text:
    WESTERN UNION TELEGRAPH CO. v. McMillan.
    (No. 8103.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 13, 1915.
    Rehearing Denied March 13, 1915.)
    1. Telegraphs and Telephones <§^>66 — -Delay in Delivery op Messages — Evidence— Sufficiency.
    Evidence held to justify a finding of. negligent .delay in the delivery of a telegram.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. <®=>66.]
    2. Telegraphs and Telephones <§=>54 — Delivery op Messages — Stipulations — Actions.
    The filing of an action is the presentation of a claim, within a stipulation for the transmission of a telegram that the telegraph company will not be liable for any damages where the claim is not presented within a specified time after accrual of cause of action.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. <§=>54.]
    3. Telegraphs and Telephones <§=>54 — Delivery op Messages — Stipulations — Actions.
    Where' the sendee of a message, dated December 25th, announcing the fatal illness of his granddaughter, was, by fraudulent representations of the telegraph company, led to believe that the message was sent December 26th, too late to enable him to attend the funeral, and he did not discover the facts until January 19th following, the company was estopped from taking advantage of the misrepresentations, and the period stipulated for in the contract for notice of any claim of damages did not begin to run until January 19th.
    [Ed. Note. — For other casess, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. <§=54.]
    4. Telegraphs and Telephones <⅜^37 — Delivery op Messages — Relationship op Parties.
    A telegraph company must take notice of the relationship of an addressee to a person whose illness or death is announced in a telegram, and of such mental anguish as it may reasonably be expected the addressee may suffer from a failure to attend the relative during his illness, or his burial in the event of his death.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. <§=537.]
    5. Telegraphs and Telephones <§=568 — Delivery op Messages — Relationship op Parties.
    The relation of grandfather and grandchild is not so remote as to prevent recovery by the grandfather for mental anguish from inability to attend the grandchild’s funeral, because of negligent delay in delivering a telegram to him.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent Dig. §§ 69, 70; Dec. Dig. <§=568.]

      6. Telegrapiis and Telephones <®=^65 — Delay in Delivery oe Messages — Actions— Issues, Proof, and Variance.
    The variance between the petition in an action against a telegraph company for delay in delivering a message announcing the fatal illness of a grandchild of the sendee, alleging that the sendee owned a horse and buggy, which he would have used to make the trip to attend the funeral of the grandchild, and proof that a horse and buggy was owned by a nephew, but that he would have procured the same to make the trip, was not' substantial.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. ®=>65.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by A. McMillan against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Arch Grinnan, of Brownwood, and N. L. Lindsley, of Dallas, for appellant. Goodson & Goodson, of Comanche, for appellee.-
   DUNKLIN, J.

On December 25, 1913, A. McMillan resided in Comanche, Tex., and at the same time his daughter, Mrs. I. N. Aider-man, resided with her husband and family in the country a few miles from San Saba. On that date Airs. Alderman’s little girl, 9 or 10 years of age, died at her home. Just before her death T. W. Alderman, brother-in-law of Mrs. Alderman, went to San Saba from the home of the sick child and sent to the grandfather, A. McMillan, the following message over the Western Union Telegraph Company’s line:

“San Saba, Texas, Dec. 25, 1913. “To A. McMillan, Comanche, Texas:
“I. N. Alderman’s little girl is not expected to live. Come at once.
“[Signed] T. W. Alderman.”

That message was promptly transmitted, and was received by the agent of the sending company at Comanche at 11:48 a. m. on December 25, 1913, the same day it was sent, but was not delivered to the addressee until the morning of December 29, 1913. The child mentioned in the telegram died on December 25th, and was buried on the afternoon of December 20th, near the place where her parents resided. The first information of her illness, death, and burial was received by A. McMillan by letter, which reached him on December 29th, shortly before he received the telegram. He instituted this suit against the telegraph company for damages resulting from mental anguish, which he alleges he suffered by reason of his failure to attend the burial of his grandchild. The claim for damages was predicated upon alleged negligence on the part of the defendant in failing to deliver the message to the plaintiff on December 25th. Plaintiff alleged that, had he received the telegram on the afternoon of December 25th, he would have started immediately from Comanche for the home of his daughter by private conveyance, and would have reached his destination in time to have attended the funeral. The trial was before the court without a jury, and the trial judge did not file findings of fact and conclusions of law. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.

It is shown by uneontroverted evidence that, December 25th being a legal holiday, the defendant’s office hours at Comanche on that date were from 8 to 10 o’clock a. m. and from 4 to 6 o’clock p. m.; that when the message came over the defendant’s wire to the office at 11:48 a. m., the agent was not then on duty, but happened to be in the office at the time and received the message; that the agent immediately began to make inquiries of the whereabouts of the addressee. The addressee was a farmer by occupation, and had resided in Comanche about five months only, and during that period of time had resided in three different locations. He testified that on December 25th he resided about 600 yards from the defendant’s office, and this estimate of the distance does not seem to have been controverted. He further testified that, if the telegram had been delivered to him at any time up to 8 or 9 o’clock p. m. on December 25th, he could and would have gone to his daughter’s house that night. He further testified as follows:

“I would have gone in a buggy, and would have started just as soon as I could have fixed up and started. I did not have a horse and buggy, but my nephew had one, and I would have got it and went with them. It is a fact that I would have gotten a conveyance and gone to my daughter’s house, had I gotten the telegram.”

He further testified that he had made the same trip by private conveyance before, knew the distance to be about 55 miles, and knew that he could have made the trip in about 8 hours.

By its first assignment appellant contends that it was shown by undisputed evidence that its agent, J. M. Boren, who received the message at Comanche, exercised ordinary diligence to find A. McMillan, and hence no liability on the part of the defendant was established. According to the testimony of that agent, which was corroborated by several witnesses he did make numerous inquiries to ascertain the whereabouts of the addressee, but without success. The inquiries extended over the afternoon of December 25th into the following day, and were made of numerous citizens, including the postmaster, who were well acquainted with the people generally in the town of Comanche, and who had never heard of A. McMillan; that being informed by Kemp, one of the persons of whom he inquired, that a man by the name of McMillan lived across the creek south of town, the agent rented a bicycle and took the message out there, but was informed by people in that locality that the McMillan who had lived there was not the addressee, and that he had moved away.

To controvert the testimony of the agent i relative to the diligence exercised by him to find the addressee, plaintiff introduced as a witness Judge J. H. McMillan, a resident attorney in Comanche and a cousin to the plaintiff. He testified that the plaintiff was well known to him, that he also knew the house in which plaintiff lived on December 25th; knew when plaintiff moved in there, and the location of the house from which he moved just prior to that time; that about 5 o’clock on the evening of December 25, 1913, he reeeivéd a telephone call from a party, who stated at the time, “This is the Western Union talking,” and who inquired if witness knew A. McMillan, stating at the time that he had a telegram for him. To that inquiry witness replied by telling the inquirer just where plaintiff lived, and at the same time giving specific directions how to find the house, if he did not know its location already. Plaintiff also introduced Jim Rowe, another witness, who testified that he was in business in Comanche on December 25, 1913, occupying at the time the east side of the same building, the west side of which was occupied by the defendant company. According to his testimony, a wooden lattice was the only obstruction between his place of business and the Western Union Telegraph office. He further testified that on the date in controversy he remembered that Mr. Boren told him of receiving a message for A. McMillan, and inquired if witness knew him. To that inquiry witness answered in the negative, but suggested to Boren to telephone to Judge J. H. McMillan, as the addressee might be related to him. He further testified as follows: I

“I understood that Mr. Boren phoned Judge McMillan. Some one phoned from there, and they were talking as if they were talking to Judge McMillan. Whoever was talking was talking from the telegraph office over there. I think the phoning was done immediately after I made the suggestion. It may have been a few minutes, but it was all right in the same building. I would not say whether it was Bo-ren talking to Judge McMillan or not. * ⅜ * I think whoever it was that was talking to the Judge asked him if he knew A. McMillan, or knew anything about him. It is my recollection that this happened Christmas Day, but I am not sure about that. * ⅛ * I understood whoever was going to do the phoning was going to ask Judge McMillan about this man, and it is my recollection that whoever did the phoning said that Judge McMillan said he did not know anything about the party. It was my understanding that he said this right straight after he did the talking. It looked to me like everybody, including the agent, was making; every effort they could to find this man. * * * I do not remember who else was in the office about that time, but' there was people in and around there all the time. ⅜ ⅞ * Otis Guthrie was there a good deal of the time, but I would not say whether he was there then or not. He was there a good deal of the time in the office. I would not say whether he was there at the time the conversation took place or not.”

In rebuttal of that testimony the agent, Boren, testified that Mr. Rowe suggested to him that he telephone Judge McMillan and inquire if he knew the addressee; that Guthrie was in the office at the time, trying to locate him; that the witness then went immediately to the telephone office for the purpose of pursuing his search for the addressee, leaving Guthrie in the defendant’s office at the time; that Guthrie was not working for the company at all >at that time, and had not so worked for a year; that Guthrie made several inquiries to see if he could locate A. McMillan; that after witness returned from the telephone office Guthrie told witness that he had called up Judge McMillan over the phone, but was unable to find out where A. McMillan lived; that witness did not call Judge McMillan at all, and knew nothing about the conversation occurring over the phone which was detailed by Judge McMillan. The man Guthrie referred to did not testify in the case.

The plaintiff introduced other testimony to show that the telegram as written out by the agent and delivered to the addressee was dated December 20th, instead of December 25th, and later, when questioned about this, Boren made statements to the effect that the original message was not filed at San Saba until 5:35 p. m. on December 25th, and was not received at the Comanche office until 8:10 a. m. December 26th; that it was not sent from the San Saba office on December 25th, because that was a holiday; that he mailed to 'the addressee a notice of the receipt of the message about 10:30 a. m. on December 26th, and that he did not phone to any one on the 25th of December, because he did not receive the message until December 26th. The plaintiff testified he received no notice through thd post office from the defendant company that the telegram had been received.

In view of the testimony above set out, we are unable to agree with appellant’s contention that due diligence by it to deliver the message was shown by uncontroverted evidence. The testimony of Judge McMillan, in connection with the circumstances detailed by the witness Rowe, and the further testimony of contradictory statements by the agent, which tended to discredit his testimony generally, was sufficient, we believe, to sustain a finding by the court that the agent received the information relative to the residence of the addressee given by Judge McMillan over the telephone, that he received that information on the afternoon of December 25th, and that he was guilty of negligence in not delivering the message to the addressee upon the afternoon of that date.

On the back of the telegram was the following stipulation:

“That the defendant will not be liable for any damages or statutory penalties in any case where the claim is not presented in writing within 95 days after the cause of action, if any, shall have arisen.”

The defendant pleaded this stipulation as part of the contract, and by another assignment of error insists that as the undisputed evidence shows that plaintiff did not present any claim for damages within the period of time named in the stipulation, nor at any other time, that the court erred in rendering any judgment against it. The suit was instituted April 7, 1914, more than 95 days after the cause of action arose, and the suit was the only claim of damages ever presented by the plaintiff, if the filing of the suit can be said to constitute a presentation of the claim.

By supplemental petition the plaintiff alleged that through fraudulent misrepresentations made by the defendant’s agent he was misled to believe that the original telegram was dated December 26th, instead o'f December 25th, and that he did not discover that the representation was untrue until about January 19, 1914. According to testimony of the plaintiff and his attorney, Judge Goodson, plaintiff purposed a suit for damages against the defendant soon after the receipt of the message, but was advised that he had no cause of action, since he had received information by letter to the effect that the child was buried on December 26th, and that plaintiff could not possibly have attended the burial, however speedily the message may have been delivered, if it was not sent from the San Saba office until December 26th, and that by reason of the statements made to him and to his attorney, and referred to above, in addition to the further fact that the telegram, as the same was delivered to the plaintiff, purported to have been sent from San Saba on December 26th, he was induced to believe, and did believe, that he had no cause of action, and did not discover the falsity of such information until on January 19, 1914. Less than 95 days intervened between that date and the date of the filing of the suit. It is well settled that the filing of a suit is the presentation of a claim within the meaning of the stipulation shown on the back of the telegram, and the evidence referred to was sufficient to sustain a finding by the trial judge that the defendant was estop-ped from taking advantage of the misrepresentations referred to, and that the 95-day period for notifying the defendant of plaintiff’s claim of damages did not begin to run until January 19, 1914. See Phillips v. Western Union Telegraph Co., 95 Tex. 638, 69 S. W. 63 ; Western Union Telegraph Co. v. Timmons, 136 S. W. 1169.

It is also well settled that a telegraph company must take notice of relationship of the addressee to a person whose illness or death is announced in the telegram, and of such mental anguish which it may reasonably be expected 'the addressee may suffer from a failure to attend such relative during his illness, or to attend his burial in the event he dies, and we are of opinion further that the relation of grandfather and grandchild is not too remote to sustain a recovery for such damages. S. W. Telegraph & Telephone Co. v. Andrews, 169 S. W. 218, and authorities there cited; Western Union Telegraph Co. v. Blake (Ark.) 169 S. W. 240; Western Union Telegraph Co. v. Porterfield, 84 S. W. 850.

By another assignment it is insisted that the undisputed evidence shows that plaintiff w.as not in position to go to the bedside of his grandchild, and he could not have gone in time to be present at the burial. The proposition submitted under this assignment is not germane thereto, in that it is to the effect that there was a fatal variance between the pleading and proof, in that it was alleged in the petition plaintiff owned a. horse and buggy which he would have used to make the trip, while the proof shows that he would have used other means, to wit, a horse and buggy owned by his nephew which he would have procured. Even if the proposition be considered, we are of the opinion that it presents no substantial variance.

For the reasons indicated, the judgment is affirmed.
      <gsnFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ,&^>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, 0. J.

license: Public Domain

text:
    WALKER v. WILMORE.
    (No. 407.)
    (Court of Civil Appeals of Texas. El Paso.
    March 4, 1915.
    Rehearing Denied April 1, 1915.)
    1. Chattel Mortgages <§=>40 — Conditional Sale and Mortgage — Construction oe Instruments.
    Where two written instruments, the first a bill of sale, absolute on its face, reciting a cash consideration of $150, with a general warranty clause, the second a bill of sale subject to de-feasance by repayment of the purchase price of race horses, formed the contract, the question whether the transaction was a conditional sale or a mortgage was for the jury to determine from all the facts and circumstances of the case under the charge of the court.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 46; Dec. Dig. <§=>40.]
    2. Appeal and Error @=>724^-Assignments ' oe Error.
    Assignments of error that the court erred in not giving special requested charge No. 1, for the reason, etc., that the court erred in not granting plaintiff a new trial because under all the evidence the proof showed, etc., and that the horses in dispute were reasonably worth from $1,500 to $2,500, which defendant claimed he bought for $150, etc., so that the court under its equity power erred in not granting plaintiff a new trial, were improper as being merely arguments supporting errors previously assigned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. ■§=>724.]
    3. Appeal and Error <§=>742 — Assignments oe Error — Proposition and Statement.
    An assignment of error, complaining of the admission and rejection of testimony, could not be considered, where it was not followed by its appropriate proposition and statement; there being no reference to the statement of facts where such testimony might be found, or to the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. @=>742.]
    Appeal from District Court, El Paso County; Leigh Clark, Special Judge.

      Action by George 0. Walker against R. W. Wilmore. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jno. T. 1-Iill, of El Paso, for appellant. Jones, Jones & Hardie, of El Paso, for appel-lee.
   HARPER, 0. J.

This suit was brought by appellant, George 0. Walker, against appel-lee, R. W. Wilmore, to recover possession of two race horses. Appellant alleged that he procured a loan of $150 from appellee and to secure it executed a bill of sale to the two horses, which are worth the sum of $2,500; that the instrument in question was a bill of sale in form, but m fact a mortgage. The appellee answered by general denial, and alleged that the transaction was an absolute sale and not a loan, and denied that the horses were worth $2,500, etc. A jury trial resulted in verdict and judgment for defendant, from which this appeal is taken.

The first assignment is that the court erred in refusing to give to the jury the following special instruction:

“Xou are charged that the instrument in evidence shows upon its face that it is a chattel mortgage, and the only question for your determination is whether or not a tender of the money due was made and possession of the horses demanded.”

The proposition is that the language of the instruments is clear and unambiguous, and, they should have been construed by the court and declared to be a mortgage. The instruments are: First, a bill of sale, absolute upon its face, reciting a cash consideration of $150 with general warranty clause. The second, executed at the same time, is:

“Whereas, 1, George 0. Walker, have this day sold to R. W. Wilmore my-certain bay filly Ju-melia and my certain bay filly Stella Grain for the sum of $150.00 to me paid by the said R. W. Wilmore, the receipt of which is hereby acknowledged, and,
“Now it is understood and agreed by and between R. W. Wilmore and myself, that should I, within ten days repay to the said R. W. Wil-more the sum of $150.00, then the said R. W. Wilmore agrees to reconvey said horses to me, but should I fail within ten days to pay to the said R. W. Wilmore the said $150.00 then, in that case, said R. W. Wilmore, by virtue of said sale, shall have the right of complete possession in the title which I have vested in him by said bill of sale.”

The first instrument, if standing alone, conveys no hidden meaning, but in connection with that part of the second which reads: “Should I within ten days repay * * * the $150.00 ⅞ ⅜ ⅜ Wilmore is to reconvey said horses to me,” etc., would indicate a loan or a conditional sale. In such cases, the rule is that when the true intention of the parties is not apparent upon the face of the instruments, the question as to whether the transaction was a conditional sale or a mortgage is to be decided by the jury, under the charge of the court, from all the facts and circumstances of the particular case. Alstin v. Cundiff, 52 Tex. 462; Ruffier v. Womack, 30 Tex. 332. So the court did not err in refusing to give the charge requested, but properly submitted it to the jury for their determination; and, the question having been resolved in favor of a sale, there is no reason .suggested why the judgment should be disturbed.

The other propositions under this assignment are not exactly the same as the one quoted, but substantially so; but we are not required to pass upon them, because not followed by appropriate statements, or reference to the record.

Assignments 2, 3, 4, and 5 appear in the brief in the following form:

“Appellant’s Assignment No. 3, Stated as a Proposition, being Assignment Numbered 13, Assignment of Error.
“The court erred in not giving special requested charge No. 1 for the reason that the proof shows that the consideration which defendant claims to have paid for said horses is oppressively inadequate, and is conclusive that said amount paid to appellant, to wit, $150, was made as a loan.
“Appellant’s Assignment No. 4, being No. 15 in Assignment of Error.
“The court erred in not granting appellant a new trial because under all the evidence the proof shows conclusively that irreparable injury and injustice was done appellant by the verdict of the jury and judgment of the court and under the rules of equity power of the court it was error to permit the verdict to stand.
“Appellant’s Assignment No. 5, being No. 16 in Assignment of Error.
“The horses in dispute were reasonably worth from $1,500 to $2,500 which appellee claimed he bought for $150, and the consideration which appellee claimed to have paid is evidence of fraud, and the court under its equity power erred in not granting appellant a new trial.”

It is apparent that such cannot be called assignments, but are simply arguments addressed to the propositions under the first assignments. Nevertheless since, if the record showed the two matters proved, as asserted by appellant, it should conclude this cause in favor of appellant, we answer that the evidence is not undisputed that the bill of sale was given to avoid giving a mortgage in Juarez, Mexico. Neither does the evidence conclusively show that the horses were worth $1,500 to $2,500. The evidence concerning these matters was properly admitted as circumstances for the consideration of the jury in determining whether the transaction was a sale or mortgage. The evidence is conflicting as to them, and the jury has resolved it in favor of appellee.

The sixth assignment, complaining of certain testimony 'admitted over the objections of appellant, must be overruled because not followed by appropriate proposition and statement. There is no reference to the statement of facts where such testimony may be found.

The seventh, complaining of the action of the court in refusing to permit the jurymen to testify that the evidence complained of in No. 6 influenced them to decide against appellant, must be overruled for the same reason — not followed by any statement, nor is there any reference to the record.

The other assignments in no way meet the requirements of the rules for briefing cases in this court, so will not be considered.

There being no error apparent of record and none called to our attention by appropriate assignment, the judgment of the trial court must be affirmed.
      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    ALLEN v. TRAYLOR et al.
    (No. 5430.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 3, 1915.
    Rehearing Denied March 31, 1915.)
    1. Vendor and Purchaser <@=>265 — -Trans-fer by Grantee — Assumption oe Vendor’s Lien Note — Right oe Vendor to Sue.
    Where the vendors of land took the purchaser’s lien notes to secure the price, the purchasers selling to one who sold part of the land to defendant, who assumed payment of a proportionate part of the debt, such defendant was liable to the original vendors for the amount so assumed, by the rule that a third person has a right of action upon a promise made for his benefit, though he be a stranger both to the promise and consideration therefor; it being immaterial whether defendant’s immediate grantor himself assumed the debt.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. <@=>265.]
    2. Vendor and Purchaser <@=>294 — Assumption oe Part oe Note Carrying Attorneys’ Fees.
    Where defendant purchased lots which had been sold' to his vendor by purchasers who had given four vendor’s lien notes carrying attorneys’ fees, he became liable for such fees, although he had assumed only part of the debt covered by the notes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dec. Dig. <@=>294.]
    Error from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Harry Traylor and others against Frank Allen. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    McFarland & Lewright, of San Antonio, for plaintiff in error. Guinn & McNeill, of San Antonio, for defendants in error.
   CARL, J.

On July 17, 1911," Harry Tray-lor and the Rockport Land Company conveyed to D. W. McKey and W. L. Pridgen by general warranty deed certain land in the town of Rockport, Tex., including blocks Nos. 175, 399, 277, and 360 of Manning division of said city of Rockport, and in part payment therefor McKey and Pridgen executed and delivered their four vendor’s lien notes as follows: No. 1 for $500; No. 2 for $500; No. 3 for $3,750; and No. 4 for $1,000. The first note was due on or before one year after ifs date; No. 2 was due on or before 18 months; No. 3 due on or before 2 years after its date; and No. 4 was due on or before 2½ years. All these notes were payable to the order of the Rockport Land Company, each bore 8 per cent, interest per annum, and each note contained an option clause whereby the owner thereof could mature all notes upon failure to pay any one when due or upon failure to pay any installment of interest. The Rockport Land Company transferred the-notes to Traylor. Note No. 1 was paid, but No. 2 was not paid in full, $62 of the principal remaining, and $8.87 interest, and on No. 3 there remained $820, and interest in the sum of $128.14; and it was alleged that there remained unpaid on No. 4 the sum of $252, and interest in the sum of $14.-31. All the notes were declared due.

On September 20, 1911, D. W. McKey and W. L. Pridgen conveyed said blocks Nos. 175, 277, 360, 399, containing 74 lots, to M. Uco-vich, subject to the incumbrance thereon; and on March 2, 1912, Ucovich conveyed blocks Nos. 277 and 360 to Frank Allen, who, as a part of the consideration therefor, assumed the payment of the sum of $4,784 of the debt against the lots, together with accrued interest thereon, or an amount due on principal and interest in the sum of $23 per lot on the 32 lots conveyed.

The petition charges that, by reason of said assumption by the said Frank Allen, he became liable for the payment of $355, and $61.-94 interest, on note No. 3, and the sum of $128, and $7.25 interest, on note No. 4, as well as for attorney’s fees in said notes provided in the sum of 10 per cent, of the principal and interest. It is further alleged that the said Ucovich conveyed other of the blocks mentioned to Adolf Holz and other defendants not necessary here to mention.

Defendant in error sued McKey and Pridgen, Frank Allen, Adolf Holz, Peter Nowotony, Jr., J. Sehapiro and wife, Annie Schapiro, and A. A. Brower. Pridgen and McKey, in their answer, asked for judgment over against Frank Allen, among others, in case judgment went against them, on his assumption in the Ucovich deed.

The suit was tried in Bexar county, where Frank Allen lived, and on April 17, 1914, he was served with a citation in said cause, which it is claimed was insufficient as notice of the nature of the suit. Allen did not appear in response thereto, and judgment was rendered against him by default and against Pridgen and McKey in the sum of $616.95, and the vendor’s lien foreclosed on the property Allen purchased from Ucovich, and Pridgen and McKey recovered against Allen in the event they had that judgment to pay.

This will be a sufficient statement of the case for the present, and any additional facts necessary to .be shown will appear in the course of this opinion.

The main issue in this case arises by reason of the fact that Ucovich did not assume the debt against the land, but bought subject thereto in a way that he was not personally liable on tlie notes. When he sold, however, Allen did assume the proportionate amount ol the debt that his blocks bore to the whole. This being true, it is claimed that there is no privity of contract between Allen and the holder of the notes so as to hold him personally liable.

It is, of course, well established in Texas that, where the grantee of a mortgagor assumes the payment of an obligation, the holder thereof can hold such person who assumed personally liable. Texas, it seems, has adopted what is known as the American rule, which is, in general terms, that a third person has a right of action upon a promise made for his benefit, though he be a stranger both to the promise and to the consideration. Baxter v. Camp, 71 Conn. 245, 41 Atl. 803, 42 L. R. A. 514, 71 Am. St. Rep. 182; McCown v. Schrimpf, 21 Tex. 22, 73 Am. Dec. 221; Urquhart v. Ury, 27 Tex. 7; Mathoni-can v. Scott, 87 Tex. 396, 28 S. W. 1063; Stadler v. Talley, 3 Willson, Civ. Cas. Ct. App. § 472; Heath v. Coreth, 11 Tex. Civ. App. 91, 32 S. W. 56.

Mr. Story, after a full discussion of English and American authorities on this subject, says:

“And the ground On which this rule stands is that, although the third person may he a stranger to the express promise, as between the other parties, yet the transaction creates a trust out of which an implied promise arises to pay over the sum to the third party.” Story on Con. § 451b.

Judge Stayton said, in Spann v. Cochran, 63 Tex. 242:.

“It is believed', however, that such an agreement between a debtor and a third person, made upon valuable consideration, gives to the creditor a cause of action on which he may sue and recover from the person who has so contracted to pay to him a debt originally due only by the person to whom the promise is made. This seems to be in accordance with the great weight of American authority. McCown v. Schrimpf, 21 Tex. 27 [73 Am. Dec. 221]; Barker v. Bucklin, 2 Denio [N. Y.] 45 [43 Am. Dec. 726]; Schemerhorn v. Vanderheyden, 1 Johns. [N. Y.] 140 [3 Am. Dec. 304]; Eddy v. Roberts, 17 Ill. 505 ; Rhodes v. Matthews, 67 Ind. 132 ; Todd v. Tobey, 29 Me. 224; Dearborn v. Parks, 5 Me. 85 [17 Am. Dec. 206]; Brown v. Strait, 19 Ill. 88; Johnson v. Knapp. 36 Iowa, 616; Mason v. Hall, 30 Ala. 601; Wilson v. Bevans, 58 Ill; 233; Putney v. Farnham, 27 Wis. 187 [9 Am. Rep. 459].”

There are respectable authorities holding the contrary view, but the above rule has been sustained by repeated decisions of our courts. The doctrine is sustained upon the ground that the promise is not to answer the debt of another, but that the promisor is simply answering for his own debt, and, although he has agreed with his promisee that he will pay to a third party, it is still only the payment of the promisor’s own obligation.

In Baxter v. Camp, supra, it is again said:

“The tendency, from the earliest cases, has been to establish a privity between the third person, for whose benefit the promise is made, and the promisor. The opinion in Lawrence v. Fox, 20 N. Y. 268, is based directly upon this ground. The court, quoting from the Massachusetts case of Brewer v. Dyer, 7 Cush. [Mass.] 337, said that the rule ‘does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases would seem to indicate, but upon the broader and more satisfactory basis that the law operating on the act of the parties creates the duty, establishes a privity, and implies the promise and obligation on which the action is founded'.’ Again, in Vrooman v. Turner, 69 N. X. 280, 25 Am. Rep. 195, it .was said that ‘a legal obligation or duty of the promisee to him [third party] will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor.’ ”

The third party need not even be named, but it must clearly appear that he is to be benefited. McCown v. Schrimpf, 21 Tex. 22, 73 Am. Dec. 221.

The essential matter with which we have to deal is that Allen agreed to pay his proportion of this debt which was held by Tray-lor. . It was an agreement made for the benefit of the holder of the notes, and, as said' in Spann v. Cochran, supra, Allen thereby and to that extent made it his own debt. That Ucovich did not assume and himself become personally liable for the debt is immaterial. The debt was against the land and held by Traylor, all of which was known, to Allen when he assumed and agreed to pay it. And if an acceptance on part of the holder of the obligation be necessary to bind the promisor, then Traylor certainly accepted, which is emphasized by the filing of this suit. It could make no difference that Uco-vich did not assume, because, if he had done so, there would be no more privity of contract between Traylor and Allen in that instance than there is in this case. To the extent assumed, Allen made it his debt and is liable. Gunst v. Pelham, 74 Tex. 586, 12 S.. W. 233; Hoeldtke v. Horstman, 128 S. W. 642; Middleton v. Nibling, 142 S. W. 968; Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Long v. Patton, 43 Tex. Civ. App. 11, 93 S. W. 519.

It is urged that plaintiff in error is not liable for attorney’s fees, because he did not agree to pay part of the notes, but merely an amount to be credited on the same, equal to $23 per lot. But it is alleged that:

He “assumed the payment of the sum of four thousand seven hundred and eighty four ($4,-784.00) dollars, together with interest accrued and to accrue thereon, representing a part of the-unpaid sum then due and owing upon said vendor’s lien notes, the said Allen assuming and agreeing to pay, on the principal and interest of said notes, an amount equivalent' to $23 per lot,” etc.

The notes represented the outstanding debt, and that contract is the one which Allen, in part, assumed and agreed to pay. He was not only to pay same and accrued interest, but interest to accrue. It is patent that the intent was to assume a part of that contract, and, having done so, he is bound by the terms thereof, and it follows that he is liable for the attorney’s fees.

The citation served upon plaintiff in error, while somewhat awkwardly drawn, is sufficient to notify him substantially of the nature of the cause of action.

The judgment is affirmed.
      <@c=oFor other cases see same topic arid KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C, J.

text:
    WESTERN UNION TELEGRAPH CO. v. GORMAN & WILSON.
    (No. 8091.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 6, 1915.
    Rehearing Denied March 13, 1915.)
    1. Telegraphs and Telephones <§=>74^-Ac-tion for Damages — Instructions.
    In an action for damages for failure to deliver a telegram, whereby plaintiff lost an opportunity to purchase certain cattle at prices stated, in which there was some testimony that the plaintiff had been offered certain stock at $25 a head, an instruction that the offer was $25 a head was not erroneous as not conforming to the evidence; and, in view of the finding that the offer was $25 a head, it was immaterial that the proof failed to show that the purchase would have been made had the offer been at $27.50 a head, as testified to by the seller and sender.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. <§=> 74.]
    2. Trial <§=>243 — Instructions — Conflicting Instruction.
    In an action for damages for nondelivery of a telegram, depriving plaintiff of the opportunity to buy cattle, a charge which, as a whole, merely authorized the jury to consider the seller’s testimony, together with all other testimony, and to find for plaintiff only if the seller’s alleged offer had been made, did not conflict with a special charge that plaintiff must prove that he could and would have purchased the stock at the prices for the several classes pleaded by him, and that, if he failed to do so, he could not recover. *
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. <§=>243.]
    3. Evidence <g=>142 — Market Value — Different Locality.
    In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, where the evidence showed that defendant’s agent had notice that plaintiff’s intended purchase was for resale at Ft. Worth, and that the market value of such cattle in S. county was fixed by the market value in Ft. Worth, evidence as to the market value of the cattle at Ft. Worth and the identification and reading of published market reports was admissible on the issue of damages in the market in S. county.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. <§=>142.1
    4. Evidence <§=>501 — Opinion—Facts Forming Basis.
    In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, where plaintiff so described the cattle as to bring them within the classification of “stocker steers,” and gave his opinion as to their market value at Ft. Worth, he was properly allowed to read from the Ft. Worth Live Stock Reporter the reports of representative sales covering the period involved, to show on what he then based his opinion of the market.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. <§=>501.]
    5. Evidence <§=>474^0pinion — Knowledge of Witness.
    In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, testimony of a witness as to what the cattle would have weighed on the Ft. Worth market was not inadmissible on the ground that he did not see them until about two weeks after the failure to deliver the telegram, where it appeared that at about such time he examined them and bought part of them.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. <§=>474.]
    6. Appeal and Error <§=>1050 — Harmless Eeror — Admission of Evidence.
    In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, where testimony of witnesses as to the effect that live stock reports of the Ft. Worth market had upon the market in S. county were admitted without objection, the admission of subsequent testimony to the same effect was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]
    7. Telegraphs and Telephones <§=>37 — Failure to Deliver Message — Liability.
    A telegraph company not negligent in transmitting a telegram which, with notice of probable damages, was sent to plaintiff, but was negligent in not delivering the message to plaintiff, although, as received, the middle initial was different from plaintiff’s, was liable in damages.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. <§=>37.j
    8. TELEGRAPHS AND TELEPHONES <§=>66 — ACTION foe Damages — Sufficiency of Evidence — Negligence.
    In an action for damages for failure to deliver a telegram addressed to plaintiff relative to an offer to sell certain cattle, which, as received, contained a middle initial different from plaintiff’s, evidence, regardless of any negligence in its transmission,- held, to show defendant’s negligence in failing to deliver it to plaintiff.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. <⅞=>66.]
    9. Telegraphs and Telephones <§=>74L-In-structions — Evidence.
    In such action, where the court relieved defendant’s agent, who had received the sender’s message over the telephone of any negligence in reducing it to writing, a requested instruction that the receiver was the agent of the sender, and not of defendant, was properly refused.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec.. Dig. <§=> 74.]
    10. Trial <§=>260 — Request for Instructions.
    Charges which, so far as proper, were sufficiently comprehended in the court’s charge, were properly refused.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §1 651-659; Dec. Dig. <§=>260.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by Gorman & Wilson against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Thompson & Barwise and A. C. Wood, all of Ft. Worth, for appellant. Flournoy, Smith & Storer, of Ft. Worth, for appellees.
   CONNER, C, J.

Appellees instituted this suit, alleging, in substance, that they had been negotiating with one R. T. Baker, of Sonora, Sutton county, for the purchase of certain steer cattle, to wit, 110 one year olds, 381 two year olds, and 135 three year olds, which had been offered to them at $25, $30, and $35 per head, respectively, and that, with a view of purchasing on the terms offered, on August 2, 1912, they prepared for transmission and delivery to said Baker the following telegram, which was accepted by appellant, together with the charges therefor, to wit:

“R. T. Baker, Sonora, Texas: If you have not sold your steers, my partner and myself will come and look at them next Wednesday and will try and buy the ones and twos. May want the threes, also, after seeing them. Answer at once.
“[Signed] W. T. Wilson.”

It was further alleged that, upon the receipt of said telegram, said Baker .gent a reply message addressed to W. T. Wilson at Ft. Worth, Tex., to the effect that the cattle were for sale, and inviting said Wilson to come to his (Baker’s) ranch on the following Wednesday or Thursday. It was charged that, while appellant accepted this latter telegram for transmission and delivery to said W. T. Wilson, it negligently failed to do so, whereby, in the manner set forth in the petition, the plaintiffs lost the opportunity of making the intended purchase, to their damage in the sum of $2,953.

Appellant defended upon the ground, among other things, that the failure to deliver was induced by negligence in so preparing the telegram at San Angelo, where received, as that the sending operator reasonably mistook the middle initial in Wilson’s name (T.) for “E.,” and that, as received in Ft. Worth, it was addressed to W. L. Wilson. The verdict and judgment, however, were against appellant, and it has prosecuted this appeal.

Error is assigned to the following paragraph of the court’s charge, viz.:

“If you find from the evidence that the defendant was guilty of negligence in the transmission of said message under instructions here-inbefore given, and that such negligence, if any, was the proximate cause of the failure to deliver said message to plaintiff Wilson, or, if you find from the evidence that defendant was guilty of negligence in the failure to deliver said message to the plaintiff W. T. Wilson, under instructions hereinbefore given, and you further find from the evidence that said Baker had offered to sell said cattle to plaintiffs at certain prices shown by the testimony, and had agreed to hold said offer open for a reasonable time-for plaintiff Wilson to come to Ft. Worth and communicate with said Baker by wire whether he would want said cattle or not, and you further find from the evidence that, if plaintiff W. T. Wilson had received said message from said Baker, plaintiffs would have gone to Sutton county, and could and would have purchased the cattle upon the terms and for the prices offered by said Baker to plaintiff Wilson, and you further find from the evidence that the failure of defendant to deliver to plaintiff Wilson the said message by Baker as aforesaid was the sole and proximate cause of plaintiffs’ failure to purchase said Baker’s cattle, and you further find from the evidence and under the instructions hereinbefore given that plaintiffs suffered any damage as the result of the failure to deliver such message, and you further find from the evidence that the defendant telegraph company, at the time of the acceptance by it of the said message of August 3, 1912, from Baker, was possessed of notice and information of facts sufficient to advise and inform the defendant that a failure to deliver said message would result in the damage, if any, which you may find from the evidence and under the instructions of the court has been suffered by the plaintiffs, then you are instructed to return a verdict for the plaintiffs against the defendant, unless you should find for the defendant under some other instructions of the court.”

It is urged that the charge is erroneous, for the reason that Baker testified that he priced the one year old steers at $27.50 each, instead of $25, as alleged, and that there is no testimony tending to show that the plaintiffs would have purchased the cattle with the one year olds at $27.50. There is no real merit in the objection stated. The suit was not upon the offer made by Baker, but for damages in being deprived of an opportunity to purchase at the prices stated in the petition under a vide licet, thus leaving an open door for small variations, and no objection was made to the evidence on the ground of a variance. Moreover, both W. T. Wilson, and a son of Baker testified that $25 was the offer for the ones, and the court, at appellant’s request, gave the following special instruction:

“You are instructed that, in connection with the court’s main charge, and in determining whether or not the plaintiffs in this case would have purchased the cattle in question, even if the message sued upon herein had been promptly delivered to Wilson, you will look to, and be governed by, the pleadings of the plaintiffs as to the prices at which the several classes of cattle could have been purchased. The plaintiffs must prove that they could and would have purchased the cattle at the prices of the several classes thereof as pleaded by them, and, if they have not proved this, your verdict will be in favor of the defendant without reference to any other question in the ease.”

In view of this special instruction and the testimony of Wilson and Baker’s son, it seems evident that the jury found the offer of the one year olds to be $25, and hence it is immaterial that the proof fails to show that the purchase would have been made had the offer been at $27.50.

But under other assignments it is insisted that the charge of the court quoted and the special charge above set out are in conflict, and that therefore the court’s charge is to be condemned. The conflict, however, is certainly not in express terms. It is to be found, if at all, only by a process of deduction. Reading the paragraphs together, as is our duty to do, there is no real conflict. The charge, as a whole, merely authorizes the jury to consider Baker’s testimony, together with all other testimony on the subject, and to find for plaintiffs only in event the finding was in favor of their theory of the offer. The third, fourth, fifth, and thirteenth assignments are, hence overruled.

We fail to find any prejudicial error, as assigned, in permitting the witness W. T. Wilson to testify to the market value of the cattle on the market at Ft. Worth, and to identify and read published market reports. There was evidence tending to show that appellant’s agent had notice, as alleged, that the intended purchase was for resale at Ft. Worth, and the state of the Ft. Worth market was, therefore, relevant to the plaintiffs’ measure of damage. Postal Telegraph Cable Co. v. Talerico, 136 S. W. 575; McDonald v. Unaka Timber Co., 88 Tenn. 38, 12 S. W. 420. The admissibility of the testimony is not to be held erroneous by reason of the fact that the court in its charge later confined the issue of the plaintiffs’ measure of damages to the market in Sutton county. Even on the theory of the measure of damages adopted by the court no error is presented, for there was evidence tending to show that the market value of steer cattle in Sutton county was fixed by the market value in Ft. Worth, and the court expressly instructed the jury that, in determining the market value in Sutton county, the testimony relating to market values in Ft. Worth at the times involved should be disregarded, except in so far as it might assist, if at all, in determining the market values in Sutton county. As thus qualified, no error was committed in this particular in any event. McDonald v. Unaka Timber Co., 88 Tenn. 38, 12 S. W. 420; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; note 57 L. R. A. 193; Sedgwick on Damages, vol. 1, § 246; Tri-State Milling Co. v. Breisch, 145 Mich. 232, 108 N. W. 657.

The sixth assignment is as follows;

“The court erred in allowing the plaintiff W. T. Wilson to testify over the objection of the defendant with reference to what the cattle involved in this suit were worth on the market at Ft. Worth, and as to what they would weigh on said market, as is more fully set out and shown in defendant’s bill of exceptions No. 1.”

The witness Wilson, after qualifying himself, gave his opinion of the market value of the cattle in question at Ft. Worth, after describing them, and in connection with his testimony on the subject was permitted to read from the Ft. Worth Live Stock Reporter the market reports covering the period in question. No objection was made to the reports except to the published account of “Representative Sales” as follows:

Representative Sales.
Stocker Steers.
No. Average. Price.
44.. 21.. . 1,005. . 889. . 5.75 . 5.50
38.. . 676. . 5.35
63.. 702. . 5.35
26.. . 515. . 5.15
33.. . 690. . 5.10
23.. . ' 673. . 5.00
22.. . 918. . 5.00
27.. . 810. . 4.65

To this it was objected that it was incompetent to establish market value by “showing what particular cattle sold for at the time in controversy.” The objection is obviously a misapplication of the rule that particular sales do not constitute market price. The witness so described his cattle as to fairly bring them within the classification of “stocker steers,” which was sufficient. Bullard v. Stewart, 46 Tex. Civ. App. 49, 102 S. W. 174. The representative sales constituted but a part, and, it may be said, the most material part, of the market reports, and, as such, were admissible on the .issue, particularly “for the purpose of showing on what the witness might base his opinion of the market that day,” to which the court specifically limited the testimony. T. & P. Ry. Co. v. Isenhower, 131 S. W. 297; Houston Packing Co. v. Griffith, 144 S. W. 1139.

The witness Freeland’s testimony, to the effect that, in his opinion, the cattle in question would have weighed on the Ft. Worth market “about 800 or 825 pounds,” was not inadmissible on the mere ground that he did not see the cattle until about two weeks after the failure to deliver the telegram in question. It appeared from the witness’ testimony that at about this time he examined the cattle in the pasture where they had been kept, and bought part of them, and the objection made went to the weight of his testimony, rather than to its admissibility.

Nor do we find error, for the reasons assigned, in the admission of the testimony of R. P. Barse with reference to what the cattle involved in this suit would have been worth on the market at Ft. Worth, Tex. It is urged that the admission of this testimony was erroneous, for the reason that appellant had no notice of appellees’ intention to ship the cattle. This contention, as before stated, is unsupported by the testimony, which very plainly tended to show that at the time of the delivery of the original telegram for transmission to Baker appellant’s agent was then given information of the purpose of the telegram and of the contemplated purchase, and urged, because of its importance, to make , prompt transmission and delivery. Moreover, as before noticed, the court in its charge made appellees’ measure of damage to depend upon the state of the market in Sutton county, specifically instructing the jury that the state of the market at Ft. Worth could be considered only, if at all, in determining the Sutton county market at the time involved.

The further objection to the testimony of Freeland of statements made by cattlemen in Sutton county relating to the effect that the live stock reports and the Ft. Worth market had upon the market in Sutton county must be overruled, if for no other reason, on the ground that the testimony was harmless in view of the testimony of other witnesses — to wit, Allison, Barse, and Martin— of substantially the same effect, and to which like objection was not made. The objection to the testimony of V/. T. Wilson to thé effect that he- would have completed the purchase had he received the answering telegram of Baker in time, on the ground that appellant had not sufficient notice, must be overruled, for reasons already stated.

In the fifth paragraph of the court’s charge the jury were instructed, among other things, to the effect that, if they should fail to find that appellant was guilty of negligence in transmitting the telegram from Baker to appellees, or that its negligence in so doing, if any, was not the proximate cause of the plaintiffs’ failure to purchase the. cattle, they would find for the defendant, etc., “provided, however, that if you should find from the evidence the defendant was guilty of negligence in not delivering said message to W. ⅜ Wilson, although, as received in Et. Worth, 'it was addressed to W. L. Wilson, and that notice of the character referred to in paragraph 4 hereof was given to the defendant subsequent to the acceptance of said message from Baker, you are instructed that such notice was sufficient.” The proviso quoted is objected to on the ground that notice received by a telegraph company after the contract of transmission is not binding on it, and on the further ground that there was no testimony showing that any notice was given to the telegraph company after the message addressed to W. L. Wilson was received by it.

Paragraph 4 of the charge, among other things, made a recovery by the plaintiffs depend upon “notice" and information” on the part óf appellant at the time of the acceptance by it of the message to Baker on August 3d, “of facts sufficient to advise and inform the defendant that a failure to deliver said message would result in the damage,” etc. We find nothing prejudicial to appellant in the charge. The evidence tended abundantly to show that, upon the receipt of the telegram at Et. Worth addressed to W. L. Wilson, appellant was thereafter guilty of negligence in a failure to deliver the telegram, and also had sufficient notice to put it upon inquiry of the importance of the telegram and of probable damage in event of a failure to deliver it. There was evidence tending to show that, upon the receipt of the telegram addressed to W. L. Wilson, one of the employes of the appellant company examined the telephone directory, and found therein the address of a W. L. Wilson, who, it appears, was a traveling salesman, and, upon inquiry, was informed that W. L. Wilson was in Houston, and that the telegram should be forwarded to him there; that this was immediately done, but later on the same day, Saturday, return from Houston was made to the effect that the telegram was not for W. L. Wilson, whereupon the Et. Worth operator telephoned the contents to the residence of W. L. Wilson, and, presumably, considered the message delivered. The evidence further tended to show that, if not on the evening of the same day, on the morning of the next day, Sunday, and several times thereafter, W. T. Wilson made inquiry at appellant’s delivery office in Et. Worth for the answer from Baker, then stating the importance of the expected telegram and of his probable damage in event of a failure to receive it, but on each occasion was informed that no telegram had been received for him. W. T. Wilson was well known -as a cattleman, having his name and address in the telephone directory, and at the time of depositing the original telegram to Baker noted thereon his telephone number. This evidence, particularly in the light of informar tion already in possession of the telegraph company, would undoubtedly, we think, have supported a recovery in appellees’ favor on the ground of the appellant’s negligence in its failure to deliver the telegram from Baker, regardless of the issue of negligence in its transmission, and we think appellant has no room to complain of the modified instruction objected to. See Western Union v. Holley, 55 Tex. Civ. App. 432, 119 S. W. 888; W. U. Telegraph Co. v. Reynolds, 140 S. W. 121; W. U. Telegraph Co. v. Waller, 37 Tex. Civ. App. 515, 84 S. W. 695; Bourland v. C., O. & G. Ry. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647.

What has already been stated, we think, sufficiently answers objections made to several clauses of the court’s charge referred to in the twelfth to the sixteenth assignments, inclusive.

The seventeenth to the twenty-first assignments of error relate to the action of the court in refusing special charges requested by appellant, but we find no error in any of these rulings. A Miss Hearn, one of appellant’s employes at San Angelo, received the reply message from Baker over the telephone from Sonora, in Sutton county, and the court, in his charge (whether correctly or not, we need not determine), clearly relieved appellant of negligence on her part, if there was any, in reducing the message to writing. There was no error, therefore, in refusing appellant’s special charge No. 4, instructing the jury to the effect that Miss Hearn, in so receiving the Baker message, and in so reducing it to writing, was the agent of Baker, and not of the appellant company.

Other special charges so far as proper were sufficiently comprehended in the court’s charge, and yet others were properly refused in view of the state of the evidence already given.

The contention that the verdict is excessive must also be overruled, as, in our judgment, the evidence fully supports the amount of the recovery, and believing, as we do, that the case was fairly presented to the jury, and that the evidence fully supports the material allegations of plaintiff’s petition, it is ordered that the judgment be affirmed.

Affirmed.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    BOBO v. WRIGHT.
    (No. 7271.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 13, 1915.)
    Judgment <§==>256 — Conformity to Verdict.
    Where plaintiff traded a horse to defendant for a horse of defendant warranted by him to bo sound, and sought to recover back his horse or its value, because of false representations, and tendered to defendant the horse. received from him, and defendant filed a cross-bill for the use of his horse while in possession of plaintiff, but requested no charge on the subject, a verdict for plaintiff determined all the issues, but a judgment for plaintiff should direct him to return the horse obtained from defendant.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <§=>256.]
    Appeal from Van Zandt County Court; C. B. Stanford, Judge.
    Action by S. M. Wright against J. T. Bobo. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    Wynne, Wynne •& Gilmore, of Wills Point, for appellant. M. G. Sanders and R. M. Lively, both of Canton, for appellee.
   RAINEY, C. J.

Appellee and appellant traded horses, the appellant representing his mare to be sound, which appellee believed to be true, and, so believing, the trade was made. Appellant’s mare proved to be unsound, and appellee sued in the justice court tO' recover back his horse or its value, $100, on the ground of false representations, caused a writ of sequestration to issue, and tendered back the mare. He recovered judgment in the justice court, from which appellant appealed to the county court, where appellee also recovered judgment, and appellant brings the cause to this court for review.

The evidence is conflicting; that adduced by each party being sufficient to support their respective contentions. So it became a question for the jury to determine which party was right, and, the jury having found for the appellee, we see no cause for reversing the judgment. The verdict of the jury was, “We, the jury, find for the plaintiff.” The judgment decrees the horse to appellee, and, he having replevied the horse, the judgment further quiets the possession in him, but says nothing about the mare. Nor does it say anything about appellant’s cross-bill for the use of the mare while in the possession of ap-pellee. Appellant requested no charge in regard to the mare, nor as to his cross-bill. There being no special charge requested by appellant, the verdict was sufficient to include a judgment against appellant on his cross-bill, and also on the issue of returning the mare. But we think the judgment on the verdict should have decreed a return of the mare to appellant. In view of appellee’s having tendered the mare by his pleading, the judgment will be reformed so as to include the return of the mare to appellant.

The judgment as reformed will be affirmed.

Affirmed.


author: WILLSON, C. J.

text:
    CARVER BROS. v. MERRETT et al.
    (No. 1430.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 15, 1915.
    Rehearing Dismissed April 1, 1915.)
    Appeal and Error <§=>80 — “Final Judgment” — Disposition op Issues.
    Where, in an action by an assignee of a claim against the debtor, as primarily liable, and the assignor, as guarantor of payment of the claim, the issue was whether the debtor was liable to the assignee, and the assignor prayed .for judgment over against the debtor in the event the assignee recovered against the assignor, a judgment for the assignee against the assignor for a specified sum and for the assignor against the debtor for a less sum, but without determining whether the debtor was liable to the assignee, was not a “final judgment,” and an appeal therefrom must be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494 — 509; Dec. Dig. <§=>80.
    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Appeal from District Court, Titus County; W. T. Armstead, Judge.
    Action by John Merrett and others against Carver Bros, and the Merchants' & Planters’ National Bank of Mt. Pleasant. There was a judgment for plaintiff against the defendant bank, and in favor of the bank against defendant Carver Bros., and the latter appeal.
    Dismissed.
    S. P. Pounders and J. M. Burford, both of Mt. Pleasant, for appellants. T. C. Hutch-ings, of Mt. Pleasant, and L. E. Keeney, of Texarkana, for appellee.
   WILLSON, C. J.

As shown in the opinion disposing of a former appeal of this cause (155 S. W. 633), the Merchants’ & Planters’ National Bank of Mt. Pleasant, one of the appellees, claiming that Carver Bros., the appellants, were indebted to it in the sum of $1,773.39 for money advanced by it to pay for cotton purchased by them, assigned its claim to Merrett, the other appellee, and guaranteed the payment thereof. The suit was by Merrett against Carver Bros, as the parties primarily liable for the payment of the debt, and against the bank as the guarantor of the payment thereof. In its answer the bank prayed for judgment over against Carver Bros, in the event Merrett recovered against it. The judgment from which this appeal was prosecuted'was in favor of Mer-rett against the bank for said sum of $1,-773.39, interest and costs, and in favor of the bank against Carver Bros, for the sum of $1,208.77, interest and costs. The issue made by the pleadings and testimony as to whether Carver Bros, were liable to Merrett or not was not determined; and, as the judgment therefore was not a final one, this court is without jurisdiction of the appeal. Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 840; Burch v. Burch, 28 S. W. 828; Otto v. Halff, 32 S. W. 1052; Bank v. Vander Stucken, 37 S. W. 170; Burrows v. Cox, 38 S. W. 50. This fact was overlooked at the time we undertook to dispose of the appeal by the opinion filed on the 4th day of last March. That opinion will be withdrawn, and the appeal will be dismissed, because this court is without power to hear and determine it.
      ⅞=>$⅛ otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    RUTHERFORD v. WHITE.
    (No. 1388.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 12, 1915.
    Rehearing Denied April 1, 1915.)
    Vendor and Purchaser <s=391 — Failure oe Consideration — Remedy oe Vendor.
    Where an agent negotiated for his principal the sale of a worthless note for land, the grantor could recover the land because of a total failure of consideration, and it was immaterial whether the agent, at the time of the negotiation, knew that the note was worthless.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 152; Dec. Dig. <S=91.]
    Appeal from District "Court, Franklin County; H. F. O’Neal, Judge.
    Action by J. L. Rutherford against B. B. White. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    R. T. Wilkinson and H. L. Wilkinson, both of Mt. Vernon, for appellant. J. H. Beavers, Jones & Jones, and W. G. Russell, all of Winnsboro, for appellee.
   LEVY, J.

The suit is by appellant to recover 100 acres of land conveyed to appellee on January 19; 1910, in trade or exchange, it is alleged, for a certain vendor’s lien note which, it is averred, proved in fact to be not genuine and worthless and against land not in existence. The defendant White answered that appellant conveyed the land to him in payment of agreed commissions as his agent in bringing about and effecting the trade or exchange of 340 acres of land for the note, and that defendant White had no interest in the note and knew nothing at the time of the real facts about the note, if invalid, and made no fraudulent representations respecting the note or the land. The verdict of the jury was in favor of appellee.

In view of the disposition of the appeal, it is deemed unnecessary to set out the evidence. Tlie testimony raised the issue of whether White, in effecting the exchange, was actiDg as the agent of appellant or as the agent of the purported owners of the alleged note. But, speaking strictly to the statement of facts of this particular record, it is not thought that the evidence authorizes the finding or makes an issue of White's ownership of or interest in the note itself.

The second clause of the third paragraph of the court’s charge authorized a verdict for appellant upon the finding by the jury that White negotiated the sale of the note as the agent of Lindsay, Rhone, and 1-Iair, and knew at the time that the note was worthless. Appellant by his sixth assignment of error predicates error upon the charge upon the ground that it makes appellant’s right to recover dependent upon actual notice by White, acting as the agent of Lindsay, Rhone, and Hair, and because it was in direct contradiction to paragraph 5 of the charge. It is thought that the fifth paragraph of the charge correctly stated the law applicable to the issue made by the evidence, and that the clause above mentioned of the third paragraph should not have been given. If White, as agent for Lindsay, Rhone, and Hair, negotiated the sale of the note for all the land, and the note be found as a fact worthless, then appellant could, as charged in the fifth paragraph, recover the land, for the consideration passing from appellant for the conveyance was the note and nothing else. In such instance appellant was not conveying for services rendered to make available innocent purchaser, which was not pleaded. This instruction, it is believed, entirely covers this particular phase made litigable in the facts. And it pertained to a total failure of consideration only. If there was a total failure of consideration, it is entirely immaterial, under the present •pleading and evidence, that the agent did not, at the time of' negotiating the trade, know that it was worthless. Therefore it was error for the court to submit at all the second clause of the third paragraph of the charge. It is thought that the error was injurious and constitutes reversible error. It is thought that the sixth paragraph of the charge complained of in the seventh assignment of error should upon another trial be omitted, as repetition.

The eleventh assignment of error complains of the' refusal to admit certain evidence. According to the bill of exception, the matters offered were exhibited to appellant by Lindsay and White at the time of the exchange. It was admissible as a circumstance, in connection with the other circumstances, bearing upon appellant’s reliance upon the genuineness of the note and the fairness of the transaction, as alleged to have been represented by White and Lindsay. It is not thought the other assignments present reversible error under the present record, and they are overruled.

Reversed and remanded.


author: HIGGINS, J.

text:
    FULLER et al. v. EL PASO LIVE STOCK COMMISSION CO. et al.
    (No. 409.)

    (Court of Civil Appeals of Texas. El Paso.
    March 11, 1915.
    Rehearing Denied April 1, 1915.)
    1. Appeal and Error <§=⅞699 — Exceptions— Special Instruction.
    Under Acts 33d Leg. c. 59, requiring that exceptions to the giving and refusal of special instructions appear in the record, assignments of error which complained of the refusal of special instructions requested by defendants, and of the giving of special instructions at request of plaintiffs, but which did not appear in the record, were properly overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. <©=>
    2.Appeal and Error <@=>230 — Exceptions— General Charge.
    Where the bill of exceptions to the overruling of defendants’ objections to the general charge failed to show affirmatively that the objections were presented to the court before the charge was delivered, the assignment of error predicated on the giving of the charge was properly overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@=>230; Trial, Cent. Dig. § 680.]
    3. Partnership <©=>336 — Damages — Evidence on Accounting.
    H. contracted to buy 15,000 head of cattle, at $17 per head, and assigned the contract to an association composed of plaintiffs and defendants. Defendants agreed to purchase 4,000 head from the association, delivered at California, receiving 3,200 head and breaching their contract with the association. Plaintiffs sued in accounting for profits on the cattle delivered to defendants. Held that, though plaintiffs were entitled to recover profits, the difference between the price at which the cattle were sold to California buyers, and the amount paid to the original seller, plus expenses incidental to delivery, since the evidence showed that, if the partnership had continued to operate and had filled its contracts with the California buyers, out of the 15,000 total of steers, there would have been a number of “cut-backs,” which neither buyers nor defendants could have been forced to take, evidence of the value of the cattle in Mexico, although inádmissible on the main point of damages, since the purchase from the original seller was at a fixed price, was nevertheless admissible to show the damage to the partnership on “cut-backs” caused by defendants’ breach of the partnership agreement.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dee. Dig. <©¿>336.]
    4. Appeal and Error <@=>1050 — Harmless Error-Evidence.
    The admission of immaterial and irrelevant evidence is no ground for reversal, unless it appears that injury resulted from its admission.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. <@=>1050.]
    5. Appeal and Error <@=>1032 — Harmless Error — Evidence.
    Where defendants in their brief failed to point out probable injurious consequences of the admission of incompetent evidence, the assignments of error predicated upon such evidence were properly overruled; since, by rule 62a of the Court of Civil Appeals (149 S. W. x), no presumption of injury arises from the mere fact of admission of incompetent evidence, and the burden rests on the party complaining to show probable injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. <@=> 1032.]
    6. Partnership <@=>336 — Evidence on Accounting.
    Where plaintiffs and defendants were in partnership for the sale of Jive stock purchased in Mexico, the defendants agreeing to receive and handle the cattle in El Paso, and where, when sued for an accounting on breach of the partnership agreement, defendants failed to pro- | duce any vouchers to show what had been the | expense of handling the 3,200 cattle delivered at El Paso, the admission of the testimony of a plaintiff as to what the expense of handling such cattle had been was proper; since the defendants, in accounting for the moneys received from the sale of the cattle, were entitled to deduct the expenses of handling.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <©=>336.]
    7. Partnership <@=>336 — Evidence on Accounting.
    Where plaintiffs and defendants were associated in a partnership for the sale of live stock bought in Mexico, in a suit for an accounting on breach of the agreement by defendants, evidence showing the amount lost by defendants on 3,200 head of cattle, which they had bought from the association at a fixed price, was inadmissible, as being wholly immaterial on the issue of what loss their own breach of contract had caused their copartners, the plaintiffs.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig.. <@=>336.]
    8. Appeal and Error <@=>499 — Exceptions— Requisites.
    Where the bill of exceptions taken to the exclusion of the evidence referred to in an assignment of error fails to state the objection to the action of the trial court, such action cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <©=>
    Appeal from District Court, El Paso County ; M. Nagle, Judge.
    Action by the El Paso Live Stock Commission Company and John T. Cameron against C. H. Fuller' and O. B. Fuller. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Beall & Kemp, of El Paso, and E. W. Freeman, of Los Angeles, Cal., for appellants. Coldwell & Sweeney and Walthall & Gamble, all of El Paso, for appellees.

       Writ of error pending in Supreme Court.

   HIGGINS, J.

The El Paso Live Stock Commission Company and John T. Cameron sued C. H. Fuller and O. B. Fuller for an accounting, and for damages which they allege they sustained by reason of an alleged breach of a certain partnership contract made and entered into by and between the parties, of date August 31, 1907.

On July 29, 1907, Charles F. Hunt and Luis Terrazas entered into a contract whereby Terrazas sold to Hunt 15,000 steers at the price of $17 gold per head, delivery to be made at Terrazas, Gusman, Gallego and Sauz, in republic of Mexico. By instrument dated August 31, 1907, Hunt a'ssigned his rights under this contract to O. B. Fuller, C. I-I. Fuller, John T. Cameron, and the El Paso Live Stock Commission Company, and by instrument bearing same date the Fullers, as first parties, and Cameron and said company, as second parties, entered into this agreement:

“Whereas, said Chas. F. Hunt did on the 29th day of July, 1907, buy from Don Luis Ter-razas, fifteen thousand head of four year old steers and up from the ranches of said Terra-zas, in the state of Chihuahua, Mexico, and the (parties hereto being desirous of associating themselves together for the purpose of buying, selling, and handling of said fifteen thousand steers, it is hereby agreed that for and in consideration of the assignment of said contract for steers to the above-mentioned parties, to hold and own equally, that said parties of the first part having furnished the ten thousand dollars gold heretofore paid as forfeit to said Terrazas, that they hereby agree to furnish sufficient money to execute and carry out said deal in such manner as may be determined by the parties hereto.
“It is further agreed herein that said Hunt shall be paid the additional sum of twenty-five cents gold per head by the parties of the first and second parts hereto on all steers bought under this contract as the same are received, that is to say, twenty-five cents, independent of the price fixed for said steers in Terrazas contract; otherwise all profits and losses shall be equally divided and sustained by parties hereto.
“Each party to this contract agrees to lend his personal services to the success of said deal, without extra compensation, and shall make no charges except for actual expenses incurred in carrying out the same.
“And, whereas, it has been agreed and provided that said parties of the first part shall buy and receive four thousand head of the steers mentioned in Terrazas contract, and, whereas, parties hereto are unable at this time to agree upon what price shall be charged up to the parties of the first part for same, it is hereby understood that the price of said four thousand steers shall be agreed upon and fixed by parties hereto, when first shipment of same shall have been made to El Paso. O. B. Puller shall receive all moneys and disburse same.”

The copartnership between the parties to this agreement will be hereafter referred to as the association.

The contract between Hunt and Terrazas required the former to make an advance pay-' ment of $10,000 to guarantee its completion, which sum was to be deducted from the purchase price of the 1,000 head last delivered. This money was furnished and paid by the Pullers.

The association began to carry out their copartnership agreement, and, in the course thereof, received of Terrazas several thousand head of steers. After proceeding therewith for some time, the Pullers breached the same, and refused further performance, and put an end thereto. Out of this partial performance and final breach this suit arose for an accounting and damages. The suit resolved itself as follows:

First. Of the 4,000 steers which the Pullers contracted to buy from the association they received approximately 3,200. The agreed price therefor was $28.50 per head. Prom this price was to be deducted the $17 paid Terrazas and various items of expenses. Plaintiffs averred that their half of the profits to the association upon the 3,200 head sold to the Pullers was $4,814.

Second. Three thousand two hundred and thirteen other head of steers were received by the Pullers under the copartnership agreement, and by them sold. Plaintiffs averred that the profits arising therefrom were $9,-000, of which they were entitled to one-half.

Third. The breach of the contract to receive and handle the entire 15,000 head was then averred, and consequent damage to plaintiffs in sum of $8,583 was averred, and recovery thereof sought.

It was averred that the $10,000 paid to Terrazas to guarantee performance of the Hunt contract had been lost to the association by reason of defendant’s breach of contract, wherefore plaintiffs asked that in the accounting the Pullers be not credited with this $10,000. Yerdict was returned and judgment rendered in favor of plaintiffs for $4,518.44.

Various assignments complain of the general charge, the refusal of special instructions requested, and of special instructions given at the instance of plaintiffs. No exceptions appear in the record to the giving and refusal of special instructions as required by chapter 59, Acts 33d Legislature, and the bill taken to the overruling of the objections filed to the general charge fails to affirmatively show that the objections were presented to the court before the charge was read to' the jury. Por the reasons indicated, the assignments in question are overruled. Railway Co. v. Fogleman, 172 S. W. 558; Railway Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974.

Error is assigned to the admission of evidence as to the value of certain of the cattle at the shipping stations in Mexico. As to 4,000 head, it will be noted from the foregoing statement,. the Pullers agreed to purchase same from the association at $28.50 per head, delivered at Betteravia, Cal. The remaining cattle the association contracted to sell at a fixed price per head to the Western Meat Company and Los Angeles Butchers. The Pullers received approximately 3,-200 head under their contract of purchase, and the Western Meat Company and Los An-geles Butchers received all of the remainder which the association received under the Ter-razas contract. Evidence of the value of the cattle in Mexico would thus seem to be immaterial and irrelevant, as it would throw no light upon the measure of plaintiff’s damage. In their accounting for profits upon the cattle delivered to the Pullers and the Western Meat Company and Los Angeles Butchers, they would be entitled to recover the difference between the price at which they were sold and the amount paid to Ter-razas, and for expenses incident to delivery. The same rule would apply as to the profits lost through the breach of the contract and refusal upon the Pullers’ part to finally consummate it.

But, from the court’s qualification to the bills of exception, it seems that at the time the testimony was admitted the evidence showed or tended fo show that, had the association continued to operate under the partnership contract, and had they filled their contracts with the Meat Company and Los Angeles Butchers and the Pullers, as far as said association could, out of said 15,000 Lead of Terrazas steers, then there would still have been a very considerable number of said 15,000 steers known as “cut-backs” on the hands of.said association, which neither the said Los Angeles Butchers, the Meat Company, nor the Fullers would be required to take. In the light of this qualification, the evidence was properly admissible for the purpose of showing the damage to the association upon “cut-backs” arising from Fuller’s breach of the copartnership agreement.

But, if it be conceded that the evidence was immaterial and irrelevant, this, of itself, affords no ground for reversal, unless it appears that injury resulted from its admission. This is the rule with reference to the admission of incompetent and irrelevant evidence. Railway Co. v. Hume, 87 Tex. 211, 27 S.W. 110; Railway Co. v. Shifflet, 56 S. W. 697; Railway Co. v. Eckles, 25 Tex. Civ. App. 182.

No presumption of injury in such ease now arises in view of Court of Civil Appeals rule 62a (149 S. W. x)—Wells Fargo & Co. v. Benjamin, 165 S. W. 120; Railway Co. v. Geary, 169 S. W. 201—and the burden rests upon the appellant of showing probable injury resulting from the erroneous admission of the evidence. It may be that the evidence in this ease amply warranted the jury in finding a verdict against the Fullers for profits upon the 3,200 head received by them at $28.50 per head and the 3,213 head sold to the Western Meat Company and Los Angeles Butchers. Appellants in their brief do not undertake to point out any probable injurious consequence resulting from the admission of the alleged incompetent evidence. Injury will not be presumed to have resulted from the admission of this evidence, from which it follows that these assignments directed against its admission must be overruled.

Error is also assigned to the admission of testimony of J. T. Cameron as to the expense incident to the delivery of the 3,213 head of cattle at El Paso. The court’s qualification to the bill shows that, when this testimony was admitted, the defendants had not produced in court any vouchers or other evidence showing what had been the expenses of handling said 3,213 head of cattle, and, as defendants had received the proceeds of the sale of said cattle, and were entitled to deduct therefrom the original purchase price and the expenses of handling same, the court admitted the above evidence as tending to show what sums C. H. and O. B. Fuller would be entitled to deduct as expenses of handling said cattle. The evidence was properly admitted for the reason indicated in the qualification.

There was no error in excluding evidence showing the amount lost by the Fullers on the 3,200 head which they bought from the association at $28.50 per he.ad. Theyj bought these cattle from the association at a fixed price, and the profits or losses to them arising out of this purchase were wholly immaterial.

The bill of exception taken to the exclusion of the evidence referred to in the eighth assignment does not state the objection made to the same. In such case the action of the trial court cannot be reviewed. Railway Co. v. Jarrell, 86 S. W. 632; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 781; Bank v. Smith, 160 S. W. 311; Railway Co. v. Holzer, 127 S. W. 1062; Bank v. Pearce, 126 S. W. 285; Porter v. Langley; 155 S. W. 1042.

■ Affirmed.
      ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBTJRY, J.

text:
    ADAMS et al. v. ZELLNER.
    (No. 6812.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 27, 1915.
    Rehearing Denied April 3, 1915.)
    1. Mortgages <⅞=^374 — Sale under Trust
    Deed—Validity.
    A recital in deed executed by a trustee in a. trust deed that public • notice of the time, place,_ and terms of sale was made by posting a notice on the courthouse door does not make the deed void for want of notice, as required by the trust deed, stipulating for notice in accordance with the law regulating sales under trust deeds, though it be conceded that the recital was notice to the' purchaser of as much as the recital imported, but the purchaser may show that the trustee gave the required notice.
    TEd. .Note.—For other cases, see Mortgages, Cent. Dig. §§ 1118-1123; Dec. Dig. <S=>374.]
    2. Mortgages <s=3356—Sales under Trust Deed — Notice — Statutory Provisions — Compliance.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3751, 3757, 3759, provide that sales under trust deeds shall be made after giving 20 days’ notice, by posting notice in three public places, one of which shall be at the. courthouse door, and by giving notice to the grantor in person or by mail. A trustee in a trust deed, which stipulated for notice of sale in accordance with the law, posted a notice on the courthouse door and mailed a notice to the grantor, who received it, and mailed two notices to third persons with the request that the same be posted in public places, but the trustees did not know whether the third persons actually posted them. Held, that though the trustee’s deed recited the posting of a notice at the courthouse door, the evidence justified a finding of compliance with the law.
    TEd. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dec. Dig. ⅞=»856.]
    Appeal from District Court, Hill County; B. Y. Cummings, Special Judge.
    Action by David W. Adams and another against J. H. Zellner.. From a judgment for' defendant, pláintiffs appeal.
    Affirmed.
    Chas. L. Black, of Austin, for appellants. Morrow & Morrow, of Hillsboro, for appellee.
   RASBTJRY, J.

Appellants sued appellee in the court below in trespass to try title to recover 265 acres of land out of the W. F. Savage survey in Hill county, Tex. At trial the court instructed verdict for appellee, which was returned accordingly, and upon which judgment was entered that appellants take nothing by their suit, and that appellee have judgment for costs, and from which this appeal is taken.

The facts essential to a disposition of this appeal, and practically undisputed, are, in our own language, substantially as follows: Appellants being the owners of the land sued for on July 3i), 1907, executed a deed of trust thereon, which was properly recorded in Hill county, conveying same to Herman Eastland as trustee to secure an indebtedness therein described, due Baggott & McCormick, and conferring upon the trustee the powers usually conferred by such conveyances, among such being the provision' that before a sale of the property under the deed of trust for failure to pay the debt secured thereby could be lawfully made, the trustee should give 20 days’ notice of the time, place, and terms of sale, “in accordance with the laws of the state of Texas regulating sales of real estate under deeds of trust.” Subsequent to the execution of the deed of trust, and on October 6, 1908, the trustee, as such, conveyed the land to J. J. Baggott, reciting in the conveyance that appellants defaulted in payment of the debt secured by the deed of trust, the demand to sell, and the time and place of sale, and, among others, the following recital with reference to the notice given:

“I proceeded to sell said property at public auction at Hillsboro, Hill county, Texas, between the hours of 1Ó a. m. and 4 p. m. on the first Tuesday, the sixth day of October, 1908, after having given public notice' of the time, place and terms of such sale by posting a public notice on the courthouse door, Hill county, Texas, as required by said trust deed.”

Preliminary to the sale the trustee personally posted the notice of the sale recited in his deed to Baggott at the courthouse door in Hillsboro, Hill county, Tex. He also forwarded a notice of the sale to appellant, David W. Adams, by registered mail at Prairie Grove, Ark., which Adams received. One notice was mailed to some one at Whitney, and the other to some one at Hubbard, or Itasca, Tex., with the request in each instance that the notice be posted. All the places named are in Hill county and are public places. At trial the trustee could not recall to whom he mailed the notices, *and did not, as matter of fact, know whether the persons to whom he sent them actually posted them. The notice posted by the trustee, ajid those sent out for posting, were in time to give notice for more than 20 days prior to the day of sale, if in fact, posted. On July 26, 1909, Baggott conveyed the land to appellee, Zell-i uer, in consideration of 81,240 cash.

The first and cardinal issue presented by the appeal is the appellants’ contention that the sale by the trustee is void for want of notice, and that, by reason of the recitation in the deed from the trustee to Baggott that but one notice was posted by the trustee, appellee took the land with knowledge that the sale under the trust deed was void for want of notice. Conceding that the recitation in the deed was notice to appellant of as much as the recitation imported, we nevertheless conclude that the sale by the trustee was not void, but that those whose title was derived through the sale by the trustee might show, notwithstanding the recitation, that the trustee had in fact given the notice required by the terms of the deed of trust.

The notice required by the deed of trust under discussion was that required by the law regulating the sale of real estate under deeds of trust as prescribed by articles 3759, 3757, and 3751, Vernon’s Sayles’ Texas Civil Statutes 1914, the substance of which is that except in unorganized counties and where the notice is published in a newspaper, such sales shall be made in the copnty where the real estate is situated on the first Tuesday in any month, between the hours of 10 o’clock a. m. and 4 o’clock p. m., after giving at least 20 days’ successive notice thereof by posting written notices thereof in three public places in the county, one of which shall be at the courthouse door of said county, and by giving defendant or his attorney written notice of such sale, either in person or by mail. We have detailed, at another place in this opinion, what was actually done by the trustee in making the sale. The steps taken or the notice given, in our opinion, show full compliance with the statutory provisions, as recently construed by the Sixth Court of Civil Appeals and the Supreme Court in the case of Roe v. Davis, 142 S. W. 950; Id., 172 S. W. 708. In that case facts practically identical with those in the instant case were held sufficient to show compliance with the statutory provisions relating to the notice to be given. The only material difference in the facts is that in Roe v. Davis, supra, the trustee’s deed recited that the law had been fully complied with in the matter of giving notice; while in the instant case the trustee’s deed recited that the notice required by law had been given “by posting a public notice on the courthouse door,” etc. The recital in the one case was the conclusion of the trustee that his undisclosed acts were a compliance with the law, and in the other a recital that the law was observed, followed by a recital of facts which in law were insufficient to show such compliance. In Roe’s Case testimony was admitted, despite the recital in the deed, to show what in fact was done, and we are unable to see why a different rule should apply to a recital in a deed which attempts to recite the facts, but fails to disclose all of them. If oral testimony is admissible to prove what in fact was done with reference to giving notice, where none of the facts are stated, then we think it equally clear that such evidence is admissible to show that the facts recited, if insufficient, do not constitute all that was done.

It being then in such cases a matter of proof whether the notice required by law has been given, and conceding, as urged by appellant, that the recital in the trustee’s deed that but one notice had been posted rebutted the presumption of regularity that ordinarily obtains when the deed is in regular form and purports to be the execution of a power conferred in the trust deed, we nevertheless conclude that the court did not err in not submitting to the jury the issue of whether the necessary notice had been given, for the reason that, as we have said, facts practically identical were held in Roe’s Case to show compliance with law, and, being the only facts and the undisputed facts, the issue was established, and it but remained for the trial judge to apply the law arising thereon.

For the reasons stated the judgment is affirmed.
      <S=s>For otüer cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes