author: LEVY, J.

text:
    WAGGONER et ux. v. BRIGGS et al.
    (No. 1294.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 9, 1914.
    Rehearing Denied April 16, 1914.)
    1. Appeal and Error (§ 547*) — Assignments of Error — Disqualification of Judge— Bill of Exceptions.
    An assignment of error that the judgment appealed from was void because the judge was disqualified could not be sustained where there was no bill of exceptions in the record showing disqualifying facts.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig.- § 547.*] .
    2. Costs (§ 173*) — Garnishment—Attorney’s Fees.
    Plaintiff in garnishment cannot recover attorney’s fees against the garnishees, since the only attorney’s fees allowable are those authorized by statute to the garnishee.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 688-690; Dec. Dig. § 173.]
    3. Garnishment (§ 29) — Property Subject —Pledges.
    Whether money pledged to sureties on a bail bond was subject to garnishment as the property of the pledgor depends, not on whether it is in custodia legis, but on whether the rights of the pledgee wil be prejudiced thereby.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 47, 50, 74, 98, 100; Dec. Dig. § 29.]
    4. Garnishment (§ 29) — Property Subject — Pledged Property — Termination of Pledge.
    Rev. St. 1911, arts. 293, 294, authorize the court to render judgment against a garnishee at the time the court does render the judgment, when it is made to appeal from the garnishee’s answer or otherwise that the garnishee is indebted to the defendant in any amount, or has in his possession, or had when the writ was served, any effects of the defendant liable to execution ; and article 3744, declares that pledged property is liable to seizure on execution. Held that, where money was pledged to the sureties on a bail bond to secure the pledgor’s performance of the condition, and, when judgment was rendered against the sureties as garnishees, their right to hold the money had been terminated by performance of the condition of the bond, the money was subject to garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 47, 50, 74, '98, 100; Dec. Dig. § 29.]
    Appeal from Rockwall County Court; W. B. Wade, Special Judge.
    Action by Ed. S. Briggs and others against T. H. Waggoner and wife. Judgment for plaintiffs, and defendants appeal.
    Modified and affirmed.
    On November 12, 1910, T. H. Waggoner was arrested on a felony charge, and on the evening of the same day of his arrest he executed a bail bond, which was approved by the justice of the peace, in the sum of $500, with E. S. Briggs and L. A. Wilkie as sureties. As an inducement to the sureties to sign the bail bond there was deposited by Waggoner with the sureties $500 in money, in order to secure and indemnify them in the event there was a forfeiture of the bond by nonappearance of the accused at court according to the terms of the bail bond. At a following term of the district court the accused was indicted, tried, and acquitted of the charge. After the deposit of the $500 with the sureties, and before the júdgment of acquittal, the appel-lees Waggoner and Meyers had issued and served a garnishment writ on Briggs and . Wilkie on their judgment against T. H. Wag-goner for $220 and costs. The garnishment proceedings were tried after the acquittal of the accused. The garnishees set up the facts in their answer. T. H. Waggoner intervened in the suit and claimed, first, that the $500 deposited with the sureties was the .separate property of his wife, and, second, that the funds were in the custody of the law at the time of service of the garnishment, and not •subject to garnishment. The court made the ¡ finding of fact that the money deposited by Waggoner was his own money, 'obtained through the sale of some cotton by him. The evidence warrants the finding of the court; Judgment was entered for the plaintiffs.
    T. B. Ridgell, of Rockwall, for appellants. Futch & Tipps, of Henderson, for appellees.

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

   LEVY, J.

(after stating the facts as above).

The ninth assignment contends that the judgment is void because the judge who tried the case was legally disqualified. There is no bill of exception in the record showing any facts of disqualification, and we find nothing in the record that shows legal disqualifications.

The third assignment contends that the facts show that the fund was the separate, property of the wife of the intervener. The court made a contrary finding, and the finding is not, as a matter of law, unwarranted.

Complaint is made by the fifth and sixth assignments of the extent of recovery allowed plaintiffs by the terms of 'the judgment. The judgment of the county court of Rusk county in transferring the suit expressly taxed the costs against plaintiffs, and they cannot recover such costs under the present judgment. The judgment here reads, as, material to the point: “It is therefore adjudged and decreed by the 'court that J. H. Waggoner and I. B. Meyers do have and recover of Ed. Briggs and L. A. Wilkie, garnishees, judgment for the sum of two hundred and twenty and 70/100 dollars, with 6i% from this date on their debt, and the further sum of eighty and no/100 dollars, their costs and all costs of suit in this behalf expended, and for all of which let execution issue.” Plaintiffs did not sue for $80 besides their debt of $220.70. This item of $80 is, according to the evidence, attorney’s fees and other expenses incurred by the garnishees. But the plaintiffs themselves are not entitled to recover against the garnishees such attorney’s fees. Attorney’s fees are a matter of compensation under the statute only to the garnishee, and not a liability of the garnishee to the plaintiff. The recovery of $80 by the plaintiffs constitutes fundamental error, and must be eliminated from the judgment.

The remaining assignments lead to the same point for error. The contention.is that the money pledged to' the sureties to induce them to becomes sureties on appellant Waggoner’s bail bond is exempt from garnishment at the hands of a creditor of the pledg- or. The pledge of funds is purely a voluntary contract. The pledgee has a qualified property in the thing pledged, and is entitled to the possession. There remains in the pledg- or a legal interest such as the law will recognize. Therefore any obstacle to seizure and sale under execution or garnishment is not upon the ground that the property is in the custody of the law. The objection to the seizure must rest, if at all, upon being in violation of tbe rights of the pledgee under the contract with the pledgor. Under the common .law pledged property could not be taken under execution against the pledgor without first divesting the pledgee’s right of posses- ' sion by paying' him the amount of the debt. But the statute of this state now subjects pledged property to seizure under execution. Article SUM, R. S. And article 294, R. S., authorizes judgment against a garnishee for “any effects of the defendant” which are ' “liable to execution.” This statute would seem to affirmatively answer the question of whether pledged funds are subject to garnishment. ' But-this statute controlling garnishment of pledged property does not relieve the plaintiff from showing at the time the judgment is rendered that his right to have' the property subjected to his debt is perfected, and that the pledgee is not entitled to retain it as security for the performance of the obligation on the part of the pledgor. Here the proceedings were actually tried after the rendition of the judgment of acuqittal of the accused. On the acquittal of the accused the agreement as to the’ •pledged property was ended, and the pledgees had no contingent or further interest in the funtl as security for the performance of the bail bond. The garnishees answered by setting up the facts, and asking the court to decide the rights between all parties. The statute authorizes the court to render judgment against the garnishee, at the time the court does render the judgment, when it is made to appear “from the garnishee’s answer or otherwise” that the garnishee “is indebted to the defendant in any amount,” or “has in his possession, or had when the writ was served, any effects of the defendant liable to execution.” Articles 293 and 294, R. S. If the court, at the time he is called upon to make final judgment, can look to facts disclosed by the “garnishee’s answer,” or as shown “otherwise,” as authorized by the statute, to determine the right of the plaintiff to a judgment, then at the time the judgment was entered in the instant suit there was no _ obstacle whatever against subjecting the funds to garnishment.

The case cited by appellants of Medley v. Radiator Co., 27 Tex. Civ. App. 384, 66 S. W. 87, involved.the question of whether a balance to :become due on an uncompleted building contract, entire and indivisible in its ' nature, was subject to garnishment. There were several creditors contesting the priority of the garnishment lien. The court there held, in determining the priority of liens of the creditors, that the lien of the garnishment attaches only to such liability as had accrued at the date of service, or which accrues between the service and the date named for the answer, and at that time there was not owing • or accrued any debt, and hence the garnishee acquired no legal Ren. The facts and the question involved are'quite dissimilar to the instant ease.

The case of Loftus v. Williams, 24 Tex. Civ. App. 393, 59 S. W. 291, was where a garnishment was issued against money in the hands of a clerk of the court, held by him for payment to a defendant in execution. Clearly, as held by the court, such property was in custodia legis.

In Welch v. Renfro, 42 Tex. Civ. App. 460, 94 S. W. 107, Renfro’s suit against Welch was for unliquidated damages, and, as held by the court, the plaintiff’s cause of action was not for a debt within the meaning of the statute authorizing garnishment proceedings, and consequently the writ was quashed. The latter part of the opinion, relating to the exemption of the money, was not necessary to the decision of the case. But, assuming that it was a necessary ground for ruling in that case, and not dicta, the facts are very unlike those of the instant case, and the ruling not opposed to the instant ruling. There an assignment of the funds was made to Blount & Garrison by the accused, and the accused was trying, as against the officer and Blount & Garrison, the assignees, to subject the funds to garnishment. The court said that under these circumstances the accused was barred by the terms of his assignment from- any right to the funds.

The case of Cope v. Shoemate, 139 Mo. App. 4, 119 S. W. 503, relied on by appellants, is where Dent received money from Mrs. Shoemate for going on the injunction bond of Mrs. Shelton, and was garnished by Cope, the execution creditor of Mrs. Shoemate. Cope first sued out a garnishment writ while the injunction was pending. This suit was , tried on the answer of the garnishee denying he owed Mrs. Shoemate anything, and asserting a specific lien on the fund. A judgment resulted in favor’ of the garnishee on the issues involved. After the final termination of the injunction suit Cope sued out another garnishment writ against Dent. And the first judgment was pleaded as res adjudi-cata. The court overruled the plea on the ground that, at the time the judgment was rendered, “Dent held a specific lien on and was entitled to retain the $200 in his hands as against Mrs. Shoemate.” But, as remarked by the court, “after the injunction suit had been determined in Mrs. Shelton’s favor, and Dent discharged from liability as her bondsman, the $200 remained in his hands free from any claim or lien, was gamishable assets, and might be garnished by Cope on his judgment against Mrs. Shoemate, if it belonged to her.” The decision is under the facts there, and the ruling not at all opposed to the ruling of the instant case. At the time the court was called upon to render judgment in the instant case it was made to appear conclusively and admittedly that the -terms of the pledge had been fully performed, and that there was no lien or claim asserted by the garnishees, and that the property was that only of the defendant Waggoner.

The judgment is reformed so as to eliminate the recovery in favor of the plaintiff: against the garnishees of the $80 and as so reformed will be affirmed. The plaintiffs Waggoner and Meyers will, for the error, be taxed with the costs of appeal.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    FIRST NAT. BANK OF IOWA CITY, IOWA, v. HUMPHREYS.
    (No. 1284.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 26, 1914.)
    1. Bums and Notes (§ 370) — Actions—Consideration.
    Defendant purchased a lot of jewelry, giving his note for the purchase price, the seller agreeing to give a bond as security, for its guaranty of the quality of the goods. Held that, when transferred to a bona fide purchaser without notice, defendant could not set up the fraud of the seller in refusing to execute the bond, for the debt was sufficient consideration to support the note, and, as the fraud did not affect the execution of the instrument, the note could not be impeached in the hands of a bona fide purchaser.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. § 963; Dec. Dig. § 370.]
    2. Bills and Notes (§ 92) — Consideration— Sufficiency.
    Where a note is taken as collateral security for a debt then created, the debt is sufficient consideration to support the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-205, 208-212; Dec. Dig. § 92.]
    3. Bills and Notes (§ 537) — Actions—Bona Fide Purchase.
    Where there was nothing in any way to impeach the testimony of the cashier of a bank which held the note in suit that it was purchased before maturity for value and without notice of the payee’s fraud, it is proper to direct a verdict in favor of the bank.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.]
    Appeal from Van Zandt County Court; C. L. Stanford, Judge.
    Action by the First National Bank of Iowa City, Iowa, against A. J. Humphreys. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    D. Davidson, of Canton, for appellant. R. M. Lively, of Canton, for appellee.

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

   HODGES, J.

The appellant sued the appellee in the county court of Van Zandt county to recover the sum of $220 due upon a promissory note. The facts show that on March 30, 1910, the appellee executed and delivered the note sued on to the Equitable Manufacturing Company. By its terms the note was payable to the order of that company in installments, the first of which was due four months after date, and th.e last, one year after date. It appears from the evidence that the appellant acquired the note in due course of trade, before the maturity of the first installment. The appellee in his answer admitted the execution of the note,but claimed that it was void by reason of a fraud perpetrated at the time of its execution. The facts stated in the answer are, in substance, as follows: The défendant was a merchant, and was approached by an agent of the Equitable Manufacturing Company, ■and solicited to purchase a lot of jewelry. After some negotiations, a trade was concluded, and the appellee agreed to execute his note for $220 for a designated quantity of the goods. At the time the note was procured, it was agreed by and between the appellee and the agent of the manufacturing company that the latter would execute a bond as security for its guaranty that the quality of the goods was as represented, and this bond was to be deposited in the First National Bank of Canton, Tex., before the note was to become effective. Appellee further alleges that the goods were shipped and received, but no bond was ever executed, and for that reason the contract to pay the note was never a binding obligation. The appellant alleged and proved that it procured the note for value in due course of trade, without notice of the defenses alleged in the answer.

The court gave, among others, the following charge: “If you believe from the evidence that, at the time defendant signed the instrument sued on, 'and simultaneously with the signing of said instrument, the agent of the original payee agreed and promised to furnish a good and valuable bond, or obligation, to protect defendant in the sale and handling of said jewelry, and that said bond, or obligation, was to be so furnished as set out in defendant’s answer, and that the defendant was induced by said promise to so furnish said bond, or obligation, to sign said note, and that said note was to be of no effect until said bond, or obligation,was so furnished, and you further find from the evidence that the said original payee failed and refused to comply with said promise, if you find any promise was made to furnish said bond, or obligation, then you will find for the defendant.” In view of the undisputed facts, this charge should not have been given. Davis v. Gray, 61 Tex. 506; Mulberger v. Morgan, 34 S. W. 148; Wilson v. Denton, 82 Tex. 536, 18 S. W. 621, 27 Am. St. Rep. 908; Collins v. Gilbert, 94 U. S. 753, 24 L. Ed. 170; 1 Daniel on Negotiable Instruments, §§ 836, 854; Tiedman on Commercial Paper, §§ 280, 286. Where a note is taken as collateral security for. a debt at that time created, and on the faith thereof, the consideration is sufficient, and the indorsee is a purchaser for value in due course of business. 7 Cyc. 930, and cases cited in the notes.

In order for fraud to be available against an innocent holder for value, it must relate to the execution of the instrument, not merely to the consideration. In other words, the fraud must be such as to render the execution void not merely voidable. See cases cited above. According to the appellee’s own testimony, the instrument he signed is just what he intended to sign, and fully expressed the contract. Hence there is nothing to impeach its validity. The bond referred to was a part of the consideration for the note, and the failure to furnish the bond was a failure of the. consideration to that extent. The note was delivered to the payee, or its agent, and thereby permitted to enter the channels of commerce as a valid and binding obligation. Unquestionably the charge of fraud, if true, would constitute a good defense as between the maker and the original payee, or one purchasing with notice, actual or constructive.

The evidence showing a purchase by the appellant before maturity, for value, without notice of the defensive matter, consisted of the deposition of its cashier. There is nothing in the record which in any way tends to impeach the credibility of this witness. Under the circumstances, the court should have instructed a verdict for the appellant. Long v. Shelton, 155 S. W. 945.

The judgment of the trial court will be reversed, and here rendered for the appellant for the amount sued for, and all costs both of this court and the court below.


text:
    FIRST NAT. BANK OF IOWA CITY, IOWA, v. DORSEY.
    (Court of Civil Appeals of Texas. Texarkana.
    April 2, 1914.)
    1. Bills and Notes (§ 378) — Effect.
    The fraudulent alteration of a note by changing the time of payment, the amount of principal to be paid, and extracting a material condition requiring the payee to execute a bond to secure the faithful performance of a specified contract avoided the note and precluded a recovery thereon, even in the hands of a bona fide holder for value without notice.
    [Ed. Note. — Por other cases, Notes, Cent. Dig. §§ 985-992; 378.] see Bills and Dec. Dig. §
    2. Appeal and Error (§ 1040) — Reception of Evidence — Curing Error.
    Error, if any, in overruling exceptions to a plea of failure of consideration for a note sued on by a bona fide holder, and in receiving evidence in support of such plea, was cured by an instruction that the jury should return a verdict for plaintiff, notwithstanding a failure of consideration, unless they found that the note had been materially altered.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    Appeal from Kaufman County Court; Jas. A Cooley, Judge.
    Action by the First National Bank of Iowa City, Iowa, against C. W. Dorsey. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    The suit originated in the justice court, and is by appellant against the appellee on a promissory note for $175. The petition alleged that the note was executed by appellee on February 17, 1910, payable to the order of the Equitable Manufacturing Company, and due in six installments, in 4, 6, 8, 10, 12, and 14 months, respectively, after date, and that the appellant bank purchased it from the Equitable Manufacturing Company in the ordinary course of business, before maturity and for a valuable consideration. The appellee filed a sworn plea of non est fac-tum, averring the vice in the note sued on to be unauthorized and fraudulent alterations of material terms of the note since the delivery to the agent of the Equitable Manufacturing Company, and also plead failure of consideration, conditional delivery of the note, and conspiracy to defraud appellee on the part of the payee of the note and the bank. The case was tried to a jury. The only issue of fact submitted by the court to the jury for their decision was in respect to the plea of non est factum, and the verdict of the jury was in favor of the defendant.
    The Equitable Manufacturing Company is engaged in the wholesale jewelry and advertising business. Its authorized agent contracted a sale to appellee on Pebruary 17, 1910, of certain jewelry of a specified quality, which was to be shipped to him thereafter. The contract was in writing, and the contract price was to be payable in six installments, but such contract is not in the record. Appellant offered in evidence the note sued on as the note signed by appellee for the jewelry, ,and proved a purchase from the payee in the ordinary course of business, before maturity, for a valuable consideration, and without notice of any of the alleged defenses. The managing partner of the payee of the note testified that they received the note through mail from their agent and then sold it to the bank. The agent does not testify. The appellee testifies that, as an inducement to him to execute and deliver a note for the total purchase price agreed to be paid for the jewelry, if it should meet the quality contracted for, the appellant’s agent agreed that appellant would execute a bond to secure the faithful performance of the contract, and that the bond would be deposited with the Pirst State Bank of Terrell, Tex. Appellee says he then signed a note payable to appellant’s order in five installments of $27.50 each, and one of $34, and that at the time the words “The Equitable Manufacturing Company agrees to furnish a bond to protect C. W. Dorsey in this contract” were written with an indelible pencil on the side of the note as a term of agreement in the note. After execution of the note, appellee at.once delivered it to the agent of the Equitable Manufacturing Company. Appellee says he did not agree to any change or alteration of the note, and that any alterations or erasures were made after he delivered the note, and without his knowledge or authority. The note sued on and the note ap-pellee executed are, appellee says, different in this: The note sued on has the principal to be paid in the first five installments of $28, and in the last of $35, while the one he signed has the principal payable in each of the first five installments of $27.50, and in the last of $34; and the note sued on has the figures “$175^00” written in ink on the upper left-hand comer, while the note he signed had no figures there; and the note he signed had the words “The Equitable Manufacturing Company agrees to furnish a bond to protect C. W. Dorsey in this contract,” while the note sued on has on it no such words. The only testimony in rebuttal of appellees is the testimony of a witness for appellant that in the justice court trial appellee said nothing about any changes or alterations in the note sued on, but claimed that the jewelry was no account. The verdict of the jury involves the finding of fact that material alterations were fraudulently made in the note after the delivery of the same by appellee, and that such alterations were made without the knowledge and authority of appellee. And there is evidence to support the finding of fact on the part of the jury.
    Dashiell, Crumbaugh & Coon, of Terrell, for appellant. Wynne, Wynne & Gilmore, of Wills Point, for appellee.

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

   LEVY, J.

(after stating the facts above). The appellant filed a sworn plea of non est factum. The plea could be properly construed only as averring that the note sued on had been fraudulently altered after its delivery to the agent of the Equitable Manufacturing Company by changing the amounts and dates of payment, and by entirely erasing therefrom the contract stipulation “The Equitable Manufacturing Company agrees to furnish a bond to protect C. W. Dorsey in this contract” The court in his charge authorized a verdict for appellee upon the finding by the jury of fraudulent alteration of the note as pleaded. Appellant first directed a general exception to the entire averment, which was by the court overruled, and next excepted to submitting the plea to the jury, as without evidence to support it, and further asked a peremptory instruction in favor of appellant, which was refused. All the assignments in respect to the questions can here be considered together for a ruling. Appellant makes the contention that the exception to the plea should be sustained, because it failed to allege that the appellant had knowledge or notice of the alleged alteration. The unauthorized alteration of a completed instrument by a material change in its terms, with intent to defraud, is forgery. Article 531, P. C. 1895 of Texas.

The alteration that would affect the legal validity of the instrument may consist in changing the time of payment and the amount of principal to be paid, or in extracting from it some material provision incorporated in it, as, is averred, was done in this instance. 2 Daniel on Neg. Instr. (5th Ed.) §§ 1375, 1384, 1391. As further illustrations: Morris v. Bank, 37 Tex. Civ. App. 97, 83 S. W. 36; Baldwin v. Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178; Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56. And the fraudulent alterations of a note so far alters its legal effect as that it cannot be sued on in its altered form, nor read in evidence to support an action, even when brought by a bona fide holder without notice. 2 Daniel Neg. Instr. (5th Ed.) § 1413; 3 Page on Contracts, § 1398; Otto v. Halff, supra; Adams v. Faircloth, 97 S. W. 507; Morris v. Bank, 37 Tex. Civ. App. 97, 83 S. W. 36. It is believed to be sufficient reason for overruling the objection to the plea that no party can enforce a negotiable instrument if it be not genuine. There was no error, further considered, in submitting the plea to the jury, unless, as claimed by appellant, there was no evidence warranting the issue. The appellee testified in accordance with his sworn plea. If the testimony of appellee be true (which was for the jury to say), there was a very material change in the note after he delivered it to the agent of appellant, and such alterations were made without his knowledge or authority. As a consequence of such evidence, the court was required to pass the question to the jury for decision by them. Assignments Nos. 1, 5, and 8 are therefore overruled.

Appellee pleaded failure of consideration of the note, and a conditional delivery to the agent of the payee. The pleas were excepted to, on the ground that they were not available defenses against a bona fide holder of the note without notice. The court overruled the exceptions. And appellee offered evidence in support of the pleas, which was objected to by appellant upon the same ground above stated. The objections were overruled by the court. But, when it came time for the court to instruct the jury, he peremptorily charged them that they should return a verdict for plaintiff, notwithstanding a failure of the consideration. So any error of the court in respect to the rulings mentioned was eliminated as an injury when the court, by a binding instruction, told the jury that such defense pleaded and proven could not at all avail the defendant, and that they must nevertheless find for the plaintiff Assignments Nos. 2, 3, 4, 6, and 7 are over ruled, as without injury warranting a reversal.

The judgment is affirmed.


author: HIGGINS, J.

text:
    DEES v. THOMPSON.
    (Court of Civil Appeals of Texas. El Paso.
    April 9, 1914.)
    1. Set-Off and Counterclaim (§ 22) — Tort Actions — Disconnected Acts.
    In an action for the wrongful killing of a horse, the defendant cannot set off damages arising from trespass committed by the horse, and Ms keep after a former trespass, since the statute relating to set-off does not cover disconnected claims for damages arising in tort.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 26-37; Dec. Dig. § 22.]
    2. Damages (§ 87) — Punitive Damages — Necessity of Actual Damages.
    A verdict allowing punitive damages, without also allowing actual damages, is contrary to law.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. § 87.]
    3. Appeal and Error (§ 1033) — Harmless Error — Error Favorable to Appellant.
    One who sues for actual and punitive damages, and recovers judgment for punitive damages only, cannot, on appeal, raise the question that the jury could not allow punitive damages, without also allowing actual damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    4. Highways (§ 68) — Evidence as to Existence-Sufficiency.
    Proof that a road was indicated and named as a public road on a plat filed before the controversy arose, and that it was referred to several times in the testimony, is not sufficient to establish, as a matter of law, that it was a public road.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 226-233; Dec. Dig. § 68.]
    5. Appeal and Error (§ 742) — Assignment of Errors — Necessity of Propositions and Statements.
    Assignments of error, not supported by propositions and statements, as the rules require, need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Appeal and Error (§ 722) — Assignments of Error — Conformity to Motion for New Trial — Statutory Provisions.
    The provision of Acts 33d Leg. c. 136, that assignments contained in a motion for a new trial shall constitute the assignments upon which the cause is presented on appeal is mandatory, where' a motion for a new trial was filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    7. Appeal and Error (§§ 722, 758) — Assignment of Error — Conformity to Motion for New Trial — Statutory Provisions.
    The statute does not change the former rule that assignments must be correctly copied in the briefs, and that it is not permissible to present assignments reconstructed as to either Eorm or substance.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2990-2996, 3093; Dec. Dig. §§ 722, 758.]
    8. Appeal and Error (§ 301) — Assignments of Error — Errors Not Requiring Assignment.
    The only errors which can be considered by the Court of Appeals, other than those ivhich may be passed upon without an assignment, are those called to the attention of the trial court in the motion for a new trial, and the appellate court will not attempt to construe reconstructed assignments in the briefs to determine whether the errors are the same as those assigned in the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    9. Appeal and Error (§ 722) — Assignments of Error — Error Subsequent to Motion, for New Trial.
    As to errors arising subsequent to a motion for a new trial, and which cannot be raised in the motion, probably the proper practice is to file distinct assignments in relation thereto with the clerk of the lower court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dee. Dig. § 722.]
    10. Appeal and Error (§ 282) — Assignments of Error — Trial by tile Court.
    Acts 33d Leg. e. 136, making the assignments of error in the motion for a new trial the assignments on appeal, does not change the rule that no motion for a new trial need be filed in cases tried to the court, in which findings of fact and conclusions of law are filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. § 282.]
    11. Appeal and Error (§ 722) — Assignments of Error — Trial by the Court.
    In such eases the assignments of error are still to be filed with the clerk of the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.] -
    12. Appeal and Error (§ 1175) — Disposition of the Case — Rendering Judgment.
    Where the court erroneously overruled exceptions to defendant’s cross-action, and, after verdict, rendered judgment on the cross-action in an amount equal to the judgment for plaintiff on his cause of action, the case need not be remanded for new trial, but judgment' will be rendered for the plaintiff in the amount due on his cause of action, under Rev. St. 1911, art. 1626, authorizing the Court of Civil Appeals to render such judgment as the court below should have rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    Appeal from Pecos County Court; Howell Johnson, Judge.
    Action by Frank Dees against D. W. Thompson. From a judgment for plaintiff and for the defendant in an equal amount upon a set-off, plaintiff appeals.
    Cross-action stricken out, and judgment rendered for plaintiff in the amount of the damages found by the jury.
    Chas. T. Haltom and W. A. Hadden, both of Ft. Stockton, for appellant. R. D. Blaydes and W. C. Jackson, both of Ft. Stockton, for appellee.

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

   HIGGINS, J.

Dees sued to recover the sum of $456, actual damages, and $400, punitive damages, claimed to have been sustained by reason of the wrongful shooting and killing by Thompson of a horse. Defendant answered by a general denial and counterclaim for various amounts alleged to be due by reason of trespasses committed by the animal upon various dates, and expenses sustained in caring for and feeding the horse while it was trespassing upon a certain occasion previous to the shooting. Upon trial before a jury, verdict was returned in favor of plaintiff for sum of $50, punitive damages, and in favor of defendant upon his cross-action in sum of $25 for feeding and caring for tbe borse upon tbe occasion mentioned, and further sum of $25, damages sustained by reason of trespasses committed by tbe horse. Upon this verdict judgment was rendered in favor of plaintiff for sum of $50 against Thompson, and in Thompson’s favor against Dees for a like sum, and it was ordered that the two sums should offset each other and no execution issue. From this judgment Dees has appealed.

The first and second assignments complain of the overruling of exceptions addressed to defendant’s counterclaim, upon the ground that it was an independent cause of action, in no wise incident to or connected with plaintiff’s cause of action. In an action for damages upon tort, the defendant cannot set off or reconvene for damages resulting from a tort previously committed by plaintiff. The statute relating to this matter does not cover disconnected claims for damage arising in tort. Hart v. Davis, 21 Tex. 411; Shook v. Peters, 59 Tex. 395. The special exception in relation to this matter should have been sustained, and the cross-action stricken out. Boyd v. Clark, 21 Tex. 425; Carothers v. Thorp, 21 Tex. 358; Castro v. Gentiley, 11 Tex. 28.

Under the third assignment, appellant complains that the' verdict of the jury was contrary to law in allowing him punitive damages without also allowing actual damages. In this contention he is correct, but it is not a matter of which he can complain. Appellee might well do so, but not appellant.

The fourth assignment complains of the court’s charge in not assuming as a proven fact that a certain road was a public one, the proposition being that, since the facts are undisputed, the question whether the road was of a public or private character was one of law, which should have been decided by the court. The statement in the brief of the facts relied upon as showing its public character is that it was indicated and named as a public road on a plat appearing in the statement of facts, which plat was filed anterior to the happening of any of the incidents in this case, and that the road was referred to several times in the testimony. We fail to see upon what theory it can be contended that these facts alone are sufficient, as a matter of law, to invest a road with a public character.

The fifth and sixth assignments are not supported by such propositions and statements as the rules require, and are not entitled to consideration. In passing, however, it may be said they do not present reversible error.

The suggestion is respectfully made to counsel for appellant that in causes which they may hereafter have pending in this court, a due regard be had for the rules of briefing, and attention is particularly called to the fact that, under the law at present, the assignments contained in the motion for new trial in the lower court constitute the assignments of error upon which the cause must be here presented. Acts 33d Leg. Regular Session, c. 136, p. 276. When a motion for new trial has been filed, this provision of the statute is mandatory. Edwards v. Youngblood, 160 S. W. 288.

Under the law previous to this amendment it was held that the assignments must be correctly copied in the briefs, and that it was not permissible to present assignments reconstructed as to either form or substance. Fessinger v. El Paso Times Co., 154 S. W. 1171; Mt. Franklin, etc., v. May, 150 S. W. 756; Biggs v. Miller, 147 S. W. 632; Horseman v. Coleman Co., 57 S. W. 304; Martin v. Bank, 102 S. W. 131; Alexander v. Bowers, 79 S. W. 342; Ry. Co. v. Adams, 55 Tex. Civ. App. 245, 118 S. W. 1155; Bowers v. Goats, 146 S. W. 1013.

There is nothing in the amendment changing this rule, as each point raised in the motion can and should be presented to this court as an assignment of error in the language in which the matter was called to the attention of the trial court in the motion there filed. Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054.

Under the amendment and the rules, the only errors which can properly be entertained by this court, other than those which may be passed upon without an assignment, are those called to the attention of the trial court in the motion for new trial, and the impropriety of presenting reconstructed assignments in the brief is pointed out and well stated in Edwards v. Youngblood, supra. See, also, Overton v. Colored Knights of Pythias, 163 S. W. 1053, and Iowa Mfg. Co. v. Walcowich, supra.

We take this occasion to place counsel practicing in this court upon notice that the assignments copied in brief and presented here must be true copies of the corresponding portions of motion for new trial when such motions have been filed in trial court This court will not undertake to determine whether an assignment was raised in such motion, where it is presented here in language different from that in which the matter was presented to the trial court. To countenance the filing here of reconstructed and amended assignments will frequently necessitate the determination of whether or not the error was called to the attention of the court below, which in' many instances would require careful and critical comparisons, and a correct conclusion still be doubt-, ful. This will be obviated and the opportunity prevented of securing reversals upon errors not assigned in lower court which this court might, at times, do if the rule determined upon be not strictly enforced.

As to those errors which of necessity, were not raised in the motion, probably the proper practice would be to file distinct assignments in relation thereto with the clerk of lower court, as required by the old statute and rules. Overton v. Colored Knights of Pythias, 163 S. W. 1053. Assuredly, it was not the legislative purpose to deprive litigants of the right to have errors and wrongs righted arising or transpiring subsequent to the overruling of their motion for new trial, and such an error so assigned will be considered’ by this court.

As to cases tried before the court in which findings of fact and conclusions of law are filed, a motion for new trial need not be filed. American, etc., v. Mercedes, etc. (San Antonio) 155 S. W. 286; Cooney v. Dandridge (El Paso) 158 S. W. 177; Moore v. Rabb (Galveston) 159 S. W. 85.

And in such case the assignments are to be filed with the clerk of the court below, as was formerly done in all cases. The amendment does not alter the old practice in this respect. Some of the observations here made with respect to matters of practice are not called for in this case, but they are made to the end that the members of the bar practicing here may be advised of the manner in which this court views these matters, to the end that they may govern themselves accordingly.

The error of the court in overruling the special exception to the cross-action does not require a remanding of the cause for a new trial, as it affected only the cross-action upon which the verdict in Thompson’s favor for $50 was returned. This court, under authority of article 1626, Revised Statutes, will render the judgment which should have been rendered in the court below, viz., that the exception to the cross-action be sustained, the cross-action stricken out, and judgment rendered in favor of Dees for the sum of $50, and that he recover all of his costs.

As reformed, the judgment is affirmed.


author: RICE, J.

text:
    COOPER et ux. v. MAREK et al.
    (No. 5305.)
    (Court of Civil Appeals of Texas. Austin.
    March 4, 1914.
    Rehearing Denied April 1, 1914.)
    1. Escrows (§ 1) — Nature and Requisites in General.
    Before an instrument can become an escrow, the contracting parties must actually agree thereto, and an agreement between the grantors as to the distribution of the purchase price was not binding on the grantee, who was not a party thereto.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 1-3, 5; Dec. Dig. § 1.]
    2. Trusts (§ 202) — Conveyance—Application op Proceeds.
    Where a father and children executed a deed and also an agreement as to the distribution by the father of the purchase price, to which the grantee was not a party, and the father, who acted for the children as well as himself, delivered the deed to the grantee, the grantee was not bound to see that each of the children received his proportionate share of the purchase price, according to the agreement, and one of the children could not object that the delivery was unauthorized, because she did not receive her share.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 271, 272; Dec. Dig. § 202.]
    3. Fraud (§ 30) — Deception Constituting Fraud — Reliance on Representations— Persons Liable.
    One of several grantors was not entitled to object, as against the grantee,, that she had been misinformed as to her liability on a mortgage on the land, unless she was deceived and misled by the grantee.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 35; Dec. Dig. § 30.]
    4. Appeal and Error (§§ 969, 1046) — Trial (§ 25*) — Argument-Opening and Closing —Discretion op Court — Harmless Error-Review.
    Under district and county court rule 37 (142 S. W. xx), providing that counsel for an intervener shall occupy the position in the argument assigned him by the court, according to the nature of the claim, the matter is within the sound discretion of the court, which is not subject to review unless abused, and error could not be predicated on the refusal of the court to permit interveners to open and close the argument, where there was nothing to indicate any injury therefrom.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3845-3848, 4128-4131, 4134; Dec. Dig. §§ 969, 1046; Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.]
    5. Appeal and Error (§ 173) — Reservation op Objections — Necessity op Presentation to Trial Court.
    An objection to the validity of a deed, which was not raised in the pleadings nor in any matter brought to the attention of the trial court, cannot be urged for the first time on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Suit for partition by F. A. Marek and another against John W. Barrett and others, wherein W. N. Cooper and wife intervened. From a judgment for plaintiffs, the interveners appeal.
    Affirmed.
    W. A. Morrison, of Cameron, for appellants. Henderson, Kidd & Gillis, of Cameron, for appellees.

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

   RICE, J.

B. C. Barrett and his eight children owned 400 acres of land on the Francisco de los Rios survey in Milam county, which was the community property of himself and his deceased wife, and which he and his said children, except John W. Barrett, agreed to sell to F. A. Marek for the sum of $20,250; and, on the 11th day of June, 1912, in pursuance of said agreement, they executed their deed to Marek for said land, and at the time of its execution signed a written agreement providing for a division of the proceeds of such sale when the same should be paid by Marek, which deed, together with said agreement, was deposited by B. O. Barrett (who appears to have been acting for himself and children in making such sale) in the Eirst National Bank of Cameron. It was contemplated that Marek should pay part cash and give his notes for the balance of the purchase money, the proceeds of which, when sold by B. C. Barrett, together with the cash, was to be distributed by him among the grantors, said agreement providing that the children should have one-half of the proceeds, less an $1,800 mortgage due upon the land, which was to be deducted from their portion, the father paying off the other liens upon the property out of his part thereof. Upon the payment of the money and execution of the purchase-money .notes by Marek, the deed was delivered to him by B. C. Barrett, and he subsequently sold one-half of the land to A. N. Green. Within a few days after the delivery of the deed to Marek, Barrett sold the notes to Mrs. Ziminia Watson, as he was authorized to do by said agreement, depositing their proceeds in the Cameron State Bank, leaving checks therein, payable to the order of each of his children, except J. W. Barrett, for their share of such proceeds, amounting to $1,010 each, including Mrs. Laura Cooper. John W. Barrett sold his i/:u interest in the estate to his brother B. J. Barrett, taking in part payment therefor his three vendor’s lien notes for the sum of $600 each. Said checks were accepted by all of the children, except Mrs. Cooper, who declined to do so on the ground that the same was not sufficient in amount, and that she had been misinformed with reference to her liability on the mortgage above mentioned. Thereafter, on the 8th day of April, 1013, Marek and Green brought this suit for partition against John W., and B. J. Barrett, alleging that they (plaintiffs) Owned an undivided 1B/ia of said land, and that B. J. Barrett owned an undivided Vis thereof, and that John W. Barrett was asserting some claim or interest therein, as the vendor of B. J. Barrett, and that plaintiffs were in possession of their part of said tract, and defendant B. J. Barrett in possession of his part. The defendant John W. Barrett answered that he had conveyed his portion to his codefendant B. J. Barrett, and in part consideration thereof had taken the three notes mentioned, retaining a vendor’s lien, and asked that in partition he be protected as to his lien and crops then growing on the place. Cooper and wife intervened, setting out the facts showing their interest in the transaction, as above stated, alleging that since the death of her mother, which occurred September 17, 1890, her father had remained in possession of the entire tract, during which time he had appropriated the rents and revenues thereof for more than 20 years to his own use and benefit, and that her pro rata part thereof amounted to $125 per an-num ; that at the time she and her husband executed the deed to Marek it was contemplated and agreed that all of the owners would sign same, but that her brother J. W. Barrett had refused to execute said deed, and that she had been misinformed as to her rights, without stating by whom, and was led to believe, from statements made to her,' that she was liable for the payment of a % part of the deed of trust thereon, which had been executed by her father, which, together with interest, amounted to the sum of $1,926, and that under said misapprehension she ■ had obligated herself to pay her part thereof, to wit, $240.75, which she would not have executed if she had known the facts; that neither of the plaintiffs had ever paid her for her interest in said land, and that by the terms of the agreement she was entitled to have $1,024.44, and that the deed had been delivered to Marek without her authority, for which reason the title'did not pass out of her; and it is alleged that plaintiffs had knowledge of the existence of her rights in the premises. It was further alleged that, while she had been advised that the check was at the bank for her, she refused to accept it, and so notified plaintiffs, stating the reason therefor. Plaintiffs answered, specially denying that they had made any misrepresentations, or that any such were made with their knowledge or by their authority; that they had in good faith complied with the terms of their contract, paid the consideration stipulated, and that the deed had been delivered to them without any knowledge of the facts set up in the plea of intervention, and further alleged that they were not parties to the agreement between the grantors with reference to the sale of said land and the distribution of the proceeds, and therefore were in no wise bound thereby. The case was tried before a jury, and on a peremptory instruction, returned a verdict in favor of plaintiffs for 1'i/ie of the land, and in favor of the defendant B. J. Barrett for the remaining Vi6, and the case as to the interveners was submitted on one issue made by them and refused on the other. A verdict and judgment was rendered against them, and decree was entered determining the rights of the parties in accordance with the verdict and protecting the liens of J. W. Barrett and Mrs. AVatson, who also had been made party defendant, and had set up her right as holder of the notes mentioned.

The first error assigned is that the court refused to give a peremptory instruction in behalf of interveners, for the reason that the deed was delivered to the plaintiffs without their consent and in contravention of the escrow agreement. We overrule this assignment, because if the deed was ever left in the bank as an escrow, which is doubtful under the evidence, still, the collateral agreement between the grantors with reference to the division of the proceeds for which the land sold was no part thereof, and was clearly not binding upon Marek, as be bad never signed it nor agreed thereto. Am. & Eng. Ency. Law, vol. 11, pp. 335, 336, in which it is stated that the deposit in such case must be made by the agreement of the parties to the instrument. A delivery made by the depositor alone will not be sufficient to constitute a valid escrow. See, also, 3 Words & Phrases, p. 2464, where it is clearly shown that, before an instrument can become an escrow, the contracting parties must actually agree thereto. In the present case the facts fail to show that Marek bad anything to do with said contract relating to the division of the proceeds among the grantors, and hence was not bound thereby. The deed was delivered to Marek by B. C. Barrett, who under the evidence seems to have been acting in behalf of himself and the others, and the title passed to Marek thereby, notwithstanding the parties failed to properly divide the purchase money among themselves. No duty was imposed under the law upon Marek to see that each of the heirs received their proportionate part of such money. Therefore, the evidence did not justify the submission of the issue as to the deed’s being delivered in contravention of the escrow agreement, for which reason the second assignment is also overruled.

The court did not err in charging the jury to find against interveners in the event they were not deceived and misled by statements made to them relative to the $1,800 mortgage. Nor do we think the court erred in refusing to permit interveners to open and close the argument. This matter, under rule 37 (142 S. W. xx), is within the sound discretion of the trial court, and, unless abused, is not the subject of review. There is nothing in the record indicating that any injury resulted to interveners therefrom; and, since the evidence negatives the fact that they were misled by any misrepresentations by either Marek or B. C. Barrett, the court might properly have given a peremptory instruction to find in favor of plaintiffs.

We overrule the seventh assignment, complaining that the deed was improperly delivered because appellants did not receive their share of all the purchase money, in that Rogers, the real estate agent, was paid $1,000 commissions for making the sale, because this matter was not raised in the pleadings, nor in any manner brought to the attention of the trial court, and cannot be urged for the first time here; and, as their father, who bad employed said agent and agreed to pay him such sum as commissions for bis services, appears to have been representing them in the transaction, we fail to see bow any complaint could be made on this score.

The remaining assignments have been considered, and are regarded as without merit. Finding no reversible error in the record, the judgment of the court below is affirmed.

Affirmed.


text:
    SEARS v. AINSWORTH.
    (Court of Civil Appeals of Texas. El Paso.
    March 26, 1914.
    Rehearing Denied April 23, 1914.)
    1. Public Lands (§ 178)— School Lands— Contract to Convey — Time as Essence.
    Time was necessarily of the essence of a contract to purchase, on a certain date, a section of public free school land, the required three years’ occupancy of which had not been completed by two years, in view of the somewhat onerous conditions of occupancy imposed by law, so that the purchaser was required to perform on the date fixed.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.]
    2. Evidence (§ 23) — Judicial Notice.
    The Court of Civil Appeals takes judicial notice that the purchase of public free school land from the state is upon a condition of occupancy which is more or less onerous.
    [Ed. Note. — For other cases, see Evidence, , Cent. Dig. §§ 29, 30; Dec. Dig. § 23.]
    3. Public Lands (§ 178) — School Lands— Sale — Performance by Vendor — Unreasonable Delay.
    Where plaintiff agreed to convey a section of public free school land on March 1st, the purchaser’s failure to tender performance until July was an unreasonable delay, though he was ill up to about May 1st, in absence of other circumstances excusing his failure to perform after recovery.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.]
    4. Vendor and Purchaser (§ 180) — Tender of Performance — Tender by Guarantor.
    The vendors of land could not be required to accept purchase-money notes executed by one who had guaranteed performance by the purchaser, instead of notes executed by the purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 366; Dec. Dig. § 180.]’
    5. Guaranty (§ 78) — Liability of Guarantor.
    The fact that the note sued on was given by defendant to guarantee the payment by a contract purchaser of land, of the consideration of the purchase, and not as a forfeit upon the purchaser’s failure to perform, would not be a defense to an action on the note by the vendor on the purchaser’s failure to perform; defendant being primarily liable on the note as between himself and the vendor.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 91, 92; Dec. Dig. § 78.]
    Appeal from Andrews County Court; N. P. Ross, Judge.
    Action by J. C. Ainsworth against A. W. Sears. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Chas. Gibbs, of Midland, for appellant. J. M. Caldwell and Jno. B. Howard, both of Midland, for appellee.

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

   HIGGINS, J.

On July 25, 1910, appellee Ainsworth contracted to convey to Calvin Taylor section 9 in block A42, public free school land in Andrews county. The three years’ occupancy thereof required by law would not be completed until the spring of 1912. Appellant Sears conducted the negotiations in behalf of Taylor. It not being at that time convenient for Taylor to settle and reside upon the land, the same was not to be conveyed to him until March 1, 1911, at which time he was to make a cash payment of $500 and execute purchase-money notes to cover a balance of $2,060, divided into four equal installments and payable in one, two, three, and four years after date, with interest. On date Ainsworth made this contract, he conveyed the .land to J. N. Norwood, with whom he arranged that the same should be by him in turn conveyed to Taylor on the date aforesaid. The purchase-money notes to be given by Taylor were to be payable "to order of Norwood, and the cash payment of $500 was to be paid to Ainsworth. To guarantee the performance by Taylor of his contract of purchase, Sears executed a note for $500 in appellee’s favor, due March 1, 1911, and placed same in escrow, to be delivered to Ainsworth for collection in event Taylor failed on said date to comply with his contract of purchase. On March 1, 1911, Ainsworth and Norwood were in the county seat of An^ drews cojirity, ready, willing, and able to comply with aforesaid contract; but Taylor was not present and did not offer to comply with his contract and make settlement upon the land until the summer of 1911. Some time during the month of March, 1911, and several times subsequent thereto, Sears requested ap-pellee to have Norwood convey the land to him or to some one whom he (Sears) would designate. This appellee refused to do. It seems that Taylor’s reason for not settling upon the land on March 1, 1911, and otherwise complying with his contract of purchase was due to illness which incapacitated him from so doing. Not until July, 1911, did he come to Andrews county and offer to comply with his purchase and make settlement upon the land.

This suit is by Ainsworth against Sears upon the $500 note aforesaid given to guarantee the performance by Taylor of his contract. The case was tried before the court and judgment rendered in favor of Ainsworth. Findings of fact and conclusions of law were filed by the trial court. The ' court found that the physical disability of Taylor continued not later than May 1, 1911; that Ainsworth refused to comply with the request .of Sears for conveyance made during March, 1911, because “Taylor had failed to comply with his part of said contract, and for the further reasons that the conditions then affecting said Ainsworth and said Nor-wood were such that no transfer could then be made for reasons over which said Ains-worth had no control, and said forfeit money note had thereby been forfeited to plaintiff on March 1, 1911.” The court also found time was of the essence of Taylor’s contract to purchase on March 1, 1911, and that, the amount of the note sued upon given by Sears to guarantee performance by Taylor became a liquidated and enforceable demand upon Taylor’s breach.

The first assignment of error is to the effect that the evidence is insufficient to support the court’s finding that time of performance was of the essence of the contract. This must be overruled. If the land concerning which the parties contracted had been patented, there might be some merit in the contention that an offer by Taylor to comply with his contract of purchase within a reasonable time after March 1, 1911, would have saved a forfeiture of the $500 evidenced by the note sued upon; but this court judicially knows that the purchase of public free school land from the state is upon a condition of occupancy which is more or less onerous. It was a matter of no little importance to the owner of section 9 that the prospective purchaser, Taylor, should promptly comply with his contract and make settlement on March 1st as he had agreed. This circumstance alone, we think, would be sufficient to warrant the court in making the finding of which complaint is made.

Certainly his failure to tender performance until July was an unreasonable delay in the- absence of any facts tending to explain or extenuate same. His illness and consequent incapacity was assigned as an excuse for his failure to tender performance on the contract date, but there is an unchallenged finding that this disability terminated not later than May 1st. This delay of at least two months is unexplained, and no excuse whatever is offered. There is evidence to support the trial court’s finding, and this court is bound by the same.

As to the demand made by Sears, subsequent to March 1st, that conveyance be made to him or to some one whom he might designate, this raises a question quite apart from that of whether or not there is evidence to support the court’s finding upon the issue noted; but as to this phase of the case it may be remarked ¿hat there is nothing to show tender of notes executed by Taylor for the unpaid purchase money, and Ainsworth and Norwood could not, under the contract, be required to accept the notes of Sears or any one else, in lieu thereof. So the demands of .Sears possessed no saving grace.

The second assignment is predicated upon the premise that time was not of the essence of the contract. The trial court made an adverse finding as to .tbis issue, and there is evidence to support it as shown above. The assignment must be overruled, since it rests -upon a false premise.

By his third assignment, appellant urges that the judgment is unsupported by the evidence and findings of fact, in this, that the note sued upon was given by defendant to guarantee the payment by Taylor of a cash consideration which Taylor contracted to pay, and not as a forfeit. This matter does not constitute a defense to the note. As between Sears and Ainsworth, Sears was primarily liable upon the note. Taylor was not a party thereto. If the relations between Sears and Taylor were such as to make Sears merely a surety, then it would only have given Sears the right to make Taylor a party defendant and obtain judgment over against him. Taylor was not a party to the note upon which the suit was based. Certainly judgment cannot be obtained upon an express contract against one who is not a party thereto.

Affirmed.