text:
    HOPPING et al. v. HICKS.
    (No. 1081.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1916.
    Rehearing Denied Jan. 10, 1917.)
    1. Execution @=>344 — Return—Collateral Attack.
    In a suit by the surety on a secured note, as assignee of the note after payment, seeking payment from the maker and to establish a lien on the chattels mortgaged, the plaintiff, not being a party to the judgment under which the execution was levied upon the mortgaged property, may attack the return on the execution and show that there was in fact no levy or sale thereunder.
    [Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 1033-1040; Dec. Dig. <@=>344.1
    2. Chattel Mortga&es @=^157(2) — Execution Levy — Evidence—Sufficiency.
    Evidence held sufficient to show a levy of execution thereon before mortgage was recorded under a judgment against the mortgagor.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Dec. Dig. @=>157(2).]
    3. Execution @=>146(2) — Levy—Retention of Possession by Officer.
    The mere fact that a sheriff left live stock in a lot over night after making levy of execution on it, until arrangements could be made to care for it, did not release the levy or make the levy lawfully theretofore made, no levy.
    [Ed. Note. — Eor other cases, see Execution, Cent. Dig. § 384; Dee. Dig. @=>146(2).]
    4. Execution @=>245 — Sale—Evidence—Sufficiency.
    In a suit by the surety on a secured note, as assignee of the note after payment, seeking payment from the maker and to establish a lien on the chattels mortgaged, evidence held sufficient to warrant a finding that neither the mortgagor nor the plaintiff waived the statutory requirement that property taken under execution must be present and exhibited at the place of sale.
    [Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 681-686; Dec. Dig. @=>245.]

      5. Execution @=>220 — Presence oe Property —Statutes.
    Under Rev. St. 1911, art. 3760, providing that personal property taken on execution shall be sold on the premises where taken or at the courthouse door or at some other place where it is more convenient to exhibit it to the purchaser, and article 3762, providing that personal property shall not be sold unless present and subject to the view of those attending the sale when it is susceptible of being exhibited, the presence of the property at the sale is only excused when its nature prevents it from being exhibited, and the nature of the premises or the remoteness thereof does not excuse compliance with the statute.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 622-625; Dec. Dig. @=>220.]
    6. Execution @=>288 — Sheriffs and Constables @=>120 — Sale—Liabil:£ey Under a Void Sale.
    Where a sale of chattels taken on execution was void because of failure to comply with the statutes requiring the presence of property at the sale, the sheriff and purchaser at the sale, having wrongfully taken possession of the property ovér the protest of the owner, were guilty of conversion and liable to parties sustaining damages thereby.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 823-826; Dec. Dig. @=>2SS; Sheriffs and Constables, Cent. Dig. §§ 205-218; Dec. Dig. @=>120.]
    7. Chattel Mortgages @=>170(2) — Rights of Mortgagee — Conversion of Property by Execution Creditor.
    The purchaser of chattels under void execution sale and the officer conducting the sale, being wrongdoers, are not in a position to demand that the assignee of mortgagee of the property taken look to other property of the mortgagor or to the mortgagor’s personal responsibility.
    [Ed. Note. — For other eases, see Chattel Morfc gages, Cent. Dig. § 305; Dec. Dig. @=>170(2).]
    8. Subrogation @=>7(7) — Right of Surety.
    Where the surety on a note secured by chattel mortgage paid the note, he was subrogated to the rights of a mortgagee under the mortgage and the debt.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 26, 77, 92; Dec. Dig. @=>7(7).]
    Appeal from District Court, Parmer County; D. B. Hill, Judge.
    Action by W. E. Hicks against R. C. Hopping, and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Patton & Bratton, of Clovis, N. M., J. D. Reese, of Farwell, and Kimbrough, Underwood & Jackson, of Amarillo, for appellants. Russell & Dameron, of Hereford, for appel-lee.
   HUFF, C. J.

The appellee, W. E. Hicks, sued Y. C. Weir, R. C. Hopping, and D. W. Dunn, alleging substantially that Weir was indebted to the First State Bank & Trust Company of Hereford, Tex., in the sum of $1,-580, and to secure this amount he executed a chattel mortgage to that bank on certain described stock, cattle, sheep, etc., and thereafter paid all of the indebtedness except the sum of $300, which he borrowed from the Western Bank of Hereford, Tex.; that W. E. Hicks signed this note to the bank as surety on the 10th day of January, 1914, and also to secure the Western National Bank of Hereford, Weir executed a chattel mortgage to that bank, on certain described property, possibly some of it described in the former mortgage; that thereafter, at the maturity of the notes, Hicks discharged the same and took an assignment of the note; and that afterwards Hopping and Dunn took charge of the mortgage property last mentioned, and converted it to their own use. He sues to recover of Weir the sum of money, together with interest and attorney’s fees on the note, and to establish a lien against the property and for the value of the property so converted by Hopping and Dunn.

Hopping and Dunn answered by alleging that one C. S. Fergus obtained judgment against V. C.*Weir for the sum of $130, upon which judgment an execution was issued, and placed in the hands of Hopping, who was the sheriff of Parmer county, and levied on the property in controversy as the property of Weir, and after advertising the same sold it at public sale, and that Dunn became the purchaser thereof, paying $152.55, which is credited on the judgment, after paying the costs; and also attempted to require the marshaling of assets in the case by setting up the fact that there was $417 worth of property not included in the last mortgage and levied on by the execution but covered by the first mortgage, asking that the court require that that property be first sold by Hicks under the first mortgage.

The trial court submitted only one issue to the jury, and that was for the jury to find the value of the property sold and purchased by Dunn. This the jury did, finding its value to be $235. The trial court rendered judgment against Weir in favor of Hicks for the amount of the debt, $300 together with interest and attorney’s fees; established the mortgage against the property described therein and a- judgment for $235 against Hopping and Dunn for conversion, finding that that amount was less than the indebtedness due Hicks.

The facts in this case are sufficient to establish the indebtedness of Weir, as alleged in the petition, and that Hicks paid the amount of the note to the Western National Bank of Hereford, and took a transfer of the note and the mortgage to himself, and that he was a surety on the note. The facts also show that this mortgage was executed on the 10th day of January, 1914, but was not recorded until the 12th. The facts show, also, that the execution on the judgment of Fergus against Weir was placed in the hands of the sheriff on the 10th of January, and that he and his deputy and one of the attorneys of Fergus went to Weir’s place to levy on the cattle and purport to have levied the same about 8 o’clock on the 10th. The other facts necessary to an understanding of the ruling of this court will be noticed in tbe body of the opinion.

The first assignment presents as error the action of the court in excluding the sheriff’s return on the execution issued on the judgment rendered in the case of Fergus against Y. C. Weir. The return, in so far as we are able to ascertain, is regular on its face. The objections to its admission were that appellant was not a party to the judgment; that it was not properly identified; that the sheriff made the levy personally and the deputy made the sale; and, further, unless it was shown that the levy was made it was not binding on any one.

The second assignment is to the action of the court in rendering judgment upon appel-lee’s motion therefor for the reason that there was a valid judgment and execution and sale thereunder, at which Dunn became the purchaser of the property in question. It is manifest that the trial court sustained the last objection to the introduction of the officer’s return on the execution, that is, there was no testimony showing a levy on the property, and that he rendered judgment against appellants, on the ground that because there was no levy on the property, and because the officer did not have it at the place of sale, the acts of the officer were a trespass and not protected by the writ, and that his failure to have the property present at the place of sale passed no title to Dunn, rendering the whole proceeding with reference to levy and sale void ab initio. The facts in this case raise the issue of the levy being made, which would be sufficient to satisfy the statute relating to such levies. The evidence shows that the sheriff, armed with the writ, accompanied by his deputy and Mr. Bratton, went onto the premises of Weir, the execution defendant; that he counted the sheep levied on and took the description of the other property. He testifies that all the property was in the lot of Weir except one horse, one mare, and possibly one colt, which were out in the pasture. He counted out the stock in the lot, 60 sheep, a horse, a mare, and did not recollect just how many colts. The parties present all assisted in the counting. Weir was not at home when the levy was made, and the sheriff told Mr. Dillard, a son-in-law of Weir, who was present and assisted in the counting, and then on the place, that he would leave the property there until the next day, when Clarke, the deputy, would come out and make arrangements with Mr. Weir to care for them. The next day Clarke, the deputy sheriff, did go and did see Weir, and entered into an agreement with him to care for the stock levied on at his place until after the sale. It is uncontrovert-ed that the sale was advertised to be at the courthouse door of Parmer county, and that the sale was made by the sheriff’s deputy at the courthouse door in Harwell, but that the stuck or any of them were not present at the sale; that they were sold for a lump sum, not being sold separately, Dunn being the bidder and purchaser at such sale. After the sale was so made, the sheriff’s deputy and Dunn went to the place of Weir, and the deputy there delivered up the property to Dunn; and the evidence is sufficient to warrant the court in finding that Weir did not willingly surrender the property to the deputy or Mr. Dunn, and refused to receive pay for keeping them while awaiting the sale. After Dunn purchased the stock, he disposed of all of them. Some of them were dead, some in New Mexico, and the sheep, it may be inferred, are in the possession of one Mr. Maxwell, near Friona, possibly in Parmer county.

