author: HARPER, C. J.

text:
    NATIONAL SURETY CO. v. SILBERBERG BROS.
    (No. 431.)
    (Court of Civil Appeals of Texas. El Paso.
    April 15, 1915.
    Rehearing Denied May 13, 1915.)
    1. INSURANCE <&wkey;425 — Burglary Insurance —Policy Requiring Visible Marks oe Violence — Construction.
    Where a burglary insurance policy agreed to indemnify for merchandise abstracted by any person, “who has made forcible or violent entrance upon the premises or exit therefrom, of which force and violence there shall be visible evidence,” the policy further providing “that the company shall not be liable unless there were visible marks upon the premises of actual force and violence used,” the provisions determined what should be one of the evidentiary facts to prove burglary, and not what should be sole proof, since the expressions of an insurance policy, if ambiguous, are to be taken most strictly against the insurer, while preference will be given to any reasonable construction to sustain the claim of the insured to the avoidance of a forfeiture.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1129, 1135, 1143; Dec. Dig. &wkey; 425.]
    2. Insurance <&wkey;668 — Burglary Insurance —Actual Ineliction oe Violence — Question oe Fact.
    In an action on a burglary insurance policy, question whether visible marks of entry on the premises, made a prerequisite to recovery by the policy, were inflicted by the insured as a blind, held for the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. &wkey; 60S.]
    3. Insurance (&wkey;425 — Burglary Insurance — “Visible Evidence oe Violence” — “Visible Marks.”
    In an action on a burglary insurance policy, which rendered a prerequisite to recovery the infliction of visible marks of violence by the burglars, where the door to the premises was locked previously to the entry, there being a sufficient space to enable a person to see whether the bolt was thrown, and where, in the morning, the proprietor saw that the bolt had been slipped back, there was visible evidence and visible marks of forcible entry, to satisfy the terms of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1129, 1135, 1143; Dec. Dig. &wkey; 425.
    For other definitions, see Words and Phrases, First and Second Series, Visible Mark.]
    4. Insurance <&wkey;665 — Burglary Insurance —Ascertainment oe Loss from Books oe Insured — Sueeiciency oe Evidence.
    In an action on a burglary insurance policy, evidence held sufficient to support finding that the insured had accurately determined his loss from his books with reasonable certainty, as required by the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. <&wkey;> 605.]
    5. Appeal and Error <&wkey;>1001 — Review — Findings oe Jury.
    A finding of a jury that has support in the evidence cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <§==>1001.]
    Appeal from County Court, El Paso County; A. S. J. Eylar, Judge.
    Action by Silberberg Bros, against the National Surety Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Jones, Jones & I-Iardie, of El Paso, for appellant. Goldstein & Miller, of El Paso, for appellees.
   HARPER, C. J.

This is a suit on an indemnity contract against burglary for the value of merchandise feloniously abstracted from appellees’ store. Tried by court with jury, and verdict and judgment for $197.05, from which this appeal is perfected.

Appellant by his assignments proposes, as we view them, only two questions for our determination: (1) Does the evidence as to the commission of a burglary bring appel-lees’ case within the provision of the policy that there should be visible marks upon the premises of the actual force and violence used in making the entry? (2) Does the evidence adduced satisfy the provision of the policy that appellees had so kept their books and accounts as that the actual loss could be accurately determined?

Findings of Facts as to First Proposition.

The National Surety Company issued to Silberberg Bros, an insurance contract, agreeing to indemnify them for direct loss by burglary of any merchandise feloniously abstracted from their store by any person or persons “who have made forcible and violent entrance upon the premises or exit therefrom, of which force and violence there shall be visible evidence.” Again, the contract contains the “special agreement” that “the company should not be liable unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom.”

On the evening of the night of the burglary, the doors of the store of appellees were locked with a bolt lock turned by a key. The morning following the burglary, Ramon Gonzales, whose duty it was to lock the store in the evening at the close of business and open it next morning, entered the store by the front entrance and locked it. Shortly after he entered the store, the porter came in through the side door. Gonzales not having unlocked that door, and the porter carrying no key, his attention was thus attracted to the door, and an inspection showed that the bolt or lock had been thrown. He then looked around the store and discovered the gold chains missing from the show window. Gonzales’ testimony on this issue was as follows:

“There was no one in the store when I went in. The next person who came into the store was the porter, who came through the side door. He did not keep a key to that door. As to what called my attention to his coming through the door, I did not unlock that door. I heard him when he opened the door, and 1 came out to see who was coming. As to what I then found wrong, I found some chains short in one of the show windows. I asked the por-tel- how he came in. After he came in I examined the door. As to what was 'the condition of the lock then, it was just opened up. The bolt was thrown. I had thrown the bolt to when I left there that night. The chains were missing from the second window from Texas street, the window facing Mesa avenue.”

To open the door, Gonzales testified you had to take a key and turn it; that it required no great effort to do that.

The porter testified that, upon his coming into the store, he was approached by Mr. Gonzales and asked how he entered, and Gonzales then went over and examined the door.

A. Silberberg testified that, upon being notified of the burglary, he came to the store. Upon entering the store, he found half the chains missing from the window; that, in closing the evening before, everything was in perfect order. He testified that the door, which was found unlocked, locked with a bolt which was thrown with a key. When the lock is thrown, you could see from the inside of the door whether it was locked or not, because there is a space of about one-sixteenth of an inch between the panel of the door and the door proper, through which the bolt is readily visible, and from which you can readily determine whether the door is locked or unlocked. He further testified as to the visible evidence of the force and violence used in making entrance to the store and evidence of visible marks as follows:

“As to what visible marks I found in our store of a burglary, X found that the bolt of the side door had been thrown open; likewise that half of the display of those gold chains were not in their place in the window, which, was visible to me. There were two bolts in that door; both of them are operated with a lever; one is a day catch, and the other one is thrown with a key. You throw a day catch back and forth by pressing the lever down; no key is required for that. That is not the one that was thrown back; it was the other one; you have to operate the other one with a key. I determined that the bolt had been thrown, because it is visible, because there was an air space between the frame of the door of about one-sixteenth of an inch. By looking in that I could see whether or not the bolt was thrown. I did that on that particular occasion; that was the first thing I did. I was very curious that morning.”

Robert Carstair also testified that tbe visible evidence of tbe burglary was tbe unlocking of tbe door, tbe missing chains, and tbe scattered tags.

It will be noted that there are two separate and distinct stipulations in tbe contract sued on. Tbe first is: There must be visible evidence of tbe force and violence used in effecting tbe entrance into tbe premises. Tbe second is; Tbe company shall not be liable unless there are visible marks upon the premises of tbe actual force and violence used in making tbe entry into tbe premises.

“The language used in the policy of insurance is that chosen by the insurance company. The insured exercised no choice in that connection, but in order to insure his property he was compelled to accept a policy whose * * * conditions [therein contained] were dictated by the insurer.” In such cases “it is the universal rule that, if the language of any condition in the policy is of doubtful meaning or import, that construction which is most favorable to the insured is to be placed upon it.” London & L. Fire Ins. Co. v. Davis, 37 Tex. Civ. App. 348, 84 S. W. 260.
‘‘An additional reason for construing a condition of doubtful import in favor of tbe insured is that the law does not favor forfeiture, and will always give the preference to that reasonable construction which will sustain the claim of the insured. Therefore, before a forfeiture will be declared, the facts must bring the case clearly within the terms of the condition expressed in the policy. Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S. W. 1060.”

Again, tbe words used in setting forth tbe conditions must be used in tbeir ordinary sense, and according to tbe evident intention of the parties to tbe contract. No forced construction is permissible, but tbe sense in which the words were used must be arrived at in tbe light of tbe surroundings of tbe parties, to arrive at the intention they bad when used. Tbe construction must have for its object indemnity for tbe insured, and any fair interpretation of tbe policy that will give indemnity must be adopted, and every ambiguity must be resolved in favor of the insured. Construing tbe wording of tbe provisions of tbe contract sued on in tbe light of the above rules applicable to similar contracts, it is evident that tbe parties intended to agree upon what should be one of tbe evidentiary facts which should constitute tbe proof of burglary and tbe theft of tbe goods, and not that it should be tbe sole proof.

If tbe words “visible marks” in tbe second provision could reasonably have been construed by tbe insured (we think they could) to mean tbe same as “visible evidence” in tbe first provision, tbe contract is ambiguous, because tbe parties to it may not have understood its meaning alike. Tbe thrown lock bolt was unquestionably evidence of force and violence. No one would contend that it did not take force to throw a bolt back into a lock, even if a key be used in doing it. “Force” and “violence” are synonymous terms. If there had in fact been an abrasion, a scratch, or a splintered door, or any mark upon tbe premises, tbe same proof would have-to be made as to tbe other elements of burglary as if only tbe thrown bolt was tbe visible evidence of the violence, to wit, tbe plaintiff must be able to prove to tbe satisfaction of tbe jury that there was an actual burglary, an entrance by force with the intention to commit theft, and in this case an. actual theft; must have been able to prove by competent witnesses that he (tbe plaintiff) or any one at bis connivance, did not make the marks as a blind, likewise with tbe thrown bolt. Tbe contract was ambiguous, and tbe proof is such as to authorize tbe court to submit tbe question to tbe jury as was done. Royalty Casualty Co. v. Nelson, 153 S. W. 674.

But we are of the opinion that, under the most strict construction of the contract, the evidence adduced, under the rules above quoted, brings the appellees’ case within the clear meaning of the provisions of the contract sued on.

When we consider the two terms as being synonymous in their ordinary sense or use, “visible evidence” and “visible marks,” and that the unquestioned evidence is that the door to the premises was locked the night before, that there was a sufficient space between the shutter and the door proper to enable a person to see that the door was locked by reason of the fact that the bolt was thrown into the casing, or to see that it was not locked by reason of the fact that the bolt no longer appeared in the space between the door and the casing, we have the visible evidence of the force and its synonymous term, “violence,” which was used in effecting the entry.

The instant case is not unlike that of Royal Casualty Co. v. Nelson, 153 S. W. 674, which was a suit upon an accident policy containing the provision that, to hold the company liable, there must be “visible marks upon the body.” In that case it was held that it need not be a bruise, laceration, or broken limb, but may be any visible evidence of an internal injury. It need not be upon the surface of the body, but might be any physical effect observable from an outward indication, which revealed an inward condition of the internal organs of the body. There can be no difference between the words “visible marks on the body,” as construed in accident policies, and the words “visible marks upon the premises,” as they should t>e applied to a .policy of burglary insurance. So, in the light of the above opinion, and it is clearly in line with the holdings in Texas, we reason:

If, to prove “a visible mark upon the body,” the proof need only be any visible evidence of an internal injury, not upon the surface, but one from which the effect is observable, it seems that the unlocking of a door, the raising of a window, would be sufficient to show the actual force used in effecting the burglarious entry. To put the construction on the words “visible marks” that some abrasion, stain, or something indicating entry at that place, must be made on the door, makes a very literal application of the words “visible marks,” would prevent recovery on the policy, though every door was unlocked and opened, and every window unfastened and raised, if some abrasion, or something in addition, was not made on the premises in opening the door or window. We are of the opinion that the unlocked door is a sufficient evidence of “visible marks” upon the premises, of the actual force used in making the entry, to bring ap-pellees’ case within the literal meaning of the provisions of the policy above quoted, especially in view of an affirmative finding to that effect by the jury.

This brings us to the question:

“Were the plaintiff’s books and accounts so kept that the loss could be accurately determined therefrom?”

The witness testified as follows:

“As to what system we have of tagging chains and jewelry that we put in the windows, loose tags are set with their visible figures, so they can be easily read by any passer-by or anybody that stops in front of the windows. On the night of this particular occasion, there were tags in that window, rather large tags, with their visible figures, so that anybody who might be attracted to the window, or take any interest in it, could readily see the price of each article. We had the tags for each article in the window. When. I came down that morning, some of the tags were in the window, and some of them had been gathered; I don’t know who gathered them from the window. I made a list of those figures. Erom those figures I am able to determine the cost price of the article that they represent. From these figures I figured out the cost price of these chains that were missing, and I made a list of them. I gave a list to the insurance company. I have a copy of that original list. I made out this list on the morning when the burglary was discovered. This is a true copy of the list that I furnished to the defendant, insurance company. That is a correct statement as appears from those tags. This list is correct. The price that I state there is the original invoice price of the goods, without any addition for freight or express or anything more — just the invoice price. That is not the selling price. That is a true and correct statement of the cost price of the goods to Silberberg. This is the fair market wholesale value of these goods, and nothing more. I do not know what became of those little tags that were in the window. I keep the papers and records of Silberberg Bros. I have not these particular tags that were there. This statement that I gave you there is a correct and accurate statement of what was shown on those tags. This statement or list shows the particular item designated by those tags; it was made within a couple of hours; by 10 o’clock that morning the whole list had been made; each item had been identified and connected with the original invoice, and the cost thereof noted, one by one. I have got there the particular numbers, No. 148, etc. As to where I got those numbers, they must have been gotten from the tag there, by connecting it with the invoice of the merchandise, of the merchant from whom the goods had been bought, and even the date of the invoice was ascertained and noted on the list. Erom these tags in the window, I am able, with the invoices, to determine each particular item or chain that was missing; that by turning to the invoice, I got the cost price, and I did that; and this list is the result of my work. From the tags I am able to get the invoice of these particular goods, and from the invoice I am able to get the manufacturer’s name and the wholesale price charged to Silberberg Bros., and I did that in this case. This is a correct statement. It is a statement of the missing items from the window, with the invoice price to Silberberg Bros.”

The witness R. Silberberg testified on this issue as follows:

“I then proceeded to identify the cost of the merchandise by the tags which remained there, which I did very easily. The selling price of certain merchandise, such as 10 karat chains, are up to a certain figure, that I identified by a certain mark, and by my own knowledge also; and the 14 karat chains likewise, by the selling price. It is no secret among the jewelers that 14-karat goods, such as chains, carry a certain percentage. ' To be more specific, 50 per cent, above the cost of the merchandise, which would be 33% per cent, of the gross as a selling price. In order to verify the invoice cost, I would reduce that to this basis, then I would hunt through my chain invoices and find the identical number on the invoice, and naturally the cost of the chain, and that would conform with the sale price as found in the window. That is how I arrived at it. Prom this selling price in the window, I deducted the standard profit I made on them, within a fraction; for instance, if the figure was $19.37, it was marked $19.50. Then I went to the original invoice of the chain manufacturer we bought from, such as O. Sidney Smith, or other manufacturer; then with these tags I went 'to the invoice and found the exact price. After having determined the cost price, I could then, by examining all my invoices, determine the price of the chains missing, and I did that. The selling price figures on these tags were made by Mr. Gonzales. As to who instructed him to put them on these tags, my general instructions to him are always to get the cost of the merchandise that is put in the windows. Mr. Gonzales is our window trimmer, and the boy that opens and closes the store; he seldom waits on the trade. He made the figures on these particular tags. He got the information to put these figures on those particular tags from the retail selling price of the merchandise that he placed in the window; that is, the tag attached to the chain. The selling price is never placed on the merchandise except by the principals, my brother and myself. It doesn’t follow that I should have attached the tags to the chain, but it is attached by some employs sitting next to me when I make it. It might not have been done by myself, because my brother is also there, but either of us sees it done.’\

The witness A. Silberberg testified that he had his invoice with him, and that from the invoice he could pick out, and did pick out, each chain that was taken, and that all these invoices had been entered into the proper books and were shown by their books.

The Court of Civil Appeals, in Ætna Insurance Co. v. Fitze, 34 Tex. Civ. App. 214, 78 S. W. 370, in construing a similar provision in insurance contract, held that it was sufficient if the loss could be determined from the books as kept with reasonable certainty. In this case the jury have found that from the evidence the books and accounts were so kept that the actual loss was accurately determined therefrom. And the finding is supported by the evidence, therefore cannot be disturbed.

Pinding no error, the cause is affirmed.
      <@zsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    LANE et al. v. MILLER & VIDOR LUMBER CO.
    (No. 5469.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 21, 1915.
    Rehearing Denied May 12, 1915.)
    1.Appeal and Error <&wkey;544v— Questions Reviewable — Fundamental Error.
    Where there was no motion for new trial, and the record contains no statement of facts, the court on appeal can consider only fundamental matters.
    TEd. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <&wkey;544.]
    2. Appeal and Error <&wkey;544_ Questions . Reviewable — “Fundamental Error.”
    Errur in sustaining demurrers to petition going to the foundation of plaintiff’s cause of action and right to sue is fundamental, and reviewable though there was no motion for new trial, and the record contains no statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey;544.
    For other definitions, see Words and Phrases, First and Second Series, Fundamental Error.]
    3. Tenancy in Common <&wkey;55 —Action in Trespass to Try Title — Right oe Tenant.
    A tenant in common may sue in trespass to try title for the whole tract, against a trespasser, without joining cotenants.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. &wkey;> 55.]
    4. Executors and Administrators <&wkey;517— Foreign Executors — Statutory Provisions.
    An attempt by a foreign executor to act as such in .the state, without first complying with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3276, providing for the filing of a will probated in another state is without authority of law.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1, 2297, 2298; Dec. Dig. &wkey;>517.]
    5. Wills <&wkey;434 — Foreign Wills — Probate —Eeeect.
    The purpose of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7S75, 7877, providing that, when a will has been probated in a sister state, a copj' thereof and its probate, when certified, may be filed and recorded, and take effect as a deed, is to permit a person owning land by virtue of a will duly probated in a sister state to preserve a muniment of his title without the formality of probating the will, required by article 3276.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 937-945; Dec. Dig. &wkey;434.].
    6. Wills <&wkey;681 — Trusts—Title oe Trustee.
    AVhere a will expressly or by necessary implication creates trusts and imposes on the executor duties performed by a trustee, he takes such title as is requisite, though the will does not specifically designate him as trustee, nor expressly bequeath or devise the property to him in trust.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1599-1601, 1612, 1613; Dec. Dig. &wkey; 681.]
    7. Wills c&wkey;681 — Foreign Wills — Probate —Record.
    A foreign will, whereby testator appointed a child executor to hold real estate in Texas in trust, with authority to sell and divide the proceeds in a manner directed, was probated in the state of testator’s domicile. There was no administration in Texas, and none could be had because of lapse of time. Meld, that the title to the real estate in Texas remained in the executor as trustee, and as trustee he could sue in trespass to try title and for damages.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1599-1601, 1612, 1613; Dec. Dig. &wkey; 681.] '
    8. Prjincipal and Agent &wkey;>113 — Power oe Attorney — Authority oe Agent.
    A power of attorney to sell real estate does not authorize the grantee therein to maintain a suit on behalf of the grantors in trespass to try title and for damages.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 334-337, 351; Dec. Dig. <@=>113.]
    Appeal from District Court, Montgomery County; J. Lewellyn, Judge.
    Action by Mary C. Lane and 'others against the Miller & Vidor Lumber Company. From a judgment of dismissal, plaintiffs appeal.
    Reversed and remanded.
    C. W. Nugent, of Conroe, for appellants. W. N. Foster, of Conroe, and Townes, Foster & Harclwicke, of Beaumont, for appellee.
   CARL, J.

Appellant Mary C. Lane, in her original petition filed in this cause, sued Miller & Vidor Lumber Company in trespass to try title and for damages to the west one-half of the H. S. Williamson survey of 1,920 acres of land in Montgomery county, Tex.; it being alleged that the defendant was cutting and carrying away timber. The trespass was alleged to have begun on, and continued since, January 1, 1911. In this original petition she sued as the legally qualified and acting executrix of the estate of Joseph A. Bent, deceased, also in her individual capacity as one of the heirs of the said Joseph A. Bent, “and as one of the beneficiaries under his last will and testament, and for and on behalf of all the heirs of the said Joseph A. Bent, as trustee for said heirs, as provided in said last will and testament of the said Jos. A. Bent.” To this cause of action the appellee interposed a plea in abatement on the ground that Mary C. Lane was “without capacity to bring this suit as executrix or trustee of the estate of Joseph A. Bent, for the reason, among others, that the will of the said Joseph A. Bent has not been probated in such a way to give her said authority ; same not having been probated in the state of Texas as required by law.”

The original petition was filed February 9, 1914, and to this document was attached a copy of the transcript of the proceedings of the Douglas county, Neb., court, showing the probate ’of Joseph A. Bent’s will and the qualification of Mary 0. Lane as executrix thereof and a copy of the will, all of which had been duly certified as required by law in the matter of admitting to record the proceedings in the courts of foreign states, when such will and transcript are to be used as muniments of title, or as a basis for probate proceedings in this state.

In this amended petition appellant sued as heir of Jos. A. Bent under the will, wherein it is alleged that Bent bequeathed to her in fee simple a share of the property, and as trustee for his estate, “with the right to own, hold, protect, and sell said land to the use and benefit of plaintiff individually and for the use and benefit of the estate of said Bent, all of which title, rights, and powers are directly conferred upon this plaintiff by the terms of a certain judgment, contract, and power of attorney of date January 15, 1915,” a copy of which power of attorney was attached to and made a part of the petition, as well as a copy of the judgment in a friendly suit in the Fourth judicial district of Douglas county, Neb., wherein the court construed the will to mean that it was Jos. A. Bent’s purpose to vest in Mary C. Lane, as trustee, the full title, power, and authority to sell and convey the Texas lands at such time, and upon such terms as she might deem for the best interest of the beneficiaries mentioned in the will. This construction of the will was thought necessary by reason 'of the fact that a minimum sale price was mentioned in reference to Missouri, Kansas, and California lands, and it was not clear as to whether that price was to apply to Texas lands. The court held that it did not so apply. In the power of attorney, Mary C. Lane is empowered by Jos. A. Bent’s heirs to sell the Texas lands.

The court sustained the plea in abatement, and a general demurrer, and special exceptions to the amended petition, substantially as follows:

(2) That the petition showed on its face that plaintiff had no right to maintain the suit.

(3) That said petition shows that the plaintiff could not sue as executrix or trustee of the Bent estate or those entitled thereto because the will had not been probated in Texas.

(4) Because part of the petition shows that plaintiff sues as agent and attorney in fact for the beneficiaries, etc., and because neither the will nor contract under which she sues confers any authority on plaintiff to institute and prosecute suits in behalf of such beneficiaries, etc.

The judgment sustaining a plea in abatement and these exceptions is all one order, dated April 21, 1914, and, when the appellant declined to amend, the suit was dismissed, and due exception was made to the said rulings of the court. No motion for a new trial was made, and there is no statement of facts; but bills of exception were duly preserved.

The will of Joseph A. Bent makes certain disposition of property to his four children, including Mary 0. Lane, but that did not pertain to the Texas land. The portions of that will bearing upon the powers conferred on Mary C. Lane, and the disposition of the Texas land, are as follows:

“I remit payment on all notes unpaid made to me by any of my children. I hereby appoint and constitute my eldest child, Mrs. Mary O. Lane, administrator and executor without bond of my unsold and undonated real estate situated in Nebraska, Kansas, California, Texas, Missouri and Alabama, to be held in trust by said Mary C. Lane and if sales are made the proceeds in cash to be used in paying taxes and necessary expenses as commissions on sales to administrator such as are usual in settlement of estate in Nebraska, and the balance to be invested in mortgages on first class real estate and certificates of Annual National Deposits, and in case no sales are made, to use from rents such money as may be needed to pay taxes and expenses necessary in protecting and selling the various properties.”

Then follow various special donations not necessary to set out here, and directions as to management as well. And then:

“I hereby donate to each of my grandchildren natural and adopted one thousand dollars to be paid to them when they reach the age of twenty-one years, also two hundred dollars to my nieces Mrs. Nora Kellogg and Sonora Kennedy, and to each, Gertrude and Sophia Nichols, and Hattie Bent, daughter of my brother George Bent. If either of the'tracts bequeathed to my four children is sold before my death, then the amount received for such tract or tracts, is to be paid out of real estate as it may be sold to go to the child that is named in said bequest. My lands not sold or donated in Taney county, Mo., Rice county, Kansas, Brazoria, Ft. Bend, Liberty, Hardin, Colorado, Montgomery and Harris counties, Texas, and my lots in San Marcos, Ranch California, except those lots given in this will to my son, Joseph A. Bent, I wish not sold for less than fifty dollars per acre for those not having orchards on them, and the remaining lots for not less than double that sum in California, and fifty dollars per acre in Rice county, Kansas, and for not less than ten dollars per acre for my Taney county, Mo., lands. The proceeds of these lands I wish to be distributed as follows: as first, expenses and commissions of executor, and then on January first of each year such balance as may be collected, one-half to be equally divided among my four children, and the remaining one-half as follows: To the American Missionary Association,” etc.

Since there was no motion for a new trial made, and the record contains no statement of facts, we can here consider only matters which are fundamental in their nature; and, while not here attempting to give a comprehensive definition of what fundamental error is, we feel safe in saying that action upon demurrers which go to the very foundation of plaintiff’s cause of action, the right to maintain the suit, as these do, is decidedly of a fundamental nature. Oar v. Davis, 105 Tex. 479, 151 S. W. 794; Wilson v. Johnson, 94 Tex. 276, 60 S. W. 242; Houston Oil Co. v. Kimball, 103 Tex. 103, 122 S. W. 533, 124 S. W. 85.

It may be conceded that a foreign executor under a will, who has probated the same in and qualified under the laws of another state, has no power to act as such executor in regard to lands in this state, unless he file a transcript and take out administration in this state. Article 3276, Rev. Oiv. Stat.; Mason v. Rodriguez, 53 Tex. Civ. App. 445, 115 S. W. 868; Henry v. Roe & Burnside, 83 Tex. 446, 18 S. W. 806; Webster v. Clarke, 100 Tex. 333, 99 S. W. 1019, 123 Am. St. Rep. 813; Sparkman v. Davenport, 160 S. W. 410, 414. And a plea in abatement raising the right to maintain the suit here, as executor, without probate proceedings in this state, would be properly sustained.

But this suit was brought by Mary C. Lane in her individual capacity as heir of Jos. A. Bent and legatee under his will, as well as in her capacity as trustee of his estate, and we are brought face to face with the proposition as to whether the filing in Montgomery county, Tex., of the transcript of the probate proceedings from the probate court of Douglas county, Neb., including the will naming Mary O. Lane, as executrix and trustee, and charging her with certain duties, is such a muniment of title as to permit her to maintain this suit. Of course, this is aside from her character as executrix, for she had not qualified in that capacity in Texas.

That one tenant in common may maintain a suit in trespass to try title for the whole tract against a trespasser, without joining the others interested, is well settled in this state. Ney v. Mumme, 66 Tex. 269, 17 S. W. 407; Bean v. Dove, 33 Tex. Civ. App. 381, 77 S. W. 242; Leland v. Eckert, 81 Tex. 226, 16 S. W. 897; Davidson v. Wallingford, 88 Tex. 625, 32 S. W. 1030.

Judge Gould, in Stovall v. Carmichael, 52 Tex. 389, says, as to limitation, to which we shall hereafter advert, that:

“The rule seems to be that, if the other tenant in common might have sued alone (as undoubtedly he might in this state), he is net protected from the effect of limitation, and that in such case the party under disability, and not barred, can recover only his own moiety [citing Freeman on Cotenancy, § 377; Aug. on Dim. § 484], As between him and other joint owners, his beneficial acts will inure, not to his exclusive benefit, but to the benefit of all.”

Iu the case of Hayden v. Kirby, 31 Tex. Civ. App. 441, 72 S. W. 198, a case analogous to this cause, before the court for the First Supreme Judicial District, wherein the plaintiffs, along with their trust and individual capacities, sued as executors of the last will and testament of Peter Hayden, a plea in abatement was filed, urging practically the same grounds that were urged in such plea in this court. That plea was sustained by the trial court. The second and third grounds of exception to the plea in abatement were as follows:

“Second. Because the allegations of the amended petition show that plaintiffs do not sue in their capacity as executors or as representatives of the estate of Peter Hayden, deceased, but seek to recover as individuals.
“Third. Because the petition clearly alleges title to the land in plaintiffs, as trustees under the will of Peter Hayden, and as heirs of said Hayden, and further alleges title by limitation, which allegations are sufficient to entitle plaintiffs to maintain this suit in their individual capacity; and if, in addition thereto; the petition should be held to cpntain allegations showing that plaintiffs also seek to recover in the capacity of executors of a will not probated in this state, such allegations should be stricken out on exception, but would not require a dismissal of the suit."

Judge Pleasants, delivering the court’s opinion, said:.

“We think the second and third objections to the judgment are valid. In the case of Roundtree v. Stone, 81 Tex. 299, 16 S. W. 1035, our Supreme Court held that a petition which al-legos that the plaintiffs are the ‘executors and trustees under the last will and testament oí E. Gibbons, deceased,’ and were lawfully seised and possessed of the land sued for, but does not pray for a recovery of the land by plaintiffs in their capacity as executors, asserts a right in plaintiffs to recover in their individual capacity, and not as executors, and that the words ‘executors and trustees under the last will and testament of E. Gibbons, deceased,’ must be deemed as merely deseriptio personie [citing Gayle v. Ennis, 1 Tex. 186, and Rider v. Duval, 28 Tex. 624], * * * On, the contrary, the petition, considered as a whole, shows that the title asserted by plaintiffs is a fee-simple title in themselves. While plaintiffs were not required to plead their title, there is no rule which prevents their so pleading; and we think the allegations as to the probate of the will, and the record of a copy of same, should only be regarded as a statement of the title under which plaintiffs claim the land. But conceding, for the sake of argument, that the petition does show that plaintiffs sue in the capacity of executors, it is unquestionably true that they also seek to recover as trustees and as heirs of Peter Hayden; and, while so much of the petition as alleges a right to recover as executors should be stricken out on exception, that portion which alleges title in plaintiffs as trustees and as heirs is sufficient to show a cause of action against the defendants, and the suit should not have been dismissed.”

Article 7875 of Vernon’s Sayles’ Civil Statutes provides that, when a will has been duly probated in another state or territory, a copy thereof and its probate, when properly certified, may be filed and recorded in the register of deeds in any county in this state in which the real estate is situated, in the same manner as in the case of deeds, and without further proof of authentication. Article 7877 provides that, when a will is so filed for record in this state, it “shall take effect and be valid and effectual as a deed of conveyance of said property; and the record thereof shall have the same force and effect as the record of deeds or other conveyances to land from the time when such instrument was delivered to such clerk to be recorded, and from that time only.” These articles of the statutes are not treating of administration of estates in Texas, but as to the effect of wills from other states, when duly probated in such other states, as muniments of title in this state. Unless article 3276 is complied with, there can be no administration, and an attempt of a foreign executor to act as such in Texas without first complying with the requirements of that article of the statute would be without authority of law. The purpose of article 7875 was to permit a person owning land by virtue of a will duly probated in another state or territory to fix and preserve a muniment of his title without the formality of probating the will as required by article 3276. Mason v. Rodriguez, 53 Tex. Civ. App. 445, 115 S. W. 869.

A careful analysis of the will has convinced us that it was the purpose of Jos. A. Bent to constitute Mary G. Lane his trustee, as well as independent executrix, for it will be observed that a large part of his estate is specifically devised to certain of his heirs, while a considerable part of his estate, including the lands in Texas, was not devised at all. He gave them no interest in this land, but an interest in the proceeds of the sale thereof, and out of the proceeds of sale certain other bequests were to be paid. The will says, “The proceeds of these lands, I wish to be distributed as follows, * * * ” etc., and then follow various dispositions of the proceeds of such sale, including such bequests as those to the American Missionary Association, etc., as well as to his heirs. It clearly appears that he did not give to the beneficiaries under the will an interest in the land itself. In other words, title to the property in Texas did not vest in such beneficiaries, but remained in the executrix or trustee. It matters not what the instrument denominated Mary C. Lane, for if, upon reading the whole, it appears that he intended to make her a trustee, she would be such in fact, whether he called her that by name or whether he called her executrix, as was done in this case.

“Where a will expressly or by necessary implication creates certain trusts, and imposes upon the executor duties which are usually performed by a trustee, he * * * will take such interest or title in the property as is requisite, although the will does not specifically designate him as trustee, nor expressly bequeath or devise the property to him in trust.” Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388; Herring v. Patten, 18 Tex. Civ. App. 151, 44 S. W. 50; Bennett v. Bennett, 217 Ill. 434, 75 N. E. 339, 4 L. R. A. (N. S.) 476; Wenzel v. Powder, 100 Md. 36, 59 Atl. 194. 308 Am. St. Rep. 389; Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 132; Dulin v. Moore, 96 Tex. 135, 70 S. W. 742.
“If a will directs something to be done which is the proper subject of a trust, but appoints no one to perform it, the executor may then be held to be a trustee, by implication, to carry out the terms of the trust.” Borland on Wills and Administration, p. 468.

Upon the death of a testator, his property immediately vests in some one, either the heirs at law, devisees under the will, or in the trustee or executor; and since Jos. A. Bent’s Texas lands were not specifically bequeathed to the beneficiaries in his will, but on the contrary it was shown that he intended the same to be sold and the proceeds distributed as indicated therein, it is clear that he intended that the title to the same should vest in his trustee, to whom he had given directions as to how the proceeds should be expended, reinvested, and finally distributed.

Paragraph 9 of the amended petition, however, charges:

“That the.estate of Jos. A. Bent, deceased, that is now owned and held directly by plaintiff, as aforesaid, is not chargeable with any debts, demands, or claims whatsoever, in Texas, or any other state, that might in any manner become a charge against the land herein sued for by plaintiff, because whereof there is no use or necessity for the probation of said Jos. A. Bent’s will in Texas, and there is therefore no administration of said estates now pending in any of the probate courts of this state.”

Under article 3235 of Vernon's Sayles’ Civil Statutes, upon the death of Joseph A. Bent, Ms estate vested in the devisees in Ms will, and all of Ms estate not devised would vest in Ms heirs at law, if it had not vested in his trustee. After four years from the death of Joseph A. Bent, his will could not be probated in Texas, because the basis of the exceptions mentioned in articles 3247 and 3248 does not exist. The will was filed for probate in •Douglas county, Neb., on May 7, 1906, and this suit was filed July 14, 1911. The proof of the will shows that Joseph A. Bent died January 18, 1906.

So there was no administration in Texas, and none could be had at the time this suit was filed; and since, even in the,absence of a will, the property would vest in the heirs, they could maintain the suit. And while no administration could be had, the transcript of probate proceedings, which included the will, would serve as a muniment of title. If Mary C. Lane were either trustee or heir or legatee under the will, she could maintain this suit as such, because the time for administration in Texas had passed.

This brings us to a consideration of the question whether Mary O. Lane, one tenant in common, can maintain a suit for damages to the realty without the other cotenants being made parties thereto. This is aside from the right of one cotenant to recover possession of the land as against a mere trespasser. It will be recalled that the plea in abatement filed in this cause is based upon the fact that Mary 0. Lane had not qualified as executrix in Texas, and the fact that she had no right to maintain the suit for damages to the realty because all cotenants must be joined was not raised. Neither is this matter raised by exception.

In the case of G., C. & S. F. Ry. Co. v. Cusenberry, 86 Tex. 629, 26 S. W. 43, Judge Gaines says:

“The rule is well settled by the decisions of this court that, in a suit to recover damages for an injury to real property, all the tenants in common must join; but that advantage of the defect in the petition must be taken by a plea in abatement, and that, in the absence of such plea, the plaintiff may recover damages in an amount proportionate to his interest in the property. May v. Slade, 24 Tex. 206; Rowland v. Murphy, 66 Tex. 534, 1 S. W. 668; Parks v. Dial, 66 Tex. 261; Lee v. Turner, 71 Tex. 264, 9 S. W. 149. The plea in abatement must give the plaintiff a better writ. Hence the defendant should not only have pleaded the non-joinder, but the plea should have shown who were the owners of the other half interest. Not having done this, it cannot now complain that the plaintiff was permitted to recover one-half of the damages to a survey to which he showed title in his wife to an undivided one-half interest.”

See, also, House v. Reavis, 89 Tex. 633, 35 S. W. 1063.

Judge Williams, speaking for the court, in G., H. & S. A. Ry. Co. v. Stockton, 15 Tex. Civ. App. 146, 38 S. W. 647, says:

“It is well settled that all joint owners of land must join in suits for such injuries as this, and that one cannot maintain a separate action for his proportion of the damages, if the defendant makes objection in proper time to the nonjoinder of cotenants. It is also settled, however, if objection be not properly urged in the trial court, ‘that a judgment in favor of plaintiff, suing alone for his proper share of the damages, will not be disturbed on appeal.’ But this latter proposition obtains only when the plaintiff has shown himself entitled to what he has recovered. In order to do this, he must, of course, show the extent of Ms interest in the property, and must recover no more than his just share of the damage. He does not represent the cotenant not suing, and cannot bind him, and, as against him, defendant cannot he protected by the judgment.”

So it will be seen from tbe foregoing that, according to onr view of tbe law, Mary O. Lane could maintain tMs suit, either as trustee or as heir under tbe will. Tbe latter capacity, however, becomes unimportant because, as trustee, sbe has tbe right to maintain tbe suit on behalf of tbe entire estate; and this sbe could do for tbe entire damages to tbe realty, and would not be confined to her right as a cotenant to bring tbe suit on behalf of all as against a mere trespasser.

Tbe power of attorney given by tbe other heirs to- Mary C. Lane to sell tbe property is undoubtedly insufficient to clothe her with the tight or power to maintain a suit on behalf of those heirs.

The judgment is reversed, and the cause remanded for trial.
      ¡g^jFor other cases see same topic and KEY-NUMBEB. in all Key-Numbered Digests and Indexes

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


text:
    COKER v. COOPER’S ESTATE.
    (No. 5463.)
    (Court of Civil Appeals of Texas. San Antonio
    April 28, 1915.
    Rehearing Denied May 19, 1915.)
    1. Appeal and Error <@=>736 — Questions Reviewable — Multifarious Assignments.
    An assignment of error, which complains of a ruling on evidence and of remarks by the trial court in making the ruling, is multifarious and will not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <©=> 730.].
    2. Appeal and Ebboe <©=>664^-Bill of Exceptions — Statement of Facts — Conclusiveness.
    Matters appearing in the approved statement of facts control the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. <©=> 664.]
    3. Appeal and Eebob <©=>1046 — Harmless Ebboe — Rulings on Evidence — Remarks of Trial .Judge.
    Where the attorney of a party accused the judge of interfering with his cross-examination, the remarks of the court that it would interfere when it thought it necessary, and that this was the third time the identical question was asked, and that further questions along that line would not be permitted, were not prejudicial.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 412S-4131, 4134; Dec. Dig. <©=>1046.]
    4. Evidence <©=>291 — Declarations — Pedigree.
    An illegitimate child may testify that her mother, since deceased, told her the name of her father.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1150; Dec. Dig. <©=>291.]
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Proceedings by E. W. Robinson for the probate of the will of H. C. Cooper, deceased, in which Abraham Coker appeared as contestant, and in which Bettie Collins intervened. From a judgment admitting the will to probate, contestant appeals.
    Affirmed.
    Baldwin & Baldwin and John L. Meany, all of Houston, for appellant. Harry Holmes, of Houston, for appellee.
   CARL, J.

The consideration of this case carries us back to antebellum days, and gives us a partial view of life among the slaves “way down on the Suwanee river”; for there on the verdant banks of that seductive stream abode one Creecy Brandon, a damsel of dusky hue, who at that time found favor in the sight of one H. C. Cooper, another slave. After emancipation, Cooper joined the army and marched away in the uniform of a soldier, never again to return; for he settled at Houston, Tex., where he lived to a ripe old age. But the record shows that his heart “was turning ever” to Georgia’s song-famed stream. The relations between Cooper and Creecy Brandon were doubtless very friendly, and, while he did not know her second daughter’s name, he seemed convinced that in her veins coursed the blood of his own lineage; for as he sat in his cabin in far away Texas, looking back over the lapse of half a century, memory again turned to the Suwanee river, and the unfulfilled obligations of his early manhood. Creecy had preceded him across “that other River” some 30 years, but the child remained, and there is where the old negro’s heart was turning when he considered what he should do with the small share of this world’s goods that he possessed. He made a will and gave his property to Creecy Brandon’s second daughter, who is Bettie Collins, the same who won this suit below. Cooper died in Harris county, Tex., November 9, 1911, and on November 13th of the same year, E. W. Robinson filed for probate a will of the said Cooper, wherein, after providing for the payment of his debts, he bequeathed to “My beloved daughter, a child born out of holy wedlock, the same being a girl child and being the second child born to Creecy Brandon, who at the time of the emancipation of the African slaves in this country in the year 1865 belonged to Joe Brandon, a slaveholder, who lived in the county of Gwinnett, in the state of Georgia, near the Suwanee river, the name of which child I do not know,” etc. On January 23, 1912, Abraham Coker, Cooper’s brother, filed a contest of the will, alleging that this was not the will of H. C. Cooper; that he never signed the same and never ordered it signed for him; that there was no> such beneficiary in existence as mentioned in the will; that at the time the will purported to have been executed Cooper was not of sound mind and was laboring under insane delusions; and that undue influence was used on him by Broyles and Robinson to get him to execute the same. It is charged that M. H. Broyles, a negro lawyer, who drew the will, and E. W. Robinson, the executor named, knew of his condition and that Cooper could not understand what he was doing, and, by pretending to be his friends, when in fact they were not, they induced the execution of said will, in the belief that no such beneficiary as therein described existed; the purpose being to deprive contestant of the property as the testator’s heir. Bettie Collins, of Calhoun county, Ala., was permitted to intervene, and she alleged that she exactly , fits the description of the beneficiary in the will; that she was the second child born to Creecy Brandon, who at the time of her birth, and at the time of the emancipation of the slaves, belonged to Joe Brandon, a slaveholder, who lived in Gwin-nett county, state of Georgia, near the Suwanee river; and that she was the person referred to in the will. The will was admitted to probate in the county court, an appeal taken to the district court of Harris county, where the case was tried upon special issues, again resulting in establishing the fact that Bettie Collins is the beneficiary named and admitting the will to probate, etc.

The first assignment will not be considered because of the fact that it is multifarious, one part complaining of the ruling of the court in sustaining objections to evidence, and the other complaining of remarks by the trial court in making his rulings. That assignments dealing with two or more alleged grounds of error will not be considered is so well settled now that we will not incumber the books by citing authorities. Wo may say, in passing, however, that the statement of facts shows that Broyles did testify on the matters upon which it was sought to lay a predicate to impeach him, and it matters not what is shown in the bill of exceptions. The statement of facts controls. Broyles had said he lived in Georgia two summers only; that he taught school in Southern Georgia in Elbert county; that he was never in Gwinnett county and did not know whether the Suwanee river runs through that county or not, and does not know how far that river, so famous in southern melody, is from where he taught school. Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599; Sullivan v. Fant, 160 S. W. 617; Scott v. Childers, 24 Tex. Civ. App. 349, 60 S. W. 775; Ramsey v. Hurley, 72 Tex. 194, 12 S. W. 56.

What we have just said about the matters appearing in the approved statement of facts controlling a bill of exceptions disposes of the second and third assignments of error adversely to appellant. The trial court did not say anything, in making Ms ruling, that could be construed as a comment upon the testimony. Nor did the court say anything that was calculated to place appellant’s attorneys in an unfavorable light before the jury. They were permitted to cross-examine Broyles at great length, and after he had been taken over the entire field from South Carolina, through Georgia, to Texas, over a period of two hours or more, the court simply stated that it was the third time they had asked that question, and stopped further examination on a matter that had been thoroughly gone over. If courts did not control cases and use sound discretion as to how long the examination of a witness should continue, trials would become interminable and degenerate into judicial farces. The attorney had accused the judge of interfering with the examination, and, doubtless smarting under that charge, the court said:

“I will interfere whenever I think it necessary. That is the third time that identical question has been asked.”

And the bill shows that the court thereupon refused to permit “further questions along this line.” The court did not err in this respect. The second and third assignments are overruled.

The evidence excluded, as shown in the fourth assignment of error, was hearsay and properly excluded; and even if it had been admitted it would not probably have changed the result of the trial and would have been harmless. Furthermore; the bill of exceptions No. 9 does not show that it was offered for the purpose of impeachment. The assignment is overruled.

The fifth assignment complains of the action of the court in permitting Bettie Collins to testify that her mother, Creecy Brandon, had told her that her father’s name was Hardwell Cooper. “I don’t remember of ever seeing him.” The ground of objection was that it was hearsay. It was shown that her mother, Creecy Brandon, had been dead about 30 years, and, if Creecy did not know who her father was, then no one did. It was clearly admissible as being family history, and the assignment is overruled. Byers v. Wallace, 87 Tex. 503, 28 S. W. 1056, 29 S. W. 760; Wiess v. Hall, 135 S. W. 384; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370; Louder v. Schuler, 78 Tex. 103, 14 S. W. 205, 207; 2 Wigmore on Evidence, § 1492, p. 1855; 16 Cyc. 1223.

The other assignments are without merit, and the judgment of the trial court is in all things affirmed.
      <©rx>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    PARKER v. EMERSON et ux.
    (No. 7340.)
    (Court of Civil Appeals of Texas. Dallas.
    April 10, 1915.
    Rehearing Denied May 15, 1915.)
    Justices oe the Peace @=^146 — Decisions Reviewable — ' ‘Final Jud gment. ’ ’
    A judgment in a justice court in favor of plaintiff, though it fails to expressly dispose of defendant’s cross-action, or plea in reconvention, is yet a “final judgment” which will support an appeal.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 490-492; Dec. Dig. <®=>146.
    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Error from Dallas County Court; W. F. Whitehurst, Judge.
    Action by C. F. Emerson and wife against J. R. Parker. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    John S. Fannin and W. H. Clark, both of Dallas, for 'plaintiff in error. S. P. Adams and Chas. C. Triplett, both of Dallas, for defendants in error.
   TALBOT, J.

On the 29th day of April, 1913, C. F. Emerson and wife instituted this suit in the justice court of precinct No. 1 of Dallas county, Tex., to recover the value of certain furniture and household goods alleged to have been wrongfully taken from them and converted by the defendant (plaintiff in error here), J. R. Parker, on or about the 24th day of December, 1912. The said goods were alleged to be worth $91.95, and, in addition to that amount, the plaintiffs, Emerson and wife, sought to recover damages in the sum of $22 on account of being deprived of the rental value of the goods, and the sum of $5.60, as interest on the value thereof, the total amount prayed for being $119.55. The defendant, Parker, appeared in the justice court and pleaded a general demurrer, a general denial, and by way of cross-action or plea in reconvention alleged that the plaintiff, through his wife, IvTrs. O. P. Emerson, purchased from defendant a bill of goods amounting to $145, including the household goods and property described in plaintiffs’ petition; “that the title of said goods was to remain in the said defendant, J. R. Parker, until they were fully paid for; that the said contract of sale was a conditional sale, and that plaintiffs have never paid said J. R. Parker for said goods; that they now owe Mm $145 for said property as evidenced by said contract of sale,” and that they have unlawfully converted to their own use said property, to defendant’s damage in the sum of $145, for which amount he prayed judgment. On the trial of the case in the justice court January 9, 1914, a judgment in favor of plaintiffs for the sum of $43, together with the costs of suit, for which execution was directed to be issued, was rendered. This judgment made no express disposition of the defendant’s cross-action or plea in reconvention, or mention it in any way. On January 19, 1914, the defendant, J. R. Parker, filed in the justice court a supersedeas appeal bond, appealing the case to the county court at law of Dallas county. On May 6, 1914, the case was called for trial in said last-named court, and, the defendant, Parker, failing to appear, judgment was rendered in favor of the plaintiffs for the sum of $91.95, with interest thereon at the rate of 6 per cent, per annum from date of judgment, together with costs of suit, and further adjudging that the defendant, Parker, have and recover nothing by his plea in reconvention. On May 7, 1914, defendant filed motions in arrest of judgment and for a new trial, asserting that his cross-action or plea in reconvention had not been disposed of by the judgment rendered in the justice court; that said judgment for that reason was not.a final judgment from which an appeal would lie, and hence the county court had no jurisdiction, and the judgment in that court was a nullity. These motions were overruled, and the case is. now before us on writ of error.

The assignments of error, two in number, complain respectively of the overruling of the defendant’s motion in arrest of judgment and for new trial in the county court at law. It is asserted that the court’s ruling on these motions was error, because the judgment of the justice court, having failed to dispose of the defendant’s plea in reconvention, was not a final judgment, and hence the county court had no jurisdiction to try the cause. The question is: Was the judgment of the justice court a final judgment? Said judgment is as follows:

“On this day came the parties by their attorneys and submitted the matter in controversy as well of fact as of law to the court, and, the evidence and the argument of counsel having been heard and fully understood, it is considered by the court that the said plaintiffs, O. E. Emerson et ux., do have and recover of the said defendant, J. R. Parker, the sum of $43, together with his costs in this behalf expended, and that he have execution. Given under my hand this January 9, 1914. S. L. Stewart, J. P.”

The decisions of this state are uniform to the effect that in order for the judgment of a court to be final it must dispose of all the issues presented, as well as all the parties to the suit; but, as to what constitutes a final judgment, such as is essential to' support an appeal, the holdings of some of our Courts of Civil Appeals are in decided conflict. These conflicting decisions are collated and discussed by the Supreme Court in Trammell v. Rosen, 157 S. W. 1161, and it is there pointed out that one line of the decisions referred to adheres to what is characterized as a strict construction of the statute relating to the form of judgments, and hold that a judgment which does not, in express terms, specifically dispose of a cross-action or counterclaim is not a final judgment such as will support an appeal; whereas the other line, adhering to what is termed a more liberal construction, holds that a judgment may be final even though it disposes of such cross-action or counterclaim by necessary implication only. The decisions of the Supreme Court in Linn v. Arambould, 55 Tex. 611, and Texas & Pacific Railway Co. v. Et. Worth Street Ry. Co., 75 Tex. 82, 12 S. W. 977, are also mentioned in the opinion of the court in Tram-mell v. Rosen, supra, with the declaration that, while certain expressions in the Linn Case tend to support the strict construction and holding mentioned, yet both of said cases were distinguishable in the facts from the case the court had under consideration, and not decisive thereof. Now in Trammell’s Case he was sued upon certain notes purporting to be secured by a vendor’s lien on land claimed by him to constitute his homestead, and a writ of sequestration was sued out and levied upon the same, and upon certain personal effects, furniture, etc. Tram-mell by cross-action or plea in reconvention charged that the writ of sequestration was wrongfully and maliciously sued out, and prayed for both actual and exemplary damages. The trial resulted in an instructed verdict in favor of the plaintiff for the amount of the notes sued for, a foreclosure of the lien, and against Trammell on his plea in re-convention. Judgment was entered in accordance with the verdict of the jury, except that it did not expressly dispose of Tram-mell’s plea in reconvention or cross-action, and made no mention whatever of it. Prom the judgment thus rendered Trammell appealed to the Court of Civil Appeals of the Second District, and his appeal was there dismissed on the ground that the judgment appealed from was not a final judgment, in that it failed to dispose of the cross-action. A writ of error was granted by the Supreme Court, and that court, holding that the judgment of the district court was final, reversed the judgment of the Court of Civil Appeals, and remanded the cause to that court for an adjudication of the questions arising on the appeal. In passing upon the question the Supreme Court, speaking through Mr. Justice Hawkins, quoted from Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77, as follows:

“The proposition seems to be sound in principle and well supported by authority that, where .the pleading's and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff’s right to recover upon two causes of action, and the judgment .awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause.”

The court also reviewed Davies v. Thomson, 92 Tex. 391, 49 S. W. 215, and said that the principle which controlled in that case and in Rackley v. Fowlkes, from which the above quotation is taken, was applicable in a great measure to Trammell’s Case, and concluded its opinion thus:

“We feel constrained to hold that the judgment of the trial court, although irregular and imperfect in form, is sufficient to support the appeal. However, we feel impelled to say also that we think that, as a matter of practice, and to avoid confusion, every final judgment should plainly, explicitly, and specifically dispose of each and every party to the cause, and of each and every issue therein presented by the pleadings.”

This case is decisive of the question before this court, and requires an affirmance of the judgment of the county court. Further discussion would be useless, and we shall content ourselves by simply saying that we heartily agree with the statement of the Supreme Court to the effect that, as a matter of practice, and to avoid confusion, every final judgment should plainly and specifically dispose of each and every material issue I>resented by the pleadings and the evidence.

The judgment of the court below is affirmed.
      cgnwFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DANE, J.

text:
    CUNNINGHAM et al. v. GAINES.
    (No. 6747.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 22, 1915.
    On Motion for Rehearing, April 1, 1915.)
    1. Corporations ©=>121— Sale op Stock — Fraud — Sale by Agent — Knowledge oe Vendor.
    In a suit by a subscriber to stock to recover money paid on notes given for such stock and to enjoin defendants, vendors of such stock, from enforcing payment of the unpaid notes, the fact that such defendants had no knowledge that such money and notes of the plaintiff in their possession had been obtained by false representations made by their agent was no defense, unless defendants were purchasers for value without notice.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 285, 304-311, 342-348; Dec. Dig. ©=>121.]
    2. New Trial ©=>124 — Motion — Grounds — Sufficiency of Verification.
    In an action by the purchaser of stock to enjoin defendant vendors from enforcing purchase-money notes given therefor, defendants’ motion for a new trial was properly refused, where it stated no meritorious defense to the action, was made so late in term that its granting would have necessitated a continuance, and where its verification by affidavit of the parties’ attorney was insufficient, being merely to the effect that the attorney “believed the allegations in the above motion to be true.”
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 250-253; Dee. Dig. ©=>124.]
    3. Appeal and Error ©=>1072 — Harmless Error — Proceedings on Motion for New Trial.
    Where the trial court errs in not permitting defendants to file amended motions for new trial, and in not considering such motions, defendants neither in such motions nor otherwise showing that plaintiff’s demand Was unjust as to the merits of the case, merely insisting that the evidence does not show certain facts, the error is immaterial so far as the action of the court in refusing a new trial is concerned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 42331/2; Dec. Dig. ©=>1072.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by J. W. Gaines against W. W. Cunningham and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Carlton, Townes & Townes and R. E. Hard-wicke, all of Beaumont, for appellants. Gaines & Corbett, of Bay City, for appellee.
   DANE, J.

Appellee, J. W. Gaines, instituted this suit in the district court of Matagor-da county against W. W. Cunningham, W. B. Dunlap, and R. A. Greer, as trustees for the San Jacinto Dife Insurance Company, and II. M. Hargrove, who is engaged in business under the name of H. M. Hargrove & Co. Appellee’s petition was filed on the 4th day of March, 1913. He alleges therein that on or about the 5th day of April, 1911, I-I. M. Har-grove & Co. were engaged, through their representative, Chas. Clayton, in an effort to sell the capital stock of the San Jacinto Dife Insurance Company, which was not at that time organized; that the said Chas. Clayton, as such representative, came to Bay City in Matagorda county, Tex., and there made false and fraudulent representations to ap-pellee, with reference to the organization and sale of the stock of said insurance company, fully set out in his petition, which were relied upon by appellee, and which induced him to subscribe for $2,000 of the stock of said insurance company, and in payment therefor to execute, and he did execute and deliver to the said trustees Cunningham, Dunlap, and Greer his three promissory notes, one for $500, payable in 60 days, and two for $750 each, payable September 1, 1911, and November 1, 1911, respectively, after their dates; that all of said notes were payable to the ’said trustees Cunningham, Dunlap, and Greer ; that he paid said trustee the sum of $500 in payment of the first of said notes, through the Bay City Bank & Trust Company, and that said trustees are now in the possession of the same; that said two notes for $750 each were also delivered to said trustees, and that said trustees are now in possession of the same. Appellee also alleges that all of said representations made by the said Clayton were false; that said insurance company has never been organized ; that he has never received any stock for his money and notes; and that the said trustees are endeavoring to collect the other notes still unpaid. He also alleged that H. M. Hargrove knew what representations had been made to him by Hargrove's said representative, Clayton, and that he thereafter by letter to appellee fully ratified said false statements made by the said Clayton to ap-pellee, which induced him to part with his said money and notes. He then prays that the defendants be required to bring said unpaid notes into court, and that the same be surrendered and canceled, that he have judgment against each and all of the defendants for $000, with interest thereon from July 1, 1911, and that the defendants be restrained and enjoined from attempting to enforce payment of said unpaid notes, or either of them, and from attempting to, in any manner, impose any liability on appellee for costs of suit, etc. On the Slst day of May, 1913, all of the defendants filed their pleas of privilege to be sued in the county of Jefferson, where all of them resided. Appellants, defendants in the lower court, also filed their answer on the 31st day of May, 1913, which consisted of: • (1) General demurrer; (2) general denial. The case was called and tried before the court without a jury on the 3d day of January, 1914. After hearing the evidence the court rendered judgment against each and all of the appellants for $500, with interest thereon from July 1, 1911, at the rate of 6 per cent, per annum, and perpetually enjoining them, and each of them, from attempting to enforce payment of the said two unpaid notes, and for cancellation of said notes, and for all costs of suit. On the 5th day of January appellants filed their motion for new trial, as follows:

“Now comes the defendants, IV. W. Cunningham, W. B. Dunlap, and K. A. Greer, trustees of the San Jacinto Life Insurance Company, and H. M. Hargrove, doing business under the name of H. M. Hargrove & Co., and moves the court to set aside the judgment rendered against them, and each of them, in the above entitled and numbered cause on January 3, A. D. 1914, and grant them a new trial, for the following good and sufficient reasons, to wit: (1) The court erred in rendering judgment because the defendants, and each of them, had on file a plea to the venue of this court, wherein the defendants, and each of them, set out the fact that they, and each of them, live and reside in the county of Jefferson and state of Texas, and were so living in the county of Jefferson and state of Texas when the original petition in this cause was filed and citation was had upon them, and that they, nor either of them, lived in Mata-gorda county, Tex., at the time said suit was filed and citation was had upon them, and that they, nor either of them, were guilty of any act or conduct which would give the plaintiff jurisdiction over them at the time of the accrual of said cause- of action, if any plaintiff had; (2) because said judgment so rendered by said court is contrary to the facts proven on the trial of said cause; (3) because the judgment rendered in said court in said cause is contrary to the law applicable to said cause.”

It is shown by appellants’ bill of exception that on the 22d day of January, one day before the court adjourned for the term, appellants Cunningham, Dunlap, and Greer presented to the trial court a request in writing to substitute the Texas Bank & Trust Company as defendant in their stead, reciting that since they had filed their answer they had resigned as trustees of the contemplated insurance company; that their resignation had been accepted by the district court of Jefferson county, Tex., which court, at their instance and at the instance of other subscribers to the capital stock of said proposed insurance company, appointed said Texas Bank & Trust Company of Beaumont as trustee for said insurance company, and that said Texas Bank & Trust Company had accepted such trust and had qualified as such trustee and was then acting as such. (Which said writing was not filed in the trial court.) The bill further recites that on the same day, January 22, 1914, the said Bank & Trust Company offered to file a motion for new trial, as follows:

“Cornos now the Texas Bank & Trust Company of Beaumont, trustee, and files this its motion for now trial in the above cause and as grounds therefor says:
“First. That it has been substituted as trustee for the stockholders of the San Jacinto Life Insurance Company in the place of the original defendants, W. W. Cunningham, W. B. Dunlap, and It. A. Greer, trustees, such substitution being made by the district court of Jefferson county, Tex., in August 1913, and said bank in its capacity as trustee hereby enters its appearance in this cause and expresses its willingness to be bound by whatever judgment is rendered just as if it had been an original defendant instead of W. W. Cunningham, W. B. Dunlap, and It. A. Greer, trustees.
“Second. That said judgment is not supported by the evidence in the following particulars: (a) It is pot shown that Chas. Clayton was authorized to make the representations claimed by plaintiff to be fraudulent, or that any of said trustees, or II. M. Hargrove, ratified, with notice, any misrepresentations. (b) It is not shown that any of said trustees received the sum of $500 paid by plaintiff, nor to whom said money was paid, nor where, (c) Because there is no evidence to show that Chas. Clayton was an agent of any of said trustees, or that said trustees ever adopted or ratified, with notice of misrepresentations, if any, the acts of Chas. Clayton. (d) Because the evidence is wholly insufficient to support the judgment rendered herein.
“Third. That said trustee, at the time it assumed the trust originally undertaken by W. W. Cunningham, W. B. Dunlap, and B.. A. Greer, trustees, was informed that this cause had been settled and dismissed, and therefore it did not file any answer nor take any further action concerning said cause, nor any further notice thereof, and said trustee shows that H. M. Hargrove, codefendant, besides making representations that said case had been settled, showed to it an agreement of settlement signed by plaintiff, under the terms of which the said plaintiff transferred to H. M. Hargrove all rights that he had under his subscription contract and was released of all liability thereunder, same being assumed by H. M. Hargrove.
“Fourth. Said trustee further says that it had no notice whatever of any failure on the part of the said Hargrove to carry out said agreement, or any other agreement, with plaintiff, and by reason thereof paid no further attention to this cause.
“Fifth. That this cause was called .for trial, and without agreed setting or any special setting by the court, and was not tried nor called in its proper order on the docket of said court.
“Sixth. Said trustee further says that, even if the said Hargrove and plaintiff did not agree as to the dismissal of said suit except upon certain contingencies, said trustee was not, nor were the original trustees, informed of the failure of said Hargrove to carry out his part of the agreement which gave rise to the reinstatement of said cause and right to insist upon a trial of same by plaintiff, and said trustee was not, nor were the original trustees, notified by plaintiff of his election to cancel said agreement and continue the prosecution of this suit.
“Seventh. Said defendant trustee likewise says that any judgment against it would be unjust, in that it never received any money or thing of value from said plaintiff, nor is it, nor were the original trustees, hound by any misrepresentations made by H. M. Hargrove or his agents, and it is shown that by the terms of the subscription contract the plaintiff paid to PI. M. Hargrove & Oo., and not to the trustees, the sum of $500, and none of said trustees ever received any sum of money paid by plaintiff; and, further, that said trustees are not responsible for any acts of misrepresentations of defendant Hargrove or his agents, and their sole duty is the retention according to its trust agreement of such funds as may come into its hands belonging to subscribers to the stock of the San Jacinto Life Insurance Company.
“Wherefore, premises considered, the Texas Bank & Trust Company of Beaumont, Trustee, prays that the judgment heretofore entered against W. W. Cunningham, W. B. Dunlap and R. A. Greer, trustees, and H. M. Hargrove, be set aside and held for naught, and that a new trial be granted herein.
“Carlton, Townes & Townes,
“R. E. Hardwicke,
“Attorneys for Defendant.
“State of Texas. County of Matagorda.
“Before me, the undersigned authority, on this day personally appeared R. E. Hardwicke, who being by me first duly sworn, deposes and says: That he is one of the attorneys for the defendants in the above styled and numbered cause, and that he believes the allegations in the above motion for new trial are true.
“R. E. Hardwicke.
“Sworn to and subscribed before me this 22d day of January, 1914.
“[Seal] Rowland Rugely,
“Notary Public, Matagorda County, Texas.”

The bill also sets out the amended motion of appellant Hargrove, in every particular substantially the same as the foregoing motion of the Texas Bank & Trust Company. The court qualified the bill as follows:

“The above and foregoing bill of exception is approved with the following qualification: The action sought to be complained of is not properly set out in said bill of exception and, in explanation thereof, I will say that on the 22d day of January, one day before the adjournment of the term of the district court of Mata-gorda county, Tex., and 21 days after the rendition of judgment in the cause of Jno. W. Gaines v. W. W. Cunningham et al., No. 8287 on the docket of the district court of Mata-gorda county, state of Texas, R. E. Hardwicke, Esq., appeared before the court and asked leave to substitute the Texas Bank & Trust Company, trustee, as defendant in judgment in lieu of and instead of W. W. Cunningham, W. B. Dunlap and R. A. Greer, and on the same day and at the same time asked leave to file a motion for a new trial by the Texas Bank & Trust Company, trustee, no motion having ever theretofore been filed by the said Texas Bank & Trust Company, and further asked leave to file an amended motion by IT. M. Hargrove and W. W. Cunningham et al., trustees, said motion or document being sworn to by R. E. Hardwicke, as one of the attorneys of record, said affidavit being insufficient to support an amended motion for new trial, the said original motion for new trial being wholly insufficient to raise any issue or to justify the granting of a new trial, I refused to permit the substituting of defendants or to permit the filing of the motion for new trial, because the issues raised could not be met at that time.”

J. W. Gaines testified at the trial to the truth of the allegations of his petition, and especially to the fact that he paid $500 to appellants through the Bay City Bank & Trust Company; that he executed his two promissory notes for $750 each and said notes were made payable to and were in the possession of the said Cunningham, Dunlap, and Greer, and that said $500 so paid by him was also in their possession.

Neither the answer of appellants, nor any assignment in either of the motions for new trial, show any meritorious defense to the allegations of appellee’s petition, nor do they deny that appellants are in possession of the money and notes of appellee, which he alleges and testifies were obtained from him by fraud. That appellants had no knowledge that said money and notes of appellee in their possession, which were obtained by false representations made by Clayton, is no defense to appellee’s suit to recover the money so obtained by them; there being no claim that appellants were in possession of said money and notes for value paid without notice of any outstanding equity in appellee. Under the pleading and evidence in this case, including all motions for new trial, we are unáble to see how the recovery of the money paid by appellee, and the cancellation of the two promissory notes, could injure appellants unjustly.

The first motion for new trial was not verified, nor does it set up any reason, legal or equitable, why the judgment should have been set aside. Although the judgment was rendered on the 3d day of January, 1914, and the amended motions for new trial were not filed until the 22d day of January, 1914, 21 days after judgment was entered, and only one day before adjournment of court, none of the appellants, who were informed as to the truth of the matters set out in said motion, made oath that such matters were true, but on the contrary, the motions were signed by It. E. Hardwicke, attorney ior appellants, I who from the manner in which he sets out | his assignments in said motion shows that he is not informed of the pertinent matters therein. This fact is further shown by the indefinite oath made by him in an attempt to verify the motions. In view of the fact that neither of the motions for new trial show that appellants have any meritorious defense to appellee’s suit, that the pertinent assignments in said amended motions were not verified by any one pretending to be informed as to the truth of the matters therein set up, and that said amended motions were filed at such time and so late in the term of court as to cause a continuance of the cause, if granted, we do not think the trial court erred in refusing to consider the amended motions, and in overruling the original motion. In the case of Gilmers’ Mut. Underwriters v. Wiley & House, 147 S. W. page 631, the court says:

“The court did not err in refusing to grant a new trial on the ground of newly discovered evidence, tending to show that the premises were burned by the appellees. Thex'e is no affidavit attached to the motion for a new trial to support the allegation therein contained that they had discovered such evidence, and, in the absence of such an affidavit, this ground should not have been considered. Scranton v. Tilley, 16 Tex. 183.”

In the case of Calyon v. State, 174 S. W. 591, recently decided by the Court of Criminal Appeals, Judge Prendergast says:

“The purported affidavit of Mr. King is simply and solely to the effect that: ‘To the best of his knowledge, information, and belief,’ said jury, or some members thereof, 'commented upon the failure of the defendant to testify in his own behalf, and upon his failure to place character witnesses upon the stand in his own behalf, and considered such failure to testify, and failure to place such witnesses on the stand, in arriving at their verdict in this case.’ In our opinion this amounts to no affidavit at all. The bill clearly shows that Mr. King had no knowledge whatever about the supposed misconduct of the jury; that he did not give what his claimed information was, nor did he give who his informant was. Mr. Pillow, one of the appellant’s attorneys, who claimed to have talked to one of the jurors, made no affidavit whatever. Neither did their client, the appellant, make any affidavit.”

See Hicks v. State, 171 S. W. 755, and authorities there cited; 14 Ency. P. & P. 904: 12 Ency. P. & P. 557-559. In Dowell v. Winters, 20 Tex. 797, the court says:

“It is obvious that such applications ought not to prevail, where the effect would be to delay the trial, unless upon a good excuse for the default, and the presentation of a meritorious defense.”

If it should be admitted that the trial court erred in not permitting appellants to file amended motions, and in not considering same, this, nor any other immaterial error of the court, should cause a reversal of this cause; and, as appellants do not in their amended motion, or otherwise, show that ap-pellee’s demand is unjust, but, with reference to the merits of the case, they only insist that the evidence adduced did not show certain facts, the assignments in the motions for new trial were insufficient to require the trial court to grant a new trial. The motions should have shown a meritorious defense.

There appearing no such error, if any, in the trial of this cause as would justify this court in reversing the judgment of the lower court, the same is affirmed.

Affirmed.

On Motion for Kehearing.

On motion for rehearing appellants insist that the finding of this court that appellee Gaines testified “that he paid $500 to appellants through the Bay City Bank & Trust Company, that he executed his two promissory notes for $750, each, and said notes were made payable to and were in possession of the said Cunningham, Dunlap, and Greer, and that said $500 so paid by him was also in their possession,” was not supported by the facts. On a closer examination of the statement of facts we find that we were in error in stating that Gaines had testified that the $500 was paid through the Bay City Bank & Trust Company. We do find, however, that he testified that the $500 was paid, and that they sent him a receipt therefor. He must have meant by the word “they” the trustees, appellants, as they were the parties sued and about whom he was speaking at the time, for, following the above expression he says:

“But on August 21, 1911, the trustees notified me that the first one of the notes which I had given, which was not to be paid at all until after the organization of the company, with accrued interest, was with the Gulf State Bank for collection.”

And again he says:

“Notwithstanding the agreement on December 15, 1911, they again sent a note out for collection, and on the 16th I sent a copy of that letter to Mr. Hargrove, and asked him to please answer it himself, as I did not understand what it meant, in view of the correspondence and agreements we had just reached.”

We think that the testimony of Gaines could have no other meaning than that he paid the $500, and that the trustees, Cunningham, Dunlap, and Greer, sent him a receipt for this payment; that said trustees were, on two occasions, taking steps to collect the two notes executed by Gaines, and that therefore said money and notes were in the possession of said trustees.

With this correction and explanation the motion for rehearing is overruled.

Overruled.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SIMMONS v. RUGGLES et al.
    (No. 7328.)
    (Court of Civil Appeals of Texas. Dallas.
    April 17, 1915.
    Rehearing Denied May 15, 1915.)
    1. Sales <@=>124 — Rescission — Tender—Necessity.
    A purchaser of an automobile, suing to rescind the contract and recover the amount paid on the purchase price, was not entitled to judgment, where there had been no tender of the machine.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 303-312; Dec. Dig. <@=>124.]
    2. Sales <@=>262% — Warranties—Liability.
    Where, on the sale of an automobile by a dealer, who was acting for himself and did not pretend to represent the manufacturer, he delivered to the purchaser the manufacturer’s warranty of the automobile, which provided that it was dependent on the purchaser registering his name, address, date of purchase, and model of car with the manufacturer, and the dealer neither signed any warranty nor made any representations as to the machine, except as might be implied from the delivery of the warranty, and the purchaser never registered his name as required by the warranty, he could not recover for breach of the warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 740-74S; Dec. Dig. <@=>262%.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Actions by W. R. Simmons against C. C. Ruggles and another, and by C. C. Ruggles against W. R. Simmons. From a judgment against him, Simmons appeals.
    Affirmed.
    Greenwood, Walker & Williamson, T. S. Plowman, and Parks & Hall, all of Dallas, for appellant. Jed. C. Adams and R. L. Sten-nis, both of Dallas, for appellees.
   RAINEY, C. J.

Appellant bought a Ford automobile from the appellee for the agreed sum of $570, and for which he paid cash $250, giving his'note for the balance. On Axiril 23, 1913, appellant brought suit against Ruggles and the Ford Auto Company, alleging a certain written warranty by said parties, that said warranty had been breached, and asked that contract of purchase be rescinded, and that he recover $250, the amount of cash he had paid on said machine, and for the cancellation of the notes given by him. Without knowledge of the suit brought by appellant, Ruggles on May 1,1913, brought suit against appellant to recover on the notes appellant had executed for the balance due on said machine, to foreclose a mortgage given to secure the said notes, and sued out a writ of sequestration, and caused the machine to be seized. Without a formal order of consolidation having been made, said suits were tried at the same time and resulted in a verdict and judgment for appellees, from which judgment this appeal is taken.

The court instructed a verdict for the Ford Auto Company, and a judgment was accordingly so rendered, from which no appeal has been taken, so the controversy on this appeal is between appellant and appellee C. C. Rug-gles.

1. In the suit brought by appellant for the rescission of the contract, there was no tender of the machine, and, the evidence showing that fact, judgment was properly rendered against appellant on that issue.

2. In the suit by appellee Ruggles seeking to recover on the notes and foreclosure of his lien, the appellant answered by plea of want of total failure of consideration, in that the machine was of no value; that at the time of tile sale of said machine Ruggles delivered him a certain agreement and warranty, which was attached to and made a part of this answer. Appellant further answered that, in the event he was not entitled to a rescission of the contract, he recover damages. The warranty relied on and attached to the answer is as follows:

“It is further agreed that this automobile is purchased by me exclusively, subject to the terms and provision of the warranty hereinafter set forth, which is here made a part of the contract between us, and that it is the only guaranty and warranty, either express or implied, made under this contract or otherwise.
“Manufacturer’s Warranty: The manufacturer warrants all such parts as shall under normal use and service appear to it to have been defective in workmanship or material. If the circumstances do not permit that the work shall be executed in the factories or branch shops of the manufacturer, then this warranty is limited to shipment to the purchaser without charge, except for transportation of the part or parts intended to replace those acknowledged by the manufacturer to be defective. The manufacturer cannot, however, accept any responsibility in connection with any of its motor cars when they have been altered outside of its own factories or branch shops. It is further understood that the manufacturer makes no warranty whatever regarding pneumatic tires of speedometers. The manufacturer is not responsible to any purchaser of its goods for any undertakings and warranties made by dealers, subdealei’S selling its products beyond these herein expressed. The manufacturer makes no warranty of its goods except as stated herein, but desires and expects that customers shall make a thorough examination of its goods before purchasing. This warranty is dependent upon the strict observance of the following clause: The purchaser shall at the time of the purchase have registered his name, address and date of purchase and model of car with the Ford Motor Company at Detroit, Michigan, as the owner of the Ford automobile so purchased, in order to be protected under this warranty.”

Said warranty is the one given by the Ford Auto Company and is the one relied on by appellant.

The evidence fails to show that Ruggles signed any warranty 'or made any representations in regard to the machine, except as might be implied from the delivery of the above warranty. Ruggles was acting for himself in making the sale. 1-Ie did not represent the Ford Automobile Company, nor did he pretend to do so’. There was no evidence that appellant registered his name with the Ford Auto Company, at the time of purchase by him of said machine, in order to be protected under said warranty, as provided by tbe express terms of said warranty.

As the appellant relies on the express warranty as given, and there being no word uttered or act done- by Ruggles at the time of making the sale, from which an implied warranty can be found, and the appellant not having complied with the terms of the warranty given, he is not in a position to complain of the charges given or refused, and is not entitled to recover.

The judgment is therefore affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes