author: LANE, J.

text:
    WEST et al. v. GALVESTON, H. & S. A. RY. CO.
    (No. 7384.)
    (Court of Civil Appeals of Texas. Galveston.
    May 29, 1917.
    Rehearing Denied June 14, 1917.)
    Navigable Waters &wkey;>20(8) — Drawbridges —-OBSTRUCTION OE NAVIGATION — UNUSUAL Peril.
    A railway company’s refusal to permit a vessel to pass through its drawbridge during the great Galveston storm of 1915, where the railroad was being constantly used to transport fleeing citizens, and where the operation of the drawbridge would have imperiled its use and that of the railway tracks, did not violate Rev. St. art. 6485, prohibiting the railroad company from impairing the usefulness of a navigable stream by operation of a drawbridge, and Rivers and Harbors Act Aug. 18, 1894, c. 299, § 5, 28 Stat. 362 (U. S. Oomp. St. 1916, § 9973), requiring a railroad company operating a drawbridge across a navigable stream to open the same for the passage of vessels upon Remand being made, since the conditions and perils caused by the storm were unusual.
    [Ed. Note. — Eor other cases, see Navigable Waters, Cent. Dig. § 96.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by J. J. West and another against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant and plaintiffs appeal.
    Affirmed.
    Stewarts, of Galveston, for appellants. Baker, Botts, Parker & Garwood, of Houston, and W. T. Armstrong and Eugene A. Wilson, both of Galveston, for appellee.
   LANE, J.

This suit was brought by J. J. West and R. A. Frenzll, plaintiffs, against the Galveston, Harrisburg & San Antonio Railway Company, defendant, to recover tbe sum of $4,000 for damages to a certain boat, the property of plaintiffs, alleged to have been caused by reason of the unlawful and negligent acts of defendant, and for $1,500 additional for loss of the use of said boat.

Plaintiffs allege that tbe defendant railway company constructed a railway bridge over and across Dickinson bayou, a navigable stream, with a draw or swing bridge as a part tl eroof, which could be opened to permit the passage through said bridge of water crafts passing along said bayou; that all water craft, including those of the plaintiff, had the right to demand and receive of the defendant, its agents and servants, passage through said drawbridge for the purpose of navigating Dickinson bayou, subject only to a reasonable use by the defendant of said bridge in connection with the defendant’s railroad tracks for the passage of trains thereover. They further allege that on the 16th day of August, 1915, during the great peril of an approaching storm, those in charge -and control of plaintiff’s boat undertook to run said boat up Dickinson bayou for protection against the approaching storm; that when they reached said bridge they made frequent demands ujpon defendant’s servants who were in charge of said draw or swing bridge to open same so said boat could pass up said bayou; but that said servants failed and refused to open said drawbridge so that plaintiffs’ boat could pass up said bayou; and that by reason of such failure and refusal plaintiffs’ boat was driven against said bridge by the wind and waves and damaged in the sum of $4,000. They allege that such failure and refusal to open said bridge was unlawful, willful, and unreasonable and malicious. They also allege special damages in the sum of $1,500 for the loss of the use of said boat.

Defendant answered by general denial, and Special plea as follows:

“Answering further herein, this defendant shows to the court: That, by reason of the severity of the great storm then raging, it was impossible at the time alleged to open the draw or swing of the bridge alleged by plaintiffs without endangering the life or lives of any person or persons who might have then attempted to open the same to permit plaintiffs’ alleged boat to pass. That had the efforts of any employs or employés of this defendant been put forth at such risk of their lives, and had they succeeded in opening said draw or swing bridge, it would have been impossible by reason of the said great and dangerous storm to successfully close the same in order to permit the passage of trains of this defendant, for whose passage the said bridge was constructed across the alleged Dickinson bayou, a navigable water of the United States; and that this defendant, being a common or public carrier of passengers, had passenger trains due to pass over the said bridge on the said 16th day of August, 1915, and which it expected to move over said bridge at divers times during said day at about the time and after the time plaintiffs’ said boat sought passage through said bridge. That some of its trains were expected to carry and did carry large numbers of persons from the city of Galveston, many of whom were demanding transportation from said city, seeking refuge from the mighty storm then raging, and whose severity was plainly growing more dangerous hour by hour. That, as was plainly evident, defendant could not have opened, or attempted to open, the draw of said bridge at the time passage through same was sought by the alleged boat of the plaintiffs without gravely imperiling the safe transportation of the passengers upon its aforesaid trains and thereby committing a gross and inexcusable breach of its legal obligation to safely transport the aforesaid passengers with the utmost care. That the necessity for the use of said bridge by the public who used the passenger trains of this defendant was, at said time, a great public necessity, and the need in such time of keeping open its line of railroad, of which said bridge was a part, between Galveston Island and the outside world, in order to maintain in the stress of that dangerous period proper transportation for supplies and for people, was likewise a matter of great public necessity. That all the matters and things therein alleged, and each of them, imposed upon this defendant the imperative duty of using every human effort to preserve said bridge intact and safe for so long a period as such effort could avail therefor, and these public necessities, and each of them, wore paramount in importance to any right claimed by the plaintiffs to seek passage through said draw or swing of said bridge at a time when such pressing and imperative rights of the public aforesaid would have been greatly endangered by the opening of the said draw for the accommodation of the said plaintiffs. That any action by defendant or its servants in maintaining the safety of said bridge, and protecting against the obvious great danger, and the practical certainty of destroying the use of i.ts said line of railroad by opening said draw or swing of said bridge at said time, was a reasonable and necessary use of the said bridge for the safe passage of its passenger, mail, freight, and supply trains thereon, and for the use of the public.”

The case was tried with a jury, and, upon, their verdict in favor of defendant, judgment was accordingly rendered.

Appellants’ contention for a reversal, in effect, is: First, that from the evidence it is apparent that those in charge of said bridge could have' opened the draw so as to let said, boat pass; and, second, that if it be conceded that the. drawbridge could not have been opened, so as to let said boat pass, without great danger to the lives of those in charge of the same and to passenger trains of defendant, still, under the law, defendant would be guilty of negligence for which it would be liable to plaintiffs for their damages. They contend that by article 6485, Revised Civil Statutes of this state,, and section 5 of the Rivers and Harbors Act (Act Aug. 18, 1894, c. 299, 28 Stat. 362 [U. S. Comp. St. 1916, § 9973]), it is made the imperative duty of defendant to keep said navigable waterway not unnecessarily impaired, and therefore no incident of any nature whatsoever would absolve it from its duty to open said drawbridge, to let water crafts pass, upon demand being made upon it so to do; that if in fact it were impossible for defendant to open said bridge by reason of said storm, or that if in fact those in charge of said bridge reasonably believed that an attempt to open the bridge would imperil their lives and the lives of passengers on defendant’s trains, and for these reasons failed or refused to open the bridge, still defendant would be liable to plaintiffs for their damages.

By article 6485, supra, it is provided:

A railroad “corporation shall have the right to construct its road across, along, or upon any stream of water, water course, street, highway, plank road, turnpike, or canal which the route of said railway shall intersect or touch; but such corporation shall restore the stream, water course, street, highway, plank road, turnpike, or canal thus intersected or touched to its former state, or to such state as not to unnecessarily impair its usefulness, and shall keep such crossing in repair.”

Section 5 of the Rivers and Harbors Act is as follows:

“That it shall be the duty of all persons owning;, operating, and tending the drawbridges now built, or which may hereafter be built across the navigable rivers and other waters of the United States, to open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of War the public interests require to govern the opening of drawbridges for the passage of vessels and other water crafts, and such rules and regulations, when so made and published, shall have the force of law. Every such person who shall willfully fail or refuse to open, or cause to be opened, the draw of any such bridge for the passage of a boat or boats, or who shall unreasonably delay the opening of said draw after reasonable signal shall have been given, as provided in such regulations, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than two thousand dollars nor less than one thousand dollars, or by imprisonment (in the case of a natural person) for not exceeding one year, or by both such fine and imprisonment, in the discretion of the court.”

The court, after further instructing' the jury as to the substance of the pleadings of both parties, further instructed the jury as follows ■.