It is contended by the appellant that the return on the execution cannot be attacked collaterally. The appellee Hicks was not a party to the judgment upon which the execution was issued, and may attack, we think, the return thereon, and show in fact there was no levy or sale thereunder. He had no control over the officer and should not be prejudiced by an incorrect or deficient return. This is recognized by our Supreme Court, in the case of Schneider v. Ferguson, 77 Tex. 572, 14 S. W. 154, and is expressly so held by the Court of Civil Appeals for the Fifth District in Holt v. Hunt, 18 Tex. Civ. App. 363, 44 S. W. 889.

In this case, however, we think the evidence is sufficient to show a levy on the property in question. The stock were all in the lot of Weir, except two or three head, one of which Weir was using. A description of this stock was taken at the time, counted, and a note made thereof. It was levied on late one evening, and the next day arrangements were made with Weir to keep and care for the stock awaiting the sale. The evidence is practically undisputed that Weir consented that the stock should be left in his care; that he would act for the sheriff in their control. If we correctly understand our Supreme Court, this will constitute a levy.

“One object of the levy is to set apart from the effects of the execution debtor a sufficient amount of his property subject to forced sale to satisfy the judgment against him. Another is to secure the property against its disposition by the defendant in the writ during the interval between its seizure and its sale. Since a decree establishing a lien upon certain * * * property and an order directing its sale for the payment of the judgment designates the property to be sold, it is evident that a levy is not necessary for that purpose. In case of personal effects, it is proper for the protection of the plaintiff in the foreclosure decree that the officer should have power to seize and hold the property until a sale can be effected; and, in case the officer fail to exercise such power, and it should be removed before sale, he would doubtless be liable to the plaintiff for any loss which may result from his failure to make the seizure. But it is not perceived that any injury could accrue to the defendant from, his being permitted to enjoy the possession of the property until the day of sale.” Patton v. Collier, 90 Tex. 115, 37 S. W. 413.

While the court in -that case was passing upon, a levy under an' order of sale, it should be noted that the levy and sale thereunder is substantially the same as required under ordinary executions. In that ease the officer notified Mrs. Collier that he had the order of sale and had advertised the property for sale and that she could keep it until sale day. He did not take possession of it by seizing it and taking it from her. The sheriff in this case designated the property levied on and left it with Weir to care for it for him, and Weir agreed to do so. This put the property under the control of the sheriff, and he became responsible for the acts of Weir in keeping and caring for the property. The property actually in the lot when levied on was such a seizure and possession as will constitute a levy. The mere fact that it was left in the lot over night, until arrangements could be made to care for, did not release the levy or make the levy lawfully theretofore made no levy. A sheriff should have a reasonable time in which to remove the property or to arrange for its care until sale. The views of this court on this question are expressed in the case of Burch v. Mounts, 185 S. W. 889. As to the levy on the horses in the pasture and the one which Weir was riding at the time of the seizure, we do not at this time care to express an opinion as to the levy. “The officer need not in any case take charge of the property in person. He may act through the agency of deputies or keeper, being in either event responsible for their conduct. If he chooses to repose confidence in the defendant, he may appoint him keeper and may leave the property in his custody.” 2 Freeman on Executions (3d Ed.) § 261. On the question of levy appellee cites the' case of Dickinson v. Mail Pub. Co., 31 S. W. 1083. In that case the sheriff declined to seize the property because the plaintiff would not indemnify him and at'the sale stated he had refused to take possession of the property and in his return erased the words' “taking into my possession.”. This clearly was not a levy under the statute.

The trial court, in our judgment, was not authorized to exclude the return of the officer; but as we view this record, in the light of other testimony, it becomes immaterial. That this property was not at the place of sale is established without controversy. The evidence is sufficient to warrant the finding that Weir or the appellee did not waive this requirement. Weir objected to the sale and delivery of the stock to Dunn and testified he did all he could, without resorting to force, to prevent Dunn and the deputy sheriff from removing the property after the purported sale.

Article 3760, R. C. S.:-

“Personal property taken in execution shall be sold on the premises where it is taken in execution, or at the courthouse door of the county, or at some other place if, owing to the nature of the property, it is more convenient to exhibit it to purchasers at such place.”

Article 3762:.

“Personal property shall not be sold, unless the same be present and subject to the view of those attending’ the sale, when it is susceptible of being thus exhibited.”

These statutes are clear and unambiguous that the property shall not be sold unless it is present at the sale. A sale made when, it is not present is not sale under an execution and the statute. It is contended that the property was poor and weak antd could not be moved to the courthouse. The statute provides for this contingency in giving preference to the premises where taken, but it is contended that the premises were remote and in a sparsely settled neighborhood. This does not authorize a sale at another place than those named, or dispense with the presence of the property. The statute will excuse its presence only when the nature of the property prevents its being exhibited. The nature of the premises or the remoteness thereof does not excuse. The statute amply protected the sheriff if he but followed its terms. In Dickinson v. Mail Pub. Co., supra, it is apparently held in order to render an execution sale valid it must be in the possession of the officer and exhibited at the sale.

“A sale of personal property at a place where it cannot be examined and seen is a nullity.” Freeman on Void Judicial Sales (3d Ed.) § 31; Kennedy v. Clayton, 29 Ark. 270.

It was held by the court of appeals, where a sale was made at a place different from the one in the notice of sale, that the sale was an improper one and the officer liable and responsible as a trespasser ah initio; that when he sold unlawfully he lost the protection of the execution, and this was true even though he paid over the proceeds received at the sale. 1 White & Wilson, § 399, citing Freeman on Execution, §§ 290 and 303.

The Court of Criminal Appeals, in Floyd v. State, 68 S. W. 690, held the sale of an estray to be illegal when the animah was not present at the place of sale as required by the civil statutes for the sale of personal property under execution; that such sale will support a conviction for unlawful sale of an estray. However, in that case, the law with with reference to the sale of an estray was in other particulars violated. There being no sale, the sheriff had no right or authority to deliver the property to Dunn, especially over the protest of Weir. Having wrongfully taken possession of the property, they were guilty of conversion and liable to the parties sustaining damages thereby.

In examining the authorities, we find that there is} some difference with reference to having the property present as to whether the sale would be simply, void or voidable, some courts holding them void and others only voidable; but our statutes are so clear and apparently mandatory that we are satisfied that the rule in this state will require tlie holding that a sale under such circumstances is void, unless perhaps the defendant waives their presence at the sale. This is not now before us. It seems to be the rule in this 'state, where a¡ trespasser converts property to his own use, that a' mortgagee may sue for and recover its value if it does not exceed his debt.

There being no controversy, or at least such under the assignments and requested instruction that we can taire note of, raised by the evidence as to the amount of ihdebt-edness, and the judgment having established the debt and mortgage, we believe the court submitted the only issue raised and properly rendered judgment for the value against the appellants. Fouts v. Ayres, 11 Tex. Civ. App. 338, 32 S. W. 435; Parlin v. Moore, 28 Tex. Civ. App. 243, 66 S. W. 798.

It is contended that the appellee should be required to loot to the other property covered by the first mortgage and not included in the second. The appellants in this case are shown to be wrongdoers, and they are not! in a position to demand that appellee look to other properties or to personal responsibility. The judgment does not establish the first mortgage in favor of Hicks, and the evidence will support the finding that he was not subrogated to the right thereunder. Scaling v. First National Bank, 39 Tex. Civ. App. 154, 87 S. W. 715. However, it is admitted in this case that Weir was and is insolvent.

The evidence warranted the finding by the court that Hicks was a surety to Weir on the note to| the bank; that he paid this amount to the bank, taking a transfer of the note and mortgage at the time of the payment ; and that he was thereby subrogated, both in law and by contract, to the rights of the bank under the mortgage and the debt.

