to say that he saw it before it struck him. He testified the noise of the engine must have caused him to turn his head. He simply did not expect the engine to be back on that track and therefore did not look for it. He knew that engines were likely to be moved through the yards at any time, sometimes going back for water or oil or for other purposes. He also testified that the practice was to ring the bell when engines were moving to and fro in the yards. The evidence was conflicting as to whether the bell was rung upon this occasion. The rules of the company required the bell to be rung when the engine started but did not require the ringing to be kept up in the yards nor that the whistle be blown.

Plaintiff testified the cars he jumped from were moving at the rate of about six miles an hour, and 'that the engine must have been going 20 miles an hour when it struck him. He based this estimate on the fact that the engine cut loose from the cars “kicked” into track No. 1 in time to strike him as he. was running across track 2. As a matter of fact, plaintiff testified he did not know that the engine ever ran' into switch track No. 1, and the testimony of the engineer and the two Tuckers, who were on the tender of the engine at the time plaintiff was injured, shows that the engine slowed down on the lead track, and the cars were “kicked” into track 1, but the engine did not stop at all, as the Tuckers threw the switch for track 2, and the engine without stopping moved into said track; the Tuckers jumping on the engine.

The engineer and the Tuckers testified the engine was moving at the rate of four or five miles an hour. The cars were “kicked” upgrade and in fact did not come in contact with the stationary cars with any undue force. As the engine backed up track 2, the Tuckers were on the tender to keep a lookout; W. W. Tucker being on the same side as the engineer (that is, the side next to the kicked cars), while J. J. Tucker was on the other side, as was the fireman. Both of the Tuckers saw plaintiff hanging on the string of cars and saw him when he got off the cars and started across toward track 2. W. W. Tucker’s testimony is not very clear, but, taking it most favorably towards plaintiff, it appears that when about 12 feet distant from plaintiff he saw that plaintiff was going to get on track 2 but did not give the stop signal until within about 5 feet of plaintiff, which was just at the time his, brother called to plaintiff. At one place he states that plaintiff was about 5 feet from the engine “at the time he was about to mount the track”; at another place he gives the distance as 12 feet when plaintiff attempted to get on the track, and as 5 feet when he actually' was on the track, and that he was about the center of the track when J. J. Tucker called to him and the witness gave the stop signal.

J. J. Tucker testified that the cars on which plaintiff was riding were going at the rate of about three miles an hour; that four or five feet before the engine got to plaintiff he jumped'off and ran angling to the north; that as plaintiff entered track 2 witness called to him, “Look out, fellow, what in the hell do you mean?” that plaintiff was about four or five feet from the engine; that he glanced around and started to jump, at which time the engine hit him. He testified that he did not know plaintiff was going to enter track 2 until he did so, and that he immediately hallooed to him, and W. W. Tucker gave a violent stop signal; which was obeyed; the engine going about an engine’s length before it stopped, which was about 62 feet.

Plaintiff testified he was running across the track as fast as he could when he was struck. W. W. Tucker said plaintiff was moving at-a speed just out of a walk, what he would call a trot.

, Of the cars to be inspected by plaintiff some were destined to points beyond tlie state.

By tibie first assignment of error complaint is made because the court instructed the jury, if they believed the Tuckers saw plaintiff and realized the danger to which he was being exposed of being struck by the engine, then it was their duty to use all reasonable means at their command that persons of ordinary prudence would have used, under the circumstances, to prevent injury to plaintiff; and if the jury believed they failed to use such means, and that such failure was the proximate cause of the injury to plaintiff, then to return a verdict for plaintiff. The contention is that there is no evidence to support the submission of said issue. In view of W. W. Tucker’s testimony, we think the evidence justified the submission of the issue. If he saw plaintiff about to enter track 2 while the engine was 12 feet distant from plaintiff, then his brother also saw him under the same circumstances, and the jury could find that they should have at once called to plaintiff and given a stop signal instead of waiting until he had stepped on the track. From the evidence it appears that a heavy engine cannot be stopped in less distance than that testified to in this, case, namely, about 62 feet, so it is not made to appear that a stop signal alone would have availed anything; but, as the engine was going slowly, the extra distance might have been of much avail if plaintiff had been warned by the Tuckers as he was about to step on the track. In considering this matter we of course must view the evidence most favorably to appellee and must necessarily discard the testimony of J. J. Tucker as to the position of plaintiff when he called to him and accept that of W. W. Tucker as to the distance from the engine when he first saw that plaintiff was about to step upon the track. It follows that, if J. J. Tucker saw plaintiff all the time, he also saw him about to step on the track when 12 feet distant from the engine, and it was for the jury to say, in view of all the circumstances, whether said J. J. Tucker and W. W. Tucker exercised ordinary care to use all the means in their power to prevent the injury, and, if they did not exercise such care, "whether by exercising the same they could have averted the injury. We overrule the assignment.

By assignment No. 2 another complaint is made of the charge; the portion objected to being copied in the assignment and being very long. After requiring the finding of various matters, descriptive of how plaintiff came to be injured, as alleged by him, the court added the following: “And you believe ‘kicking’ the cars into the siding at the rate of speed at which they were ‘kicked’ would have" caused a person of ordinary prudence, situated as plaintiff was, to jump from the car for fear of injury and to run across said track, under the circumstances he claims he did, and believe that those in charge of the engine knew of plaintiff’s position on the car, and of his probable ignorance of the approach of the engine, if he was ignorant thereof, or in the exercise of ordinary care would have known thereof and would, in the exercise of such care, have foreseen that plaintiff, under the circumstances, would probably jump from the ear and run across the track, and in so doing would be exposed to the danger of being struck by the engine, and believe that those in charge of the engine, in the exercise of ordinary care, should and could have rung the bell or blown the whistle or given other warning to plaintiff of the approach of the engine, and that, had either been done, He would have been advised of the approach thereof and avoided contact therewith, and you believe they failed to do either to warn him, and believe such failure, if any, was negligence, and that such negligence was the proximate cause of the injury of plaintiff, you will return a verdict for plaintiff; but, unless you so find, you will return a verdict for defendant.” The objection made to this charge is that it submits various matters concerning which there is no evidence, and that the issue whether failure to blow the whistle or ring the bell was the proximate cause is made dependent upon contingencies of an uncertain character dependent upon actions of plaintiff not to be anticipated or foreseen. There is no evidence that the persons in charge of the engine, viz., the engineer and fireman, who were the only persons who could give signals by means of whistle or bell, knew that plaintiff was riding the cars until after he was injured; nor is there any evidence that they knew he was probably ignorant of the approach of the engine, nor that they could or would, in the exercise of ordinary care, have foreseen that plaintiff would jump from the cars which in fact did not collide violently with the stationary ones, nor that, if he did jump off, he would run across track 2 instead of staying between the two tracks. If it should be contended that the Tuckers were partially in charge of the engine and saw plaintiff on the cars, then the fact remains that they could not reasonably anticipate that plaintiff would become apprehensive without cause and jump from the cars, and that he was ignorant of the approach of the engine and would run across right in front of the same instead of staying between the two tracks. An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of a negligent act is not proximately caused by such act. At the time when the appellee claims the employés of appellant should have given warning by ringing the bell or blowing the whistle, there were no facts or circumstances known to them which would cause them. to reasonably anticipate that the failnre to ring the bell or blow the whistle would cause injury to appellee or any one else. Under the facts they could not anticipate injury to appellee as probable until it became apparent that he was verging upon track 2 in a manner indicating that he did not know of the existence of the engine on said track. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Kreigh v. Westinghouse C. K. & Co., 152 Fed. 120, 81 C. C. A. 338, 11 L. R. A. (N. S.) 684; Railway v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661; Pullman Co. v. Caviness, 53 Tex. Civ. App. 540, 116 S. W. 412; Railway v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582; Railway v. Welch, 100 Tex. 118, 94 S. W. 333. We sustain the assignment.