“You are instructed that it was the duty of the defendant company to open the draw to allow the Eva (boat) to pass through unless the doing so would, under the circumstances, have endangered the lives of those undertaking to operate it, or have endangered the operation of its trains, or have created a reasonable apprehension thereof, on account of the storm prevailing at the time, if any.
“If you believe from the evidence that the defendant’s agents and servants failed or refused to open the draw to allow the Eva (boat) to pass through when duly signaled, though the same might have been done without endangering; the lives of those operating the draw or the maintenance of defendant’s line of railway for the safe passage of trains, or without reasonable apprehension thereof, and that in consequence thereof in the natural course of events, from conditions then existing and known to such agqnts and servants, the vessel was damaged and wrecked, then the plaintiffs are entitled to recover. But if the attempt to open the draw at the time would have endangered the safety of those undertaking to operate it, or the maintenance of defendant’s line of railway for the safe passage of trains, or created a reasonable apprehension thereof, then the defendant is entitled to your verdict. * * *
“You are the exclusive judges of the facts proven, the weight of the evidence, and the credibility of the witnesses; but you must receive the law from the court which is here given you.
“The bui’den of proof is on the plaintiff to show by a preponderance of the evidence the facts entitling them to recover, but in determining such facts you will take into consideration all the facts and circumstances in evidence relating thereto.”

We cannot sustain the contention of appellant: First, because the undisputed evidence shows that at the time the demand for the opening of the bridge was made an unusual storm was prevailing, and there was sufficient evidence to support a finding by the jury that it was impossible to open the bridge at that time 'because of the storm, and to also support a finding that an attempt on the part of those in charge of the bridge to open the draw therein, under prevailing conditions, would have imperiled the lives of those making such attempt as well as the lives of passengers on the trains of defendant, who were fleeing from Galveston to avoid the dangers of the great storm of 1915; and, second, we cannot agree with the contention of appellants that damages suffered by them are recoverable from appellee regardless of its inability to open the draw in its bridge, and regardless of its refusal to so open the same when it reasonably appeared to those in charge thereof that to do so would cause the death of those attempting to open said draw, and regardless of the danger to the passenger trains of appellee in the .event said draw was opened. We think counsel for appellants misconstrues the provision of the law above quoted. We have carefully reviewed the authorities cited by appellants and have concluded that none of them has any application to the ease made by the pleadings and evidence now before us. We have also reached the conclusion that the charge of the court fully and fairly submitted the case to the jury as made by the pleadings of both parties and the evidence adduced thereunder.

The right of the defendant to temporarily refuse to open the draw in its bridge under the prevailing conditions at the time, we think, cannot be reasonably questioned.

In the case of I. & G. N. Ry. Co. v. Bergman, 64 S. W. at page 1001, it is said: ■

“The storm in question was of such unprecedented fury, resulted in the destruction of such a vast amount of property and in such an appalling loss of human life, that it attracted the attention of the entire civilized world. The court may therefore assume judicial knowledge of the fact that it occurred, as well as its nature and extent. This being true, we may safely proceed upon the assumption that, when the people of Galveston awoke to a realization of their danger, they gave small thought to the clanger threatening senseless chattels, and turned their attention to saving their own and other human lives. In such a situation, it will be scarcely contended but that the most prudent man would have busied himself with looking to the welfare of his family and friends, and in deference to such paramount duty he would have postponed the safety of his most precious chattel. The defendant, though a corporation, must have exercised the care demanded through human agencies. Its officers, clerks, and dray-men were human beings, and all alike subject to the impending calamity. Thus the facts and the nature of the disaster furnish, not only a further reason why we should hold the defendant acquitted of blame, unless the plaintiff shall make it affirmatively appear that there was negligence after the danger was discovered, but excludes the idea that such negligence could be shown.”

In the case of Railroad Co. v. Fries, 87 Pa. 284, it is said:

“Had they turned their entire attention to plaintiff’s property, neglected all other duties, and left helpless women and children to their fate, it is just possible they might have succeeded in getting the three cars off the siding. They were not obliged, however, to sacrifice every feeling of humanity to the preservation of plaintiff’s property; and, had they done so, the evidence does not show that it would have been successful.”

What has been said disposes of all of appellants’ assignments, and, as we find no error committed in the trial of the,cause in the trial court, the judgment there rendered is affirmed.

Affirmed.
      <$^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    GENERAL BONDING & CASUALTY INS. CO. v. LAWSON.
    (No. 5786.)
    (Court of Civil Appeals of Texas. Austin.
    June 13, 1917.)
    1. GARNISHMENT &wkey;>78 — JURISDICTION—STATUTE.
    Under Rev. St. 1911, arts. 283, 284, 290, 292, 299, 301^306, providing that, where the garnishee is not a resident of the county in which the suit is pending, or the judgment has been rendered wherein he is garnishee, if the answer is contested, all of the papers pertaining to the suit may he sent to the county where the garnishee resides, and filed in the proper court, and the garnishee shall be cited, and the issue tried in such court, where a corporation, a resident of Dallas county, without a residence in Hamilton county, or any agent there, was garnisheed on judgment obtained in Hamilton county, and its answer was controverted by the judgment creditor, the district court of Hamilton county had no jurisdiction to try the garnishment cause.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 25, 144.]
    2. Pleading <&wkey;214(l) — Demurrer —Admission.
    Demurrer admits the truth of the allegations in plaintiff’s petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525, 529.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Suit by the General Bonding & Casualty Insurance Company against C. T. Lawson. To review a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    See, also, 194 S. W. 1020.
    T. L. Camp and C. M. Smithdeal, both of Dallas, for appellant. Chris Emmett, of Jacksonville; and I-I. E. Chesley and Dewey Lang-ford, both of Hamilton, for appellee.
   JENKINS, J.

We have concluded that we fell into error in affirming the decision herein, for which reason our former opinion is withdrawn, and this opinion substituted in lieu thereof.

The appellee had obtained a judgment in the district court of Hamilton county against the Hamilton Compress Company for $5,000, and sued out a writ of garnishment against the appellant. The application for writ of garnishment does not appear in the record. The appellant answered said writ, alleging that it was not indebted to the compress company, that it had none of its effects in its possession, and that it did not know of any person who was so indebted,‘or had such effects in his possession. The answer, if not controverted, required the court to give judgment in favor of the garnishee. The answer was. controverted by appellee, in what respect is not shown by the record. Judgment was entered in favor of the appellee against the appellant for $5,000.

Appellant brought this suit in the district court - of Hamilton county at the next term thereof to set aside such judgment, alleging that it did not know that its said answer was controverted, and did not know of the entry of said judgment until after the adjournment of the term of the court at which the same was rendered, for which reason it did not file a motion for new trial in said court, and also alleged that it could not successfully prosecute a writ of error, for the reason that the judgment recited that appellant appeared in open court upon such trial, which statement appellant alleges is not true.

Appellant alleges that it has its residence in Dallas county, Tex., and that it did not have a residence in Hamilton county, or any agent in such county at the time the writ was served upon it, nor at any other time. Appellant alleges that its failure to appear in the district court of Hamilton county upon the trial in which judgment was rendered against it arose from the fact that it was not a resident of that county, but did reside in Dallas county, and it relied upon the fact that, if its answer was contested, the issue thus formed would be tried in Dallas county.

The statute provides that, where the garnishee is not a resident of the county in which the suit is' pending, or judgment has been rendered wherein he is. garnisheed, if he does not answer a commission must be sent to the county of his residence, and if he does answer, and the answer is contested, all of the papers pertaining to such suit may be sent to the county where the garnishee resides, and filed in the proper court, and that the garnishee shall be cited and the issue shall toe tried in such court. R. S. arts. 2o3, 284, 290-292, 299, 301-305.

Appellant’s petition! herein to set aside the judgment rendered against it alleges the fact of its answer and its residence as above stated. The appellee filed a general demurrer to this petition. If the facts alleged in the petition are true, the district court of Hamilton county had no jurisdiction to try this cause. The demurrer admits the truth of the allegations in plaintiff's petition. The statute requires that a party suing out a writ of garnishment should state under oath, among other things, the residence of the garnishee. We affirmed this case formerly upon the theory that everything should be presumed in favor of the judgment, in the absence of evidence to the contrary, and we stated that it should be presumed that appellee stated in his application for a garnishment that appellant resided in Hamilton county, and that satisfactory proof of that fact was produced on the trial. However, as appellee by his demurrer admits that appellant did not reside in Hamilton county, and had no agent there, and has never so resided, we do not think that we ought to presume that appellee made a false affidavit, or proved' something that he admitted was not true.