We find no error on the part of the court in rendering judgment as he did in this case, and the judgment of the lower court will therefore be affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    BRIGGS et ux. v. McBRIDE et al.
    (No. 1076.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1916.)
    1. Witnesses @=>139(9) — Competency — Tes-moNi as to Transactions with Persons Since Deceased — “Heir.”
    Under Rev. St. 1911, art. 3690, providing that in actions by or against executors or administrators in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the decedent, unless called to testify thereto by the opposite party, and the provisions of the article shall extend to actions by or against heirs or legal representatives of a decedent arising out of any transaction with the decedent, testimony of plaintiffs, and consequently of defendants, in an action against a widow to establish a trust in property held by her in her own right as survivor of the community and as a vendee of her children, is not inadmissible, since as to community property, the title to which is cast on the survivor by Rev. St. 1911, art. 2469, the surviving widow is not an “heir” of her husband within article 3690.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 590; Dec. Dig. @=>139(9).
    For other definitions, see Words and Phrases, First and Second Series, Heir.]
    2. Limitation of Actions <®=> 102(8) — Computation op Period — Accrual of Cause of Action — Establishment of Trust.
    Where plaintiffs, each about 60 years old, advanced $1,550 to their son-in-law, who contributed $1,450 for the purchase of real property, which the parties occupied jointly, but through mistake or fraud the deed to the property was taken in the name of the son-in-law alone, and was so recorded, and plaintiffs were frequently informed that the deed was in the name of the parties jointly, and never discovered the error till after the death of the son-in-law, limitations did not begin to run against an action to establish a trust in the land till their discovery of the omission of their names from the deed.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 502; Dec. Dig. <@=>102(8).]
    3. Pleading @=>205(2) — Demurrer — Pleading Good in Part.
    Where a petition to establish a trust stated a cause of action at least as to one-half of 31/60 of the estate claimed by plaintiffs, a gen eral demurrer should not be sustained.
    [Ed. Note. — For other cases, see Pleading. Cent. Dig. § 492; Dee. Dig. <@=>205(2).]
    4. Husband and Wife <@=>248 — Community -Property — Nature of Estate.
    The community status, like a partnership, has the elements of gains and losses based on the presumed labors of each, irrespective of the real industry of either spouse.
    [Ed. Note. — For other c^ses.'see Husband and Wife, Cent. Dig. § 880; Dee. Dig. @=>248.]
    5. Husband and Wife @=>265 — Community Property — Management and Disposition.
    The husband has the real management, disposition, and control of the community estate, with the exception of the conveyance of the homestead, or when the wife is abandoned by the husband, or where the property is conveyed in fraud of the wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 917-924; Dec. Dig. @=>265.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by E. R. Briggs and wife against Lillie McBride and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    Russell & Dameron, of Hereford, for appellants. Ben H. Stone and E. T. Miller, both of Amarillo, for appellees.
   HENDRICKS, J.

E. R. Briggs and O. B.. Briggs, husband and wife, sued Lillie McBride, their daughter, on allegations in a second amended original petition, in substance as follows: That on or about April 17, 1909, the plaintiffs and one Louis McBride^ their son-in-law, purchased certain residence lots in the town of Hereford, Deaf Smith county, Tex.; that plaintiffs advanced and paid on said property the sum of $1,-550, and that Louis McBride contributed the sum of $1,450, a total consideration of $3,-000, paid in cash for the same; that said property was purchased as a home for all of the parties, who took immediate possession, after the purchase, for that purpose. Plaintiffs further aver that the sum advanced by them, $1,550, was delivered to Louis McBride upon an oral agreement that McBride would use the money for the purchase of the property and take a deed to the same in the joint names of the plaintiffs and McBride, but, through' inadvertence and mistake of the scrivener, the names of the plaintiffs were omitted from the deed; that McBride accepted the deed, placing the same of record, and did not know that the names of plaintiffs had been so omitted, but believed that their names had been inserted in said instrument; that McBride informed the plaintiffs that he had taken the deed in the joint names of all the parties, and that all of said parties believed that said deed contained the names of all up to the date of the death of Louis McBride, which occurred on or about March 18, 1913; that McBride repeatedly informed the plaintiffs, and stated to other parties, that they and he were joint owners of the property, and that McBride never in any manner held the property adversely to the plaintiffs or repudiated their claim of ownership. ■ It is also averred that Lillie McBride, the defendant herein, and the daughter of plaintiffs, and Louis McBride, resided together for a number of years, and that plaintiffs had the utmost confidence in the integrity of their son-in-law, and the latter had been intrusted with numerous business affairs of the plaintiffs, and had been “in the habit of conducting plaintiffs’ business”; that when McBride informed them the deed had been taken in the joint names of all the parties, they never examined the deed records to ascertain if such were a fact, and never had any notice or knowledge that their names did not appear in the deed until on or about August 15, 1914, after the death of McBride, at which time the plaintiffs discovered the error, and demanded of defendant Lillie McBride a conveyance of their interest, which was refused. Immediately following the allegations expressing the preceding facts, it is alleged:

“Plaintiffs will show that immediately upon making said $1,550 payment on said property, as aforesaid, they went into possession of the said property and so continued to reside on and. possess said property and pay the taxes thereon until some time in the year of 1914, as aforesaid.”

There are further averments in the nature of an alternative plea, rather hard to construe the extent and reach of the same, in effect that if at any time Louis McBride discovered the omission of plaintiffs’ names from the deed, he expressly stated that such fact was an error in drawing the deed, and that plaintiffs in fact owned an undivided interest in the property, and that he was holding same in trust for them to the extent of their interest. 'Following, however, the last averment, ..Jt is stated that they never at any time had the deed in their possession, and again repeated that they did not know the contents, and, reposing the utmost confidence in McBride, on account of his information to them as to the nature of the deed, and on account of the fiduciary relationship, they had no reason-to disbelieve McBride’s statements.

It was also stated “that if McBride intended to take said deed in his name, for the purpose of defrauding these plaintiffs, they never had any notice of the same until about August 14, 1915, and that they were prevented from learning of such facts by reason of the concealment and misstatements of said McBride,” and relied on the same and had no reasonable way of learning to the contrary.

It was averred that Louis McBride left surviving him “as his sole and only heirs, the defendant herein Lillie McBride and two children, Clara McBride and L. E. McBride. Thereafter, about August 1, 1914, the said1 children * * * by duly executed deed, conveyed their interest in said property to the defendant herein Lillie McBride.”

The trial court sustained a general demurrer to plaintiff’s petition and two special exceptions, respectively setting up the two and four years’ statutes of limitations.

As affecting the nature and character of the estate and the source of title charged in the petition, as held by Lillie McBride, we think, in legal effect, the same is averred as follows: That plaintiffs furnished 3 Veo and their son-in-law Louis McBride 29/60 of the purchase money of the property upon an oral agreement for the joint acguisition of same; that upon the death of Louis McBride the legal title only to one-half of this 20/eo of said property was in the wife after the death of Louis McBride, in her own right, subject to proper proof affording a divestiture. This results because the property is presumptively community. If it had been community property without any charge of an equitable estate, the children would only have succeeded to one half, with the other half vesting in the wife by virtue of the community principle, and Rev. St. art. 2469, easting on the survivor one half of said-" community estate.

It is insisted, and seriously argued, in this cause that the plaintiffs’ second amended original petition discloses upon its face that the trust.-sought to be established by the plaintiffs in error must be established by their testimony as to statements made by them to Louis McBride, and by the latter to them, which, under article 3690 of the Revised Statutes would be inadmissible.

“In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or' against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.” Article 3960.

We cannot conceive that the learned trial judge sustained the general demurrer upon such a theory. The petition does not negative, nor does it disclose, wholly the source of the proof to sustain the alleged equitable estate. Neither do we see how a trial judge could anticipate that either party would not call the opposite party to the witness stand.

In view of the above analysis of the status of the estate charged in the petition as being claimed by Lillie McBride, and on account of another trial, we hold, in the condition of this record,' the plaintiffs’ testimony, and consequently defendant’s, would be admissible. Wootters v. Hale, 83 Tex. 563, 19 S. W. 134; Harris v. Warlick, 42 S. W. 356; Evans v. Scott, 97 S. W. 117; Edwards v. White, 120 S. W. 916; Harry v. Hamilton, 154 S. W. 637; Field v. Field, 39 Tex. Civ. App. 5, 87 S. W. 726; Wilmurth v. Tompkins et al., 53 S. W. 833.

As to the particular property claimed in the petition, though stated that Lillie McBride is an heir, she was not an heir of her husband in a strict sense of heirship to the one-half of the 31/60 of said estate though title was cast by article 2469. The action is not against her as executrix or administra-trix, nor is she asserting any right to the property as the heir of her deceased husband; neither is it shown that she was administering their community estate under the statute as his surviving wife. As a vendee from the children of the legal title to one-half of the 31/eo of said alleged trust estate, she was in the attitude of a purchaser. '

The condition of the title, upon this record, as it would have been litigated upon the pleading, was one in Mrs. Lillie McBride, in her own right: First by virtue of her half of the community; and, second, as a vendee from the children. Some of the above authorities hold, and the others are persuasive, that testimony to establish such a claim, when such a condition is disclosed, is not excluded by the terms of the statute mentioned.

On account of the averments of the petition it may be a little difficult to properly characterize the nature of the trust charged against the estate in question, though probably it should be designated as a constructive trust. The oral agreement to jointly acquire the property and to have the conveyance express the joint interest, was not fulfilled, either by mistake or inadvertence of the scrivener, or fraud by Louis McBride. There are some general expressions in the opinions that the statute of limitations begins to run from the time that a constructive trust, or one ex maleficio, was created. However, such a rule is subject to exceptions, and this case would illustrate an exception. The relationship of the parties; the age of the beneficiaries, about 60 years; the management of plaintiffs’ business by the son-in-law; the trust and confidence reposed in him by them; the reliance by them upon his statements ; their joint residence on the property with the son-in-law to the time of his death, and inferably with the daughter after his decease; and such confidence and trust remaining until the actual discovery in August, 1914. It may be that the allegations of excuse in detail are not quite as full as careful pleading should dictate, but we think they are full enough against a general demurrer.