The third assignment relates to the sufficiency of the evidence, while the fifth complains of the verdict as excessive. In view of another trial, we will not go into the -matters raised by these assignments.

There is no merit- in the fourth assignment of error complaining of the charge on contributory negligence under the federal Employers’ Liability Act of 1908, and the same is overruled.

Assignment No. 6 is overruled. The court did not err in refusing to give the charge on assumed risk. In view of the fact that the issue of discovered peril was in the case, it would have been improper to have given the charge in question, which applied to the whole case. When plaintiff seeks a recovery upon the issue of discovered peril as well as upon other theories, charges on contributory negligence and assumed risk should be limited to be considered only upon the other theories, as such defenses cannot be urged to defeat liability arising by reason of discovered peril. Railway v. Finn (Civ. App.) 107 S. W. 94; s. c., 101 Tex. 511, 109 S. W. 918; Kelley v. Railway, 101 S. W. 1166; Railway v. Scarborough, 104 S. W. 408.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

MOURSUND, J.

We have carefully considered appellee’s motion for rehearing and conclude that the evidence is sufficient for the jury to find that the engineer, notwithstanding his denial, did see appellee on the side of the car. However, we are still of the opinion that the evidence did not justify the submission of the issue whether those in charge of the engine should have given signals by bell or whistle. There were no facts charging them with notice that ap-pellee did not know the engine was on the other track, nor that appellee would probably jump from the cars, and, if so, that he would run across in front of the engine instead of remaining between the tracks.

The motion is overruled.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    NUNN v. PADGITT BROS. et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Chattel Mortgages (§§ 220-222, 225)— Conversion by Mortgagor.
    While a chattel mortgagor in possession may sell the property in recognition of the mortgagee’s right, a'sale in denial of such right would be a conversion by the mortgagor and also by the purchaser if he persisted in denying mortgagee’s right.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. §§ 220-222, 225.]
    2. Trover and Conversion (§ 11) — Ownership of Property.
    Since one who buys personalty must ascertain the ownership thereof at his peril, his possession in denial of the real owner’s right if the seller had no authority to sell is a conversion of the property.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 95-98; Dec. Dig. §: 11.]
    3. Chattel Mortgages (§§ 220-222)— Sale of Property — Conversion by Mortgagor.
    Where the mortgagee of chattels sold the mortgage notes to plaintiff and subsequently purchased the mortgaged property, he became in effect a mortgagor in possession as to plaintiff ; and hence his subsequent sale of the property in denial of plaintiff’s rights was a conversion.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. §§ 220-222.]
    4. Chattel Mortgages (§ 225) — Recording —Effect between Parties.
    That a chattel mortgagor denied, when he sold property covered by a recorded chattel mortgage, that the property was incumbered would not be a defense to the right of the mortgagee to sue the purchaser of the property for its conversion by the denial of such mortgagee’s rights.
    ■ [Ed. Note. — For • other cases, see Chattel Mortgages, Cent. Dig. §§ 468 — 470; Dec. Dig. § 225.]
    5. Chattel Mortgages (§ 225) — Recording —Effect as to Purchasers.
    The fact that the county clerk advised purchasers of property covered by a recorded chattel mortgage that the property was not mortgaged would not prevent the purchasers from being liable to the mortgagee for its conversion.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. § 225.]
    6. Chattel Mortgages (§ 225) — Purchase of Mortgaged Property — Conversion by Purchaser.
    That defendant agreed to advance money with which to purchase property covered by a recorded chattel mortgage only on condition that mortgagors should first convey to her that she might convey to her son and in that method give her what she considered greater security for the money advanced would not prevent defendant’s purchase from being a conversion of the property as to mortgagee.
    ■ [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. § 225.]
    7. Chattel Mortgages (§ 170) — Conversion ■ of Property.
    Whoever with actual or constructive notice of the chattel mortgage is directly or indirectly the instrumentality through which a conversion of' mortgaged property is brought about is liable for the conversion.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dec. Dig. § 170.]
    8. Chattel Mortgages (§ 204) — Recording of Mortgage — Persons Affected — Purchaser of Mortgaged Notes.
    Rev. Civ. St. 1911, art. 5661, provides that all persons shall be charged with notice of a chattel mortgage duly registered “and of the rights of the mortgagee, his assignee or representative thereunder,” and article 5659 provides for discharging of mortgage by acknowledging satisfaction of the debt upon the registry book. Held, that the failure of the purchaser of chattel mortgage notes to have the assignment of the notes to him recorded would not prevent persons purchasing the property from being charged by the registration with notice of the mortgage and of his rights thereunder.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 451; Dec. Dig. § 204.]
    9. Chattel Mortgages (§ 225) — Rights of Assignee — Conversion of 'Property.
    An assignee of notes secured by a recorded chattel mortgage was not negligent in permitting the property to remain in the possession of one who he knew had purchased it from the mortgagor, so as to prevent him from recovering for its conversion by sale, in view of Rev. Civ. St. 1911, art. 5665, making chattel mortgages void against subsequent purchasers, etc., unless registered, where.the property remains in mortgagor’s possession.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ .468-470; Dee. Dig. § 225.]
    10. Chattel Mortgages (§ 229) — Conversion of Property — Actions—Amount of ■Recovery.
    Where the value of property covered by a recorded chattel' mortgage exceeds the amount of the debt, the judgment, in an action by a mortgagee for conversion, should be for the debt and, if the debt exceeds the value of the property, should be for such value.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§-479-483; Dec. Dig. § 229.]
    Appeal from Dallas' County Court; W. F. Whitehurst, Judge.
    Action by W. G. Nunn against Padgitt Bros, and others. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Wood & Wood, of Dallas, for appellant. Alex F. Weisberg, J. Hart Willis, and Spence, Knight, Baker & Harris, all of Dallas, for appellees.

      For other cases see same topic and section NUMBER in Dec. 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

   RASBURY, J.

Appellant sued appellees for the value of certain personal property alleged to have been converted by appellees and upon which appellant, at the time of such conversion, had a mortgage lien properly registered to secure an indebtedness due him. The appellees in effect urged as a defense to the suit that they used proper diligence to ascertain the existence of the lien and failed to do so, and hence were innocent purchasers, and further that they never took actual possession of the property; and hence there was no conversion of same.

It appears from the' evidénce in substance that J. M. Mullins and Davis McMackin were partners in business under the firm name of Dallas Electrical Construction Company in the city of Dallas. W. G. Nunn, of Ladonia, Tex., an acquaintance of some years of both Mullins and McMackin, upon their request, indorsed their note for $100 in order to enable them to negotiate same at bank, which was done. Nunn, as indorser, was, later compelled to pay same by reason of the default of Mullins and McMackin. Subsequent to the circumstances related above, Mullins sold McMackin his interest in the' Dallas Electrical Construction Company; In payment of part or all of the purchase price, Mullins accepted McMaekin’s 18 promissory notes, each for $75, secured in payment by chattel mortgage on the property, for the value of which this suit was brought. The mortgage was registered as directed by statute, and recites the transaction to be for the purposes we have just stated, and subrogates by its terms all purchasers of the notes to the benefits of the mortgage. After the sale by Mullins to McMackin, in order to enable Mullins to borrow $500 from the Guaranty State Bank & Trust Company, Nunn signed a note for that amount jointly with Mullins. The bank accepted the note. To secure the bank in the payment of the $500 note and Nunn in his indorsement thereof, as well as the repayment to him of the amount paid out on the $100 note, Mullins transferred the 18 McMackin notes to the bank. McMackin paid off sufficient of the mortgage notes to reduce the $500 note to $271, when payments ceased. Thereupon Nunn was compelled to take over the balance, which he did, and whereupon the bank transferred him the unpaid mortgage notes. -Nunn attempted to collect the amount due him by Mullins and Me-Maekin but was unable to do so. In the meanwhile, for some reason and in manner not made clear by the record, Mullins repurchased from McMackin the business of the Dallas Electrical Construction Company and operated same for about one month, when he sold a portion of the tools, implements, etc., to one of the appellees, Mrs. Amelia Wunderlich; such portion being covered by the mortgage securing the payment of the 18 notes given by McMackin to Mullins, transferred by Mullins to the bank and by the bank transferred to Nunn. Mrs. Wun-derlich paid $260 for the property sold her by Mullins, and the transfer was by bill of sale warranting title free of liens, etc.. On the same day she purchased the property, Mrs. Wunderlich, in consideration of the note of Frank Courtney and Emil Wunder-lich, her son, for $260, due one year from date with 8 per cent, interest; conveyed the same property to them and as security for payment of the note retained a lien or mortgage against the property so conveyed. By the terms of the conveyance Courtney and Wunderlich are required to remove the property to 126 Bryan street, to keep it insured with loss payable to Mrs. Wunderlich, not to remove same from its location without her consent, and to keep same in good condition and repair, and provided for the usual conditions of forfeiture and seizure in ease of default in payment of the note, etc. Before buying the property, both Mrs. Wunder-lich and her attorney inquired particularly of Mullins, who was then in possession of the property by virtue of his repurchase from MeMackin, if there was any lien or incum-brance against the property and if any other person had any interest therein, and he assured them that no liens existed and he was sole owner thereof. Mrs. Wunderlich and her son, Emil Wunderlich, testified that they inquired of the county clerk concerning a mortgage against the property, and that they were informed none was of record. The same parties also testified that, while Mrs. Wunderlich took a conveyance from Mullins to herself and in turn conveyed to Emil Wun-derlich and Frank Courtney, she was not in fact buying the property for her own use but for her son and Courtney and took such method, under advice of counsel, as the best plan of securing herself in the payment of the money advanced to them, which was in fact only a loan. Appellant, Nunn, before filing suit, attempted to locate the mortgaged property, but was unable to do so. It was developed upon trial of the case that same was in possession of Emil Wunderlich in storage. The witness Boettiger testified the same was of the value of $295. Mrs. Wunderlich paid Mullins $260 therefor. Nunn’s debt after this suit was filed was reduced to $274.16 by payments received from some bankrupt proceeding, presumably against either MeMackin or Mullins. The essentials of the facts here stated are undisputed. Upon trial before jury there was a verdict against appellant followed by judgment, from which he has appealed.

The appellant has filed two assignments of error; the first attacking the charge of the court, and the second challenging the sufficiency of the evidence to sustain the verdict and judgment. We think the criticism of the charge by appellant correct, but we forego a discussion thereof for the reason that we think the cause should be reversed and judgment here rendered for appellant on the grounds urged in the second assignment.

As applicable to the undisputed facts in this ease, it was said in Western Mortgage & Investment Co., Ltd., v. Shelton, 8 Tex. Civ. App. 550, 29 S. W. 494, quoting from an eminent authority (Cooley’s Second Ed. on Torts, 527): “When the mortgagor of chattels is left in possession, he has not only such a special property as will enable him to maintain trover against a wrongdoer, but he has also, in his right of redemption, a property which is or may be valuable, and which he may lawfully sell in recognition of the right of the mortgagee. Such a sale is. therefore no conversion of the mortgagee’s interest, but a sale in denial of the mortgagee’s right would be a conversion in him, and perhaps in the purchaser also. It would certainly be a conversion in the purchaser if he took the property on a purchase of the whole interest and persisted in a denial of the mortgagee’s right afterwards.” Also: “One who buys property must, at his peril, ascertain the ownership; and, if he buys of one who has no authority to sell, his taking possession in denial of the owner’s right is a conversion.” See, also, McCown et al. v. Kitchen, 52 S. W. 801; Scaling v. First National Bank, etc., 89 Tex. Civ. App. 154, 87 S. W. 715; Buffalo Pitts Co. v. Stringfellow-Hume Hardware Co., 129 S. W. 1161.

Mullins, by his sale of the notes to Nunn, became, after his purchase of the property from MeMackin, in effect a mortgagor in possession and had no right of course to sell in denial of the mortgage, and the result under the cases cited and the undisputed evidence is that either Mrs. Wunderlich or Emil Wunderlich, her son, and Frank Courtney bought and held before and upon trial the mortgaged property in denial of Nunn’s mortgage.

Incidental to a discussion of the question of who in fact converted the property, we divert long enough to say that the denial by Mullins of the' existence of the mortgage is without force as a defense to Nunn’s right to recover in ease of conversion. To hold that mortgages registered under statutory direction can be ignored by third persons upon the assurance of those in possession of the property that such mortgages do not in fact exist would be to utterly destroy the very purpose of the requirement instead of sustaining it.

Nor do we think that the testimony of Mrs. Wunderlich and her son that the county clerk advised them that there was no mortgage upon the property entitled to any weight. We do not deny the truth of the testimony. Such information, we conclude, was given at the county clerk’s office. The information was incorrect, however, since the mortgage was in fact registered there and an inspection of the record would have shown as much. We do not understand that it is the right of the public to rely upon the clerk as to what the records of his office do or do not disclose, but that it is the right of the public to inspect such records and themselves aseertain.their contents, and that the public will be bound by the records alone as they actually exist. We then come to the question of whether appellee Mrs. Wunderlich (her son and Courtney not being parties to the suit) under the evidence bought the property, and, if she did, whether it was in recognition or denial of the mortgage, and, if she did not purchase the property, whether the facts stated in law constitute conversion. That she did not buy or incumber the property in recognition of the mortgage is not denied.

To establish that she did not do so in denial thereof, so as to constitute conversion, the claim is made that the form of conveyance to her was not what it purported to be, to wit, a sale, but simply a vehicle to give Mrs. Wunderlich security of greater dignity and was unaccompanied by actual physical asportation of the property. Waiving any question of Mrs. Wunderlich’s right to deny, in an equitable proceeding, her own solemn declaration that she was the owner of the property, we nevertheless believe the proposition unsound. ' Mrs. Wunderlich agreed to advance the money with which to purchase the property only on condition that Mullins first conveyed it to her that she might in turn convey it to her son and Courtney and by such method secure what she considered security of a greater dignity for the money she was advancing, but which, however considered, is but what our statute denominates a chattel mortgage; and it was by her direction and with her knowledge that the property was so purchased and incumbered and then delivered to her son and Courtney. To hold that such acts do not establish conversion would, in our opinion, result iu great injustice to parties acquiring evidences of debt secured by chattel mortgages duly registered. As illustrative of the point, second mortgages would and could acquire the dignity of first mortgages, since it is here urged exactly that Mrs. Wunderlich is in effect but a mortgagee, and to which we agree.

