author: HALL, J.

text:
    MATHESON v. C-B LIVE STOCK CO. et al.
    (No. 774.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1915.)
    1. Evidence @=»419 — Documentary Evidence — Pakol Evidence to Vary. -
    Where a contract for the sale of land fixed the consideration and provided the mode of payment, it is more than a mere recital of fact, and cannot be varied by parol evidence of an additional consideration agreed upon between the parties.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. <S=»419J
    2. Vendor and Purchaser <S=»140 — Contracts — Co nstructio n .
    Where a contract for the conveyance of land required the purchaser to pay the remainder of the price within a given time, but also obligated the vendor to furnish an abstract of title within a reasonable time, the furnishing of the abstract was a condition precedent to the vendor’s right to demand payment, and the purchaser’s failure to pay the consideration is no ground for forfeiture, where the vendor had not furnished the abstract.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. <@=3140.]
    3. Vendor and Purchaser ®=»98 — Rescission — Conditions Precedent.
    Before a vendor can rescind a contract for the sale of land on account of the purchaser’s nonperformance, he must offer to refund the purchase money already paid.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165; Dee. Dig. <@=»98.]
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    Action by H. D. Matheson against the C-B Live Stock Company and another. Erom a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Bean & Klett, of Lubbock, for appellant. J. W. Burton, of Crosbyton, for appellees.
   HALL, J.

The appellant instituted this suit against the C-B Live Stock Company and the Crosbyton South Plains Townsite Company to enforce specific performance of a contract of sale for the conveyance of a certain town lot in Crosbyton. It was alleged that the contract was made by the Live Stock Company August 8, 1908, and since that date the said company had conveyed the property to the Townsite Company, with notice on the part of the latter company of the terms of said contract. The contract provides that the Live Stock Company—

“has agreed to sell, and the said party of the second part [Matheson] has agreed to buy, all that certain tract or parcel of land situated in the county of Crosby and state of Texas, described as follows, to wit: The south half of block 8 in Crosbyton, Texas, containing 1.4 acres. The party of the first part agrees that it will furnish, within a reasonable length of time after the execution of this contract, an abstract of the above-described tract or parcel of land, showing good title thereto to be in it, and that, upon the payment to it by said party of the second part of the amount hereinafter stipulated to be paid in cash, the said party of tile first part will convey by its warranty deed the tract of land above described to the party of the second part, free and clear of all in-cumbrance whatsoever. The said second party further agrees that upon the date of the delivery to him by the said party of the first part of the said warranty deed, which shall be of even date herewith, conveying to him the above-described premises as aforesaid, he will pay to the pai'ty of the first part the sum of $40 in. cash. The party of the second part further agrees that he will not assign his rights in or under this contract, or any part thereof, without the written consent of the party of the first part. The said sum of $40 is to be paid on or before November 1, 1908. The C-B Live Stock Company acknowledges the receipt of $10, which is a part of the purchase price of the above-described tract, leaving the said $40 to be paid on or before November 1, 1908.”

Appellee answered that in addition to the consideration of $50, expressed in the written contract, there was' a verbal promise, made before said written contract was entered into, on tbe part of plaintiff, tó improve the property by building a dwelling on said property; that appellant never tendered the $40 mentioned in said contract before November 1, 1908, nor was said sum ever deposited in the registry of the court; that on account of the failure of appellant to make such payment nr tender on or before November 1, 1908, appellee, on January 15, 1909, canceled, rescinded, disaffirmed, and forfeited said contract, and so notified appellant.

It is further alleged by appellees, as an excuse for not incorporating the promise to improve the property in the written contract, that “by special agreement no consideration was put into the contract except the $50, and that the further contract of building on said property was omitted because defendant believed that the plaintiff was an honest man.” The answer contained no allegation of fraud, accident, or mistake, and the controlling question in the case is the right of appellees to prove by parol the additional agreement on the part of appellant to build a dwelling upon the premises. In 17 Oye. 661, the rule governing in such cases is stated as follows:

“Where the statement in a written instrument as to the consideration is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to do certain things, this part of the contract can no more be changed or modified by parol or extrinsic evidence than any other part, for a party has the right, to make the consideration of his agreement of the essence of the contract, and when this is done the provision as to the consideration for the contract must stand upon the same plane as the other provisions of the contract with reference to conclusiveness and immunity from attack by parol or extrinsic evidence.”

6 A. & E. Enc. of Law (2d Ed.) p. 775, after announcing the general rule that parol evidence is admissible to vary the consideration expressed in a deed when it is merely the recital of a fact, says:

“So much for the admissibility of evidence to vary the consideration expressed in a deed or written contract, when the expression’ is merely the recital of a fact. When, however, the statement of the consideration leaves the field of mere recital and enters that of contract, thereby creating and attesting rights, as shown by the intention of the parties to be gathered from the instrument, it is no longer open to contradiction by extrinsic evidence.”

A review of the cases in this state by the Supreme Court and the various Courts of Civil Appeals, discussing this question, will result in some confusion upon the question of what is a contractual consideration. The case of Jackson v. Chicago, etc., R. R. Co., 54 Mo. App. 636, announces the rule that money may also be contracted for as the consideration in a written contract, and when the intention to so contract is disclosed by the written instrument, no other or additional consideration can be shown. 6 A. & E. Enc. of Law, p. 775, note 1. In the note to Shehy v. Cunningham, 25 L. R. A. (N. S.) 1207, it is said:

“Where the consideration clause is itself a part of the contract, and not merely a receipt, the general rule as to the inadmissibility of evidence to vary or contradict a writen contract prevails. Although it might be argued that the consideration clause is in every deed a part of the contract, yet, as is shown in the cases quoted in the first part of the note, the cases generally hold that the consideration clause is merely a receipt, and forms no necessary part of the deed; in a few cases, however, the character of the consideration is such that the payment thereof is to be deemed a part of the contract, and under such circumstances parol evidence is not admissible to vary or contradict it.”

3 Jones on Evidence (Horwitz) § 468, states the limitation to be that, if the parol testimony proposed tends to change the contract itself, instead of the consideration, it should be rejected.

4 Wigmore on Evidence, § 2433, uses this language:

“Bat the statement of a consideration may, on the other hand, sometimes be itself an operative part of the contractual act, as when in the same writing the parties set out their mutual promises as consideration for each other. Here the word ‘consideration’ signifies a term of the contract, and hence the writing alone can be examined. * * * In general, then; it may be said that a recital of consideration received is, like other admissions, disputable so far as concerns the thing actually received, but that, so far as the terms of a contractual act are involved, the writing must control, whether it uses the term ‘consideration’ or not.”

In 4 Enc. of Evidence, 200, the rule is stated thus:

“Where the recital of consideration is something more than a mere receipt or recital, and embodies the terms of a contract, it is subject to the general rule, excluding parol evidence of additional terms in spite of the fact that they may have constituted part of the consideration. This limitation seems to have been overlooked in some cases. Where the consideration recited is an executory agreement, it is generally regarded as contractual, as, for example, an agreement to pay the price at a particular time and in a particular manner, to assume to pay a debt, to build a railroad over the premises, or to relinquish a dower right.”

The case of Coverdill v. Seymour, 94 Tex. 8, 57 S. W. 37, seems to be the leading case by the Supreme Court in this state touching the question. There the contract recited a cash consideration of $500 and a note for $4,750, in payment for a lumber business. It was stipulated in the contract that Coverdill should turn over to Seymour the proceeds of all sales daily, to be credited on the note. Evidence of a further agreement to pay for additional lumber was excluded.

In Rapid Transit Railroad Co. v. Smith, 98 Tex. 553, 86 S. W. 322, the Supreme Court held that a written release of damages for personal injuries, in which the recited consideration was $15 cash and the assumption of doctor’s bills, could not be supplemented by proof of a promise to furnish employment.

Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825, presents a state of facts in which the husband conveyed land to the wife as her separate property. Evidence that such was not his intention was excluded, upon the ground that the recital created a status which was contractual, and he was not permitted to prove a contrary intention upon his part.

In East Line Railway Co. v. Garrett, 52 Tex. 137, it appears that Garrett made a right of way deed to the appellant, reciting a consideration of $1 and an agreement on the part of the railroad company to locate its railroad on his lands in Wood county. The court excluded an effort to prove, as a further consideration, an agreement on the part of the company to build a depot upon his lands.

Pickett v. Green, 120 Ind. 584, 22 N. E. 737, frequently cited by the Supreme Court as authority upon this question, states the reason for the rule which permits oral or parol testimony to vary or contradict the consideration in a deed as follows:

“The reason, generally given for the rule is that the language with reference to the consideration is not contractual. It is merely by way of recital of a fact, viz., the amount of the consideration, and not an agreement to pay it; and hence such recitals may be contradicted.”

Coffey, Justice, then proceeds:

“There is also a rule, so well known that it needs no citation of authority, to the effect ■that parol testimony cannot be received to vary, contradict, or add to the terms of a written contract; and out of this grows the exception to the rule first above stated — that where the contract is complete upon its face the stipulation as to the consideration becomes contractual; and where there is either a direct and positive promise to pay the consideration named, or an assumption of an incumbrance on the part of a grantee in a deed which becomes binding upon its acceptance, the ordinary rules with reference to contracts apply, and the consideration expressed can no more be varied by parol than any other portion of the written contract. Welz v. Rhodius, 87 Ind. 1 [44 Am. Rep. 747]; Hubbard v. Marshal, 50 Wis. 322, 6 N. W. 497; Manufacturing Co. v. Forsythe, 108 Ind. 334, 9 N. E. 372; Carr v. Hays, 110 Ind. 408, 11 N. E. 26; Diven v. Johnson, 117 Ind. 512, 20 N. E. 428, 3 L. R. A. 308; Conant v. Bank (Ind.) 22 N. E. 250 (this term). In this case it will be observed that the appellant, by the terms of the contract set out in the complaint, in consideration of the agreements and covenants therein set forth, sold to the appellees his office furniture and his good will in the practice of medicine, and agreed not to practice medicine within a radius of 10 miles of the town of Albion for the period of 15 years. In consideration of this sale and agreement, the appellees stipulated in the agreement to pay him $100 within 10 days. The answer •of the appellant, to which the court sustained demurrers, contradicts this agreement, and avers that the consideration for the agreement on the part of the appellant not to practice medicine within a radius of 10 miles of tire town of Albion was an agreement on the part of the ap-pellee Wm. T. Green to purchase certain real estate. We are of the opinion that the appellant cannot be permitted to thus contradict the written agreement into which he has entered.”

Of course, if the recital of the consideration of an instrument is a mere receipt for the money and a statement of the fact that it has been paid, it may be contradicted, like any other receipt. Lanier v. Foust et al., 81 Tex. 186, 16 S. W. 994; Taylor v. Merrill, 64 Tex. 494; Womack v. Wamble, 7 Tex. Civ. App. 273, 27 S. W. 154. But the contract in this case is purely executory. Only $10 had been paid. As to its remaining terms, the promises of one party are made the consideration for the promises of the other. To permit one party to supplement or add to the obligations resting upon him would be equivalent to saying that the other party could do likewise. 2 Page on Contracts, §§ 1203, 1205.

In Teague v. Teague, 31 Tex. Civ. App. 156, 71 S. W. 555, the consideration named in the deed was $1 paid and the annual rent of corn and cotton to be raised on the land during the natural life of the grantor. The defendant pleaded and offered to prove that the deed was executed upon a different consideration, viz., that plaintiff would, by will, give the land to defendant or pay defendant $500 in case he sold the land before his. death; that the deed was executed for the purpose of repaying the defendant for a bunch of cattle belonging to defendant, but which plaintiff had sold. In various forms the contention is urged that the defense pleaded set up a different consideration and the evidence offered thereon raised the issue that the deed was executed upon a different consideration than that stated in the body of the instrument. Demurrer was sustained to this allegation and the court declined to admit proof thereof. Eisher, Chief Justice, said:

“The statement quoted as taken from the deed is more than a bare recital of the consideration. It is in its nature contractual. It states the terms under which the land was conveyed, and a breach of that condition was sufficient upon which to base an action to recover the premises and cancel the conveyance.”

Justice Neill, in Boone v. Mierow, said:

“Parol evidence of a consideration different from or additional to that stated in a written agreement between the parties is not admissible in a case where the consideration for the acts or agreements of one party are the undertakings of the other, and both are stated in writing. Coverdill v. Seymour, 94 Tex. 8 [57 S. W. 37]. In Texas & Pacific Co. v. Lawson [10 Tex. Civ. App. 497], 81 S. W. 846, where precisely the same question arose that is involved in this case, the court said: ‘We cannot liken the contract in this instance to the case of a deed, where it is permitted to contradict the recited consideration by parol evidence showing the true consideration. Gibson v. Fifer, 21 Tex. 263; Glenn v. Mathews, 44 Tex. 406. Here the writing purports to set out with great detail the agreement of the parties. It appears to be in every respect complete. The statement of the consideration is not the “mere recital of a fact, viz., the amount of the consideration,” but it is an “agreement' about it.” It is contractual, and it cannot be varied by proof of a parol contemporaneous agreement ingrafting an additional consideration.’ ” 33 Tex. Civ. App. 295, 76 S. W. 772.

Because the contract in this case is execu-tory, and until the parties have complied with its terms no interest in the land was vested in Matlieson, the authorities above quoted, and which for the greater part are taken from cases where the contract is executed, are of peculiar force. The writer said, in the case of Clayton v. Western National Wall Paper Co., 146 S. W. 697, that recitals of a written instrument as to the consideration could always be inquired into and shown by parol what the real consideration was, or that there was a want or failure of consideration. We are convinced that the rule as there stated is too broad, and it is limited as hereinbefore stated in this opin ion.

We shall not consider the assignments in the order presented, nor discuss all of them, since several of them present the same questions. It is sufficient to say, in disposing of the case, that according to our construction of the contract as presented in the record the furnishing of an abstract by appellee was a condition precedent to its right to demand the payment of the $40. A reasonable construction would not require appellant to pay for the property in full until he was satisfied of the validity of his title. Not having furnished the abstract, appellee could not rescind the contract without the consent of appellant. Bowles v. Umberson, 101 S. W. 842; Loring v. Oxford, 18 Tex. Civ. App. 415, 45 S. W. 395; Landrum v. Buford, 29 Tex. Civ. App. 62, 67 S. W. 1066; Sparkman v. Davenport, 160 S. W. 410; Wright v. Bott, 163 S. W. 360.

Appellant not being required to make tbe deferred payment until an abstract bad been tendered bim in accordance with tbe contract, be was not in default, and before appellee could rescind by suit it must offer to refund tbe purchase money already paid. Smith v. Moore, 155 S. W. 1017; Foster v. Eoff, 19 Tex. Civ. App. 405, 47 S. W. 399; Harris v. Catlin, 37 Tex. 581.

Tbe judgment is reversed, and tbe cause remanded.
      <gxs>For 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:
    ANDREWS v. VIRALDO.
    (No. 5475.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 5, 1915.)
    1. Carriers @=>230 — Injury to Live Stock — Contributory Negligence — Question for Jury.
    Whether plaintiff, whose horse was injured by defendant, was guilty of contributory negligence in not having it treated by a veterinary and in using it too soon, held, under the evidence, a question for the jury.
    [Ed. Note. — For other' cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. @=>230.]
    2. Trial @=>255 — Instructions—Necessity of Request.
    Defendant desiring a charge on contributory negligence should request it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. @=>255.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by L. F. Viraldo against Frank Andrews, receiver. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Claude Pollard, of Kingsville, and West & McMillan and B. M.1 Siddall, all of San Antonio, for appellant. A. - E. Heilbron, C. E. Carutkers, and C. L. McGill, all of San Antonio, for -appellee.
   CARL, J.

L. F. Viraldo sued Frank Andrews, receiver of tbe St. Louis, Brownsville & Mexico Railway Company, for tbe value of a mare and certain household goods injured in shipping tbe same from Corpus Cbristi to McAllen. It is charged that by the rough handling of said property, jerking and jolting same, the household goods were broken and damaged, and the mare was thrown down, bruised, and injured to such an extent that she died about two weeks later as a result of the injuries received. Her value is placed at $150, and was proved to be such at McAllen at the time of her loss. No question is made as to the appellant’s liability for the household goods, amounting to $39.50; but the sole assignment of error complains of the refusal of the trial court to instruct a verdict for the defendant in so far as the recovery for the loss of the mare is concerned. It is claimed that the uncontradicted evidence shows that appellee was guilty of contributory negligence in failing to have the mare treated by a veterinary surgeon after it was known she was injured, and in working her after her arrival at McAllen in her injured condition. The case was tried by a jury, and judgment was for appellee.

Appellee testified that he did not know that there was a veterinary surgeon to be had there, and that he had a stay chain fixed so that this mare was doing nothing more than holding up her part of the wagon tongue when he worked her. As soon as he discovered that she was not able to work he unharnessed'her and took her out, using one horse and a spring wagon to move his goods. The question of whether Viraldo was negligent under the circumstances was one for the jury. The court did not charge the jury, and, if appellant desired a special charge submitting the matter of contributory negligence, he should have requested same. It must be assumed that all the evidence was considered by the jury, including that which would tend to show contributory negligence.