If a plaintiff’s claim of the land is against the possessor of a legal title as held in constructive trust for his benefit, it may be that the defendant may argue that the statute of limitations applies from the time of the creation of the trust, without showing that he has repudiated the trust. Oaks v. West, 64 S. W. 1034. However, if plaintiffs show that, without fault on their part, they are ignorant of facts on account of having been lulled into security, the statute would not apply. The ordinary rule is:

“If * * * the act of the trustee is not inconsistent with any right of the beneficiary which is known to1 the latter, then there is not cause for his bringing a suit; there being no violation of any known right.” Rice v. Ward, 92 Tex. 704, 708, 51 S. W. 844, 845.

We mean as applied to express or resulting trusts.

Justice Moore held that under circumstances showing the possession of certain ne-groes by a father in a fiduciary capacity as a natural-guardian of the daughter, there must be a distinct repudiation of her title brought to her knowledge, and such repudiation must have been persisted in throughout the term of prescription; that equivocal acts, first in denial and then in recognition, would not constitute such a repudiation. Lewis v. Castleman, 27 Tex. 422. Chief Justice Willie said:

“In case of a constructive trust, which is born of fraud, .and which presupposes from its beginning an adverse claim of right on the part of the trustee by implication, the statute will commence to run from the period at which the cestui que trust could have indicated his right by action or otherwise. Hunter v. Hubbard, 26 Tex. 537; Anderson v. Stewart, 15 Tex. 285; Carlisle v. Hart, 27 Tex. 350. But even in such cases the trustee must bring himself clearly within the position of a continued and consistent adverse claimant (Grumbles v. Grumbles, 17 Tex. 472) and th.e cestui que trust must have no reasonable excuse for failing to prosecute his claim within a proper time. McKin v. Williams, 48 Tex. 89.” M. S. & R. Cole v. C. W. Noble, 63 Tex. on page 434.

Judge Willie was dealing with a resulting trust, and said:

“In this case S. F, Noble, Jr., set up no claim to hold the land adversely to his brother; and, after his death, his personal representatives' in effect declined to make such claim by failing to administer the lots as part of his estate; and his widow did not repudiate the trust until a short time before the commencement of this suit. These circumstances were calculated to lull the appellee into the belief that the trust was still recognized by those claiming under the original trustee; and as the opposing claimants, if any existed, were connected with him by blood and affinity, we cannot say that he was bound to prosecute his rights at any time before their disavowal was brought to his notice in such manner as to claim his attention.” 63 Tex. pages 434, 436.

The case of Davis v. Davis, 20 Tex. Civ. App. 311, 49 S. W. 726, is practically the same as the present case. Two brothers were partners; one residing in Kentucky', and the other in Texas. The latter purchased the land with partnership funds. He thereafter-ward, in writing and verbally, acknowledged that the land was the property of himself and brother. However, subsequently, he executed a deed conveying the land to his wife, which was promptly recorded. “The evidence shows an act of repudiation occurring in 1877, by the conveyance of the tract by Geo. R. Davis to his wife, the (Jeed being, as stated, at once placed on record. Neither this or another act of repudiation would start the statute to run until the party affected knew of it, or until the circumstances reasonably charged him with knowledge of it.” 20 Tex. Civ. App. page 313, 49 S. W. 728. Writ of error denied.

Chief Justice James also said that the conduct of the trustee, the nonresidence of his brother, and the relations of the parties, would excuse the ascertainment of the act of repudiation.

We were at first concerned with the thought that, on account of the petition averring that Lillie McBride received a part of the land from Louis McBride’s heirs, by duly executed conveyance, without allegations that she had notice or paid a valuable consideration, and the burden being upon the plaintiff to aver and prove such facts, this court should discuss that subject. The complexity of the problem arose on account of the fact that Mrs. McBride was the wife and partner in community at the time the husband acquired the property; hence would notice to him be constructive notice to her, by virtue of the community and the domestic relations? If we are correct, however, that the wife is vested with the legal title to one-half of the 31/60 of the estate claimed by plaintiffs, in any event, the trial court should not have sustained the general demurrer. As to so much of said estate she would stand in the shoes of her .husband. We referred such a question of constructive notice to both parties for a new brief and additional argument on that subject.

The cases of Stephens v. Herron, 99 Tex. 63, 87 S. W. 326, and Pearce v. Jackson, 61 Tex. 645, cited by appellees in their supplemental brief, are not wholly persuasive that 'a wife, under conditions exhibited in this record, could be an innocent purchaser from her husband of a trust estate, or from his heirs after descent was cast, on account of the imputation of notice solely resulting from the community principle. In the former case, on a careful analysis of the facts, the wife knew that the property had been conveyed to another grantee, though the deed was unrecorded, and the consideration for the conveyance by the husband to the wife was in reality community funds.

The case of Stephens v. Herron, supra, was one where the wife purchased from the husband an estate. The opinion does not disclose that it was community. Previous to this purchase she had joined with the husband in an instrument appointing an attorney in fact, and such agent had thereafter conveyed the property, and his grantee had failed to place the deed of record. The Court of Civil Appeals simply certified the question to the Supreme Court whether the fact that she had joined in the power of attorney imputed notice to her of the rights of the holder of the unrecorded deed from the attorney in fact, and the Supreme Court answered negatively. Bates on Partnership says:

“If the trustee, without his copartners knowing that the money is held in trust, uses it to pay the debts of the firm, or applies it to other . partnership uses, or lends it to the firm or puts it in as capital, the cestui que trust does not become a creditor of the firm, and can neither maintain an action against them or prove against the joint estate in bankruptcy. . * * * The knowledge of the guilty partner is not the knowledge of the firm because it is outside of the firm’s business”

—and states that those partners who were cognizant only of the misapplication of the trust fund are alone chargeable. Yol. 1, § 481, pp. 500, 501.

Perry, citing some of the cases cited by Bates, says, in a note to section 846:

“The weight of authority seems to be to the effect that when a partner turns over to the firm money which is apparently his own, or uses it to pay firm debts, without notice to his co-partner of any trust attaching to it, and he is given credit for it as his own money, the firm is given protection of a bona fide taker for value without notice.” Perry on Trusts, vol. 2, § 846, p. 1385 (note).

This doctrine is on the theory that the misapplication, by the individual partner, when a trustee, of trust funds, is a tort which is outside the scope of the partnership. The comment by Perry is, though, that this question has never been worked out very satisfactorily.

The community status, of course, ñas been likened to a partnership. It has the elements of gains and losses, based upon the presumed labors of each, irrespective of the real industry of either spouse. As to community property, though, the wife is practically a passive partner, viewing her powers to act for the community, except probably where she acts as the agent, or implied agent, of the husband for the community, or for the family. The husband has the real management, disposition, and control, with the exception of the conveyance of the homestead, or when abandoned by the husband, or except where the property is conveyed in fraud of the wife. The liability of the partnership and of the individual partners; in ordinary'partnerships, is worked out through one of agency by virtue of a contract. The wife, though, is denied the full supervision and management, as well as the powers, of an agent inhering ordinarily in partnerships. The marriage,, of course, in a sense is a contract, but the law thereafter impresses the community principle, and the community gains and losses as a result, with the husband as the dominant partner. The wife is not personally liable; neither is her separate estate, for the community debts, or the husband’s torts. As to the acquisitions aside from her industry falling into the community, when to sell or buy, or when to trade, or how much, or how little, in law she is negligible; her dictation is entirely feminine. Concerning this question, it might be thought that in an ordinary case, where one trusts the husband with the legal title to property,' which carries with it the apparent title to the whole estate, if a wife in reality, without notice, pays value out of her separate estate, she should be entitled to the same as any other innocent purchaser. However, on the other hand, the husband, if he should convey to the wife such an estate, and defraud the cestui que trust, or convey to some other innocent purchaser, he would be liable for the value of the property, and in the last instance we know, and in the first instance it would seem, that the community estate would have to respond. If so, we would have the anomaly of. the wife being an innocent purchaser of property on account of which her community property is liable, through the very wrong which produces, with her innocence, her estate.. If the property is presumptively community, it may be considered, as a practical question, she would only purchase, and pay for, the husband’s interést; ostensibly she owns the other half.

It is true that Justice Stayton’s language, in the case of Pearce v. Jackson, supra, is subject to the construction that he thought a wife could become an innocent purchaser against the undisclosed interests of another if she had no notice and paid value. The language of such a great judge has affirmative persuasion, but the facts of the particular case, when analyzed, are of a negative value. '

We consider the question as a matter of policy, and a rule of property, one of serious-import, and its correct solution, though a desirable result, quite difficult as a legal question. Such a question probably may not arise on another trial in view of our opinion, if correct, on other legal merits arising upon the record, and we will not decide it.

The district court should not have sustained the general demurrer to the petition, or the special exceptions on limitation, as the allegations present sufficient grounds of excuse affecting the question of diligence for' the lack of knowledge of the plaintiffs.

The case is reversed and remanded.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


text:
    QUANAH, A. & P. RY. CO. v. COLLETT.
    (No. 1086.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1917.)
    1. Eminent Domain @=3262(2) — Parties Entitled to Allege Error — Estoppel—Con-demnation.
    Where a railroad against which an action to recover land was brought pleaded ownership of its right of way across the land, and by a separate paragraph alleged that it had constructed its railroad across the land and prayed a condemnation of a right of way therefor, as it was permitted to do by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 6531, which provided that the plea for condemnation should be an admission of plaintiff’s title to the property, and the railroad appealed from the award of damages, but did not question the judgment of condemnation , it is estopped to raise on that appeal questions affecting its original claim of title to the property.
    ' [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 682; Dec. Dig. @=3262(2).]
    2. Limitation of Actions @=>32(2) — Injuring Property Without Compensation-Damages.
    The two-year statute of limitation, though it may bar recovery for the negligent construction of a railroad across plaintiff’s land, does not bar recovery in condemnation proceedings of the incidental damages to plaintiff’s land not taken caused by the proper construction of the railroad along the right of way condemned.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 143; Dec. Dig. @=> 32(2); Eminent Domain, Cent. Dig. § 783.]
    3. Eminent Domain @=>307(2) — Compensation — Damages—Evidence.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6521, providing that in estimating either the injuries or the benefits in condemnation those sustained by the owner in common with the community generally, and not peculiar to-him, shall be excluded, evidence that the land was of more value after the railroad was constructed than it was before, without evidence that the increase in value was due to particular benefits received by that land, does not show that plaintiff is not entitled to recover compensation for damages to the part of the land not taken, but, at most, makes that a question for the jury.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 823; Dee. Dig. @=>307(2).]
    4. Eminent Domain @=>224 — Newly Discovered Evidence — New Trial.
    In an action against a railroad company to recover land, where defendant claimed title, and also asked for condemnation under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6531, which provides that the plea for condemnation is an admission of plaintiff’s title, defendant cannot, after a judgment of condemnation, secure a new trial on newly discovered evidence as to his title.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 574-579; Dec. Dig. @=> 224.]
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    Action by J. C. Collett against the Quanah, Acme & Pacific Railway Company to recover possession of land, in which defendant asked for a condemnation of a right of way across the land. Judgment for plaintiff, but awarding condemnation and assessing the damages, and defendant appeals.
    Affirmed.
    D. E. Decker and J. A. Clarke, both of Quanah, and G-. E. Hamilton, of Matador, for appellant. T. T. B.ouldin, of Matador, for ap-pellee.
   HENDRICKS, J.

The appellee, J. C. Col-lett, sought to recover of the appellant, Quanah, Acme & Pacific Railway Company, the title and possession of a certain section of land situated in Motley county, Tex.

The defendant railway company disclaimed as to all of the land described in plaintiff’s petition, except 200 feet of right of way through said survey, amounting to 12.8 acres; and, after specially answering, under separate paragraphs, that it was entitled to the land on account of certain agreements and estoppels, the railway company, in re-convention, pleaded that it had constructed a line of railway across plaintiff’s land (but with his consent), and that said right of way is necessary to its business as a common carrier, praying tor a. condemnation of a right of way, and that tiie court assess plaintiff’s damages therefor.

Article' 6531, Yernon’s Sayles’ Civil Statutes, provides:

“When any railroad company is sued for any property occupied by it for railroad purposes, or for damages thereto, the court in which such suit is pending -may determine all matters in dispute between the parties, including the condemnation of the property, upon petition or cross bill asking such remedy by defendant, but the plea for condemnation shall be an admission of the plaintiff’s title to such property.”

Before the passage of this article in 1889 the district court had no jurisdiction on the application of a railway company, by cross-action or otherwise, to change plaintiff’s suit to one of condemnation for the land. Such a corporation in the exercise of the right pri- or to said statute could only obtain a condemnation in a manner pointed out by the particular statutes giving the power and prescribing the methods and adjudicating the rights in the county court. Railway Co. v. Poindexter, 70 Tex. 98, 7 S. W. 316. The statute was evidently enacted to give railroad companies such a right, but in providing the remedy furthering it attached the condition that the “plea for condemnation shall be an admission of the plaintiff’s title to such property.” The appellant railway company is in the attitude of pleading an agreement of donation of the right of way, also estoppel and acquiescence, and at the same time seeking to condemn the property, in which event the statute requires it to admit plaintiff’s title.

In this case the damages were awarded, and while there may be questions arising upon the evidence, or otherwise mooted, as to the correctness of the damages, however, as to the question of title, the district court in its judgment having condemned the land, and there being no complaint in that respect by the defendant, nor attempted rejection of said judgment in this court, but an evident acquiescence and election with reference to the same, we think the defendant is estopped to raise in this court questions affecting any other claim of right affecting the title to the property interposed by it. Railway Co. v. Johnson, 156 S. W. 259, par. 12; Vance v. Railway Co., 173 S. W. 265; Railway Co. v. Kinkead, 60 S. W. 468.

The first, second, and third assignments of error, as to the question of damages, assert that the record discloses that that part of -the suit for same was barred by the two-year statute of limitation. That question also arose in the cases of Chicago, Rock Island & Gulf Railway Co. v. Johnson, and Railway Co. v. Kinkead, supra, in-which the Supreme Court denied( writs of error. Following the case of Railway Co. v. Cave, 80 Tex. 137, 15 S. W. 786, it was held that the statute of two or four year limitation did not apply to the right of the owner of compensation for damages to the remainder of the land, when in reconvention in trespass to try title the railroad sought condemnation. .Justice Stayton had said in the case of Railway Co. v. Cave, supra;

“It might as well be held that plaintiff was barred from recovering damages for the condemnation of the right of way itself by reason of a former occupancy not sufficient to confer the right as to hold that he is barred from recovering for injury to land not actually condemned, but made less valuable by the condemnation of the right of way; for the one element of damages as well as the other enters into the compensation to be paid for the taking, and neither can be barred so long as the land has not in some lawful manner been burdened with the easement.”

Cases applying a shorter statute of limitations, where the damages arose either from negligence or unskillfulness in the construction or operation of the road, do not apply. The case of Railway Co. v. Henderson, 86 Tex. 308, and particularly page 313, 24 S. W. 381, discloses the difference between damages accruing under the Constitution for the taking or appropriation of private property for. public use and other damages arising on account of either the negligent construction or operation .of the railroad. The land belongs to the owner until paid for under the Constitution, and the compensation is the whole damages, including the value of the land taken, as well as the damages to the remainder of the land. Railway Co. v. Henderson, supra, p. 313.

The fifth assignment of error raises the question that the judgment and verdict are contrary to the evidence, in “that the land not taken was of greater value after the construction of the railway than prior thereto.” We assume that appellant means that in estimating fhe compensation or the damages to the remainder of the tract the testimony shows such a deduction of benefits peculiar to the land not taken as to offset,, or more than offset, one against the other.

Article 6521, Vernon’s Sayles’ Civil Statutes, provides:

“In estimating either the injuries or the benefits, as provided in the preceding article, those injuries or benefits which the owner of such real estate sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use and enjoyment of the particular parcel of land, shall be altogether excluded from such estimate.”

Plaintiff’s proposition under the above assignment is, in substance, that the evidence shows that plaintiff's land not taken, for which he seeks damage because of the construction of defendant’s road, was worth more, or at least as much, after construction, than it was before.

It might be well- doubted whether the assignment and the proposition really raise a deduction of special benefits as offsetting the injuries. However, all of the testimony by the different witnesses reproduced-in appellant’s statement under said assignment is addressed to an enhancement of the value of the land on account of the construction of the railroad, which, it would seem to us, would be shared by the community. Evidence of a general increase in the value of the property in the neighborhood arising on account of the presence of the railroad is, of course, not to be considered in estimating or reducing such damages. We see no testimony quoted in the brief as affecting the value of the land pointing to benefits peculiar to the owner “and connected with his ownership, use, and enjoyment of the particular parcel of land.” While we do not think the testimony raises an. issue, however, at best, according to the statement in the brief, it could only be a question for the judge or jury.

The seventh assignment of error is based upon a ground in the motion for new trial of newly discovered testimony with reference to a contract found after the trial, and not produced at the hearing. This assignment before this court on account of previous discussion of the article with reference to condemnation by defendant and admission of title by it in this suit, we think, is wholly immaterial.

Before concluding to determine that part of the case upon the authorities and reasons adduced by us, we had carefully considered all the assignments, and would not have reversed the cause on either of them.

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


author: HALL, J.

text:
    AMES PORTABLE SILO & LUMBER CO. v. GILL.
    (No. 1077.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1916.)
    1. Sales @=>446(9) — Warranty — Trial — Instructions.
    In an action for tlie price of a silo, where defendant alleged fraud and breach of warranty, and claimed rescission or damages in the alternative, and there was evidence tending to defeat the claim for a rescission, it was error to refuse plaintiff’s requested instruction that if the silo was guaranteed as alleged by defendant, and the guarantee was broken by plaintiff, and the silo was of any value, the jury should only allow an abatement of a sum equal to the difference between value of the silo delivered and the value of such silo as it was guaranteed to be.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1317; Dec. Dig. @=>446(9).]
    2. Sales <©=>354(6) — Pleading—Fraud.
    In an action for the price of a silo, allegations in the answer that defendant was. induced to sign an order for the silo which recited that it contained the entire contract between the parties, by the statement' of plaintiff’s agent that the order was a mere formal matter necessary to get the proposition before the plaintiff, and that the defendant did not know or read the contents of the order but relied upon the representations of the agent, and that the agreement was that the contract between the parties would be recorded in another and 'different writing thereafter, and that such i-epresentations were untrue, made for the purpose of inducing the defendant to execute the written order, and that the defendant was inexperienced and relied upon such representations to the plaintiff’s knowledge, were sufficient to charge fraud.
    [Ed. Note. — For other cases, see .Sales, Cent. Dig. § 1015; Dec. Dig. @=>354(6).]
    3. Sales @=>364(4), 446(2) — Remedies of Buyer — Fraud — Breach of Warranty — Instructions.
    In an action for the price of a silo, where defendant alleged fraud entitling him to a rescission, with an alternative plea of damages for breach of warranty if the evidence failed to sustain his allegations of fraud, the charge of the court should have covered both phases of the case.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1068, 1310; Dec!. Dig. @=>364(4), 446(2).]
    4. Evidence @=>131 — Admissibility — Similar Facts.
    In an action for the price of a silo, where it was shown that the silo was erected under the supervision of a person furnished for that purpose by plaintiff, and that it “did not set straight,” and that the ensilage in the silo had spoiled, evidence that other silos of the same make, when properly constructed, filled, and taken care of, would make and keep good ensilage, was not admissible.
    [Ed. Note — For other cases, see Evidence, Cent. Dig. §§ 399 — 402; Dec. Dig. @=>131.]
    5. Sales @=>358(4) — Action for Pricn — Evidence — Admissibility.
    In an action for the price of a silo, where defendant offered evidence tending to show that the silo was of no value, evidence of the cost of putting the silo in repair and correcting all defects was admissible.
    [Ed. Note — For other cases, see Sales, Cent. Dig. § 1052; Dec. Dig. @=>358(4).]
    6. Appeal and Error @=>959(3) — Pleading @=>236(3) — Amendment — Discretion of Court — Review.
    Allowance of trial amendments to pleadings is a matter of discretion with the trial judge, and will not be reviewed by the appellate court, unless there has been a clear abuse of this discretion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3830; Dec. Dig. @=>959(3); Pleading, Cent. Dig. § 691; Dec. Dig. @=> 236(3).]
    Error from District Court, Carson County; Frank Willis, Judge.
    Action by the Ames Portable Silo & Lumber Company against R. E. Gill. Judgment for defendant,, and ¡plaintiff brings error.
    Reversed and remanded.
    Boyce & Davidson, of Amarillo, for plaintiff in error. Kimbrough, Underwood & Jackson, of Amarillo, for defendant in error.
   HALL, J.

Plaintiff in error sued defendant in error for the purchase price of a silo, alleged to have been sold and delivered upon the written order of defendant in error, dated August 31, 1914, the material provisions of which are as follows: The entire purchase price is .$663, f. o. b. Beaumont, Tex., shipment to be made to defendant in error at Groom, Tex. It was provided that $200 should be paid 30 days after the arrival of the silo at Groom, the balance to be evidenced by two promissory notes; that the bill of lading should be sent to the First State Bank of Groom, where settlement would be made by execution of the notes provided for and a failure on the part of the purchaser to make such settlement within 10 days to mature the entire purchase price at the option of plaintiff. The order, among other provisions, contained the following:

“Contract. It is understood that this order contains the entire contract between the undersigned purchaser and the Ames Portable Silo & Lumber Company, and that either party hereto shall not be bound by any agreement not contained herein.
“Guarantee. The Ames Portable Silo & Lumber Company guarantees the Ames portable silo to be well made, of good material, to be shipped knocked down in such parts as to form a complete structure when properly assembled and erected according to plans furnished by the company for same, and agrees that if any piece or part is found defective and unsuitable to enter the structure when received by purchaser, the company will furnish free to purchaser such parts as are necessary to replace the same within a reasonable time after receipt of proper notice in writing from the purchaser, notice to be given within ten days after delivery of the silo.”

Plaintiff in error alleges that the silo was shipped to Groom and notes sent as provided by contract, but that defendant, without the knowledge or consent of plaintiff, secured the silo and hauled it away .without having executed the notes; the recovery asked being for the amount represented by the notes, and in the alternative, for the purchase price of the silo and interest.

The answer of the defendant is in substance as follows: That plaintiff’s agents, Hooper & Roach, of Groom, offered to sell the silo to him, making certain representations as to the quality and properties of the silo, stating to him that if he would execute the notes for the purchase price plaintiff would make good all representations, that defendant refused to enter into such contract on such representations, but advised the agents that the representations would have to be reduced to writing and that such guaranty must contain the following:

“That such written guaranty should warrant that such silo would be sáfe and durable for at least five years; that it would not fall down, buckle in, warp, or lean; that it would be air tight, and that it would keep, save, and preserve ensilage properly and in good condition so as to conserve and develop the greatest feed value out of such ensilage placed into the same; and that in case said silo for any reason should fail to meet the terms of such guaranty, then that said trade should be rescinded and defendant’s notes returned to him, together with any moneys paid thereon.”

Defendant further alleged that plaintiff agreed to furnish such writing before defendant would be required to execute any notes or pay any money and before any contract would be binding on the parties; that such agents represented that the order was a Aere formal matter necessary to get the proposition before plaintiff; that the train upon which the agent wanted to send the order to plaintiff, was about due and that such agent said that he wanted to get off on said train; that defendant did not read or know the contents of the order, but relied upon the representations of the agent; and the agreement that said contract between the parties would be embodied in another and different writing thereafter to be executed by plaintiff, and if sufficient accepted by defendant. Then follow allegations that said representations were untrue, and were made for the purpose of inducing this defendant to execute said written order for the purchase of said silo; that defendant was inexperienced and wholly uninformed as to the sufficiency, character, workmanship, construction, or material in said silo, or what was required in a silo of proper construction, and plaintiff well knew that defendant relied upon such representations of plaintiff, and its assurance that the matter of signing the printed order was merely a matter of form and of plaintiff’s agreement later to deliver him a contract covering said agreement made between the parties and embodying plaintiff’s guaranties and warranties of said silo; and that defendant would not have executed such order blank then executed but for his reliance upon plaintiff’s assurance that the same was merely a matter of form, and that the said contract and agreement of the parties would be later embodied in a written contract to be executed and delivered by plaintiff.

' Defendant further says: That when the silo reached Groom no warranty accompanied it. That he called upon plaintiff's general manager, Hume, who told him to take the silo out and that the guaranty would be furnished him. That defendant demanded performance of said contract from plaintiff, and that it failed to comply therewith until October 20, 1914, when it delivered to him, through its agent, Mr. Hooper, the following written guaranty:

“We, the Ames Portable Silo & Lumber Company, guarantee one Ames portable silo, sold to R. E. Gill of Groom, Texas, August 31, 1914, for a period of five years from the date of the above-mentioned order, not to fall down, go to stave, or buckle in, and to make and keep good ensilage when the silo is properly filled and taken care of.
“Dated October 20, 1914.”

That this writing did not contain all the representations made by plaintiff and was not accepted by defendant as a full compliance with plaintiff’s part of the contract. That the silo was filled during the first of October, and that about the 12th of November, plaintiff, on examining it, found that a large portion of the ensilage was spoiled and worthless. That thereupon he notified plaintiff of such fact, advised it that he would not pay any money or execute any notes, tendered it the silo, and demanded rescission of the contract and return to him of his freight money. Then follows a counterclaim against plaintiff for $535.82, alleging that the silo was worthless and praying that the contract be canceled and held for naught.

Plaintiff in error’s second assignment of error is that the court erred in refusing the following special charge:

“You are further chained in reference to defendant’s defense to plaintiff’s action for the purchase price of the silo (not in reference to its cross-action) that if you find that the silo was guaranteed as alleged by defendant, and that said guaranty was breached by plaintiff, and you further find that the silo delivered was of any value, then you will not allow the defendant an abatement of the entire purchase price of the silo, but you will allow him an abatement thereon of such sum as you find is the difference between the value of the silo delivered and the value of such silo as the same was guaranteed to be.”