The true rule, it seems to us, is that whosoever directly or indiréctly is the instrumentality through which the conversion is accomplished is liable for the conversion, when such conversion is made with either actual or constructive notice of the pre-existing debt and mortgage. Constructive notice in this proceeding is not denied, and, that being true, appellee took the property as her own or as security for her debt at her peril, and, if by such taking it was lost or destroyed, she is liable for the value thereof. We are not to be understood, of course, as holding that second mortgages cannot be accepted without constituting conversion, but that such second mortgagor cannot under guise of a purchase sell to another, who in turn wastes or destroys same, and then defend, in a suit for conversion, on the ground that he was but a second mortgagor and, not having actually laid hands on the property, is not liable. But it is further urged that, Mrs. Wunderlich having bought the property or loaned money thereon in good faith, she should be protected for the reason that Nunn was negligent In not placing upon the record an assignment of the notes, so as to give Mrs. Wunderlich notice thereof, and in permitting Mullins to remain in possession thereof after repurchasing same from Mc-Mackin. We have said that, while Mrs. Wunderlich may have acted in good faith in the purchase of the property or in loaning money thereon, she did so subject to or with full knowledge of the prior mortgage, whichever. theory of the transaction may be adopted.

Nor does the failure of Nunn to place upon the record an assignment of the notes affect the notice imported by the registration of the mortgage. Article 5661, R. S. 1911, provides that, when chattel mortgages are registered as was the one in this controversy, “all persons shall be thereby charged with notice thereof, and of the rights of the mortgagee, his assignee or representative thereunder.” Article 5659, R. S. 1911, provides that the only way by which satisfaction of mortgages may be entered of record, and as corollary relied upon by those subsequently dealing with the property, is by acknowledging satisfaction of the debt upon the book containing the registry of the mortgage. No such satisfaction was shown on trial in this controversy.

In like manner do we think the claim that Nunn was negligent in permitting the property to remain in possession of Mullins untenable. Even though he was aware that the title to the property had passed back into the possession of Mullins, there was no legal right in Nunn to prevent it, since Mullins had the right to purchase and MeMackin the right to sell subject to the existing lien. The statutory provisions relating to chattel mortgages contemplate the existence of valid and enforceable mortgages where the property is permitted to remain in the possession of the mortgagor and directs that in all such cases the mortgage shall be void against creditors, subsequent purchasers, and mortgagees or lienholders, unless such mortgage or lien shall be registered in the manner provided by the other provisions of the act. Article 5655, R. S. 1911. As we have said, the mortgage in this controversy was so registered.

The undisputed evidence shows the value of the property converted by Mrs. Wunderlich to be $295. Nunn’s debt is undisputed and is $274.16. The rule is that, when the converted property exceeds the amount of the debt, the judgment shall be for the debt, and, when the debt exceeds the. value of the property, it shall be for such value. In the application of that rule the judgment of the trial court is reversed, and judgment here rendered for appellant against Mrs. Wunderlich for the amount of his debt.

Reversed and rendered.


author: HENDRICKS, J.

text:
    CRANDALL v. SCOTT et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.)
    1. Monopolies (§ 12) — Validity — AntiTrust Law — “Trust.”
    The Anti-Trust Act (Rev. Civ. St. 1911, .art. 7796) defines a “trust” as a combination of capital, skill, or acts by two or more persons, or association of persons, to create or ■carry out restrictions in the free pursuit of any legal business, or to abstain from engaging in or continuing business. Plaintiff and two other concerns, who conducted a moving picture business in the town, made an.agreement by which the others gave notes to plaintiff in consideration of plaintiff stopping business and agreeing that no showhouse except the two owned by the makers should open in the town before a certain time, and that if a showhouse of a certain standard should open within the time and run for six months, all of the notes maturing after the opening of the house should be void, and that if a showhouse should open and run for less than such period, the notes should be void for the time it was conducted. Meld, that the contract was in violation of the Anti-Trust Act and void.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.

    For other definitions, see Words and Phrases, vol. 8, pp. 7116-7119, 7822.]
    2. Monopolies (§ 12) — Illegal Contracts— Anti-Trust Statutes.
    A combination in' violation of the antitrust statute (Rev. Civ. St. 1911, art. 7796) is void, irrespective of the common-law distinction between restrictions on trade which are reasonable and those which are unreasonable.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.]
    3. Appeal and Error (§ 173) — Presentation Below.
    Notwithstanding failure of defendants’ pleadings to attack the validity of the contract, under which the notes sued on were executed, the appellate court will consider the validity of the contract, where it is apparent upon the record that it is void.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.]
    Error to Potter County Court; W. M. Je^ ter, Judge.
    Action by Percy Crandall against C. R. Scott and others. Judgment for defendants, and plaintiff brings error.
    Affirmed.
    S. E. Fish, of Amarillo, for plaintiff in error. Hugh L. Umphres, of Amarillo, for defendants in error.

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

   HENDRICKS, J.

The plaintiff in error, Percy Crandall, sued in the county court of Potter county, Tex., the defendants in error, C. R. Scbtt, W. G. Underwood, and J. W. McQueen, on 10 promissory notes, executed by the defendants in error, in favor of the plaintiff in error, and which were a part of and based upon the following contract:

“State of Texas, County of Potter. This memorandum of an agreement this day entered into by and between Percy Crandall, party of the first part, and J. W. McQueen, C. R. Scott and W. G. Underwood, parties of the second part, witnesseth, that parties of the second part agree to pay party of the first part $25.00 per month for each and every month between now and the 1st day of March, 1912, as evidenced by their fifteen promissory notes, each for the sum of $25.00, due at intervals of one month, and payable to the order of party of the first part, this day executed by parties of the second part; and, that party of the first part in consideration thereof warrants to the parties of the second part that no show business besides the Majestic, the Deandi and the Grand shall open in Amarillo, Potter county, Texas, before March 1st, 1912, and that if a show-house; other than the above mentioned three does open in said Amarillo within said time, the floor space of which equals 2860 square feet, the assets and expense of installation of which equals $1000.00, and which runs as a showhouse steadily for a period of six months, then all said notes maturing after the opening of said showhouse shall become null and void, and be canceled thereby. That party of the first part further agrees that should a showhouse of the same, less or more assets and expense of installation and floor space or the Grand Opera House open in vaudeville and picture within said Amarillo within said time, and run less than six months, then that for all the time such last-named shows shall so run, the notes covering that period shall be null and void and canceled thereby. Parties of the second part agree that neither of them will be directly or indirectly interested in the opening or running nor will they encourage the opening or running of any showhouse other than the three above named in said Amarillo within said time, and it is mutually agreed and understood that if they do either, then that such occurrence will in no wise invalidate any of said notes, nor in any wise relieve any party thereto from liability thereon. Signed in duplicate this - day of Nov. 1910. Percy Crandall, Party of the First Part. W. G. Underwood, O. R. Scott, J. W. McQueen, Parties of the Second Part.”

It will be seen that the contract is somewhat ambiguous upon the face of it, wherein it reads that “the party of the first part * * * warrants to the parties of the second part that no showhouse besides the Majestic, the Deandi and the Grand shall open in Amarillo, Potter County, Texas, before March 1st, 1912” — ambiguous for the reason that from the pleadings and the evidence in the case it was evidently the intention of the .contract that the Grand should not open nor continue open to the period named, but, on the other hand, should be closed. We make this explanation for the reason that this ambiguity is eliminated from the ease by the pleadings of both parties, as well as the undisputed evidence in the case. The cause was tried in the county court without the assistance of a jury and judgment rendered agahjst the notes as obligations ; upon what specific ground, however, we are not advised.

Among other grounds of resistance in this court to a reversal of this cause, the defendants in error assert the proposition that the contract between the parties, and set out herein, is in violation of what is commonly called the “Anti-Trust Statute” of the state. At the time of the execution of this contract and of the notes by Crandall, the plaintiff in error, the defendants in error, Underwood, Scott, and McQueen, were the proprietors of a moving picture show in Amarillo, Tex., known and designated as the Majestic, and at the same time one Charles Stolp was the proprietor of another moving picture show, known as the “Deandi.” The plaintiff in error, Crandall, was the owner and conducted a moving picture show in said city, designated as the “Texas Grand,” which were the three places of amusement of that character at that time in said city.

C. R. Scott, one of the defendants in error, testified as follows: “About the 14th day of November, 1910, the contract introduced in evidence was entered into by those signing the same. At the same time a similar contract was made between Percy Cran-dall on one part and Charles H. Stolp (the owner of the Deandi) on the other part. Each of the contracting parties in the two contracts knew of the two contracts, and Stolp knew of our contract that has been introduced, and the Majestic and Deandi people had joined their efforts to get Percy Crandall to close his show, the consummation of their efforts being that he did close on the basis set forth in said contracts with the Majestic and the Deandi, and the said Underwood McQueen and myself executed the notes previously introduced in evidence and shown to be signed by us in pursuance of the contract introduced in evidence in this suit so as to close Mr. Crandall’s place. * * * After the execution of these instruments, the Texas Grand, Mr. Crandall’s show, closed and remained, closed, and for several months there were no other show-houses running in Amarillo in vaudeville or moving pictures, except the Majestic, run by the defendants in this suit, and the De-andi, run by Mr. Stolp. During this time as the notes became due they were paid off.” The witness then testified in regard to the opening and establishment of another moving picture show in Amarillo as a defense with reference to another provision of the contract, which we think unnecessary to mention or discuss.

The testimony of Scott, relating to these matters, is undisputed, and it is to be particularly noted that the joinder of the efforts of the proprietors of the Majestic and the Deandi and the consummation of said cooperation produced the contract and the notes in question.

The particular provisions of the antitrust statute which we think applicable to the propositions involved are as follows: “A ‘trust’ is a combination of capital, skill or acts by two or more persons, firms * * * or association of persons, or either two or more of them for either, any and all of the following purposes: Eirst * * * To create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state. * * * Seventh. To abstain from engaging in or continuing business, * * * partially or entirely within the state of Texas, or any portion thereof.” Rev.' Civ. St. 1911, art. 7796.

The case of Gates v. Hooper, decided by the Supreme Court of this state, 90 Tex. 563, 39 S. W. 1079, in a ease where a merchant sold to another his stock of goods and good will, agreeing to abstain from the same business in the same town for a certain period of time, held that, “in order to constitute a trust within the meaning of the statute,” the combination of capital, skill, or acts by two or more means a union or association of such persons and the united cooperation of such agencies. In that case the mere sale by one party of his business and good will to another party for a valuable consideration, where the seller agreed to abstain from business in a certain town for a certain period of time, was not such union and co-operation as constituted a “combination” within the purview of the Anti-Trust Act. The abstention from business necessarily resulted from the sale of the “good will”; otherwise the transfer of the “good will” would have been nugatory; or, as the Supreme Court put it, “The seller was, by the terms of the contract, restrained from doing the thing which, if done, would have defeated in part the effectiveness of the sale.” However, in this case, we have a different character of contract and different acts, more far-reaching in their consequences, manifested here. It is noted, first, that there are three rival businesses in Amarillo ; two of them joined together to put the third out of business and a consummation of their efforts results in the execution of the notes, the abstention from business, a warrant upon the part of one of the parties that no “show-house” besides the Majestic and the Deandi shall open in Amarillo before a certain time; and further agree that if a showhouse of certain standard should open in said Amarillo within said time and run as such steadily for a period of six months, then all of said notes maturing after the installation and opening of said showhouse shall become null and void, and, agreeing further, that if a “showhouse of the same, less or more assets and expenses of installation and floor space or the Grand Opera House, open in vaudeville and pictures within said Amarillo within said time and run less than six months,” then for the period of time conducted the notes covering the same period are void. It is noted that the other parties agree that neither of them will be directly or Indirectly interested in the establishment of any show-house other than the Majestic and the De-andi within the period of time named, and if they should become so interested they would not be relieved from liability on the notes.

In this cause the proprietors of the Majestic and the Deandi, “joined their efforts to get Crandall to close his show,” and as a consummation of their efforts the contracts were made and Crandall did close upon the “basis set forth in said contracts with the Majestic and the Deandi,” as the undisputed evidence of the witness declares. We are drawn to the conclusion that the “combination” existed within the denouncement of the statute, “to create restrictions in the full pursuit of any business * * * permitted by the law of the state,” and also the “combination” existed for the purpose to obtain Crandall to “abstain from engaging in or continuing business” in a “portion” of the state.

When the “combination” exists within the contemplation of the law, the Supreme Court has said (Texas & Pac. Ry. Co. v. Lawson, 89 Tex. 400, 34 S. W. 920) that “the statute ignores the common-law distinction between restrictions which are reasonable and those which are not,” and “it relieves the courts of determining whether, in a particular ease, any effect will be given such a contract by declaring that it ‘shall be absolutely void, and not enforceable, either' in law or in equity.’ ” The statute further says, “for each and every day that such violation shall be committed or continued a punishment accrues,” and hence we think that when the representatives of the different moving picture shows got together and acted and Crandall agreed to stay out of business for a certain period, the acts of combination were committed; and when Crandall warranted that no other “showhouse” of a certain standard would be opened within a certain time and agreed to close and stay out of business for a certain time, which he in reality agreed to do under the contract, and the others agreed that they would not enlarge their own business, or be interested in any manner in the opening or establishment of any other moving picture show in Amarillo, the union and co-operation continued. It might be said that the contract in a sense did not prohibit their going into a new business, and if they did, they would have to pay the notes, and though they contracted not to open another show, if they should by themselves, or in partnership with others, open a business, they would be estopped to deny the notes, because they could not open or be interested in opening a showhouse of the standard mentioned in the contract, and then plead it and take advantage of their own wrong. Crandall did not take chances, but inserted it in the contract, which was a continuing one, and each agreed in the future to stay out of the business to a certain period of time, on the one side by not opening another in Amarillo, and Crandall to abstain entirely for' the same period; and we are not concerned with results, whether beneficial or prejudicial. See the case of Comer v. Burton Lingo & Co. et al., 24 Tex. Civ. App. 251, 58 S. W. 969, where the proprietors of three lumber companies purchased a fourth, the latter abstaining from the lumber business for a certain period, where Judge Templeton held upon the pleadings the acts were unlawful, and said, "Such combination required the union of the acts and of part of the capital of the appellees [the purchasing lumber dealers], and if the purpose of the combination was to create or carry out restrictions, * * * in the free pursuit of the business * * * it was unlawful.” It is true in that case that all the lumber dealers expressly became parties to the contract to eliminate the fourth from competition, and upon the pleadings the court held the contract in violation of other provisions of the anti-trust statute, additional to the one we quoted from the opinion of that court; however upon analysis of the opinion in that cause, it is quite analogous to the record here.

