source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SWEAT v. STATE.
    (No. 3629.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Homicide <&wkey;47 — Manslaughter—Provo - cation.
    In a prosecution for homicide, where defendant claimed that he hilled deceased under the provocation, reducing the crime to manslaughter, that he had been informed that deceased had sustained criminal relations with his wife, the point was, not whether deceased had actually been guilty of the acts, but whether ■defendant had been so informed and so believed.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. <&wkey;>47.)
    2. Homicide &wkey;>295 — Trial—Necessity for Instruction on Provocation.
    In a prosecution for homicide, whex-e the defendant offered evidence of provocation, to reduce the offense to manslaughter, that deceased had been guilty of improper l’elations with defendant’s wife, and where the whole trend of the state’s evidence was to show that deceased had not been guilty, and that the matter was a fabrication pure and simple, the jury should have been instructed that the material point on the issue of provocation was, not whether deceased had been guilty of the conduct alleged, but whether defendant had been informed and believed that he was so guilty.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. &wkey;295.]
    3. Criminal Law <&wkey;542 — Evidence—Testimony at Former Trial — Death of Witness.
    In a prosecution for homicide, where a witness, who testified at a former trial, had died, testimony given on such former trial, that would have been admissible if the witness was living, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1232, 1236; Dec. Dig. 542.J
    4. Criminal Law &wkey;452 — Evidence—Opinion.
    In a prosecution for homicide, where a witness was asked if he recognized a man he saw turn and walk off, and replied that he could not tell, but that it ran in his mind that it was defendant, such testimony was inadmissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1053-1055; Dec. Dig. i&wkey;> 452.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Troy Sweat was convicted of murder, and lie appeals.
    Reversed and remanded.
    II. S. Moreliead and K. W. Gilmore, both of Franklin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 99 years’ confinement in the state penitentiary.

If the state’s theory of the case is the correct one, the punishment is none too severe. The evidence for the state would have defendant, on the morning of the homicide, trading; for a new shotgun; going to New Baden and inquiring for buckshot shells, but, when he could not get them, purchasing a box of No. 2 shot — duck shot; when he returned to his home he took his gun and went near the farm of deceased. The deceased was plowing, wholly unarmed. Appellant got into a deep ditch or dugout and trailed up to a point near where deceased would necessarily come in plowing his field. Appellant hid himself behind a bush, and as deceased got to the end of the row, and was turning his team, shot two loads of duck shot into the head and body of deceased, being so near the shot did not scatter over three inches. When the first shot was fired, deceased said “Oh Lordy! Troy, you have shot me.” Appellant and deceased were brothers-in-law. According to the state’s evidence it was a case of creeping up on the deceased, lying in ambush — a coldblooded assassination. Appellant does not deny the killing. His evidence would present the theory that deceased had mistreated his sister who was the wife of deceased, and had been mistreating her for five years, kicking her and whipping her with a rope, of which facts he had but recently been informed; that deceased had attempted to debauch another sister, a cripple; and in addition to this, had debauched his (appellant’s) wife. Appellant would give as a reason for trading for the shotgun and the purchase of the shotgun shells, that some one had been about his house the two nights immediately preceding the homicide, and at the time he obtained the gun and shells he thought his life was in danger, and he purchased them to protect himself and his property. That after the purchase he returned home, and he and J. O. Willis were talking about the nocturnal visits to his home, when his wife broke down and began to cry; that his wife then confessed to him that the night visitor was deceased; that for years past she had been having carnal intercourse with deceased; that the first act was obtained by force, deceased having a pistol and threatening to kill her; that since said time, to conceal this act, she had met deceased at night whenever he demanded. His theory' is that he at once went to the farm of deceased and shot and killed him, and under such circumstances he would be guilty of no higher grade of offense than manslaughter. While there are a number of bills of exceptions in the record, and some 27 exceptions to the charge of the court, each of which we have read carefully, we want to say that the charge of the court is a most admirable presentation of the law of the case, unless it be in the following paragraph of the charge:

“If you believe from the evidence that the defendant did shoot with a gun and kill the deceased, if he did kill him, and you believe that said gun that was used was a deadly weapon, with the intent to kill did shoot at the deceased and kill him, but you further believe that prior to the said killing., if any, the deceased had used words that were insulting, or was guilty of insulting conduct towards any female X'eiations of the defendant, to wit, his wife, or his sister or sisters or niece, if there was insulting words or conduct towai’ds his wife or sister or sisters or niece, or carnal intercourse with his wife, and you believe that the defendant killed deceased immediately upon the happening of the insulting conduct or the uttering of the insulting words or committing of such carnal intercourse, or so soon thereafter as the defendant met with deceased after having been informed of such insult or insults, you will find the defendant guilty of manslaughter. And, in this connection, you are instructed that said Mrs. Troy Sweat and defendant’s sister or sisters or niece were female relatives of the defendant as that term has been used herein.”

Appellant specially excepted to the following language:

“But you further believe that, prior to the said killing, if any, the deceased had used words that were insulting, or was guilty of insulting conduct towards any female relations of the defendant, to wit, his wife, or his sister or sisters or niece, if there was insulting words or conduct towards his wife or sister or sisters or niece, or carnal intercourse with his wife.”

The contention is made that this shifted the burden of proof, and required defendant to affirmatively prove that deceased had carnal knowledge of his wife, or prove that deceased was guilty of insulting conduct towards his female relations; whereas, he was entitled to the reasonable doubt on this issue as -well as all other issues. The charge is so worded as a whole, that we might be authorized to hold that the jury would not be misled into such belief, but it is further contended that the correct criterion is not whether deceased was actually guilty of those acts, but the jury ought to have been instructed in this connection (it being the paragraph in which manslaughter was submitted for a finding) that it would be immaterial whether or not deceased had been guilty of the acts, if they found that appellant had been informed and believed that deceased had been guilty of such conduct, or they had a reasonable doubt of that fact, he would be guilty of manslaughter. It is not so much whether or not the deceased had been guilty of the acts, but the question is, had the defendant been so informed and did he so believe, not whether the jury might find from the evidence on the trial that deceased was or was not guilty of the acts stated. It might be found that the testimony on the trial as to the improper conduct of deceased was an entire fabrication, yet, notwithstanding its falsity, if appellant had been informed that deceased had so conducted himself, had debauched his home, and he believed it to be true at the time he acted, he would not be guilty of higher grade of offense than manslaughter, even though the trial might convince him that he was in error in such belief. It is the motive that prompted appellant to act at the time he did so, and not what might afterwards be determined to be the true state of facts.

If there had been no contest on this issue, it might not present reversible error, but the whole trend of the evidence offered by the state was to show that deceased had not been guilty of such conduct, that it was a fabrication pure and simple, and, under the evidence, the jury would be authorized to so find, and, under such circumstances, it became necessary to inform the jury when submitting the issue for a finding to instruct them the law applicable to the ease: That, if appellant had been informed that deceased had been guilty of improper relations with his wife, and he believed it to be true, and acting on this information he shot and killed, he would only be guilty of manslaughter, even though the jury might find that in fact deceased had not been guilty of such conduct. Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep 46; Messer v. State, 43 Tex. Cr. R. 107, 63 S. W. 643; Hudson v. State, 43 Tex. Cr. R. 423, 66 S. W. 668; Bays v. State, 50 Tex. Cr. R. 551, 99 S. W. 561; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158.

The only other bill in the record we deem it necessary to notice, as the others present no error, is bill No. 5, which shows that J. W. Chase who testified at the examining trial is dead. This rendered admissible any testimony he gave on that trial that would be admissible if he were living; but an objection is urged to the following question and answer: “You say you saw a man turn and walk off, did you recognize who it was?” Ans. “Well, I couldn’t tell, but it run into my mind that it was Troy.” If he could not identify the man, what might have run into his mind would not be admissible, and the objection to this portion of the testimony should have been sustained.

Tfie alleged newly discovered evidence will not be newly discovered on another trial; therefore, it is not necessary to discuss whether or not it is such evidence as would authorize the court to grant a new trial. Under the contest of the state, we are inclined to think it was not.

Reversed and remanded.
      ©csFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    WALKER GRAIN CO. v. DENISON MILL & GRAIN CO.
    (No. 8208.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 29, 1915.
    Rehearing Denied July 3, 1915.)
    1. Contracts <&wkey;>24 — Meeting op Minds — Opper — Acceptance.
    A contract is not complete unless the minds of the parties meet, and an acceptance must correspond to the offer, and an acceptance modifying one or more terms of the offer is in effect a new offer, which must be accepted to constitute a contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 109-103; Dec. Dig. <®=»24J
    2. Contracts <&=z>32 — Negotiations—Reduction to Writing.
    Where oral negotiations are, under the agreement of the parties, or by reason of a custom, tentative only, and a contract is not to become effective until reduced to writing and accepted by the parties, an oral agreement is not a contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 159; Dec. Dig. <®=>32.]

      3.. Customs and Usages <&wkey;19 — Contracts— Evidence.
    In an action for breach of contract of sale made by telephone conversations, evidence held to justify a finding that the custom of trade merely required the parties to confirm the contract, and thereby make memoranda of a contract completed by the conversation.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 41-43, 45, 46; Dec. Dig. <&wkey;>19.]
    4. Evidence &wkey;> 142 — Value — Market Reports — Locality.
    Where, in an action for breach of contract to deliver corn, there was evidence that the price of corn in Kansas City had a definite relation to the price at. points contemplated as delivery points in Texas, and that the prices in Texas were principally influenced by the Kansas City market, published market reports of the Kansas City market were properly admitted in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. &wkey;142J
    5. Sales <&wkey;40iL-Co Tracis' — Right oe Action.
    A buyer may treat the seller’s notice of his intended breach of contract as inoperative, and await the time for the performance of the contract, and then sue for damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1146; Dee. Dig. &wkey;>404.]
    6. Sales &wkey;>418 — Breach oe Contract — Measure of Damages.
    Where a contract of sale stipulated for deliveries during a specified month, at the option of the seller, who prior to the month notified the buyer of his intention not to conform to the contract, and the buyer did not bring suit for damages until expiration of contract time of performance, the measure of damages was the difference between the contract price and the market value at the time of the seller’s breach for failure to deliver during the month specified.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. &wkey;418.]
    Appeal from District Court, Tarrant County; R. IT. Buck, Judge.
    Action by the Denison Mill & Grain Company against the Walker Grain Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Slay & Simon, of Ft. Worth, for appellant. Alexander, Power & Ridgway, of Ft. Worth, for appellee.
   CONNER, C. J.

The appellee grain company sued the appellant grain company for damages for failure to deliver 20,000 bushels of “No. 3 Oklahoma shelled corn,” as it was alleged had been agreed upon in conversations over the telephone in November, 1912. The appellant company denied that such was the contract, insisting that, in a preliminary Way, it had merely indicated over the telephone its willingness to sell and deliver, at specified times and for a specified price, 20,-000 bushels of “No. 3 mixed corn,” but that it was understood and agreed that such tentative agreement was not to be complete and effective until after exchange between the parties of formal written confirmations of the sale.

It is undisputed that in the telephone conversations appellee agreed to buy, and appellant agreed to sell and deliver, 20,000 bushels of com at 53 cents per bushel. The dispute is over the grade of the corn. Appellee alleged and offered evidence to show that it was “No. 3 Oklahoma shelled,” while appellant alleged and offered evidence to show that it was “No. 3 mixed.” There is no evidence to show that it was specifically understood that agreement over the telephone was subject to written confirmation. It was shown, however, that the usual custom among grain dealers was to exchange written confirmations of such purchase and sales, and that such exchanges took place in the present case; the only material point of difference being that in appellee’s written confirmation of the purchase “No. 3 Oklahoma shelled” corn was specified, while in appellant’s confirmation of the sale the specification was “No. 3 mixed corn,” without specification of point of origin. There was evidence showing that there was a difference in favor of the Oklahoma corn in both grade and price, and appellee refused to receive any other kind as in compliance with the contract, although appellant offered to deliver such other grade.

The trial resulted, as above indicated, in a judgment for appellee, and the controlling question on this appeal from the judgment is thus presented in appellant’s first proposition under its first assignment of error, viz.:

“The evidence in this case conclusively establishing that, at the time the telephone conversations were had between plaintiff and defendant, it was contemplated by both of said parties that the same should be followed by writing called ‘Confirmations,’ embodying the terms of the contract, the agreement over the telephone was incomplete and unfinished; and the undisputed evidence showing that in conformity with this understanding, on the same day of the telephone conversations, both plaintiff and defendant mailed to each other these confirmations, and the evidence being undisputed that the confirmations of plaintiff and defendant did not agree in a material respect, and that said confirmations were never made to agree with each other, the plaintiff contending for one thing and the defendant contending for another,, the minds of said parties did not meet, and there was no contract that could be enforced between plaintiff and defendant.”

The evidence abundantly shows that, at the time of the negotiations over the telephone, the general custom of exchanging confirmations obtained, as alleged by appellant, and that such custom was known to both parties, though no reference was made to it at the time, so that it should be said, we think, that such custom was in contemplation by the representatives of both the appellant and appellee companies at the time they entered into the verbal agreement. But the conflicting contention of the parties at this point is the cause of the litigation. Appellant insists, as stated in its proposition, that its effect was to render the verbal contract incomplete until its terms had been reduced to writing and finally accepted by tbe exchange of confirmations. If this effect must be given to the custom, then it is clear that no contract between the parties ever became effective, for, as before stated, the parties failed to agree upon the one material point of difference in their exchange of confirmations. To become a completed contract, as has been often said, the minds of the parties must meet upon the same thing. The acceptance must correspond to the offer at every point, leaving nothing open for future negotiations. An attempted acceptance which seeks to modify one or more terms of the offer is of no legal effect as an acceptance. It is really a rejection of an offer and a proposition in lieu of the original offer, and must be accepted by the party making the original offer in order to constitute an original agreement. Bank v. Hall, 101 U. S. 43, 25 L. Ed. 882. So, too, it is well settled that if, at the time of the verbal negotiations, it is agreed that such negotiations shall be tentative only, and that the terms are not to become effective, until after they have been reduced to writing and accepted by the parties, then the verbal agreement is no contract, in a legal sense, until the writings have been executed. Or, if such be the necessary effect of a custom, it is evident that the same result would follow. Ferre Canal Co. v. Burgin, 106 La. 309, 30 South. 863; Ocala Cooperage Co. v. Florida Cooperage Co., 59 Fla. 390, 394, 52 South. 13; McCrimmon v. Brundage, 53 Fla. 478, 43 South. 431.

But, in the case before us, an issue was made as to the character of the custom under consideration. Appellee insisted and offered proof to show that the “Confirmations” contemplated by the custom referred to are merely memoranda of contracts already completed. To illustrate: The general manager for the plaintiff testified:

“It is the custom to make the deal over the telephone, and then you are supposed to confirm this trade. * * * If the man don’t confirm what he does, the other party, of course, has a right to insist that he does do it; that don’t affect the trade at all; the trade is made over the telephone. * * * The telephone conversation constitutes the trade, but we want it confirmed in writing. It is not a fact that if the trade is not confirmed, that there is no trade; you make the trade over the telephone, but you then confirm it — have a record of it.”

Another witness of 30 years’ experience in the grain business testified:

“Most contracts now are made by phone or telegraph. I presume the great majority of them are made by phone, and afterwards confirmed by writing. S! * * The contract made over the phone is the contract and is so regarded.”

Yet another witness of 12 years’ experience in the grain business testified:

“In making trades for corn or grain, they are made by phone, by wire, or by personal conversations or by letter. I imagine the majority of trades are made by telephone conversations between the buyer and the seller. They make their trade over the telephone, and later confirm by letter, as a rule, but a great many do not confirm by letter. The trade — the purchase or sale — is made over the phone. When the confirmations do not agree, and the parties split in trying to get together on it, it is not the custom that there is no trade. * * * When the parties do not agree, then it becomes a question of veracity.”

Another witness with 10 years’ experience in the grain business testified:

“Grain dealers consider that they have made a trade when they finish the telephone conversation which leads up to the trade, and they send their confirmations as a matter of record. * * * If the confirmations do not agree, that would not change my statement that the telephone conversation made the contract.”

The court very clearly submitted the issue to the jury in a form to which no objection has been urged before us. In illustration of this, we quote a portion of the second paragraph of the court’s charge, which reads:

“If you find and believe that there was a general custom and usage among wholesale grain dealers such as the plaintiff and defendant were in the territory mentioned, that contracts for the purchase and sale of grain between and among such dealers should not ■ be binding and determined by the conversations and agreements by telephone, but that such contracts should only become binding when confirmed by written memoranda by both seller and buyer, and that the terms of the contract should be controlled and determined by such written mem-oranda known as ‘Confirmations,’ * * * then you will find for the defendant company.”

Under such evidence and circumstances, we hardly see how we can say that the verdict and judgment must be set aside on {'lie ground stated in appellant’s proposition quoted above. As said in the recent work of Elliott on Contracts, vol. 1, § 46:

“Contracts may be consummated by means of telephonic conversations. AVhen a person places himself in connection with another by means of the telephone system, he thereby invites communication relative to his business through that channel. In a recent case, referring to an argument against the validity of such a contract, it is said: ‘If by this is meant that a contract cannot be made by telephone conversation, it is too late to so argue. A large part of our business transactions are, in this century, carried on by telephone. Our courts have long ago held that contracts made by telephone are as effective and binding in law as if made verbally between the parties standing face to face and carrying on the conversation which culminates in the contract.’ ”

The same authority in a following section (section 63), after stating the general rule that where it is understood there is to be no contract until a formal writing is executed, or where all of the terms of the agreement have not been settled, and it is understood that the unsettled terms are to be determined by the formal contract, then in either case there is no binding obligation until the writing is executed, and after further stating that, where it is shown that the parties intended to embody the terms of the contract in a formal written agreement, there is strong evidence that the negotiations prior to the drawing up of such writing are merely preliminary and not understood or intended to be binding, further says:

“However, should the parties disregard the provisions relating to the execution of’a formal writing, and act upon the preliminary understanding, such understanding will be treated as a valid and binding contract. Likewise, if the agreement or written memoranda is complete in itself, and embodies all the terms to be inserted in the intended formal writing, a binding obligation is fixed on the parties unless it is understood and intended that such contract shall not become operative unless reduced to writing,” citing numerous authorities in support of the text.

So, in the case of Hinote v. Brigman, by the Supreme Court of Florida, and reported in 44 Fla. 589, 33, South. 303, it was said, in speaking of the contract there under consideration:

“If the terms of the contract were mutually agreed upon, and the parties came to a definite conclusion in reference to the same, the fact that it was further agreed that the terms of the agreement should be put in writing and signed will not affect the contract made., though it was never reduced to writing and signed.” Citing Bell v. Offutt, 10 Bush. (Ky.) 632, 7 Am. & Eng. Law (2d Ed.) 140.

So, in International Harvester Co. v. Campbell, by the Court of Civil Appeals for the Fourth District, 43 Tex. Civ. App. 431, 96 S. W. 99, it was said, among other things:

“If an agreement upon all the terms of the contract was reached by the parties, as the evidence reasonably tends to show, and nothing remained except to reduce its terms to writing, the contract was complete: there being no evidence that it was not to become effective until reduced to writing, a breach of it by either party, causing damage to the other, would support an action for such damage.”

The quotation made is followed by an instructive reference to authorities, giving the tests of a completed contract. See, also, Lowrey v. Danforth, 95 Mo. App. 441, 69 S. W. 39, and Green v. Cole, by the Supreme Court of Missouri, 103 Mo. 70, 15 S. W. 317. It follows, we think, that appellant’s first assignment and the proposition thereunder must be overruled.

The further contention, as urged in the second, third, and fourth assignments, that the evidence shows that there is no substantial difference in the grades of “No. 3 mixed corn Oklahoma” and “No. 3 mixed corn,” is so clearly unsupported by the testimony that we feel it to be unnecessary to set it out, and those assignments will be overruled. Nor do we think there is any merit in the fifth assignment, complaining of the action of the court in overruling the defendant’s motion for a continuance on the ground of surprise.

The objection to the published market reports of the Kansas City market complained of in the sixth assignment we think should be overruled. Aside from the objections made to the consideration of the assignment, there was evidence tending to show that the price of grain of the grade under consideration in Kansas City had a definite relation to the price of such grain at the group of points in Texas, contemplated as the delivery points in the contract between the parties in this case, and that the prices in Texas were principally influenced by the Kansas City market. The court further certified to the bill of exception that there was testimony of the same general effect by a witness, and by a number of “cards quotations,” which were admitted without objection. See Tex. & Pac. Ry. Co. v. Donovan (Sup.) 23 S. W. 735; Id., 86 Tex. 378, 25 S. W. 10; Commission Co. v. Hart, (Sup.) 20 S. W. 131; Ry. Co. v. Gunter, 39 Tex. Civ. App. 129, 86 S. W. 938; Ry. Co. v. Richards, 105 S. W. 236; T. & P. Ry. Co. v. Isenhower, 131 S. W. 297; Tex. & Pac. Ry. Co. v. De Long, 176 S. W. 874 (No. 8106), by this court and not yet officially published; Western Union Tel. Co. v. Gorman & Wilson, 174 S. W. 925.

In the seventh assignment of error complaint is made of the following paragraph of the court’s charge:

“If you find and believe that the plaintiff and defendant by means of telephone conversation between W. L. Hutcherson, representing the plaintiff, and J. L. AValker, representing the defendant, on November IS, 1912, and on November 20, 1912, entered into an agreement and contract, by the terms of which the defendant agreed to deliver to the plaintiff at some time during the month of December 20,000 bushels of No. 3 mixed bulk Oklahoma shelled com, to be delivered at Group One rates and district at 53 cents per bushel for 10,000, and 53 % for 10,000 respectively f. o. b. delivered at Group One rates and destination — that is, at any point designated by plaintiff within the certain territory, or certain railroad points surrounding Denison, Tex., known to grain dealers as Group One rates and district; and you further find and believe that the defendant company failed and refused to deliver said 20,000 bushels of com within the month of December, in accordance with said agreement, if any was made — you will find for the plaintiff, and the measure of damages, if any you find, will be the difference in the sale price agreed upon, if any, to wit, 53 cents per bushel and 53% cents a bushel, respectively, and the reasonable market price, if any, for such corn prevailing within the territory described as Group One district, on, to wit, the 31st day of December, 1912, unless you find for the defendant under further portions of this charge.”

It is insisted that the measure of damages thus submitted was erroneous, the contention being that, inasmuch as it was uncontra-dicted that the breach of the contract under consideration, if any, occurred within a very few days after the contract was made, that the true measure was the difference between the contract price of the grain and its market value on the date of the breach of the contract. While it is true that there is evidence tending to show that there was a progressive enhancement in the market price of “No. 3 Oklahoma corn” from the date of the verbal contract, and while it is further true that the plaintiff might immediately upon the breach of the contract have instituted its suit, yet we do not think it was compelled to do so. On the contrary, as we understand the authorities, the piurehaser may treat the notice of an intended breach as inoperative, and await the time when the contract is to be performed and then bring a suit for damages. In the present instance, by the terms of the verbal contract, appellant’s deliveries were, at its option, to bo made at any time during the month of December, 1912, after which this suit was instituted. As said in 9 Cyc. p. 698, with numerous citation of authorities in the footnote:

“Although, strictly and technically speaking, there can be no breach of contract until the time for performance has arrived, yet if, before that time arrives, the promisor expressly ^ renounces the contract and declares his intention not to perform it, the promisee may, in most jurisdictions, treat this as a breach, and may at once bring an action for damages; that ig, positive notice of an intended breach of a contract to be performed in futuro may be treated as an actual breach. There is, however, another course open to the promisee. He may, if he pleases, treat the notice of intended breach as inoperative, and await the time when the contract is to be performed, and then hold the other party responsible for all the consequences of nonperformance. But in that case he keeps the contract alive for the benefit of the other party as well as himself, and he remains subject to all his own obligations and liabilities under the contract, and enables the other party not only to complete the contract, notwithstanding his previous repudiation of it, but also to take advantage of any intervening circumstance which would justify him in declining to complete it.”

See, also, Brewer v. Neatherely, by this court, 161 S. W. 1185; Palestine Cotton Seed Oil Co. v. Corsicana Cotton Seed Oil Co., 25 Tex. Civ. App. 614, 61 S. W. 433.

We conclude that all assignments of error must be overruled and the judgment affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other oases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    FIDELITY PHENIX FIRE INS. CO. v. SADAU.
    (No. 8195.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 15, 1915.
    Rehearing Denied June 19, 1915.)
    1. Insuuancb &wkey;>560 — Fire Insurance — Proof of Loss — Failure Specifically to Indicate Defects — Waiver.
    Where, to the proof of loss of household goods destroyed by fire, the insurer objected only in general terms that the list of items destroyed was unsatisfactory, and did not comply with the policy as to the furnishing of information of the property destroyed, and that the insurer could not recognize as correct the items or values, any defect in such proof of loss was waived by the insurer, for, to defend successfully on the ground that a proof of loss is defective or inaccurate, an insurer must specifically point out the defect in a reasonable time, and failure so to do is a waiver.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1393-1404; Dee. Dig. &wkey;560.]
    2. Insurance <&wkey;533 — Fire Insurance — Proof of Loss — 'Unreasonable Demand for Bills.
    Where a policy of fire insurance on household goods provided that upon loss the insured should furnish, as required, bills, invoices, etc., and where the insured, a man of small means, who could not read, had acquired some of the goods by gift and some by purchase in a number of places of residence, and had no bills and could not obtain them, the insurer could not successfully defend for the insured’s failure to furnish such bills covering the destroyed goods upon its adjuster’s demand, it being unreasonable to require him to obtain them under the circumstances, since a forfeiture will not be declared unless the policy expressly stipulates therefor, while its provision that the insured should produce bills, as required, implied that the duty should rest on him only if he had such bills.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1320; Dec. Dig. <&wkey;533.]
    3. Insurance <&wkey;668 — Fire Insurance — Proof of Loss — Defects—Waiver—Question for Jury.
    In suit on a policy of fire insurance on household goods, whether insured filed the proof of loss required by the policy, and whether, if not, the default was waived by the insurer, held for the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. &wkey; 668.]
    4. Insurance <&wkey;669 — Fire Insurance — Instruction — Conformity to Issues.
    In suit on a fire policy on household goods, where an issue was whether the insured had furnished the proof of loss required by the policy, an instruction that if the proof was defective, unless the filing of proper proof had been waived by the insurer, the jury should find for it, covered the issue fairly.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. &wkey; 669.]
    5. Insurance <&wkey;669 — Fire Insurance — Instructions — Conformity to Issues.
    In suit on a fire policy on household goods, where an issue was whether the insured was guilty of fraud under the policy by overvaluation or excessive demand, an instruction that if the insured in his proof of loss listed, as destroyed, items not lost, or willfully overvalued items lost, to obtain an amount in excess of his actual loss, the fact was a defense, presented the issue fairly.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. &wkey; 669.]
    6. Insurance <&wkey;536 — Fire Insurance — Proof of Loss — Waiver.
    Where the insured fails to make the proof of loss required by his policy, there can be no recovery thereon, unless the insurer waives the defect.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1323; Dec. Dig. <S=»536.]
    7. Insurance <@=>553 — Fire Insurance — Fraud — Overvaluation in Proof of Loss.
    Where an insured owner of household goods destroyed by fire willfully presents, as proof of loss, a list of the goods destroyed, containing items not lost, or items overvalued, to defraud the insurer of money in excess of the actual loss, there can be no recovery on the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1362-1366; Dec. Dig. &wkey;553.]
    8. Trial <@=>258 — Instructions—Repetition.
    When several charges are requested covering the same phases of the case and questions of law, differing only in wording, the court may give one and refuse the others.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 550, 551, 553, 554, 556; Dec. Dig. &wkey; 258.]
    9. Appeal and Error <&wkey;1151 — Disposition —Remittitur—Reformation—Trivial Excess in Recovery.
    In suit on a fire policy for $500 on household goods, where the total recovery, for principal and interest, amounting to $578.85, was excessive to the extent of $1.50 through the erroneous allowance of interest for 18 days too long, the amount was too trivial to call for a remittitur or to justify a reformation, of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. <&wkey;> 1151.]
    Error from Olay County Court; W. T. Allen, Judge.
    Action by Frank Sadau against the Fidelity Phenix Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Thompson Knight, Baker & Harris, and Will C. Thompson, all of Dallas, and P. M. Stine, of Henrietta, for plaintiff in error. Leslie Humphrey, R. E. Taylor, and Want-land & Parrish, all of Henrietta, for'defendant in error.
   BUCK, J.

This is the third appeal of the case of Frank Sadau against the Fidelity Phenix Fire Insurance Company. Suit was first filed in 1911, and, from a judgment in favor of plaintiff on a policy in the sum of $500, defendant prosecuted a writ of error, and the judgment was reversed by this court, as reported in 159 S. W. 137. Again, from a judgment in favor of plaintiff in error, an appeal was prosecuted, and, the case having been transferred to the Court of Appeals for the Seventh judicial district, judgment of the court below was again reversed, as reported in 167 S. W. 334.

Plaintiff alleged the issuance of a policy of fire insurance by the defendant company covering household furniture situated and contained in a house in Henrietta, Tex., and occupied by his wife and children as a home; said policy being dated July 27, 1911, and running for one year. He further pleaded payment of the premium, the destruction of the household goods by fire on August 26, 1911, and that their value was $1,000, and that proof of loss was furnished more than 60 days before filing of suit; and he pleaded further acts which are claimed to be waivers on the part of defendant company. He prayed for the amount of the policy, with interest from October 1, 1911.

Defendant, after a general demurrer and special exceptions, pleaded a general denial and specially that the assured had not furnished to it the proof of loss required by the policy sued on, nor had he complied with its demands to furnish certain bills of purchase for goods claimed to have been lost, and further that assured was guilty of fraud, as that term is used in the policy.

From a judgment for plaintiff in the sum of $578.85, with interest at 6 per cent, from date of judgment, a writ of error has been prosecuted to this court.

Plaintiff testified that, at the time of the fire, he and his two daughters were living on his farm near Henrietta, while his wife, with the other children, were living in town; that the furniture insured was in the house occupied by his wife and children and was a total loss; that about two weeks after the fire the adjuster of the defendant company came, to plaintiff’s farm in the country to see him about the fire. He further testified: ■

“I gave the agent of the insurance company a list of the property destroyed about two weeks after the fire occurred, and at that time he told me that I would have to furnish him the bills of the goods, but demanded no further proof of loss. I told him I could not give him the bills for these goods. He said that I would have to furnish him. these bills. * * * He was the only person who came to see me. * * * I furnished a typewritten copy of the list of goods destroyed to the insurance company. I gave it to Mr. Conn, and he sent it in for a settlement. This list I took to Mr. Conn, and I do not know what he did with it. After the fire I received the letter, but since I can’t read English I took it to an attorney, and he read it for me.”

The letter mentioned was as follows:

“December 1, 1911.
“Mr. Frank Sadau, Henrietta, Texas — Dear Sir: I am requested by the Fidelity Phenix Fire Insurance Company to advise you that if the list prepared of the property sent to it, sworn to by you on the 18th day of November, 1911, before W. T. Allen, county judge of Clay county, is intended as a compliance with the requirements of policy 5007, for the making and furnishing proofs of loss, showing the facts called for in the policy, bearing upon the question of the liability of the said company, then the list is unsatisfactory for such purpose and is unsatisfactory as any compliance with the requirements of the policy as to the furnishing of information bearing upon the loss under the policy and the property involved in the fire as required by said contract. You are further advised that the company cannot recognize as correct, either the items contained in said list or the values set opposite thereto, but takes the position that items included in said list were not involved in the fire, which were not lost and damaged, and the values set out in said list of items which were involved in the fire are overvalued,_ and the amount set opposite the same is excessive.
“Yours very truly, William Thompson.”

Plaintiff and bis wife both testified that they bad bought the furniture alleged to bave been destroyed by fire at various places, including Wichita Falls, Denton, Ft. Worth, and Henrietta, and many of the articles plaintiff testified he purchased from persons whose names be did not know. Plaintiff further introduced in evidence a typewritten copy of the list of articles alleged to bave been destroyed; the introduction being as follows:

“The following is a full and complete list of all the goods that were destroyed on the 26th day of August, 1911, said goods belonging to Frank Sadau, and covered by policy of insurance of the Fidelity Phenix Fire Insurance Company No. 5007.”

Then follows the list of the articles, with the valuation of each placed opposite thereto. Before W. T. Allen, county judge of Clay county, Tex., plaintiff made the following affidavit attached to said copy and list:

“State of Texas, County of Clay.
“Before me personally appeared Frank Sadau, and upon his oath says that the above list is the goods that were destroyed by fire on the 26th day of August, 1911, and that the value set opposite each item represents the true value of each item of goods and that said goods 'were in the house rented by the said Frank Sadau at the time of the fire.”

Mrs. Sadau testified, in part, that at the time of the fire she and her children were sleeping on the front porch and did not know anything of the fire until she was awakened by a neighbor’s firing a gun; that at that time the fire was burning in the front room, but that she thought it started in the back part of the house; that, at the time the policy was written, the agent, Mr. Conn, came to the house and examined the household effects, and that she furnished him with a list ’of the articles in said house at the time, but that said agent did not come to see them after the fire. She further testified as to the articles alleged to have been lost by this fire and the values thereof.

The main question in issue is as to whether or not plaintiff furnished defendant company with a proof of loss in compliance with the conditions of the policy, and, in the event it should be held that he did not do so, whether or not such compliance was waived by the defendant company; and, to the failure of the court to give defendant’s peremptory instruction requested, plaintiff in error’s first assignment is directed. The policy in question provides, among other things, as follows:

“If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, * * * making a complete inventory of the_ same, stating the quantity and cost of each article and the amount claimed thereon, and within 90 days after the fire, unless such time is extended in writing by this company, shall return' a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon, * * •> and shall furnish, if required, a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of the fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify, and shall also furnish, if required, verified plans or specifications of any building, fixtures, or machinery destroyed or damaged. The insured as often as required shall exhibit to any person designated by this company all that remains of any property herein described and submit to examinations under oath by any person named by this company and subscribe the same, and, as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers or certified copies thereof, if originals be lost, at such reasonable places as may be designated by this company or its representatives, and shall permit extracts and copies thereof to be made. This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until 60 days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including award by appraisers when appraisal has been required. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.”

It may be conceded that the proof of loss as made by plaintiff was not in compliance with the terms of the policy, and that, unless the jury were justified in finding from the evidence that those conditions and proofs stipulated in the policy were waived by the defendant company, the judgment must be reversed. It will be noted that the only objection made by the adjuster to the proof and list furnished him by the plaintiff, as testified to by plaintiff and his wife, was that such proof did not contain bills or receipts from those from whom the plaintiff had purchased the furniture and goods, and the only defect in such proof, as pointed out in the letter as heretofore set out, is that:

“The list is unsatisfactory for such purpose, and is unsatisfactory as any compliance with the requirements of the policy as to the furnishing of information bearing upon the loss under the policy and the property involved in the fire as required by said contract;” and further “that the company cannot recognize as correct either the items contained in said list, or the values set opposite thereto,” etc.

We believe that the authorities support the proposition that, before an insurance company may defeat a claim for liability for loss because of any inaccuracy or other defect in the proofs of loss submitted, it must point out to the claimant the respects in which it is claimed such proofs are inaccurate, and a failure on the part of the insurance company so to do within a reasonable time will constitute a waiver of such alleged defective proof.

In Northern Assur. Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. 239, the Court of Civil Appeals for the Fourth District, speaking through Justice Neill, in discussing similar terms in an insurance policy, says:

“It has been seen from the facts that it was not shown what defects, if any there were in the proofs of loss, were specified or objected to by appellant. No principle seems better settled than that ‘where there are defects in the proofs of loss, whether formal, substantial, or, indeed,, in any respect, which could have been supplied if specific objections had been made thereto by the underwriters, a failure on their part to object to the proofs upon that ground, or to point out the specific defect, or to call for the information omitted within a reasonable time, is considered a waiver, however defective, informal, or insufficient such proofs may ■ be.’ ”

See, also, Wood on Insurance, § 452 (2d Ed.), and authorities cited in note 1, p. 962, Id.

“Proofs of loss,” says the same authority, “are presumed to be required as a means-of enabling the insurer to determine whether there has been a loss, whether the insured, had a requisite insurable interest in the property, and whether there was a loss by any of the perils insured against, and the nature and extent of the loss, rather than as a means of enabling the insurer by sharp, practice and knavish tricks to defeat its liability for the loss.”

As it appears to us, the requirement made by the adjuster that the plaintiff should furnish bills from those from whom he had bought the goods alleged to have been destroyed in the fire was an unreasonable requirement and not one which the plaintiff in error could enforce under the circumstances, as disclosed by the evidence in this case; it appearing that the articles had been bought from various persons and in several different towns, and it appearing, as testified to- by plaintiff and not denied by defendant, either by pleading or by evidence, so far as we have been able to determine, that he could not furnish the defendant with such data. That one who has been so unfortunate as to have his household goods destroyed ought to be required, as a prerequisite for recovery on an insurance policy covering such household goods, to furnish the insurance company with bills or statement of sale from those from whom such goods were purchased, it seems to us would, under the facts disclosed in this case, be unreasonable and amounting to a denial of the right of recovery. Plaintiff and his wife were poor German farmers, evidently unlettered and unable to read English. Some of these goods had been given to them by kindly neighbors; others they had purchased in various towns from merchants whom they did not know, and who doubtless did not know them, and who could not be expected to remember or recall the sale of the goods in question; and we think the facts justify the conclusion that, as the plaintiff testified, he was unable to furnish this character of proof.

It will be further noted that the letter from the defendant company, worded by an able and experienced lawyer, was so couched as to amount only to a general objection to the proof submitted, if not a denial of liability altogether on the policy. The specific defects now relied on were not pointed out. In fact, the wording of the letter was calculated to leave the insured in doubt as to the real objections to the proof submitted urged by defendant company, and, further, to imply that, in so far as the objections not even hinted at were concerned, they were waived.

While the plaintiff in error urges that more than three years elapsed between the fire and the last trial, and yet no “satisfactory proof” had been-offered by plaintiff, and that therefore plaintiff should be denied a right of recovery because of such long-continued omission and failure, yet with more justice and reason it might be urged that for the same length of time defendant company had failed to specifically point out the respect or respects in which such proofs were deficient, except as to the demand for the bills or receipts, which we have discussed hereinbefore, and the more or less general objections contained in the letter of December 1, 1911. As well said by defendant in error in his brief:

“A forfeiture will not be decreed by reason of the failure of the insured to do an impossible thing. In this case the plaintiff testified that it was impossible for him to furnish the bills for the goods destroyed by the fire.”

As held by the Supreme Court in the case of Lion Fire Insurance Co. v. Starr, 71 Tex. 733, 12 S. W. 45:

“An insurance policy, containing a clause requiring the assured to produce account books and vouchers in case of loss by fire, is not avoided by failure or refusal to produce them, unless the policy, provides in express terms for such forfeiture; but the failure or refusal may be proven, and is a proper subject of comment before the jury as to the extent of the loss.” t

Moreover, the requirement that “the insured, as often as required, * * * shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof, if original be lost,” etc., implies that such duty would, in any event, rest upon the insured in the event he had, or had had, such original bills, invoices, and other vouchers. In the event insured had not received such bills or invoices at the time of the purchase, he could not well produce them or copies thereof.

The court below in this case, at the instance of defendant, charged the jury as follows:

“If you find and believe from the evidence that plaintiff, Frank Sadau, has not filed with or sent to the defendant, Fidelity Phenix Eire Insurance Company, a proof of loss, as required by the terms of the policy sued on, then unless you find that the filing or sending of such proofs has been waived by the defendant, Fidelity Phenix Fire Insurance Company, you will find for the defendant, Fidelity Phenix Fire Insurance Company.”

The further charge was given at the instance of defendant:

“If you find and believe from the evidence the plaintiff, Frank Sadau, after the fire willfully presented to the defendant, Fidelity Phenix Fire Insurance Company, a list of articles lost in the fire which contains items not listed therein, or items excessively valued, for the purpose of obtaining from this defendant, Fidelity Phenix Fire Insurance Company, money in excess of the actual loss sustained by the plaintiff, then in that event you will find for the defendant, Fidelity Phenix Fire Insurance Company.”

We think that this case was properly submitted to the jury, and that the court did not err in refusing to give the peremptory instruction, and that the charges given, both in the court’s main charge and those of the defendant’s special charges submitted, presented the issues fairly and correctly and protected the legal rights of the defendant.

Other assignments are directed to the failure of the court to give specially requested charges, but, in so far as they were pertinent, we believe that the issues therein presented were submitted under other charges given at the request of the defendant, and therefore the plaintiff in error’s assignments challenging the correctness of the court’s ruling in refusing to give these charges are overruled. Where several charges are presented to the court covering virtually the same phases of the case and questions of law, but differing in wording, the court is justified in giving one and refusing the others. Railway Co. v. Hayney (Civ. App.) 94 S. W. 386.

In its third assignment plaintiff in error complains because the court refused to give its special charge No. 8, which, in effect, instructed the jury that in no event could they find interest for plaintiff in this suit for a time beginning before 60 days had elapsed after a satisfactory proof of loss had beer received by this company, unless they should find that there had been a waiver, in which event they could not calculate interest prior to such waiver, and in no event earlier than October 1, 1911. If there was a waiver of proof of loss, as found by the jury, in effect, such waiver was by virtue of the letter from the defendant company signed by its attorney, or by the failure of the adjuster to specify the respects in which said proofs were defective, except as heretofore noted. The latter’s visit to plaintiff’s home was about two weeks subsequent to the fire, which occurred August 26th. The letter from Mr. Thompson is dated December 1, 1911. The verified proof of loss was mailed to defendant on November 18th. If it should be held that the letter of December 1st constituted a waiver of further proof, in the absence of subsequent specific requests for information, then the 60 days during which defendant was not required to pay interest began November 18, 1911, and ended January 18, 1912. The court’s charge authorized interest from January 1, 1912. The interest oni $500 for 18 days would be $1.50. “Lex non curat de minimis.” We do not think the amount involved is sufficient even to require a remittitur or justify a reformation of the judgment.

While we have not specifically discussed all of the assignments, we have carefully examined the same and have concluded that they do not present reversible error, and hence they are overruled.

The judgment is affirmed.
      (@=»For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes

      «gsakor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHILTON v. JENNINGS et al.
    (No. 8181.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.
    Rehearing Denied June 19, 1915.)
    1. Sams @=>116 —■ Contracts — Rescission —Grounds.
    A violation by a seller of his promise to place in perfect condition the machine sold does not justify a rescission by the buyer of the contract of sale.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 290; Dec. Dig. @=>116.]
    2. Sales @=>359 — Actions for TJndaid Price —Issues.
    Where, in an action on a note for the unpaid price of an automobile sold to one of the makers, who pleaded infancy, there was no finding that the automobile was returned, or that the seller accepted the same in return, under an agreement to.rescind, and the issue tendered by the seller, alleging that the maker represented himself to be of full age and that the seller had good reason to believe the truth of the representation, was not determined, a judgment against the seller was unsupported on the theory of a rescission of the contract of sale.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. @=>359.]
    3. Sales @=>418 — Breach off Contract — Damages.
    The measure of damages for a seller’s failure to deliver an automobile as represented is the difference between the contract price and the reasonable value of the automobile in the condition it was at the time of sale.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 117A-1201; Dec. Dig. @=>418.]
    Appeal from Tarrant County Court; C. T. Prewitt, Judge.
    Action by W. E. Chilton against E. R. Jennings, Jr., and another. From a judgment for defendants, plaintiff appeals.
    Reversed' and remanded.
    E. H. Ratcliff, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short and A. B. Curtis, all of Ft. Worth, for appellees.
   CONNER, C. J.

W. E. Chilton instituted this suit in the county court against E. R. Jennings, Jr., and E. R. Jennings, Sr., upon a promissory note in the principal sum of $200 dated July 18, 1910, due January 18, 1911, bearing no interest, but providing the usual 10 per cent, attorney’s fees. The substance of the answer which it is necessary to notice is that the note had been given as part of the consideration for an automobile sold by Chilton to E. R. Jennings, Jr., and that at the time of the sale said Jennings had paid the sum of $200 in cash, and given the note sued upon as part of the deferred payment to be made, also promising a further payment of $200 the following year. But it was alleged that at the time of the sale Chilton made certain false representations regarding the condition of the automobile, and made certain promises with reference to its repair, which had never been fulfilled. It was alleged that the automobile was worthless, and the prayer was for the recovery of the $200 in cash that had been paid and the cancellation of the note sued upon. E. R. Jennings, Jr., also pleaded his minority at the date of the sale.

The case was submitted to the jury upon special issues, to which the jury answered that J ennings at the time of the sale was not 21 ye'ars old; that he did not ratify the contract of sale after he became of age; that “the plaintiff did agree to put the machine in good condition”; that E. Ri. Jennings, Jr., relied “on said representation, and he was thereby induced to pay the plaintiff $200 and executed the note sued on. In answer to the question, “Was the said ear put in good condition by plaintiff?” the jury answered, “No.” The sixth issue was, “Did defendant E. R. Jennings, Jr., within a reasonable time after coming of age, disaffirm, the contract and notify tlie plaintiff of sncii disaffirmance?” To which, the jury answered, “Yes.” Upon the answer so given, the court entered a judgment in accordance with the prayer of the defendants, and the plaintiff has appealed.

There are a number of assignments, to which numerous objections are made; but, without enlarging our opinion by a discussion of unimportant details thus brought about, it will be sufficient to say that the assignments presented call for an investigation of the record, which discloses error fundamental in character that will require a reversal of the judgment. The answer of the defendants was evidently not prepared with a view of calling for a rescission of the contract, nor does the evidence or findings authorize any such relief. No issue was submitted calling for a verdict upon the issue of misrepresentation alleged to have been made by the plaintiff, although such an issue was requested by plaintiff. The court, we presume, refused to submit the issue because of a want of evidence raising it; at least we find no evidence that the plaintiff at the time of the sale made any misrepresentations as to its value or condition. The substance of appellee’s evidence and of the jury’s findings is merely that the plaintiff had agreed to put the machine in good condition and that this agreement had not been complied with, from which it is to be implied that the defendant E. R. Jennings, Jr., at the time of the purchase, knew that the machine was not in perfect condition. We deem it unnecessary to cite authorities for the proposition that the violation of a mere promise to do something in the future will not afford a sufficient basis for a rescission of a contract.

It may be suggested that because of the allegation and finding as to E.. R. Jennings’ minority, and of the further fact that he later disaffirmed the contract, the judgment was right, notwithstanding the insufficiency 'of the pleadings and evidence to support the issues of rescission; but there is no finding that the auto was returned, or that the plaintiff accepted the same in return, under an agreement to rescind. Moreover, plaintiff tendered the issue that E. R. Jennings, Jr., had represented himself to be 21 years of age, and that the plaintiff uad good reason to believe the representation to be true. This issue, also, was left undetermined by the verdict. So that, as before indicated, the judgment herein cannot be supported upon the theory of a rescission of the contract; nor, as also before suggested, is the judgment sustainable on the theory of a total failure of consideration. There is no finding of the jury that the automobile was worthless at the time that E. R. Jennings, Jr., purchased the same, and at the time E. R.. Jennings, Sr., executed the note sued upon; nor can we say from the evidence that the automobile was then worthless. On | the contrary, there is much evidence tending to show that it had at least a material value. On the theory of a failure of consideration, the defendant’s measure of damages was the difference between the contract price and the reasonable value of the automobile in the condition it was at the time of the sale.

For the reasons stated, the judgment must be reversed, and the cause remanded. But in conclusion we deem it proper to suggest that upon another trial it may become material that the court submit the issue, requested and refused on this trial, of whether E. R. Jennings, Jr., represented himself to be of lawful age, and, if so, whether at the time of the sale to him the plaintiff had reasonable grounds for such belief.

Reversed and remanded.
      ©r»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TOWNSEND, OLDHAM & CO. v. CONTINENTAL STATE BANK OF GORMAN.
    (No. 8206.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 29, 1915.
    Rehearing Denied July 3, 1915.)
    Banks and Banking <&wkey;138 — Checks—Payment of.
    A purchaser of cotton which had been stolen gave the vendor a check. The bank on which the check was drawn cashed it on presentation by the intended payee, although the payee’s indorsement did not exactly correspond with his name as written in the check. Meld that, though the bank might have been guilty of negligence in paying the check as it did, yet, as the check was paid to the one to whom plaintiff intended it to be paid, the maker could not recover against the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 398-405; Dec. Dig. <&wkey;> 138.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Action by Townsend, Oldham & Co. against the Continental State Bank of Gorman. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    J. R. Stubblefield, of Eastland, and S. W. Bishop, of Gorman, for .appellant. J. B. Mc-Intire, of Gorman, for appellee.
   BUCK, J.

On November 12, 1913, an unknown man came into the store of Townsend, Oldham & Co. of Gorman, Tex., and presented a warehouse certificate for three bales of cotton, which cotton was purchased by Townsend, Oldham & Co., who gave their check on the Continental State Bank of Gorman in payment thereof in the sum of $199.10, payable to J. F. McClinton, or order. This check was presented to the said bank by the person to whom it was in fact given, and paid by said bank, the person presenting same indorsing thereon the name of J. F. Clinton. The bank charged said amount to the account of Townsend, Oldham & Co., they having on deposit an amount in excess of the sum named in said check. It later developed that the cotton for which said warehouse certificate had 1 been given had been stolen, two bales from A. C. Hill and the other from S. M. Fowler. The owners brought suit for possession thereof, and secured the same by writs of sequestration, but Townsend, Oldham & Co. replevied, and upon a suit between the latter as defendant and the owners as plaintiff, the plaintiff secured judgment in the justice court, and the defendant appealed to the county court. Townsend, Oldham & Co. then, on March 17, 1914, filed suit in the justice court against the Continental State Bank, alleging that the check given to J. E. McClin-ton was paid without indorsement of the payee named therein, but upon a forged in-dorsement, and that said bank was negligent in paying the check without the proper in-dorsement, and prayed for recovery of the amount of said cheek. The bank expressly denied negligence, and denied that it paid the check without requiring the indorsement of the payee named therein, and denied that the drawer had suffered loss thereby, and further alleged that the drawer had received a value consideration for said check, and was, therefore, estopped from recovering from defendant, etc. Apparently to meet this last given answer and plea, plaintiff, during the trial of this case, and under the advice of its attorney, filed in the county clerk’s office, and with the papers of the two cases filed by the owners of the cotton, checks covering the amounts due them.

While the two names under which the unknown and elusive purloiner of the three bales of cotton was masquerading are given and spelt indifferently in the statement of facts, the pleadings, and the briefs as “den-tón” and “Clinton,” “McClenton” and “Mc- ■ Clinton,” we have considered that the variance as to the vowel was not intentional on the part of the pleader or the witness, but was merely a typographical or .clerical error, .and that the only differences in the names so used was as to the presence or lack of the prefix “Me.”

This case was submitted on special issues and in answer thereto the jury found:

(1) That the defendant paid the amount of the check to the same person to whom the •check was given.

(2) That the bank was negligent in cashing the check to the person to whom the proceeds were paid.

(3) That the name of the payee in the •check and the name indorsed, on the back of the check were not the same.

(4) That plaintiff did not authorize the bank to pay the check to J. F. Clinton.

(5) That plaintiff had deposited the value of the cotton with the county clerk for 1-Iill .and Fowler.

(6) That the name J. F. Clinton indorsed on the check was a fictitious name.

(7) That the, person who indorsed the check 'was the same person to whom it was given.

(S) That the plaintiff, Townsend, Oldham & Co., sold the cotton for which the check was given, and received the proceeds of sale.

(9) That plaintiff had not been compelled to part with the proceeds of the sale of cotton.

(10) That the man to whom the check was given and the man who indorsed the check were one and the same person.

(11) That plaintiff had not paid to Fowler and Hill the value of said cotton in money.

Upon these answers of the jury, the court entered judgment for the defendant bank, and the plaintiff appeals.

No attack is made by appellant upon the verdict, but the contention is made that the same does not' sustain the judgment rendered. It is urged that had not the bank been negligent in paying 'the cheek upon the in-dorsement of a name different from that of the payee in the check, the fraudulent character of the thief’s possession of the cotton would have been discovered, and the fact that the holder of the check, who presented it to the bank, had no legal right thereto, would have been disclosed, and plaintiff would not have been caused to suffer, and that such negligence on the part of the bank was the proximate cause of plaintiff’s loss. In a concrete form, the question presented in appellant’s six assignments is, will a bank which pays a check to one to whom it was given, and who was intended by the drawer to be the payee, but who in fact indorsed said check in a name different from that given as payee be liable for such payment? We think the question must be answered, under the facts of this case, in the negative. While the evidence discloses that the bank did not require an identification of the holder of the check, yet it is further evident, from the finding of the jury, which finding is amply supported by the evidence, that such holder was in fact the payee intended by the drawer.

Daniel on Negotiable Instruments, says (volume 2, p. 1873):

“Oases have arisen in which checks have been paid on forged indorsements made by the person to whom the drawer delivered the check, mistaking his identity for the one who is'designated as payee; and when the person to whom the check has been delivered indorses it, and although it be a forgery of the name of the person whom the bank took him to be, it has been considered that the bank should be protected in paying the check, because the drawer was in fault in the first instance, and the person who forged the instrument was the person to whom the drawer actually delivered the instrument.”

In Land, Title & Trust Co. v. Bank, 196 Pa. 230, 46 Atl. 420, 50 L. R. A. 75, 79 Am. St. Rep. 717, where A. falsely representing himself as B., who was the owner of certain land, obtained a loan on a mortgage executed by him in B.’s name, the lender giving him a check therefor drawn to B. or order, and A. indorsed said cheek in B.’s name to a third party, who thereupon cashed the check upon his indorsement at the bank, it was held by the Supreme Court of Pennsylvania that the drawer bad no claim on the bank, neither did the bank on the third party, inasmuch as the check had been given to the person intended. See Bank v. Shotwell, 35 Kan. 360, 11 Pac. 141, 57 Am. Rep. 171, for a like holding upon a very similar state of facts. In the latter case, the court says:

“The vital point in this case is, that Shot-well intended the draft to be sent to the party executing the * * * mortgages, and intended it to be paid to the person to whom he sent it and whom he designated by the name of Daniel Guernsey, because that' was the name which he assumed in executing the notes and mortgages; and therefore the National Bank is protected in paying the draft to the very person whom Shotwell intended to designate by the name of Daniel Guernsey.”

In Maloney v. Clark, 6 Kan. 82, the plaintiff was induced. to send a draft, drawn to the order of his brother, to a stranger, who, in the correspondence, had impersonated his brother. The stranger indorsed the name of the plaintiff’s brother on the draft, and sold it to the defendants, who were bankers. It was held that, under the circumstances, plaintiff could not recover. See, also, Robertson v. Coleman, 141 Mass. 231, 4 N. E. 619, 55 Am. Rep. 471. In U. S. v. Bank (C. C.) 45 Fed. 163, it was held that a bank was not liable for the payment of a check on a forged indorsement, where the person who committed the forgery and received the money was, in fact, the person to whom the drawer delivered the check, and whom he believed to be the payee named.

All of these decisions are upon the ground that the intention of the drawer of the check was that it should be paid to the person to whom he delivered it. In the instant case, the check was in fact paid to the person to whom it was delivered, and whom the drawer intended to be the payee. The fact that such person indorsed a name thereon different from that set out in the check as payee should not in our opinion change the rule laid down in the authorities cited. The rule that a bank at its peril pays a check drawn upon it to any one save the actual payee, or to his order, and that, if it mistakes the payee’s identity, it is responsible for the payment to one not the payee named, is subject to the exception that if the payment is made to the one actually intended by the drawer as the payee, the payment is good. Daniel on Negotiable Instruments, vol. 2, § 1618. We do not understand the holding in Pickle v. Bank, 88 Tenn. 380, 12 S. W. 919, 7 L. R. A. 93, 17 Am. St. Rep. 900, opinion by Mr. Justice Burton, and cited by appellant, to be in any sense a variance from this rule. In that case one Meese, owing plaintiff, drew a check in his favor for the amount. The statement of facts is not sufficient to show just how it was sent or delivered to the payee, if at all, but it is evident that the contention of plaintiff was that said check had been paid, if at all, by the bank to some unauthorized person, and that of the bank that it paid the check to the payee in person, but did not require his indorsement, because it was not its custom to require such indorsement when the payee presented it in person. Evidently the jury or trial court found in favor of plaintiff’s contention on the facts, i. e., that the check had not been paid to him in person, and the Tennessee Supreme Court held, in so far as the question decided may have any relevance to the issue before us, that when a bank has paid a check drawn on it to one not the payee or indorsee it was liable.

Hence, it is our opinion that appellant’s assignments should be overruled, and the judgment of the trial court affirmed, and it is so ordered.

Affirmed.
      <S^jFor other eases see same topic and KEY-NUMBER in ail Key-Nuniberdd Digests-and Indexes