The proposition urged is that if the warranty charged by the court was breached the defendant could not have a verdict against the entire claim of plaintiff for the purchase price of the silo, unless the silo delivered was of no value. After the parties had proceeded with the trial for some time defendant in error filed a trial amendment, in which he set up that if he ever accepted said silo or any contract was entered into with him for the sale of said silo to him then plaintiff has breached its warranty and guaranty to deliver to him the kind of warranty and guaranty that it agreed to deliver to him and has breached the terms and provisions of the contract of warranty and guaranty actually delivered to him in that said silo failed to properly keep and preserve -feed after the same was properly filled; that said silo is entirely worthless and of no value, and liad the plaintiff complied with its agreement to deliver to him a silo of the kind and character agreed to be delivered the same would have been worth to defendant the price agreed to be'paid for the same; but on account of the kind and character of .the silo delivered and on account of the failure of said silo to make and preserve and keep ensilage and plaintiff’s breach of the warranty and guaranty it agreed to give defendant, and on account of the breach of the warranty and guaranty actually delivered to defendant, the silo was and is worthless, and that plaintiff has suffered damages in the full amount of the price agreed to be paid, together with the freight money paid by defendant. The prayer is, as in the original answer, and in the alternative, that if any contract for the sale of the silo was ever entered into, and if plaintiff be not entitled to a rescission of the trade, as set forth in the original answer, then that he recover damages representing the difference between the price at which the same was agreed to be sold to defendant and the actual value of the .silo delivered to defendant.

There is evidence in the record, which, if true, would tend to defeat defendant in error’s claim for a rescission of the sale, and it is probable that this evidence induced defendant in error to file the trial amendment quoted from above and claim damages for breach of the warranty in the alternative. At any rate, the trial amendment and the •evidence referred to raised the issue which the special charge properly presented, and we think the court erred in refusing it.

We think defendant’s allegations are sufficient to charge fraud. Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 853; Carter v. Carter, 5 Tex. 93; State v. Wichita Land Co., 73 Tex. 450, 11 S. W. 488. If the evidence sustained his allegations he was entitled to a rescission; otherwise he had a right to stand upon his alternative plea of damages for breach of warranty, and the charge of the court should have covered both phases of the case.

By its third assignment of error, plaintiff in error complains of the exclusion of a portion of the testimony of Hume. It appears that Hume was the general manager of the plaintiff in error, and while upon the stand testified that he had been using one of the Ames portable silos and selling them since 1914; that he had been making inquiries as to how they kept ensilage; that the silo in question was properly erected and constructed with the exception of some defects which he said could be remedied by a few hours’ work. Plaintiff in error then offered to further prove by said witness that silos of the make of the one in question, when properly erected and constructed, and properly filled and taken care of, would make and keep good ensilage. Upon objection this testimony was excluded. As a general rule, such testimony is not admissible, but in a great many cases it has been admitted when concurrence of time and similarity of conditions and surroundings are shown to be the same. The undisputed evidence shows that the silo in question was erected under the supervision of a party furnished for that purpose by plaintiff in error. Hume inspected the silo when about half of its contents had been taken out, and stated that in his opinion too much water had been used in filling it, while Ames, another representative of plaintiff in error, stated that in his opinion not enough water had been used. The undisputed testimony shows that the silo “did not set straight,” from which we infer that it was not properly constructed. As they must be made practically air tight or the ensilage will spoil next to the walls, and since the uncontroverted testimony shows that the ensilage in- this silo had spoiled all the way from 15 to 18 inches, from the walls toward the center of the bulk, evidence of the condition of ensilage in other silos, where it had not spoiled,’ could be of no probative value in this case. Sou. Gas & Gasoline Engine Co. v. Adams & Peters, 169 S. W. 1143; 1 Elliott on Evidence, § 177.

The fourth assignment is that plaintiff offered to prove by the witness Davenport, who had testified that in the spring of 1915 he repaired the silo in question, that the cost of putting the silo in repair and correcting all defects would have amounted to the sum of $35, and that the court erred in excluding this evidence because defendant in error had offered evidence tending to show that the silo was of no value. We think this testimony was admissible upon that issue.

Plaintiff in error duly excepted to the action of the court in permitting defendant in error to file a trial amendment, setting up breach of warranty. This is usually a matter of discretion with the trial judge and will 'not be reviewed by the appellate tribunal unless there- has been a clear abuse of his discretion. Since it will be necessary to amend the pleadings before another trial, and include the matter set upon in the trial amendment in the amended answer, it is not necessary to discuss this assignment.

For the errors indicated, the judgment is reversed, and the cause remanded.
      @s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FT. WORTH & D. C. RY. CO. v. ATTERBERRY.
    (No. 1085.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1916.)
    1. Carriers @=>228(4) — Careiage of Dive Stock — Evidence—Admissibility.
    In an action against a carrier for damages from delay in transportation of live stock, a paragraph of the shipping contract, releasing the carrier from loss which might be sustained by reason of delay in transportation by storms or floods, was properly excluded as immaterial, since a flood or storm which could not be reasonably anticipated and provided against excuses the carrier, and a carrier cannot, by contract, limit its liability for negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 959; Dec. Dig. @=>228(4).]
    2. Caebiees <@=>230(8) — Caeriage of Live Stock — Triai>-Instructions.
    In an action against a carrier for damages to a shipment of live stock by delay in transportation, an instruction that it was the duty of the railroad company to build and maintain its tracks, bridges, and culverts in such a substantial manner as will withstand such storms, rains, and floods as an ordinarily prudent person would anticipate, taking into consideration the condition of the soil, rivers, and climatic conditions of the country in connection with such history of the country as might be obtained by a person of ordinary prudence, although more specific than necessary, was not error.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. @=>230(8).]
    3. Caebiees <@=>230(8) — Cabbiage of Live Stock — Teial—Instructions.
    Where it was clear that the shipment was received by defendant on June 5th, although there was evidence that it was not received until June 6th, and the flood causing the delay occurred on June 6th, an instruction that if defendant received the shipment after it was in possession of facts which would put it upon notice or inquiry with reference to conditions of its bridges and tracks, the jury should find for plaintiff should not have been given.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 961; Dee. Dig. <@=>230(8).]
    4. Appeal and Eeeoe <@=>1064(1) — Harmless Error — Instructions.
    Where plaintiff testified that he did not keep the hogs in the pen, but herded th.em on the prairie for two days and put them back into the pen at night, and it is shown that there were other pens, one of which was dry and the others contained water and mud to the depth of two inches, error in instructing the jury with reference to the duty of the defendant in keeping and maintaining its stock pens in good condition for the detention of stock while awaiting transportation was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. <@=>1064(1); Trial, Cent. Dig. §§ 525, 528.]
    5. Evidence @=>5(2) — Judicial Notice — Common Knowledge.-
    , The court could not judicially know, nor could the jury from common knowledge say, that mud and water two inches deep was injurious or uncomfortable to hogs during summer months.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. <@=>5(2).]
    6. Trial <@=>203(1) — Instructions—Issues.
    Defendant was entitled to 'have its defense that the delay was caused by unprecedented-rainfall and flood on its road presented clearly without being confused and mixed with other issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477 — 479; Dec. Dig. <@=>203(1).]
    7. Trial <@=>262(12) — Instruction — Evi dence — Damages.
    It was error to submit as an element of damage items of feed which plaintiff alleged was purchased en route, where there was no evidence to show that the whole amount purchased was necessary, or that the price paid was reasonable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 604; Dee. Dig. <@=>252(12).]
    8. Trial <@=>252(12) — Instructions—Issues.
    In an action against a carrier of live stock for damages caused by delay in transportation, where it was shown that defendant employed a man to take care of the stock while unloaded during a delay, and there was no evidence showing w’hat amount plaintiff expended for labor to assist him in caring for his stock while unloaded, the issue should not have been submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 664; Dec. Dig. <@=>252(12).]
    Appeal from Donley County Court; J. C. Killough, Judge.
    Action by P. P. Atterberry against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and H. B. White, of Clarendon, for appellant. A. T. Cole, of Clarendon, for appellee.
   HALL, J.