It is contended here, that the pleadings of defendant do not raise the point; but if that be true, it- is so prominently apparent upon the record that it is a void contract, we are required to pass upon it — the very right of the cause is dependent upon it — and we think the judgment of the lower court should be affirmed; and it is so ordered.

Affirmed.


author: SPEER, J.

text:
    CONTINENTAL LUMBER & TIE CO. v. MILLER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 25, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Account, Action on (§ 13) — 'Verified Accounts — Defenses.
    Under Rev. St. 1911, art. 8712, providing that when an action is founded upon an open account supported by affidavit it shall be taken as prima fade evidence, unless the party resisting the daim thereon shall file a written denial under oath, stating that the account is not just or true “in whole or in part,” and if in part only stating the items and particulars which are unjust, and that when he fails to file such affidavit he shall not be permitted to deny the account or any item therein, where defendant’s denial alleged that the account was not just, correct, and true, that it was not due, and that defendant did not owe it or any item thereof, this was a sufficient denial; since the statute only requires a definite denial of that part of the account which defendant considers is not just or true, and where the account is denied in whole every item thereof is put in issue.
    [Ed. Note. — For other cases, see Account Action on, Cent. Dig. §§ 38-40; Dec. Dig. § 13.J
    2. Estoppel (§ 107) — Pleading—Necessity.
    In an action for the price of lumber, plaintiff could not insist that defendant by asking damages for the breach of the contract in his answer was estopped to disaffirm the contract, where plaintiff’s pleadings based the claim of estoppel only on defendant’s examination and acceptance of the lumber.
    [Ed. Note. — Eor other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. ■§ 107.]
    3. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action for the price of lumber which defendant claimed to have rejected because of its defective quality and quantity, where defendant pleaded and his evidence showed that during the negotiations looking to the adjustment of the controversy he thought the matter had been settled and so used a small quantity of the lumber, but that upon.learning his mistake he immediately notified plaintiff that he would pay therefor, an instruction that defendant would not have the right to accept the lumber in part and reject it in part, but that he was required either to accept or reject it as a whole, and that if he had an opportunity to and did inspect the lumber after its arrival he should then determine whether he would accept or reject it as an entirety, was properly refused, as it was on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436. 439-441, 446-454, 456-466;. Dec. Dig. § 194.]
    4. Sales (§ 178) — Acceptance—What Con- . stitutes.
    Where a purchaser of lumber refused to accept it because of its defective quality and quantity, but during the negotiations looking to .an adjustment of the controversy he thought the matter had been settled and used a small quantity of the lumber which, upon learning of his mistake he offered to pay for, this was not necessarily an acceptance of the lumber.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 451-455; Dec. Dig. § 178.]
    5. Customs and Usages (§ 8) — Evidence— Admissibility.
    In an action for the price of lumber which defendant claimed to have rejected, evidence as to a custom among lumbermen to the effect that when a purchaser discovered that lumber delivered was not up to grade he should make out a claim of the amount and forward it to the shipper, and pending the settlement between the shipper and purchaser' hold the lumber subject to the shipper’s order, was not inadmissible on the ground that the custom was in contravention of law; since, under the circumstances mentioned, a purchaser might lawfully decline to receive the lumber and hold the shipment subject to the shipper’s order.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§-8-10; Dec. Dig.. § 8.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by the Continental Lumber & Tie Company against P. H. Miller. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    See, also, 145 S. W. 735.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. Goree & Turner, of Ft. Worth, for appellee.

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

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

   SPEER, J.

The Continental Lumber & Tie Company sued P. H. Miller upon an itemized verified account to recover the sum of $656.14 due for two cars of lumber sold and delivered by plaintiff to the defendant and in the alternative to recover the reasonable market value of such lumber. The defendant denied under oath the account sued on and pleaded specially that the shipment of lumber was not of the character, quality, and quantity bargained for, and that the orders given by him contained the express provision that, in ease of any disagreement between the parties in respect to the lumber shipped, the same was-to be held by the purchaser subject to an inspection by some officer or person sent by the Yellow Pine Manufacturers’ Association, whose decision should be final; that he notified the plaintiff of his refusal to accept the lumber, called for an inspector according to the contract; but that his request had at all times been refused, and he has at all times since held the lumber subject to plaintiff’s order. The plea contains some further allegations which will be noticed in connection with the assignments of appellant. The case was submitted to a jury, and the verdict and judgment were in favor of defendant, and the plaintiff has appealed.

The case has been once before appealed to this court and will be found reported in 145 S. W. 735.

Appellant’s first complaint is that the court erred in not sustaining its special exception urged against appellee’s answer denying the verified account, because it failed to deny that such account “is just or true in whole or in part,” as required by the statute. Rev. Civ. St. 1911, art 3712. Appellee’s denial was as follows: “And defendant now here says that said account is not just, correct, and true, and that the same is not due, and that the defendant does not owe the same, or any item of the same, and this the defendant is ready to verify.” This was suf.ficient. It is a denial of appellant’s account in toto. Hensley v. Degener, 25 S. W. 1130. The contention of appellant is for pure literalism. The evident purpose of the statute was to require only a definite denial of that part of the account which was not considered by the defendant to be just or true and where, as here, the account is denied in whole, every item thereof, is put in issue.

It is next complained that the court erred in not peremptorily instructing a verdict for appellant. The instruction was claimed, first, because the undisputed evidence and the record show that appellee had elected in his original answer to affirm the contract of sale which formed the basis of appellant’s suit by asking for damages for breach thereof, and was therefore estopped to disaffirm the contract, as he was attempting to do on this trial. This contention is without merit, however, since no such plea of estoppel was interposed by appellant; the plea going only to the extent of alleging appellee’s examination and acceptance of the lumber in the first place. The instruction was claimed next upon the. ground that the undisputed testimony shows that appellee, after having unloaded and inspected the lumber, received and accepted the same, and was therefore estopped, as pleaded by appellant, to say that the lumber was not of the character, quantity, and quality contracted for. The facts with respect to an acceptance, however, were not undisputed, nor such as to require the giving of a summary instruction upon the theory that appellee had accepted the lumber as being in compliance with the terms of his order. The trial court very clearly submitted this question to the jury, telling them that, if they believed the grade and quality of the two cars of lumber were substantially the same as the grade and quality of the lumber ordered, they would find for the plaintiff for the full amount sued for, and furthermore, if they believed from the evidence that the character of lumber ordered was not shipped, but that lumber of a different grade and quality was shipped, and that the same was received by the appellee and accepted by him, they would find for appellant for the reasonable market value of the lumber so received and accepted, together with interest thereon, and that the question of acceptance was one to be determined by them under all the facts and circumstances surrounding the transaction. Neither was the summary instruction called for upon the theory suggested in the fourth assignment, to the effect that appellee failed to notify appellant within a reasonable time that he had rejected the lumber.

Appellant’s special charge No. 3 was properly refused, because under the facts of this case it would have been on the weight of the evidence. It contained the following language: “You are instructed that the defendant would not have the right to accept said lumber in part and reject it in part, but that the defendant was either required to accept or reject the lumber shipped as a whole, and if you believe from the evidence in this case that the defendant had an opportunity to and did inspect said lumber after its arrival, and that he then would (should) determine whether he would accept or reject the same as an entirety.” Appellee pleaded, and his evidence showed, that during the negotiations looking to an adjustment of the controversy with appellant, he thought the matter had been settled, and so used a small quantity of the lumber, amounting in value to about the sum of $4, but that upon learning his mistake he immediately notified appellant "that he would pay for the lumber used by allowing it as a credit on the unloading charges which had been made against appellant. This, under the circumstances, did not necessarily show an acceptance of the lumber; but the explanation was entirely reasonable and tended to negative the intention to accept. Special charge No. 6 contained the same vice.

The witness Darnell testified to a custom amongst lumbermen to the effect that, when a purchaser discovers upon inspection that the lumber delivered is not up to grade, the universal custom is to make out a claim of the account and forward it to the shipper; pending the settlement between the shipper and the purchaser, the lumber is held subject to the order of the shipper. Appellant objected to this evidence on the ground that such custom' was in contravention of the law of the country with reference to the sale of personal property. It is not apparent how such custom is in contravention of any law. Under the circumstances detailed by the witness, a purchaser might lawfully decline to receive the lumber and hold the shipment subject to the shipper’s order. The proposition submitted under the assignment "raising this question, however, again asserts that the purchaser in such a case must reject or accept the property as a whole, and, if he retains and uses a portion of it, he is estop-ped to deny that he accepted the whole. We have already disposed of this contention. There was a further objection to this witness’ testimony upon the ground that the pleadings as to custom were not sufficient. But there was a plea of custom sufficient we think at least to admit a portion of the witness’ testimony, and there is no specific objection to a particular part which would not be within the pleas.

The eighth assignment complains of error in permitting the witness Faust to testify as to the general custom among lumbermen as it affected this controversy. But what we have said upon the ruling last discussed will also dispose of this assignment.

The evidence justifies the verdict and supports the judgment. There is no error in the record, and the judgment is affirmed.


text:
    EDWARDS et al. v. DENNINGTON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 29, 1913.)
    1. Justices of the Peace (§ 44) — Jubisdiction —Amount in Conteovebsy —Amendment.
    Plaintiff sued to cancel his note for $65, secured by a chattel mortgage on property valued at more than $200, and given as a premium for a hail insurance policy, on the ground that it had been obtained by fraud, and, after defendant pleaded a judgment obtained against him on such note for $76, he sought to recover damages in the amount of such judgment. Held, that plaintiff’s cause of action was to be construed as one for damages to the amount of the judgment, which was within the original jurisdiction of the justice’s court, and that, even if the value of the mortgaged property put the original suit beyond the jurisdiction of the justice’s court, his reply to the plea was in the nature of an amendment bringing himself within such jurisdiction.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 157-172; Dec. Dig. § 44.]
    2. Judgment (§ 713) — Conclusiveness — Mattees Concluded.
    Judgment against plaintiff on his note to the amount of $76 was conclusive as against Ms right to recover for damages to that extent on the ground of fraud in obtaining the note, since, if he had a cause of action for deceit, it could have been interposed and have availed as a defense in the suit on the note.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1068, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    Action by G. E. Dennington against H. H. Edwards and others, with cross-action by defendants. Judgment for plaintiff, and defendants ''appeal.
    Reversed and rendered for defendant.
    Alexander, Power & .Ridgway, of Ft. Worth, for appellants. H. G. McConnell, of Haskell, Gordon B. McGuire, of Dallas, and C. B. Dong, of Haskell, for appellee.

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

   SPEER, J.

G. E. Dennington brought this suit in the justice court of precinct No. 1, Haskell county, against H. H. Edwards, Hailstorm Underwriters, and D. G. Ocheltree, charging that they had fraudulently obtained from him a certain promissory note dated May 6, 1912, for the sum of $65.40 as a premium for a policy of hailstorm insurance, agreeing that the policy should be guaranteed by a certain company, when in truth a different policy had been delivered to Mm. He sought the cancellation of the note; but, upon the defendants answering by plea of res adjudicata that a judgment had been obtained against him on such note in the county court of Tarrant county for civil eases, he prayed to be allowed Ms damages in the amount of such judgment. The case was tried in the justice court and afterward appealed to the county court, where judgment was finally rendered in favor of the plaintiff for $76.40. There was a cross-action pleaded by the defendants, but this was decided against them, and no complaint is made as to this portion of the judgment, though they do appeal from the money judgment in plaintiff’s favor.

It is first contended that the justice and county courts were without jurisdiction to determine this suit, since it was alleged by appellants, and supported by appellee’s admission in open court, that the note for the cancellation of which the suit was instituted was secured by a chattel mortgage on property of value more than $200. We rule against this contention, however, since we construe appellee’s cause of action, as interpreted by his final pleadings, to be one for damages for the fraud in wMch the measure of his recovery is laid at the amount of the judgment, which was within the orginal jurisdiction of the justice court. So that, if, under the authorities, as indicated in Stricklin v. Arrington & Carter, 141 S. W. 189, the value of the mortgaged property, rather than of the debt secured by it, determines the amount in controversy, and appellee’s petition as originally .filed was beyond the jurisdiction of the justice court, still he would have the(undoubted right to put Mmself within the jurisdiction by an amendment, which, in effect, he did in reply to appellant’s plea of res adjudicata.

The next question presented arises upon the plea of res adjudicata. It appears to be undisputed that suit was instituted in the county court of Tarrant county for civil cases against appellee upon the identical note which he sought in this suit to cancel; that, though he was duly cited, he made default in that suit, and judgment was accordingly entered against him. This we take it to be is conclusive of his rights in this suit. It is a well-established rule that the judgment in a former action upon the same claim or demand concludes the parties as to every matter which was offered and received to defeat the claim or demand, as well also as to every other matter which might have been offered for that purpose. City of Houston v. Walsh, 27 Tex. Civ. App. 121, 66 S. W. 106; Nichols v. Dibrell, 61 Tex. 539; Henderson v. Terry, 62 Tex. 281; Wilson v. Cook, 91 S. W. 236. It cannot be denied that, if appellee had such a cause of action for deceit as would sustain his claim for damages in this suit, the same could have been interposed and would have availed him as a defense in the suit instituted in Tarrant county. Such cause of action and defense were necessarily concluded by that judgment. The trial court before whom this plea was tried should have sustained the same, and, for his error in not doing so, the judgment is reversed, and judgment here rendered for appellants.

Reversed and rendered.


text:
    RECORD CO. v. POPPLEWELL.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 8, 1913.)
    Appeal and Error (§ 773) — Disposition— Appibmance — Rule op Court.
    Rule 42 for Courts of Civil Appeals (142 S. W. xiv) provides that, where appellant files no briefs, appellee, before the call of the case, may file a brief as required of appellant, shaping his' proposition so as to show the correctness of the judgment, which the court may regard as a correct presentation of the case, without examining the record further than, to see that the judgment is one that can be affirmed upon the case as presented by appellee. Plaintiff sued a newspaper to recover $400 damages for the wrongful deprivation of a paper route, which suit was consolidated with one by defendant for $125 for papers furnished, the real contention being whether defendant was bound to furnish papers at a price named in a contract with the carrier whom plaintiff succeeded, and, on charges within the pleadings, a verdict such as a jury was authorized to find was returned for plaintiff, and for defendant for $62.50, and defendant appealed but filed no briefs. Held, on plaintiff’s brief .under the rule, that under its express terms judgment would be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]

      Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by J. M. Popplewell, Jr., against the Record Company, with counterclaim by defendant. Judgment for plaintiff on his claim and for defendant as to part of its claim, and defendant appeals.
    Affirmed.
    Bryan & Spoonts, of Ft. Worth, for appellant. J. W. Stitt, of Ft. Worth, for appel-lee.

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

   SPEER, J.

J. M. Popplewell, Jr., instituted a suit against the Record Company, a corporation publishing a daily newspaper in Ft. Worth, to recover the sum of $400 damages for wrongfully having deprived him of a paper route in the city of Ft. Worth, and the suit was consolidated with one instituted by the Record Company against Pop-plewell in the justice court Imd appealed to the county court to recover $125 balance due for papers furnished him. Popplewell had judgment on his claim for $370, and the Record Company recovered judgment on its claim for $62.50, and the latter has appealed.

Appellant has filed no briefs in the case, and we would therefore dismiss the appeal for want of prosecution but for the fact that appellee has filed his brief under rule 42 (142 S. W. xiv), in which he prays that the judgment be affirmed. The trial judge thus presented the case to the jury: “In this case you are Instructed that if you believe from the evidence that defendant failed to furnish plaintiff with papers according to the contract entered into between plaintiff and defendant, thereby causing plaintiff to lose the use and benefits of said route, then you will find for the plaintiff for the reasonable market value, if any, of said route at the time plaintiff lost said route, with 6 per cent, interest from March 25, 1912, and, unless you find that the defendant failed to furnish said papers according to the terms of said contract, you will find for the defendant as to plaintiff’s cause of action. As to defendant’s cause of action, gentlemen of the jury, you' are instructed that, if you believe from the evidence that defendant in said cause, Popplewell, received the papers sued for in said cause under the original contract, then you will find for the Record Company against the said Popplewell for such amount, if any, as you may find that the said Popplewell owes the Record for said papers, and, unless you find that said papers were received by the said Popplewell under the original contract, you will find for the said Popplewell as to the Record’s cause of action.”

The real dispute between the parties arose over the contention that the Record was under obligation to furnish to Popplewell papers at a price named in a prior contract with another carrier whose route Popplewell had purchased. Popplewell admitted an indebtedness of $62.50 which was in accordance with the price fixed in such original contract, and it appears from the verdict that the jury held with his contention that the papers were furnished under that contract. The charges quoted appear to be within the pleadings and evidence, and the verdict returned is such a one as the jury were authorized to find. We think the “judgment is one that can be affirmed upon the view of the ease as presented by appellee,” in accordance with rule 42, and it is accordingly ordered that such judgment be affirmed.

Affirmed.


author: DUNKLIN, J.

text:
    YOUNG MEN'S CHRISTIAN ASS'N OF DALLAS v. SCHOW BROS.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 6, 1913.)
    1. Estoppel (§ 107) — Pleading as Defense —Necessity.
    In an action for the price of goods sold, where the only pleading in the justice court was a verified account and no further pleading was filed on the appeal to the county court, as permitted by statute, an instruction, authorizing a recovery if defendant by acts or words, or both, led plaintiff to believe that the purchaser was defendant’s agent, with authority to make such purchases for it, was erroneous, since the issue presented was one of estoppel, and plaintiffs could not avail themselves of the benefits of the estoppel unless they specially pleaded it.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. § 107.]
    2. Justices oe the Peace (§ 174) — Appeals to County Court — Pleading.
    Rev. Civ. St. art. 759, providing that when a case is removed by certiorari from the justice court to the county court, plaintiff may plead new matter not constituting a new cause of action, also applies on appeals from the justice court to the county court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    3. Justices of the Peace (§ 90) — Pleading —Necessity.
    Pleadings are as essential to make an issue in the justice court as in a court of record.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. § 90.]
    Appeal from Bosque County Court; P. S. Hale, Judge.
    Action by Schow Bros, against the Young Men’s Christian Association of Dallas. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    J. L. Goggans, of Dallas, for appellant. James M. Robertson, of Meridian, for appel-lees.

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

   DUNKLIN, J.

In a suit by Schow Bros, against the Young Men’s Christian Association of Dallas, a private corporation, plaintiffs recovered a judgment, from which the defendant has appealed.

The suit originated in the justice court, later appealed to the county court, and was upon a verified account for merchandise charged to the defendant. The merchandise shown in the account consisted of groceries furnished hy plaintiffs for the use of the members of the defendant association during their encampment near the town of Clifton, in Bosque county. The evidence is sufficient to show that at the request of the defendant’s secretary plaintiffs furnished a price list of the goods, in reply to plaintiffs’ letter to the defendant soliciting the account for such supplies. The evidence further shows that later A. A. Allen called up plaintiffs over the telephone and ordered the goods for and on behalf of the defendant, stating, in effect, that he was authorized by the defendant so to do. The goods were furnished in obedience to this request. The evidence further shows that defendant entered into a written contract with Allen, whereby the latter contracted and agreed to board the boys during the encampment and to furnish all supplies necessary therefor, for a fixed sum. But this contract was not known to the plaintiffs at the time the goods were furnished for which a recovery was allowed. Whether or not Allen was defendant’s agent, authorized by it to purchase the goods upon defendant’s account, was an issue sharply controverted by the defendant, and properly submitted in the court’s charge.

The court further instructed the jury, in effect, that the defendant would be bound by the acts of Allen in the purchase of the goods, if, by acts or words, or both, they led plaintiffs to believe that Allen was their agent, with authority to make such purchases for the defendant, and that such acts or words of the defendant were reasonably calculated to induce the plaintiffs to so believe, and that, acting upon such belief, they were induced to sell the goods upon the credit of the defendant. One of the grounds upon which the instruction last noted is assailed is that there was no pleading to warrant it. The only pleading by plaintiffs shown in the transcript from the justice court to the county, court consists of the verified account, and it does not appear from the record that any other pleading than that was filed by plaintiffs in the county court after the case was appealed to that court.

By article 759, Revised Civil Statutes 1911, it is provided that when a case is removed by certiorari from the justice court to the county court, the plaintiff may plead new matter which does not constitute a new cause of action, provided such pleading be in writing and filed in the cause, and this article of the statute applies also in cases of appeal from the justice court to the county court. Slover v. McCormick Harvesting Machine Co., 12 Tex. Civ. App. 446, 34 S. W. 1055, and cases there cited.

Pleadings are as essential to make an issue in the justice court as in a court of record. Moore v. Jordan, 67 Tex. 394, 3 S. W. 317; Maass v. Solinsky, 67 Tex. 290, 3 S. W. 289. The issue presented by the instruction now under consideration was one of estoppel. In other words, essentially it is that the defendant, having held out Allen as its agent, and thereby induced the plaintiffs to believe that he was its authorized agent to purchase the goods, is now estopped to deny that he was such agent, even though as a matter of fact no such agency existed. It is well settled by the authorities that in order for plaintiffs to avail themselves of the benefits of this rule, it was necessary for them to specially plead such estoppel. Swayne v. Insurance Co., 49 S. W. 518; Wolf v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390.

From the foregoing conclusions it follows that the court erred in giving the instruction ■last noted, and for this error the judgment must be reversed and the cause remanded. All other assignments of error have been duly considered and are overruled.

Reversed and remanded.