author: JENKINS, C. J.

text:
    MATHEWS et al. v. GLOBE-STAR REALTY CO.
    (No. 5326.)
    (Court of Civil Appeals of Texas. Austin.
    April 22, 1914.
    Rehearing Denied June 10, 1914.)
    1. Principal and Agent (§ 136) — Agent’s Liability — Disclosure oe Agency.
    Where defendant M. disclosed his agency for another in listing certain lands with plaintiff for exchange, M. could not be made liable for commissions for services performed by plaintiff in inducing an exchange.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. § 136.]
    2. Brokers (§ 58) — Exchange oe Property —Right to Commissions.
    Where the owner of certain land requested M. to obtain an exchange for land in another county, and M. without authority listed the land with plaintiff, a broker, for exchange, and plaintiff obtained an oral unenforceable agreement between the owner and another which the latter subsequently refused to caz-ry out, plaintiff could not recover commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 90; Dec. Dig. § 58.]
    Appeal' from Tom Green County Court; Oscar Frink, Judge.
    Action by A. F. Collett, doing business as the Globe-Star Realty Company, against W. B. Mathews and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    W. A. Anderson and Jas. P. Dumas, both of San Angelo, for appellants. Thomas & McCarty, of San Angelo, for appellee.

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

   JENKINS, C. J.

A. F. Collett, doing business under the name of Globe-Star Realty Company, brought suit against W. B. Mathews and E. E. Lawson to recover commissions on exchange of lands, and recovered judgment therefor.

The evidence shows that Lawson resided in Milam county, and owned a tract of land in that county. He wrote to his father-in-law Mathews, to see if he could make an exchange of his lands for lands in Tom Green county. Mathews went to appellee, gave him a description of the land and the price at which it was held, telling Mathews that the land belonged to Lawson, and that he wished to exchange it for Tom Green county land. Appellee introduced Mathews to B. H. Martens, and they agreed upon an exchange of lands, provided Martens’ wife was willing to the trade. Subsequently Martens reported that his wife was willing to make the trade. In the first conversation with Martens, Mathews told him that there was an indebtedness against the Milam county land, but that his son-in-law had told him that a bank there would take it up. The next day after Martens reported that his wife was willing to make the trade, Mathews went to Martens’ house and looked at the land, and at some personal property that he was to purchase in the trade, and told Mathews that the indebtedness on the Milam county land which fell due in a few months could not be extended; that he himself had tried to get an extension and had failed. Martens said if such was the case he did not wish to make the trade; and, in reply to a direct inquiry as to whether or not he would close the trade, said he would not

Appellants requested the court to peremptorily instruct the jury to return a verdict in their favor. This charge should have been given. In the first place, appellee’s petition showed that Mathews was acting as the agent for Lawson, and that he disclosed his agency at the time he listed the land with appellee. The uncontradicted evidence shows this to be a fact. Such being the case, appellee had no cause of action against Mathews. The evidence does not show that Mathews had any authority to list the land with an agent for sale, and agree to pay a commission. The evidence further shows that the alleged purchaser, Martens, refused to close the deal. The contract made with Martens was not in writing, and could not have been enforced at law. Therefore the appellee did not furnish a purchaser who was ready and willing to purchase the land.

These facts being undisputed, and the case being fully developed, the judgment of the trial court is reversed and here rendered in favor of appellants.

Reversed and rendered.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    BROWN v. WOFFORD.
    (No. 5375.)
    (Court of Civil Appeals of Texas. Austin.
    May 13, 1914.)
    Appeal and Error (§ 80*) — Decisions Reviewable — Finalty oe Judgment — Determination oe Cross-Action.
    Where defendant filed a plea in reconvention for more than the amount of plaintiff’s claim, a judgment for the plaintiff for the full amount of his claim, which did not mention the defendant’s cross-action, was not a final judgment from which an appeal would lie, since it did not dispose of all the issues in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494^509;- Dec. Dig. § 80.*]
    Appeal from Leon County Court; L. T. Dashiell, Judge.
    Action by T. H. Wolford against T. W. Brown. From a judgment for the plaintiff in the county court upon appeal from a justice court, the defendant appeals.
    Appeal dismissed.
    Wm. Watson and Joe H. Seale,- both of Centerville, for appellant. Jas. T. Ryan, of Centerville, for appellee.
   KEY, C. J.

T. H. Wofford brought this suit against T. W. Brown, seeking to recover a balance of $74.90, alleged to be owing upon a contract for the construction of a building. The defendant filed a plea in reconvention for more than $100. The court submitted to the jury both claims, the one asserted by the plaintiff against the defendant, and the other asserted by the defendant against the plaintiff, and the jury returned a verdict for the plaintiff for $74.90, but did not mention in the verdict the claim asserted by the defendant. Upon that verdict the court rendered a judgment for the plaintiff against the defendant and the sureties upon his appeal bond filed in the justice’s court for $74.-90, but which judgment in no wise disposes ■of or mentions the counterclaim asserted by the defendant and litigated before the court and jury.

The jurisdiction of this court is limited to cases in which a final judgment has been rendered in the trial court; and it is well settled that a judgment which does not dispose of all of the parties to the suit, and of all of the issues in litigation, is not a final judgment and will not support an appeal. See Bryant v. Moore, this day decided by this court, and the authorities therein referred to. Linn v. Arambould, 55 Tex. 611. As the judgment from which this appeal is prosecuted does not dispose of the cause of action asserted by the defendant, we feel compelled to hold that it is not a final judgment, and therefore this court is without jurisdiction to entertain the appeal. If it be conceded that the verdict of the jury, when considered in connection with the charge of the court, should be held to dispose of all of the issues, the fact remains that the judgment does not dispose of the issue presented by the cross-action.

Appeal dismissed.


author: JENKINS, J.

text:
    ANDERSON, EVANS & EVANS v. SMITH.
    (No. 5374.)
    (Court of Civil Appeals of Texas. Austin.
    May 20, 1914.)
    1. Justices of the Peace (§ 146) — Final Judgment — Appeal.
    Where a judgment of a justice’s court did not dispose of a plea in reeonvention, the county court had no jurisdiction on appeal.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 490-492; Dec. Dig. § 146.]
    2. Appeal and Eebob (§ 84) — Final Judgment — JUEISDICTION.
    Where a judgment of the county court on appeal from a judgment of a justice of the peace did not dispose of a plea in reconvention, 1 ! the judgment was not final, and the Court of Civil Appeals acquired no jurisdiction on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 528-547; Dec. Dig. § 84.]
    Appeal from Leon County Court; L. T. Dashiell, Judge.
    Action by Perry Smith against Anderson, Evans & Evans. From a judgment for plaintiff rendered by the county court on appeal from a justice’s judgment, defendants appeal.
    Dismissed.
    Joe H. Seale, of Centerville, for appellants. Wm. Watson, of Centerville, for appellee.

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

   JENKINS, J.

Appellee brought this suit in the justice’s court in Leon county against F. Y. Timmons for $107.82, claimed to be due partly for rent and partly for supplies furnished, and against Anderson, Evans & Evans for $140, alleged to be due by reason of the conversion of two bales of cotton, upon which he had a landlord’s lien. Timmons answered in the justice’s court, and, in addition to a general denial, alleged that appellee agreed to furnish teams, tools, and feed necessary to work his crop, and that he had failed to do so, to defendant’s damage $75; also, that appellee agreed to furnish two milk cows, and that he had failed to do so, to defendant’s damage $25; also, that appellee had damaged his crop to the amount of $30 by allowing his stock to run in the field.

We quote from the judgment in the justice’s court as follows:

“It is therefore ordered, adjudged, and decreed by the court that the plaintiff, P. I. Smith, do have and recover of the defendant F. Y. Timmons the sum of' $177.82, together with interest at the rate of 6 per cent, per annum from the 1st of November, 1909, and all costs of suit in this behalf expended, for which let execution issue. * * * It further appearing to the court that said defendants J. E. Anderson, Ed. L. Evans, and R. H. Evans, composing the firm of Anderson, Evans & Evans, * * * have illegally converted to their own use two bales of lint cotton, of the value of $140, grown by the defendant Timmons, or by some person under him on the premises rented by him from plaintiff during the year 1909. It is therefore ordered, adjudged, and decreed by the court that plaintiff, P. I. Smith, do have and recover of the defendants Anderson, Evans & Evans the sum of $140, together with interest at the rate of 6 per cent, per annum from the 1st day of November, A. D. 1909, and that plaintiff do have and recover of and from the defendants F. Y. Timmons and Anderson, Evans & Evans all costs in this behalf expended, and that execution issue.”

We quote from the judgment in the county court as fóllows:

“It is therefore ordered, adjudged, and decreed by the court that the said plaintiff, Perry Smith, do have and recover of the defendant F. Y. Timmons the sum of $75.32, and from the defendants J. E. Anderson, Ed. L. Evans, and R. H. Evans, composing the firm of Anderson, Evans & Evans, the sum of $54.82, in case the said F. Y. Timmons fails and refuses to pay off and satisfy the judgment herein rendered against him; and that said Anderson, Evans & Evans do have and recover of the said P. Y. Timmons the said sum of $54.82 and all costs of suit in this .behalf expended, for which let execution issue; and that said Perry Smith do also have and recover of the said P. Y. Timmons interest at the rate of 6 per cent, per annum from the 21st day of ■April, 1910, on the said $75.32, and from the said Anderson, Evans & Evans interest on the said sum of $54.82 at 6 per cent, per annum from the 21st day of April, 1910.”

Judgment was also rendered against each, of said parties as principal and against their sureties on the appeal bond for the sum of $75.32.

It will be seen from the above that neither the judgment in the justice’s court nor the judgment in the county court disposed of the defendant Timmon’s plea in re-convention, for which reason the county court had no jurisdiction to try this cau'se. And for the further reason that, there being no final judgment in the county court, this court is without jurisdiction to render judgment on this appeal; therefore the appeal herein is dismissed. See Bryant v. Moore and Brown v. Wofford, 167 S. W. 764, decided at the present term of this court, and not yet reported.

Appeal dismissed.


author: RAINEY, C. J.

text:
    TEXAS FURNITURE CO. v. MEYERS.
    (No. 7158.)
    (Court of Civil Appeals of Texas. Dallas.
    May 23, 1914.
    Rehearing Denied June 13, 1914.)
    1. Libel and Slander (§ .80) — Petition— Sufficiency.
    A petition which clearly sets forth the import of a libelous communication, and contained innuendoes explaining wherein the language used was libelous, and calculated to affect plaintiff’s character and reputation for honesty, and averred that it was falsely and maliciously made, and that plaintiff was damaged, is sufficient ; the statutes not requiring a different rule in an action for libel from other cases.
    [Ed. Note. — Por other cases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. § 80.]
    2. Libel and Slander (§ 16) — What Constitutes — Words Libelous Per Se — “Libel.”
    A letter to plaintiff’s employer charging that plaintiff had assigned his wages to the writer when shown by innuendo to be one which would affect plaintiff’s financial reputation, and subject him to contempt and ridicule, is libelous per se under Rev. St. 1911, art. 5595, declaring that a libel is a defamation expressed in writing tending to injure the reputation- of one who is alive, and to expose him to public hatred, ridicule, or financial injury.
    [Ed. Note. — Por other cases, see Libel and Slander, Cent. Dig. §§ 1-9; Dec. Dig. § 16.

    Por other definitions, see Words and Phrases, vol. 5, pp. 4116-4125.]
    Appeal from District Court, Dallas County; R. C. Roberts, Judge.
    Action by P. A. Meyers against the Texas Purniture Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    L. L. Albright, Pirmin & Yeargin, and J. ■J. Eckford, all of Dallas, for appellant. Car-den, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.

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

   RAINEY, C. J.

This is a libel suit, wherein appellee, Meyers, sued the appellant furniture company, for damages for sending to his employer, Sears-Roebuck Company, a libelous letter concerning appellee. A trial was had, and judgment was rendered for ap-pellee, from which the furniture company appeals.

The appellant assigns as error the action of the court in overruling its general demurrer to plaintiffs petition.

The proposition urged is that:

“Unless the alleged libelous publication is set forth in haec verba, or purports to be so set forth, in the petition, the allegation is merely an assertion of the legal effect of the publication as viewed by the pleader, and is subject to general demurrer, nor will words of innuendo add to the strength of the allegation, unless purporting to quote the alleged libelous matter in base verba.”

The petition alleges:

“That on or about said date the defendant, acting by and through its duly authorized agent who was then and there acting within the scope of his employment for the defendant, wrote, published, and caused to be delivered to said Sears-Roebuck Company a statement in writing wherein the defendant, so acting, 'alleged and stated that the defendant had had an assignment of wages on him, the plaintiff, to the amount of $15.35, providing for attorney’s fee of $10.”

The letter containing the libelous matter is as follows:

“Dallas, Texas.
“Sears-Roebuck & Co., Dallas, Texas — Gentlemen: We wish to call your attention to the fact that you have a man in your employ by the name of P. A. Meyers, on whom we hold an assignment of wages to the extent of $15.35, and providing attorney’s fees of $10.00. We realize the fact that to file on employes is a nuisance to the employer, and we wish to avoid the necessity of this by requesting you to call said Meyers’ attention to this matter, that he may give it the proper attention at once.
“Respectfully, Texas Purniture Co.,
“By T. M. Leslie.”

The substance of the libelous matter stated in the letter is that appellant held an assignment of appellee’s wages to the extent of $15.35, and providing attorney’s fees of $10. The petition, while not copying said language in hose verba, clearly sets forth the import of said language, so it actually carries the same meaning as the exact words in the letter convey. The petition also makes certain innu-endoes explaining wherein the language used is libelous and calculated to affect plaintiff’s character and reputation for honesty, etc.; that it was falsely and maliciously made and shows wherein plaintiff was damaged. The. petition states, clearly and unequivocally, of how appellee was libeled, by which the defendant was fully informed of what plaintiff was seeking damages, and from which the court could determine whether the words used were actionable. The rules of pleading in our state do not require a different rule in action for libel from other eases; but the pleader — ■

“must allege such facts as show his right, and the defendant’s violation of that right, and the injury, resulting either as a presumption of law or in fact.” Towne’s Pleading (2d Ed.) p. 561.

In the case of Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768, a suit for libel, and where a general demurrer was sustained for want of a clear and succinct statement of the libelous language used, the court said:

“Our rules of pleading require that the petition shall set forth ‘a full and clear statement of the cause of action, and such other allegations pertinent to the cause as the plaintiff may deem necessary to sustain his suit,’ etc. It has been many times decided by our courts that the common-law distinctions as to pleading and its technicalities do not prevail with us, but that a clear and logical statement of the cause of action is all that is necessary. A clear statement of the facts constituting the cause of action cannot, however, be dispensed with. The character of the suit must be the guide to the pleader, and enough must be stated to constitute a cause of action. In a suit on a note it will be sufficient to state the substance and legal effect of the note; not so in a suit for libel. A libel suit is based on language or its equivalent.”

The Bradstreet Case, supra, is cited by appellant to sustain its proposition that the libelous language should be set out hsec verba. The court say in that case that:

“This is not a case where the pleader must from the nature of the publication resort to a verbal description of the slanderous matter, as it would be when movements, postures, or pictures are used. Plaintiff could have stated his cause of action as it was in clear terms. He has not done so. It is not sufficient in this kind of a suit to state the substance of the language used or its meaning. We believe the general demurrer ought to have been sustained.”

Prom what the court had theretofore said, we do not understand that the court meant in every libel suit it was absolutely necessary to set out in the petition in hsec verba the exact language upon which a cause of action is based to make it proof against a general demurrer, but only to show the necessity of making a clear and full statement that will show a cause of action. While it would be better that the pleader make a clear statement of his cause of action and obviate the risk of a wrong conception of what was intended to be said by using the exact language relied on as libelous.

In the instant case .there is no room for misconception. The allegations so nearly copy the language verbatim that there can be no mistake as to what the libelous words used are or their meaning.

We think there was no error committed in overruling the demurrer.

It is further urged that:

“The language used was not libelous per se, and said words therein contained were not libelous per se, nor were the same alleged by apt and proper counts or allegations or innuendo to have been libelous in any form.”

The petition alleges such language, with such innuendoes as would affect appellee’s reputation financially, subject him to contempt and ridicule, and cause him financial injury. R. S. 1911, art. 5595. Such contention is not concurred in by this court.

The evidence, which is practically undisputed, is sufficient to show damage to appel-lee.

The jury have passed upon the amount, and we do not feel authorized to disturb it.

The judgment is affirmed.


author: HUEP, O. X

text:
    WICHITA VALLEY RY. CO. v. BOGER.
    (No. 621.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1914.
    Rehearing Denied June 6, 1914.)
    1. Carriers (§ 218) — Transportation op Live Stock — Actions—Notice of Claim.
    A provision in a bill of lading for live stock, requiring notice to the carrier as a condition precedent to any right of action for damages for loss or injury, delay in transportation, or decline in the market, did not apply to damages to the stock while in the shipping pen due to the carrier’s failure to ship them at once as agreed; this cause'of action having accrued and' been complete before the bill of lading was executed, and there being no consideration for the provision as to it.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    2. CARRIERS (§ 218) — Transportation of Live Stock — Actions—Notice of Claim.
    A provision in a bill of lading for a shipment of live stock, requiring notice to the carrier as a condition precedent to any action for damages, was sufficiently complied with by commencing an action and serving the citation on the carrier 13 days after the damages accrued, though the bill of lading further provided that the commencement of suit should not be a compliance therewith, and that the purpose of such provision was to enable the carrier to investigate and settle claims before suit was instituted, since the carrier had ample time to preserve its testimony and ascertain whether or not it was liable for the damages claimed, especially as there was no provision requiring any delay after serving the notice before commencing the suit.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by M. W. Boger against the Wichita Valley Railway Company and another. Erom a judgment for plaintiff against the defendant named, it appeals.
    Affirmed.
    Thompson & Barwise, of Et. Worth, and Taylor & Humphrey, of Henrietta, for appellant. Wantland & Parrish, of Henrietta, for appellee.

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

   HUEP, O. X

This suit originated in the justice court of Olay county, and from that court appealed to the county court of Clay ■county, and appealed to this court from a judgment in the county court for the sum of $177.25 against appellant and in favor of the appellee, Boger, which judgment was rendered in favor of the Et. Worth & Denver City Railway, to the effect that Boger take nothing as to said railway company.

The cause of action, as stated on the justice docket or memorandum thereof, is as follows:

“The Wichita Valley Railway Company and Et. Worth & Denver City Railway Company, debtor to M. W. Boger, Henrietta, Tex. Failure to ship properly and negligent delays, rough and wrongful handling of two cars of cattle shipped from Anson, in Jones county, Tex., over the Wichita Valley Railroad Company to Wichita Falls, and thence over the Et. Worth & Denver City Railway Company to Jolly, in Clay county, Tex. Said cattle should have been shipped on Saturday, December 28th, at 4 o’clock, hut were not in fact shipped until Monday, December 80th, in the year 1012, and did not arrive at destination until Wednesday, the 1st day of January, 1913, to plaintiff’s damage and injury in the sum of 82 per head on 86 head of cattle, aggregating $172; to extra feed by reason of delay to said cattle, $8.40; to extra expense and labor hire $8.25; to overcharge on feed, $5.25 — total, $193.85.”

The appellant answered by exceptions and general answer, and. specially, among other things, it alleges that the appellee and appellants entered into a contract for the carriage of the above shipment, containing, among other provisions, the following:

“It is further agreed that as a condition precedent to any right of action for damages for loss or injury to said stock or for delay in transporting the same, or decline in market, the said shipper will give notice in writing to the carrier, setting out in detail a full statement of the losses, injuries, delays and decline in market for which the damages are claimed and the amount thereof, within 120 days after same shall have been occasioned, which notice shall be given to some traffic officer, station agent or other convenient local agent of the carrier and the filing of suit for such damages shall not be a compliance with this requirement, the purpose of requiring this notice is to enable 'the carrier to investigate and settle such claims before suit is instituted and no action for any such damages shall be brought or maintained unless the notice in writing mentioned in this paragraph be given within said 120 days. No one except the general freight agent or auditor of said carrier has authority to waive such notice, and then only in writing.”

It is further alleged that the appellee was bound by the terms pf said contract of shipment, and agreed thereto, and that he never gave either'of said railroads notice in writing, as above provided, before or after the institution of this suit, and that in direct violation of said agreement the plaintiff caused suit to be instituted against these defendants without giving said notice as agreed to by and between defendants and plaintiff. It further alleged that the stipulation was reasonable, and that the defendants had many agents to whom notice could have been readily given, and that the plaintiff was well acquainted with the facts relative thereto, and that the 120 days has expired since the damages alleged to have been occasioned, and at the present time that no notice has been given.

In addition to the transcript, by agreement, the parties send up a copy of the citation, together with the sheriff’s return thereon, which copy sets out the claim of the ap-pellee as above set out. The citation appears to have been issued on the 14th day of January, 1913, and was placed in the hands of the constable of precinct No. 1, Wichita county, Tex., which was served on the appellant, Wichita Valley Railway Company, by delivering to its agent, W. A. Bundy, in person, a true copy of the citation on the 15th day of January, 1913. 'Dike service was made on the Et. Worth & Denver City on the same day by constable of precinct No. 1, Clay county.

The facts in this case warranted the court in finding that the cattle were shipped as stated by the appellee in his filed statement, and that the appellant was negligent in the handling of the cattle as therein stated, and that the appellee had been damaged in the amount found by the court. The facts are uncontro-verted that Boger gave neither road, the appellant, nor the Et. Worth & Denver, notice of the claim, as stipulated for in the provision of.the contract above set out, further than was contained in the citation served on them by the respective constables of Clay county and Wichita county. The appellee admits that he gave no notice, and testified the reason he did not do so, he knew that it would be useless, and would amount to nothing. The facts are sufficient to show that the notice was a reasonable one, and could have been given within the time prescribed by the contract. The facts further show that the contract, as evidenced by the bill of lading, had the provision in it as set out in appellant’s answer. The testimony of Mr. Boger is to the effect that he delivered 86 head of cattle in the pens of appellant at Anson, on the 28th day of December, and that they were not shipped out until December 30th, and that he had been induced to place 'them in the shipping pens at that time upon an agreement of the station agent that they would be shipped at once. The testimony is to the effect that the delay occasioned by a failure to load and ship the cattle out at the time specified damaged the cattle $1 per head.

The only assignment presented is the first assignment:

“The court erred in rendering judgment for plaintiff and against defendant, for the reason that plaintiff had not given notice of the claim as provided in the shipping contract and pleaded by said contract, and had filed the suit against defendant without first complying with said shipping contract with reference to giving notice of said claim within 120 days after the alleged injury occurred.”

Before noticing this assignment we desire to say that we do not think the provision of the contract would preclude the appellee from recovering the damage occasioned his cattle while in the shipping pens awaiting a train to carry them out, for the reason that the cause of action to recover such damage had accrued and was complete before the written contract for the transportation of the cattle was executed, and that there was no consideration for the provision in the writing, affecting that cause of action. Boger, therefore, in any evént, would be entitled to recover $1 per head, the amount of damages shown to the cattle while in the pen. Ry. Co. v. Evans-Snyder, 100 Tex. 190, 97 S. W. 466; Ry. Co. v. Crews (Tex. Civ. App.) 139 S. W. 1049.

As to damages occasioned the cattle in transportation by reason of delay, appellee, Boger, under the contract, was required to give notice. Our Supreme Court has held that the filing of the suit within the time limit provided for was sufficient notice. Phillips v. Western Union Tel. Co., 95 Tex. 638, 69 S. W. 63; Ry. Co. v. Davis, 50 Tex. Civ. App. 74, 109 S. W. 422; Railway Co. v. Hawley (Tex. Civ. App.) 123 S. W. 726-731.

It is urged by appellant in this case that the contract provided that the filing of a suit for such damages shall not be a compliance with the requirement. The mere filing of a suit, perhaps, would not be notice, but certainly the service of citation on the appellant, together with the statement of damages claimed, would be sufficient to give notice of the claim of appellee. This notice by citation was in writing, and served and given to appellant within the 120 days. The damages having been sustained by appellee by reason of the shipment and the handling of the cattle as above set out, and the notice having been given within the time, the appel-lee’s cause of action was complete under the contract.

It is further urged by appellant that the provision in the contract stated that the notice was required in order to enable the carrier to investigate and settle such claims before suit was instituted. It will be noted by this provision of the contract that no time was stipulated from or after such notice in which appellant would have to investigate and settle the claim. The suit under that provision, after notice, could have been instituted instantly. The appellee could have given the notice within the 120 days at the last moment before the expiration of the time, and immediately thereafter brought suit. The terms of the provision itself indicate that the purpose of the notice was not to give appellant time to investigate and settle the claim before suit. If such had been its purpose, certainly a provision would have been inserted giving appellant time after ' such notice to investigate and settle the claim. We think the object of this provision has been amply met by the institution of the suit within 13 days after the alleged injury. Appellant had ample time to preserve its testimony and ascertain whether or not it was liable for such damages. This appears to be the reason most often given for supporting contracts of this kind, and the recitation of the contract in this case that appellant should have time to investigate, etc., clearly indicates that such was not the purpose, for the reason that appellant did not stipulate for any time after the notice in which to satisfy itself as to its liability.

We have concluded, under the decisions of the courts of this state, that the notice given was sufficient. There are matters which are suggested in this case, which have not been briefed, which we do not feel warranted in discussing at this time, and have concluded that the case should be affirmed.

The judgment of the lower court will be affirmed.


author: HALL, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. LONG.
    (No. 617.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 16, 1914.
    Rehearing Denied June 6, 1914.)
    1. Carriers (§ 83) — Bills of Lading.
    Under the Texas statute requiring a railroad company to deliver up the possession of goods to the owner or consignee upon payment of the freight charges, as shown by the bill of lading, etc., a railroad company has no right to impose, as a condition to the delivery, the surrender of the bill of lading, but can only require the production of the bill of lading for inspection.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. § 83.]
    2. Carriers (§ 94) — Transportation of Goods — Failure to Deliver — Measure op Damages.
    In an action by a consignee against a carrier for conversion of a car of apples in refusing to deliver them on the production of the bill of lading, the measure of damages was the interest on the value of the property during the time of its retention and any amount that the property depreciated in value while it was withheld.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dee. Dig. § 94.]
    Appeal from Cooke County Court; R. V. Bell, Judge.
    Action by Smith Long against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. C. Huff and A. H. McKnight, - both of Dallas, and Garnett & Garnett, of' Gaines-ville, for appellant. Stuart, Bell & Moore, of Gainesville, and H. L. Stuart, of Oklahoma City, Olsl., for appellee.

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

   HALL, J.

Appellee contracted for a car of apples, to be shipped from Rockport, Mo., by way of appellant’s line, to Greenville, Tex., with “shipper’s order bill of lading” attached to the draft. Appellee resided at Gainesville, Tex., and after he had paid the draft, and had taken up the hill of lading, was notified by the agent of appellant at Gainesville that the car of apples had come to Gainesville instead of going to Greenville, Tex. Appellee then showed the agent of appellant at Gainesville the paid draft, saying at the same time that he had sent the bill of lading to his agent at Greenville. Thereupon, according to the allegations of appel-lee, in order to obtain relief from the situation, he made a verbal contract with O. B. Smith, appellant’s agent at Gainesville,- in substance as follows: Appellant agreed to ship the car to Denton for appellee and agreed to notify by wire the agent of appellant at Denton that the said Smith had the bill of lading and for the agent at Denton to deliver the car to appellee upon his paying the freight charges. Appellee agreed to have the Bill of lading returned to the agent at Gainesville, which was done later. O. I. Long, the son and agent of appellee, in charge of his business at Denton, notified the cashier of the appellant at Denton of the agreement between his father and the agent at Gainesville, and appellant’s cashier at Denton consented to the arrangement. It appears that thereafter, on the 12th day of October, when appellee’s draymen came to unload the apples and tender the freight, the cashier declined to deliver the apples and said he would not turn over the car until the bill of lading was produced, “even if it was in New York City.” Subsequently the apples were sold by appellant for the payment of freight and other charges, and appellee filed this suit for conversion of the apples and for breach of the contract of delivery. We adopt the findings of fact filed by the trial court, which are in part as follows:

“I find that on October 4, 1911, H. R. Kurth, at Rockport, Mo., sold and shipped a car load of apples, consigned to shipper’s order notify Smith Long, destination Greenville, Tex., via Kansas City and M., K. & T. Ry.; that Kurth made draft on plaintiff for the purchase price of the apples and attached the same to the bill of lading, mailing both to a bank in Gainesville, Tex.; that by mistake the station agent for the R. L. & N. Ry. Co. at Rockport issued a waybill accompanying said shipment and inserted Gainesville as the destination of said car instead of Greenville. I find that said draft upon plaintiff reached the bank in Gaines-ville before the arrival of the car of apples and was promptly paid by plaintiff, who took up the bill of lading; that, before the arrival of the car in Gainesville, he supposed, as shown in the bill of lading, the apples had gone to Greenville, and thereupon, by his indorsement upon said bill of lading, directed the delivery of said car at Greenville to his agent there, R. S. Mays, and mailed said agent the bill of lading before the arrival of the car at Gaines-ville ; that upon the 9th or 10th of October, after plaintiff had examined the apples in the car at Gainesville, he agreed with the agent of appellant at Gainesville that said agent would divert the car from Gainesville to Den-ton, and, upon production of the paid draft, appellant’s said agent, Smith, agreed to notify the agent of defendant at Denton that he (Smith) held the shipper’s order bill of lading so that plaintiff could get possession of the car immediately upon its arrival at Denton. It was further agreed that plaintiff would have said hill of lading returned to himself from Greenville and would then turn it over to the said Smith at Gainesville; that, in pursuance of this arrangement, the said Smith did divert the car from Gainesville to Denton, and that, on the evening of October 11th, C. I. Long, plaintiff’s agent at Denton, called upon defendant’s" cashier at that point, and told him of the arrangement plaintiff had made with defendant’s agent at Gainesville, and requested said' cashier to deliver said car upon its arrival to one A. P. Osborne, an agent of plaintiff in Denton, who would pay the freight charges and was authorized to accept the' ear for plaintiff, and that said cashier consented to the arrangement; that on the next morning, when the drayman, as agent for plaintiff, called upon defendant’s agent at Denton for the car of apples, at the same time proposing to pay all the freight charges against the car, he was ■ asked for the shipper’s order bill of lading, and having informed the cashier that he did not have it, that it was in Greenville, the cashier refused to deliver the apples.”

There was a judgment for $413 damages after deducting freight and other charges. The court concluded that appellant was guilty of conversion, and that -when the bill of lading, with draft attached, had been taken up, it had served its purpose.

We shall not consider appellant’s assignments of error in detail, but it is contended, first, that appellant-had the lawful right to instruct its station agents not to deliver freight covered by a shipper’s order bill of lading, without production of such bill of lading. The evidence in this case shows that, prior to the transaction out of which this suit has grown, appellant had by circular letter ’ instructed its agents not to deliver freight covered by shipper’s order bill of lading without obtaining possession of the original bill of lading. We are cited to Hutchinson on Carriers, § 130, and Elliott on Railroads, § 1427, sustaining appellant’s contention that such a regulation is a reasonable one. The rule in this state, however, is settled that the carrier has no right to demand the surrender of a bill of lading, but that its right ends by requiring the production of it for inspection. It is said by the Supreme Court in Dwyer v. G., C. & S. F. Ry. Co., 69 Tex. 707, 7 S. W. 504:

“The question to be determined is: Can a railroad company in this state lawfully refuse to deliver goods in its possession to the owner or consignee upon tender of the freight charges as shown by bill of lading, where the goods have been hauled over connecting roads, and the charges shown by the waybill are greater than those on the bill of lading, unless it be surrendered to the carrier? Section 1 of an act of the Legislature provides that it shall be unlawful for any railroad company to collect, or attempt to collect, from the owner or consignee of any goods, wares, or merchandise, a greater sum for transporting' the same than is specified in the bill of lading. Section 2 declares that any railroad company, having possession of goods, wares, or merchandise, shall deliver the same to the owner or consignee upon payment of freight charges, as shown by bill of lading,”

In this case it appears that Dwyer tendered the freight, as shown hy the hill of lading, and demanded that the freight be delivered to him. Appellee refused to deliver unless the appellant would surrender the hill of lading itself, basing the refusal upon the fact that, since the freight charges, as shown hy the bill of lading, were less than that shown by the waybill, the possession of the bill of lading was necessary in order to mate settlement with the connecting carrier. In passing upon this contention, the court said:

“But we do not believe that it follows that the bill of lading should be surrendered from the fact that it is required to be presented in order to obtain possession of the goods. It is claimed that, after possession of the goods has been delivered to the owner as consigned, the bill of lading becomes the property of the carrier and that the carrier is entitled to possession of it. Upon like reason, as is claimed, the maker of a note upon payment is entitled to possession as against the payee. The instances are not analogous, for, after the note is paid, it is entirely useless to the payee, and this may be the reason for the universal custom of surrendering the note instead of executing a receipt for its payment; but, as before suggested, the bill of lading may be of use to the consignee or owner of the goods after delivery has been made. It must be conceded that the bill of lading was at one time the property of the owner of the goods, and it is not perceived how the delivery of them could destroy his right in this property without his consent. If the right to the bill of lading, which is both a receipt and a contract in writing, passed to the carrier upon the delivery of the goods, there would be no need to invoke the law of custom; if it did not, it follows that the owner could not be deprived of it without his consent, and it is, we think, unreasonable that a custom should require the surrender of a valuable right in order to obtain possession of property that the law, without condition or qualification, requires should be delivered.”

We find, this authority has been followed several times in this state, and upon it, we think, turns the rights of the parties. Appellant’s agent knew Long was the consignee of the car in question, and must be held to have known that production, by him, of the draft marked “paid” carried with it possession of the bill of lading. The agreement of Smith, the agent, with plaintiff, to divert the car from Greenville to Denton, and his promise to wire the agent at Denton to deliver the car, and that he had the bill of lading, constituted a constructive delivery, even if it could be held that the manual delivery of the bill of lading was necessary.

The greater part of appellant’s brief is predicated upon the proposition that the agent, Smith, at Gainesville, had no right to bind appellant’s agent at Denton, to deliver the apples without surrender of the bill of lading. As an abstract proposition of law, this is correct, but it has no application to the facts of this ease. Appellee’s son had explained the situation of affairs to the agent at Denton, who had agreed that the car would be delivered. While it does not seem to have been stressed, either upon the trial [ or in the briefs of either party, the error of [ the initial carrier in naming the wrong destination in the waybill was the beginning of the trouble, and, under the Carmack Amendment to the Hepburn Act, appellant was liable for the damages resulting by reason of such negligence, if any. We find no fault with the findings and conclusions of the trial court and overrule appellant’s assignments of error attacking them/

By its last assignment, appellant insists than an incorrect measure of damages was applied to the facts by the trial court. Reference to the record shows that the court has adopted the measure applied in the similar case of Field v. Munster, 11 Tex. Civ. App. 841, 32 S. W. 417, which we think is correct.

It is our opinion that a proper judgment has been rendered, and, finding no reversible error, it is affirmed.


author: TALBOT, J. BOOKHOUT, J. TALBOT, J.

text:
    AMERICAN BONDING CO. OF BALTIMORE v. LOGAN.
    (No. 6488.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1911.
    Dissenting Opinion, Dec. 30, 1911.
    On Motion for Rehearing, June 6, 1914.)
    1. Homestead (§ 146) — Right of Heibs— Exemption.
    Under Sayles’ Ann. Civ. St. 1897, arts. 1869, 2055, 2060, 2061, providing that, on the death of a person intestate, his estate shall vest immediately in his heirs, that on the insolvency of the estate on final settlement, title of the widow and children to their exemptions shall be absolute, that the homestead shall not be liable for the payment of debts, and that it shall be exempt from forced sale for the payment of such debts, the subsequent sale of the homestead by the members of the family residing thereon and entitled thereto does not render the amount received by them from such sale liable for the debts of an insolvent decedent, and the amount received from such sale by an unmarried daughter cannot be set off by the surety upon a bond given by the decedent as guardian of the daughter, against its liability for sums received by the guardian, but not accounted for.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. § 146.]
    2. Homestead (§ 150) — Rights oe Heibs— Necessity fob Allotment.
    Where the homestead is clearly defined so that its identity can be determined, the actual setting apart of the homestead of an insolvent decedent by the probate court under Sayles’ Ann. Civ. St. 1897, art. 2046, is not essential to the vesting of the title thereto in the heirs.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 294-305; Dec. Dig. § 150.]
    Bookhout, J., dissenting.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Jessie Logan against the American Bonding Company of Baltimore. Judgment for the plaintiff, and defendant appeals.
    Affirmed, and motion for rehearing overruled.
    For opinion of Supreme Court answering certified question, see 166 S. W. 1132.

      Meador, Davis & Senter, of Dallas, for appellant. Wood & Wood, of Dallas, for ap-pellee.

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

   TALBOT, J.

This suit was instituted by Jessie Logan, a feme sole, on June 3, 1910, against the American Bonding Company of Baltimore, to recover the sum of $1,000, with interest and costs of suit. The basis of the suit is that the said company was surety on the bond of W. J. Logan, as guardian of the plaintiff, Jessie Logan; that after the execution of said bond, the said guardian,,as such, collected the sum of $1,000 belonging to his ward, Jessie Logan, and died May 3, 1908, without having turned over said sum to her, and without having accounted to her in any way for the same or any part thereof; that by reason of the premises the said surety, American Bonding Comparjy, became liable to plaintiff for said sum of money, with interest. The defendant pleaded a general denial, and specially that W. J. Logan, plaintiff’s father and guardian, owned and occupied certain real estate situated in the city of Dallas, as a homestead; that after his death, and under and by agreement of his surviving widow and children, said property was sold, and from the sale of the same the plaintiff, Jessie Logan, received December 1, 1909, sums of money aggregating $2,124.50; that defendant being surety on the bond of W. J. Logan,, as guardian of Jessie Logan, and, W. J. Logan being dead, it was entitled to an offset against its liability on said bond to the extent of the amount received by Jessie Logan, from the estate of her guardian. The prayer of the answer was that, in the event the court should conclude plaintiff was entitled to judgment against defendant for any amount, such amount be credited with whatever amount plaintiff received from the estate of her said father and guardian. The case was tried by the court without the intervention of a jury on the following agreed statement of facts:

“W. J. Logan was, during the year 1900, and for many years prior thereto, a married man, and resided in Dallas county, Tex., and in the city of Dallas. Said W. J. Logan died in the city of Dallas on May 3, A. D. 1908. He was married twice. His first wife died during the first part of the year 1900 in the city of Dallas. He had two children only by his first wife, to wit, Jessie Logan, the plaintiff in this suit, and John Logan, a male. At the time the wife died, Jessie, a girl, was about 15 years old, and John was about 13 years old. At the time of the death of the said mother of Jessie and John Logan, she left to her two said children two insurance policies on her life,- each for the sum of $1,000. Each of these policies was payable jointly to the said children. After the death of the mother of Jessie and John, their father, W. J. Logan, was shortly thereafter, and during the year 1900, on his application, appointed guardian of the estate of said two children by the county probate court of Dallas county, Tex., and on the 13th day of November, A. D. 1900, took the requisite guardian’s oath, and entered into bond, as required by law, with the defendant, the American Bonding Company of Baltimore, a corporation, as surety; said bond was made payable to the county judge of Dallas county, was in the sum of $4,000, and was conditioned as required by law in such cases, and duly and legally approved by the then acting county judge of Dallas county, and filed with the clerk of said probate court. The said W. J. Logan continued as the guardian of the estate of Jessie and John until the death of said'W. J. Logan, which was on May 3, 1908. On the 12th day of December, A. D. 1900, W. J. Logan, as guardian of said children, collected one of the said insurance policies, which was $1,000. On the 7th of February, A. D. 1901, said W. J. Logan collected the other policy, which was $1,000. One-half of the $2,000 collected on the policies belonged to Jessie Logan. The said W. J. Logan never at any time accounted to. the pi'obate court, or to Jessie Logan, for said $1,000 belonging to her, or any part thereof. The guardianship was pending and unsettled at the time of the death of said W. ,J. Logan on May 3, A. D. Í908. The said W. J. Logan by the exercise of the proper care could have loaned said $1,000 and kept it loaned at the rate of 8 per cent, per annum from January 1, A. D. 1902, until his death. The said Jessie Logan arrived at the age of 21 years during the latter part of the year 1906. She has never been married. The said Jessie Logan never received said $1,000, or any part thereof, from her father, unless it be as hereinafter stated. The said W. J. Logan married the second time during the year 1905; his second wife, Mrs. Jennie Logan, is still living. The said W. J. Logan and his said second wife, during their marriage, adopted, according to the statutes of Texas, as a legal heir, one Dorothy Logan, a girl who was a minor at the time she was so adopted, and who is now a minor. At the time of the death of said W. J. Lopm, his family consisted of himself, his said wife, Jennie, his daughter, Jessie, an unmarried daughter, John Logan, a boy, and Dorothy Logan, the adopted daughter. Soon after the death of W. J. Logan, and during the year 1908, R. H. Lee was, by the county probate court of Dallas county, Tex., appointed administrator of the estate of said W. J. Logan, and he thereafter within due time qualified and gave bond as such administrator. The said W. J. Logan owed debts at the time of his death, and his estate was insolvent, and so adjudged by the probate court, and so recognized throughout the administration proceedings, but the value of the homestead exceeded the debts of the said W. J. Logan. The said W. J. Logan never after the said Jessie Logan arrived at the age of 21 years filed any account for final settlement of the guardianship matter, nor was the guardianship ever closed or settled during the lifetime of said W. J. Logan. No part of the $1,000 collected by the said W. J. Logan for plaintiff ever, came into the possession of the said R. H-. Lee, as administrator of the estate of W. J. Logan. The only property that came into the possession of R. H. Lee, as administrator of the estate of W. J. Logan, was the homestead of W. J. Logan, and his family, and which was occupied by said W. J. Logan and his said family at the time of his death, and which has been occupied by his said family since the time of the death of the said W. J. Logan up to the time it was sold. The same is situated in the city of Dallas, and consists of adjoining lots, and was the resident homestead of said W. J. Logan and family at the time of his death. It was recognized by said administrator and by said probate court as the homestead of the family of W. J. Logan, and exempt from the payment of the debts of said W. J. Logan, because of its homestead character, except as to taxes; but it is not agreed that the interest that plaintiff, Jessie Logan, had in said homestead by inheritance from her father, W. J. Logan, or the proceeds that she received from a sale of said homestead, cannot be set off against the claim sued on in this case; that is a question of law we refer to the court for settlement. The said homestead was sold in December, 1909, for the sum of $10,500, and it was in fact worth that sum when sold, and was worth about $8,000 when W. J. Logan died; the administrator, Mrs. Jennie Logan, Mrs. Jennie Logan as guardian for Dorothy Logan, a minor, John Logan, and Jessie Logan joining in the deed of conveyance. The said Jessie Logan received about $2,100 in December, 1909, of the purchase money. Upon this state of facts the court concluded that the plaintiff, Jessie Logan, was entitled to recover of the defendant the sum of $1,000, with interest thereon at the rate of 10 per cent, per an-num from the 1st day of January, A. D. 1902, until the 3d day of May, 190S, and 6 per cent, per annum from May 3, 1908; that plaintiff received out of the proceeds of the sale of the homestead in December, 1909, $2,100, but that the same was not a lawful offset against the amount plaintiff was entitled to recover, because the estate of W. J. Logan at the time of his death was insolvent, and plaintiff, being an unmarried daughter and constituent member of the family, residing on said homestead up to the date of the sale of tne same, took the amount received by her free from the debts of her father.”'

The correctness of the court’s conclusion of law is challenged by the appellant’s assignments of error, and the principal propositions urged in opposition thereto are, in effect:

“(1) Where it appears, under an agreed statement of facts, that the plaintiff, a surviving daughter and a former ward of a deceased guardian, received the sum of $2,100 from the estate of said deceased guardian and father, and said ward sues the surety of said deceased guardian and father, and obtains judgment for the sum of $1,808 against said surety, the surety is entitled to set off said $1,808 by the $2,-100 received from the estate of her deceased father and guardian. (2) An adult unmarried daughter, with other members of the family of a deceased guardian, said guardian being the father of the adult unmarried daughter, waives her homestead rights in the homestead of the family by the sale thereof and the distribution of the proceeds among the members of the family, and when she receives her pro rata part of the proceeds, she must credit the amount received on any claim she may have against the surety or estate of her deceased guardian and father.”

We are of the opinion the court did not err in holding, under the facts of this case, that the defendant was not entitled to offset its liability on the guardian’s bond with any portion of the amount received by the plaintiff from her father’s estate. It is true W. J. Logan was primarily liable on the bond executed by him as the guardian of plaintiff, and that upon his death his estate became so liable, but, his estate being insolvent, his surviving widow and children, constituents of the family, -took an absolute title to the homestead in question free of the claims of creditors of the estate. This exemption under the statutes and decisions of this state— “was a continuing and permanent one, and adhered to the land, not merely to the homestead right in the land.” Sayles’ Statutes, arts. 1869, 2055, 2060, 2061; Scott v. Cunningham, 60 Tex. 566; Reeves v. Petty, 44 Tex. 249; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Childers v. Henderson & Co., 76 Tex. 664, 13 S. W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916; Cameron v. Morris, 83 Tex. 14, 38 S. W. 422; Roots v. Robertson, 93 Tex. 365, 55 S. W. 308; Ford v. Sims, 93 Tex. 586, 57 S. W. 20; Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S. W. 663.

The actual setting apart of said homestead by the county court to W. J. Logan’s surviving widow, minor child, and unmarried daughter, Jessie Logan, as directed by article 2046 of the statute, was not essential to the vesting of such title. The homestead being clearly defined and distinct from every other-article of property which is exempt from forced sale, it—

“requires no act of specification to fix its. identity, and therefore vests with or without administration, and whether it be or he not set apart.” Sossaman v. Powell, 21 Tex. 664; Griffie v. Maxey, 58 Tex. 210.

The property in question being homestead, the right of those who are authorized to claim its exemption does not depend upon the action of the probate court. The plaintiff, Jessie Logan, was an unmarried daughter of W. J. Logan, a constituent of his family, residing on the property involved in this suit’ as her home at the time of his death, and she continued to reside thereon with her stepmother and othér members of the family until the place was sold in December, 1909. Therefore the interest she inherited in this property did not descend charged with the payment of her father’s debts, nor do we think the proceeds arising from the voluntary sale, made in December, 1909, of her interest therein is chargeable therewith. In Zwernemann v. Yon Rosenberg, supra, our Supreme Court, in construing article 16, § 52, of the Constitution, said:

“The language, ‘shall descend and vest as other property of the deceased,’ was employed, we think, to determine the person who should take and their respective interests, but not the conditions which were to be imposed upon the inheritance.”

The court in that case further said:

“It is clear that if property is not subject to sale by orde.r of the probate court for the payment of debts, the heirs who have received the property, there being no administration, cannot be charged with its value at the suit of the creditor.”

Again, in Roots v. Robertson, 93 Tex. 365, 55 S. W. 308, cited above, it is said:

“Considering section 52, article 16, of the Constitution, as interpreted by this court in Givens v. Hudson and Zwernemann v. Von Rosenberg, in connection with articles 2046 and 2055, Revised Statutes, the law may be concisely stated thus: Upon the death of one who was the head of a family, leaving a widow and minor children or either, it is made the duty of the county court to set aside the homestead and other exempted property to such widow and minor children, who would be entitled to the use of the homestead under the limitations of section 52, article 16, of^the Constitution, but the title to the property" would vest in all of the heirs, not, however, subject to the debts of the deceased, because, being set apart by the court, it is withdrawn from the administration of his estate, and would not afterwards become subject to the payment of debts if not used as a homestead, because the exemption by law attaches after death in favor of the persons named.”

' Thus, it would seem that, inasmuch as the effect of our statutes is to withdraw the homestead under the conditions referred to by the Supreme Oourt from administration, it would not thereafter become subject to the payment of debts, even if not used as a homestead, “because the exemption by law attaches after death in favor of the persons who are authorized to claim the homestead exemption.” Plainly, the doctrine of the eases cited, as stated in Cameron v. Morris, supra, is, that if the homestead.is protected from the payment of debts because of the survivorship of a constituent of the family, it is, in insolvent estates, unconditionally, and unalterably so protected, and can never be taken for any of the debts of the ancestor, except for purchase money, taxes, etc., due thereon. The homestead itself being thus protected, it logically follows, we think, that the proceeds arising from its sale are not subject to the payment of debts. It would certainly be anomalous to hold that, notwithstanding one who was authorized to claim the homestead exemption inherited the property absolutely and free from the claims of creditors, yet the proceeds arising from a voluntary sale of it would instantly, upon the consummation of such a sale, become subject to the payment of such claims.

If the views expressed in this opinion are in conflict with our holding in the case of American Bonding Co. v. Logan, 132 S. W. 894, then we are unwilling to adhere to that decision for the reason that a more careful investigation of the question has convinced a majority of the court that it is not in harmony with the decisions of the Supreme Court of this state upon the subject.

The judgment of • the court below is affirmed.

BOOKHOUT, J.

(dissenting).

I regret that I am compelled to dissent in this case from the conclusions of my Brothers.

The question raised by this appeal for our determination may be stated thus: Is the American Bonding Company surety on the bond of W. X Logan, guardian of the estate of his daughter, Jessie Logan, in a suit by her on the bond for her father’s defalcation while acting as such guardian, entitled to offset its liability on the bond by the amount inherited by her as an heir of her father’s estate? The amount for which her father failed to account while acting as guardian, and for which the bondsmen are liable, was $1,000 and interest, aggregating at the’ time of trial $1,808. The amount inherited by Jessie Logan from her father’s estate was' $2,100. In the opinion of the majority it is said:

“We are of the opinion the court did not err in holding, under the facts of this case, that the defendant, was not entitled to offset its liability on the guardian’s bond with any portion of the amount received by the plaintiff from her father’s estate. It is true W. J. Logan was primarily liable on the bond executed by him as the guardian of plaintiff, and that upon his death his estate became so liable, but, his estate being insolvent, his surviving- widow and children, constituents of the family, took an absolute title to the homestead in question free of •the claims of creditors of the estate. This exemption under the statutes and decisions of this state ‘was a continuing and permanent one, and adhered to the land not merely to the homestead right in the land.’ ”

Again:

“The property in, question being homestead, the right of those who are authorized to claim its exemption does not depend upon the action of the probate court. The plaintiff, Jessie Logan, was an unmarried daughter of W. J. Logan, a constituent of his family residing on the property involved in this suit as her home at the time of his death, and she continued to reside thereon with her stepmother and other members of the family until the place was sold in December, 1909. Therefore the interest she inherited in this property did not descend charged with the payment of her father’s debts, nor do we think the proceeds arising from the voluntary sale, made in December, 1909, of her interest therein is chargeable therewith.”

I do not concur in these conclusions. By statute the homestead is exempted to the fmmly, and does not as such descend to the constituent members of the family. Jessie Logan had no interest in the homestead as such as against her father. She inherited an interest therein the same as she inherited an interest in his other property, whether the estate was solvent or insolvent. Givens v. Hudson, 64 Tex. 471; Roots v. Robertson, Administrator, 93 Tex. 365, 55 S. W. 308.

In the case last cited Mr. Justice Brown, in discussing section 50, article 16 of the Constitution exempting the homestead from forced sale, speaking for the court, states the law thus:

“The exemption expressed in section 50 applies to property while the head of the family is living, but furnishes no rule for its disposition after his death. Givens v. Hudson, 64 Tex. 473; Zwernemann v. Von Rosenberg, 76 Tex. 525 [13 S. W. 485]. In the last-named case, Judge Gaines, speaking for the court, said: ‘In the previous Constitution of the state, the disposition of the homestead after the death of the owner was left wholly to the wisdom of the Legislature. It is so, also, in the present Constitution, except as to the manner of its descent and the use reserved to the surviving spouse and the minor children.’ It has been ¡frequently and uniformly held in this state that the homestead exemption does not descend to heirs, but they take the property, under the statute and the Constitution, exempted from the debts of the ancestor, not because it was exempted in his hands, but because they come within the class of persons named in the Constitution and the law. In the case of Givens v. Hudson, cited above, Judge Stayton said:- ‘The thing is not exempted to the child or widow because it was exempted to the father or husband, who was the head of the family, but because the child or widow was and remained a constituent of the family.’ ”

In my opinion the bonding company, surety on the guardian’s bond, was equitably entitled to offset its liability on the bond of AY. J. Logan, guardian of the estate of Jessie Logan, with the amount she inherited as an heir of her father’s estate. This court so held on the same state of facts here shown in tlie' case of American Bonding Company v. Logan, 132 S. W. 897. John Logan, the ap-pellee in that case, is a brother of Jessie Logan, appellee here. The attorneys for John Logan were the same as here appear for Jessie Logan, and it is noticeable that no application for writ of error was made from the court’s holding in that case. The opinion of the majority is based on the fact that the estate of W. J. Logan owed more debts at the time of his death, May 3, 1908, than the value of the estate, and was therefore insolvent, and that it continued after his death to be insolvent and occupied by his second wife and children, including appellee, until its sale by them in December, 1909. During the year 1909, R. H. Lee was appointed and qualified as administrator of the estate of W. J. Logan, but, pending administration, no order was made setting aside the homestead to the family and withdrawing it from administration. In the statement of facts as set out in the majority opinion it is said the “estate was insolvent and was so adjudged by the probate court, and so recognized throughout the administration proceedings.” This must be understood to mean that, the estate being insolvent and the homestead occupied by the family, the administrator did not attempt to sell it. It is conceded the probate court did not make any order setting aside the homestead to the family.

We have not been cited to any opinion by the Supreme Court where the precise question here raised was passed upon by that court. But the principle here contended for by the bonding company was recognized and sustained by the Supreme Court in the cases of Ashe v. Yungst, 65 Tex. 631, and Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A. 585.

In the case of Ashe v. Yungst, first above cited, the facts were that Herman Yungst and his wife resided on the property in controversy ; it being community and their homestead. Mrs. Yungst died in December, 1882, leaving minor children, and the property continued to be the homestead of Yungst and his wife until after the wife’s death. Yungst, at the time of his wife’s death, was indebted in a sum equal to the value of the property. It was assumed in the opinion that the community estate of Herman Yungst and wife was insolvent at the time of her death; that it was indebted in a sum equal to the value of the property in controversy; that the property was their homestead; and that the appellees in the case were their minor children. The question in the ease was: Did Yungst have power to convey the property in September, 1884, to pay off community debts? The court on these facts held that children have no interest in the homestead as such, as against the surviving parent by virtue of the homestead rights of such deceased parent, but they take title to such property just the same as they would to other real property, and that there is ho distinction between adult and minor heirs. The sale of the homestead by the husband to pay off community debts was sustained. The opinion contains an exhaustive discussion of the rights the children inherit in an insolvent homestead of their parents, and in my opinion is decisive of the question raised on this appeal.

In the ease last cited Cornelia Martin, wife of Thomas P. Martin, died in March, 1896, leaving surviving her husband, Thomas P. Martin, and six children, two of the children being at the time minors. Before and at the time of his wife’s death, Thomas P. Martin owned and occupied a home in the city of Ft. Worth upon which he and the two minor children lived until shortly before the trial of the case, but at the time of trial the children had gone from the home and lived with their sisters. Mrs. Martin died intestate, and no administration was ever had on her estate, nor did the husband qualify as community survivor. Of the property which belonged to the community, there remains in the hands of the surviving husband personal property of the value of $575, and the homestead, which is worth $4,000, aggregating the sum of $4,575. At the date of Mrs. Martin’s death there existed debts against the community amounting to $8,840. Thomas P. Martin applied $5,667.38 of his individual funds to the payment of community debts. Martin claimed the right to retain the community property which remained in his hands to reimburse him for his separate funds used in the payment of community debts, and the question before the Supreme Court was; Did he have the right to be reimbursed for his expenditures in the payment of the community debts out of the homestead and other property exempted from forced sale? It was contended by the children, the defendants in error in the case, that Thomas P. Martin cannot be remunerated out of the community property on hand, because it consists of the homestead and other exempt property which could not be made liable for the debts of the creditor. In the opinion of the court, delivered by Judge Brown, it was said:

“The exemption of the homestead and other property was in favor of the father, the head of the family, and did not inure to the benefit of the children upon the death of their mother. Ashe v. Yungst, 65 Tex. 631. Although the plaintiff in error could not have been compelled to yield up his homestead to pay the community debts, yet he had the authority as surviving husband to waive his exemption and sell the homestead, applying the proceeds to the payment of the community debts. Wilson v. Helms, 59 Tex. 680; Fagan v. McWhirter, 71 Tex. 567 [9 S. W. 677]. If the surviving husband had the power to sell the homestead and apply the proceeds to the payment of the community debts, we think that it logically follows that he also had the power to sell that property, and, out of the proceeds, to reimburse himself for the amount paid out of the separate funds.”

It follows from these remarks that, in the opinion of the writer, the proposition of appellant, under the first assignment of error, that:

“Where it appears, under an agreed statement of facts, that the plaintiff, a surviving daughter and a former ward of a deceased guardian,, received the sum of $2,100 from the estate of said deceased guardian and father, and said' ward sues the surety of said deceased guardian and father, and obtains judgment for the sum of $1,808 against said surety, the surety is entitled to set off said $1,808 by the $2,-100 received from the estate of her deceased father and guardian”

—is sound, and that the first assignment under which the proposition properly arises should be sustained.

On Motion for Rehearing.

TALBOT, J.

Upon the filing of appellant’s motion for a rehearing in this case, Mr. Justice BOOKHOUT having dissented from the opinion of the majority, we certified the question involved to the Supreme Court for adjudication. The decision of that court, not yet officially published, 166 S. W. 1132, is in accord with the decision of the majority of this court. Appellant’s motion for rehearing is therefore overruled.