This is an action to recover damages growing out of a shipment of hogs from Lelia Lake to Ft. Worth. The substance of plaintiff’s allegation is that, on or about the 5th day of June, 1915, he delivered 168 head of hogs to the defendant railway company for transportation from Lelia Lake to Ft. Worth, whereby it became and was the duty of the defendant railway company to transport said hogs between said points expeditiously and deliver them in Ft. Worth in good condition, reasonable shrinkage excepted; that the hogs were loaded on the defendant’s cars at Lelia Lake at 10 o’clock p. m. Saturday, June 5, 1915; that 24 hours was the usual and reasonable running time in which to transport said hogs, and that they should have arrived at destination at 10 o’clock p. m. Sunday, June 6th, and if they had' been so. transported, they would have been ready for the market June 7th; that the shipment was negligently delayed at Childress from 5 o’clock a. m. Sunday, June 6th, to 2 o’clock p. m. Wednesday, June 9th, resulting in great loss in weight to said hogs; that during the delay at Childress plaintiff unloaded the hogs in the stock pens, which were full of water and mud and in an unfit condition-in which to keep fat hogs; that in order to avoid great loss thereby plaintiff employed a man for four days at $2 per day, to herd the hogs on the commons, which services were actually performed, which were reasonable, just, and necessary; tliat he paid said hand $8 for his services, for which he asks judgment; that about 2 o’clock p. m. Wednesday, June 9th, said hogs were loaded out at Childress for Ft. Worth, Tex., but were held up at Wichita Falls, Tex., until 7 o’clock p. m. Thursday, June 10th, during which time appellant failed and refused to provide water for said hogs, which resulted in great loss in weight, and that on account of the delay one hog, weighing 450 pounds, died at Wichita Falls; that said shipment did not reach Ft. Worth until Saturday, June 12th, resulting in shrinkage and loss in weight of 2,620 pounds; that the usual shrinkage is 5 pounds; per head, or 840 pounds, making a net loss to appellee of 1,780 pounds, which he alleges to be worth $7.55 per hundred, for which he also asks judgment; that if the hogs had been shipped and delivered in Ft. Worth promptly, they would have sold on the June 7th market, at 15 cents per hundred pounds more than they actually sold for on the 12th, which difference in market value he also sought to recover; that on account of the delay he incurred a general expense bill of $135 for feed for said hogs, which was reasonable, necessary, and just; that the appellants had knowledge of such expense on account of the delay in question, and that the same was necessary; that his personal and necessary expense by reason of delay was $25, which amount he also sought to recover.

After general demurrer and general denial, defendant alleged that it handled the shipment under and by virtue of a special reduced rate written contract, which, among other provisions, specially provided that in consideration of the reduced rate appellant should be relieved from all injury, loss, or damage to said live stock by reason of storms or floods, and by reason of injury to its tracks and yards; that after it received the shipment of hogs at Lelia Lake, and after undertaking the transportation of same to Ft. Worth, a distance of approximately 268 miles, and shortly after departing from Lelia Lake, there came an unprecedented rainfall and flood on its line of road between Vernon, Tex., and Wichita Falls, Tex., which caused the streams known as the Pease river and Wichita river, across which its line of road extended, to greatly overflow their banks and the surrounding country, including the tracks and roadbed of appellant, over and near said streams, injuring and damaging the roadbed, trestles, and bridges, rendering it impossible to operate trains, making it necessary to suspend traffic until the flood receded and its tracks, trestles, and bridges had been repaired; that the bridge across Pease river was partially washed away by the flood prior to the arrival of said shipment of hogs at that point, and after its departure from Lelia Lake, making the delay at Childress unavoidable; that the unprecedented rainfall and consequent rise in the Wichita river at a point near Wichita Falls washed away part of the dump, trestle, and bridge across that liver after the acceptance of said shipment, and after the journey to Ft. Worth had commenced; that as soon as the water receded so that repairs could commence, appellant put forth every effort and used every means at its command toward repairing its roadbed, trestles, and bridges, and that it did, in fact as soon as possible, effect said repairs; that prior to said unprecedented rainfall and flood, its roadbed, bridges, and trestles, through the territory mentioned, were good and substantial structures, capable of withstanding all usual and ordinary rainfalls between said points, and that they had been maintained in that condition, for which reason the alleged damages were unavoidable; that during such unavoidable delay appellant gave due care and attention to such shipment, with a view of avoiding injury as far as possible.

A trial resulted in a verdict and judgment in favor of appellee for the sum of $300, with 6 per cent, interest from date thereof, and costs of suit.

The first assignment of error complains of the trial court’s action in excluding the fifth paragraph of the shipping contract, which was, in effect, that the plaintiff, in consideration of the reduced rate, assumed and released the carrier from risk, injury, or loss which might be sustained by reason of any delay in the transportation of said live stock by storms or floods. The court did not err in excluding this paragraph of the shipping contract. If the delay was caused by a storm of such extraordinary violence and a flood so unprecedented that railroad engineers of ordinary care and prudence, in the construction of the bridges, culverts, trestles, and dumps, could not reasonably be expected to have anticipated and provided against it, appellant would be excused without regard to 'this provision of the contract. G., C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913, 10 L. R. A. 419; G., C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45. Even though the flood was extraordinary and unusual, if it might have reasonably been anticipated and provided against, the failure to make such provision might be considered by the jury as negligence. G., C. & F. Ry. Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722; H. & G. N. Ry. Co. v. Parker, 50 Tex. 344. The rule is settled in this state that common carriers cannot, by contract, limit their liability for negligence. Railway Co. v. Maddox, 75 Tex. 300, 12 S. W. 815; Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 574. This clause of the contract was therefore immaterial, and this assignment is overruled.

In the second assignment of error complaint is made of the general charge, wherein the court instructs the jury that it is the duty of a railway company to build, construct, and maintain its tracks, bridges, and culverts in such a substantial manner as •will withstand any such storms, rains, and floods as an ordinarily prudent person would anticipate, taking into .consideration the condition of the soil, the rivers, climatic conditions of the country through which the road passes, and that in connection with such history of the country through -which said road runs as might be obtained by a person of ordinary prudence and diligence. This charge is somewhat more specific than is indicated in the case of Santa Fé Railway Co. v. Pomeroy, supra; but we are not prepared to say that it is erroneous for such reason.

By its third assignment appellant insists that the court erred in instructing the jury, in effect, that if appellant received the shipment of hogs after it was in possession of such facts as would have put it upon notice or inquiry with reference to the condition of its bridges and tracks, they should find for plaintiff all damages he may have sustained, except they could not find damages on account of decline in market. The contention under this assignment is that, the shipment having been received on the night of June 5th, and the washout having occurred on the afternoon of June 6th, there was no evidence upon which to base such charge. There is some evidence to the effect that the shipment was received by the company on June 6th, but, taking the record as a whole, it is clear that this is a mistake,, and that the hogs were actually received by the company on the night of the 5th of June. The date of the receipt of the shipment was not a contested point, and the discrepancy arises by reason of the fact that some of appellant’s officials who had no actual knowledge of the true date, and who evidently were misled by information conveyed to them, fixed the date as of June 6th. Upon another trial this question 'will doubtless be made clear, in which event the fifth paragraph of the charge should not be repeated.

It is insisted under the fourth assignment of error that the court should not have instructed the jury with reference to the duty of the railway company in keeping and maintaining its stock pen in good condition for the detention of stock while awaiting transportation. It is shown that there were several pens at Childress; that the unloading pen was dry on account of having cinders in it, and that the other pens were muddy; that with the exception of the unloading pen the other pens were about two inches deep in water and mud. Appellee testified that he did not keep the hogs in the pens all the time; that he herded them on the prairies two days and put them back in the pens at night. Appellee insists under this assignment that no injury is shown, and we are inclined to the opinion that this contention is correct. The court could not judicially know, nor could the jury from common knowledge say, that mud and water two inches in depth was injurious or even uncomfortable to hogs during the summer months. The nature and well-known habits of these animals would indicate that the reverse of the proposition is true.

By the fifth and eighth assignments of error it is contended that the court erred in charging the jury upon the sole defense urged by appellants that the damages were caused by unprecedented rain and floods, and in confusing with that issue other matters not pertaining thereto, and in refusing appellant’s special charge which properly and .clearly presented its defense. Reference to the sixth paragraph of the court’s charge shows that the jury were instructed:

“If you find and believe from the evidence that the delay in the shipment was caused by unprecedented rainfalls, floods, or high water, within the vicinity where the washouts occurred, if you find there were any, then you will find for the defendant and against the plaintiff for such damages as he may have sustained by reason of the delay in transportation, except such damages as you find he may have sustained under the last preceding paragraph of the following paragraph.”

The “last preceding paragraph” submitted the issue of the receipt of the hogs by appellant after it had notice of the fact that the washouts had occurred, and the paragraph following that complained of instructed the jury as to the duty of appellants in providing and maintaining suitable stock pens, and further instructed upon the issue of holding the hogs in the cars an unreasonable length of time without giving plaintiff an opportunity to feed and water them. We think appellant was entitled to have its defense presented fairly, and without being confíised and mixed with other issues.

In the seventh paragraph of the general charge the court submitted, as an element of damages, certain items of feed, which appellee claimed to have purchased en route, amounting to 199.60. There is no evidence whatever to show that the whole amount of feed so purchased was necessary, or that the price paid by appellee for it and for which he seeks a recovery was reasonable. This assignment must be sustained. Claim is also made for the amount expended in hiring a man to assist appellee in caring for the hogs while at Childress. Appellee testified that the company employed a man, and no reason is shown for the employment of another to perform the same duty. There is no evidence whatever tending to show what amount, if any, plaintiff expended while at Childress for the hire of such labor to assist in caring for the hogs. This issue should not have been submitted to the jury.

We overrule the remaining assignments, and for the errors indicated the judgment is reversed, and the cause remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes