author: PLY, C. J.

text:
    CLOSNER et al. v. CHAPIN.
    (No. 5308.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1914.
    On Motions for Rehearing by appellants and appellee, July 1, 1914.)
    1. Venue (§ 22) — Plea oe Privilege.
    Where a defendant was in court on the petition of plaintiff and on a cross-petition of a codefendant, and an amended cross-petition presented after satisfaction of plaintiff’s claim merely repleaded the cross-petition, the plea of defendant’s privilege to be sued in another county was properly overruled.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    2. Deeds (§ 145) — Conditions—Forfeiture.
    A deed whereby the grantor, in consideration of a nominal sum and of the grantee’s assumption of the grantor’s debts, conveys real estate unconditionally, and a contemporaneous contract by which the grantees bind themselves to pay all the debts connected with or arising out of the property, when construed together, as they must be, vests in the grantees the property, and the agreement to pay the debts is a covenant and not a condition, and a breach thereof does not worls: a forfeiture of the conveyance.
    [Ed. Note. — Por other cases, see Heeds, Cent. Dig. § 471; Dec. Dig. § 145.]
    3. VENDOR AND PURCHASER (§ 253) — LIEN OF Vendor — Failure to Retain — Effect.
    A deed which does not retain a vendor’s lien evidences an executed sale, and the title passes to the grantee.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-640; Dec. Dig. § 253.]
    4. Covenants (§ 107) — Construction — Assumption by Grantee of Grantor’s Debts.
    An assumption by a grantee of the debts of the. grantor does not give the grantor a right of action unless the grantee has refused to pay the debts and the grantor has paid them or some of them.
    [Ed. Note. — Por other cases, see Covenants, Cent. Dig. §§ 173, 174; Dec. Dig. § 107.]
    5. Covenants (§ 26) — Construction — Assumption by Grantee of Grantor’s Debts.
    A contract whereby a grantee, in consideration of an unconditional conveyance, assumes the debts of the grantor incurred either individually or jointly with others in connection with the properties conveyed, as set forth in a list, is a divisible contract, and the grantor may only recover for such damages as may arise from the payment by him of any debt the grantee fails to pay.
    [Ed. 'Note.- — Por othér cases, see Covenants, Cent. Dig. § 25; Dec. Dig. § 26.]
    6. Indemnity (§ 11) — Construction of Contract-Assumption by Grantee of Grantor’s Debts.
    A contract whereby a grantee assumes the debts of the grantor is one of indemnity, and a mere delay of the grantee in the payment of debts does not support an action by the grantor sustaining no damage by the delay.
    [Ed. Note. — Por other cases, see Indemnity, Cent. Dig. §§ 21-25; Dec. Dig. § 11.]
    On Motions for Rehearing by Appellants and Appellee.
    7. Judgment (§ 251) — Conformity to Pleading.
    A petition, in an action by a grantor against the grantee assuming, as a part of the consideration, to pay the grantor’s debts, which seeks to recover the value of the land conveyed, and which does not seek a recovery of any of the debts paid by the grantor, and which merely sets forth a payment of a debt by the grantor to show a breach by the grantee of the contract and not as a basis for the recovery of the amount paid, does not justify judgment for the grantor for the amount of the debt paid.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    8. Damages (§ 71) — Breach of Contract-Measure of Damages — Attorney’s Pee.
    The payment of an attorney’s fee caused by breach of contract is not an element of actual damages for the breach.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 146, 153; Dee. Dig. § 71.]
    9. Damages (§ 71) — Breach of Contract-Measure of Damages — Attorney’s Pee.
    A grantor suing for a rescission on the ground of the grantee’s breach of contract to pay the debts of the grantor, assumed as a part of the consideration of the conveyance, may not recover attorney’s fees incurred in the action.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 146, 153; Dec. Dig. § 71.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Clark & Bliss against D. B. Chapin and against John Closner and another, in which defendant Chapin filed an answer admitting the claim against him and filed a cross-action against codefendants John Closner and another. Prom a judgment for defendant D. B. Chapin against codefendants, both parties appeal.
    Affirmed in part, and reversed and rendered in part.
    Jas. B. Wells, of Brownsville, Ball & Seeligson, of San Antonio, Joseph K. Wells, of Brownsville, and C. W. Trueheart and T.
    T. VanderHoeven, both of San Antonio, for appellants. T. J. Newton, of San Antonio, John T. Duncan, of La Grange, and Don A. Bliss, of San Antonio, for appellee.

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

       Application for writ of error pending in Supreme Court.

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

   PLY, C. J.

Clark & Bliss, attorneys at law, filed suit against D. B. Chapin, who will be designated as appellee, although he is also an appellant, John Closner and W. P. Sprague, known herein as appellants, and the Chapin Townsite Company, to recover a fee of $2,00.0 and $66.90 expenses; said fee and expenses accruing in connection with a receivership case in Payette county, Tex. Chapin filed an answer admitting the claim against him and filed a cross-action against Closner and Sprague for damages in the sum of $646,276 and for a foreclosure of a lien on certain property described therein. The court sustained special exceptions to 8 of the 26 paragraphs of the cross-action. The court, having tried the cause without a jury, recited in the decree that Clark & Bliss had been paid in full and adjudged that appellants should pay ap-pellee $100 damages arising out of the forced sale of a tract of appellee’s land, and' that the Chapin Townsite Company should be dismissed from the suit.

The greater portion of the cross-action is devoted to a narrative of the relations existing between appellants and appellee which led up to certain written instruments whereby appellee sold and conveyed to appellants his interest in certain lands in Hidalgo county, all of his stock in the Chapin Townsite Company and in the Valley Reservoir & Canal Company, and all of his interest in a certain railroad property known as the San Antonio & Rio Grande Railway Company. In consideration of that conveyance, appellants bound themselves to pay all of Chapin’s indebtedness “incurred either individually or jointly with others in connection with said properties at any time and bind ourselves and each of ns to save and hold harmless the said Chapin as to said indebtedness”; and, after the indebtedness and all reasonable expenses had been paid, they agreed to pay appellee Ms proportion of tlie profits.arising from tlie property. A list of tlie debts for wMcli they became liable was set out in the agreement; one of them being a note for $2,-000 in favor of J. W. Johnson. The contracts were executed separately at the same time and place.

On May 1,1913, appellants paid the full amount of the attorney’s fee sued for by Clark & Bliss, and it was accepted by them in full for all of their claims. Before the money was paid and accepted, the court had sustained demurrers to a cross-action by Cha-pin against Closner and Sprague, and there was, at the time of payment of the money and its acceptance, no further cause of action on the part of Clark & Bliss pending against appellants, which fully appears from an order of the court which recites all the facts concerning the matter. After this full settlement appellee filed what is denominated “Defendant D. B. Chapin’s First Amended Original Answer and Plea Over Against his Codefendants, John Closner and W. F. Sprague.” Appellants were in court on the cross-bill as well as on the petition, and as the amended cross-bill did not set up a new cause of action, but merely repleaded the old one, the plea of privilege to be sued in Hi-dalgo county was properly overruled. Kendall v. Hackworth, 66 Tex. 499, 18 S. W. 104.

It is somewhat difficult to ascertain the true nature of the cross-action. There is a prayer for damages, but it is clearly indicated in the pleading that appellee desired a rescission and did not pray for “his interests in the properties in specie” because they had been incumbered with mortgages. The effect of the pleadings would be a rescission, for there is a prayer for the full value of the property, less the debts that had been paid and the expenses that had been incurred. It not only had the effect of rescinding the contract, but of forcing a cash payment for property that had been sold to appellants, incumbered with the burden of paying for an indefinite time a certain proportion of the profits realized from the property. We are of opinion that the suit is, to all intents, one for rescission.

The deed given by appellee was unconditional in its terms, conveying the property to appellants; the consideration recited being ?1 and the assumption by appellants of all the indebtedness of the grantor. It had the effect of investing the title to the property in the grantees and creating an equitable lien on it in favor of the creditors of the grantor at the same time that the grantees became personally liable for the debts. This would be true although the grantees had not signed the deed as contracting parties, but had taken possession of the property. In this case, however, there was the execution of a contemporaneous agreement by which appellants bound themselves to pay all debts connected with or arising out of the property, and this of course made the grantees liable for such debts. The two instruments must be construed together. Courts are inclined to construe such provisions in deeds as covenants rather than conditions, whenever it can be done so, because forfeitures are not favored, and the violation of a covenant results in a recovery of damages, while the breach of a condition forfeits the estate. If the deed was made on the conditions set out in the agreement, the failure of any one of the conditions, however trivial it might be compared- to the property conveyed, would work a forfeiture of the estate. The law would not favor such a construction unless it was plainly designated or clearly inferable from the language of the two instruments. Rawson v. School District, 89 Mass. (7 Allen) 125, 83 Am. Dec. 670; Ayer v. Emery, 96 Mass. (14 Allen) 67. In the case last cited the Supreme Judicial Court of Massachusetts held:

“Taking the deed and the lease as one instrument, intended to embody the agreement of the parties as to the possession and enjoyment of the premises therein described, they are susceptible of the construction that the grantor of the tenant intended to rely on the personal covenants of the latter to fulfill the various stipulations set out in the two instruments, and not make his grant conditional on their performance. It certainly is not reasonable to suppose that the parties intended that a failui’e to fulfill any one of the many stipulations which entered into the consideration of the grant, however trivial or unimportant, should work a forfeiture of the estate; and yet such' would be the result, if the deed is construed as a grant on condition.”

That was said in a case in which it was stated in the deed that the consideration was certain cash and the performance by the grantee of “all the agreements on his part contained in an indenture hereto annexed or written on the other half of this sheet.”

In this case the deed contains no conditions and does not reserve any lien, but is a plain, unequivocal deed to the property; the consideration being the promise of payment of the debts of the grantor.

The vendor’s lien not being expressly retained in the deed, it evinced an executed sale, and the title to the property passed to the grantees therein. Baker v. Compton, 52 Tex. 252. In that case, after stating that all the cases cited by the appellees were those in which a vendor’s lien was expressly retained, the court said:

“In the opinion of the writer, the decisions of this court show a broad line of demarkation between such case and the one at bar, holding that the former are executory contracts, in which the superior title remains in the vendor, but classing the latter as executed contracts, in which the vendor has parted with his title, and has only the implied vendor’s lien for the unpaid purchase money.”

The case has been often approved. Rindge v. Oliphint, 62 Tex. 682; Ransom v. Brown, 63 Tex. 188; Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Lipscomb v. Fuqua, 55 Tex. Civ. App. 535, 121 S. W. 193; Buckley v. Runge (Civ. App.) 136 S. W. 533.

It follows, from the authorities cited, that appellee could not prosecute a suit for rescission, and, while he did not in terms institute such a suit, his action, to all intents and purposes, amounted to an action to rescind, because he sued for the full value of the property and represented that he would have sued for the property in specie, had it not been for the creation of certain mortgages. It was in effect a suit for the forfeiture of the deed.

The immense damages sought to be recovered had no basis whatever in the pleading. Appellee did not allege that he had been compelled to pay any of the debts against which he was indemnified by appellants, but, on the other hand, it is apparent from the pleadings that he had not paid off any of the debts. The assumption by appellants of appellee’s debts gave him no right of action against them, unless they had refused to pay the debts and appellee had paid them or some of them. This principle is established, not only in Texas, but in other states. Gunst v. Pelham, 74 Tex. 586, 12 S. W. 233; Thomas v. Ellison, 102 Tex. 354, 116 S. W. 1141; Lappen v. Gill, 129 Mass. 349; Ayers v. Dixon, 78 N. Y. 318; Gregory v. Green (Civ. App.) 133 S. W. 481; and same case 142 S. W. 999. The case of Gregory v. Green, decided by this court, is directly in point, and it was held therein:

“Plaintiff had no right of action against defendant until she paid the notes, in whole or in part, either in money or with her property. According to the petition, defendant’s undertaking was to pay off the notes and leave plaintiff’s other lot clear, and this contract was not breached in such manner that plaintiff could maintain an action against defendant thereon, until the trustee’s sale which deprived her of her remaining lot.”

We have seen no case in Texas that is in conflict with the cases herein cited, and, on the other hand, in the latest enunciation of the Texas courts the cases of Gunst v. Pelham and Gregory v. Green are approved; the court holding:

“In our state, however, contracts to pay the debt of another are treated as contracts of indemnity only, and it is held that one complaining of the breach of such a contract must, in order to show himself entitled to recover, show that he has paid the debt in controversy.”

The court, speaking of the Gunst-Pelham Case, said:

“We have not found where the authority of this decision has been disturbed. On the contrary, it has been cited and followed in a later case by the Court of Civil Appeals for Fourth District.” Bank v. Wallace, 161 S. W. 957.

It may be added that the Gunst-Pelham Case has been cited with approval in the case of Thomas v. Ellison, herein cited. The point is too well settled by the courts of Texas to justify further discussion.

As hereinbefore stated, if this is treated as a suit for damages, and not for rescission, and if the contract is considered as being entire and not divisible or separable, the pleadings fail to set up any damages further than the $100 allowed by the court. An analysis of the paragraphs of the cross-action, to which exceptions were sustained, will show the correctness of this view.

The nineteenth paragraph of the cross-action alleged the failure of appellants to pay off a note for $4,000, executed by G. B. Brown and secured by a mortgage on certain property, not included in the property sold by ap-pellee to appellants; the appellee had an opportunity to sell the land to one Stewart, but failed to do so because the debt of Brown was not paid, and that he had to discount other paper in order to lift the mortgage, and thereby lost $800. There is no allegation that any one was seeking to enforce the collection of the note, or that its time of payment had not been extended, or that appellee paid it off, or, if he did, that he had not been repaid. If it had been paid off, appellee would probably have alleged damages in the amount of the note, principal and interest, but he laid as his damages the sum of $800, which arose in some manner not revealed by appellee. The paragraph was too vague and indefinite to form the basis for an action for damages, and a demurrer to it was properly sustained. Paragraph 20 is open to the same objection. There is no allegation of the failure to pay any debts or to do or not to do anything that might form the basis for damages, and no demand is made for an accounting by appellants.

Paragraph 21 of the cross-bill is so general and indefinite as to be incapable of upholding an action for damages. How appellants were “juggling” with the property does not appear, nor is it alleged that $35,000 was not a fair price for the railroad property, nor that the interest of Yoakum in the land was not fully worth the interest in the railroad, nor that appellee was in any manner damaged by the sale of the railroad.

There is not one word in the twenty-second and twenty-third paragraphs of the cross-bill that tends to indicate that appellants will attempt to defraud appellee out of the value of anything or in any wise injure or damage him. There is nothing alleged indicating any breach or intended breach of the contract, and there is no basis laid in the pleadings for the damages claimed by appellee. The evidence indicated that appellants had paid the Johnson and the Brown claims.

As hereinbefore indicated, the facts pleaded indicate that this was a divisible contract, and that appellee could only recover for such damages as might arise from the payment by him of any debt that appellants had failed and refused to pay.

The case of Batsell v. Bailway, 4 Tex. Civ. App. 580, 23 S. W. 552, so strongly relied upon by appellee to sustain his position that the contract was an indivisible one, has been given a careful perusal and thorough investigation, and it is undoubtedly the law of the case made by its facts, m that case Batsell paid his money on condition that the road was built, equipped, established, and operated ; that engine houses and machine shops should be built in Sherman; and that Sherman was to be made the end of the division. These were clearly conditions, and the breach of either of them worked a forfeiture of the contract, and the court, through Judge Rainey, very properly held that the contract was an entirety. It has no application to the facts of a case in which a deed is made to land, no lien being reserved, and a separate promise is made by the grantees to do certain things. The case of McFarland v. Lyon, 4 Tex. Civ. App. 586, 23 S. W. 554, is a similar one to the Batsell Case.

The case of Hearne v. Garrett, 49 Tex. 619, is not applicable. In that case it was held that, where a man was employed to perform stipulated work or labor for a specified time and is wrongfully prevented from doing the work or laboring the stipulated time, the employé may treat the contract as abandoned. It does not fit this case.

In the case of Hochstader v. Sam, 83 Tex. 464, 18 S. W. 753, it was held that Sam had bound himself and assistant, and the failure to keep the assistant at work was a breach of the contract by him. Of course it was because the service of the two men was the whole essence of the contract, and especially that of the assistant. The case has no application to the facts of this case.

In the ease of Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302, the plaintiff had made a renunciation of the contract before the time when the defendant was to perform, and it was held that the plaintiff could not in that manner put an end to the contract, and that the plaintiff could not recover damages in such case. It is not in point in this case.

The cases from other states, that are cited, that were accessible, are no more in point than the Texas cases. Take, for instance, the case of Kokomo Strawboard Co. v. Inman, 134 N. Y. 92, 31 N. E. 248, in which it is held that where the plaintiff contracted to furnish defendant 1,200 tons of straw-board during the year 1888, or 90 days acceptance from date of invoice, and plaintiff made deliveries and took deféndant’s notes for same instead of acceptances, held, that a failure to pay breached the contract, and plaintiff could treat it as terminated and sue on the notes given for the partial deliveries. There is nothing therein that militates against the proposition that the contract between appellants and appellee was a sever-able one, and that the delay or failure in the payment of one or more debts would not work a cancellation or forfeiture of the whole, and that the measure of damages for failure to pay a debt would be the amount paid by the debtor to the creditor. The law does not favor the destruction of a contract which reasonably can be held to be severable in its nature. Appellee had no cause of action for a failure to pay any one or more of its debts except one for damages and those confined to the amount of the unpaid debts. So. Tex. Tel. Co. v. Huntington, 104 Tex. 350, 136 S. W. 1053, 138 S. W. 381.

As said in the case of Mayer v. Swift, 73 Tex. 367, 11 S. W. 378:

“The deed * # * is' an absolute and unqualified conveyance of the land upon a valuable consideration shown upon the face of the deed to be unpaid, but no lien is reserved or condition expressed upon the face of the deed. If the only issue presented * * * to the jury had been whether the deed was fraudulently obtained, and the verdict had been in favor of the plaintiff, and the judgment had been for its rescission and the restoration of the land to the plaintiff, we would find no ground in this record for setting it aside. If, on the other hand, there was no fraud in obtaining the deed sufficient to justify it being set aside, then we do not think the failure to pay the consideration or comply with its terms subsequently furnish any grounds for rescinding it.”

Galling the suit one for damages when the effect is the same as a suit for a rescission, with the added penalty of compelling the grantees to pay for the property at a valuation fixed by the grantor, cannot make a loophole of escape from the law as announced in the quotation. The whole intent of the action was to destroy the contract made by the parties and in truth and in fact obtain a forfeiture of the title.

We think that, the case having been properly brought into court through the original suit of Clark & Bliss, the court had jurisdiction to render the judgment for $100 in favor o'f appellee.

Appellee insists that he has lost money by the failure to promptly pay the Johnson and G. P. Brown debt, but how does not appear. He has not paid off and discharged either of the debts, and he fails to show how he has been damaged in connection with the debts. . In fact it seems the debts have been paid by appellants. No damage has resulted to him, and he will not be permitted to destroy his contract merely because there has been some delay in the payment of some of the debts. This was a contract of indemnity, and as said by the Supreme Court of the United States in the case of Wicker v. Hoppock, 73 U. S. (6 Wall.) 94, 18 L. Ed. 752, relied on by appellee:

“In that class of cases obligee cannot recover until he has been actually damnified, and he can recover only to the extent of the injury he has sustained- up to the time of the institution of the suit.”

This class of contract is pronounced in Texas to be one of indemnity, and it is on that point that the difference in the Texas ruling and that of the United States Supreme Court occurs. Bank v. Wallace, 161 S. W. 957, in which writ of error was refused by the Supreme Court.

The judgment is affirmed.

On Motions for Rehearing by Appellants and Appellee.

Appellee has attached to his motion for rehearing a copy of the pleadings in the Bat-sell Case, and it is insisted that this court has overruled that very important case. We hold that the principles announced in the Batsell Case are correct and well established, but they have no applicability to the facts alleged in this case. It is denied that Bat-sell paid his subscription on condition that the railroad “was built, equipped, established, and operated, that engine houses and machine shops should be built in Sherman, and that Sherman should be made the end of the division”; but Judge Rainey, who wrote the opinion, thought so, for he says:

“A contract was made by which the railroad company bound itself to establish, equip, and operate said road, build engine houses and machine shops in the city of Sherman, and to make Sherman the end of a division of said road.”

This court has not held that the Batsell contract was not entire, but we agree with the opinion that it was entire. We do hold, however, that a different character of contract is presented in this case, and that it is under all rules of construction a severable contract The ease of Tinsley v. McIlhenny, 30 Tex. Civ. App. 352, 70 S. W. 793, is not at all in point in this case, and this court thoroughly agrees with the opinion in that case. The same may be said of Browne v. French, 3 Tex. Civ. App. 445, 22 S. W. 581. In each of the last two cases mentioned, the parties had assumed the payment of a single debt, and had failed to pay it, and judgment had been rendered against the makers of the debts, and of course the parties who had assumed the debts were liable. There is no merit in appellee’s motion, and it is overruled.

We sustain the contention of appellants that, while appellee alleged the circumstances under which he paid out $100 for attorneys’ fees, yet he did not pray for a judgment for that sum, but sought to recover nothing but the value of the properties conveyed by him to appellants. The pleadings as to the $100 are as follows:

“Upon threatening to bring suit against him, the said Closner conveyed back to this. defendant this defendant’s half interest in said land; but this defendant had already incurred an expense of, to wit, the sum of $100, by reason of the said failure of the said defendants to pay said judgment, and by reason of the sale of his said half interest in said land, and by reason of the abstracting of said judgment in the way of a reasonable fee to such attorney and his reasonable expenses.”

The matter as to the attorney’s fee was pleaded in order to show a breach of the contract and not as a basis, for a recovery of that amount. This clearly appears from succeeding allegations and the prayer.

Section 25 of the cross-action is:

“This defendant avers that the reasonable cash market value of his interests in all of said properties that were conveyed by him to the said Closner and Sprague in consideration' of their agreements and promises, as hereinbefore set forth, was the sum of $646,276 at the time he so conveyed the same.”

The prayer is:

“Premises considered, this defendant prays that he have judgment over against the said Closner and Sprague for the said sum of $646,-276, less the amount of any debts and reasonable expenses incurred in paying said debts that they may . have paid and incurred under the. terms of said contract, for a foreclosure of a lien on the said interests in said properties conveyed by this defendant to said Closner and Sprague, and this defendant also prays for general relief, together with his costs.”

Appellee sought to recover, the value of the land, and did not seek a recovery of any debts that he may have paid. The $100 attorney’s fee was not included in the prayer, because he distinctly pleaded that it was the value of the property that he sought to recover, and that alone. • To render judgment for the $100 was to render for more than appellee sought to recover. Nowhere in the pleading is there any allegation that appellants were obligated or bound to repay the $100 attorney’s fee, nor is that debt among those assumed by appellants in their contract with appellee. They were bound for the then existing debts and could not be held to pay the $100 by the terms of the contract. The allegation as to the fee was not made to recover the fee, but was pleaded merely as inducement to a recovery of the value of the property sold by appellee to appellants. He did not seek to recover the $100 awarded him by the court, and did not plead sufficient to justify a judgment for that amount.

If, by a breach of the contract, appel-lee was compelled to pay $100 attorney’s fee, such fee would not be an element of the damages, even though it had been properly pleaded. The payment of an attorney’s fee caused by the breach of a contract cannot be made to enter into and become a part of the damages for such breach. It has often been held in Texas that counsel fees incurred in prosecuting a suit for or defending against a wrong are not ordinarily recoverable as actual damages. Sherrick v. Wyland, 14 Tex. Civ. App. 299, 37 S. W. 345; Landa v. Obert, 45 Tex. 539. The matters alleged did not form a basis for the recovery of attorneys’ fees.

No exemplary damages were sought, in fact the case is one for rescission; the reason given for suing for the total value of the property, instead of the property itself, being that it had been mortgaged, and attorneys’ fees could not have been recovered, even though the suit had been one purely for damages. In only a few states are attorneys’ fees allowed as exemplary damages, and that only in cases of tort or trespass, and the Supreme .Court of the United States has held-that, even in that class of cases, attorneys’ fees are not an element of damages. The court held:

“It must be evident, also, that, as it depends upon the degree of malice, wantonness, oppression, or outrage of the defendant’s conduct, the punishment * * * cannot be measured by the expenses of the plaintiff in prosecuting his suit. It is true that damages, assessed by way of example, may thus indirectly compensate the plaintiff for money expended in counsel fees; but the amount of these fees cannot be taken as the measure of punishment or a necessary element in its infliction. * * * Where such a rule of law exists, allowing the jury to find costs de incremento in the shape of counsel fees, * * * they should be permitted to do the same for the defendant, where he succeeds in his defense, otherwise the parties are not suffered to contend in an equal field. Besides, in actions of debt, covenant, and as-sumpsit, where the plaintiff always recovers his actual damages, he can recover but legal costs as compensation for his expenditure in the suit, and as punishment * * * for his unjust detention, of the debt; and it is a moral offense, of no higher order, to refuse to pay the price of a patent or the damages for a trespass, which is not willful or malicious, than to refuse the payment of a just debt. There is no reason, therefore, why the law should give the plaintiff such an advantage over the defendant in one case and refuse it in the other.” Day v. Woodworth, 54 U. S. (13 How.) 363, 14 L. Ed. 181.

Closner bought the land owned by him and appellee at the sale under an order of sale in the case of Johnson v. Chapin et al., and the deed was made to Closner. When those facts were ascertained by appellee, he, without demanding an explanation from Closner or a request to convey his part of the land to appellee, employed an attorney, who without suit obtained a reconveyance of the land to appellee. The testimony fails to show that Closner ever refused to make such re-conveyance or that there was any necessity for the employment of an attorney. But admitting that a lawyer was necessary to obtain a- reconveyance, we hold that, if suit had been instituted, appellee could not have recovered anything but the land and his costs. If he could have recovered attorneys’ fees in such a suit, such fees could be recovered in any action of trespass to try title. Such recovery would not be permitted in such an action, and, if he could not have recovered the fee in the suit for the land, he cannot recover it in this suit.

We think the court should have dismissed the entire suit when the exceptions were sustained to other items in the petition, because no cause of action is stated as to the fee of $100, for tfle reason that in the first place appellee did not sue for the $100, and in the second place, if sued for, the attorney’s fee could not be recovered as a part of the damages. Appellants’ motion for a rehearing is granted. That part of the judgment sustaining the exceptions is affirmed, but that part rendered against appellants for $100 is reversed, and judgment here rendered that the cause of action be dismissed and that appellants recover all costs in this behalf expended.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    ALEXANDER et al. v. GARCIA et al.
    (No. 5305.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 17, 1914.
    On Motion for Rehearing, July 2, 1914.)
    1. Evidence (§ 11) — Judicial Notice — Geographical Pacts.
    Judicial notice will be taken that Palafox wa.s established as a town by the Spanish government.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 15, 16; Dec. Dig. § 11.]
    2. Appeal and Error (§ 1051) — Harmless Error — Evidence.
    Where there was enough proper evidence to establish a fact, the admission of illegal evidence was harmless.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    3. Adverse Possession (§ 7) — Municipal Corporations (| 51) — Property Subject to Prescription — Public Lands.
    In 1810 the Spanish government established the town of Palafox, granting to it four leagues of land. In 1818, the town was completely destroyed by Indians, and most of the inhabitants killed, and remainder abandoned the town, and for more than 65 years there was a complete abandonment of the town. More than 50 years after such abandonment defendants “squatted” on the land. Held, that upon abandonment of the town all parts of the grant not having been conveyed by the town to individuals reverted to the Spanish government, and hence passed and became a part of the public domain of the state of Texas by the treaty of Guadalupe Hidalgo, and, being such, defendants could not acquire title to any part thereof by limitations.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 24 — 42; Doc. Dig. § 7; Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. § 51.*]
    On Motion for Rehearing.
    4. Appeal and Error (§ 832) — Rehearing— Grounds.
    A motion for rehearing, which made no complaint of the opinion on the merits of the case, the only complaint being the refusal to dismiss the case because appellant’s briefs had not been properly filed, was overruled; it not appearing that appellees were prejudiced in any way.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. § 832.]
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Action by George R. Alexander and others against Agustín G. Garcia and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and rendered. Rehearing denied.
    See, also, 167 S. W. 1102.
    A. Winslow, of Laredo, and N. A. Rector,, of Austin, for. appellants.

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

   FLY, C. J.

This is a suit instituted by George R. Alexander, Mrs. Andrea J. de Alexander, Higinio Cantu, and J. D. Randolph,, to recover four 640-acre tracts of land from Agustín G. Garcia and 18 others, appellees herein. The cause was tried by jury; but, after they had been charged and considered the case for some time, the court instructed a verdict for appellees, which was returned and forms the basis for the judgment from which this appeal has been perfected.

Appellants bought the lands in controversy from the state of Texas, said lands being a portion of the public domain. Appellees were mere trespassers and squatters on the land.

Most of the assignments relate to the introduction of evidence, documentary and parol, to prove the establishment of the town of Palafox, by the Spanish government, in 1810, and a grant to it of four leagues of land on the Rio Grande. It becomes unnecessary to consider the assignments, for the -reason that the Supreme Court, in Railway v. Jarvis, 80 Tex. 456, 15 S. W. 1089, has held that it was judicially known to that court, in 1891, that Palafox was established as a town, and, if judicially known then to that court, it is judicially known now to this court. There was enough proper testimony introduced to indicate the grant of the four leagues of land to the town of Palafox, and any evidence bearing on the subject that may have been illegal could not have injuriously affected appellants.

The evidence showed, also, that the town of Palafox was completely destroyed by Indians in 1818, and most of the inhabitants were killed and the remainder abandoned the town, and that there was no effort to again settle the town until 1884. Eor more than 65 years there was a complete abandonment of the town, during which period the land was under the flags of Spain, Mexico, and the United States. There was clearly an abandonment of the land, and the purposes for which it was granted ceased to exist, and the question arises: To whom then did the lands belong that had not been conveyed to individuals? Would they lie there unclaimed and unused through generation after generation of men, the home of the coyote and the rattlesnake, and the fiction prevail that a town was located there among the cacti and the mesquite, and that it was the property of that imaginary town? Was it no-man’s land where the trespasser and the squatter might find an abiding place and successfully resist eviction by the claim that over 100 years ago the King of Spain had granted the land to a town? There can be no doubt that a negative answer is the only reasonable one to these questions, and that, when there was an abandonment for so long a time as to evidence its permanency, the sovereign who had never parted with the fee to it would resume control and dominion over it. It had been granted for a purpose and on certain conditions. The purpose had failed, the conditions were unfulfilled, and the lands passed back into the public domain, to be disposed of as the overlord of the soil might feel disposed. The authorites sustain this proposition. Dittmar v. Dignowitty, 78 Tex. 22, 14 S. W. 268; State v. Gallardo (Sup.) 166 S. W. 369; Bond v. Barela, 229 U. S. 488, 33 Sup. Ct. 809, 57 L. Ed. 1292. This will appear by a review of those cases and others.

In the case of Dittmar v. Dignowitty it was held, after discussing a grant to the city of San Antonio:

“It does not follow from this, however, that title to the lands embraced within the city limits so' vested in the city as a corporation as to deprive the Spanish government of power to-confer title to parts of it on individuals. We know that house lots and lands for cultivation were granted in cities so established to inhabitants, and that these became their private-property. Other lands within such cities were appropriated for ejidos, and for pasture and other purposes, and these were for the use and benefit of the inhabitants generally; but it is not believed that the absolute ownership of lands in such cities or towns ever vested in them as corporations so long as Spanish dominion continued over the country. Lands in cities and towns granted to individuals became their private property; and places essentially public, such as plazas, may have been inalienable, and thus the title to them in a sense vested in the city or its inhabitants. We, however, know of no law which vested in a city or town title in fee to the lands withip its limits, or deprived the Spanish government of power to sell or dispose of lands therein not given or sold to individuals or dedicated to some use essentially public.”

In that case there had been no destruction and abandonment of the town, and the court very properly restricted the right of the government to alienate any of the property granted to the city to those parts not sold to individuals or set apart to purposes essentially public, such as plazas. We think, however, that, when the whole of the land has been permanently abandoned, all parts of the grant not conveyed to individuals revert to the crown or state, and are subject to sale to actual settlers. After more than half a century of such abandonment, trespassers and “squatters,” who at no time ever had any interest in the lands, either as plazas, streets, or commons, can revive the ancient grant and gain for themselves privileges as settlers that were granted by Spain more than 100 years ago. That grant, by abandonment and nonuse, had been destroyed and the claim had by town and inhabitants through the grant forever obliterated. Texas succeeded to all the rights of sovereignty held by Spain and Mexico over the land. '

In the case of Bond v. Barela, it was held that all of the land alloted to a town under the Spanish government remained in the government and passed to this government upon its acquisition of the territory, unless the same had been granted to settlers thereon. That case followed the ease of United States v. Sandoval, 167 U. S. 278, 17 Sup. Ct. 868, 42 L. Ed. 168, wherein the following language of Mr. Justice Eield in Grisar v. McDowell, 73 U. S. (6 Wall.) 363, 18 L. Ed. 863, was indorsed:

“Even after the assignment the interest acquired by the pueblo was far from being an indefeasible estate such as is. known to our laws. The purposes to be accomplished by the creation of pueblos did not require their possession of the fee. The interest * * * amounted to lit- [ tie more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands, or as a source of revenue, or for other public purposes. And this limited right of disposition and use was in all particulars subject to the control of the government of the country.”

Under that ruling all of the land contained in the town of Palafox became the property of Texas after its conquest by the American forces and the signing of the treaty of Guadalupe Hidalgo, except any such portions as had been granted to settlers thereon. Whatever control the town may have had was lost by its disorganization and destruction in 1818. It follows that the only title that any one could assert to any of the land as against the state, or any one claiming under it, must be deraigned from the settlers to whom any part of it may have been granted.

In the case of Townsend v. Greeley, 72 U. S. (5 Wall.) 326, 18 L. Ed. 547, the question of the rights of towns or pueblos to the lands granted to them is discussed by Justice Field, who was noted for his thorough acquaintance with Spanish land law, and the same views expressed as in the Grisar v. McDowell Case, and it was further held that the treaty of Guadalupe Hidalgo protected whatever rights towns may have had in lands just as it did those of individuals, but if there was no town at the time of the making of the treaty there were no rights to be protected by it, and the land became a part of the public domain of Texas. The land was given to the town in trust for its inhabitants, and when it abandoned the trust, and no successor took its place, the land reverted to the government and became a part .of the public domain.

The creating of Spanish towns and the endowing of them with large grants of land came into being as the progeny of eight centuries of warfare with the Moors. The expulsion by degrees of the invaders was a long and tedious task, and the town grants were made and men encouraged to settle on them in order to form outposts and barriers against reacquisition of the territory by the enemy. When America was discovered, the same system was inaugurated by the Spaniards for the same purpose in all parts of this continent acquired by them, and so it is that in every grant to a town military service was exacted as well as the payment of taxes. Long lines of these Spanish towns extended across Texas and along its rivers, forming the vanguard of Spanish civilization in the conquest of the country from the Indians. Whenever one of those outposts was permanently abandoned, the reason for the grant no longer existed, and, where no private rights had intervened, the crown resumed its dominion over it. In this instance the outpost was destroyed by the Indians, and no effort was ever made to rebuild it or resettle it while under Spanish or Mexican dominion, and its corporate existence has never been revived under American rule. Under the treaty of Guadalupe Hidalgo, there were no rights to be respected except those of any individual settler in the town. There was no town and the grant had lapsed 30 years before American dominion over the land had been established. The land became a part of the public domain of Texas, under the articles of agreement by which the Republic was dissolved and became a member of the American Union, and in order to weaken or destroy its claim upon the land forming the old grant to Palafox it becomes necessary, as hereinbefore stated, for any claimant to de-raign title from one who obtained a grant as a settler on the town lands. He must show a grant by the ayuntamiento or city council, or other competent authority, to some one from whom he is claiming to have obtained title by conveyance or inheritance. He could not obtain title by limitation as against any portion of the land belonging to the state, and of course pleas of limitation would be utterly futile and unnecessary.

Neither of the appellees connected himself with any grant that may have been made to settlers, nor was it shown that the land sold by the state to appellants was in conflict with any such grant; but the case seems to have been tried alone upon the theory that the land having been granted in 1810 to the town of Palafox was forever separated from the public domain, was titled property, and could not be sold by the state. That issue being determined against appellees, they have no standing in this court.

The judgment is reversed, and judgment here rendered that appellants recover of ap-pellees the land described in the pleadings.

On Motion for Rehearing.

This cause was filed in this court on March 31, 1914, and was set down for submission on May 27th. At the time that appellants were notified that the cause was to be submitted, no brief had, been filed for the reason that appellees had agreed that it should not be filed before July 1st. As soon as they were notified of the submission, appellants prepared a brief and filed the same in this court on May 16th and on same date served appellees with a printed copy thereof. Appellees, although this was 11 days before the day of submission, made no effort to file a brief and did not request time of this court in which to complete a brief, but sought to dismiss the cause because the briefs had not been filed in the district court and earlier filed in this court. On June 3, 1914,- this court refused to strike out the briefs of appellant, and gave its reasons for such refusal in a written opinion herein filed. On June 30th, 27 days after this court refused to strike out the briefs, appellees filed this motion for rehearing. No complaint is made of the opinion on the merits of the case, nor is it claimed that appellees were in any manner damaged by the judgment herein rendered on the merits. The whole attack is made on the order overruling the motion to dismiss and that filed more than 15 days after the judgment denying a dismissal was entered. Ap-pellees had an abundance of time in which to file a brief both before and after submission, but failed and refused to do so, and it was indicated to them in our first opinion that time in which to prepare briefs would be granted if appellees desired it. They did not desire it, but preferred to risk their case on a motion to dismiss. They do not attack the opinion on the merits, and it must be presumed that they are satisfied therewith.

The motion for rehearing is overruled.


author: McMEANS, J.

text:
    GULF REFINING CO. v. SIMMS.
    (No. 6586.)
    (Court of Civil Appeals of Texas. Galveston.
    April 28, 1914.
    Rehearing Denied June 11, 1914.)
    1. Master and Servant (§ 219) — Injuries to Servant — Assumed Risk — Evidence.
    Where plaintiff, who was employed to do certain work on a barge, during the noon hour seated himself on the combing of an open hatch while eating his dinner, suddenly lost consciousness, and fell backward through the hatch to the bottom of the hold, the danger being open and obvious, he assumed the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.] „

    2. Master and Servant (§ 129) — Injuries to Servant — Dangerous Premises — Open Hatch — Proximate Cause.
    Where plaintiff, while at work on a barge, seated himself during the noon hour on the combing of an open hatch, and losing consciousness fell backward into the hold, defendant’s negligence, if any, in permitting the hatch to remain open or in failing to construct a railing or barrier around the opening, was not the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    3. Master and Servant (§ 121) — Injuries to Servant —Negligence — Reasonable Care.
    Where plaintiff during the noon hour while employed on a barge seated himself on the combing of an open hatch, and losing consciousness fell backwards into the hold and was injured, and in an action for injuries claimed that the hatch combing was a reasonably safe place for him to sit and that his doing so was not dangerous per se, defendant was for the same reason not negligent in failing to anticipate that a person taking such position would suddenly lose consciousness and fall into the hold, and was therefore not negligent in failing to guard against such an accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by Jules R. Simms against the Gulf Refining Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    D. Edward Greer and Hightower, Orgain & Butler, all of Beaumont, for appellant. Blain & Howth and M. G. Adams, all of Beaumont, for appellee.

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

   McMEANS, J.

The appellee, Jules R. Simms, brought this suit against the appellant, Gulf Refining Company, to recover damages for personal injuries sustained by him while in appellant’s employment. He alleged that he was ordered by his foreman, also an employs of appellant, to do some work on the barge Conemaugh, a boat belonging to appellant, and that in the course of performing such work, it becoming noon time, he and other employés working with him stopped for lunch, and for the purpose of eating his lunch, he took a seat on the combing of a certain hatch on the barge, which was customary for the employés working about the barge to do, and that while so sitting on the hatch combing he suddenly, and without notice or warning to himself, and without any reason to anticipate sickness and danger, temporarily lost control of his physical powers and mental faculties, and without fault or negligence on his part became dizzy, collapsed, and fell backwards into the hatch, which was open and unguarded, and by reason thereof sustained the injuries for which he sued. He further alleged that on the occasion in question he was eating his lunch at said place at the express and implied invitation of appellant and its agents; it being in summer time and the weather warm, and the combing of the hatch being a convenient seat and sheltered by an awning or canopy. The following grounds of negligence were alleged: That defendant left the hatch open and failed to cover the same in a safe and secure manner, failed to construct railings, balustrades, or guards around the hatch, and failed to use ordinary care to inspect the barge at reasonable intervals for the purpose of discovering whether said hatch was open or partly open or in dangerous condition. There was further ground of negligence alleged, but, as no evidence was offered to prove it, a statement of it is omitted. The appellant pleaded the general denial, assumed risk, and contributory negligence. The case was tried before a jury and resulted in a verdict and judgment for appellee for $5,000, from which the appellant has prosecuted this appeal.

Appellant by its first assignment of error complains that the verdict and judgment were not warranted by the evidence, in that the evidence was insufficient to show that appellant was negligent in the manner alleged, or, if negligent, that such negligence was the proximate cause of plaintiff’s injury, but that it does show that plaintiff was guilty of contributory negligence and that his injuries resulted from a risk assumed by him.

By its second assignment of error appellant' complains of the refusal of the court to give its first special charge .peremptorily instructing the jury to return a verdict in its favor.

Appellee was severly injured while at work on the barge Conemaugh by failing backward through a hatch. The hatch was what is known as a “booby hatch,” which is an opening through the deck of the vessel and serves as a hoistway. Appellee at said time was in the employment of appellant in the capacity of machinist helper, and the barge on which he was working belonged to appellant. He was sent by his foreman to assist Mr. Prafka and Mr. Singleton, appellant’s employés, to do certain work on the barge, and because of the distance of the boat from his boarding house, making it impracticable for him to go to lunch, he took his lunch with him, as also did the others. He and the other two got to the barge about 11 o’clock in the forenoon, and each of them deposited his lunch near the stern of the barge, close to the ice box and water cooler, and close to the boathouse in which there was a stove upon which coffee could be warmed. All three then went to work at the bow of the boat, which was something like 175 feet from the booby hatch, and worked there until shortly after noon, when they stopped for lunch. All of them then returned to the stern to eat their lunches, and for this purpose Prafka and Singleton seated themselves upon coils of rope near the booby hatch. Ap-pellee heated his coffee in the boathouse and, coming out on the deck to eat his lunch, seated himself upon the combing of the open hatch, near his companions. The hatch, or opening through the deck, was about three feet square, and was surrounded by heavy timbers about three inches thick placed on edge and fastened together at the corners, and extended the height above the deck, of eight or ten inches, and the timbers so placed and joined is what is called the “combing.” It was upon the edge of one of these timbers that appellee tood his seat, with his back toward the opening. He sat on the combing in this position for about 20 minutes and had just about finished his lunch, when suddenly, without any premonition, he temporarily lost consciousness and fell backward through the hatch and into the hold of the vessel and was injured. It was usual and customary to keep the hatch closed except when necessary to open it for use as a hoist-way, or for ventilation, and at the' time in question it was not necessary for it to be open for either of said purposes. The reason for keeping it closed was to prevent persons, especially “landlubbers” who might be on deck, from falling through. The cover is called “hatch cover” and is just large enough to fit the opening, and when in position is flush with the upper edge of the combing. One of the officers of the barge had instructed one of the boatmen to keep the cover on, but it had been taken off early that morning to get some rope out of the hold and was not replaced.

It was shortly after noon when plaintiff seated himself upon the combing, a bright day, and there was nothing to prevent him from seeing that the hatch was open if he had looked or had paid the least attention to his surroundings. He says he did not look to see whether it was open or not. He does not say, however, that he saw it was open. Upon this point we give his testimony:

' “I did not take any observation. or inspection of the place where I sat down. I only looked for a place to sit down and eat lunch and rest, and I never noticed much whore we did sit down. I did not have any conscious knowledge of the identical place I was sitting down. Í never noticed and I never thought. All I thought of was a place to sit down and be with the other fellows; we were all together. I don’t know how I came to fall. I don’t know what caused me to fall. I paid no attention to where I was sitting down, and my only desire was to be with my fellow workers there. I didn’t know whether the hatchway was opened or closed. I couldn’t say whether I was sitting on the combing of the hatchway, or partly on the combing and partly on some ropes that might have been lying around there. I took no notice at all of that. I did not suspect or realize that I was in danger at all when I" sat down there with my friends to eat lunch. I thought I was as safe as I am now. I never thought a thing about it. * * * Of course I saw this hatch, 'because I sat down on it; if I hadn’t seen it, I don’t suppose I would have sat on it, but I never took no notice of what I was sitting on. * * * I don’t know what part of the hatch I was sitting on, only I know I was facing the stern. I did not notice when I went to sit on the hatch whether there was any lid on it or not. * * * If I had looked at that hatch combing before I sat down on it, I could have seen whether there was a cover on it or not. I might if I had taken close notice of it. I suppose, if I had been walking around and wanted to sit down and looked at it, I could have told whether there was a cover on it or not. I just didn’t notice at all; that’s the fact about it. I don’t know of anything that would have kept me from seeing it if I had looked, unless it was the condition I was in. You take a man who is working and he gets tired, and he only had a few minutes to get his, lunch in, he don’t notice anything. I didn’t notice it, and I don’t suppose the other fellows noticed it either.”

The witness had testified that he had quit work the day before at about 7 o’clock in the evening and went to sleep at 10 o’clock and slept all night; that for the 38 hours previously he had been steadily at work, and for that reason did not rest as well as he otherwise would, although he slept. Continuing, he said:

“I told Mr. Howth (his attorney) that I was-a little bit tired, but that I did not feel any more tired than if I had not done that extra work (referring to the 38 hours’ continuous-work); in other words, I felt very well. I had rested some the night before, not very much. I suppose I was entirely in possession of my senses; at least I think I was. * * * I suppose I completely lost consciousness. I don’t remember starting (to fall); I remember hitting the floor, but I don’t remember starting. If I had, I would not have started. * * * I have never had any disease or trouble of this kind before, losing consciousness, getting dizzy,. and falling. * * * I don’t know as there was any other places or things I could have sat down on besides this hatch; I never noticed, if there was. I don’t remember what they (his companions) sat on. I just walked up to the hatch and sat down, and didn’t pay any attention to it. I didn’t notice whether there was any other place to sit down there or not. I did not have any particular reason for selecting that place, only we were all three near together.”

The uncontradicted evidence shows that other than the combing there was no railing, balustrade, or other guard around the hatch, and if there had been appellee upon losing consciousness might not have fallen into the hold.

We are of the opinion that, under the 'circumstances of this case, the appellee was not entitled to recover, and the court erred in not giving a peremptory instruction for defendant as requested. The hatch was open at the time appellee sat upon the combing, and if he did not know this it was because he did not exercise any care whatever in the .selection of a place to sit. He is chargeable with a knowledge of the laws of nature, and if he knew the hatch was open was bound to know that if from any cause he lost his balance while sitting upon the narrow edge of the combing he was apt to fall through the opening into the hold. And even if he did not know that the hatch was open before he sat down, it is inconceivable that he was not apprised of that fact when he took his seat. The cover, had it been on, would have been flush with the upper edge of the combing, and in that case the combing and cover would have made a platform 8 or 10 inches above the deck, and appellee would have had a flat place to sit, but as it was he must necessarily have balanced himself upon the narrow edge of the combing, and the sense of feeling, must at once have apprised him, or would have apprised any person exercising ordinary care for his own safety, that the cover was not on and the hatch was open. The fact that the hatch was open was obvious and patent, and if appellee did not know it he was negligent, in the circumstances, in not knowing it; and if he did know it before he said down, or became apprised of it after he took his seat, he assumed the risk of taking the position he did or remaining in that position after he was apprised of it. Dallas Gas Co. v. Patton, 147 S. W. 313; Railway v. Anderson, 124 S. W. 1004; Bowden v. The Sir Garnet Wolseley (D. C.) 41 Fed. 896; Railway v. Hynson, 101 Tex. 547, 109 S. W. 929.

If it should be conceded that appellant was guilty of negligence in not keeping the cover on the hatch, we are of the opinion that such negligence was not the proximate cause of the appellee’s injury. Appellee, to excuse his contributory negligence, contends that it was not dangerous per se for him to sit on the combing. He says:

“There was nothing intrinsically dangerous in taking such position under the circumstances; it could become dangerous only through subsequent happenings. If any one had carelessly or intentionally run against him, or thrown something against him, it would then be dangerous to be in such position. If he became suddenly sick or dizzy and collapsed, or had heart failure, or was- providentially stricken in some other manner so as to lose control of his mental and physical faculties, as actually happened in the case at bar, such position would then become dangerous.”

If then it was not dangerous per se for ap-pellee to sit where he did, and for that reason appellee was not negligent in taking his seat upon the combing surrounding the open hatch, it is because a person of ordinary prudence would have done as he did under similar circumstances. If then a person of ordinary prudence would have acted as appel-lee did, this very test would relieve the áp-pellant of negligence to appellee in not having the hatch covered. Railway v. Bradford, 66 Tex. 737, 2 S. W. 595. 59 Am. Rep. 639.

Appellee says that there was no danger in his sitting 'On the combing, unless some intervening cause arose, such as his being run against or of his becoming dizzy and collapsing and thereby caused to fall, and contends that by reason of becoming unconscious and being thereby caused to fall he is relieved of all contributory negligence. If it was a reasonably safe place for him to sit, and he would not have fallen but for the happening of the event that caused him to fall, and which-happening he could not have reasonably anticipated, was the appellant required to anticipate the happening of the event, and to use greater care than it did to make safer the place which, in the absence of such happening, according to appellee’s contention, was already safe? Ought the appellant to have forseen that as a result of leaving the cover off the appellee or some other person, while sitting on the combing—a thing not dangerous per se, according to appellee’s contention—would lose consciousness and fall? We think not. As said by the Supreme Oourt in Railway v. Bigham, 90 Tex. 227, 38 S. W. 164:

“Nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury to the person of the plaintiff.” Dayton Lumber Co. v. Hastings, 152 S. W. 863; Railway v. Seale, 65 Tex. 281, 57 Am. Rep. 602; Railway v. Story, 26 Tex. Civ. App. 23, 62 S. W. 130.

The fact that there was no railing or other guard around the hatch does not alter the case, for the absence of these was patent, and appellee by the exercise of the slightes* care was bound to know it.

Under'the facts established by the undisputed evidence, the appellee is not entitled to a recovery, and the judgment of the court below is therefore reversed, and judgment here rendered for the appellant.

Reversed and rendered.


author: HALL, J. HUFF, C. J.

text:
    DOUGLASS et al. v. LOCKHART.
    (No. 613.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1914.
    Rehearing Denied June 6, 1914.
    Dissenting Opinion Filed June 11, 1914.)
    1. ALTERATION OF INSTRUMENTS (§ 5) — NOTES —Designation of’Payee.
    Under Rev. St. 1911, art. 582,. providing that, in an action on a negotiable instrument by an assignee before maturity for a valuable consideration without notice, defenses between the maker and payee shall not be available, the alteration of a negotiable note by the insertion of the words “or bearer” following the name of the payee was not a material alteration.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 18-29; Dec. Dig. § 5.]
    2. Bills and Notes (§ 637) — Purchase in Good Faith — Question for Jury.
    In an assignee’s action on a negotiable instrument, the question whether he purchased in good faith was for the jury, where the evidence raised an issue thereon.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.]
    3. Bills and Notes (§ 354) — Bona Fide Purchasers — Extent of Recovery.
    Where a purchaser of a negotiable note before maturity is not personally chargeable with fraud, he is entitled to recover its full amount from the maker, rather than the less amount paid by him, whatever the original infirmities in the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § 354.]
    Huff, O. J., dissenting.
    Appeal from District Court, Lipscomb County; F. P. Greever, Judge.
    'Action by C. H. Lockhart against J. W. Douglass and others. From judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    H. E. Hoover and Hoover & Hoover, all of Canadian, for appellants. Adkins & Sewell, of Higgins, for appellee.

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

   HALL, J.

On April 5, 1909, J. W. Douglass, F. R. Grissom, W. L. Owen, T. L. Sha-han and B. P. Mills executed three notes due June 1, 1910, 1911, and 1912, respectively, whereby, it is alleged, they jointly and severally promised to pay “to the order of Lew W. Cochran, Crawfordsville, Ind., or bearer,” the amount therein specified, with 8 per cent, interest, and providing that unpaid interest should bear the same rate of interest as the principal. The first of these notes was paid and appellee became the purchaser of the last two, and this suit is filed to recover the amount thereof. Plaintiff alleged that he purchased them for a valuable and adequate consideration, without indorsement from the party in possession of the notes, and without notice or actual knowledge of any infirmity therein, and without any knowledge that defendants had any character of defense against the same, and without having reason to believe that there was any illegality in connection with the execution and delivery of the notes, but that he was in all things a bona fide purchaser. The defendants filed a joint answer, in which they admitted the execution and delivery of the notes, but denied that the plaintiff .was the owner and holder of the same, or that he purchased them for a valuable consideration before maturity, without notice, and further denied that he purchased the notes in good faith, but that plaintiff took them with full knowledge that they were given as deferred payments for a certain horse, the purchase of which was brought about by certain false and fraudulent representations, which rendered the notes noncolleetible; that one R. F. Dygert entered into negotiations with de--fendants to sell them a certain French coach stallion, named Alfonso No. 3397, representing said stallion to be an imported registered animal; that it belonged to Lew W. Cochran, a large and well-known dealer and importer, of Crawfordsville, Ind., and that he was the agent of said Cochran in making such sale and taking said notes; that he" gave them a registration certificate upon the stallion; that Lew W. Cochran was well known as a large and responsible dealer in registered horses, and that upon these representations they made and executed the notes; that the horse was not a registered coach stallion nor Alfonso No. 3397, and was not the property of Lew W. Cochran, who purported to sell and warranted to defendants, and that the said Dygert was not the agent of said Cochran; that the notes as drawn and signed by the defendants were made payable to Lew W. Cochran, of Craw-fordsville, Ind.; that Cochran never authorized the taking of said notes; that they were never delivered to Cochran, and that after the notes were signed by defendánts the words “or bearer” were falsely and fraudulently entered into the notes after the words, “Lew W. Cochran,” in order that the said Dygert might transfer said notes without the signature of said Cochran, and thus cheat and defraud defendants; that they received the guaranty of the said ^Cochran in consideration of the notes; that the guaranty was forged; that the horse actually sold and delivered to defendants was inferior in breeding to the said Alfonso No. 3397, and was worth at least $1,200 less than the horse they actually thought they were buying, and for which they executed said notes, and that said notes were therefore without consideration and absolutely void. Defendants further' alleged that the notes had been materially altered by the addition of the word “bearer” thereto; that appellee was fully advised of these conditions, or had notice of sufficient facts to put him upon inquiry before he purchased the notes, if, in truth and in fact, he ever purchased them; that he purchased the same for far less than the face value thereof; and that in the event defendants were held to pay any sum that they be required to pay only the amount which the plaintiff actually paid for the notes. After the evidence was in, the court instructed a verdict for the plaintiff against the defendants in the sum of $667 principal, and $288.-75 interest.

The first error assigned is* predicated upon the proposition that the evidence raised the issue of material alteration, and this seems to be the principal question presented by the appeal. It is contended by appellee that on account of article 582, R. S. 1911, and the construction placed upon that article, even though the words “or bearer” were inserted in the note, following the name of Lew W. Cochran, after their execution, still such fact does not constitute a defense to the action. The test as to the materiality of an alteration in a written obligation, as announced in volume 1, Ruling Case Law, p. 967, is as follows:

“That is a material alteration which so changes the term of the instrument as to give it a different legal effect from that which it originally had, and thus works some change in the rights, interest or obligations of the parties. It is the effect of the act upon the instrument, and not the particular manner in which it is done, that is material, whether it be by interlineation, addition, substitution, change of words, detaching material memoran-da therefrom, erasure, or by cancellation of some material provision thereof. No distinction can be maintained between the interpolation of a new clause whereby the legal effect of the instrument is materially changed and the striking out of one thing and inserting another, whereby the same result is effected. That the alteration causes actual injury is not the test of materiality, and it is equally unimportant whether the alteration was beneficial or injurious to the party who it is sought to charge on the instrument. The question is not whether such party has been or could be injuriously affected, but whether or not his rights have been materially affected — whether the contract in its altered condition is the contract into which he entered. That is material which might become material in alteration which may, in any event, alter the rights, duties, or obligations of the person sought to be charged, is material in the legal sense. Courts cannot undertake to say that he would have made the contract as altered and thus to make it for him merely because its terms are more favorable to him than those of the original instrument any more than they could be justified in a like conclusion where the alteration imports additional liability. In the one case no less than in the other, the altered paper is not the contract which the party has made, and in neither case can the courts declare it to be his contract or enforce it as such. The law proceeds on the idea that the identity of the contract has been destroyed and that the contract made is not the contract before the court, that the party did not make the contract which is before the court, and so adjudging, it cannot go further than hold him bound by it on speculations, however probable and possible that he would or ought to have entered into the altered agreement because it involved less liability than the original and only paper executed by him. _ Nor is the intent with which an alteration is made to be considered in determining its materiality and its consequent effect upon the validity of the instrument altered, though it may be of great importance with respect to the right of the party affected by such alteration to recover upon the original contract or consideration. An alteration of an instrument may be considered immaterial if it does not vary the meaning of such instrument in any essential particular, and if the rights or interests, duties or obligations of either of the parties are in any manner changed, or if what is written or erased has no tendency to produce a change in the meaning or language or to mislead any person.”

While the general rule is that a transferee without indorsement of a note payable to order takes it as a mere chose in action, and must aver and prove the consideration, and takes it subject to all equities which may be urged against it in the hands of the transferror, yet the rule, has been abrogated in this state by the enactment of the above-mentioned statute. This statute provides that any person to whom a negotiable instrument has been assigned may maintain an action thereon in his own name, and, should he obtain such instrument before maturity, by giving for it a valuable consideration without notice of any discount or of any defenses against it, he would be compelled to allow only just discounts against himself. In Word v. Ellwood, 90 Tex. 130, 37 S. W. 414, our Supreme Court held that under this statute the form of assignment, whether written or verbal, was immaterial, as the statute extended its protection to all assignees coming within its terms, though they might not have acquired their instruments in accordance with the technical rules regulating transfers under the law merchant. The Supreme Court also held in Prouty v. Musquiz, 94 Tex. 87, 58 S. W. 721, 996, that the statute placed a transferree without indorsement by the payee upon the same footing as an indorsee, and this holding is followed in Bank v. Kenney, 98 Tex. 293, 83 S. W. 368, Elmore v. Rugely, 48 Tex. Civ. 456, 107 S. W. 151, and McEarling v. Carey, 149 S. W. 766. The effect of this statute, in our judgment, is to make the alleged alteration of the instruments in question immaterial.

The further point is urged by the appellants that the evidence is sufficient to raise the issue of bona fides on the part of appellee in making the purchase. It is held in Wilson v. Denton, 82 Tex. 531, 18 S. W. 620, 27 Am. St. Rep. 908, Greneaux v. Wheeler, 6 Tex. 515, and First Natl. Bank v. Chapman, 164 S. W. 900, that the validity of the title of the assignee of negotiable paper depends on his good faith in acquiring it. In Masterson v. Mansfield, 25 Tex. Civ. App. 262, 61 S. W. 505, and Et. Dearborn National Bank v. Berrot, 57 S. W. 340, it is held that the question of good faith in the purchase of an instrument is one for the jury. We will not discuss, or in any way set out, the evidence bearing upon this issue, but content ourselves with the statement that there is sufficient .evidence in the record upon which the court should have submitted it. Bolt v. State Sav. Bank, 145 S. W. 707; Jones v. Bank, 160 S. W. 126.

We have carefully reviewed the statement of facts, and under the evidence we think the court should have submitted the issues of fraud and failure of consideration.

In view of another trial, we will state that, in the event the plaintiff should he entitled to recover, his judgment should be for the full amount claimed, rather than the •amount paid by him for the notes. Locke v. Citizens’ National Bank, 165 S. W. 536, decided by this court, but not yet officially published.

Because the court peremptorily instructed the jury, the judgment is reversed, and the cause remanded.

HUFF, C. J., concurs in the disposition made of the appeal, but dissents upon the •question of the materiality of the alleged alteration.

HUFF, C. J.

(dissenting). If the note in question was changed from one payable “to the order of Lew W. Cochran, Crawfords-ville, Ind.,” to one reading pay “to the order of Lew W. Cochran, or bearer, Crawfords-ville, Ind.,” the alteration would be, in my opinion, material, and I must therefore dissent from my Associates on that question. In this case the evidence tends to show the notes were given for a horse represented to have been the property of Lew W. Cochran, a well-known breeder and importer of horses. The notes were on a printed form, with the words “payable to the order of Lew W. Cochran.” There was inserted after the name of Cochran, with a pen, the words “or bearer.” Cochran testified he sold no such horse, took no such notes, never saw the notes, and never authorized any person to accept the notes for him, or authorized any person to negotiate the notes for him. These notes are not indorsed. The appellee testified he paid $600 for the notes, and got them from a man who gave his name as G. M. Hatch. The appellants delivered the notes to a man by the name of Dygert. Cochran testifies that Dygert was not his agent in the transaction, and that he (Cochran) never executed the guaranty to the horse delivered to appellants with him. The appellants, •or at least some of them, testified positively the words “or bearer” were not in the notes when signed by them.

I do not understand the law merchant to have been changed by article 582, R. S. 1911, to the extent of making a note drawn payable “to order” to one payable “to bearer.” The effect of the statute is to change the method of proving the transfer and title to the notes. The holder of the note payable “to order” may prove its transfer, either verbally or by writing, and without indorsement, and when so proven, if made before maturity, he is protected under the law merchant as a bona fide holder, if the facts otherwise protect him as such. Under the law merchant, a note being payable to order, the legal and only proper way to transfer it was by indorsement. Tiedeman on Con-1 mercial Paper, §§ 246, 257. It has been held in this state, as to a note payable to the order of the payee and not indorsed by him, suit cannot be maintained thereon by a holder thereof other than the payee. Ross v. Smith, 19 Tex. 171, 70 Am. Dec. 327; Rosebrough v. Gorman, 6 Tex. 313; Merrill v. Smith, 22 Tex. 53; 7 Cyc. 818. Where the note was payable to order, it was required to be indorsed before it was negotiable. In other words, it was not transferred by delivery before indorsement, and the delivery of it evidenced no right to it. Indorsement was the proper and legal way to prove the transfer. On the other hand, a note payable to bearer was transferred by delivery (Johnson v. Mitchell, 50 Tex. 212, 32 Am. Rep. 602; Jackson v. Marshall, 6 Tex. 324 ; 7 Cyc. 560); and the holder thereof could maintain a suit to recover on such delivery. The statute provides that any person to whom any negotiable • instrument may have been “assigned” may maintain an action in his own name. In Word v. Ellwood, 90 Tex. 130, 37 S. W. 414, it is said:

“The form of the transfer and whether written or verbal is immaterial.”

Prouty v. Musquiz, 94 Tex. 87, 58 S. W. 721, 996, held:

“The holder of a negotiable instrument by an assignment not in wilting being placed upon the same footing as an indorsee at common law, it follows that the rule of the commercial law must determine,” etc.

As pointed out under commercial law, an indorsement must be shown to maintain a right of action on a note payable to order. Under the statute there must be an assignment, either verbal or in writing. The maker who executes a note payable to a named payee or order contracts that he will pay the note to the payee or to whom he shall order it paid. The statute, in dispensing with a written indorsement, does not dispense with the proof of the assignment. It, in other words,, permits proof of an assignment other than by indorsement, but nowhere stipulates that the delivery is presumptive evidence of an assignment, and does not make such delivery prima facie evidence of an assignment. The mode of transferring negotiable instruments and the evidence required by the statute does not in the least change the well-known meaning of negotiable words as defined by law merchant, found in works on that branch of commercial law. Oases in this state, from the • beginning, follow the meaning of negotiable words as defined by that law. I find nothing in the statute changing the meaning of “or order” to that of “or bearer.” It requires proof of assignment when “or order” is used. It took an indorsement to pass the title before the statute. By the statute assignment can be shown otherwise; but an assignment must be shown. When “bearer” is used, delivery, if sufficient evidence of assignment and delivery or ownership, may be inferred from possession. I think it will be hard to find any case holding an unindorsed note payable to order in which there is a presumption of assignment. At least I do not think the Eillwood Case and others in this state hold that the meaning of the words is changed by the statute.

It has been held by the courts that alteration affecting the negotiability of the note is a material alteration. Taylor v. Moore (Sup.) 20 S. W. 53; Simkins on Contracts (3d Ed.) p. 541. Modifying the manner of negotiating it has been held material, McCauley v. Gordon, 37 Am. Rep. 68; adding to a note the phrase “or order,” see note 10 Am. Dec. on top page 271, and note 16, 86 Am. St. Rep. 95; or adding the words “or bearer.” Crosswell v. Labree, 81 Me. 44, 16 Atl. 331, 10 Am. St. Rep. 238; Belknap v. National Bank, 100 Mass. 376, 97 Am. Dec. 105.

Judge Bleckley, in McCauley v. Gordon, supra, speaking for the Supreme Court of Georgia, said:

“There can be no doubt that to tamper with a promissory note so far as to insert in it words ‘or bearer’ is grossly improper. It verges on forgery. The introduction of such words is a material alteration, for they go to modify the manner of negotiating the instrument. Scott v. Walker, Dud. 243. Without them, or words of similar import, the instrument is negotiable by indorsement only; with them, it is negotiable by bare delivery as well as by indorsement.”

So I take it under our statute, when a note is payable to order, that it is transferable by assignment alone, either verbal or in writing, and such assignment must be proven; but if a note is payable to bearer, delivery is sufficient to prove the assignment. Hence I think there is a material difference in the meaning of the two words when used in negotiable notes.

For the reasons above given, I cannot concur in the opinion of the majority.