The judgment is affirmed.


author: McMEANS, J.

text:
    RINKER v. GALVESTON-HOUSTON ELECTRIC RY. CO. et al.
    (No. 6731.)
    (Court of Civil Appeals of Texas. Galveston.
    March 3, 1915.
    On Motion for Rehearing, April 14, 1915. Rehearing Denied April 29, 1915.)
    1. Negligence @=>54 — Dangerous Places— Persons Liable.
    A company which merely bad a right to run its cars over another’s tracks after they were completed is in no way liable to a child injured through the negligence of the owner of the track or its contractor, which left a small truck on the tracks.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 66, 67; Dec. Dig-. @=>54.]
    2. Master and Servant @=>315 — Independent Contractors — Defense of.
    City ordinances required street railway-tracks to be constructed without depressions between the rails or the approaches thereto. A street railway company engaged an independent contractor to construct a new line. Held that, as the work was not inherently dangerous, the railway company was not liable for the wrongful and negligent act of the contractor in leaving depressions in the uncompleted track.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1241, 1244-1253, 1255, 1256; Dec. Dig. @=>315.]
    3. Negligence @=>139 — Actions — Instructions.
    In an action against defendant which left a small truck on the tracks of a street car line that it was constructing, and which plaintiff, a child, was pushing when he fell through a trestle and into a hole under the- track, a charge that, if defendant was accustomed to leave unguarded cars standing on the tracks which were attractive to children, and could be easily moved, and that plaintiff, being so attracted, was injured defendant was liable, unless plaintiff was guilty of contributory negligence, was not affirmatively erroneous, as requiring plaintiff to prove that defendant was customarily negligent.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 371-377; Dec. Dig. <@=>139.]
    On Motion for Rehearing.
    4. Negligence <§=323 — Attractive Nuisance —Children.
    A contractor engaged in building a street car track is liable for injuries received by a child, where it left on the track a small push car, which could be easily operated by children, in a neighborhood where children were likely to be, upon proof that the car was attractive to them, and without showing that it was accustomed to leave the car in that place, or that children customarily resorted thereto for play.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 33, 34, 129; Dec. Dig. <§=>23.]
    5. Appeal and Error >@=31084 — Review — Harmless Error.
    Where the evidence as to whether defendant customarily left a dangerous device attractive to children unguarded in a place where children were likely to be was conflicting,_ a charge which required the jury, as' a condition to a verdict for the injured child, to find that the device was customarily left there and the place was customarily resorted to by children, was not harmless to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <©=>1064.]
    Error from District Court, Galveston County; Robert G. Street, Judge.
    Action by Dewey Rinker against the Galveston-Houston Electric Railway Company and another and the Stone & Webster Engineering Corporation. There was a judgment for defendants, and plaintiff brings error.
    Reversed as to the last-named defendant.
    Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for plaintiff in error. Baker, Botts, Parker & Garwood, Stephen H. Philbin, and C. R. Wharton, all of Houston, for defendants in error.
   McMEANS, J.

Dewey Rinker, a minor, by next friend, brought this suit against the Galveston Electric Company, the Galveston-Houston Electric Railway Company, and the Stone & Webster Engineering Corporation to recover damages for personal injuries sustained by him through the alleged negligence of the defendants. Plaintiff alleged that on the 5th day of .November, 1911, all of the defendants, acting together and for each other and in pursuit of a joint enterprise, were constructing and building a line of electric railway over and along West Broadway, a public street in the city of Galveston, and had their railway tracks laid along and upon said street to the westernmost limits of the city, and that said line of railway was in a partial state of completion, and that defendants were operating electric motor cars and hand cars, push cars, and construction cars over said tracks in said city to said city limits. He further alleged and proved, in substance, the following facts: That on the date named, plaintiff was 13 years of age, and was living near the intersection of Forty-Second street and West Broadway, in said city; that on said date the defendants had left on said West Broadway and upon the railway track of defendants a certain short work car, unguarded and unattended by any servant or employé of the defendants; that said car was easily movable by hand, and could be pushed by children up and down said track, and could be ridden upon and played with by, and was attractive and an allurement to children; that many children resided near the intersection of said streets, and that that portion of the city was thickly populated; that said car had been left upon said track by defendants at the intersection of said streets on many days, at times when it was not in use, unguarded and unattended ; that the defendants at said time had laid a double track, or a main track and a switch or siding, which extended westwardly along and upon West Broadway to beyond a crossing at Fifty-Second street, and that many times prior to said date various children had pushed said car up and down and had played with and upon it, on said switch track, in full view of defendants’ employes who were engaged in working on the main track, which was laid contiguous to, and parallel with, the switch track; that on said date several children were playing with, around, and upon said car, and were pushing the same back and forth on said track, and that the plaintiff joined said other children at their play, and that, while he and the others were playing with and pushing the car, and while his view forward and downward was obstructed by the car, he fell through a trestle and into a hole under the track which the defendants had failed to cover and guard, and thereby received serious and permanent injury. Other facts proved will be hereinafter stated.

The grounds of negligence alleged as a predicate for recovery are, substantially, as follows: (1) In leaving said car upon its track on said street unguarded and unattended; (2) in failing to cover the hole under its track through which plaintiff fell ; (3) in violating an agreement made by defendants with the city of Galveston for the protection of plaintiff and the other inhabitants of the city, which obligated the defendants to cover and make safe for travel and passage all portions of said street used by defendants for their tracks for the operation of their cars, and to not leave openings or pitfalls or uncovered trestles or drains in their tracks in the portions of the streets used by them; (4) that the said acts and omissions of defendants were negligence per se, in that the same were in violation of articles 429 and 430 of title 10, c. 1, of the Revised Ordinances of the City of Galveston, which read as follows:

“That at all curves, and at all street intersections, or crossings, said companies [meaning railway and street railway companies] shall maintain and keep their roadbed and tracks and the approaches thereto for the full width of the street, in good, safe and passable condition for vehicles, by filling' between the rails or tracks and the approaches thereto, either with approved ballasting material, plank or pavement.
“That whenever any tracks are laid upon trestle or pile foundation along the streets of the city, the space between said tracks for the entire width shall be filled in, in the same manner as hereinbefore provided, or the whole distance between the rails and the tracks shall be entirely planked over with two by twelve plank, securely spiked down and made safe for traffic over them, and the sides sloped off for a distance of six (6) feet by filling or packing as aforesaid.”

He prayed for damages in the sum of $20,-000.

The defendants answered by general denial and by plea of contributory negligence. And the defendants Galveston-Houston Electric Railway Company and Galveston Electric Company specially pleaded, and also proved, that the work of constructing the street railway was being performed for the Galveston Electric Company by the defendant Stone & Webster Engineering Corporation as an independent contractor; that the railway was in process of construction; and that the track along the street where plaintiff was injured had not been turned over to the Galveston Electric Railway by said Stone & Webster Engineering Corporation. The Galveston-Houston Electric Railway Company further pleaded and proved that it had nothing to do with the construction of said tracks, and that it did not own the tracks after they were constructed, and that it only operated its cars over said tracks by and under a contract made by it with the Galveston Electric Company, .the owner. The defendant Stone & Webster Engineering Corporation pleaded and proved that it was constructing the tracks in question under a contract between itself and the Galveston Electric Company, by which contract it undertook to construct and equip a street railway along Broadway; that the construction of said track was under the entire supervision of the defendant Stone & Webster Engineering Corporation, it being an independent contractor; and that the only supervision that the defendant Galveston Electric Company had over the construction of said tracks was to see that the same were constructed according to the specifications originally agreed upon.

. A trial of the case was had before a jury. Upon the conclusion of the testimony the court peremptorily instructed the jury to return a verdict in favor of the defendants Galveston Electric Company and the Galveston-Houston Electric Railway Company, which was done. The case against the defendant Stone & Webster Engineering Corporation was submitted to the jury, and a verdict was returned for said defendant, upon whick a judgment in its favor was accordingly entered. From the judgment thus entered the plaintiff, after' his motion for a new trial had been overruled, has appealed.

Appellant by his first assignment of error assails the action of the trial court in peremptorily instructing a verdict in favor of the Galveston-Houston Electric Railway Company and the Galveston Electric Company. By his third proposition under this .'assignment he asserts that:

“Where a city granted a franchise to defendants to lay a line of railway along its public streets, and plaintiff was injured by falling into an excavation not guarded by barriers, planks, or otherwise, defendants are not relieved from liability because it had let the work by a contract under which the contractor had entire charge thereof.”

We have already shown that the tracks under construction were the property of the Galveston Electric Company, and were being constructed for said company by the Stone & Webster Engineering Corporation as an independent contractor. The Galveston-Houston Electric Railway Company was not the owner, in whole or in part, of said tracks, and the only interest it had in the tracks or in the construction of them was its right to run its cars upon them after completion, under and by virtue of an agreement made by it with the Galveston Electric Company; therefore in no phase of the case as made by the evidence was the Galveston-Houston Electric Railway Company liable to plaintiff for the damages suffered by him.

We have hereinbefore shown that the Stone & Webster- Engineering Corporation, in constructing the tracks, was an independent contractor, and doing the work for the Galveston Electric Company, and that the latter had nothing to do with the supervision of the work further than.to see that the same was done agreeably to the specifications of the contract. The work was not inherently dangerous. There is nothing in the evidence to show that the contract stipulated or contemplated that the opening under the track into which plaintiff fell should be made or left there by the contractor in the performance of the work. On the other hand, the evidence clearly indicates that the opening was made or left by the Engineering Corporation during the course of construction, not by reason of any requirement of the contract, but was a detail of the work of construction and purely collateral to the work contracted to be done, and, if wrongful, was entirely the result of the wrongful act of the contractor or Ms workmen. The construction of the track upon the street was not unlawful, since it was being done under a franchise granted by the city of Galveston. The facts being as stated, the rule seems to be that the defendant Galveston Electric Company is not liable to plaintiff for the injuries sustained by him. in falling into the opening, even though the opening as made and left there by the contractor was in violation of one or both of the articles of the ordinance above quoted.

The Supreme Court of the United States, in Robbins v. Chicago, 4 Wall. 657, 18 L. Ed. 427, tersely states the rule as follows:

“Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but, where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.”

The rule thus stated is quoted with approval in Cameron Mill & Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 78 S. W. 8, and is supported by the following cases: Texas Traction Co. v. George, 149 S. W. 438; Taylor v. Dunn, 80 Tex. 652, 16 S. W. 732; Hale v. Dutant, 39 Tex. 667; City of Independence v. Slack, 134 Mo. 66, 34 S. W. 1094; Fulton County St. Ry. Co. v. McConnell, 87 Ga. 756, 13 S. E. 828; Atlanta, etc., Ry. v. Kimberly, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231; Winniford v. MacLeod, 68 Or. 301, 136 Pac. 25; Hackett v. Western Union Tel. Co., 80 Wis. 187, 49 N. W. 822; Sanford v. Pawtucket St. Ry. Co., 19 R. I. 537, 35 Atl. 67, 33 L. R. A. 564.

In Taylor v. Dunn, supra, the Supreme Court recognizes the distinction between an injury arising directly and necessarily from the performance of the contract and an injury which arises from work merely collateral. In that case Taylor was sought to be held liable for injuries resulting from the negligence of Wilke in the operation of a railroad over the streets in the city of Austin ; the latter being an independent contractor having exclusive control of the railroad. The court said:

“It must be conceded that appellant is liable for the injury received by Mrs. Dunn, notwithstanding the railway was operated by Wilke as a contractor, if the structure in the streets and its operation * * * created a nuisance; but if the construction of the railway in the streets was lawful, and thereon might be lawfully used such motive power and cars as were used, then appellant is not responsible for an injury which resulted from the negligent use of them by Wilke while operating the road and trains as a contractor.”

In Fulton County Street Railway Co. v. McConnell, supra, the railway company had obtained a charter authorizing it to construct a street railway in the city of Atlanta; the consent of the municipal authorities being duly obtained. A contract was made with the Thompson-Houston Electric Company whereby the latter was to construct the railroad as an independent contractor. The construction company improperly placed certain rails in the road, and, an equestrian being thereby injured, judgment was recovered against both the employer and the independent contractor. This judgment was sustained as to the contractor, but reversed as to the other defendant. The court held that the case did not fall within any of the exceptions to the general rule that the employer was not liable for the torts of the independent contractor, saying:

“The work in constructing the road was not wrongful in itself; the company having obtained authority from the Legislature and the consent of the municipal authorities. Nor would the work result in a nuisance, for the same reason. Nor was it, according to previous knowledge and experience, in its nature dangerous to others, if carefully performed. * * * It was argued, however, by counsel for the defendant in error, that this rule does not apply where the work is to be performed in a public thoroughfare; that the license to obstruct the street was given specially to the railroad company, and could not be delegated to the contractor; that, where railroads are built in a public thoroughfare, the rights of the public to the use of the thoroughfare are involved, and the rule should be stricter than where the rights of individuals merely are affected. We have been unable to find any case where this distinction is recognized; but, on the contrary, in Overton v. Freeman, 11 C. B. 867, Maulé, J., in replying to this identical argument, says: ‘It is insisted that there is some greater degree of liability in respect of this being a public wrong than would ordinarily attach in the case of a mere private injury. I do not, however, perceive that there is any distinction between the two which is at all favorable to the plaintiff’s argument. I rather think the liability for a public wrong is less extensive than the civil liability. A man is often civilly liable where no wrong was intended.’ ”

Railway v. Meador, cited by plaintiff in support of bis second proposition under the first assignment, viz., “A duty to the public or to an individual cannot be devolved on a contractor,” is not applicable under the facts of this case, as that case is explained by Judge Gaines in Railway v. Culberson, 72 Tex. 384, 10 S. W. 709, 3 L. R. A. 567, 13 Am. St. Rep. 805, wherein he says:

“Railway v. Meador, 50 Tex. 85, was a case in which the railroad company was held liable to the owner of land for the trespass of its contractors in entering upon his premises and constructing its road without having first condemned the right of way. The principle decided is that, the act which the contractors were employed to perform being unlawful, so far as the landowner whose land had not been condemned was concerned, the company could not escape its liability by showing that the persons who committed the trespass were independent contractors to perform the work.”

The converse of this proposition is that, if the act which- the contractor agreed to perform was not unlawful, so far as the landowner was concerned, but the damages were caused by the negligent performance of the contract, he, and not the railroad company, would have been liable therefor. Applying the law as we understand it to the facts df this case, we think it clear that, unless the opening in the track into which the plaintiff fell was made or left as a necessary result of the construction — and we think the evidence shows it was not — the defendants Galveston-Houston Electric Railway Company and the Galveston Electric Company were not liable for injuries resulting from the existence of the opening.

We think that what has been said sufficiently disposes of the first proposition under the first assignment, that the violation of q city ordinance from which, an injury to a third person results is negligence per se. Clearly, there was no violation by the Galveston-Houston Electric Railway Company or by the Galveston Electric Company of the ordinances quoted in leaving the opening in the track, as the opening was made by the independent contractor, between whom and the railway companies the relation of re-spondeat superior did not exist, and was an act collateral to and an incident of the work, and not done in performance of any stipulation or specification in the contract.

By his second assignment of error appellant complains of the following portions of paragraph 4 of the court’s charge;

“If you believe from the evidence that the Stone & Webster Engineering Corporation, their agents and servants, at or about the time and place stated, were accustomed to leave standing on said track cars, unguarded, attractive to children, and easily moved along the track by young children, and that young children attracted thereby were accustomed to resort thereto and play therewith, without hindrance, all of which was known to said Engineering Corporation, or might have been known to it by the exercise of such care as is exercised in like case by men of ordinary prudence, and that plaintiff so attracted thereby was injured as described while playing with such car, by falling into an open hole or trestle, in the roadbed, and that some such injury might reasonably have been foreseen by the Stone & Webster Engineering Corporation as probable to result therefrom, then you will find for the plaintiff against said Engineering Corporation, unless you find for the remaining defendant, the Stone & Webster Engineering Corporation, on the issue of contributory negligence as hereinafter instructed.”

And by the third assignment appellant complains of the concluding portion of paragraph 4 of the charge, which is as follows:

“But, unless you believe from the evidence that the Stone & Webster Engineering Corporation was accustomed to leave such cars on the track unguarded, and that the same were attractive and dangerous to young children, and that they were customarily resorted to by them for play, without hindrance, with the knowledge of said Engineering Corporation, or it would have been able to know thereof if it exercised such care in the supervision of its business as a man of ordinary prudence would have exercised in like case, and that plaintiff was injured by the means and by the manner stated, and that some such injury might reasonably have been foreseen by said Engineering Corporation as likely to result from so leaving said cars, you will find for the Stone & Webster Engineering Corporation.”

There was no affirmative error in the portion of the court’s charge complained of in the second assignment. It left it to the jury to determine whether negligence in the respects charged in the petition existed under the facts as charged, and did not, as appellant contends, require appellant to prove that the defendant Stone & Webster Engineering Corporation was customarily negligent.

The third assignment presents more difficulty. There the jury were instructed that before appellant was entitled to a verdict they must believe from the evidence that the Engineering Corporation was accustomed to leave such‘cars on the track unguarded, and ■ that the cars were customarily resorted to by children for the purpose of play, without hindrance from and with the knowledge of the corporation. Whether or not the charge contained an abstractly accurate statement of the law, we are of the opinion that appellant could not have' been prejudiced by it. He charged in his petition that:

The “car had for many days been by defendants left unguarded on one of the tracks,” and that “many, times prior to said November 5, 1911, various children had pushed said car up and down and had played with and upon it up and upon said switch track for said distance of ten blocks or more in full view of and with the consent and knowledge of the defendant’s servants and employés, who were engaged at said time on. the main track of and work for defendant,” etc.

All these allegations were established by the undisputed evidence. Having alleged the custom of defendant in leaving the car on the track unguarded, the custom of children to play with it upon the track, and that this was with the knowledge of defendant, and having proved these facts, we cannot conceive how harm could have resulted to appellant by the charge complained of. We are further inclined to the opinion that, abstractly considered, the charge was correct. A hand or push ear is not in itself so alluring or attractive to children as to charge the owner with notice that if it is left unguarded children will likely use it as a plaything; that, unless the facts show that children were accustomed to use the hand car and the owner knew or ought to have known of such custom, he could not be charged with knowledge that it might be so used by children to their injury. Railway v. Simpson, 60 Tex. 106; Evansich v. Railway, 57 Tex. 128, 44 Am. Rep. 586; Railway v. Morgan, 92 Tex. 98, 46 S. W. 28; Dobbins v. Railway, 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856.

The special charge given by the court to the jury, which is complained of in the fourth assignment is a correct presentation of the question of proximate cause, as we understand the law to be, and there was no error in giving it.

The portion of the court’s charge submitting to the jury the question of contributory negligence .of plaintiff, which is complained of in the fifth assignment, was not a charge upon the weight of the evidence, nor is it defective in other respects pointed out by the propositions following the assignment. Nor do we think that any undue prominence was given in the charge and special charge requested by defendant on the issue of plaintiff’s contributory negligence, or at least there was no such error in this respect as was calculated to cause, or probably did cause, the rendition of an improper judgment.

The seventh assignment, which complains that “the verdict of the jury was not sustained by the evidence,” and the eighth, which complains of the action of the court in overruling plaintiff’s motion for a new trial, there being several grounds set out in tlie motion, are, under the repeated decisions of the appellate courts of this state, too general to require a consideration of them.

We find no reversible error in the record, and the judgment of the court below1 is affirmed.

Affirmed.

On Motion for Rehearing.

In passing upon that portion of the court’s charge complained of in the third assignment of error we held that, whether or not the charge contained an abstractly accurate statement of the law, it was our opinion that appellant could not have been prejudiced by it, for the reason that the petition charged, and the undisputed evidence showed, that the £ar had for many days been left by defendant unguarded on one of its tracks, and that many times prior to the date of appellant’s injury various children had pushed the car back and forth, and had played with it on the track in full view of and with the consent and knowledge of defendant’s servants, and therefore no harm could have resulted to appellant by giving the charge. We still think that the giving of the charge was harmless if, as we first stated, the proof of these facts was undisputed. But appelant, in his motion for a rehearing, has called our attention to the fact that the proof in this regard was conflicting, and cites us to the testimony of the witness George McMullen, who was the roadmaster of defendant, wherein he says:

“I never saw any little hand cars — push cars —left standing on the track. They are always left to one side of the track on the ground. They were lifted up and put on the ground, unless the men happened to be using them; the men would use them — would have to put ties or rails or shell on them. And on Sundays and holidays they would take these push cars off the track and leave them to one side of the track. Sometimes they would run them down into the yard. Whether they did this all the time I do not know; I was not there all the time.”

This testimony was not called to our attention by the parties in their briefs, and the only testimony referred to by them was that which sustained the allegation above referred to in plaintiff’s petition; hence, assuming that there was no testimony other than that, we stated that the allegations were sustained by the undisputed proof. In heretofore passing upon the charge in question we stated that we were inclined to the opinion that the charge, abstractly considered, was correct. But we did not go fully into an investigation of the question because, for the reasons stated, we believed that, even if the charge was erroneous, no harm could have resulted to appellant by giving it. The raising of an issue of fact by the testimony of the witness McMullen has necessitated a further investigation of the point raised by the assignment, and upon further consideration we have reached the conclusion that the charge was not correct, and that it was harmful, because it placed upon the plaintiff a greater burden to establish the liability of the defendant than the law placed upon him. Under this charge the jury could not have found for plaintiff unless they first found that the unguarded push car was both attractive and dangerous to children. If they did so find, then, before plaintiff could recover, they were required by the charge to find that the defendant was accustomed to leave the car on the track unguarded. If the jury so found, then they were required, before they could find for plaintiff, to go further and find that the car was customarily resorted to by children for play, and, not only this, but that this custom was known to the defendant, and not hindered by it, or that it should have known of such custom by the exercise of proper care. We think that, if the push car was attractive and dangerous to children, and easily 'moved along the track by them, that the defendant’s liability for injuries received by a child who had been attracted to and was playing with the car would be established by showing that the car was left unguarded on the track in a public street, and where the evidence showed that many children lived, if the defendant knew or ought to have known that it was or would likely be resorted to by children for play, without showing that the defendant was accustomed to leave the car on the track unguarded, or that children customarily resorted thereto for play.

The jury might have believed that the defendant customarily took the push cars off the track and placed them upon the ground when not in use by its employés, or ran them down in the yard, as testified by the witness McMullen, and that the leaving of them upon the track unguarded was not customary, but occasional only, and, if they did so believe, then under the charge they were required to find for defendant, even though they should also find that the cars when so left on the track were attractive and dangerous to children, and that children, with the knowledge or consent of the defendant, resorted to them for purposes of play upon such occasions as they were left upon the track unguarded. The learned trial judge was led into the error, no doubt, by the allegations of the petition and the testimony referred to in our main opinion, overlooking, as we did, the testimony of the witness Mc-Mullen which raised the conflict. Any statement in our main opinion in conflict with the ruling here announced is hereby withdrawn.

The judgment of the court below in favor of the Galveston Electric Company and the Galveston-Houston Electric Railway Company is affirmed, and reversed and remanded as to the defendant Stone & Webster Engineering Corporation.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: PLEASANTS, C. J.

text:
    HOLT v. STATE.
    (No. 6740.)
    (Court of Civil Appeals of Texas. Galveston.
    April 9, 1915.
    Rehearing Denied April 29, 1915.)
    1. Drains <@=>90 — Drainage Districts — Collection oe Delinquent Taxes.
    Under Rev. St. 1911, art. 2603, authorizing the commissioners’ court to levy, assess, and collect drainage district taxes, subject to the law governing the assessment and collection of taxes for state and county purposes, and article 7688, providing that suits to collect state and county taxes shall be brought in the name of the state, the commissioners’ court may direct the bringing of suits for delinquent drainage taxes, and the suits must be brought in the name of the state.
    [Ed. Note. — For other eases, see Drains, Cent. Dig. §§ 91-101, 103; Dec. Dig. <§=>90.]
    2. Drains <@==>18 — Establishment oe Districts — B on ds — Tax atio n .
    Const, art. 3, § 52, conferring on drainage districts the power, by a two-thirds vote of the property taxpayers, to issue bonds for drainage purposes, and to levy and collect taxes to pay interest and sinking fund, as the Legislature may authorize, vests in the voters of a district the power to determine whether bonds shall be issued and a tax levied and collected, and when the power has been exercised, the actual issuance of the bond and the levy, assessment, and collection of taxes may be done in a manner authorized by the Legislature.
    [Ed. Note. — For other eases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. <@=>18.]
    3. Counties <§=113 — Power oe Commissioners’ Court — Employment oe Counsel — Drainage Districts — Delinquent Taxes.
    Under Rev. St. 1911, art. 7707, empowering the commissioners’ court to contract with one person to enforce collection of any delinquent state and county taxes, and where any district or county attorney refuses to bring suits therefor, the commissioners’ court may employ some other attorney to sue in the name of the state, an action in the name of the state for delinquent taxes, brought by a firm of attorneys employed by the commissioners’ court to bring suits to collect taxes, will not be abated, in the absence of anything to show why the county or district attorney therein failed to prosecute the suit.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174-180; Dec. Dig. <@=>113.]
    4. Drains <@=>90 — Drainage Delinquent Taxes — Actions—Petition—Sufficiency.
    A petition, in an action for delinquent drainage taxes, which describes the lands as several tracts owned by and in possession of defendant, in the district, and as being the several parcels described in exhibits attached to the petition and made a part thereof, the same being-described in duly recorded deeds to defendant, made a part of the petition for identification, and the exhibits, consisting of copies of the assessor’s tax rolls, showing assessments of defendant’s land in the district, giving the name of the owner, abstract number, and number of certificate, number of the survey, name of original grantee, number of acres assessed, and value thereof, sufficiently describes the land; for it can be identified by extrinsic evidence.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 91-101, 103; Dec. Dig. <@=>90.]
    5. Drains <@=>13 — “Drainage” Districts — Establishment — Statutory Authority.
    A statute, for the creation of drainage districts, authorized the creation of a district to straighten and develop streams, dig necessary ditches to drain the territory, and construct a levee- to prevent the stream from overflowing; for “drainage” in its larger sense includes, not only means to provide outlets and channels to relieve land from water which accumulates thereon, but ditches, drsh>“, and embankments to prevent accumulation of water.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 4; Dec. Dig. <@=>13.
    For other definitions, see Words and Phrases, Drainage.]
    6. Drains <@=>14 — Drainage Districts — Establishment — Validity — Collateral Attack.
    Under Acts 32d Leg. c. 118, § 24a (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2597a), providing that no suit contesting- the validity of a drainage district shall be brought, except in the name of the state by the Attorney General, the right of a drainage district, created under a statute and exercising functions as a district, to exist and exercise such functions cannot be raised in an action for the collection of delinquent drainage district taxes.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. <§=>14.]
    7. Drains <@=>15 — Drainage Districts — Constitutional Provisions.
    Const, art. 3, § 52, authorizing the Legislature to provide for the creation of drainage districts out of any county, or political subdivision thereof, or any number of adjoining counties, or any political subdivision of the state, or any defined district to be described and defined, authorizes creation of a drainage district out of any defined territory, and does not require that a district shall form any political subdivision of the county or state, or any defined territory existing prior to the creation of the district.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 7-10; Dec. Dig. <@=>15.]
    8. Drains <@=>2 — Drainage Districts — Taxation — Statutory Provisions.
    Const, art. 3, § 52, authorizing the creation of drainage districts with power, by a two-thirds vote, to issue bonds and levy necessary taxes, does not invalidate a statute conferring on the commissioners’ court the power to issue bonds and levy taxes legally voted.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 17; Dee. Dig. <@=>2.]
    On Motion for Rehearing.
    9. Drains <@=>90 — Drainage Districts — Collection.
    Under Vernon’s Sales’ Ann. Civ. St. 1914, arts. 7624, 7632, 7687, 7692, providing that delinquent tax lists shall be made up by the tax collector on March 21st, after the taxes become due, and that the tax lists, when approved by the commissioners’ court, shall be published for three consecutive weeks, and after such advertisement, suits shall be instituted, a suit for delinquent drainage district taxes cannot be brought before April 21st of the year succeeding the year for which they were assessed.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 91-101, 103; Dee. Dig. <@=>90.]
    10. Limitation oe Actions <@=>11 — Drainage Districts — Collection oe Taxes — “State or Any County, City, or Town.”
    Under Rev. St. 1895, art. 5212b, providing that no delinquent taxpayer may plead any statute of limitation against payment of any taxes due to the “state or any county, city or town,” a defendant, sued for delinquent drainage district taxes, may not invoke limitations as a defense.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. <@=>11.]

      11. Statutes <S=»181 — Construction—Legislative Intent.
    The court, in construing a statute, must seek to give effect to the legislative intent.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. <&=>181.]
    12. Drains <@=»67 — Drainage Districts — TAXATION — OoNSTITUTIONAL LIMITATIONS.
    Const, art. 3, § 52, prohibiting the Legislature from authorizing any county, city, town, or other subdivision from lending its credit to any individual or corporation, provided that under legislative provision any county, political subdivision, or any defined district may, on a two-thirds majority of the taxpayers voting thereon, issue bonds in any amount not to exceed one-fourth of the assessed valuation of the realty in the district, does not prohibit the levy and collection of taxes on property in any city or town to pay interest on a sinking fund for bonds issued by a drainage district of which the city or town is a part, on the ground that the city or town has previously issued bonds in the full amount permitted by other provisions of the Constitution, for drainage district bonds do not add to the bonded indebtedness of the city or town, and the limitation limits only the amount of bonds which can be issued for drainage purposes.
    [Ed. Note. — Eor other cases, see Drains, Cent. Dig. §§ 73, 76, 91; Dee. Dig. <@=>67.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action in the name of the State of Texas, for the use of Matagorda County Drainage District No. 1, against John E. Holt. Erom a judgment for plaintiff, defendant appeals.
    Affirmed, and motion for rehearing overruled.
    D. R. Peareson, of Richmond, and Krause & Wilson, of Bay City, for appellant. J. W. Conger, of Bay City, for appellee.
   PLEASANTS, C. J.

This suit was brought in. the name of the state of Texas, for the use and benefit of Matagorda County Drainage District No. 1, against appellant to recover taxes, together with penalties, interest, and costs, alleged to be due by appellant upon lands in said drainage district owned by him and against which the taxes sought to be recovered were levied and assessed for the years 1910 and 1911, and to foreclose the tax lien upon said lands. The petition was signed by the law firm of Linn, Conger & Austin as “attorneys for plaintiff.” The defendant answered by plea in abatement, by which it is averred that the state of Texas is not authorized to institute and maintain this suit, but such suit could only be brought and maintained by Matagorda County Drainage District No. 1, by and through the drainage commissioners of said district; and, if such suit could be maintained by the state, the firm of Linn, Conger & Austin are not officers of the state of Texas authorized by law to institute suits in the name of the state to recover delinquent taxes. The defendant further answered by general demurrer and special exceptions and pleas, which it is unnecessary to set out, but the nature of which will be indicated by the questions hereinafter discussed. The trial in the court below without" a jury resulted in a judgment in favor of the state of Texas, for the use and benefit of Matagorda County Drainage District No. 1 for the sums claimed in the petition, and for foreclosure of a tax lien upon the lands described in the petition.

The first assignment of error is as follows:

“The court erred in overruling defendant’s plea in abatement and in not dismissing this cause, because it appears this is a suit in the name of the state of Texas, for the use and benefit of Matagorda County Drainage District No. 1, to recover taxes, alleged to have been assessed and levied on property in said drainage district for the purpose of paying interest on certain bonds alleged to have been issued by said drainage district for certain purposes and to create a sinking fund to pay off said bonds at maturity, because if said taxes are collectible, the commissioners of said drainage district or said drainage district are the parties authorized by law to enforce collection thereof.”

Article 2603 of the Revised Statutes of 1911, which is one of the articles in title 47, chapter 4, of the statutes relating to drainage and the creation of drainage districts with authority to issue bonds for the purpose of obtaining funds for securing necessary drainage for districts created under the authority of said statute, contains the following:

“Whenever any such district drainage bonds shall have been voted, the commissioners’ court shall levy and cause to be assessed and collected taxes upon all property within said drainage district, whether real, personal, mixed or otherwise, and sufficient in amount annually to pay the interest on such bonds, as it shall fall due, together with an additional amount to be annually placed in a sinking fund sufficient to discharge and redeem said bonds at their maturity. If advisable, the sinking fund shall, from time to time, be invested in such county, municipal, district or other bonds as shall be approved by the attorney general of the state for the benefit of such drainage district. Provided that, in the assessment and collection of the taxes authorized by this chapter, and in all matters pertaining thereto or connected therewith, said assessor and collector shall have the same powers and shall be governed by the same rules, regulations and proceedings as are provided by the laws of this state for the assessment and collection of taxes for state and county purposes, unless otherwise provided for in this chapter. The taxes levied or authorized to be levied by this chapter shall be a lien upon the property for which said taxes are assessed; and it shall be tbe duty of * * * commissioners’ court, and the said court shall have authority, to fix and determine when said taxes shall mature; and, upon the failure to pay said taxes when due, the penalty provided by the laws of Texas for the failure to pay state and county taxes at maturity shall in every respect apply to taxes herein authorized to be assessed and levied.”

This provision of the statute expressly confers upon the commissioners’ court the authority to levy and collect the taxes necessary to meet the obligations incurred in the issuance of bonds by a drainage district, and also provides, in substance, that in all matters pertaining to the assessment and collection of taxes the laws of the state in regard to the assessment and collection of state and county taxes shall apply. Article 76SS of the statutes provides that suits for the collection of state and county taxes shall be brought in the name of the state. We think, when construed together, these articles not only authorize, but require, that the commissioners direct the bringing of suits for the collection of delinquent taxes, levied and assessed by such court upon the property of a drainage district organized under the statute before cited, and that such suit must be brought in the name of, the state.

The article of the statute above quoted, which gives the commissioners’ court the power to levy, assess, and collect taxes in a drainage district which has voted to issue drainage bonds, is not in conflict with section 52, art. 3, of the Constitution, which confers upon drainage districts the power, by a two-thirds vote of the property taxpayers voting at an election held for that purpose, to issue bonds for drainage purposes and to levy and collect the taxes necessary to pay the interest and provide a sinking fund for the redemption of the bonds at their maturity. This provision of the Constitution expressly provides that the power therein conferred upon the voters of a drainage district shall be exercised in such manner as the Legislature may authorize. The power to determine whether the bonds should be issued and the tax levied and collected is vested absolutely in the voters of the district, but when this power has been exercised, the actual issuance of the bonds, and the levy, assessment, and collection of the taxes shall be done in such manner as the Legislature may authorize, and this provision of the Constitution cannot be construed as prohibiting the Legislature from placing upon • the commissioners’ court the duty to issue the bonds and levy, assess, and collect the taxes authorized by the voters of the district.

L3] The second assignment, which complains of the refusal of the court to sustain the plea in abatement, on the ground that the suit was not brought by the Attorney General or the district or county attorney, and that the authority of the firm of Linn, Conger & Austin to represent the state in the bringing of the suit was not alleged in the petition, is without merit. The evidence shows that the commissioners’ court of Mat-agorda county, by an order duly passed and entered upon the minutes of said court, authorized the law firm of Linn, Conger & Austin, as special attorneys, to collect these taxes and to prosecute suits to enforce such collection. Article 7707 of the statute authorizes the commissioners’ court, whenever deemed expedient by the court, to enter into a contract with any person to enforce collection of any delinquent state and county taxes. This article further provides that it shall be the duty of the county attorney, or of the district attorney where there is no county attorney—

“to actively assist the person with whom the contract is made, by filing and pushing to a speedy conclusion all necessary suits for the collection of delinquent taxes under any contract ; provided, that where any district or county attorney shall fail or refuse in good faith to prosecute such suits, he shall not be entitled to any fees from such suits; provided, that where any district or county attorney fails or refuses to bring these suits when requested to do so by the commissioners’ court, or by the person having a contract herein provided for, then the contractor shall be authorized to employ some other attorney to file these suits in the name of the state, in the same manner provided by law to enforce the collection of delinquent taxes.”

The record in this case is silent as to why the county or district attorney failed to prosecute this suit; but, as the duty to have the taxes collected is imposed by the statute upon the commissioners’ court, and that court is expressly authorized to contract with any person -to enforce the collection of such taxes, and in the exercise of this authority it has contracted with the firm of Linn, Conger & Austin to enforce such collection by prosecuting this suit, such suit cannot be abated because the county or district attorney, for some reason not shown by the record, did not file the suit as attorney for the plaintiff. Neither the county nor the district attorney appear to have asserted any right to bring the suit, and we do not think the question of the right of Linn, Conger & Austin to bring the suit can be raised by any other person.

The third and fourth assignments complain of the ruling of the trial court in refusing to sustain exceptions to the petition upon the grounds presented in the plea of abatement before discussed, and are disposed of.by our holdings under the first and second assignments.

The fifth assignment complains of the ruling of the court in not sustaining appellant’s exception to the petition on the ground that it does not sufficiently describe the land upon which the lien was sought to be foreclosed, and the sixt}i assignment complains of the judgment entered in the court below on the ground that the land upon which the tax lien is therein foreclosed is not sufficiently described. The petition describes the land as several tracts owned by and in the possession of defendant in Matagorda County Drainage District No. 1, in Matagorda county, and being—

“all the several tracts, parcels and portions of land described in Exhibits A and B, attached hereto, and made a part hereof, and same being fully described in deeds and conveyances to said John E. Holt, duly recorded in the deed records of Matag-orda county, Tex., and which are referred tq and made a part hereof for identification and certainty, and defendant is hereby notified to produce each and every of the said original deeds and conveyances on the trial hereof, or secondary evidence of their contents will be used on the trial by plaintiff.”

The exhibits referred to, and which were attached to the petition, were copies of the assessor’s tax rolls showing the assessments made of defendant’s land in said drainage district for tlie years 1910 and 1911. These rolls were prepared in accordance with article 7563 of the Revised Statutes, and give the name of the owner, the abstract number and number of the certificate, the number of the survey, name of the original grantee, the number of acres assessed, and the value thereof. The exception to the petition is as follows:

“That the lands described in said plaintiff’s petition upon which foreclosure is sought are described in a vague and uncertain manner and no such description is averred that identifies the land with that degree of certainty required by law.”

This is nothing more than a general demurrer to that portion of the petition describing the lands upon which the lien was sought to be foreclosed, and the exception was properly overruled. It is clear that a deed containing a description of this kind could not be held void for insufficiency of description, and the same rule applies in determining the sufficiency of description in an assessment of property and in a petition seeking to foreclose the tax lien. This rule, as stated by our Supreme Court in the case of Eustis v. City of Henrietta, 90 Tex. 471, 39 S. W. 567, is:

“That such description is sufficient when it furnishes the means by which the property can be identified from the description itself or by the use of extrinsic evidence to apply that description to the property.”

Tested by this rule, we think there is no question of the sufficiency of the description of the property before set out. The description of the land in the judgment follows that in the petition and, under the rule above stated, is sufficient.

The remaining assignments of error, which we will not set out nor discuss in detail, present the questions hereinafter discussed.

First. It is contended under appropriate assignments that the creation of the district and the issuance of the bonds and the levy and assessment of the taxes sought to be collected by this suit were illegal and unauthorized, because the petition for the creation of said district and the estimates of the engineer, upon which the election to determine whether said district should be created, the bonds issued, and the tax levied was ordered, show that the purpose sought in the creation of the district and the issuance of the bonds was the protection of said district from overflow by the erection of levees, and not. to secure drainage therefor, and the creation of a levee district and the issuance of bonds for the purpose of erecting levees to prevent overflows was not authorized by law at the time this district was created and the bonds voted and issued. We do not think this contention is sound. The petition for the creation of said drainage district, contains the following:

“Said district lies partly on the eastern bank of the Colorado river, and that by reason of the impediments to the flow of the water through the channel of the Colorado river, said territory was constantly menaced by overflow, and, unless some adequate means of protection be provided, the whole or greater part of said territory would be practically useless for agricultural purposes; that by the creation and maintenance of a levee along the western boundary of such district, the greater part of such territory would be rendered susceptible to cultivation, and unless such drainage and protection from overflow be provided, that the value of such property for agricultural purposes would be practically destroyed; that the territory embraced is situated between the Colorado river and Caney creek, with a fall of about 18 inches to 2 feet to the mile, with watersheds- adjacent to said streams, the majority of which empty into Matagorda Bay, and that by straightening and developing such streams, and digging the necessary ditches said territory could be easily drained, and by the erecting of an embankment along the western boundary of said proposed district and on east side of the Colorado river such territory could be free and completely protected from overflow.”

The estimate of the engineer shows that much the larger portion of the proposed improvement was the cost of erecting the necessary levees to prevent the overflow of the district by the flood waters of the Colorado river. We are not inclined to hold that the creation of the district for the purpose stated was unauthorized. At the time this district was created we had no statute providing for the creation of levee. districts as such, and, as before stated, this district was created under the statute above referred to, providing for the creation of drainage districts. Drainage in its larger sense includes, not only providing outlets and channels for relieving land from water which accumulates thereon, but also such ditches, drains, and embankments as may be necessary to prevent the accumulation of the water, and any system of drainage will involve, to some extent at least, the creation of embankments or levees. We do not think the fact that the larger portion of the costs of the proposed undertaking was the construction of embankments or levees prevented or rendered void the creation of the drainage district under the statute authorizing the creation of such districts.

But be this as it may, the district was created under the provision of the statute, and is an existing quasi municipal corporation, exercising all its functions as such, and its right to exercise such functions cannot be collaterally attacked, but only in an action brought for that purpose by the state or under its authority. Parker v. Harris County Drainage District, 148 S. W. 352; Wharton County Drainage District v. Higbee, 149 S. W. 382.

It is expressly provided by the statute (Acts of 1911, p. 245, § 24a [Vernon’s Say les’ Ann. Civ. St. 1914, art. 2597a]) that no suit contesting the validity of a district of this kind, or of the bonds of such district, shall be permitted to be brought in any court of this state except in the name of the state by tlie Attorney General upon Ms own motion, or upon the motion of some other party upon good cause shown.

It is further contended that the creation of the district was illegal, and that its attempted creation and the bonds issued for said district are void, because the lines of the district do not confine its territory to any esisting political subdivision of the county of Matagorda or of the state of Texas.

Section 52 of article 3 of the Constitution, which authorizes the Legislature to provide for the creation of drainage districts, describes the districts authorized to be created as follows:

“Any county, any political subdivision of a county, any number of adjoining counties, or any political subdivision of the state, or any defined district now or hereafter to be described and defined within the state of Texas, and which may or may not include towns, villages or municipal corporations.”

This provision of the Constitution expressly and unequivocally authorizes the creation of such district out of any defined territory, and does not require that such districts conform to any political subdivision of the county or state, or any defined territory existing prior to the creation of the district.

It is further contended that the bonds and the tax levy therefor are illegal and void because the Constitution gave to the district when created the power to issue the bonds and levy the tax, and the Legislature was without authority to delegate such powers to the commissioners’ court. While the provision of the Constitution before cited confers upon the drainage district the power by a two-thirds vote of its resident property taxpayers to issue bonds for the purposes stated, and to levy the necessary tax, it directs that the district shall be created and the bonds issued under legislative supervision. The provisions of the statute requiring that bonds, when authorized by a vote of the district, shall be issued by the commissioners’ court is not obnoxious to the provisions of the Constitution above mentioned. The commissioners’ court is only made the agent of the voters of the district for performing the ministerial work of issuing bonds and assessing and collecting the tax authorized to be levied by the voters of the district. The Constitution means nothing more than that the issuance of the bonds and the levy of the tax therefor shall be authorized by a two-thirds vote of the resident property taxpayers of the district. When this authorization has been had the actual issuance of the bonds, and the manner and means of collecting the tax therefor, are mere matters of administrative detail which the Legislature was authorized to direct. We do not think there is any merit in the contention that the bonds are void because the district for which they were issued includes Bay City, an incorporated town of less than 10,000 inhabitants, and said city has levied taxes for other purposes up to the limit fixed by the Constitution. If the pro vision of the Constitution before referred to should be construed as preventing the levy of taxes for drainage bonds upon property in the city which was already taxed for city purposes the full amount authorized by the Constitution, a property owner in the city might defeat the collection of the drainage bond tax levied upon his property therein, but this would not affect the validity of the drainage district and the bonds issued therefor.

This disposes of all the material questions presented by appellant’s brief. If there is any merit in any of the assignments, the questions,, presented are not such as can be raised in this suit. We have considered each of the assignments presented, and none of them should, in our opinion, be sustained. It follows that, the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.

On Motion for Rehearing.

In our main opinion, filed in this cause on April 9, 1915, appellant’s twelfth assignment of error was overruled without discussion. On motion for rehearing counsel for appellant very earnestly insist that this assignment, which assails the judgment of the trial court in favor of plaintiff for the taxes assessed against appellant for the year 1910, on the ground that plaintiff’s suit for said taxes was barred by the statute of limitation of two years, should be sustained. Plaintiff’s petition was filed on April 17, 1913. The taxes assessed against appellant for the year 1910 were due or payable on January 1, 1911, and the collection of said taxes might have been enforced by the tax collector under the provisions of articles 7624 and 7632, Vernon’s Sayles’ Civil Statutes, at any time after said date, but no suit for the collection of delinquent taxes upon real estate is authorized until after the delinquent list has been made out and approved by the commissioners’ court, as provided in article 7692 of .the statutes above mentioned, and the lands upon which the taxes are due advertised, as provided in article 7687 of the said statutes. These articles of the statutes provide that the delinquent lists shall be made up by the tax collector on March 31st, after the taxes become due, and that after such lists have been corrected and approved by the commissioners’ court they shall be published for three consecutive weeks in some newspaper published in the county, “and after such advertisement suits shall be instituted,” etc. It is manifest, under the provisions of these articles, that no suit for delinquent taxes due upon real estate can be brought earlier than the 21st day of April of the year succeeding the year for which the taxes were assessed. Plaintiff,' therefore, could not have instituted this suit before April 21, 1911, which was less than two years before the date upon which the suit was filed, and if the statute of limitation applies to suits brought by or in the name of the state to recover taxes due a drainage district, the record shows that this suit was brought within two years after the cause of action and right to sue accrued, and therefore was not barred by the statute of limitation.

We are further of the opinion that the statute of limitation cannot be invoked as a defense to a suit of this kind. Article 5212b of the Revised Statutes of 1895 provides that:

“No delinquent taxpayer shall have the right to plead in any court or in any manner rely upon any statute of limitation by way of defense against the payment of any taxes due from him or her either to the state or any county, city or state.”

While the taxes involved in this suit were levied only upon property of the drainage district and for the benefit of said district, they were levied by the commissioners’ court, and it is made the duty of that court to collect said taxes by suit brought therefor in the name of the state. We think it would do violence to the evident purpose and intent of the Legislature in the passage of this act to construe its language so literally as to restrict its application to taxes levied for state, county, city, or town purposes. The intention of the Legislature in the passage of this statute was manifestly to deny to all delinquent taxpayers the benefit of the general statutes of limitation, and it would defeat that purpose to exclude from the operation of the act taxes due a drainage district by placing a literal construction upon the words “taxes due either to the state or any county, city or town.” Such words should, we think, be construed to include any and all taxes levied and assessed under the Constitution and laws of this state, whether they are levied and assessed for state, county, city, or town purposes, or for the benefit of a drainage district or other quasi municipal corporation.

Mr. Sutherland, in his work on Statutory Construction, § 218, says:

“It is indispensable to a correct understanding of a statute to inquire, first, what is the subject of it — what object is intended to be accomplished by it? When the subject-matter is once clearly ascertained, and its general intent, a key is found to all its intricacies; general words may be restrained to it, and those of narrower import may be expanded to embrace and effectuate that intent. When the intention can be collected from the statute, words may be modified, altered, or supplied so as to obviate any repug-nancy or inconsistency with such intention.”

In the case of Russell v. Farquhar, 55 Tex. 855, the Supreme Court, speaking through Chief Justice Moore, announced the general doctrine in the following forcible language:

“If courts were in all cases to be controlled in their construction of statutes by the mere literal meaning of the words in which they are couched, it might well be admitted that appellants’ objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts, in a blind effort to refrain from an interference with legislative authority by their failure to ttpply well-established rules of construction, to, in fact, abrogate their awn power and usurp that of the Legislature, and cause the law to be held directly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to ‘try out the right intendment’ of statutes upon which they are called to pass, and by their proper, construction to ascertain and enforce them according to their true intent. Eor it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent.”

Our courts have uniformly approved and followed this rule of statutory construction. Forshey v. Railway Co., 16 Tex. 528; Womack v. Womack, 17 Tex. 1; Runnells v. Belden, 51 Tex. 48; Ins. Co. v. State, 86 Tex. 268, 24 S. W. 397, 22 L. R. A. 483; Storrie v. Street Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716; City of Houston v. Dooley, 40 Tex. Civ. App. 371, 89 S. W. 777; Railway Co. v. Hornberger, 141 S. W. 311.

In disposing of the questions presented by the thirteenth assignment of error, we say in our main opinion:

“We do not think there is any merit in the contention that the bonds are void because the district for which they were issued includes Bay City, an incorporated town of less than 10,000 inhabitants, and said city has levied taxes for other purposes up to the limit fixed by the Constitution. If the provision of the Constitution before referred to should be construed as preventing the levy of taxes for drainage bonds upon property in the city which was already taxed for city purposes the full amount authorized by the Constitution, a property owner in the city might defeat the collection of the drainage bond tax levied upon his property therein, but this would not affect the validity of the drainage district and the bonds issued therefor.”

Appellant in Ms motion for rehearing has directed our attention to evidence in the record which shows that a portion of his land upon which the taxes sued for were assessed is situated in the corporate limits of the city of Bay City, and under the assignment the question of the validity of the tax upon this land is properly raised. Section 52, art 3, of the Constitution of this state is in the following language:

“The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the state, to lend its credit or to grant public money or thing of value in aid of, or to, any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company; provided, however, that under legislative provision any county, any political subdivision of a county, any number of adjoining counties, or any political subdivision of the state, or any defined district now or hereafter to be described and defined, within the state of Texas, and which may or may not include towns, villages or municipal corporations, upon a vote of two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of such district or territory to be affected thereby, in addition to all other debts, may issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district or territory, except that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of this Constitution, and levy and collect such taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, as the Legislature may authorize, and in such manner as it may authorize the same, for the following purposes, to wit.”

One of the purposes for which the debt authorized to be incurred under this provision of the Constitution is “drainage, or in aid thereof.” Under the rule of construction which we have above stated, we do not think this constitutional provision can be construed as prohibiting the levy and collection of taxes upon property in a city or town to pay the interest and sinking fund requirements of bonds issued by a drainage district of which the city or town forms a part, on the ground that such city or town has theretofore issued bonds in the full amount permitted by other provisions of the Constitution. These bonds do not add to the bonded indebtedness of the town. The provision of the Constitution above quoted expressly provides that the debt created by the issuance of drainage bonds shall be “in addition to all other debts,” except that a city or town shall not increase its bonded indebtedness for drainage purposes beyond the limit authorized .by other provisions of the Constitution. Under this section of the Constitution a city or town would be authorized to issue bonds for drainage purposes or in aid thereof, and we think the exception stated in said provision was only intended to limit the amount of bonds which can be issued by a city or town for such purpose, and the fact that a city or town has issued bonds to the full amount allowed by the Constitution does not relieve the property in said city or town from taxes levied to provide for bonds issued by a drainage district of which such city or town is a part. We think the assignment was properly overruled.

We have carefully considered appellant’s able motion for rehearing, and have concluded to adhere to our former opinion. It follows that the motion should be overruled; and it has been so ordered.

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

      cg^For other ca-ses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HOUSTON, E. & W. T. RY. CO. v. HOUSTON PACKING CO.
    (No. 446.)
    (Court of Civil Appeals of Texas. El Paso.
    April 29, 1915.
    Rehearing Denied May 20, 1915.)
    Appeal and Error <§=>263 — Bill op Exceptions — Necessity.
    Assignments complaining of the refusal of special charges will be overruled, where no bill of exceptions was taken to their refusal, as required by Acts 33d Leg. c. 59.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <§=>263.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Houston Packing Company against the Houston East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lane, Wolters & Storey and Baker, Botts, Parker & Garwood, all of Houston, for appellant. Hutcheson & Hutcheson, of Houston, for appellee.
   HIGGINS, J.

The Houston Packing Company brought this suit to recover of appellant damages arising out of the shipment of a car of meat from Houston, Tex., to Pitts-burg, Pa. The damage is alleged to have been due to delay in transit and insufficient re-icing. 'Prom a verdict and judgment in plaintiff’s favor, the Railway Company appeals.

Appellant was the initial carrier, and the bill of lading which is issued, among other things, provided that the shipment was to be properly re-iced when necessary while in transit. Appellee furnished the car containing the shipment.

It is assigned as error that the verdict is contrary to the evidence, it being contended in the supporting propositions that the car containing the shipment was improperly constructed as to insulation, that the evidence disclosed the car had been properly re-iced while in transportation, and that there was no unreasonable delay in transit. No good purpose can be served by detailing and discussing the evidence. It is sufficient to support a finding adverse to appellant upon each of the issues presented in support of its assignments upon this phase of the case.

Those assignments complaining of the refusal of special charges are overruled, for the reason that no bill of exception was taken to their refusal, as required by chapter 59, Acts of 33d Legislature.

Affirmed.