text:
    CETTI v. WILSON et al.
    (No. 7981.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 23, 1914.
    Rehearing Denied June 20, 1914.)
    1. Judgment (§ 788) — Priority over Unrecorded Deed.
    Under Rev. St. 1911, art. 6824, providing that a conveyance of land shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless recorded as required by law, a lien fixed by judicial process upon land without notice of an unrecorded deed is superior to such deed, and a subsequent purchase of the land even with notice of the unrecorded deed would vest title in the purchaser, though the creditor himself be the purchaser and the amount of the bid is credited upon the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1368, 1369; Dec. Dig. § 788.]
    2. Deeds (§ 83) — Recording Act — Instruments Entitled to Record.
    Rev. St. 1911, art. 6824, providing that all unrecorded conveyances shall be void as to creditors and subsequent purchasers for a valuable consideration without notice, does not apply to an equitable title, for that is not subject to registration. Hence, where the grantor of land conveyed his entire interest instead of the portion which was intended and conveyed to a second grantee the land reserved, the second grantee took only an equitable title, and his rights are not affected by the registration statute.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 218-221; Dec. Dig. § 83.]
    3. Execution (§271) — Sale—Innocent Purchaser FOR VALUE.
    An innocent purchaser for value will be protected as against an. outstanding equitable title, and hence one who purchased one-half of a tract of land sold under execution, without notice of defendant’s equitable title to one-balf of the tract, takes his purchase free from defendant’s equities.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 769-78Ü, 782; Dec. Dig. § 271.]
    4. Vendor and Purchaser (§ 237) — Bona Fide Purchasers — Who Are.
    A judgment debtor who apparently held title to one-half of a section really owned only one-fourth; the conveyance to him by mistake describing the greater interest. The judgment creditor levied upon and sold the debtor’s entire interest buying in one-half of the land sold. Held, that the judgment creditor was not a bona fide purchaser for value, as he merely gave a credit on the judgment, there being no present consideration, yet, as the debtor actually owned an undivided one-fourth of the section, the purchase vested in the judgment creditor good title to one-eighth of the section, and the holder of the outstanding equitable title was entitled to the remaining one-eighth.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 577-579; Dec. Dig. § 237.]
    5. Partition (§ 63) — Actions—Evidence.
    In a suit to partition land and establish title, where plaintiffs traced their title through a purchase at execution sale, the order of sale and return of the sheriff showing levy upon the property is properly received in evidence.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 183-185; Dec. Dig. § 63.]
    6. Vendor and Purchaser (§ 231) — Bona Fide Purchasers — Notice — Constructive Notice.
    Where a grantor who owned only an undivided one-half interest in a section conveyed through mistake his entire interest to another instead of a one-fourth interest as was intended, the record of a subsequent deed by the grantor to a second grantee of the remaining one-fourth interest is not constructive notice to creditors of the first grantee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dee. Dig. § 231.]
    7. Execution (§ 272) — Sale — Bona Fide Purchasers — Constructive Notice — What Constitutes.
    Nor was payment of taxes upon a one-fourth interest by the second grantee constructive notice to creditors who purchased the interest of the first grantee at execution sale.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 771, 781-788; Dec. Dig. § 272.]
    Appeal from District Court, Archer County; P. A. Martin, Judge.
    Action by L. F. Wilson against Zane Cetti and others. From a judgment for plaintiff and the other defendants, the defendant named appeals.
    Reversed and remanded.
    W. R. Sawyers, of Ft. Worth, for appellant. W. E. Forgy, of Archer, and W. S. Blount, of Nacogdoches, for appellees.

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

   DUNKLIN, J.

L. F. Wilson instituted this suit against S. W. Blount, J. D. Coker, and Zane Cetti, alleging that he owned an undivided one-half interest in a survey of 640 acres of land; that defendants owned the remaining interest; and prayed for a partition of the land between the parties. The defendants all filed answers in which each of them claimed an undivided one-fourth interest in the entire survey. It was shown without controversy that plaintiff owned an undivided one-half interest in the land, and the only issues controverted upon the trial were between the defendants. By the judgment rendered an undivided one-half interest was decreed to be in the plaintiff! an undivided one-fourth interest was decreed in Blount and Coker, each, respectively, and the defendant Cetti was denied any interest in the land. Cetti has appealed.

John R. Mahone was the common source of title claimed by the three defendants. On October 28, 1875, Mahone conveyed an undivided one-half interest in the land to Nathan Gregg, which deed was duly recorded October 4, 1877. On February 2, 1876, Mahone conveyed an undivided one-fourth interest in the survey to John Adamson, and that deed was recorded October 14, 1876. The proof shows that the land sold by Mahone to Gregg and intended to be conveyed was an undivided one-fourth interest only, and that by mutual mistake the land actually sold was described as an undivided one-half interest instead of an undivided one-fourth interest, In order to correct this error, on January 16, 1889, Nathan Gregg executed to John Adamson a deed conveying to Adamson an undivided one-fourth interest in the survey, reciting the fact that in the deed from Mahone to Gregg the land conveyed had been erroneously described as an undivided one-half interest in the survey, instead of an undivided one-fourth interest, which was the only interest intended to be conveyed by that deed. This deed was not recorded until May 9, 1893. By a deed dated July 20, 1888, and duly filed for record four days later, John Adamson conveyed an undivided one-fourth interest in the survey to appellant Zane Cetti. It will thus be seen that the deed from Mahone to Adamson was filed for record nearly one year prior to the record of the deed which had theretofore been executed by Mahone to Gregg, but no proof was offered upon the trial to show the consideration paid by Adamson to Mahone for this conveyance and none to show that Adamson was an innocent purchaser for value of the interest so conveyed. Nor was there any contention by Cetti that either he or Adamson was an innocent purchaser under that deed.

In the district court of San Augustine county, in a suit by Henry Lewis against Nathan Gregg & Son, a writ of attachment was issued against the defendants in that suit, and on June 2, 1891, was levied upon an undivided one-half interest in the survey in controversy as the property of Nathan Gregg. On February 15, 1892, a judgment was rendered in that suit foreclosing the attachment lien and ordering the property so levied on to be sold as under execution. Under an order of sale issued upon that judgment the property was sold on August 2, 1892, to Henry Lewis, the plaintiff in that suit, and S. W. Blount upon a bid of $100, one-half of which was paid in cash by Blount; but Henry Lewis paid no money, the consideration passing from him being a credit entered upon the judgment rendered in his favor and under which the sale was made.

By mesne conveyances the undivided one-fourth interest in the land which purported to be vested in Henry Lewis by the sheriff’s deed was conveyed to the defendant J. J. Coker, but those conveyances were long subsequent to the record of the corrected deed from Gregg to Adamson and only one of which was filed for record, and no proof was introduced to show the consideration paid for any of those conveyances. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact and conclusions of law. One of the findings of fact was that at the time of the levy of the writ of attachment mentioned, and at the time of the sheriff’s sale under the judgment rendered in that suit, Henry Lewis and S. W. Blount “had no notice or knowledge, actual or constructive, of the existence of the deed of relinquishment from Nathan Gregg to John Adamson dated January 16, 1889, and which was not recorded until May 9, 1893.” The conclusion of law reached by the trial judge was that the sheriff’s deed was superior to the unrecorded deed from Gregg to Adamson and for that reason denied to Cetti any interest in the land, and whether or not that conclusion was correct is the principal question to be decided upon this appeal.

Article 6824, Revised Statutes 1911, reads:

“All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall nevertheless be valid and binding.”

That article of the statutes was construed in Grace v. Wade, 45 Tex. 522, which decision has been uniformly approved in subsequent decisions of our Supreme Court and Courts of Civil Appeals. See McKamey v. Thorp, 61 Tex. 648; Hill v. Moore, 62 Tex. 610; Parker v. Coop, 60 Tex. 111; and other decisions cited in Rose’s Notes of Texas Cases, vol. 2, p. 644. The rule established by those decisions is that a lien fixed by judicial process upon land without notice of an unrecorded deed is superior to such deed and that a subsequent purchase of the land, even with notice of the unrecorded deed would vest title in such purchaser to .the exclusion of such deed; and that, too, even though the creditor himself be the purchaser and the amount of the bid is credited upon the judgment rendered in his favor. But in those cases the court approved the doctrine announced in Blankenship v. Douglas, 26 Tex. 226, 82 Am. Dec. 608, which decision has likewise been uniformly approved, that the registration statute above noted would not exclude an equitable title to the land as the same is not subject to registration. The question then is: Was the title held by Adamson at the time of the levy of the writ of attachment a legal or equitable title? The deed from Mahone to Nathan Gregg conveying the legal title to an undivided one-half interest in the survey having been executed by mutual mistake, in that only an undivided one-fourth interest was intended to be conveyed, Gregg held the legal title in trust for Mahone, and bis subsequent vendee, Adamson. In other words, while the legal title to that excess interest stood in the name of Nathan Gregg, the equitable title was in Mahone, and was thereafter vested in Adamson by the deed from Mahone and the deed of correction from Gregg, and such equitable title was not subject to registration and was not affected by the registration statute noted. Hawkins v. Willard, 88 S. W. 365; Henderson v. Rushing, 47 Tex. Civ. App. 485, 105 S. W. 840; Long v. Fields, 31 Tex. Civ. App. 241, 71 S. W. 774.