For the reasons stated, the motion for a rehearing is granted, and the judgment of the trial court is reversed and remanded.

Motion granted. Judgment reversed and remanded.
      ©==>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J. TALBOT, J.

text:
    HODDE et al. v. MALONE REAL ESTATE CO.
    (No. 7696.)
    (Court of Civil Appeals of Texas. Dallas.
    April 14, 1917.
    On Rehearing, June 23, 1917.)
    1. Appeal and Error <&wkey;930(l)-r-REViEW— Evidence.
    Where verdict and judgment were for plaintiff, the evidence must be regarded on appeal in the light of the facts deducible from plaintiff’s testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758.]
    2. Brokers <&wkey;86 (8) — Realty Broker — Employment — Sufficiency of Evidence.
    In an action for commission by a firm of realty brokers, evidence held to show that defendants employed the firm to sell their land at $75 an acre, and agreed to pay 5 per cent, commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117.]
    3. Brokers <&wkey;54 — Realty Broker — Right to Commission.
    In cases where there is not an actual sale and purchase of land placed with a broker within the time agreed upon, if time is fixed, the broker may not recover commission unless he produced a purchaser ready, able, and willing to purchase on the terms specified by the owner.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 75-81.]
    4. Brokers <&wkey;57(2) — Realty Broker — Right to Commission.
    A realty broker isi entitled to commission as the efficient cause of a sale when it is consummated by the owner pending the broker’s negotiations with a purchaser produced by his efforts or through him on terms other than specified by the owner, if the change in the terms was due to the owner’s voluntary act. ■
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72.]
    5. Brokers <&wkey;82(4) — Pleading—Evidence.
    . In an action for commission by a firm of realty brokers, the pleading that defendant owners voluntarily consummated a sale, with a purchaser produced by plaintiff firm, on terms dissimilar to those specified by the owners, though general, was sufficient to permit the introduction of testimony in the absence of demurrer raising any issue.
    [,Ed. Note. — For other eases, see Brokers, Cent. Dig. § 103.]
    6. Brokers @=»86(6) — Realty Brokers — Right to Commission — Production of Purchaser-Sufficiency of Evidence.
    In an action for commission by a firm of realty brokers, evidence held to support finding that the firm produced a purchaser with whom defendant owners negotiated a sale induced by their act in voluntarily reducing the price.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117.]
    7. Evidence &wkey;>588 — Conflicting Evidence —Duty of Jury to Reconcile.
    The duty to reconcile conflicts in the evidence, or to adopt one or the other theory shown by the evidence, is placed on the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § -2437; Witnesses, Cent. Dig. § 1164.]
    8. Witnesses <&wkey;331i4 — Impeachment.'
    In an action for commission by a firm of realty brokers, where the buyer of the land from defendant owners stated positively that neither plaintiff firm nor another agent, with whom they acted, had discussed the purchase of defendants’ land with him before his negotiation had directly with defendant owners, a member of plaintiff firm was properly permitted, to impeach the witness, to state that the buyers did at the time and place mentioned admit that the other real estate agent was the first to offer them the land.
    9. Brokers <&wkey;57(2) — Realty Broker — Right to Commission — Amount.
    A realty broker has earned and is entitled to his commissions according to his contract with the owner when he procures a purchaser with whom the owner, pending negotiations, directly makes a sale on terms dissimilar to those specified to the broker, but satisfactory to himself.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72.]
    10. Brokers t&wkey;81 — Action for Commission —Parties.
    A realty broker who, though not a member of a firm of brokers, was commonly associated with them in sales, and entitled to an even division of a commission sued for by the firm, if collected, was neither a necessary nor a proper party to the suit.
    11. Inteeest <&wkey;38(l) — Interest on Judgment — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4981, all judgments not entered upon contracts ascertaining the rate of interest shall bear 6 per cent, per annum from and after their date, and a judgment for broker’s commissions bearing 8 per cent, was erroneous.
    [Ed. Note — For other cases, see Interest, Cent. Dig. §§ 79, 80, 82.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit by the Malone Real Estate Company against Henry Ilodde and others. From a judgment for plaintiff, defendants appeal.
    Reformed and affirmed.
    J. j. Averitte and Wear & Frazier, all of Hillsboro, for appellants. Geo. W. Dupree and H. G. Hart, both of Hillsboro, for ap-pellee.
   RASBURY, J.

Appellee sued appellants, Henry Ilodde, Henry Hodde, Jr., and Henry Reuy, alleging that about the middle of February, 1914, appellants listed with appellee, a firm of real estate brokers composed of J. W. Powell and J. M. Meader, 326 acres of land in Bosque county, and agreed if appel-lee should find a purchaser for the land to pay appellee as commissions 5 per cent, of the amount of the purchase price secured therefor, and that appellee, after negotiating with Brandies Bros., and after arranging a meeting of appellants with •Brandies Bros., appellants thereafter sold the land so listed with appellee to Brandies Bros., as the result of the efforts of appellee in bringing the parties together. Appellee further pleaded that appellants,, knowing that appellee expected to be remunerated for its services in that behalf, permitted and consented to it performing the service of 'securing a purchaser for their land, and accepted the fruits and advantages thereof by selling their land to the purchaset produced by appellee, and by reason whereof they became bound to pay appel-lee the reasonable value of the services rendered or 5 per cent, of the purchase price of said land. Prayer was for judgment for $1,100.25 and for general relief. Appellants’ pleading, while specifically denying certain allegations of appellee’s petition, was in effect, a general denial. There was trial, the case being submitted to the jury upon a general charge. Verdict was for appellee for $1,100.25, followed by similar judgment, from which this appeal is prosecuted.

The first assignment of error complains of the refusal of the court to peremptorily instruct verdict for appellants. Under the assignment it is first urged that the evidence does not support the finding of the jury that appellants agreed to pay a commission for the sale of their land. The issue so raised requires an examination of the evidence, which by the well-settled rule must be regarded in the light of the facts deducible from the testimony of appellee, those essential being as follows: From the testimony of. J. W. Powell, a member of appellee firm, it appears that J. M. Meader, a member of appellee firm, located at Malone, immediately preceding the time when appellee was employed by appellants, returned from Clifton, in Bosque county, where he had learned through one 3. D. Profit, a real estate broker located there, that the appellants’ land could be sold to Brandies Bros, by Profit, who was commonly associated with appellee firm in sales of property. Just about that time, which was the middle of February, 1914, appellants were in Malone, and at the solicitation of Powell listed their land with appellee to be sold for $75 per acre, appellants agreeing to pay 5 per cent, of the purchase price as commissions. Powell at the time advised appellants that the prospective purchaser was Brandies Bros. The week following the witness Powell, having occasion to visit the town of Womack, also in Bosque county, for the purpose of showing some land to another client, carried with him in the same automobile one of the Hoddes and Reuy, thinking he might at the tae time sell appellants’ land to Brandies Bros. After having visited Womack, and upon reaching Clifton the witness told appellants to call upon Brandies Bros, concerning the land. This they did, reporting that Brandies said he was not ready. The witness did not personally see Brandies Bros, while in Clifton, in fact, was unacquainted with them. The extent of his efforts to sell the land while there was to direct appellants to see Brandies Bros, in reference thereto.

From the evidence of the witness J. M. Meader it appears that about the middle of February, 1914, in the town of Malone, he informed appellants that he had been, in communication with 3. K. Profit, of Clifton, and thought he could sell appellants’ land to Brandies Bros, for $75 an acre. He solicited authority from appellants to do so, to which appellants agreed. At the time appellants made the visit to Clifton with Powell witness, who had- spent the preeéding day in Clifton consulting with Profit concerning its sale to Brandies Bros., joined them at appellants’ farm, which was passed in making the journey bo Clifton, and returned with them to 'Clifton. During the journey witness advised appellants that Brandies Bros, were not then ready to buy the land, and requested the appellants “to go to Clifton and talk with them.” This they did when they reached Clifton, and reported that Brandies Bros, were not ready to buy right then. Witness told them to “sit still” and he would sell it for $75 an acre. Appellant Henry Hodde called to see witness two or three times the week following the visit to Clifton and inquired how the trade was progressing. Each time witness advised Hodde that Profit had reported that Brandies Bros, said they were not yet ready to buy. Witness was unacquainted with the Brandies Bros, and never had any personal communication with them concerning appellants’ lands.

From the testimony of the witness J. K. Profit it appears that about February 11 or 12, 1914, he received a letter from the witness Meader stating that appellants had listed their land with appellee, with whom Profit was associated. Profit at once went to Brandies Bros, and offered them the land for $75 an acre. Brandies Bros, said it was a little too much. A few days later he again discussed the matter with Brandies Bros., who again said the price was a little too much. Thereafter, when Meader, Powell, and appellants were in Clifton, he reported to them Brandies Bros’, attitude.

Appellant Henry Hodde, Jr., according to his testimony, did talk with Brandies Bros, during what he described as an accidental meeting when they were in Clifton, at which time he described the respective portions of the tract owned by each, the improvements thereon, and the character of the soil, and offered to sell to Brandies Bros, for $75 an acre. Brandies Bros, said they would love to buy it and for Hodde to see the other folks and drop him a letter. After' Hodde returned home he at once wrote Brandies Bros, a letter in the German language, of which the following is a translation:

“Worthy Friend: As X promised to write you I will take this opportunity. I do not know whether old man Profit has already spoken with you or not about our farm which we bought of Dr. McNeil. The agents have not listed our farm, and if old man Profit comes to you and wants to sell you our farm, do not deal with him. And if you wish to buy our farm, we prefer to make the trade ourselves, and would sell it somewhat cheaper. It is not necessary that the agents should always get a commission out of it. You need not tell any one so that old man Profit might hear it again. I think we have a very pretty farm, for we have not many stones on tlie whole place. It is only over on tlie west side in the pasture. I think we bought the best part from McNeil, and that is what all the renters say who live on the place. They think our places are worth at least five-or ten dollars an acre more than the 430 acres which, Dr. McNeil still owns. While we have on our 327 acres three valuable houses and three good barns, and on all our cultivated land not many stones, on the 430 acres are only two sets of houses and on the south and east are a good many stones. I think the prairie land that does not overflow in three years from now it will bring $100.00 an acre. Why, in the four years I have been in Hill county, I have seen land sell for $75.00 that one must pay $125.00 or $140.00 an acre for. I soon will have to close, for my letter will get too long. So if you really wish to buy a good farm, go and took well at ours and write me what you think it is worth, and what is the most you will give for the land. Please say nothing to old man Profit that I have written you, and make no trade with any of the agents who come from here about our lands. If you wish to buy, we would rather sell to you ourselves. Herewith will I close. Henry Hodde, Jr.”

As a result' of the negotiations between Brandies Bros, and appellants Brandies Bros, bought the land, paying therefor $67.50 per acre. Appellants refused to pay any commission to appellee.

The foregoing are the salient facts in the controversy tending to support the verdict of the jury. We have not attempted to recite the many and varied collateral facts ’and circumstances which might weaken or strengthen, modify, or shade the main facts, for the reason that none of them would necessarily reduce the maximum of the main facts comprehended in the verdict of the jury. Nor have we attempted to recite the salient facts deducihle from appellants’ testimony. They are irreconcilably in conflict with those arising on the testimony of ap-pellee. We could not, nor is it our duty, to reconcile them.

We now return to the contention that the facts stated will not support the finding that appellants agreed to pay appellee any sum of money to sell his land. The facts on that precise point speak for themselves, and do show, we think, according to the testimony of both Powell and Header, that appellants employed appellee to sell their land at $75 per acre and to pay appellee as commission 5 per cent, of the purchase price thereof, and the verdict does in that respect find support in the evidence.

But it is urged by appellants, and constitutes, we apprehend, their real contention, that in order to sustain the verdict and judgment it must appear from such facts that appellee produced a purchaser ready, willing, and able to purchase upon the terms and at the price specified, bound by enforceable contract to do so. The general and uniform rule, as we understand it, in cases where there is not an actual sale and purchase of the land, is that within the time agreed upon, if time is fixed, the broker may not recover his compensation unless it appears that by his efforts he produced a purchaser ready, able, and willing to purchase the property upon the terms specified by his principal. We also understand that it is a further uniform and general rule that the broker is entitled to his compensation, and is held, to be the efficient and procuring cause of the sale, when a sale is consummated by the principal, pending the broker’s negotiations, with a purchaser produced by his efforts or through his instrumentality, upon terms other than specified by the contract, when it appears that the change in terms is due to the voluntary act of the principal. Graves v. Bains, 78 Tex. 92, 14 S. W. 256; Bellis v. Hann & Kendall, 157 S. W. 427; Goodwin v. Gunter (Sup.) 185 S. W. 295. No claim was made upon trial, nor is any made here, that appellee produced a purchaser at the contract pric.e. The claim is that appellants voluntarily consummated a sale with the purchaser produced by ap-pellee upon terms dissimilar to those specified, whereby they became liable to appellee under the rule stated for the agreed compensation. This contention, while generally pleaded, is sufficiently, so to permit the introduction of testimony in the absence of demurrer raising any issue on the "pleading. We observed in Beilis v. Hann & Kendall, following Graves v. Bains, both cited above, the rule relied on by appellee. The rule was also observed in Goodwin v. Gunter, supra, where it is said that in such cases the broker is entitled to the contract compensation, though it seems that in the present case a recovery was permitted for only 5 per cent, of the reduced purchase price. The facts arising upon the evidence are in our opinion sufficient to support the finding of the jury implied by their verdict that appellee produced a purchaser with whom appellants negotiated a sale induced by the act of appellants in voluntarily reducing the price. It is in effect undisputed that appellánts, immediately following the time when appellee informed them that Brandies Bros, were the prospective purchaser and arranged the meeting of the parties in Clifton, secretly communicated with Brandies Bros., reducing the price of the land and urging him not to negotiate with the agents and to keep their negotiations secret. Certainly it cannot be said that there is no disputed issue of fact on that question.

Appellants rely on the case of Pryor v. Jolly, 91 Tex. 88, 40 S. W. 959. That case, it seems to us, is clearly distinguishable in its facts from the case at bar. Prom that case it appears that Pryor agreed to pay Jolly as commission $1 per head on all cattle accepted by -one Holden at the price and upon the terms specified by Pryor. Holden agreed to such price and terms, but was never able to comply with them because unable to secure the necessary money. Jolly sued Pryor for his commission, and the court instructed the jury that, if Pryor could have enforced his contract at law against Holden, then Jolly had. earned his commission. Snch instruction was obviously erroneous, since, as said by the court, it was Jolly’s duty to secure a purchaser ready, willing, and able to take the cattle and pay the agreed price. He did not perform that duty when he secured a contract from the purchaser agreeing to do so, since the test was his ability to do so. The judge who wrote that opinion, in a later one distinguished it from such cases as the present one. Hancock v. Stacy, 103 Tex. 219, 227, 125 S. W. 884. Here, as we have said, the issue is not whether ap-pellee secured a purchaser on the specified terms. On the contrary, the issue is that appellants voluntarily changed the specified terms and consummated with the purchaser produced by appellee another and different arrangement. .

The second proposition urged under the first assignment of error is that the peremptory instruction should have been given because the preponderance of the testimony shows that appellee failed to secure a purchaser upon the terms specified. As we have said, it is not claimed that appellee secured a purchaser upon the terms agreed upon, but that’ appellants, pending appellee’s negotiations with Brandies Bros., reduced the price and consummated the sale themselves, which is not denied. The only question then remaining to be determined was whether appellee produced the customer to whom appellants sold. We have already discussed the evidence on that issue and its weight. It is not, it occurs to us, a question of the preponderance thereof, but rather its conflicts.

Wisely the duty of reconciling con-: flicts or adopting one or the other theory shown by the evidence is placed upon the jury, who can see and hear the witnesses and form a much clearer opinion of the weight or importance to be attached thereto than can members of this court from a perusal of same.

The third assignment challenges the action of the court’in admitting certain testimony. On cross-examination the witness Brandies, when asked if he did not, at Clifton, in the presence of J. K. Profit, J. M. Header, and J. W. Powell, state that Profit was the first person to offer him the appellants’ land, denied making such admission. Subsequently J. H. Header was permitted, over the objection of appellants, to state that Brandies Bros, did, at the time and place mentioned, admit that Profit was the first to offer them the land. Appellants’ claim is that evidence was hearsay, collateral, and prejudicial and an attempt to impeach the witness on an immaterial and collateral matter. We believe not. Brandies in his testimony in chief had stated positively that neither appellee nor Profit had discussed the purchase of appellants’ land with him prior to the negotiation had directly with appellants. Such fact was obviously a controlling one. The effect of the admission testified to by Header was to impeach him on that issue and was admissible by elementary rule.

