author: TALBOT, J.

text:
    MILLER v. McCORD et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 21, 1913.)
    1. Partnership (§ 142) — Powers ox Partners — Right to Borrow Monet.
    Members of a trading partnership may borrow money in the firm name for firm purposes, and pledge firm property, and draw, negotiate, accept, or indorse bills of exchange or notes, but the members of a nontrading partnership usually defined to be a partnership limited to a single enterprise, and not engaged in business, have no implied authority to borrow money and bind the firm therefor by notes given in its name, or to pledge the assets of the firm as security for money borrowed, in the absence of .proof of actual necessity or usage for the exercise of the power by the individual members of the firm.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §| 222-228; Dec. Dig. § 142.]
    2. Partnership (§ 146) — Powers oe Partners. .
    A partner in a trading firm who borrows money professedly for the firm, and executes therefor a negotiable instrument in the firm name, thereby binds all the partners whether the borrowing was for the firm or not, and whether he misapplied the funds or not, provided the lender was not cognizant of the intended fraud.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 242-251, 253-255; Dec. Dig. § 146.]
    3. Partnership (§ 136)— Contracts — Liability of Eirm.
    To bind a firm by a contract, it is not essential that the contract be signed by all the partners or in the firm name, and, where it is signed by a partner having authority to bind the firm and the contract is so accepted and credit is extended thereon, the firm is bound thereby.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 203, 204, 240; Dec. Dig. § 136.]
    4. Partnership (§ 131) — Powers of Partners — Right to Borrow Monet.
    Where a partner in a firm, formed to undertake specified city work, agreed that a partner should finance the enterprise, and should have the entire financial management of the firm business, and it was actually necessary for him in behalf of the firm to obtain credit and borrow money and give security therefor, the partner had authority to borrow money, and give security therefor.
    [Ed. Note. — For other cases, see Partnership, Dec. Dig. § 131.]
    5. Appear and Error (§ 1175) — Disposition of Case on Appeal.
    Where a case was fully developed, the court on appeal from an erroneous judgment will render the proper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §,§ 4573-4587; Dec. Dig. §.

    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by A. D. McCord against J. A. Hieatt and others. From the judgment rendered, defendant W. F. Miller appeals.
    Affirmed in part, and reversed and rendered in part.
    Seth Shepard, Jr., of Dallas, for appellant. J. J. Collins, Lee Richardson, and Wendell Spence, all of Dallas, for appellee.

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

   TALBOT, J.

On September 7, 1910, A. D. McCord filed suit against J. A. Hieatt, W. F. Miller, and the city of Dallas, alleging: That in the year 1910 he, the said McCord, and J. A. Hieatt formed a nontrading partnership for the purpose of undertaking the work of clearing the White Rock Reservoir site owned by the city of Dallas. That to this end the partnership of McCord & Hieatt entered into a written contract with the city of Dallas, under which the said firm was to furnish all tools, labor, materials, and supplies at their own expense, and cut the timber from and clear said reservoir site. That performance under this contract was begun by the contractors, who had first arranged for a supply of funds from a Dallas bank, and continued until the said bank failed to advance the money as it had agreed, when the work ceased, and was abandoned by the contractors. At this time McCord & Hieatt had cut the timber from about 159 acres of the land designated, but had not cleared that land of the brush and débris as stipu-Iated in the contract, and the city of Dallas declared the contract forfeited. Plaintiff further alleged that said Hieatt was converting to his own use the wood that had already been cut from the reservoir site; that such wood, he was advised by counsel, was the property of the city of Dallas under the terms of the contract, and not the property of the contractors, who had failed in their performance of the said contract with the city, and that said wood so cut constituted and should be held as a fund for the benefit of the city of Dallas which had been occasioned loss by the said contractor’s failure to complete performance of the said contract; that said Hieatt had mortgaged a large quantity of the said wood to defendant W. F. Miller to secure an alleged indebtedness to said Miller; that the partnership of McCord and Hieatt was a nontrading partnership, and that Hieatt had not the legal authority so to dispose of said wood. The plaintiff Mc-Cord prayed for a dissolution of the partnership, the annulment of Miller’s mortgage, and that Hieatt & Miller be restrained by injunction from disposing of said wood, and finally that a receiver be appointed to take possession of the same, holding the same as a fund to be distributed under the order of the court after final hearing. Defendant Hieatt answered by general denial, and specially denied that he and McCord formed a nontrading partnership. He alleged that he only entered into an agreement with McCord to form a partnership to undertake the work of clearing the reservoir site, by the terms of which contemplated partnership each partner was to furnish an equal amount of money, and Hieatt was to have the sole management and control of the business and of the disposition and disbursement of all moneys, and the sale, incumbrance, and removal of all wood cut from the reservoir site; that because of McCord’s failure to abide by the terms of this agreement Hie-att declared such agreement at an end; that Hieatt borrowed $1,300 from defendant Miller, giving the latter a chattel mortgage on the wood then lying cut or stacked on the reservoir site, and that the money so borrowed was used in paying for labor used in clearing the said reservoir site. Hieatt further alleged that the wood cut was cut and removed according to the terms of the contract, and under the direction of the city engineer and with his approval, and the defendant Hieatt thereupon asked that the temporary injunction be dissolved. A hearing was had before the court on September 10, 1910, and the court appointed G. L. Ford receiver of the said partnership, and the receiver under order of the court sold the wood and charcoal and returned into court the net sum of $2,371.21, where it still remains. Before the final hearing was had, the city of Dallas answered by alleging that the said contract was never performed by the firm of McCord & Hieatt, but was by them abandoned; that the contract was relet to another contractor, and that by reason of the failure of said McCord & Hieatt to perform the said contract the city of Dallas suffered the net sum of $7,345.96 damages; that the city of Dallas owned and still owns the wood cut from the reservoir site by the said contractors, and that title to said wood never passed to the latter, but always remained in the city of Dallas because of the failure of the said McCord & Hieatt to perform the said contract with the city of Dallas. The said city thereupon prayed for an order directing that all the money in the hands of the receiver be paid to the city of Dallas a's a credit on its claim of $7,345.96 against said McCord & Hieatt, and that it have judgment for the balance. Defendant W. F. Miller answered by general denial, and also specially alleged that on May 21, 1910, and prior thereto, defendant Hieatt was the managing partner of the firm of McCord & Hieatt, which firm had contracted with the city of Dallas to clear the White Rock Reservoir site; that by agreement between Hieatt and his partner, McCord, the former was clothed with the entire management of the finances of the firm, of its books and office business, and with the payment and settlement of its debts, and with full authority to borrow money in his individual capacity for the use of the firm in the performance of the contract with the city, and to execute in the same manner notes and mortgages securing the same, binding on the firm and on the firm .property; that on May 21, • 1910, the said Hieatt and A. D. McCord were indebted to defendant Miller in the sum of $1,000 evidenced by a note for that amount, dated May 21, 1910, and payable on demand to the order of W. F. Miller; that this note was signed and executed by J. A. -Hieatt alone, but that it was executed by him for and in behalf of the firm and with the knowledge and authority of McCord; that, therefore, McCord & Hieatt became bound to defendant Miller for the amount of the note, interest, and attorney’s fees stipulated therein; that said note was secured by a chattel mortgage on 4,300 cords of wood cut and lying stacked on the said reservoir site, said wood being that which was cut under the said contract with the city; that said mortgage was executed on the same day and in the same manner as the note which it secured. Defendant Miller further alleged that he advanced the firm an additional $300, which was evidenced by a note for that amount, dated, due, and payable and executed in the same manner as the note for $1,000, whereby the said firm became bound to him for that amount; that for the securing payment of the note for $300 the defendant Hieatt agreed to give to defendant Miller for and in behalf of the said firm a chattel mortgage on the wood above mentioned, but that neither Hieatt nor McCord ever gave the said mortgage as promised. Defendant Miller further alleged that the said $1,300 was advanced by him and paid to Hieatt for the benefit of the firm to. enable it to carry out its contract with the city, and that the said money was actually used by McCord & Hie-att in prosecuting the work under their contract with the city; that therefore defendant Miller was entitled, in addition to his express lien under the mortgage aforesaid, to an equitable lien on the said wood; that Miller further alleged that the receiver appointed by the court sold the wood recovered by Miller’s mortgage, and returned the money derived from the sale into court. Wherefore defendant Miller prayed for judgment against J. A. Hieatt and against A. D. McCord for his said debt, interest, attorney’s fees, and costs, and for judgment declaring the said indebtedness a lien on the fund paid into court as aforesaid, and for an order directing the clerk to pay to Miller the amount prayed for out of said. fund. The defendant J. A. Hieatt having died before the final hearing, his heirs were properly made parties and filed answers herein adopting the answer already filed by the said J. A. Hieatt.

The cause was then tried before the court without a jury, and judgment was rendered in favor of the city of Dallas against A. D. McCord for the sum of $7,345.96, that the city of Dallas was entitled to the fund in court after payment of costs and expenses of the receivership, and that the clerk be directed to pay the balance to the city of Dallas. Judgment was also rendered that plaintiff A. D. McCord take nothing against the heirs of J. A. Hieatt, and that the defendant W. F. Miller take nothing, and that as to his plea for recovery upon the notes and chattel mortgage sued upon the plaintiff and all the defendants go hence without day. Defendant Miller excepted to the judgment of the court, and filed his motion for a new trial, which was overruled. Miller then requested the court to file conclusions of law and fact, which was done, and to these conclusions he excepted and appealed.

The trial court found that the material allegations of the plaintiff’s petition were true; that, by the terms of the partnership agreement between McCord and Hieatt, Hie-att was to finan^ the enterprise or business for which the partnership was formed, and McCord was to personally superintend the work; that, in furtherance of this agreement and the performance of the contract entered into between said partnership and the city of Dallas to cut and remove the timber from the reservoir site, Hieatt borrowed from the appellant, Miller, $1,000, and executed and delivered to him therefor the note set out and described in Miller’s answer and cross-bill; that, to secure the payment of the $1,000 note so made and delivered, Hieatt executed to Miller a chattel mortgage, of the same date of said $1,000 note, upon 4,300 cords of wood which had been cut and stacked on said reservoir site under the contract of McCord & Hieatt with said city of Dallas; that there might have been a verbal agreement between J. A. Hieatt and the said W. F. Miller to the effect that the said Hieatt would give Miller also a chattel mortgage on the same property set out in said chattel mortgage given for the $1,000 note, and also upon other wood to be cut from the White Rock Reservoir site to secure the payment of the $300 note, but no such chattel mortgage was ever executed. The court further found, however, that the firm of McCord & Hieatt was a nontrading partnership, and hence Hieatt had no authority to borrow the $1,-300 from Miller, and bind the partnership of McCord & Hieatt or A. D. McCord by the execution of the notes given therefor. Appellant complains of these findings of the court, and contends (1) that the evidence shows that the firm of McCord & Hieatt was a trading or commercial partnership, and that in such a partnership one member of the firm has the legal authority to borrow in his individual capacity money for partnership purposes, and to execute a mortgage on property of the firm to secure such debts and bind the firm thereby; ,(2) that, if the firm of McCord & Hieatt was a nontrading partnership, still the firm and each member thereof was liable on the notes sued on by W. F. Miller because Hieatt had express authority from his partner, McCord, to execute said notes.

That members of trading partnerships have power to borrow money, to be used for partnership purposes, and that members of what are termed nontrading partnerships have not implied power to do so, is well settled; but as said in Randall v. Merideth, 76 Tex. 683, 13 S. W. 576, there is some difficulty in determining in all cases whether a partnership belongs to the one class or the other. It is said that, the borrowing of money and negotiation of bills and notes being incidental to and usual in the business of copartnerships formed for the purpose of trade, it follows that when a copartner borrows money professedly for the firm, and executes therefor a negotiable instrument in the copartnership name, it will bind all the partners, whether the borrowing was really for the firm or not, and whether he diverts and misapplies the funds qr not, provided the lender is not himself cognizant of the intended fraud. If, however, there be mere joint ownership, or only a particular agreement to share in a single transaction, or a copartnership in a matter of business not requiring the execution of negotiable paper as the proper, usual, and convenient mode of conducting it, the copartners will not be impliedly bound by the act of one, but must give him express authority. I Daniel on Negotiable Instruments (5th Ed.) §§ 357, 358. In Kimbro v. Bullitt et al., 22 How. 256, 16 L. Ed. 313, the Supreme Court of the United States held that a bill drawn by a partner in the name of a firm engaged in farming, working a sawmill, and in trading was binding, because trading and running tbe mill required capital and tbe use of credit; but that, if tbe firm bad been engaged in farming alone, no one partner could, have bound it by a bill or note. But it bas been held that a firm engaged in manufacturing and selling of lumber, bark, etc., upon a tract of land specified and “upon any other tract wbicb shall be purchased by said copart-ners,” is such a trading copartnership as clothes the members thereof with authority to bind the partnership. Rumsey v. Briggs, 139 N. Y. 323, 34 N. E. 929. In Schellenbeck v. Studebaker, 13 Ind. App. 437, 41 N. E. 845, 55 Am. Rep. 240, it is held that a partner in a nontrading partnership has no implied authority to execute negotiable paper in the firm name, unless it is the common eustonl or usage or necessary for the transaction of the business of such firm. The rule is therefore firmly established that in the ease of commercial or trading partnerships each partner has undoubted authority to pledge the partnership property, or borrow money in its name for partnership purposes, and draw, negotiate, accept, or indorse bills of exchange or promissory notes and other negotiable securities, or do any acts incident or appropriate to the firm business according to the common course and usages of such trade and business, and that the individual members of nontrading partnerships, which are usually defined to be such as are limited to a single enterprise and are not engaged in trade, have no implied authority to borrow money, and bind the firm therefor by notes given in its name, or to pledge the assets of the partnership as security for money borrowed, in the absence of proof to show the actual necessity or usage for the exercise of such power by the individual members of the firm in conducting its business.

It is not essential, in order to bind the partnership, that the contract be signed by all of the partners, nor that the firm name be used. If it is signed by one partner having authority, with intent to bind the firm and so accepted and credit extended thereto, it is binding on the firm. Baxter v. Rollins, 90 Iowa, 217, 57 N. W. 838, 48 Am. St. Rep. 432, and note. In Judge v. Braswell, 13 Bush (Ky.) 67, 26 Am. Rep. 189, it is aptly said that the business of a commercial partnership being ascertained, and the nature of the contract made by a single member and the circumstances attending it being shown, the court may generally determine as matter of law whether the contract was within the scope of the implied powers of a partner. Not so, however, in reference to a contract made by a member of a non-trading or noncommercial partnership. In the latter case a partner does not generally possess power to bind the firm, and consequently the extent of his power is not fixed by the rules of law, but each case is left to be decided upon its particular facts; and in all such cases, in order to make out the liability of the firm, it ought to be shown affirmatively by the plaintiff that the partner had power to make the contract in question.

In the case before us the partnership agreement was not in writing, but it was distinctly understood at the time the partnership 'was formed that J. A. Hieatt was to finance the enterprise, and that it was actually necessary for him in behalf of the co-partnership to obtain credit and borrow money in a large amount for that purpose, necessitating the execution of negotiable paper therefor.. With this understanding the firm of McCord & Hieatt made the contract with the city of Dallas to cut and remove the timber from the reservoir site. D. C. McCord, who acted for A. D. McCord, in the making and in the performance of said contract, testified that he and Hieatt went to the cashier of the Union National Bank in Dallas and laid before him the matter of borrowing $20,000, and that the cashier stated he would “fix up the papers”; that there was some delay, however, in doing this, and Hieatt paid off the men working for them out of his private funds for three payments, amounting to about $700; that this was repaid by the bank which advanced other amounts for the pay roll, all to the amount of about $4,500; that the partnership was equal as to profits or losses between himself and Hieatt; that after the Union National Bank sold out to the Commonwealth National Bank, and failed to furnish more money, Hieatt tried to arrange with other banks for money to carry on the work and business of the partnership, but was unsuccessful. He further testified that he did not know that Hieatt had borrowed money from appellant Miller, who was the cashier of the Union National Bank. So that considering the actual and recognized necessity on the part of both McCord and Hieatt, for the borrowing of a very large amount of money to enable them to carry out their contract with the city and transact the business of the firm of McCord & Hieatt, etc., the correctness of the trial court’s holding that said firm was a nontrading partnership may be doubted, but, if it be conceded that such holding was correct, still we think the liability of said firm and of A. D. McCord as a member thereof, for the payment of the notes declared on by Miller, under the rules of law above stated and the facts shown by the record, very clearly appears. The evidence, in our opinion, shows without contradiction that Hieatt had express authority from his partner, McCord, to execute said notes, or shows such facts as establish beyond controversy that Hieatt had been invested by McCord with the requisite authority to create said indebtedness. This being true, whether the partnership was a trading or nontrading partnership, the firm of McCord & Hieatt and each member thereof is liable on said notes. According to the undisputed testimony, J. A. Hieatt, under the partnership agreement, was to have the entire' financial management of the firm business and McCord, because of his knowledge of the general contracting business was to furnish advice along those lines and look after the execution of the work of the co-partnership. I>. C. McCord testified, in addition to what is stated above, that he, as the represenative of A. D. McCord, was to superintend the work of clearing the reservoir site, and that J. A. Hieatt was to finance the proposition; that he and Hieatt employed a foreman of the work who was given power to employ as many men as the nature of the work demanded; that he and Hieatt gave-their personal attention to the carrying out of the contract with the city; that they would go out to the work nearly every day, would compare the pay roll together, and both would go out and pay off the men, until the break came about money; that Hieatt kept the books of the firm and received the money for the wood and charcoal disposed of while the firm was attempting to carry out the contract. This witness further testified, in substance, that the work under the contract with the city continued fairly well until about three weeks before turning the contract back to the city, and that about 10 or 15 per cent, of the work had then been done, but that none of it was completed as contemplated by the contract; that during the performance of the work done he and A. D. McCord knew that J. A. Hieatt was borrowing money or had borrowed money from the Union National Bank, but knew of no other money being borrowed; that under the partnership agreement Hieatt was to finance the work and witness for A. D. Mc-Cord was to look after the execution of it; that Hieatt was to pay the men if he chose to do so; that the men were to be employed through a foreman and Hieatt was to pay all bills.

That Hieatt under the testimony shown in the record possessed the power to bind the firm of McCord & Hieatt and the members of said firm by the notes sued on by appellant we have no doubt. The authority to do so, if not in terms given by his partner, McCord, was, according to the undisputed evidence equivalent to express authority, and judgment should have been in favor of appellant against said firm and A. D. McCord for the amount of said notes. The fact that A. D. McCord did not know that Hieatt was going to and had borrowed the money from appellant does not alter the case.

The next question is: Did the court err in refusing to foreclose the chattel mortgage given by J. A. Hieatt to secure the payment of the notes declared on by appellant on the fund in the registry of the court derived from the sale by the receiver of wood cut by the firm of McCord & Hieatt under their contract with the city of Dallas? The contract between McCord & Hieatt and the city of Dallas was not performed, and, this being true, the trial court, in addition to holding that the mortgage was void because the firm of McCord & Hieatt was a nontrading partnership and Hieatt was therefore without authority to execute it and bind the firm, held that, under the terms of said contract with the city, the title to the wood in question did not pass to McCord & Hieatt, and for that reason the mortgage was of no effect as against the rights of the city. The trial court further held that the proof wholly failed to show that the wood mentioned in and covered by the mortgage was the wood which the receiver took possession of and converted into money under the direction of the court. We are of the opinion that J. A. Hieatt was clothed with authority to execute the mortgage and bind the firm thereby, but we are not prepared to say that the court erred in his construction of the contract, or in his conclusion that the evidence was insufficient to show that the wood taken in charge by the receiver was the same wood covered by appellant’s mortgage. It was incumbent upon appellant to show that the wood received and sold by the receiver was the wood included in his mortgage, otherwise a foreclosure upon it or the proceeds arising from its sale was unauthorized. The trial court, as before stated, held that the evidence offered “wholly failed” to show that fact, and after an examination of the evidence we conclude that we would not be justified in disturbing that holding. At all events, we would not be warranted in saying that it was conclusively established by the evidence that the wood taken by the receiver and by him sold was the same wood covered by appellant’s mortgage. Not being able to so say, the finding of the lower court upon the issue should stand.

What we have said disposes practically of all the questions raised by the assignments of error, and renders a discussion of the assignments in detail unnecessary. The case seems to have been fully developed, and we see no necessity for remanding it for another trial. It is therefore ordered that the judgment of the district court, in so far as appellant Miller was by it denied a recovery for the amount of the notes sued on by him, be reversed and judgment here rendered in his favor against the copartnership of McCord & Hieatt and A. D. McCord individually for the amount of said notes, and that said judgment in all other respects be affirmed.

Affirmed in part; reversed and rendered in part.


source: Caselaw Access Project

author: DUNKLIN, J. DUNKLIN, J.

license: Public Domain

text:
    FIRST NAT. BANK OF MERKEL v. THURMOND et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 29, 1913.
    On Motion for Rehearing, May 17, 1913.)

      1. Judgment (§ 525) — Construction—Recitals — Default of Appearance.
    In an action against a bank as guarantor 'of a note, a judgment rendered against' it recited that the bank had made default although duly cited, notwithstanding at the time the bank, though not present at the trial, had on file its answer. Held, that as the answer did not deny the guaranty, but only set up the defense that it was ultra vires and void, and as there were other recitals showing that evidence was introduced to prove the cause of action, there was no error.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 568, 968, 982y2; Dec. Dig. § 525.]
    2. Appeal and Error (§ 980) — Review — Discretion of Lower Court — New Trial.
    Judgment by default was rendered against a bank as guarantor of a note. The ground on which a new trial was asked was that the bank was not present at the trial, because it understood that the principal obligor had made arrangements to pay the note, and that plaintiff had agreed to dismiss the action, and that it did not know otherwise until after the trial. Held, that the lower court must have held the bank negligent in failing to be present, and there was nothing to show an abuse of discretion in so holding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3874, 3875; Dec. Dig. § 980.]
    On Motion for Rehearing.
    3. Judgment (§ 237) — Parties—Guaranty-Discontinuance as to Principal.
    Rev. Civ. St. 1911, art. 1897, which provides that where a suit is discontinued as to a principal obligor, no judgment can be rendered against an indorser, guarantor, or surety, unless it is alleged and proven that the principal obligor resides beyond the limits of the state, or in such part of same that he cannot be reached by ordinary process of law, or that his residence is unknown, or that he is dead, or insolvent, is mandatory; and, in the absence of a pleading alleging the facts required by the statute, a judgment against a guarantor, after the suit had been dismissed as to the principal obligor, was erroneous.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 323; Dec. Dig. § 237.]
    Appeal from District Court, Mitchell County; James L. Shepherd, Judge.
    Action by F. G. Thurmond and others against the First National Bank of Merkel. From a judgment in favor of plaintiffs, defendant appeals.
    Reversed on rehearing.
    C. D. Mims, of Merkel, for appellant. L. W. Sandusky, of Colorado, Tex., ’for appel-lees.

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

   DUNKLIN, J.

The First National Bank of Merkel has appealed from a judgment against it in favor of F. G. Thurmond, for himself and as guardian of the estate of P. M. Thurmond, a minor. The judgment recites that appellant had made default, notwithstanding at the date of its rendition appellant had on file an answer to the petition. No statement of facts appears in the record, but it appears from plaintiff’s petition, which was filed January 21, 1911, that the suit was upon a promissory note alleged to have been executed by T. J. Coggin, C. N. Coggin, and J. J. Strange, payable to plaintiff. It is further alleged in the petition that after maturity of the note defendant T. J. Coggin authorized plaintiff to draw a draft upon appellant bank for the amount of principal and interest then due on the note; that there: after, when plaintiff inquired of the. president of the bank if T. J. Coggin had deposited there funds sufficient to pay the amount' so due said president made the following in-dorsement on the note: “September 11, 1908. You are hereby authorized to check on the First National Bank of Merkel, Texas, for the amount of this note when you want it. [Signed] George Berry, President.” Relying upon said guaranty of its payment, plaintiff made no further effort at the time' to collect the note. Appellant filed an answer to the petition May 22, 1911, consisting of a general demurrer and a plea that the written guaranty upon which plaintiff relied to hold appellant liable was ultra vires and void. The judgment is dated June, 1912, and recites that appellant, although duly cited, had made default. It contains the further recitals that evidence was heard from which it appeared that plaintiff’s cause of action was a liquidated demand, evidenced by a promissory note secured by a-deed of trust on certain described property in the judgment, and that the payment of the note was guaranteed by defendant, the First National Bank of Merkel, Tex. On June 11, 1912, appellant filed its motion for a new trial, duly verified, alleging that in December, 1911, defendant T. J. Coggin. with the assistance of appellant’s attorney, procured an agreement from a person not a party to the suit to lend him the money required to liquidate the notes sued on; that plaintiff who was present when that arrangement was made, agreed that if the money was so procured, he would dismiss the suit. It was further alleged in the motion that appellant's attorney was led to believe that the settlement so arranged had been consummated and the suit dismissed; that the clerk of the court also entertained the same belief, and, acting thereon, omitted the case from the court’s docket, but later, at plaintiff’s instance, again entered it upon the docket, and that neither appellant nor his counsel, both of whom were nonresidents of the county in which judgment was rendered, knew until several days after its rendition, and as soon as such information was obtained the motion was filed.

The contention urged by the first assignment is that it was error to render judgment by default against appellant when its answer was on file, and that this error alone constitutes a sufficient cause for a reversal. By tlie second assignment it is insisted that the motion for a new trial presented a meritorious ground for a new trial, and that the court erred in overruling it. As" noted, appellant did not deny the execution of the written guaranty on the note; the only defense alleged being that the same was an obligation beyond the legitimate powers of a national bank. While the judgment recites that appellant made default, it was rendered on proof offered at the time of the trial. In overruling the motion for a new trial, the court necessarily must have held that appellant was negligent in failing to be present at the trial, -and we cannot say that this holding showed an abuse of the court’s discretion. So construing the order, both assignments must be overruled.

The judgment is affirmed.

On Motion for Rehearing.

Q. T. Moreland, of Ft. Worth, for appellant.

DUNKLIN, J.

The First National Bank of Merkel has appealed from a judgment against it in favor of F. G. Thurmond, for himself and as guardian of the estate of P. M. Thurmond, a minor. There is no statement of facts in the record, but it appears from plaintiff’s petition that the - suit was upon a promissory note, alleged to have been executed by T. J. Goggin, O. N. Coggin, and J. J. Strange payable to plaintiff. It is further alleged in the petition that after maturity of the note defendant T. J. Goggin authorized plaintiff to draw a draft upon appellant bank for the amount of principal and interest then due on the note; that thereafter, when plaintiff , inquired of the president of the bank if T. J. Goggin had on deposit with the bank funds sufficient to pay the amount so due, said president made the following indorsement on the note: “September 11, 190S. You are hereby authorized to cheek upon the First National Bank of Merkel, Texas, for the amount of this note when you want it. [Signed] Geo. Berry, President.” Plaintiff further alleged that, relying upon this guaranty of the payment of the note, he made no further effort at that time to collect the note. The judgment contains a recital that appellant had made default, although duly served with citation, but contains other recitals Indicating that evidence was introduced to prove the plaintiff’s cause of action. Prior to the date of the judgment appellant had filed an answer which seems to have been overlooked by the court at the time the judgment was rendered. The judgment contains the further recital that the plaintiff dismissed his suit as to the defendant G. N. Coggin and J. J. Strange who, as noted above, were alleged to be two of the principal makers of the note. There is no pleading in the record containing any allegation that either G. N. Goggin or J. J. Strange resided beyond the limits of the state, or that he could not be reached by the ordinary process of law, or that his residence was unknown, or that he was dead or insolvent.

On the original hearing we overruled all assignments of error presented in appellant’s .brief, and affirmed the judgment. But by motion for rehearing appellant invokes article 1897, Revised Civil Statutes 1911, and insists that by virtue of the terms of that article, and in the absence of any pleading of the character just noted, the judgment rendered against it was fundamentally erroneous. The article of the statutes referred to reads: “Where a suit is discontinued as to a principal obligor, no judgment can be rendered therein against an indorser, guarantor, surety or drawer of an accepted bill who is jointly sued, unless it is alleged and proven that such principal obligor resides beyond the limits of the state, or in such part of the same that he cannot be reached by the ordinary process of law, or that his residence is unknown and cannot be ascertained by the use of reasonable diligence, or that he is dead or actually or notoriously insolvent.” We are of the opinion that this statute is mandatory, and that, in the absence of a pleading alleging the facts required by the statute, the judgment must be reversed. Breed v. Higginbotham Bros., 141 S. W. 164; Welch v. Phelps, 37 S. W. 175.

For the reasons above indicated, the motion for rehearing is granted, the original opinion filed by us withdrawn, and the judgment reversed, and the cause remanded.


author: CONNER, C. J.

text:
    VERSYP v. VERSYP.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 17, 1913.
    Rehearing Denied June 14, 1913.)
    1. Husband and Wipe (§ 281) — 'Validity— FRAUD — UNDERSTANDING CONTRACT — EQUI-TABLENESS.
    Plaintiff and defendant being husband and wife, and having separated, defendant, by contract, gave plaintiff certain land, after her death to go to their children. Defendant set up fraud in procuring the contract. The jury specially found that there was no fraud, but that the contract was not just and equitable and that the parties did not understand its effect. Held error to enter judgment for defendant canceling the contract on such findings; since it was immaterial that the parties did not understand the precise meaning of all the terms of the contract, and the jury could not substitute their judgment of the equitableness of the contract for that of the parties themselves.
    [Ed. Note. — For other ‘cases, see Husband and Wife, Gent. Dig. § 1061; Dec. Dig. § 281.]
    2. Triad (§ 251) — Instructions—Issues.
    In an action to enjoin a trespass, where defendant alleged fraud in procuring a contract whereby land was transferred to plaintiff, his wife, from whom he had separated, and asked for its cancellation instructions that a lien on the land reserved in the contract in favor of defendant’s children by a former wife and plaintiff’s promise to pay same were inoperative, and that, though by the contract plaintiff was given the custody of their children, defendant would still be liable for their support, were foreign to the issues in the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    3. Husband and Wife (§ 279) — Separation Contract — Validity.
    Where a husband and wife have already separated, a conveyance intended as a provision for the wife’s support will be upheld though the property conveyed was the separate property of the husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1054, 1056-1060; Dec. Dig. § 279.]
    4. Deeds (§ 211) — Validity—Equitableness —Evidence.
    Evidence held not to show that a contract conveying land was so unjust and inequitable as to warrant setting it aside.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.] '
    Appeal from District Court, Taylor County ; Thos. L. Blanton, Judge.
    Action by Clara F. Versyp against James Versyp. From a judgment for defendant, plaintiff appeals.
    Reversed, and judgment rendered for appellant.
    Scarborough & Hickman, of Abilene, for appellant. D. G. Hill, of Abilene, for ap-pellee.

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

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

   CONNER, C. J.

Appellant instituted this suit on January 26, 1911, to enjoin her husband, James Versyp, from trespassing upon and interfering with her control of the 200-acre tract of land occupied by her as a homestead and claimed in her separate right by virtue of a separation contract executed by the respective parties on the 12th day of February, 1910. A temporary writ of injunction was issued; but upon a trial of the merits in the district court the injunction was vacated, on the ground that the contract had been executed by the mutual mistake of the parties in supposing that the lands disposed of by the contract were - community property instead of the separate property of James Versyp. On appeal, however, the judgment was reversed by the Court of Civil Appeals for the Eighth Supreme Judicial District for the reason that there was neither pleading nor evidence authorizing an annulment of the contract on the ground of mutual mistake. See Versyp v. Versyp, 146 5. W. 705. On the last trial in the district court, the one now- under consideration, it seems that the defense of mutual mistake if ever asserted was abandoned; defendant’s special plea in substance being that the land was wholly acquired by his separate means, that he had been induced to execute the contract by fraudulent representations, that it was the community property of himself and the plaintiff, and that the contract as made was unjust and inequitable.

In answer to special issues submitted by the court to the jury, it found, among other things that are omitted as immaterial, that at the time of the execution of the contract in question the parties were “permanently separated,” and that James Ver-syp was not “induced to execute” it “by reason of any false or fraudulent representations made to him by the plaintiff or her attorney.” The jury also found that the provisions of the contract were not “just and equitable.” The court upon all findings entered a judgment in defendant’s favor, canceling the contract and dissolving the injunction.

It is undisputed that the plaintiff and the defendant were duly married in 1889, and lived together as husband and wife until in January, 1910, when the parties permanently separated and have not lived together since; that of this marriage four children were born, three boys and one girl, the boys at the date of the contract being aged 18, 13, and 9 years, respectively, and the girl then being 13 years of age; that at the date of the contract the parties owned certain cattle, horses, and farming implements that belonged to them in community, and James Versyp owned in his own separate right 320 acres of land, upon which the parties lived and farmed. On the date already stated, to wit, February 12, 1910, James Versyp and Clara F. Versyp entered into and duly executed a contract in writing whereby the personal property was divided as therein stated and as to which there seems to be no controversy in this suit, and the 320 acres mentioned were disposed of upon the terms and in the proportions following: That is to say, Mrs. Versyp was to have 200 acres situated south of the Texas & Pacific Railway right of way, now occupied by her, and James Versyp was to retain the 110 acres lying north of such right of way. Mrs. Versyp assumed to pay, upon terms and at times stated, $2,600 to two adult children of James Versyp by a former marriage, due them it seems as their interest in their deceased mother’s estate which had been purchased by James Ver-syp, and agreed not to sell the land but to retain the entire estate therein until her death, when it should pass jto her children. The contract recited that “said sums of money due the above parties (James Versyp’s former children) are liens upon the above-described property (all the real estate mentioned) to secure the payment of the same.” It was further agreed that Mrs. Versyp was to remain in the custody and control of the children of the marriage, and that James' Versyp was not in any way to interfere with the custody of the same. It further appears that after the execution of the deed the parties acted in accordance with its terms for some time; but that, after James Ver-syp had returned from a visit to the foreign country of his birth, he, during the plaintiff’s absence, entered into one room of her home and against her will has continued to reside there since from time to time, as the plaintiff testified, interfering with her control and the proper management of her farm. The plaintiff further testified that none of the debt that she had assumed to pay in the contract had been paid, but that the payment as it matured according to the terms of the contract had been prevented by the defendant’s interference. No complaint, however, on the part of James Versyp’s earlier children appears to have been made, so far as shown in the present record.

With the foregoing statement we shall undertake to briefly dispose of appellant’s assignments of error. Appellant insists under her first assignment that, the jury having found that at the date of the contract in question the parties were permanently separated, and that the defendant had not been induced to enter into it by any fraud or misrepresentation, the court should have entered a judgment for her, and we think this contention must be sustained. We infer that the court entered the judgment he did on the ground that the jury in addition to the findings that the provisions of the contract were unjust and inequitable, further found that the parties did, not “understand the terms of said contract and the legal effect in relation to the property rights.”

These findings may have been in a measure influenced by the court’s charges, to which error is assigned, to the effect that the lien given in the contract to secure the payment of the $2,600 to James Versyp’s former children was inoperative as against the 200 acres awarded to the plaintiff, as was also Mrs. Versyp’s agreement to pay said $2,600 in event she was possessed of no other property; James Versyp in that event, as instructed, being liable. The court also charged that regardless of their custody James Versyp was liable for any debts contracted in behalf of the education and maintenance of the children during their minority. But, whatever the influence of these charges, we regard the questions therein presented, as also the special findings supposed to have influenced the judgment, as wholly foreign to the controlling issues in the case. It will be enough to determine the rights and remedies of other parties when they are presented for determination. It is clear from the undisputed evidence and the jury’s findings that both parties had the capacity to contract, that each entered into it willingly after advice of counsel and discussion of its terms, and that no fraud or misrepresentation induced its execution. It is immaterial under such circumstances that the parties may not have understood the precise meaning of all of its terms nor the exact limits of its legal effect. Nor under such circumstances can the judgment of the jury as to whether the provisions of the contract were equitable or inequitable be substituted for that of the parties tQ the contract. It is sufficient that the parties were competent to contract and did so without fraud or imposition.

As held on the former appeal and by the weight of authority in the American courts, where spouses have already separated, a conveyance intended as a provision for the support of the .wife will be upheld. Rains v. Wheeler, 76 Tex. 395, 13 S. W. 324; Speer on Law of Married Women, § 91; Moore v. Moore, 28 Tex. Civ. App. 600, 68 S. W. 60. And in such case it cannot be material that property conveyed to the wife with such laudable end in view had theretofore been separate property of the husband.

Moreover, we agree with the conclusion of the El Paso court, founded upon the same evidence, that the contract in question was fair and reasonable, certainly not so inequitable as to authorize its cancellation. At or'about the time of its execution, James Versyp expressed the purpose of permanently returning to the land of his birth. He did so, though later returning to this country. The inference is strong that his purpose at the time of the execution of the contract was to relieve himself of the debt due the children of his former wife and to impose upon the plaintiff in this suit the burden of the future care and maintenance of his minor children. What more natural or just thing could he do under the circumstances than to make some provisions for the wife — the future burden bearer? The provision made was intended to convey to her but a life estate in the land with remainder over to his own children, in consideration for which the wife assumed the entire burden of maintaining their children and agreed to pay $2,600 due from James Versyp alone. It is true he was a foreigner and may not have been learned in either literature or law; but without dispute he had lived in America many years and could but have understood the use and meaning of ordinary terms, in addition to which, as stated, the evidence shows that the contract was not executed until after discussion and consultation with counsel, whose fairness has not been impugned by the verdict. In brief, we find nothing in the evidence nor in the provisions of the contract rendering it unjust or inequitable to James Versyp. On the whole, therefore, we conclude, as stated before, that under the material findings of the jury the judgment should have been for appellant.

It is accordingly ordered that the judgment below be reversed, and that it be here rendered for appellant, with execution for possession, perpetuating the injunction in accordance with her prayer.


author: PLEASANTS, C. J.

text:
    FREUND et al. v. SABIN.
    (Court of Civil Appeals of Texas. Galveston.
    May 16, 1913.
    On Motion for Rehearing, June 13, 1913.)
    1. TRESPASS TO Try TITLE (§ 41) — EXECUTION — Evidence—Sufficiency.
    In trespass to try title, evidence held to sustain a finding that the person through whom plaintiff claimed had reconveyed the premises, by deed not found and not recorded, to one through whom defendant claimed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §,§ 62, 63; Dec. Dig. § 41.]
    2. Vendor and Purchaser (§ 230) — Bona Fide Purchaser — Notice.
    Where a purchaser knew before the purchase that a third person claimed to own the land, and the purchaser and his attorney examining the title had an abstract of title containing a deed reciting facts of conveyances and contracts supporting the claim of the third person, the purchaser was put on notice and he was not a purchaser in good faith.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. §.

    Error to District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Alex Freund and another against D. g. Sabin. There was a judgment for defendant, and plaintiffs bring error.
    Affirmed.
    G. H. Pendarvis and W. F. Tarver, both of Houston, for plaintiffs in error. E: P. & Otis K. Hamblen, of Houston, for defendant in error.

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

   PLEASANTS, C. J.

This is an action of trespass to try title brought by Alex Freund and H. M. Curtin against L. S. Sabin. The trial in the court below without a jury resulted in a judgment in favor of the defendant.

The land .in controversy is six blocks in what is known as the Ryon addition to the city of Houston and is a part of the John Austin two-league grant. This original grant was square in shape; the lines of the grant being 7,080 varas in length and running with the cardinal points of the compass. The city of Houston was originally located upon the south half of the east half of the grant, and the north half of the east half, which includes the property in controversy, was subdivided at an early date into 80 blocks of four lots each; each lot containing seven acres with roads or streets between the blocks, the subdivision being known as Germantown. There is some uncertainty as to the exact location of these subdivisions, for the reason that the plat does not exactly fix the ground, being too wide east and west and too short north and south, but for the purposes of this case the location of the blocks, including the property in controversy, was fixed by agreement of counsel. Elizabeth Pierpont is common source of title. On October 24, 1838, she and her husband conveyed to W. N. Bronaugh the northeast one-fourth of said John Austin grant. Bronaugh made the Germantown subdivision above mentioned. On November 17, 1844, he recon-veyed to Mrs. Pierpont the land theretofore conveyed to him by her, except certain designated lots and blocks in said subdivision aggregating 161 acres, which do not include the blocks in controversy. Thereafter Mrs. Pierpont conveyed certain portions of the land, not including that in controversy, and on March 2, 1848, she conveyed to her brother-in-law, Wm. T. Austin, all of her interest in the east half of said grant. Austin made conveyances of various portions of the land but none of such conveyances included the land in controversy. On May 25, 1854, Mrs. Pierpont conveyed to Wm. Ryon 328 acres of land, described as all of her interest in the north half of the east half of said grant. If the quantity of land sold by Mrs. Pierpont after the reconveyance to her by Bronaugh is added to the quantity sold by Wm. T. Austin after the conveyance to him, the balance remaining of the land reconveyed to Mrs. Pierpont by Bronaugh was approximately 328 acres, the quantity ,stated in her deed to Ryon.

On August 28,1862, Wm. Ryon, Wm. T. Austin, and Horace Gone executed the following agreement; ‘This memorandum of agreement made and entered into this 28th day of August, A. D. 1862, by and between Col. Wm. Ryon, of Ft. Bend county, state of Texas, of the first part, and Wm. T. Austin and Horace Cone, of the county of Harris and said state, of the second part, witnesseth: That the said Wm. Ryon is the owner of a certain tract or parcel of three hundred and twenty-eight acres of land, being a part of the north half of the league of land, upon which the city of Houston is situated, he having purchased the same of Wm. Pierpont and Elizabeth E. Pierpont (his wife), late widow of John Austin, deceased, to whom the said tract of land was originally granted by the Mexican government as his headlight. Now the said Wm. Ryon has this day contracted with Theodore Kosse to survey the three hundred and twenty-eight acres aforesaid, and to lay the entire tract off in town lots and blocks, corresponding with the surveys of the city of Houston. The said Wm. Ryon has likewise contracted and agreed with the said Wm. T. Austin and Horace Gone to act as his agents and attorneys in fact for him, the said Ryon, to superintend the said survey and the disposal of the said blocks and lots of land, to be sold and disposed of as soon as the said survey, plots, etc., are completed, for which personal services on the part of said Wm. T. Austin and the said Horace Gone, and in consideration of services already performed by the said Horace Cone, the said Wm. Ryon agrees to allow and award to the said Austin and the said Gone each an equal and-undivided interest of one-fourth part of said tract of land, and the proceeds arising from the sale thereof, the said Austin and the said Cone to pay each one-fourth of all expenses incident to making survey plots, etc., together with all and other expenses of every kind and description growing out of making sales and all other .things thereunto appertaining, and the other half to he borne by the said Ryon after deducting which the net proceeds arising from the sales of said property are to be divided as follows: One-half to the said Ryon, one-fourth to the said Austin, and one-fourth to the said Cone, and the said Austin and the said Cone are to make no personal charge for their said services to be rendered. The said Ryon and the said Austin and Cone will confer together on the subject and manner of making sales of the said lots and blocks, and also as to the time of making such sales, and the said Ryon will, in all instances, make and execute titles to the purchasers. It is further understood that the said Wm. Ryon reserves and has the right and privilege of selecting from the said survey after it shall have been made, and before making sales, four blocks of lots for his own use and benefit, and no charge shall be made him for the same, and after the said four blocks shall have been selected by the said Ryon, the said Wm. T. Austin shall have the right to select four blocks for his own use and benefit, and no charge to be made him for the same, the said eight blocks to be taken from the whole survey. To all of which we bind ourselves, our heirs, executors, administrators and assigns. Signed in triplicate in the city of Houston, this 28th day of August, A. D. 1862. Wm. Ryon. Wm. T. Austin. Horace Cone.” This agreement was filed for record December 22, 1906. The 328 acres was surveyed by Kosse in November, 1862, and platted in blocks and lots, with streets corresponding with the streets of the city of Houston. The survey so made and platted was designated Ryon’s addition and a map of said addition was recorded in the deed records of Harris county on November 17, 1862.

On January 10, 1863, Wm. T. Austin conveyed to James M. Foster an undivided one-half of the interest held by him in the Ryon addition under the contract before set out. This deed is as follows: “Whereas William Ryon, Horace Cone and the said William T. Austin are the owners of a certain tract of three hundred and twenty-eight acres of land, being a part of the N. half of the league of land upon which the city of Houston is situated, by virtue of a purchase made by the said William Ryon of Wm. Pierpont and Elizabeth E. Pierpont, his wife, late widow of John Austin, deceased, to whom the said tract of land was originally granted by the Mexican government as his headright. And whereas, on the 28th day of August, A. D. 1862, the said Wm. Ryon, Horace Cone and Wm. T. Austin made a contract with Theodore Kosse to make a survey of the said three hundred and twenty-eight acres of land aforesaid and to lay the entire tract off in town lots and blocks corresponding with the surveys of the city of Houston. The said Wm. Ryon has likewise contracted and agreed with the said Wm. T. Austin and Horace Cone to act as the agent and attorney in fact of him, the said Wm. Ryon, to superintend the said survey and disposition of the said blocks and lots of land to be sold and disposed of at an early day. The purchase money or consideration for which the said Wm. Ryon has sold and conveyed one-half of the said tract of three hundred and twenty-eight acres of land to the said Wm. T. Austin and Horace Cone, giving each one of them an equal undivided interest of one-half of said land, with the understanding that one-fourth part of the proceeds arising from the sale thereof shall belong to each one of them, each one to share the expense according to his interest in the premises. And now, therefore, I, the undersigned Wm. T. Austin, in consideration of $4,000.00 paid, sell, bargain and convey an equal undivided interest in his one-fourth interest in the above-described tract of land, together with an equal interest in the 4 blocks of lots which are especially set forth as belonging to him in the above-recited contract existing between the said Ryon, Cone and himself. Giving and conveying to the said James M. Foster an equal undivided interest in the interest held and owned by the said Austin in and to said tract of three hundred and twenty-eight acres of land. The said contract for division and sale of said property was made and executed in the city of Houston on the 28th day of August, 1862, and is made a part of this conveyance, with a view and in order to show the interest of said Foster in that agreement. To all of which I bind myself, my heirs, executors, administrators and assigns forever. [Signed] Wm. T. Austin.” This deed was duly recorded in the deed records of Harris County on January 12, 1863.

From the trial judge’s findings of fact filed at the request of plaintiffs in error we quote the following, which we find supported by the evidence, and adopt as our further fact conclusions:

“I find thereafter during the year 1863 Wm. Ryon sold one of said blocks and in 1866 he sold others of said blocks to Chas. S. Kelley. The blocks so sold to Kelley embraced the blocks now- in controversy. The land covered by said 328-acre survey made by Kosse, as well as by the map or plat of the subdivision he made called the Ryon addition, covered lands that had been sold previous to the deed made to Wm. Ryon by Mrs. Pierpont and husband excepting 84 acres, which 84 acres covered the blocks now in controversy.

“I find that Wm. T. Austin was residing in the city of Houston during the Civil War, and during the time of the agreement as made between him, Cone, and Austin, and during the time that Wm. Ryon made the conveyances including the deed to Kelley; that after that time he moved to Galveston where he resided until he died. The date of his death is not accurately known but it is agreed that he died some time prior to 1S95.

“I find that Wm. T. Austin never set up any other claim to any of the land in the north half of said league after the deed from Mrs. Pierpont and husband to Wm. Ryon with one exception. On March 30, 1863, he made a deed to Wm. Powers for two certain tracts of land to perfect the title to said tracts of land that had been previously sold.

“I find that W. P. Hamblen acquired deeds of conveyance from the administrator of Kelley to the blocks now involved in this suit in 1870, being the same blocks conveyed to Kelley by Wm. Ryon, and that in 1871 he conveyed the same to Mary A. Sabin and her deed was duly placed of record, and that defendant in this cause is her son and only heir, and that he and his mother have paid the taxes on said property since 1877, perhaps omitting two years during the time, and have notoriously claimed the same.

“I find that about the year 1895 Elizabeth Austin, the widow of Wm. T. Austin, and her children sued various (parties who were claiming different portions of 84 acres described as follows: Beginning at the middle N. E. corner of the 500-acre tract conveyed by Wm. T. Austin to James Scott by .deed recorded in volume N, p. 361; thence north 112 rods; thence east 120 rods; thence south 112 rods; thence west 120 rods to the place of beginning — and judgment was rendered in favor of plaintiffs in January, 1900, but that neither the defendant herein nor his mother was a party to • said suit.

“On the 28th day of March, 1905, Mrs. Austin having died, her children and heirs conveyed to the plaintiff, Alex Freund, all of their right, title, and interest in and to the following property: Beginning at the middle N. E. corner of the 500-acre tract conveyed by Wm. T. Austin to James Scott by deed recorded in volume N, p. 361; thence north 224 rods; thence east 120 rods; thence south 224 rods; thence west 120 rods — thus covering an area of 168 acres or twice the amount of their recovery in said suit. In said deed they also conveyed 11 blocks and 3 fractional blocks in addition thereto in Ham-blen’s extension of Ryon’s addition; said deed containing the following stipulation: ‘The grantors herein and hereby intending to convey to the grantee herein all and whatever right, title, and interest and estate is vested in the grantors and each of them in and to the above-described land and premises as the heirs at law of the said Elizabeth A. Austin, deceased, and sáid Wm. T. Austin under and by virtue of the decree of the district court of Harris county’ — referring to the judgment rendered on January 11, 1900, and January 12, 1900, giving the books and pages, etc.; the first-named suit being the one in which they recovered the 84 acres. The warranty to said conveyance contains the following restrictions: ‘Against all person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under us, but no further. Grantees assume payment of all taxes assessed against said land.’

“I find that at the time Alex Freund purchased he was furnished with an abstract of title which contained the deed from Pierpont and wife to Ryon, and also the deed hereinbefore referred to from Wm. T. Austin to Foster, and the deed from Horace Cone to Wm. T. Austin above referred to. It also contained the deed from Wm. Ryon to Kelley and the deed from Kelley, by his administrator, to W. P. Hamblen, and the deed from W. P. Hamblen to Mary Sabin, the mother of the defendant.

“I find that Henry Curtin furnished half of the money for said purchase with the understanding and agreement that he was to have half of the land and that Alex Freund made him a deed to an undivided one-half thereof. I find from Freund’s evidence that at the time he took said deed from the heirs of Austin they were not certain as to the correct location of the 84 acres and for that reason they drew the deed running north from the starting point twice the distance that was necessary to make the 84 acres so that if it lay further north than the 84 acres described in the judgment by which the Austin heirs recovered the land that it would be covered by their conveyance. The lots or the land in controversy are embraced in the 84 acres described by beginning at the northeast corner of the Scott purchase and running north 112 rods, but would not be embraced in any land described in the deed lying north thereof. Freund had the title examined by Col. Burke, but was unable to produce the opinion given him by Col. Burke, but says that it was a favorable opinion and on the strength thereof he bought and I so find, but admitted that he knew that Sabin and other parties were also claiming land in the 84 acres. Freund and Curtin paid the consideration called for in said deed, to wit, $2,300. There was no evidence introduced tending to show the value of the property conveyed in the deed from the Austin heirs to Freund and therefore I am unable to find whether the price paid was an adequate consideration. No deed was offered in evidence from Wm. T. Austin conveying said land back to Mrs. Pierpont, and I find that there is no such deed on record, but from all of the evidence and circumstances, from the claim and assertion of title by Ryon and those holding under him and the long payment of taxes by Mrs. Sabin, defendant’s mother, and by him since her death, and from the nonelaim by Wm. T. Austin during his lifetime and by his recognition in the agreement entered into between him and Wm. Ryon and Cone, that Wm. Ryon had acquired the title to said property by his purchase from Mrs. Pierpont and husband, I conclude as a fact that Wm. T. Austin had reconveyed the unsold portion of said land back to Mrs. Pierpont prior to the time she and her husband so conveyed it to Wm. Ryon.”

The first assignment of error complains ■of the trial court’s finding that the evidence before set out sustains the fact conclusion that the land in controversy had been recon-veyed by Wm. T. Austin to Mrs. Pierpont prior to the conveyance by her and her husband to Wm. Ryon.

We think the evidence fully justified, if it did not compel, the finding complained of. There is no reasonable explanation of the declarations and acts of Wm. T. Austin in reference to the title of Wm. Ryon to the land in controversy than that he had recon-veyed to Mrs. Pierpont the title acquired by him by his deed from her. All of the parties are long since dead, and the true facts of the transaction between them can only be shown by circumstances. If the circumstances shown in this case by the undisputed evidence do not warrant the presumption that the title Wm. T. Austin had in the land passed from him to Mrs. Pierpont prior to her conveyance to Wm. Ryon, it is hard to conceive a case which would authorize such presumption. We have his written declarations, made shortly after the conveyance from Mrs. Pierpont to Ryon, that Ryon by such conveyance acquired title to the land. Not only this, but he actually acquired from Ryon an interest in the title held by him under Mrs. Pierpont and undertook to actively represent Ryon in the sale of the property which for such purpose had been subdivided into blocks and lots. I-Ie lived for a number of years in the neighborhood of this property and never asserted any claim to the property ■adverse to Ryon or did any act which could be construed as a revocation or repudiation ■of his former declaration that Ryon acquired title by his deed from Mrs. Pierpont. On the contrary, Ryon and those claiming under him have in the most unmistakable and active manner asserted claim and ownership of the property ever since it was conveyed to him by Mrs. Pierpont. Upon these facts, can there be any doubt that it is more reasonable to presume that the title passed from Austin back to Mrs. Pierpont than that no reconveyance was made by him? If this is the most ireasonabla conclusion to be ■drawn from the evidence, then the circumstances are sufficient to warrant the presumption that there was such reconveyance. Frugia v. Trueheart, 48 Tex. Civ. App. 513, 106 S. W. 736; Herndon v. Burnett, 21 Tex. Civ. App. 25, 50 S. W. 582; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1036; Hirsch v. Patton, 49 Tex. Civ. App. 499, 108 S. W. 1015; Pratte v. Townsend, 125 S. W. 114.

The second Assignment of error complains of the judgment on the ground that the trial court should have found that the plaintiffs were purchasers of the land in good faith, for a valuable consideration, and without any notice of the facts upon which the court based the finding that there had been a reconveyance by Wm. T. Austin to Mrs. Pierpont. The evidence is sufficient to charge plaintiff with notice of defendant’s title at the time they purchased the land. It is shown by plaintiff Freund’s testimony that he knew before he purchased the land that defendant claimed to own it. In addition to this, it was shown that he and his attorney who examined the title for plaintiff had an abstract of the title which contained the deed from Wm. T. Austin to Foster before set out, which recites the facts that the land was conveyed to Ryon by Mrs. Pierpont, and that the grantor had entered into a contract with Ryon and Horace Cone by which the land was to be surveyed and subdivided and Austin and Cone were to act as agents for Ryon in selling lots and blocks in said subdivision and had acquired from Ryon title to certain of said lots and would secure as compensation for their services an interest in the proceeds of the sales effected by them. This was notice to plaintiffs of the fact that Austin recognized the title of Ryon and was sufficient to put a prudent man upon inquiry, and, if any reasonable inquiry had been made, all of the facts tending to show the reconveyance from Austin to Mrs. Pierpont could have been ascertained.

Such being our fact conclusion upon the question of notice, it is immaterial whether the trial court was correct in holding that the deed to plaintiff was only a quitclaim deed and would not support the plea of innocent purchaser, and it is therefore unnecessary for us to pass upon the third assignment of error which assails this holding of the trial co.urt.

What has been said disposes of the fourtn and last assignment of error which in effect assails the judgment on the ground that it is not supported by the evidence.

We are of opinion that the judgment should be affirmed, and it has been so ordered.

Affirmed.

On Motion for Rehearing.

The third ground of the motion for rehearing filed by plaintiffs in error is as follows: “The court is clearly in error in so much of its finding as reads as follows: ‘He (Austin) lived for a number of years in the neighborhood of this property and never asserted any claim to the property adverse to Ryon or did any act which could be construed as a revocation or repudiation of bis former declaration that Ryon acquired title by his deed from Mrs. Pierpont.’ In mating this statement the court has overlooked the fact that after the making of the contract, viz., on November 19, 1869, Wm. T. Austin, as attorney in fact for Willis R. Austin, conveyed to W. P. Hamblen about 250 acres of the 328 acres claimed by Ryon, which 250 acres Wm. T. Austin had conveyed to Willis R. Austin in 1849.”

It is true that Wm. T. Austin, as attorney in fact for Willis R. Austin, did on November 19, 1869, convey to W. P. Hamblen a tract of land which he had conveyed to Willis R. Austin in 1849 during the time in which he held title from Mrs. Pierpont to all of the unsold portion of the east half of the grant, and that the land described in this conveyance included a large portion of the Ryon 328-acre subdivision as surveyed by Kosse. This deed does not, however, include any of the land in controversy in this suit. As stated in the main opinion, after deducting all of the land sold by Wm. T. Austin out of the east half of the grant there remained at the time the deed from Mrs. Pier-pont to Wm. Ryon was executed approximately 328 acres. This deed did not describe the land thereby conveyed by metes and bounds but conveys all of the grantor’s interest in the east half of the grant. We think it clear from these facts that, even if Wm. T. Austin knew at the time he, as attorney in fact for Willis R. Austin, executed the deed to W. P. Hamblen that the land thereby conveyed included a portion of the Wm. Ryon subdivision as surveyed and platted by Kosse, the execution of such deed could not be regarded as an assertion of title to the land in controversy, which was not included in said deed, nor to any portion of the east half of the grant which had not been sold prior to the execution of the deed from Mrs. Pierpont to Wm. Ryon.

We have carefully considered the motion for rehearing and are of opinion that it should be overruled, and it has been so ordered.


text:
    FIDELITY PHENIX FIRE INS. CO. OF NEW YORK et al. v. ABILENE DRY GOODS CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 11, 1913.
    Rehearing Denied Feb. 15, 1913.)
    1. Insurance (§ 576) — Adjustment of Loss —Waiver as to Adjustment.
    A provision in a tornado insurance policy that the insured should exhibit the property which remained after loss to any person designated by the company as often as required, when reasonably construed, means only that the adjusters of the company should have a reasonable opportunity to examine the property, and when they refused to do so for 10 days after request from the defendant, disclaiming any liability under the policy, the requirement was waived.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1436-1438; Dec. Dig. § 576.]
    2. Insurance (§ 658) — Actions on Tornado Policy — Evidence—Admissibility.
    Where insurance companies defended an action upon a tornado insurance policy on the ground that the damage was caused by hail and not by wind and offered to show that six months prior to the loss a wind of equal velocity had not injured the goods, the evidence was inadmissible, where it did not affirmatively appear that the conditions at the time of the prior storm were the same as those at the latter, or that they were the same at the Weather Bureau where the velocity was measured as at the store where the damage occurred.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1689, 1690, 1694; Dec. Dig. § 658.]
    Appeal from District Court, Taylor County; John B. Thomas, Judge.
    Action by the Abilene Dry Goods Company against the Fidelity Phenix Fire Insurance Company of New York and others. Judgment for the plaintiff, and defendants appeal.
    Affirmed.
    Crane & Crane, of Dallas, and Harry Tom King, of Abilene, for appellants. Kirby & Davidson, of Abilene, for appellee.

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

   CONNER, C. J.

The appellee company on February 3, 1912, instituted three separate suits against the appellants, the Fidelity Phenix Fire Insurance Company of New York, the National Fire Insurance Company of Hartford, Conn., and the Northwestern National Insurance Company of Milwaukee, all corporations; but by agreement the three causes were consolidated and tried as one under the docket number 2,884. Bach suit was upon a policy of tornado insurance, and the pleadings in the three causes are identical except as to name and as to the amounts of damages claimed. The plaintiff alleged that on the 5th day of June, 1911,' the insurance companies named issued the several policies to the plaintiff in the respective amounts of $4,000, $6,500, and $7,500, and that by the terms of the policies the defendants insured the plaintiff for a period of one year from their date against loss or damage by tornado, windstorms, or cyclone in an amount-not to exceed the several sums stated in the policies. It was further alleged that on the 31st day of July, 1911, while the policies were in force, a stock of merchandise covered thereby and owned by the plaintiff company, was damaged to the extent of $4,953.82, because of which, under the terms of the policies, the plaintiff was entitled to recover the respective sums of $1,100.77; $1,788.88; and $2,-063.17.

Besides a general denial, each defendant specially pleaded, among, other things, first, that the policies covered only such damages as should be caused by water or rain entering the building through openings in the roof or walls made by the direct action of the wind, and that the loss or damage in question, if any, was caused by hail, and not by water or rain entering the building through openings in the roof or walls made by the direct action of the wind alone as the policies provided; and, second, that the plaintiff had not complied with a special provision of the policies to the effect that in event of a loss on the part of the insured it should forthwith protect the property from further damage, separate the damaged from the undamaged personal property, and , make complete inventory of the same stating the quantity and cost of each article and the amount claimed thereon, and as often as required should exhibit to any person designated by the company all that remained of the property described in the policies.

The plaintiff, by supplemental petition, answered that it did protect the property insured from further damage, and had separated'the damaged and the undamaged personal property, making complete inventory of the same stating the quantity and cost of each article and amount of damage claimed thereon, and had offered to exhibit and did exhibit said property, both damaged and undamaged, to defendants’ adjusters, and that defendants’ adjusters had been given ample opportunity to inspect and examine the same at all times from August 1 to August 11, 1911, but that said adjusters obstinately and repeatedly refused to go through and inspect said damaged goods for the whole of said 10 days, by reason of all which it was charged that the defendants had waived the provisions that the insured should as often as required exhibit to any person designated by the defendants all that remained of said property, etc.

The consolidated cause was submitted to a jury which returned a verdict in favor of the plaintiff against the defendants as follows: Northwestern National Insurance Company, $1,250; National Insurance Company of Hartford, $1,083.33%; Fidelity Phenix Insurance Co. of New York, $666.66%, and judgment was entered accordingly.

The evidence is sufficient to support the evident conclusion of the jury, to the effect that on the evening of July 31, 1911, a windstorm arose and swept over the city of Abilene of such force as to blow out one or more of the windows in the second story of the brick building, within which the appellee company’s stock of merchandise was situated, and that immediately following such openings in the building made by the wind, rain and. hail entered the building in such quantities as to flow down through floor and ceiling upon appellee’s stock of merchandise and caused damages to the extent specified in the jury’s verdict. Thus far, appellants by their brief raise no question.

It is insisted first, however, that the undisputed evidence shows that the plaintiff failed to exhibit to persons designated by appellants, as provided in the policies and as often as required, the damaged property. All of the evidence has been carefully examined; but we think it sufficient to state the substance of that tending to support the verdict and judgment. It is to the effect tll'at very soon after the storm the appellee company proceeded to separate piece by piece the damaged from the undamaged merchandise, and on more than one occasion sought out the adjusters of the insurance companies, who came to the city of Abilene for the purpose of adjusting losses caused by the storm, and endeavored to get them to come and examine the damaged goods and determine the amount of loss, but that such adjusters refused to do so, one of them declaring that the companies were not liable and that they were going to refuse to accept liability under the policies; that, after such efforts to secure an adjustment had continued from about the 1st of August to the 11th, the plaintiff company placed the damaged goods back among those not damaged and began a sale of their stock, after which the adjusters demanded that the company' reseparate the damaged from the undamaged goods, taking an inventory of the same, and exhibit such goods to the agents of the insurance companies, as provided in the policies; the insurance companies offering in this connection to pay the actual costs of the reinventory, but not acknowledging liability under the policies. Under such circumstances plaintiff company refused to take another inventory, and continued the sale of the damaged goods.

The special provisions of the policies relied upon must receive a reasonable construction, and we are of opinion that thereunder the insurance companies were not given the right to arbitrarily demand an inventory and examination of the damaged goods after they had been given repeated opportunities to do so and had refused. The provision of the policies reasonably construed can’ mean no more than that the insured should separate the damaged from the undamaged goods and give the adjusters of the insurance companies a reasonable opportunity to examine the stock, and such opportunity was undoubtedly given, at least the evidence undoubtedly tends to show that it was so given. It must, therefore, be held that the appellee company did all that it was required to do in the respect now questioned. See Phoenix Assur. Co. of London v. Stenson, 34 Tex. Civ. App. 471, 79 S. W. 866. In the ease cited, where the same defense arose, it was held that three days after a loss in the absence of unusual conditions was ample time for the insurer to avail itself of the provisions, and that a failure to do so constituted a waiver, and that the insured did not break the contract of insurance by disposing of the goods at the end of the time. We approve this authority as applying to the present case, and overrule appellants’ first and third assignments of error.

On the trial appellants offered to prove by W. A. Green, the United States Weather Bureau observer at Abilene, that he was in charge of said bureau on the Slst day of July, 1911, and on February 25, 1912; that the bureau at the times stated was equipped with appliances to determine the velocity of wind; that on the 25th day of February, 1912, a windstorm from the west occurred at Abilene, which attained a maximum velocity of 61 miles per hour; that no hail accompanied the wind; that the maximum velocity of 61 miles was maintained for a period of five minutes. This testimony was excluded by the court on the plaintiff’s objections that it was irrelevant and immaterial, and that it had not been shown that the conditions were exactly the same at the building occupied by the plaintiff and that in which the Weather Bureau was situated. In this connection it should be further stated that it was shown that the windstorm of July 31, 1911, attained a maximum velocity of 60 miles per hour from the southwest; that in the second story of the building occupied by plaintiff there were windows on the west corresponding to those on the east which were not blown in by the wind of February 25, 1912. It also appeared that the Weather Bureau was located on North First street, five blocks west of Pine street, and that the appellee’s store building was located on Pine street between North Second street and North Third street, and about midway of the block; that the distance from ap-pellee’s store directly south along Pine street to the north line of North First street is about 530 feet, and that the Weather Bureau and appellee’s store were located at the same place as on July 31, 1911.

The evidence offered is, of course, important only as affording an inference that it was not the wind alone, as it was necessary to show in order to bring the plaintiff’s loss within the terms of the policies sued upon, that broke the walls of the plaintiff’s building and thus permitted the entrance of rain on the occasion in question, and inasmuch as appellants have not, as already indicated, presented any assignment of error questioning the verdict in plaintiff’s favor on this issue, it might be said that the ruling of the court now under consideration is immaterial, or at least that in view of the clearness and weight of the testimony -to the effect that the windows in the eastern end of the plaintiff’s building were blown in before the appearance of either rain or hail, that the offered evidence would not probably have produced a different result, and that its exclusion is therefore harmless. But wholly regardless of these suggestions, we cannot say that the court’s ruling is erroneous

It is logical to assume that a common cause, whether happening before or after the occurrence under consideration, would produce like effects under similar conditions, and hence the conditions being the same, it would be entirely permissible to show that a wind of at least equal velocity on February 25, 1912, failed to force the windows on the' west end of the plaintiff’s building, thus, affording an inference that the destruction-of the windows on the east end on July 31, 1911, was not done by the force of the wind alone. But to' render such evidence admissible at all, it must, as already indicated, be first shown that the conditions upon the two occasions were at least substantially similar. See 1 Wigmore on Evidence, § 442. In the instance before us we cannot say that, this requirement has been met. True, appellants proved that the windows in both ends of the building were similar, and that, the maximum velocity of the wind relied upon by the plaintiff was not greater than that appearing in the evidence offered. But the precise direction of the wind of February 25, 1912, or the area covered by it was-not shown. Nor does it appear that the humidity or density, of the wind on the two occasions was the same, or that in other particulars the conditions immediately surrounding and affecting the west end of the plaintiff’s building on February 25, 1912, were substantially the same as at the United States Weather Bureau, 530 feet south and five blocks west, or substantially the same as those affecting the east end of the-plaintiff’s building on July 31, 1911. Such being our conclusion, it follows that the assignments raising the question must be overruled.

No other question requiring notice has-been presented, and no reversible error having been found, we conclude that the judgment must be affirmed, and it is so ordered.


text:
    CAGE v. KING.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 15, 1913.)
    1. Justices of the Peace (§ 147) — Right to Appeal — Waive».
    Under Rev. St. 1895, art. 1668 (Rev. Civ. St. 1911, art. 2391), authorizing any party to a judgment for more than $20, rendered by a justice of the peace, to appeal to the county court, the plaintiff, who had requested a justice of the peace to render judgment for the defendant, may appeal from that judgment to the county court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§, 493-501; Dec. Dig. § 147.]
    2. Costs (§ 238) — Appeal—Review of Judgment of Justice of the Peace.
    Where a party appeals to the county court from a judgment of the justice of the peace rendered against him at his own request, the costs in the .county court should be taxed against the appellant, even though he is successful in that court.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.]

      3. Judgment (§ 587)— Conclusiveness — Extent oe Estoppel.
    In an action for the value of a vendor’s lien note, where the plaintiff alleged in the alternative that the defendant had bought the note but had not paid for it, and that he had converted the note to his own use, a prior judgment in an action to foreclose the note to which both plaintiff and defendant were parties, that the defendant was the owner of the note, was not a bar to the plaintiff’s recovery; since he would be entitled, under his pleading, to judgment for the price, even though the title was acquired by the defendant through purchase.
    [Ed.' Note. — For other cases, see Judgment, Cent. Dig. § 1089; Dec. Dig. § 587.]
    4. Appeal and Error (§ 1050) — Haemless Error — Admission op Evidence — Fact Otherwise Established.
    Error, in the admission of privileged communications, is harmless, where the same testimony was given by the party claiming privilege.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from Erath County Court; J. B. Keith, Judge.
    Action by Shelby King against John M. Cage, instituted before a justice of the peace. From a judgment of the justice of the peace in favor of the defendant, entered at the request of the plaintiff, the plaintiff appealed to the county court. The county court refused to dismiss the appeal upon motion of the defendant, and rendered judgment for the plaintiff for the amount claimed and the costs in both the justice and county courts. From that judgment, the defendant appeals.
    Modified and affirmed.
    The plaintiff alleged that the defendant had bought from him a certain vendor’s lien note, and, in the alternative, that the defendant had converted the note to his own use, and the defendant pleaded that it had been adjudicated in a suit to foreclose the lien, in which both the plaintiff and.defendant in the action before the justice of the peace were parties, that the defendant was the owner of the note.
    J. C. George, of Stephenville, for appellant. Chandler & Pannill, of Stephenville, for ap-pellee.

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

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

   CONNER, C. J.

Under the construction given to Revised Statutes 1895, art. 1668 (Revised Statutes 1911, art. 2391), by the Supreme Court in the case of T. & P. Ry. Co. v. Wheeler, 99 Tex. 428, 90 S. W. 481, the court properly declined to dismiss the appeal from the justice’s' court, as was urged in appellant’s motion therefor. But under the case cited, as well, also, as the cases of M., K. & T. Ry. Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W. 655, and T. & P. Ry. Co. v. Wheeler, 41 Tex. Civ. App. 539, 91 S. W. 234, we think the costs in the county court should have been taxed against appellee. It is evidently the policy of the statute that in cases within the jurisdiction of the justice’s court a defendant has not only the right of a primary trial in that court, but the right of continued trials until a final judgment shall be rendered, after Vhich, should he suffer an adverse final judgment, he would have the right, in the absence of an appeal on the part of the plaintiff, to avoid the further costs and vexation of an appeal to the county court by paying off the judgment against him in the justice’s court. In the case under consideration it is undisputed that, however natural it may have been for counsel to so do, the judgment against the appellee and from which he appealed to the county court was rendered against him at his express instance. Hence, as stated, we think a proper application of the decisions cited required the taxation of all costs in the county court which would otherwise be properly taxed against appellant to have been taxed against appellee, and the county court erred in not so doing.

In other respects we find no reversible error in the proceedings below. It would not, perhaps, be an unreasonable construction of appellee’s pleadings to hold that the judgment in favor of John M. Gage against W. T. Adkins, foreclosing a vendor’s lien and which appellant pleaded in bar of the present action, was but a step in the alleged conversion of the note belonging to appellee, .Shelby King, and hence that it of itself does not constitute a bar to this suit for the recovery of, the value of the note. But, regardless of any such consideration, the vital issue in this case appears by the pleadings to have been whether John M. Cage paid appellee for the note, and the issue of whether Cage paid anything for the note was not necessary nor even apparently involved in the case in which the judgment was rendered in appellant’s favor against Adkins. It seems to be undisputed that appellee was the real owner of the promissory note, and that appellant never paid appellee anything therefor. In his suit against Adkins he alleged that he had purchased the samp, and in harmony with the judgment we may assume that this is true; yet, if he has never paid appellee anything therefor, it certainly would be inequitable to deny appellee relief in this suit, appellee’s pleadings in our judgment being broad enough in its alternative form to so authorize.

As to the objection to the testimony of R. L. Thompson on the ground that his conversation with appellant was privileged, we find no reversible error in the court’s ruling, for if it be admitted that the conversation referred to was privileged under ordinary circumstances, yet the same testimony in effect was given by appellant himself, and its effect appears to be undisputed. No prejudice in this respect, .therefore, appears, and the assignment raising the question is overruled.

No other question is presented requiring discussion, but, in harmony with what has already been stated, it is ordered that the judgment below be affirmed, with directions, however, that all costs of the court below, as well also as of this court, be taxed against appellee.