But it is well settled that upon equitable principles, and independent of the registration statute, an innocent purchaser of land will be protected even as against an outstanding equitable title. Parker v. Coop, 60 Tex. 111; Long v. Fields, 31 Tex. Civ. App. 241, 71 S. W. 774; and Hill v. Moore, 62 Tex. 610. The case last cited was a contest between the appellant, Hill, the owner of the prior equitable title to land, and Moore, the bona fide subsequent purchaser of the legal title without notice of the outstanding equitable title, and, in holding that Moore’s title was superior to that of Hill, our Supreme Court used the following language:

“The case is in no manner affected by the laws regulating registration, and must be determined by the rules applicable to the rights of a bona fide purchaser as they are enforced and protected in courts of equity. It is a well-recognized doctrine in equity that a bona fide purchaser of the legal title to property, who pays a valuable consideration therefor, without notice, actual or constructive, of the right of other persons, is entitled to protection against others who may have equitable title to or interest in the thing purchased; and it matters not whether the thing purchased be real or personal property.”

Under this equitable doctrine, and under the facts found by the trial court and noted above, the title acquired by defendant Blount under his purchase at the sheriff’s sale was superior to the title claimed by Cetti. The title thus acquired by Blount was one-half of the legal title standing in the name of Gregg at the time of the levy of the attach-' ment writ; in other words, an undivided one-fourth interest in the entire survey; and hence the judgment awarding the defendant Blount an undivided one-fourth interest in the land was correct.

But Henry Lewis, who, together with Blount, purchased at the execution sale, could not invoke the equitable rule in favor of bona fide innocent purchasers for the reason that he did not pay a valuable consideration for the deed to him; the only consideration passing from him being merely the entering of a credit upon his judgment of one-half of the bid for the property at such sale. McKamey v. Thorp, 61 Tex. 648; Long v. Fields, 31 Tex. Civ. App. 241, 71 S. W. 774. However, the credit so given upon the judgment was a sufficient consideration to vest

in him title to one-half of the interest which the defendant Gregg actually owned in the survey at the time of the levy of the writ of attachment. The interest so owned by Gregg was an undivided one-fourth interest only, and under the sale by the sheriff Lewis acquired title to one-half of said one-fourth interest, or, in other words, an undivided one-eighth Interest in the entire survey. Under the decisions noted above the remaining one-eighth interest in the survey was in appellant Cetti and was not affected by such sale, and judgment should have been rendered in his favor for that interest.

By another assignment of error ’ appellant insists that the judgment in favor of Henry Lewis against Nathan Gregg & Son was not a final judgment and for that reason that the sale thereunder conveyed no title.' Neither the assignment nor the proposition submitted thereunder points out any reason for the contention that the judgment was not a final one, and, after an inspection of the same, we have failed to discover any basis for that contention.

We are of the opinion further that there was no error in admitting in evidence over appellant’s objection the order of sale and return of the sheriff showing levy of the same upon the property in controversy, contrary to the assignments addressed to those rulings that the same were irrelevant and immaterial and showed no proper levy and sale.

By another assignment complaint is made of the findings by the trial court that Henry Lewis recovered the judgment mentioned above because the ‘judgment was not final, in that it failed to state the names of the defendants in the judgment. There is no merit in this assignment, since the judgment does specifically decree a recovery against Nathan Gregg & Son who are identified in the judgment as the defendants in the suit.

We are of the opinion further that the evidence clearly shows a legal levy and return of the order of sale. The evidence amply supports the finding by the trial court that neither at the time of the levy of the attachment writ nor at the date of the sale did Henry Lewis and S. W. Blount have any actual or constructive notice of the existence of the unrecorded deed from Nathan Gregg to John Adamson. There is no merit in the contention that the payment of taxes by Adamson and Cetti upon an undivided one-fourth interest in the land from the date of the deed from Mahone to Adamson up to the date of the trial was constructive notice to Lewis and Blount. Nor was the record of the deed from Mahone to Adamson and from Adamson to Cetti constructive notice to said purchasers for the reason that at the time Mahone conveyed to Nathan Gregg he only owned an undivided one-half interest in the land, the legal title to all of which was conveyed by that deed, which was the deed through which the defendants Blount and Coker claimed, and which was prior to the deed from Mahone to Adamson. White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875.

For the reasons noted, the judgment denying appellant Cetti any interest in the land and awarding defendant Coker an undivided one-fourth interest in the land .is reversed, and judgment is here rendered in favor of Coker and Cetti each for an undivided one-eighth interest in the land in controversy. The judgment rendered in favor of appellee Blount is affirmed. In all other respects, the judgment rendered by the trial court is undisturbed, save and except that the partition decreed shall be between the parties according to the foregoing decision.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. SOUTHERN PRODUCE CO.
    (No. 1316.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1914.)
    1. Carriers (§ 130) — Injury to Goods — Actions — Jurisdiction.
    Where defendant shipped a car load of mixed fruit with the right to unload 100 bunches of bananas in one county and 100 bunches in another county, and, the bananas having arrived in bad order, defendant refused to unload any at either place, it was not entitled to maintain a suit in each county for the injury to the bananas intended to be unloaded in each place, and hence a recovery in one of the suits could be pleaded in bar of the other.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 130.]
    2. Injunction (§ 26) — Prosecution of Action at Law — Legal Remedy.
    Rev. St. 1911, art. 759, provides that either •party may plead any new matter in the county or district court which was not presented in the court below, but no new cause of action shall be set up by plaintiff nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the trial court. Held that, while such article refers to writs of cer-tiorari to justice courts, it also applies to appeals prosecuted in the ordinary form, and hence, where a consignor brought two suits in different counties before justices of the peace for an injury arising out of a single transaction and recovered judgment in one of them, the defendant was entitled on appeal of the other to the circuit court to plead the judgment recovered in the first action in bar of the second, and was therefore not entitled to an injunction to restrain the prosecution of the second.
    [Ed. Note. — For other cases, see Injunction, •Cent. Dig. §§ 24r-49, 54-61; Dec. Dig. § 26.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Suit by the Texas & Pacific Railway Company against the Southern Produce Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Glass, Estes, King & Burford and C. A. Wheeler, all of Texarkana, for appellant. Walter L. Willie and E. Newt Spivey, both of ‘Texarkana, for appellee.

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

   HODGES, J.

In October, 1913, the appellant filed in the county court of Bowie county an application for a writ of injunction against the Southern Produce Company, alleging in substance the following facts: That the Southern Produce Company is a private corporation, with its domicile in Miller county, Ark. That on or about November 28, 1911, the Southern Produce Company shipped, over the appellant’s line of railway, one car load of mixed fruits, from Texarkana, Tex., to Longview, Tex., consigned to itself. The shipping contract permitted the Southern Produce Company to stop and unload part of the fruit at Marshall, a point intermediate between Texarkana and Longview. This car was transported without negligence from Texarkana to Marshall, and from there to Longview, and delivered to the Southern Produce Company. That the latter had no cause of action against the appellant for damages, unless one resulted from a breach of the contract of shipment, which contract is attached to and made a part of the petition. That for the purpose of harassing and annoying the appellant, and for the further purpose of preventing an appeal to the Court of Civil Appeals, the Southern Produce Company filed two damage suits against the appellant, each for $99.45. That both of these suits were founded upon an alleged breach of the aforesaid contract of shipment. One of them was filed in a justice court of Harrison county, and the other in a justice court in Bowie county, Tex. On the trial of the Harrison county suit a judgment was rendered in favor of the appellee and against the appellant. An appeal was prosecuted by the appellant to the county court of Harrison county, where a similar judgment for damages was rendered against it. It is further alleged that the Southern Produce Company recovered a judgment in the suit pending in the justice court of Bowie county, and that the appellant railway company perfected and prosecuted an appeal to the county court of Bowie county, where the cause is now pending. The petition then proceeds:

“Plaintiff shows to the court that notwithstanding defendant has obtained one final judgment against it as aforesaid, defendant is prosecuting the suit now pending in this court, and will, unless restrained from so doing, again prosecute this suit to a final judgment against this plaintiff, which it will have to pay, and will vex, harass, and otherwise damage the plaintiff, in that it will be forced to bring a large number of witnesses to this court, taking depositions, be required to employ counsel to represent it in said case, and force said counsel to incur other expenses in attending this court and defending said suit, all of which plaintiff will have to pay, to plaintiff’s damage in the sum of $250. Plaintiff further shows that it has no adequate remedy at law, in that, in order to properly present its defense in said suit now pending it will be necessary for it to bring to this court witnesses who reside out of the state, and incur other expenses which cannot be legally taxed as costs in said suit and which cannot be collected from said Southern Produce Company, and plaintiff will thereby be damaged in the said sum of $250.”