The sixth assignment of error complains of the action of the court in peremptorily directing the jury that if they found for appellee to assess the damage at 5 per cent, of the purchase price of the land. The court did so instruct the jury. There was no evidence in support of the issue other than the contract testified to by appellee’s witnesses. We understand the court’s action to be correct, however, on the theory that the broker has earned and is entitled to payment of his commissions according to the contract when he produces a purchaser with whom the owner, pending negotiations, directly makes a sale upon terms dissimilar to those specified, but satisfactory to himself. Goodwin v. Gunter, supra. The reason of the rule is stated in the case cited and those which it follows.

The thirteenth assignment complains of the action of the court in authorizing a verdict for appellee, while by the evidence it appears that J. K. Profit was entitled to a portion of any sum recovered. It is shown by evidence which we have not stated heretofore that J. K. Profit, while not a member of appellee firm, was commonly associated with them in sales and was entitled to an even division of the commission sued for, if collected. This, in our opinion, made Profit neither a necessary nor a proper party. He was not entitled to recover against appellants on the contract appellee alleged, nor could he have recovered from appellee upon the contract with appellants. His remedy was against appellee upon an independent contract with it.

The eighteenth and nineteenth assignments complain of the action of the court in entering judgment upon the verdict of the jury for 8 per cent, per annum interest from the date thereof. Article 4981, Vernon’s Sayles’ Civ. Stats., provides in effect, that all judgments when not entered upon contracts ascertaining the rate shall bear 6 per cent, per annum interest from and after the date thereof. The judgment in the present case, not being upon such a contract, should have borne the specified rate of 6 per cent., and is erroneous in that respect.

The second, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, and seventeenth assignments raise in various ways issues which have been determined by conclusions reached in consideration of other assignments, and they will therefore be overruled.

The judgment of the trial court will be corrected so as to provide for 6 per cent, per annum interest from its date, and as corrected will be affirmed.

Reformed and affirmed.

On Rehearing.

TALBOT, J.

We have carefully considered the well-prepared motion for rehearing, together with the forcible and courteous argument of counsel in connection therewith, and while we think the state of the evidence is such as would have supported a verdict for appellant, it cannot be said it will not support the verdict awarded appellee. We believe the evidence, fairly considered, discloses a conflict, and if our conclusion in that respect is correct, then appellants were not entitled as matter of law to verdict.'

It is also contended by appellants in their motion for rehearing that in Bellis v. Hann & Kendall, 157 S. W. 427, and in the instant case, we held that when, pending the broker’s negotiations the principal consummates the sale with the purchaser produced by the broker, the latter is entitled to recover the contract compensation, and is not required to rely upon the rule of quantum .meruit by alleging and proving the reasonable value of his services, and that such holding is in conflict with our holding in Martin v. Jeffries, 172 S. W. 151, which, in effect, holds that when the principal, pending the broker’s negotiations, consummates the sale with the purchaser produced by the broker, the latter may only recover upon pleading and proof of the reasonable value of his services. • The point was not involved in Beilis v. Hann & Kendall, the sole issue being which of two brokers produced the purchaser, and as a consequence there is no conflict in that case and Martin v. Jeffries, supra. And, if there is a conflict in the rule announced in the . latter case and Goodwin v. Gunter (Sup.) 185 S. W. 295, which we followed in the instant case, then the reasons which may have actuated us in announcing the rule laid down in Martin v. Jeffries are without controlling force. When Martin v. Jeffries was decided Goodwin v. Gunter, had not been decided, but when we decided the instant case it had been.

It is further urged by counsel that we reform our findings so as to show as a matter of fact that the appellants did not sell or attempt to sell the lands to Brandies Bros, at the reduced price until the appellees had unsuccessfully completed their negotiations. It it urged that we do this because the Supreme Court is bound by our conclusions of fact. To so reform our findings would be to hold that the evidence does not support the judgment, which we are unwilling to do for the reasons stated in our original opinion. If there is no basis in the record for our holding, that issue can be presented to the Supreme Court in the same manner that the findings of the jury were presented to this court.

We have carefully considered the other grounds presented in the motion for rehearing, and conclude they furnish no grounds for changing our original views.

The motion for rehearing is overruled.
      @=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    AVERY et al. v. LLANO COTTON SEED OIL MILL ASS’N.
    (No. 8631.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 30, 1917.
    On Motion for Rehearing, June 2, 1917.)
    1. Venue <&wkey;72 — Residence of Defendants —Removal After Suit.
    Where suit was brought against partners residing in another county, and after plea of privilege one of them moved his residence to the county where suit was brought, .the plea was properly overruled on plaintiff’s filing an amended petition showing such removal.
    [Ed. Note. — For other cases, gee Venue, Cent. Dig. § 127.]
    2. Partnership Creation — Community of Interest in Profits.
    If two partners who were to share in the profits of a venture joined with a third person, a partnership between the three was established by the community of interest in the profits as such, although no agreement was made to share in losses.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 26.]
    3. Evidence <&wkey;177 — Secondary Evidence-Grounds of Admission.
    Where one of the defendants was plaintiff’s manager and entered into a partnership with the other defendants in a cattle transaction and was responsible for a confusion in plaintiff’s books as to the amount of feed which had been furnished, secondary evidence to show the amount of feed furnished to feed the cattle in controversy was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. '§§ 557, 570-579.] ,

    4. Appeal and Error <&wkey;882(8) — Review — Prejudicial Error.
    Admission of testimony of an expert bookkeeper that it was impossible to determine from the books the amount of feed properly chargeable was not prejudicial to the defendants, where they were making the identical contention in their objection to the admission of the books in evidence.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3597, 3598.]
    5. Appeal and Error <@^637 — Bill of Exceptions — Sufficiency—Definiteness.
    A bill of exceptions to the “books kept by plaintiff, including the original scales tickets and itemized accounts and statements taken therefrom,” but which does not show just what books, scales tickets, and accounts were in fact introduced and in no manner identifies them, was so indefinite as to be of itself a sufficient ground for overruling the assignment predicated upon the ruling.
    [Ed. Note. — For other cases,' see Appeal and Error, Cent. Dig. §§ 2784, 2829.]
    6. Evidence <&wkey;177 — Admissibility — Best Evidence — Estoppel.
    As one of the defendants was also plaintiff’s manager and was responsible for confusion in the plaintiff’s accounts, defendants are in no position to invoke the best evidence rule otherwise applicable, and plaintiff was entitled to introduce secondary evidence to prove such account.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 557, 570-579.]

      7. Appeal and Eeror <&wkey;882(S) — Review — Waiver op Error.
    Where defendants introduced in evidence the account which was attached to plaintiff’s pleading's as an exhibit and made a part thereof, they waived their right to complain of its admission.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3597, 3598.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Suit by the Blano Cotton Seed Oil Mill Association against J. C. Avery and others. Judgment for plaintiff, and the named defendant and another appeal.
    Judgment as to appellants affirmed, and as to other parties left undisturbed.
    J. H. McLean, of Llano, and Lloyd H. Burns, of Et. Worth, for appellants. Taylor, Allen & Taylor, of Henrietta, and John C. Miller, of Mineral Wells, for appellee.
   DUNKLIN, J.

The Llano Cotton Seed Oil Mill Association, a partnership firm, recovered a judgment against J. O. Avery, Earl L. Avery, and R. B. Latting for a debt of $1,-644, due the plaintiff for cattle feed alleged to have been sold by plaintiff to the defendants, and from that judgment J. C. and Earl L. Avery have appealed.

There were other defendants in the suit, some of whom were dismissed from the suit and others secured judgments in their favor. As the issues which concerned them were in no manner material to the issues involved as between the other parties, those defendants will be no further noticed.

The plaintiff firm was the owner of a cotton ^eed oil mill in the town of Llano, and was engaged in manufacturing and selling cotton seed meal and other products of the cotton seed, which was bought and used as feed for fattening cattle. In conjunction with the mill, plaintiff maintained feeding pens which were leased to persons owning cattle and desiring to fatten them from the products of the mill. Plaintiff alleged that the feed for the value of which the suit was instituted was sold to the two Averys and Latting, who were liable therefor as partners, and the judgment was rendered in plaintiff’s favor upon that theory.

The suit was instituted in Tarrant county, and the first question presented is one of venue; appellants complaining that the court erred in overruling their plea of privilege to be sued in the county of Llano, which is the county of their residence. In the plaintiff’s original petition, it was alleged that the two Averys resided in Llano county, and at that time Latting was not sued. Later, by plaintiff’s second amended petition, Latting was also made a party defendant, and his' residence was likewise alleged to be in Llano county. About two months later, plaintiff filed a third amended petition against the same defendants, in which it was alleged that, since the filing of the plea of privilege by the defendants J. O. and Earl L. Avery, the defendant Latting had moved his place of residence to Tarrant county, where he then resided. The same allegation was made in plaintiff’s fourth amended petition, upon which the suit was tried.

It may be noted here that the residence of defendant Latting in Tarrant county was the only basis for overruling appellants’ plea of privilege to be sued in Llano county.

Appellants insist that, as it appears from plaintiff’s own pleadings Latting did not reside in Tarrant county at the time the suit was first instituted, his change of residence to Tarrant county did not affect the right of appellants to have their plea of jurisdiction determined according to the status of the suit at the time of its institution. In support-of their contention, the appellants have cited such cases as Ogburn-Dalchau Lumber Co. v. Taylor, 59 Tex. Civ. App. 442, 126 S. W. 48; Lasater v. Waits, 95 Tex. 555, 68 S. W. 500. But in our opinion those decisions have no material bearing upon the question now under discussion.

We are of the opinion that, as the proof showed without controversy that Lat-ting was a resident of Tarrant county at the time the third amended petition was filed and continued to reside in that county up to the date of trial, there is no merit in the contention of appellants noted above. At ■ the time of such amendments plaintiff could have dismissed its suit and instituted a new suit, which no doubt would have properly fixed the venue of the suit in Tarrant county as against the two Averys as well as against Latting, and, if such a result could have been accomplished by filing a new suit, we see no reason why the same result could not be accomplished by the amended pleadings; the only difference being the possible question of taxing costs against the plaintiff accrued up to the date of the amendment, and it being a well-settled rule that even a new cause of action may be set up by amended pleadings. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734.

Appellants insist further that the evidence did not show that the debt for which judgment was rendered was a joint obligation of themselves and Latting, but was an individual debt of Latting alone, and for that reason their plea of privilege should have been sustained, citing in support of that contention such decisions as T. & P. Ry. Co. v. Mangum, 68 Tex. 346, 4 S. W. 617; Russell & Co. v. Heitmann & Co., 86 S. W. 75; Thomas Goggan & Bro. v. Morrison, 163 S. W. 119; Stephens v. First Nat. Bank, 146 S. W. 622.

The evidence shows that the defendant Latting was the local manager in charge of plaintiff’s mill with authority to sell its products ; that the two Averys owned 82 head of cattle which they desired to feed; and that feed was furnished from plaintiff’s mill for that purpose, of the value for which plaintiff recovered judgment. But according to the testimony of appellants, supported by that of other witnesses, it was agreed between themselves and Latting that Latting wduld himself, and at his own expense, furnish the feed for the cattle, and that from the proceeds of the sale of the cattle after they were fattened appellants should receive the cost price of the cattle, and that the amount of such proceeds over and above such cost price would be divided equally between themselves on the one hand and Latting on the other. However, Latting’s testimony would support a finding that the feed was furnished upon the joint account of himself and the Averys.

Even though it could be said that, under the testimony offered by appellants themselves, they and Latting were to share in the profits of the venture alone, a partnership between them and Latting was clearly established; for, as said in Cothran v. Mannaduke, 60 Tex. 370:

“It is not essential to constitute a partnership that the parties were by agreement to share in the losses, but it is' sufficient if they are to have a community of interest in the profits as such.”

In that case the following is quoted from Storey on Partnership, par. 5S:

“That he who is to take a part of the profits shall by operation of law be made liable to losses as to third persons, because by taking a part of the profits he takes from the creditors a part of that fund which is the security for the payment of their debts.”

To the same effect, see, also, Kelley v. Masterson, 100 Tex. 38, 93 S. W. 427.

But, independent of that conclusion, the testimony of appellants shows further an agreement to .share losses as well as profits, in that, under the contract alleged by them, should the cattle, after being fattened, sell for less than their cost price to appellants, then appellants would sustain a loss, and Latting would also sustain a loss in the cost price of the feed.

The feed so furnished was charged on plaintiff’s books, kept by and under the supervision of Latting, to the account of Earl Avery, one of the defendants, and the proof shows without controversy that none of the members of the plaintiff firm had .any notice at any time of the alleged agreement, if any there was, between the Averys and Latting that Latting was-buying the feed upon his own individual account, and the proof shows further without contradiction that Latting had no authority from any one of the plaintiff firm to make such an agreement. In view of the foregoing conclusions, it follows that appellant’s assignment of error to the action of. the court in refusing to sustain their plea of privilege must be overruled.

The testimony offered by the plaintiff over appellant’s objection, the admission of which is complained of in the third and fourth assignments of error, was offered as secondary evidence to show the amount of feed furnished the cattle in controversy, and having been made necessary by the act of Latting, himself, in confusing the account for such feed with another account, as hereinafter noted, there was no error in its admission.

It appears that plaintiff’s books showing sales accounts were kept by the defendant Latting, assisted by H. F. McLeod, who also did stenographic work and performed other services. It also appears that, at the same time that the sales in controversy were made, other sales were made to feed other cattle known as the Avery and Talley cattle. Lat-ting testified that these two accounts had become confused so that it was impossible to determine with accuracy from the books the particular items of feed which ■ went to the cattle in controversy and which went to the Avery-Talley cattle. W. H. Jackson, an expert bookkeeper, who was employed by plaintiff to audit the books and who did audit the same, was introduced as a witness by plaintiff and testified, as did Latting, that it was impossible to determine from the books the amount of feed properly chargeable to the two accounts, and further that the majority of the sales tickets for feed for the Avery cattle were signed by McLeod, the assistant bookkeeper.

Complaint is made of the admission of that testimony of Jackson, but we fail to perceive how it could be said that it was prejudicial to appellants, since they were making that identical contention in their objection to the admission of the books in evidence, as noted below. And no assignment is presented to other testimony by Jackson, to the effect that, after a careful examination of the books and other data found by him in plaintiff’s office, the account sued on was correct, so far as could be determined from such date.

Complaint is made of the admission in evidence of “the books kept by plaintiff, including the original scales tickets and itemized accounts and statements taken therefrom.” The bill of exceptions upon which this assignment is predicated refers to the evidence to which objection was made in the language above quoted, but does not show just what books, scales tickets, and accounts were in fact introduced, and in no manner identifies them. The objections urged to the admission of the books were, substantially, that the correctness of such books and other data was not proven by McLeod, the 'person who made some of the original tickets from which the account was made up. The objection to the evidence stated further that McLeod’s testimony was available,, but there was no showing in the record that such was true. This lack of definiteness in the bill of exceptions is of itself a sufficient ground for overruling the assignment predicated on the ruling now under discussion.

If, as insisted by appellants, the two accounts were confused to such an extent that they did not show a correct statement of the account, and if Letting, one of the partners, and also local manager for plaintiff, was responsible for that confused condition, plaintiff should not in equity be caused to suffer a loss through inability to mate the proof according to the general rules applicable in other cases. Under such circumstances, the appellants are in no position to invoke the best evidence rule otherwise applicable, and are in no position to invoke the best evidence rule otherwise applicable, and are in no position to say that plaintiff should not be allowed to prove up the case by the best means available, even though the same should be secondary evidence; their partner Ratting being responsible for plaintiff’s inability to produce primary evidence.

Furthermore, assuming that the bill of exception had reference to the account for feed sold upon which plaintiff's suit was predicated, then appellants’ right to complain of its admission was waived, because, as shown by the record, they themselves introduced in evidence that account wdiich was attached to plaintiff’s pleadings as an exhibit and made a part thereof.

For the reasons indicated, all assignments of error are overruled, and the judgment complained of is affirmed. The judgment as to other parties of which no complaint is made is undisturbed.

On Motion for Rehearing.

In our original opinion in the discussion of the assignment to the admission in evidence over appellants’ objection of “the books kept by plaintiff, including the original scales tickets and itemized accounts and statements taken therefrom,” we said that the bill of exceptions to that action of the court in no manner identifies the evidence so admitted. Upon further examination of the bill, we find that the account so admitted was identified as the account sued on. To that extent the statement in the original opinion was incorrect, but in all other respects the statement was correct, in that the bill does not identify what is termed the “original scales tickets,” not even by a reference to the statement of facts.

Complaint is made further that while the record shows that appellants introduced in evidence defendant’s second amended original petition, to which the plaintiff’s account had formerly been attached as an exhibit, it further shows that the exhibit itself was introduced in evidence by the plaintiff. ■ A further examination of the record sustains that contention, and our original opinion is, accordingly, corrected in that respect. But aside from the corrections made we are of the opinion that the assignment of error to the admission of the documents mentioned was properly overruled for other sufficient reasons given in the original opinion.

We are of the opinion further that our findings of fact already made sufficiently cover the issues upon which appellants request further findings.

With the foregoing corrections, the motion for rehearing is overruled.
      gssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <fcjFor other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes .


author: BUCK, J.

text:
    CATTLEMEN’S TRUST CO. v. CANTRELL.
    (No. 8662.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 26, 1917.)
    1. VENDOR AND PURCHASER <&wkey;279 — FORECLOSURE oe Vendor’s Lien — Necessary Parties — Defendants.
    Where the payee of notes secured by a vendor’s lien indorsed them without recourse to a corporation as part payment for shares of stock, and left the purchased shares with the corporation to secure the payment of the notes, he was not a necessary party to a suit subsequently filed by the corporation against the maker of the notes in which the property was sold for less than the amount of the notes.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 778-782.]
    2. Corporations <&wkey;123(24) — Pledge of Stock — Enforcement—Evidence.
    In a suit to enjoin the disposition of shares of stock held by the defendant corporation as collateral to secure the payment of vendor’s lien notes to discharge balance due after foreclosure of vendor’s hen, evidence held not to support a finding that the land was sold at foreclosure sale at an inadequate price.
    3. Bills and Notes <&wkey;301 — Liability of Indorsers — Discharge.
    The plaintiff was not discharged as guarantor on tho two notes by reason of the fact that he was not made a party to the foreclosure suit, and hence the trial court erred in awarding in-junctive relief restraining the defendant from selling or disposing of the stock which was liable for the balance due on the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721.]
    Appeal from Montague County Court; Homer B. Latham, Judge.
    Suit for injunction by B. J. Cantrell against the Cattlemen’s Trust Company and others. Judgment for plaintiff, and named defendant appeals.
    Reversed and rendered, denying injunction sought.
    A. H. Kirby, of Abilene, for appellant. W. S. Jameson, of Montague, Paul Donald, of Bowie, and J. A. Templeton, of Ft. Worth, for appellee.
   BUCK, J.

Appellee, as plaintiff, filed suit against the Cattlemen’s Trust Company, the First National Bank of Bowie, Tex., A. E. Thomas, and T. C. Phillips, as defendants, to enjoin them, and each of them, from selling or in any manner disposing of or incumbering 30 shares of stock in the Cattlemen’s Trust Company of Ft. Worth, Tex., held by the First National Bank of Bowie as collateral to secure the payment of the first two notes, designated Nos. 2 and 3, of a series of five vendor’s lien notes executed by C. W. Ratliff to appellee in part payment of certain described land conveyed by appel-lee to Ratliff by deed of August 11, 1911. Tbe notes were in the usual form, providing for 10 per cent, attorney’s fees in case of suit, etc. Plaintiff below further ashed that said 30 shares of stock, on final hearing, be restored to him free from all claims of defendants, or either of them. He further alleged that he had sold and indorsed said notes without recourse to the defendant the Cattlemen’s Trust Company, and in part payment therefor he was to receive the 30 shares of stock aforesaid, said stock being of the par value of $10 per share, and represented at the time of making said contract to be worth the sum of $20 per share; that he had received in full payment of said notes the sum of $500 in money and the said 30 shares .of stock. He further alleged that defendant the Cattlemen’s Trust Company’s duly authorized agent had induced plaintiff to make a written contract with it, a copy of which was attached to plaintiff’s petition and marked Exhibit A, and that under said agreement and contract plaintiff was induced to place the said 30 shares of stock in the First National Bank of Bowie to be used and held by the bank in escrow as collateral to secure the prompt payment of the first two notes of the series mentioned above. He alleged that at the time of signing the said instrument he did not understand the same,. and that it was given without any additional consideration; that on December 21,1911,' the defendant the Cattlemen’s Trust Company exercised their right of election and declared all of said notes due and filed suit against the said C. W. Ratliff and wife on all of said notes, asking a foreclosure of their said lien against the grantees, and for a judgment for balance due on said notes, including the principal, interest, and attorney’s fees, and recovered judgment against Ratliff and wife for the sum of $1,245, with interest at 10 per cent, and costs of suit, and procured said land to be sold by the sheriff of Montague county on March 2, 1915, for the sum of $1,000.

Plaintiff alleged that said suit was instituted and prosecuted to judgment and said sale made thereunder without the knowledge or consent of plaintiff, and plaintiff was not made a party thereto in order to have the matter finally determined, and that he was entitled to be heard in said cause, as he was a necessary and proper party thereto; that said land was sold for a grossly inadequate price, and if the same had been fairly sold and the plaintiff had been made a party thereto, it would have, as plaintiff believed, sold for enough to pay said judgment in full. He further alleged that the First National Bank of Bowie was in possession of said 30 shares of stock and was holding same under the control of the defendants Phillips and Thomas, and that the defendant the Cattlemen’s Trust Company was claiming a balance due on said judgment in the sum of $303.17, with interest from March 2, 1915.

The defendants the First National Bank of Bowie and Phillips and Thomas filed a disclaimer, alleging that they were merely stakeholders and tendered the certificates of stock into court. The defendant the Cattlemen’s Trust Company answered, denying generally and specially the allegations in plaintiff’s petition contained, and alleged that, plaintiff had requested defendant to foreclose the lien securing the notes described in his petition, and that plaintiff had full notice of said suit, judgment, and sale, and was present at said sale, and could have protected himself at said sale, by reason of which plaintiff was estopped to question said sale, or to assert any claim against this defendant..

Judgment was rendered for plaintiff for possession of the 30 shares of stock aforesaid, and making permanent the temporary injunction theretofore granted restraining the defendants from selling or disposing of said stock, and further ordering the defendants bank, Thomas, and Phillips to deliver to plaintiff said stock and awarding the costs of suit against the defendant the Cattlemen’s Trust Company. The Cattlemen’s Trust Company has appealed.

The court filed. his findings of fact and conclusions of law as follows:

“Findings of Fact.
“(1) I find that on or about the 11th day of August, 1911, plaintiff sold and conveyed to C. W. Ratliff 80 acres of land situated in Montague county, and retained five vendor’s lien notes against said land for the sum of $200 each, payable December 1, 1913, 1914, 1915, 19Í6, 1917, respectively.
“(2) I find that on or about the 16th day of February, 1914, plaintiff traded said notes to defendant Cattlemen’s Trust Company for 30 shares of stock in said Cattlemen’s Trust Company, he receiving a difference of $500 in cash.
“(3) I find that plaintiff indorsed said'notes without recourse, but as a part of said trade plaintiff guaranteed the payment oí notes 2 and 3.
“(4) I find that the Cattlemen’s Trust Company, foreclosed the lien on said land and that said land was sold.
“(5) I find that B. J. Cantrell was not made a party to said foreclosure suit.
“(6) I find that said land was sold at an inadequate price, and that if it had been sold at the market price it would have brought enough to satisfy all of said notes.
“Conclusions of Law.
“I conclude as a matter of law that said Cantrell should have been made a party to the foreclosure suit, and that he is discharged as guarantor on the said two notes by reason of the fact that he was not made a party to said suit, and that he should recover said stock.”

While appellant has presented in its brief some ten ¿ssignments of error, the controlling question is as to whether or not the ap-pellee was a necessary party to the suit filed by appellant against C. W. Ratliff and wife, by which he sought a foreclosure of the vendor’s lien against the land heretofore mentioned.

The evidence discloses that the appellant and appellee, in consummation of their agreement to make the trade pleaded by appellant arid admitted by appellee, made and executed a written contract, reciting the sale of the five vendor's lien notes each in the sum of $200, due December 1, 1913, 1914, 1915, 1916, and 1017, and reciting further that in the sale of said notes by Cantrell to the said Cattlemen’s Trust Company, Cantrell had, taken in part payment therefor 30 shares of stock of said company, and that the appraised value of the said 80 acres against which the vendor’s lien was reserved in said- notes and the amount of said notes showed the said notes to be more than 50 per cent, of said appraised value, and that therefore it was agreed between the parties that the 30 shares of stock should be placed in escrow in the First National Bank of Bowie as collateral security for the prompt payment of said first two notes and interest at the maturity of sanie. Said agreement further provided as follows:

“It is agreed and understood that note No. 2 of said series is to be extended to mature December 1, 1914, the same as the maturity of note No. 3, and that, when said notes Nos. 2 and 3 have been paid off and discharged by said Ratliff, then the said First National Bank of B'owio shall deliver to said Cantrell the said 30 shares of stock.
“It is further understood and agreed that during the time the said stock is hold in escrow the said Cantrell is to be entitled to the dividends thereon the samó as if the said stock had been delivered direct to him.
“It is further agreed and understood that in the event that said notes 2 and 3 should further be extended, by mutual agreement, or otherwise, between said Cantrell, Ratliff, and said trust company, that then said stock shall continue to be held in escrow until said ñutes are paid, as herein provided.
“It is further provided that in the event that said Ratliff should default in the payment of any of said notes and said trust company be compelled to foreclose and sell out the land, and said land should fail to bring the amount of the judgment, interest, and costs, that then the said twist company shall have the right to require either said Cantrell to pay the difference, or to proceed to sell said stock, upon ten days’ notice, and apply the proceeds received therefrom to the payment of said difference, with the return to said Cantrell of the remainder of such proceeds, after paying such difference.
“In testimony whereof witness our hands this the 25th day of February, A. D. 1914. B. J. Cantrell. The Cattlemen’s Trust Company of Ft. Worth, by A. B. Gamp, President.”

It. was further shown without controversy that the notes were transferred by Cantrell to the trust company without recourse, and that Cantrell received $500 in cash, and was to receive the 30 shares of stock in accordance with the contract which he (Cantrell) executed with the company. Cantrell further testified:

“I first subscribed for the stock with the agent of defendant trust company and offered to indorse the notes without recourse and take $500 cash and the 30 shares of stock for the notes. The agent of the trust company told me the matter would have to be submitted to the company. Afterwards the agent of the company came back to me and told me the company would not take the notes unless I would leave the stock up to secure the payment of the first two notes. At the same time the agent 'presented to me the contract (Exhibit A) which the company required before it would take the notes, and I signed same and the agent left with me a copy of the contract. This contract was signed by me before I received the $500 in cash. * * * I did write a letter to defendant trust company requesting it to foreclose the lien against Ratliff.”

This letter, written on the letter head of Cook & Alcorn, local attorneys for the appellant company, and addressed to the Cattlemen’s Trust Company, is as follows:

“Tour notice of the annual stockholders’ meeting of the company for the election of directors for the ensuing year has been received. It is my intention to be present at this meeting, and will do so, unless something arises to prevent me, and in that event I will appoint a proxy.
“Referring to the notes I sold the company, payable to mo and executed by C. W. Ratliff, it does not appear that there is much probability that Mr. Ratliff will ever be able to pay this place out. lie has lot at least 20 acres of the land in cultivation lay out this year, and has in cotton about 18 or 20 acres, and cotton on this is not very good. Has had picked out four bales and is holding them at home, probably mortgaged, and will get about one bale more. ,Ile is letting the fence go to the bad. I understand that this par'ty is saying that ho can stay on this place in spite of me or the company. It would appear from what I have heard that he intends to stay on this place as long as he can and get the rents, or rather what he can make, without paying, anything and get off when he has to.
“Your very truly, B. X Cantrell.”

Appellee further testified:

“I-saw and talked to Mr. W. W. Cook, attorney at Montague, before he brought the suit of foreclosure for defendant trust conxpany, and told him to go ahead with the foreclosure. I talked with Mr. Cook about the matter after the suit was filed and knew the suit had been filed. I was present in person at the sale óf the land by the sheriff, hut did not bid on the land and took no action of any kind to make the land bring the amount of the judgment. I knew that the land was bought in by Paul Donald for $1,000. So far as X know or remember, there was but one bid for the land and that was by Paul Donald.”

It was shown that in the application made to the trust company for the sale of the notes described plaintiff stated as follows:

“And I hereby swear that the consideration paid for the aforesaid property by the said C. W. Ratliff was $1,200.00, of which $-was paid in cash and $1,200.00 in promissory notes, of which one has been fully paid and canceled.”

Paul Donald testified:

“I bought the land at said sale for $1,000 cash. * * * There was no other bid for the land than mine. I think the land was worth $1,200 to $1,400. I think my bid of $1,000 cash was a fair price for the land for cash, but it was worth what I sold it for part cash and part on time.”

We do not think appellee was a proper or necessary party to the suit filed by the appellant company against C. W. Ratliff and wife. By his indorsement of the notes without recourse he specially declined to assume any responsibility as a party thereto, and he was not bound thereon, except by the very act of -transferring them he engaged that they were what they purported to he, to wit, the valid obligation of the parties whose names were upon the notes. His liability as such indorser witliont recourse would' be restricted to the following instances: (1) If any of the prior signatures were not genuine; (2) if the notes were invalid between the original parties because of the want or ■illegality of the consideration; (3) if any prior party was incompetent; or (4) the indorser was without title. 1 Daniel on Negotiable Instruments, § 670, p. 742. In the absence of any of these contingencies, and none are shown or claimed in the instant case, the appellee, had he been made a party to the foreclosure suit, could have successfully pleaded his transfer of the notes without recourse and his right to dismissal with his costs. No judgment could have been obtained against him. And it is an elementary rule that no person should be made a party who has no interest in the suit and against whom, if brought to a hearing, no decree can be had. Ryburn v. Getzdaner, 1 Posey, 349, citing Story’s Eq. PI. § 231. And the question of whether or not plaintiff in the foreclosure suit would have the right to subject the 30 shares of stock to the payment of any balance due said plaintiff would not arise and could not be determined until the sale under the foreclosure had been effected. The question of Cantrell’s liability, or that of his shares of stock, on the contract between him and the appellant company, would depend on whether or not the land under the foreclosure suit sold for enough to satisfy the judgment, and until that question was determined Cantrell or his stock was in no sense liable. Furthermore, it appears from the record, and without controversy, that the suit for foreclosure was brought at the instance of the appellee, and with his full knowledge, and that he was present at the sale thereunder, and that he failed to bid for the land.

We are further of the opinion that the finding of the court that the land sold for an inadequate price is not supported by the evidence. The evidence shows that the land was sold by appellee to Ratliff for $1,200, all on time. Paul Donald, the purchaser under the foreclosure sale, testified:

“I think my bid of $1,000 cash was a fair price for the land for cash, but it was worth what I sold it for part cash and part on time.”

Plaintiff testified that the land was worth from $1,200 to $1,400 at the time it was sold by the sheriff. There is no contention that the officer selling the land was authorized to accept other than cash therefor, and as the only evidence as to the value of the land for cash is that the amount bid was a fair price for the land, we are of the opinion that the sale shows to have been made for a fair and adequate price. Irrespective of the question as to whether appellee was a necessary party to the foreclosure suit, it follows that appellant’s first assignment of error must be sustained and the judgment of the trial court reversed.

Inasmuch as we hold that the trial court erred in concluding as a matter of law that the appellee should have been made a party to the foreclosure suit, and inasmuch as such conclusion of law by the trial court was the basis of the judgment rendered, it follows that the appellee was not discharged as guarantor on the two notes by reason of the fact that he was not made a party to the foreclosure suit, and that the trial court erred in awarding the injunctive relief -prajred for by appellee.

The judgment of the trial court is reversed, and judgment here rendered for appellant denying the injunction sought.
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