The petition then concludes with a prayer for a perpetual injunction restraining the Southern Produce Company from further prosecuting any suit growing out of the alleged breach of the contract before referred to.

Upon the filing of a bond the county judge of Bowie county granted a temporary restraining order against the further prosecution of that suit. When the case came on for trial on its merits, the writ of injunction was refused, and the temporary order theretofore granted was dissolved, and from that judgment the appellant prosecutes this appeal.

The trial court filed findings of fact and conclusions of law, which, briefly stated, are as follows: That the car load of fruit referred to in the petition was shipped by the Southern Produce Company as alleged, with the privilege to the shipper of stopping and unloading one hundred bunches of bananas therefrom at Marshall. The car stopped at Marshall for the above-mentioned purpose, but none of the bananas were taken out on account of their damaged condition. The entire load was then carried on to Longview, and was there refused by the consignee because of their damaged condition. The Southern Produce Company is a corporation operating under the laws of Arkansas and has branch houses at Marshall and Long-view, and the shipment in this instance was intended for those houses. Those houses were under the management and control of other parties different from those who composed the Miller county corporation, but the latter had a large interest in each of them. He further found that the Southern Produce Company filed a suit for more than $100 against the Texas & Pacific Railway Company in the justice court of precinct No. 3 of Harrison county to recover damages for the 100 bunches of- bananas which it intended to unload at Marshall. That the amount of this claim was subsequently reduced to $99.45. That a trial in the justice court of Harrison county resulted in a judgment for the Southern Produce Company. That the Texas & Pacific Railway Company appealed from that judgment to the county court of Harrison county, where a judgment was rendered against it for $74.48. He also found that another suit was filed by the Southern Produce Company, against the Texas & Pacific Railway Company in the justice court of pre^ cinct No. 1 of Bowie county for the sum of $99.40, founded upon a claim for damages for the 100 bunches of bananas which were to be unloaded at Longview. A trial in the justice court of Bowie county resulted in a judgment against the Texas & Pacific Railway Company for the sum sued for. From that judgment the railway company appealed to the county court of Bowie county, where the cause is still pending.

The court’s conclusions of law based upon those findings are as follows:

“Having found that the said branch houses of the Southern Produce Company at Marshall, Tex., and at Longview, Tex., are owned in part by stockholders different from the main house in Miller county, Ark., and the agreement with reference to the division of profits was different from the main house, and that each of said branch houses had its local managers, I conclude that the corporation, the Southern Produce Company, had a right to maintain and to prosecute to final judgment a claim for damages to each of the 100 bunches of bananas included in said shipment, and that said Southern Produce Company ought not to be restrained from prosecuting its suit in Bowie county, Tex., on account of having recovered a final judgment in Harrison county, Tex.”

It is contended that the foregoing facts found by the court show conclusively that the Southern Produce Company had made two suits of only one cause of action; that, having elected to prosecute one of them to a final judgment, that judgment is legally a bar to any recovery in the suit pending in Bowie county.

If the two suits referred to are in fact based upon a transaction which gives but a single cause of action, both of them cannot be maintained. St. L. S. W. Ry. Co. v. Moss, 28 S. W. 1038, and cases cited. A recovery in one might be pleaded in bar of the other. The findings of the court do not disclose two.separate and distinct causes of action, whether we regard the damages to the fruit as a breach of the contract of shipment or as a tort. There was but one shipment, and the consignor, who was the injured party, sues for the entire damages. There appears to be no reason whatever for dividing the cause of action. But it does not follow that the appellant is entitled to have this last-mentioned suit enjoined, even if it was wrongfully prosecuted. If it cannot now be maintained, it is because of the recovery in the other suit. That defense is available in the present attitude of that ease, unless it has been lost by some dereliction on the part of the appellant for which no excuse is given. Article 759 of the Revised Civil Statutes of 1911 provides that:

“Either party may plead any new matter in the county or district court which was not presented in the court below, but no new cause of action shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below.”

This article refers to writs of certiorari to justice courts, but it applies with equal force to appeals prosecuted in the ordinary form. See authorities collected under article 759 in Vernon’s’ Sayles’ Texas Civil Statutes. In this proceeding the appellant is seeking to use as a basis for equitable relief a plea which is equally available as a defense to the action at law. This cannot be done. McMickle v. Hardin, 25 Tex. Civ. App. 222, 61 S. W. 322; Frazier v. Coleman, 111 S. W. 662; Rucker v. Campbell, 35 Tex. Civ. App. 178, 79 S. W. 627; Gibson v. Moore, 22 Tex. 611; G. H. & S. A. Ry. Co. v. Dowe, 70 Tex. 3, 6 S. W. 790; Turner v. Patterson, 54 Tex. Civ. App. 581, 118 S. W. 565.

Article 4643 of the Revised Civil Statutes, in providing for the conditions under which a writ of injunction may be issued by the courts of this state, contains the following:

“(1) Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.”

The two remaining subdivisions clearly have no application to the particular ground here relied on for the issuance of the writ. We may concede that under the rule announced in Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, more liberality in granting injunctions should be indulged than was permissible under the rules formerly observed in equity practice, still the facts here pleaded do not bring the case within the statutory requirement. The particular relief sought in this proceeding is protection against a judgment in the suit pending on appeal in the county court of Bowie county. The same tribunal at whose hands this writ was sought will pass upon the only defense here presented against the rendition of such a judgment. Our statute provides for a trial de novo in all cases appealed to the county or district court from the justice courts. There is nothing alleged in the petition or shown by the facts found by the court which requires the restraint of any act in order that the appellant may avail itself of all the defenses which it now claims.

While the court may be in error as to the ground upon which he refused the writ, the judgment rendered was the proper one, and it will be affirmed.


text:
    LAW REPORTING CO. v. TEXAS GRAIN & ELEVATOR CO.
    (No. 1335.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 14, 1914.)
    1. Partnership (§ 197) — Actions.
    A firm cannot be sued by its firm name, but the action must be against the partners composing it.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 360; Dec. Dig. § 197.]
    2. Limitation or Actions (§ 121) — Pleadings — Effect.
    Where an action was brought against a corporation when in fact no corporation existed, but in less than two years from the time of the accrual of the cause of action the partners composing a firm having the same name as of the alleged corporation appeared alleging the partnership and its membership, and answered by demurrer and general denial, the individuals supplied the necessary averments sufficient in the absence of any other pleadings to support a judgment against them, so that the action was pending from the time the answer was filed within the statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 537, 540; Dee. Dig. § 121.]
    3. Judgment (§ 18) — Pleadings.
    The court, in determining the kind of judgment the pleadings will support, may considei the averments of both parties.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34r-37; Dec. Dig. § 18.]
    4. Contkacts (§ 93) — Meeting oe Minds— Meaning oe Words.
    A contract to furnish the testimony at a hearing before the Interstate Commerce Commission at a specified sum per folio is binding on both parties as against the objection that one of them did not understand the meaning of the word “folio.”
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 415-419; Dec. Dig. § 93.*]
    5. Work and Labor (§ 10) — Contract-Value oe Services.
    Where the minds of the parties to a contract for services did not meet as to the meaning of a word used in determining compensation, the party rendering the services could recover the reasonable value thereof when found by the jury.
    [Ed. Note. — For other cases, see Work and Labor, Cent. Dig. § 25; Dec. Dig. § 10.]
    6. Contracts (§ 278) — Performance—Compensation.
    A party contracting to furnish the testimony at a hearing before the Interstate Commerce Commission at a specified sum per folio is entitled to recover, though the transcript of the testimony was returned to the party by the adverse party within a reasonable time.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1207-1213; Dec. Dig. § 278.]
    7. Corporations (§ 642) — Foreign Corporations — Transacting Business.
    A foreign corporation contracting to furnish a transcript of the testimony at a hearing before the Interstate Commerce Commission is not transacting business in Texas, where the transcript is prepared in a sister state and transmitted to the other party to the contract in Texas.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.]
    Error to District Court, Tarrant County; W. T. Simmons, Judge.
    Action by the Law Reporting Company against the Texas Grain & Elevator Company. There was a judgment for defendant, and plaintiff brings error.
    Reversed and rendered for plaintiff.
    .Spoonts, Thompson & Barwise, of Ft. Worth, for plaintiff in error. Goree & Turner, of Ft. Worth, for defendant in error.

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

   HODGES, J.

The plaintiff in error is a private corporation with its domicile and place of business in the city of New York. The defendant in error is a partnership composed of E. B. Doggett, J. L. Moore, and E. N. Rogers, residing in Tarrant county, Tex. This suit was brought by the plaintiff in error in 1907, for the purpose of recovering the sum of $649.20 alleged to be due from the defendant in error as the value of certain testimony taken and reported for them during the hearings before the Interstate Commerce Commission. The following correspondence explains the service rendered, and is relied upon as constituting tile contract sued on:

“Re Grain Investigation. Interstate Commerce Commission — Dear Sir: We have completely transcribed and are prepared to furnish at once the testimony taken recently in the grain investigation by the Interstate Commerce Commission at Chicago, Kansas City, Omaha and Des Moines, at the rate of ten cents per folio. This testimony is of the utmost importance to grain, elevator and railroad companies. The hearings will be resumed at Milwaukee on the 20th, Minneapolis the 21st, and Duluth the 23rd inst. May we enter your order? Awaiting your commands, we are
“Respectfully yours,
Law Reporting Company.”

That letter was written November 15, 1906, and addressed to the Texas Grain & Elevator Company, to which that company replied, on November 20, 1906, as follows:

“Law Reporting Company, 67 Wall Street, New York: Please send me one copy of the testimony taken in the Interstate Commerce Commission Grain Investigation, at ten cents per folio.
“[Signed] Texas Grain & Elevator Company.
“Edwin B. Doggett.”

At the time this correspondence took place an investigation such as that referred to in. the first letter above mentioned was being conducted by the Interstate Commerce Commission. The defendants in error were engaged in the grain business in the city of Ft. Worth. Copies of the testimony were sent by mail to the defendants in error during the next 30 days, and were accepted and retained by them. The testimony furnished was in form of loose sheets bound together much in the same manner as the transcript and statement of facts are bound in cases appealed to the higher courts. When the last of these sheets were delivered on December 23, 1906, a bill was rendered to the defendants in error showing that 6,492 folios had been furnished, which at 10 cents per folio amounted in the aggregate to $649.-20. The testimony showed that E. B. Dog-gett was the member of defendants’ firm who conducted the correspondence and was the only one who knew the terms of the contract. Doggett testified that he understood the term “folio” to mean a pamphlet, or small book, consisting of a number of pages bound together, and he supposed. the testimony would cost only a few dollars. Upon receipt of this bill he immediately wrote the plaintiff in error that there must be some mistake; that the Texas Grain & Elevator Company did not want the books for copies of the testimony, and had not ordered any such books or contracted to pay any such price for this testimony; that it was not worth more than a mere newspaper report. The defendants in error then returned the transcripts by express. The plaintiff in error refused to accept them, and sent them back to the defendants in error. The latter, however, declined to pay, and this suit follo wed. On March 28, 1907, the plaintiff in error filed its original petition against the Texas Grain & Elevator Company, alleging that it was a private corporation, and then proceeded to set out its cause of action. On March 3, 1908, the Texas Grain & Elevator Company filed its original answer consisting of a general demurrer and a general denial, and alleging that the Texas Grain & Elevator Company was a copartnership composed of E. B. Doggett, J. L. Moore, and E. N. Rogers. On November 8, 1912, the plaintiff in error filed its first amended original petition, still complaining of the Texas Grain & Elevator Company as a corporation. On November 11, 1912, the Texas Grain & Elevator Company filed its first amended original answer, which consisted, amoug other things, of a plea in abatement praying for the dismissal of the suit on the ground that the Texas Grain & Elevator Company was not a corporation, but a copartnership composed of the members set out in its original answer. On November 18, 1912, the plaintiff in error filed another amended original petition, in the first portion of which it alleged that the Texas Grain & Elevator Company was a corporation, but further alleged in the alternative that if it was not a corporation it was a copartnership composed of E. B. Doggett, J; L. Moore, and E. N. Rogers. The court overruled the general demurrer and the special exceptions raising the defense of limitation.

The case was submitted to the jury on special issues, and the following is the substance of the findings returned by the jury: (1) The jury did not believe that Doggett understood fully and clearly the meaning of the word “folio” as used in connection with the measurement of testimony at the time he wrote the letter ordering the transcripts. (2) That the word “folio” as used by the plaintiff in its letter proposing to furnish the testimony meant 100 words. (3) That the word “folio” as understood by people engaged in taking testimony means 100 words. (4) That the reasonable value of the services performed by the plaintiff in furnishing the testimony to the defendants, which was the subject-matter of the contract, was 10 cents per 100 words. (5) That the plaintiff did furnish the testimony as per contract. There were two questions propounded which the jury failed to answer, and which by agreement of the parties were answered by the court. Those questions and the answers are as follows:

“(1) Did the minds of the parties meet, and was there any agreement between them for the sale and purchase of the testimony in the preceding questions on the basis of 10 cents per 100 words? You will answer this question ‘Yes’ or ‘No.’ ” Which the court answered, “No.” “(2) Did the defendant, Texas Grain & Elevator Company, return or offer to return the volumes of testimony sent to it within a reasonable time after their receipt and examination of said volumes so furnished?” Answer: “Yes.”

Upon these findings the court rendered a judgment in favor of the defendants in error, that the plaintiff in error take nothing by its suit and pay all costs.

The record does not disclose what particular state of facts tie court based bis judgment upon. Tie defendants in error seek to sustain it upon the following grounds: (1) That tie cause of action was barred by tie statute of limitation of four years; (2) that the minds of the contracting parties did not meet, and there was no contract to receive and pay for the testimony at 10 cents per 100 words; (3) because the plaintiff in error was a foreign corporation and was undertaking, by furnishing this testimony, to carry on a business in this state without first securing a permit.

In support of the defense of limitation it is contended that there was in fact no suit against the defendants until the filing of the last amended original petition in March of 1912; that all of the prior proceedings on the part of the plaintiff were against the Texas Grain & Elevator Company as a corporation, when there was in fact no such corporation in existence. From this it is argued that there was no suit instituted to interrupt the running of the statute of limitation. It is true a copartnership cannot be sued by its firm name, but the action must be against the individuals composing it. That proposition has been decided so often that it is useless to cite authorities in support of it. It may be conceded, however, that in filing the original petition in 1907 the plaintiff did not state a cause of action against the members who composed the particular partnership known as the Texas Grain & Elevator Company. Had those individuals declined to answer that petition, no valid judgment could have been rendered against them. But in less than two years from the time the cause of action accrued they filed an answer, the first portion of which, after giving the style and number of the case, is as follows:

“Now comes the defendant herein, the Texas Grain & Elevator Company, a firm and copart-nership composed of E. B. Doggett, J. L. Moore, and E. N. Rogers, and demurs,” etc.

After the general demurrer there follows a general denial. It is a well-known rule that, in determining the kind of judgment the pleadings will support, the averments of' both parties may be looked to and taken into account San Marcos Electric Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151; Lyon v. Logan, 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511; Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293; Prichard v. McCord Collins Co., 30 Tex. Civ. App. 582, 71 S. W. 303; McCord-Collins Co. v. Pritchard, 37 Tex. Civ. App. 418, 84 S. W. 388. When the defendants filed their answer in March, 1908, they supplied the necessary averments showing who constituted the Texas Grain & Elevator Company. Had there been no other pleadings, these were sufficient to support a judgment against the members composing that firm. It may therefore be said that an action on this claim was pending from the time this answer was filed. This is sufficient to dispose of the defense of limitation. The order of the court in overruling the exceptions raising that defense indicates that he took this view of the case.

The court found that the minds of the parties did not meet upon the meaning of the word “folio.” That fact cannot justify a judgment in favor of the defendants. That the minds of the parties did definitely meet upon the stipulation that the charge for the testimony was to be 10 cents per folio is not denied. It is no excuse for the defendants to say that Doggett, their agent, did not know the meaning of a word in such common use. Had he consulted some standard dictionary he would have discovered that the term “folio” as used with reference to legal proceedings means a certain number of words in the measurement of copying, and in some instances it signifies 100 words. Section 854 of the United States Compiled Statutes is as folllows:

“The term folio, in this chapter, shall mean one hundred words, counting each figure as a word. When there are over fifty and under one hundred words, they shall be counted as on? folio; but a less number than fifty words shall not be counted, except when the whole statute, notice, or order contains less than fifty words.”

This section was prescribing a rule for measuring printed matter as a basis of computing fees for publishing any notice or order required by law, or the lawful order of any court, department, bureau, or other person, in any newspaper. This proceeding was before a federal tribunal, and presumably the federal statutes, in so far as applicable, would govern.

If, however, it should be said that the minds of the parties did not meet as to the meaning of the word “folio” as used in that correspondence, the jury found that the reasonable value of the service rendered was 10 cents per 100 words. There was a sufficient basis in the plaintiff’s pleading to support a judgment upon that finding, for it had made appropriate allegations in order to meet that particular defense.

Another ground upon which defendants in error seek to justify the'judgment of the court is that the transcripts were returned within a reasonable time to the plaintiff in error. We do not think that constitutes any defense. Evidently those transcripts were intended to furnish the defendants in error, as early as practicable, copies of the testimony taken before the Interstate Commerce Commission. After having received and used them within the time contemplated by the parties, the defendants in error should not be permitted to escape liability by returning the copies.

The last defense, that the plaintiff in error had no permit to transact business in the state of Texas, is untenable. It was not “transacting business” in Texas, but this was interstate commerce. Its work was performed in another state and was then transmitted to the defendants in error in this state. The statute requiring a permit to do business as a condition precedent to the collection of the debt by suit has no application. Miller v. Goodman, 91 Tex. 41, 40 S. W. 718; Barnhard v. Morrison, 87 S. W. 378.

The judgment of the district court will be reverse’d, and judgment here rendered in favor of the plaintiff in error for the amount sued for, together with all costs both of this court and of the court below.


author: CONNER, C. J.

text:
    TAYLOR v. BUTLER.
    (No. 7928.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.
    On Motion for Rehearing June 7, 1914.)
    1. Appeal and Error (§ 274) — Exceptions— Sufficiency.
    In an action by one claiming property attached as the property of his brother, an exception to the remark of the court in the jury’s presence that he could not conceive how plaintiff’s mother could live in the house with him and her other sons and not know v\hat their agreement was, except by what they told her, was not sufficient to require a review of the exclusion of her testimony that they stated in her presence and in the presence of each other that they had agreed that plaintiff should have all' the cotton in controversy.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605, 1606, 1607, 1624, 1631-1645; Dec. Dig. § 274.]
    2. Evidence (§ 271) — Declarations—Self-Serving Declarations.
    In a proceeding to enforce a claim to property, attached as the property of claimant’s brother, W., evidence of an agreement between the claimant, W., and another that the cotton in controversy should belong to the claimant when grown, made when defendant was not present, was inadmissible, since, as to defendant, it was only the unsworn declarations of interested parties in their own favor.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    3. Evidence (§ 472) — Opinion Evidence— Eact or Conclusion.
    In such action, where claimant and other witnesses stated all of the circumstances relating to the rental of the ground, the cultivation and gathering of the cotton, his statement that he was the owner of the cotton in controversy was properly excluded, since that was a conclusion to be drawn by the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.]
    4. Appeal and Error (§ 1046) — Conduct of Trial — Remarks of Court — Harmless Error.
    Remarks of the court as to which the jury were instructed that they were intended for counsel only and that they should disrégard them were harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. § 1046.]
    5. Appeal and Error (§ 722) — Assignments of Error — Form and Sufficiency.
    Under Courts of Civil Appeals rule 29 (142 S. W. xii), providing that assignments shall be numbered from the first to the last in their consecutive order, an assignment not presented in its “consecutive order” may be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    6.Appeal and Error (§ 501) — Record — Contents — Exceptions.
    Where the record fails to show that the refusal of a requested charge was excepted to, as required by Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, the ruling cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. §
    7.Attachment (§ 308) — Claim by Third Person — Sufficiency of Evidence.
    Evidence in a proceeding to enforce a claim to property attached as the property of another held sufficient to' sustain a verdict for defendant.
    [Ed. Note. — For other eases, see Attachment, Cent. Dig. §§ 1102-1109, 1111-1113; Dec. Dig. § 308.]
    On Motion for. Rehearing.
    8. Appeal and Error (§ 301) — Assignments of Error — Form and Sufficiency.
    Under Courts of Civil Appeals rules 24, 25 (142 S. W. xii), providing that a ground of error not set forth in a motion for new trial is waived unless fundamental, and that assignments of error must point out the part of the motion for new trial where the error is complained of, error not called to the court’s attention in the motion for a new trial will be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dee. Dig. § 301.]
    9. Appeal and Error (§ 1170) — Immaterial Error — Rule of Court — Reversal.
    In a proceeding to enforce a claim to property, attached as the property of claimant’s brother, error, if any, in defendant’s requested charge that, if claimant and his brother had agreed that the cotton crop raised by his brother should belong to claimant in order to defeat his creditors, claimant could not recover, in connection with a charge for claimant that, if it had been agreed that the cotton was his when the attachment was levied, he could recover, was not ground for reversal under rule 62a for Courts of Civil Appeals (149 S. W. x), forbidding reversal for any error at the trial not calculated to cause, or probably causing, an improper judgment, where the verdict for defendant must have been based either on the theory that there was no agreement or that it was fraudulent.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075. 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Claim by L. D. Taylor to attached property against Z. Z. Butler. Judgment for defendant, and claimant appeals.
    Affirmed.
    J. R. Stubblefield, of Eastland, for appellant. Earl Conner, of Eastland, for appellee.

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

   CONNER, C. J.

L. D. Taylor appeals from an adverse judgment in a contest instituted by him by filing a claimant’s affidavit and bond for several bales of cotton that the ap-pellee, Z. Z. Butler, had attached as the property of Will Taylor. The Taylor family included Mrs. Ellie Taylor, the mother, and her sons, Will Taylor, Jesse Taylor, and L. D. Taylor, the appellant herein.

He first complains that the court erred in excluding the evidence of Mrs. Ellie Taylor to the effect that the claimant, Will Taylor, and Jesse Taylor, came into the house on one occasion and stated in her presence, and in the presence of each other, that they had agreed among themselves that B. D. Taylor should have all of the crop to be grown on the W. G. Nabors place, upon which the cotton in controversy was grown. In order to require a review of the question so presented it was, of course, necessary that appellant take a, proper bill of exception to the action of the court. Bill of exception No. 1, to which the assignment refers as its basis, does not support the assignment. The bill states that the exception was to the remark of the court in the jury’s presence to the effect that he could not conceive how the witness Mrs. Ellie Taylor could live in the house with her boys all the year and not know what the agreement was except by what the boys told her.

Moreover, the evidence offered is in the nature of a mere recitation by the Taylor boys, including one of the parties to the suit, of the terms of an agreement theretofore made. It does not appear that appellee was present, and as to him the evidence constituted but the unsworn declarations of interested parties in their own favor. It may also perhaps be appropriately stated as excluding any possibility of prejudicial error in the court’s ruling that each of the Taylor boys, Will, B. D., and Jesse, testified to the effect that early in the rental year it was agreed that B. D. Taylor should have the cotton to be grown on the Nabors place, and Mrs. Ellie Taylor, the mother, herself testified, among other things, that “Bonnie (B. D.) was to have the cotton which was grown on the Nabors place.” We are of the opinion that the first assignment must be overruled.

We think the court was clearly right in excluding the statement of the witness B. D. Taylor, to the effect “that he was the owner of the three bales of cotton which was levied upon to pay the debt” of Will Taylor. The witness, as also other witnesses, was permitted to state all of the circumstances relating to the rental of the Nabors place, the cultivation and gathering of the crop, etc., from all of which it was the function of the jury to determine whether Will or B. D. Taylor was the owner. The offered statement is evidently a mere conclusion, and a conclusion, too, which in this case was particularly for the jury. The court, therefore, properly excluded it.

The remarks of the court complained of in the third assignment appear to have been harmless, as explained by bill of exception; the jury being instructed that the remarks were intended for counsel only, and that the remarks should be disregarded by them.

Appellant’s eighth assignment is objected to, and, we think, must be disregarded. In the assignment it is urged that the court erred in refusing a special charge. The assignment is not presented in its “consecutive order,” as required by rule 29 (142 S. W. xii), and may therefore be disregarded on this ground. See Barron & Clark v. White, 155 S. W. 590. Besides, there is nothing in the record to show that the action of the court was properly excepted' to. Formerly the ruling of the court in giving, refusing, or qualifying instructions to the jury was regarded as excepted to in all cases. • See Revised Statutes, art. 2061. But this article was amended by the act approved March 29, 1913 (see General Baws 1913, p. 113), where it is provided that the court’s charge shall be in writing and shall be submitted to the respective parties' or their attorneys for inspection, and a reasonable time given them in which to examine it and present exceptions thereto, “which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.” Bev. St. art. 1971, as amended. Article 1973, Revised Statutes, is also amended so as to read:

“Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give, provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”

See Gen. B. 1913, p. 114.

The same law amends article 2061 of chapter 19 of the Revised Statutes, making it the duty of a party dissatisfied with a ruling of the court to except thereto at the time it is made, and prescribing the requisites of bills of exceptions, so as to read:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

See Gen. B. 1913, p. 114.

It follows that, in order for a party litigant to now invoke our revisory power over a ruling of the court in giving charges, it is necessary to show not only that the objections to the charge had been presented before the charge was read .to the jury, but also that formal exception was taken at the time to the action of the court in giving the charge complained of. Where the complaint is, as here, of the action of the court in refusing a special instruction, exception to the refusal must be made at the time and the exception made part of the record by a proper bill of exception. Otherwise the ruling must be" approved. The assignment under consideration refers us to bill of exception No. 4. No such bill appears in the record, nor do we otherwise find that exception to the action of the court in refusing the special charge in question was made, as provided by the amended act quoted. The ruling must therefore, in accordance with the act, be considered as approved.

The remaining question presented is whether the evidence is sufficient to sustain the verdict of the jury. While the evidence is conflicting, we think, as a whole, it supports the verdict and judgment. We will not quote the testimony in detail, but the landlord testified that he rented the premises upon which the cotton in controversy was grown to Will Taylor, and not to L. D. Taylor, or to the mother, as she testified. There was evidence also tending to show that when the witness Jones was trying to collect a debt from the appellant, L. D. Taylor, he asserted the ownership of the cotton to be in Will Taylor; that on other occasions When the circumstances seemed to require an assertion of ownership, if it existed, appellant was silent, etc.

We conclude that all assignments of error must be overruled, and the judgment affirmed.

On Motion for Rehearing.

Our attention, has been called to the fact that the trial in this case took place on June 27, 1913, and hence that we were in error on original hearing in applying the amending law effective July 1, 1913, in disposing of appellant’s eighth assignment of error. The fault or misapplication was that of the writer, and I cannot now understand how the mistake aróse, for the question was in mind, unless in the hurry of the consideration I was misled by an indorsement of the clerk on a copy of the judgment found in the record, this indorsement being, “Piled July 4, 1913.”

But, however it may have happened, the mistake is not thought to be material, for, in addition to the fact that appellant’s eighth assignment is not presented in its consecutive order, as pointed out in our opinion, it is not shown, either in the assignment, in the propositions, or in the statements thereunder, that the error complained of was called to the court’s attention in the motion for a new trial, as required by rules 24 and 26 (142 S. W. xii). Such failure has frequently been held to require a disregard of an assignment. See Tex. Mid. R. R. Co. v, Cunnins, 156 S. W. 542; St. L. S. W. Ry. Co. v. Ledbetter, 153 S. W. 646; Chicago, R. I. & G. Ry. Co. v. Pemberton (Sup.) 161 S. W. 2; J. F. Siensheimer & Co. v. Maryland Motor Car Ins. Co., 157 S. W. 228; Whitten v. Whitten, 157 S. W. 277; El Paso Electric Ry. Co. v. Lee, 157 S. W. 748; Imperial Irr. Co. v. McKenzie, 157 S. W. 751; Cain v. Delaney, 157 S. W. 751; Southern Pac. Co. v. Walters, 157 S. W. 753.

Counsel for appellant insists that such rulings on our part are unduly “technical.” He says, among other things:

“Much has been said of the evils of reversing cases on account of technicalities. Little has been said of the appellate courts refusing to consider the merits of a question on account of technicalities. If there is wisdom in providing that only material errors which affect the ends of justice shall cause a reversal of the judgment, what rules should be applied to immaterial errors which appear in a brief?”

The insistence being, of course, that the assignment should not be disregarded because of the violation of the rules mentioned. We can only say that, for reasons stated in the eases above cited, the rules governing the presentation of cases in this court have been promulgated under legislative authority, and have the force with us of law, which we conceive it to be our duty to enforce.

It may not be amiss, however, to further state that in many, if not in most, instances when this court has announced the violation of a rule as reason for disregarding an assignment of error, there had nevertheless, in fact, been a brief consideration of the point made in the assignment, if it could be ascertained, to the end that we might feel assured that no positive injustice had been done; the announcement of the violated rule being, in part at least, in order to impress upon counsel presenting cases on appeal the necessity of an adherence to the rules. It is so in the present case.

The error complained of in the eighth assignment is to the action of the court in giving a special charge requested by appellee, which, so far as material, is to the effect that, if appellant, L. D. Taylor, and his brothers, Will and Jesse, after leasing the W. J. Nabors place, had agreed among them.selves that the crop raised on the Nabors place should be the property of L. D. Taylor for the purpose of defrauding the creditors of Will Taylor, the verdict should be for appellee. At appellant’s request the court also gave a special instruction to the effect that, if the jury should find “that under and by virtue of a certain agreement, if any agreement did exist, all of the cotton which was to be grown upon the farm of W. J. Nabors was to be the property of L. D. Taylor, and that the three bales of cotton which is in controversy was the property of L. D. Taylor at the time the writ of garnishment was levied,” then the jury should find in favor of L. D. Taylor. The agreement referred to in the special instructions noticed was the same, and the verdict against L. D. Taylor under the last special instruction would indicate that the jury failed to find that there was an agreement of any kind, or, construing the verdict in the light of the court’s charge and of the two special charges, they must certainly have found either that there was no agreement, or else, if one was made, that it was fraudulent. The appellant and his brothers testified that such an agreement was made in January, 1912, before the debt in controversy had been created, and there was evidence that L. D. Taylor, prior to this time, had also mortgaged cotton grown, or to be grown, on the Nabors place, thus indicating that he had interest therein. If the agreement, in fact, was made in January before the creation of the debt in controversy, it could not well be said, as appellant now insists, that it was fraudulent.' But the jury were not hound to believe that the agreement was then made. And in the light of all of the evidence the jury probably understood the charge as meaning simply that if the claim of the agreement was a simulated one, and made for the fraudulent purpose of avoiding the payment of Will Taylor’s debts, that the verdict should be against the claimant. The fact that L. D. Taylor had mortgaged cotton to be grown on the Nabors place was but a circumstance tending to support the claim of the Taylor boys as to the agreement, but it was not necessarily conclusive. At all events, in the light of the evidence and of the court’s entire charge and of the fact that two juries have given their verdict against appellant, we do not feel that it is our duty, under the operation of rule 62a (149 S. W. x), to reverse the judgment for the error of the court, if there is one, in giving the special instruction complained of in the eighth assignment,

The motion for rehearing is accordingly overruled.

SPEER, J„ not sitting.


author: TALBOT, J.

text:
    COMMONWEALTH BONDING & CASUALTY CO. v. HENDRICKS.
    (No. 7155.)
    (Court of Civil Appeals of Texas. Dallas.
    May 9, 1914.
    On Motion for Rehearing, June 27, 1914.)
    1. Evidence (§ 318) — Hearsay — Admissibility.
    In an action on an accident insurance pol-icy_ which required in case of death notice in writing of the accident, with full particulars thereof, an instrument executed by a physician certifying that in his judgment the death was due to paralysis of the heart caused by tetanus furnished the insurer as a part of the proofs of death, was admissible to show that the provision in question was complied with.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.]
    2. Trial (§ 86) — Reception oe Evidence-Objections — Sueeiciency.
    A general objection that testimony is not admissible at all should not be sustained, where it is material and admissible for any purpose, even though inadmissible for other purposes.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 226; Dec. Dig. § 86.]
    3. Trial (§ 207)— Instructions — Limiting Eeeect oe Evidence.
    In an action on an accident insurance policy, an instruction that a physician’s certificate as to the cause of death, properly received as showing compliance with a provision of the policy requiring notice of the accident, with full particulars thereof, could not be considered as in any way establishing the cause of the death, should have been given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 498, 499, 501; Dec. Dig. § 207.]
    4. Insurance (§ 648) — Actions on Policies —Evidence—Admissibility.
    In an action on an accident insurance policy, wherein the statutory damages for failure to pay and attorney’s fees were sought to be recovered, letters written the insurer by plaintiff’s attorney pressing for payment of the claim were admissible as a basis for the recovery of such damages and attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1669, 1676; Dec. Dig. § 648.]
    5. New Trial (§ 41’) — Harmless Error — Admission oe Evidence.
    In an action on an accident insurance policy, letters written the insurer by plaintiff’s attorney were received in evidence as a basis for the recovery of attorney’s fees and the statutory damages for failure to pay. The letters urged payment, and further stated that a doctor’s certificate showing that insured died from the result of an accident had been sent the insurer; that the attorney had heard that the insurer had attempted to get plaintiff to withdraw the matter from his hands; that the insurer knew that insured died from tetanus caused by an accident; that the insurer had sent plaintiff a draft for a small sum, which stated that, if she signed it, she thereby acknowledged payment in full for all claims; that she would not sign it, .but would keep it as evidence; and that the insurer had on file a doctor’s certificate as to the cause of death and proofs of death. The evidence was conflicting as to cause of death. Held that, while there were some expressions in such letters which were not strictly admissible, the effect of such expressions was not sufficiently prejudicial to the insurer’s rights to require a new trial.
    [Ed. Note. — For other cases, see New Trial, Gent. Dig. §§ 67-71; Dec. Dig. § 41.]
    6. Evidence (§ 213) — Admissions — Attempts to Compromise.
    In an action on an accident insurance policy to recover the amount agreed to be paid in case of death, the admission of a draft or voucher for the amount of a disability claim made by insured, sent plaintiff after insured’s death, and after the insurer knew that plaintiff was claiming the amount stipulated in case of death, did not violate the rule against evidence as to offers to compromise litigation; the sending of the draft not being an offer of compromise of the claim sued on.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 745-751, 753; Dec. Dig. § 213.]
    7. Insurance (§- 662) — Actions on Policies — Evidence—Admissibility.
    Such draft or voucher was admissible as tending to show a refusal to pay the death claim.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1697, 1698, 1700-1706; Dec. Dig. § 662.]
    On Motion for Rehearing.
    8. Appeal and Error (§ 1170) — Harmless Error — Instructions.
    In an action on an accident insurance policy, where the testimony as to the cause of insured’s death was conflicting, but would have supported a finding that it was not the result of tetanus, physicians whose standing, experience, and abflity were not questioned testifying positively that the period of incubation of the tetanus germ was such that death could not have been due to tetanus, and a physician’s certificate furnished the insurer as part of the proofs of death stating emphatically that the death was due to paralysis of the heart caused by tetanus was admitted, without qualifying or limiting its use to the question of compliance with a provision of the policy requiring notice of the accident with full particulars thereof, the refusal of an instruction that such certificate could not be considered as establishing the cause of the death was not harmless under rule 62a, forbidding reversals, except for errors such as were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Pallie L. Hendricks against the Commonwealth Bonding & Casualty Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded on rehearing.
    W. W. Nelms and El J. Gibson, both of Dallas, for appellant. Morris & Pope, of Dallas, for appellee.

      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

   TALBOT, J.

On the 3d day of July, 1912, the appellant issued to W. Price Hendricks an accident and health policy of insurance, whereby it insured the said Hendricks against accidents, and agreed thereby, in case the said Hendricks lost his life as the direct and proximate result of an accident within the period of 90 days from the date of the accident, to pay the said Hendricks’ wife, Mrs. Pallie Hendricks, the appellee herein, the sum of $1,200. On the 19th day of September, 1912, the said W. Price Hendricks suffered an accident by sticking a nail into his foot, and as the proximate result of the injury thereby sustained he died on the 20th day of October, 1912. About November 7, 1912, appellee gave to appellant notice and proof of the death of the said W. Price Hendricks and demanded payment of the amount of the policy sued on. Appellant failed and refused to pay the $1,-200 demanded, and appellee, the wife of the said Hendricks, brought this suit to recover said sum, together with 12 per cent, thereof as statutory damages, and $300 as reasonable attorney’s fees. The defenses pleaded were a general demurrer and general denial. • A jury trial resulted in a verdict and judgment in favor of the appellee, and appellant prosecutes this appeal.

The first assignment complains of the admission of the following instrument of writing:

“Dallas, Texas, Nov. 7, 1912.
“This is to certify that I saw Mr. W. P. Hendricks and gave certificate of death, which, in my judgment, was due to paralysis of the heart, and from the history I got of the case was caused by tetanus.
“[Signed] Dr. J. B. Norris.”

The proposition urged under this assignment is that said writing is hearsay, and does not come within any exception to the rule permitting hearsay evidence; that it was highly prejudicial evidence upon the vital point in the case, and was not admissible for any purpose. This assignment should not be sustained. The policy in suit required, in the event of an accidental death, that notice in writing of such accident should be given to the insurance company as soon as it was reasonably possible to give it, and not later than 90 days from the date of the accidental death, with full particulars of the .accident and injury, or of the nature of the illness or disability. The writing objected to was clearly admissible, if for no other purpose, to show that the provision of the insurance contract referred to had been complied with, and hence the proposition that it was not admissible for any purpose is not correct. This notice was evidently required by the company to enable it to investigate the fact and cause of Hendricks’ death and thereby determine whether or not it was liable. A general objection that the testimony is not admissible at all should not be sustained, where it is material and admissible for any purpose, even though inadmissible for other purposes. There is no other proposition asserted under this assignment in the order and manner required by the rules, and for the reason stated the assignment will be overruled.

Appellant requested the trial court to charge the jury as follows:

“Gentlemen of the jury, you are instructed as a part of the law in this case that you cannot consider the letter or certificate introduced by the plaintiff, of one Dr. Norris, as in any way establishing the cause of the death of the insured Hendricks; but you must make your findings on other testimony, if any, introduced in the case.”

This charge was refused, and its refusal is made the basis of appellant’s second assignment of error. The proposition advanced seems to be predicated alone upon the theory that the court erred in admitting the writing referred to in the foregoing first assignment of error, and probably a sufficient answer to it would be that said writing was admissible for the reason we have given. But we shall not rest our conclusion that the case should not be reversed for the failure to give the charge in question upon that answer. We think it would have been better to have given the charge; but, in view of rule 62a (149 S. W. x) promulgated by the Supreme Court for the government of this court, we do not believe its refusal furnishes sufficient ground for a reversal. By the rule mentioned it is provided that no judg.ment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court. Now, while we may believe it would have been proper to have given the charge in question, yet we are not prepared to say that it is disclosed by the record that its refusal amounted to such a denial of appellant’s rights as probably caused the rendition of an improper verdict and judgment against it, or in any manner prevented a proper presentation of its case to this court.

Appellant’s third and fourth assignments of error complain of the admission in evidence of two certain letters dated, respectively, November 20 and December 8, 1912, written by appellee’s attorney to the appellant, one of which called attention to the fact that he had, on the 7th day of November, addressed a letter to it, calling attention to the fact that he held for collection the policy sued on, and had inclosed a doctor’s certificate as proof of death of W. Price Hendricks, and stating that said certificate showed that Hendricks died from the result of an accident, that he had been unable to hear from appellant directly, that he heard indirectly that appellant’s “men” had made an attempt to get Mrs. Hendricks to withdraw the matter of the collection of the policy from his hands, that appellants knew that Mr. Hendricks had died from tetanus caused by the accident, and in effect demanding a payment of the policy. The other letter was to the effect that appellant had, on December 8, 1912, addressed to Mrs. Hendricks a letter and inclosed therein a draft for the sum of $34, upon the reverse side of which was written that, if she signed the same, she thereby acknowledged that she had been paid in full for all claims against the company whatever for loss, sustained. This letter again called attention to the fact that the writer, appellee’s attorney, held the policy sued on for collection, and that appellant had on its. files a doctor’s certificate of the death of Mr. Hendricks, stating to it “the cause of his death.” This letter further notified appellant that Mrs. Hendricks would not sign the draft or voucher, but would keep the same to be used in evidence in the trial to recover on the policy in the event suit was necessary to collect it. This letter also called attention to the fact that the writer had written appellant on November 20, 1912, and had received in reply thereto a letter from appellant’s Mr. Kennedy informing him that Mr. Hill, who had charge of the claim department, was out of Ft. Worth, and that just as soon as he returned his attention would be called to this case. This letter further stated that appellant seemed to be under the impression that the writer thereof was writing the letter in re-' gard to the disability claim, which was made by Mr. Hendricks before his death, which the writer disclaimed having done, but that appellant’s records would disclose that he had filed notice of the death of Mr. Hendricks, and also proof of his death, and had requested settlement with Mrs. Hendricks of the policy. By this letter appellant’s attention was further called to the fact that the policy issued to Mr. Hendricks provided that no action should be brought thereon within 60 days from the death of the insured, and that the writer desired to advise appellant that, if some satisfactory arrangements were not made with reference to the claim at the expiration of that period of time, legal steps would be taken. The propositions contended for under these assignments are in substance (1) that the letters were hearsay; (2) that they were incompetent to establish any fact in the case; and (3) that said letters were self-serving declarations, and were calculated to arouse the prejudice and sympathy of the jury, and to mislead, them as to the cause of the death of Hendricks. These letters were admissible as tending to show a demand for the payment of the policy sued on and appellant’s refusal to pay, which were facts necessary to be shown as.a basis for the recovery of the statutory damages claimed and the reasonable attorney’s fees sued for and allowed by statute in such a case. There were doubtless some expressions in the letters not strictly admissible; but we do not regard the effect of such expressions sufficiently prejudicial to appellant’s rights to warrant us in setting aside the verdict and judgment.

Nor do we think the admission in evidence of the draft or voucher for $34, dated December 6, 1912, sent to Mrs. Hendricks by appellant in full satisfaction of her claim on appellant, of such error, if error at all, as requires a reversal of the case. The admission of this evidence is compained of in appellant’s fifth assignment of error, and the single proposition urged is to the effect that the “court will not permit in evidence an offer upon the part of any litigant to compromise litigation.” This is substantially a correct statement of the law; but, as we understand the record, the sending of this draft to Mrs. Hendricks was not an offer of compromise of the claim she was making against the company. Her claim, and for which appellant denied liability, was that her husband, W. Price Hendricks, died as the result of an accident, and that appellant was due her under the policy $1,200, while the draft for $34, sent her and admitted in evidence over appellant’s objection, was in settlement of a disability claim filed by her husband before his death, and evidently at a time when he did not think his injury would prove fatal. The draft was sent after Hendricks’ death, it seems, and after appellant knew that Mrs. Hendricks was claiming under the promise in the policy to pay $1,200 in the event of his death as a result of an accident, and was a circumstance admissible-in evidence as tending to show refusal to pay the $1,200 claimed.

The remaining assignments, in effect, assert that the evidence was insufficient to warrant the court’s charge, and to support' the verdict and judgment. We do not concur in this view of the evidence. On the contrary, we think it was sufficient to justify the charges given, and to warrant the findings of the jury.

Tlie judgment of tlie court below is- affirmed.

On Motion for Rehearing.

Upon reconsideration of appellant’s second assignment of error, on its motion for a rehearing, we conclude the trial court materially erred in refusing to give in charge to the jury the special charge to which said assignment relates. In the certificate or letter referred to in the special charge Dr. Norris states very emphatically that, in his judgment, the death of W. P. Hendricks was due to paralysis of the heart, and that from the history he got of the case was caused by tetanus. Whether Hendricks’ death was in fact caused by tetanus was a vital issue in the ease, and the certificate in question was admitted in evidence, without any limitation being placed upon its consideration by the jury. That the statement made by Dr. Norris in the certificate, in the absence of any direction by the court qualifying or limiting the use to be made of it, was considered by the jury in determining the cause of Mr. Hendricks’ death, and that, being considered for that purpose, it influenced the jury in arriving at the verdict rendered, is highly probable. The testimony bearing upon the cause of Mr. Hendricks’ death was conflicting, but would have supported a finding that it was not the result of tetanus. About one month elapsed from the date of the injury to the time of his death, and two physicians whose standing, experience, and ability is not questioned in the record before us testified most positively that the period of incubation of the tetanus germ is 15 days, and that in their opinion it was not possible for Mr. Hendricks’ death to have been due to tetanus produced by the sticking of the nail in his foot.

To apply rule 62a and hold, in the face of this testimony, that the error in refusing the special charge was not reasonably calculated to cause, and did not probably cause, the rendition of an improper verdict and judgment would be to push that rule too far, and evidently beyond what was contemplated in its promulgation.

Appellant’s motion for a rehearing will therefore be granted, the judgment heretofore rendered in this court set aside, and for the error in refusing said special charge the judgment will be reversed, and the cause remanded.

Reversed and remanded.


author: LEVY, J.

text:
    SUPREME LODGE OF PATHFINDER et al. v. JOHNSON.
    (No. 1271.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1914.)
    1. Insurance (§ 817) — Fraternal Insurance — Actions—Burden of Proof.
    A beneficiary suing on a fraternal benefit certificate has the burden of proving that the certificate subject to forfeiture for nonpayment of dues was in force at the time of the death of the member.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1999-2002; Dec. Dig. § 817.]
    2. Insurance (§ 819) — Fraternal Insurance-Death of Member — Evidence—Findings.
    Where a wife designated as beneficiary in a fraternal benefit certificate paid the premiums up to June 1, 1906, and showed that her husband had not been heard of since the fall of 1902, and that at the time he left home in 1901 he was in ill health, and so continued until the fall of 1902, when last seen or heard of, a finding that the member died at some time after September 7, 1902, and before December 81, 1905, was authorized.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.]
    3. Limitation of Actions (§ 25) — Fraternal Insurance — Limitations Applicable.
    An action on a fraternal benefit certificate brought in 1914, while the court found that the member died after September 7, 1902, and before December 31, 1905, is barred by the four-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 113, 118-131; Dec. Dig. § 25.].
    Appeal from District Court, Bowie County ; W. T. Armistead, Judge.
    Action by Emma Johnson against the Supreme Lodge of the Pathfinder and another. From a judgment for plaintiff, defendants appeal.
    Reversed, and rendered for appellants.
    On December 31, 1900, the Supreme Lodge of the Pathfinder, a fraternal beneficiary association, issued to Charles L. Johnson, who was a member of the order, a benefit certificate in the sum of $2,000. The certificate designated Mrs. Emma Johnson, the wife of insured, as the beneficiary, and provided that the sum stated was to be payable to her “upon satisfactory proof of death of said member.” The insured was required to pay dues in the sum of $3 monthly in advance, and, failing in this, stood suspended and the benefit certificate forfeited. It is admitted' that the certificate was valid and in force by payment of dues until January 1, 1906, and that from and after that date the certificate had lapsed and had been canceled by the Supreme Lodge; and, further, it was shown by proof, under proper pleading, that the former judgment of the court held the certificate here sued on canceled. See Supreme Lodge v. Emma Johnson, 47 Tex. Civ. App. 109, 104 S. W. 508. It appears that the insured and his wife lived at the date of the issuance of the certificate in Texarkana, Ark., and that their relations were pleasant. Some time in 1901 insured left Texarkana in search of work. At the time he left home the insured was in bad health in the nature of a general physical breakdown. During his absence he kept up correspondence with his wife, and in his letters'he would speak of his bad health. By letter from Orange, of date September 7, 1902, Johnson informed his wife to the effect that he was sick, and that the condition of bis health was bad, and that as soon as he was physically able to do so he would leave for Shreveport, and asked her to come to Shreveport to see him. The wife replied to this letter but never received any more letters from him. It appears that in a very short time — exact date not given — after the date of this letter a Mr. Beamer saw Johnson in Shreveport. Since the day that Mr. Beamer saw Johnson in Shreveport the insured has not been- seen or heard of, though his wife made immediate, continued, and very extensive, but unavailing, efforts to find or locate him. Claiming that her husband was dead and that he died in 1902 or 1903, the appellee brought suit on the policy to recover the amount of the benefit. Proof of death was made by appellee on March 20, 1911, and received by appellants on March 27, 1911. The suit was filed April 21, 1911. The appellants plead, as material to be stated, the statute of four years’ limitation and the forfeiture of the certificate by reason of nonpayment of dues. There was a trial to the court without a jury, and judgment was entered for the plaintiff. The court made the specific finding of fact, besides the other facts stated above, that the insured died before December 31, 1905, and while the certificate was valid and in force.
    Smelser & Vaughan, of Texarkana, for appellants. Chas. S. Todd, of Texarkana, for appellee.

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

   LEVY, J.

(after stating the facts as above).

It is contended by appellants, under proper assignments, that under the issues and proof in this case there should have been no recovery by appellee. As to whether the defense that the certificate of insurance was forfeited for nonpayment of dues at the time of the death of the insured can be sustained must depend upon the time it should be said from the evidence that the insured died. The burden of proof was upon the ap-pellee, in order to recover on the certificate, to show the time at which the insured died and that at the time of his death the certificate was in force under its terms. It was an admitted fact that the certificate was canceled January 1, 1906, for nonpayment of premiums. The wife had paid the premiums from 1902 to the date mentioned, but not afterwards. It appears conclusively from the evidence that the insured has not been heard of since the fall of 1902: As tending to show, though, that the insured was dead, and the time of death, the appellee proved that at the time he left home in 1901 he was in ill health, and continued that way until the fall of 1902, when he was last seen or heard of. And the court drew the inference from the insured’s general ill condition of health that he “died at some time after September 7, 1902, and before December 31, 1905.” If we must accept as controlling the legal presumption of the death of the insured at the expiration of the seven years from the time he was last heard of, and declare the rights of the parties upon the basis of his death in the year 1909, it would necessarily follow, in view of the further fact that the certificate was forfeited in 1906, that appel-lee has faded to show a legal right to recover on the certificate. But, in view of the court’s finding that death, in fact, occurred before December 31,- 1905, and assuming, as we must, that such finding was correct, it would be entirely variant with such ascertained fact to indulge any presumption of death at the end of seven years. The appellee insists that the court was authorized to make this finding, as a subject of distinct proof, from the special circumstances in evidence. By following the fact found by the court, the insured died while the certificate was in force.

Second, as to the defense of limitation interposed by appellants: Taking, as we must, the finding of the court that, in point of fact, the insured died at a time before December 31, 1905, it is believed that the conclusion is inevitable that the bar of the statute of limitations of four years is complete. The suit on this certificate was filed April 21, 1914. The certificate by its terms was payable “upon satisfactory proof of the death of said member.” The liability of the insurance company to the beneficiary therefore rested only on reasonable proof that the insured was dead. As the loss or amount of the certificate was payable on the fact of the death of the insured being sufficiently established, the suit might first have been brought to enforce payment'when the insured died; and, as the action might first have been brought to enforce liability when the insured died, the time within which a suit must be brought legally began to run from that time. Limitation here would be computed, not from 1909, as the end of seven years’ absence, but from the time of death in point of fact found by the court, which was before December 31, 1905. Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086.

The judgment is reversed, and here rendered for appellants, with costs of the trial court and of this appeal.