author: CARL, J.

text:
    EAGLE PASS LUMBER CO. v. GALVESTON, H. & S. A. RY. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1914.
    Rehearing Denied March 11, 1914.)
    1. Carriers (§ 100) — Demurrage—Delay-Payment of Freight — Refusal to Accept Checks — Proximate Cause.
    In an action by a shipper against a carrier to recover demurrage paid, the carrier was not liable by reason of delay in shipments, so that the cars arrived at a time of money stringency, when the carrier refused to accept plaintiff’s checks for freight because the checks would not have been then paid by the drawee banks, though the drawer had ample funds to pay them, since the negligence or default of a railroad company under such circumstances was not the proximate cause of the loss.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 427 — 433; Dec. Dig. § 100.]
    2. Negligence (§ 136) — Proximate or Remote Cause.
    The question of remote or proximate cause of loss is one of law to be decided by the court.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    3. Trial (§ 139) — Questions of Law or Fact — Direction of Verdict.
    Where the evidence is such that under the most favorable view of it from plaintiff’s standpoint it would not sustain a verdict, the court should instruct a verdict for defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    4. Carriers (§ 198) — Transportation of Freight — Demurrage — Credit — Discrimination.
    A carrier may lawfully require one shipper to pay freight charges in cash before delivery of the goods and extend credit to another shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 901; Dec. Dig. § 198.]
    5. Limitation of Actions (§ 127) — Commencement of Action — Amendment of Pleading — New Cause of Action.
    Where an original petition sought to recover demurrage accrued and paid to a carrier, on the ground that the demurrage accrued while the shipper was trying to raise the money to pay the freight because the banks refused to cash his checks owing to a financial panic, and. the carrier refused to accept checks in payment from plaintiff while extending credit to the other shippers, a further cause of action added by an amendment over four years later seeking to recover the demurrage because of want of sufficient notice of the arrival of the cars stated' a new cause of action and was barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    Appeal from District Court, Maverick County; W. C. Douglas, Judge.
    Action by the Eagle Pass Lumber Company against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.

      J. R. Sanford, of Eagle Pass, and McFarland & Lewriglit and W. H. Kennon, all of San Antonio, for appellant. Baker, Botts, Parker & Garwood, of Houston, Boggess & Smith, of Del Rio, and W. B. Teagarden, of San Anteólo, for appellee.

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

   CARL, J.

The Eagle Pass Lumber Company, appellant, sued the Galveston, Harrisburg & San Antonio Railway Company, ap-pellee, to recover $1,160 alleged to have been paid by appellant to appellee as demurrage charges on 67 cars of lumber and building material. The original petition charged that between July 1, 1907, and December 31, 1907, appellant had shipped into the town of Eagle Pass over appellee’s railway 491 car loads of lumber; that during the months of November and December of said year 1907 there was what was known as a financial panic; and that nearly all banks in the United States (including those in Eagle Pass) refused to pay 'cash on cheeks except in very limited amounts; and, although appellant was solvent and had money in the banks of Eagle Pass to pay its checks for the freight on said cars of lumber, the banks would not pay them, and demurrage charges accrued which appellee forced appellant to pay in the sum of $1,160. It is also alleged that, by reason of the failure of the railway company- to deliver said cars of lumber promptly, said cars reached Eagle Pass during the months of November and December, 1907, in bunches; and that during those months more cars were delivered than plaintiff could unload or secure the money with which to pay freight; that, if the railway company had delivered same promptly, it would have received the greater portion before said financial stringency came on and could have raised the money to pay the freight charges promptly; and that, while plaintiff was endeavoring to raise the money with which to pay the freight charges, the demurrage charges accrued, which the lumber company paid under protest, amounting to $1,160. It is further alleged that “between and including July 27, 1907, and December 31, 1907,” plaintiff had shipped over appellee’s road 147 car loads of lumber to Eagle Pass, and that said shipments were delayed from 1 to 110 days, and it is claimed that because of such delays in delivery, and because plaintiff 'believed its checks would be received for freight and the railway refused to accept same, the damage on’account of demurrage accrued. This petition was filed May 13, 1909. The petition alleged solvency of the plaintiff.

A general demurrer and various special exceptions to the petition were filed; and on June 5, 1913, the appellant filed its first amended original petition, in which practically the same allegations were made as in the original petition, and, in addition, that it had no legal notice of the arrival of said 67 cars of lumber on which demurrage was charged and on information and belief says no such notice was given; that appellant was discriminated against, because checks of other shippers were received by appellee in payment of freight at the same time its checks were refused; that appellee failed to plaee said cars on the tracks of plaintiff where they could be unloaded and did not comply with the law in reference to notice and placing cars to be unloaded.

By trial amendment, filed June 5, 1913, plaintiff substituted, for paragraph 11 of its amended petition, an allegation that rule 3, sections 1, 2, and 3, of the Texas Car Service Association of Revised Rules issued by the Railway Commission of Texas, was in full force, section 1 thereof prescribing the manner of giving notice of the arrival of cars and how served, which is a written notice delivered in person, or left at the place of business of the consignee, etc. Section 2 provides that telephone notice is not legal, and, if given that way, it must be followed by written notice. Section 3 provides that when cars are set prior to notice free time shall be counted only from time of service of notice. It is alleged that these rules applied to all shipments made up to December 10, 1907, and after that date the rule announced in Circular No. 2,702 of the Railway Commission dated November 29, 1907, applied. Failure to receive notice under either of these rules was alleged and given as an additional ground of recovery.

Defendant filed a general demurrer and numerous special exceptions, and the court permitted plaintiff to file its trial amendment as aforesaid. Defendant resubmitted its general demurrer and special exceptions, whereupon the court sustained the general demurrer and section D of the third exception which raises the question that paragraphs 11 and 14 of the amended petition show that the cause of action therein asserted was barred by two years’ limitation. Paragraph 11 of the petition alleges that appellant never received written notice of the arrival of the 67 cars of lumber for which de-murrage was charged, and paragraph 14 alleges that the railway refused and failed to place said cars, and to deliver same at the most available point, and did not comply with the rules of the railway commission with reference to placing said ears. Plaintiff declined to amend further, and the cause was dismissed. From that judgment this appeal is taken.

It will be noted that the original petition seeks to recover the $1,160 demurrage collected by reason of the delay in the shipments and because the railway company refused to accept appellant’s checks for freight. The only reason assigned for. the failure to pay the freight charges was that the panic of 1907 came on and the banks would not pay appellant’s checks, although it had ample funds therein to pay the same. The railway company would only be liable for those things which its negligence proximately caused and which the company might have anticipated would be caused hy its delay or negligence. In Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602, Chief Justice Willie says: “If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current <jf authority seems to be that the connection is not broken.” This last as to intervening causes. Chief Justice Gaines, in referring to the above case, in T. & P. Ry. Co. v. Bigham, 90 Tex. 227, 38 S. W. 164, says: “It follows that in our opinion the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result— not necessarily the precise actual injury, but some like injury, produced by similar intervening agencies.” It can no more be said that the railway company could anticipate the injury complained of than could the lumber company have anticipated the panic. And if the lumber company could have done this, there would be no cause of complaint; because it says that it had the money there but could not get it on account of the panic having come on. “An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of an act of negligence is not actionable, because it is not the proximate cause, but either the remote cause, or no cause whatever, of the damage.” Kreigh v. Westinghouse, C. K. & Co., 152 Fed. 120, 81 C. C. A. 338, 11 L. R. A. (N. S.) 685. In I. & G. N. Ry. Co. v. Bergman, 64 S. W. 999, it is shown that cotton was shipped to Galveston and was in the company’s yards, when the unprecedented storm occurred, September 8, 1900, and the cotton was lost. The company was guilty of negligence in failing to forward and deliver the cotton at an earlier date. The court submitted the cause to the jury on the theory that the company was liable for its negligence in failing to promptly forward and deliver the cotton. The Galveston Court of Appeals held that the storm was the cause of the loss and would acquit the railway of liability, since it did not appear that the loss was the natural and probable result of the negligent act or omission. And so it was held by Mr. Justice Speer in Hunt Bros. v. M., K. & T. Ry. Co. of Texas, 74 S. W. 69, and our Supreme Court denied a writ of error.

The question of remoteness is one of law to be decided by the court. Brandon v. Mfg. Co., 51 Tex. 121; Hilje v. Hettich, 95 Tex. 327, 67 S. W. 90. Where the evidence is such that under the most favorable view of it from the plaintiffs standpoint it would not sustain a verdict, it is the duty of the court to instruct for the defendant. Murphy v. G., H. & N. Ry. Co., 96 S. W. 940. And where the allegations of a petition, if supported by proof, would not entitle the plaintiff to recover, a general demurrer should be sustained. So when the plaintiff in this case sues for the demurrage collected and shows that the reason the damage accrued was because it could not get the money to pay the freight, although there was delay in delivery, no cause of action is shown; for if it had had the money to pay the freight there would have been no cause for complaint. Suppose the lumber company had a claim for damages by reason of delay in shipment, and still let the cars stand till demurrage charges had accrued, would it be contended that the de-murrage could be avoided simply because there was a cause for damage by reason of the delay in the shipment? We think not.

But it is contended that appellee had accepted appellant’s checks in payment of freight so long that it had become an established custom upon which appellant had a right to rely, and further that other shippers’ checks were accepted while appellant’s were refused, and that thereby a discrimination against the lumber company was shown. The extension of credit is a matter of judgment and personal choice. A man may be perfectly solvent for 40 years and then become hopelessly insolvent over night. One of the essentials of successful business is to know to whom credit should be extended. We doubt not that appellant was and is perfectly solvent and entitled to full credit; but this court will not deny to the individual the right to extend or deny credit to whomsoever he sees fit. A check was not a tender of the freight, unless appellee chose so to accept it.

That a railway company may lawfully require one shipper to pay freight charges in cash, and at the same time extend credit to another, seems to be well established. Brown & Brown Coal Co. v. Grand Trunk System (1910) 159 Mich. 565, 124 N. W. 528, 29 L. R. A. (N. S.) 840; Randall v. Railway, 108 N. C. 612, 13 S. E. 137; Gamble-Robinson Com. Co. v. Railway, 168 Fed. 161, 94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Ann. Gas. 613; Russell v. Miller, 98 Miss. 185, 53 South. 495; Little Rock & M. R. Co. v. St. Louis, S. W. Ry. Co., 63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192; Am. Law Review, vol. 45, p. 447.

In the original petition appellant says that the demurrage accrued while it was trying to raise the money to pay the freight. It was not therein contended that the demur-rage was unlawfully or wrongfully collected. But in the amended petition filed June 5, 1913, over four years later, for the first time it was alleged that no notice of the arrival of the cars was given as required by law,' and for that reason the company had no right to collect demurrage. Up until this time the failure to give notice had not been made cause for complaint, but delay in shipment; the refusal to accept the lumber company’s check, and discrimination were relied upon. In Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707, it is said that the most satisfactory tests, as to whether a new cause of action is set up in tlie amendments, are: “(2) Would the same evidence support both of the pleadings?” “(4) Are the allegations of each subject to the same defenses?” Certainly it cannot be contended that a pleading which predicates the action upon delay, discrimination, and refusal to accept the lumber company’s cheek would be supported by proof that the company had not had notice and that the rules of the Railway Commission had not been complied with. And, vice versa, proof that would support the latter would be irrelevant as to the former. Judge Brown, in the case mentioned, says: “It is not sufficient that the causes of .action be similar in their nature, but they must be essentially identical.” Can this be said of the causes of action set forth in the original petition and in the amended petition and trial amendment? Lynch v. Ortlieb, 87 Tex. 590, 30 S. W. 545; Bigham v. Talbot, 63 Tex. 271; Booth v. Houston Packing Co., 105 S. W. 46; Railway v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983.

So, under the above authorities, it is clear that no cause of action was shown until the amended petition was filed (if then), and, since the only basis that could possibly entitle appellant to recover was barred at the time it was filed, the court was correct in sustaining the demurrers and in dismissing the cause when the plaintiff declined further to amend.

What we have said disposes of all the assignments of error adversely to appellant.

The judgment is affirmed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    WEISNER et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 22, 1914.
    Rehearing Denied Feb. 5, 1914.)
    1. Appeal and Eeeoe (§ 1066)— Haemless Eeeoe — Instbuctions.
    Giving an instruction on contributory negligence, not only wrong, but when the issue was not raised by the pleadings or evidence, was harmless; practically the only question under the evidence being whether death was from disease or the claimed injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dee. Dig. § 1086.]
    2. Appeal and Eeeoe (§ 1048) — Haemless Eeeoe — Evidence .
    Permitting defendant to ask a hypothetical question, as to the cause of the condition in which witness found deceased, cannot be complained of, where his answer was not responsive and the facts he stated could not prejudice plaintiffs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160’; Dec. Dig. § 1048.]
    3. Appeal and Eeeoe (§ 1050) — Haemless Eeeoe — Evidence.
    Admitting, for purpose of impeaching plaintiffs’ witness, a writing of what defendant’s witness said was a prior statement by plaintiffs’ witness taken down by defendant’s witness when it was made was harmless; it being but a reproduction of what had been testified to by other witnesses.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. 8§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Tran Weisner and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Y. D. Harrison and Beard & Davidson, both of Marshall, for appellants. Schluter & Singleton, of Jefferson, and Alex S. Coke, of Dallas, for appellee.

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

   HODGES, J.

The appellants are the husband and children of Roxana Weisner, who died in December, 1912. They instituted this suit against the Missouri, Kansas & Texas Railway Company of Texas, the appellee, for the recovery of damages resulting from her death, claiming that this was caused by the negligence of the railway company. It is alleged in their original petition that in December, 1912, T. W. Weisner, the husband, and the deceased were passengers on the ap-pellee’s railway, traveling from Pittsburg in Upshur county to Leigh in Harrison county, Tex. They arrived at the latter station _ at about 4:30 o’clock in the morning, and before it was daylight. When the train stopped at the station Weisner and wife walked to the front platform for the purpose of getting off. Just as they reached the platform It is claimed that the train was suddenly and violently moved, and that this caused them to fall over against the railing and thence to the ground. It is further alleged that by reason of this fall Roxana Weisner received injuries from which she died shortly thereafter. The railway company answered by a general demurrer and a general denial only. From a verdict in its favor Weisner and his children have appealed.

Weisner testified that he and his wife boarded the train at Pittsburg and were riding in the coach set apart to colored passengers ; that when the train arrived at Leigh, their destination, they arose and started to the front end of the car for the purpose of getting off; that just as they reached the platform and turned to go down the steps the engine jerked the train and threw them both against the iron railing, -and thence to the ground on the outside. He s».ys that he recovered his balance and tried to get his wife to her feet, but failed; that he called to his assistance a deaf and dumb boy, who was standing near them, and together they carried her into the waiting room, and a colored physician was later summoned to attend her. He further testified that she never spoke after the fall, and died a short time thereafter. Weisner was the only witness who testified that this accident occurred on that occasion. He was corroborated in part by two others as to the train having moved after it stopped at Leigh and before its final departure, but he was contradicted by other witnesses as to any fall having occurred, or that the train moved. The train porter testified that he helped Weisner carry his wife out of the coach and assisted them in alighting ; that the latter was sick and had to- be supported, and that they both alighted without any difficulty or unusual occurrence. Two other witnesses, the conductor and a mail agent, testified that they remembered the occasion ; that they were in positions to see the parties as they got off the train; and both stated that no fall occurred, and that the train did not move after it stopped at Leigh until its final departure. There was considerable testimony introduced by the railway company tending to show that Rox-ana Weisner had been ill during her stay at Pittsburg, that she had been under the care of a physician, and was seriously sick at the time she left. It is contended by the appel-lee that her death was due to that illness, and not to any accident or injury received while alighting from the train. There was a sharp conflict between the testimony of Weis-ner and a number of other witnesses who testified concerning the indisposition of the deceased while at Pittsburg. He testified that his wife was in her usual good health; the others to the contrary.

The first and second assignments of error complain of the definitions given by the court of the terms “very high degree of care” and “negligence.” The objections urged, however, we think are without merit. Among others the court gave the following charge: “It is the duty of a person while a passenger on a train of common carriers of passengers and traveling thereon and alighting therefrom, to exercise that degree of care and prudence that a very cautious and prudent person would exercise under the same or similar circumstances. “You are instructed that the defendant railway company was not an insurer of the safety of plaintiff’s wife while a passenger on its train, and it was her duty, while traveling on the train or in alighting therefrom, to use that degree of care to avoid injury to herself that a very cautious and prudent person would exercise under the same circumstances, and that a failure to use such care would be negligence on her part; and, if such negligence on her part, if any, caused or contributed to cause any injuries she may have received, if any, then plaintiffs could not recover.” This charge not only announced an erroneous proposition of law regarding the care which a passenger should exercise under such circumstances, but it related to an issue that was not raised by the pleadings or the evidence. The railway company had pleaded only the general issue, and there was no evidence tending to suggest contributory negligence on the part of the deceased in any form. The appellee concedes that this charge is technically erroneous, but insists that under the circumstances it was harmless. We are inclined to believe that this contention is sound. It will be observed that the court in this charge refers to the conduct of the deceased while traveling and alighting from the train. The principal controversy on the trial seemed to be over the question as to whether or not the deceased in fact sustained a fall or any injuries from the effects of which she died; the appellee contending that her death was due to a disease from which she was suffering at the time she undertook the journey, and that no fall did in fact occur. Weis-ner and the porter are the only witnesses who testified as to the manner in which the parties got off the train, and neither of them stated any facts from which negligence on the part of deceased could, by any stretch of the imagination, be inferred. The witnesses introduced by the appellee testified that there was no fall, while Weisner alone says . there was. The evidence concerning the disease from which the deceased was at the time suffering indicates that it might, at any time, result in death. Practically the only question about which there was any room for difference of opinion among the jurors was as to whether the deceased died from the effects of a previously contracted disease, or from injuries sustained in a fall as detailed by Weisner. Hence the question of contributory negligence was in no way involved. To reverse the case because of the giving of this irrelevant charge would be assuming that the jurors were misled by an instruction that had no application to the real issues before them, and that they were lacking in that discretion which men of ordinary judgment would possess.

In the fifth assignment the appellants contend that the court failed to give a specific charge which is set out in their brief. A search of the record shows that no such charge was requested. There is therefore no basis for the assignment.

Counsel for the appellee were permitted to ask the following hypothetical question of a physician who attended the deceased in the waiting room of the depot just after she alighted from the train: “If she [meaning the deceased] had been suffering with congestion of the bowels and stomach for several days so she could hardly breathe, and could not without making a great deal of noise and wheezing through her throat, what would you say produced the condition in which you found her?” It is sufficient, in disposing of this objection, to say that the answer given by the witness to this question was not responsive, and the facts which he did state could in no way operate to the prejudice of the appellants.

The appellee was permitted, over the objection of the appellants, to read to the jury tlie following written statement purporting to be a record of what Dr. Leach, a witness for the appellants, had stated to M. B. Thomas, a claim agent of the railway company, some time before the case was tried: “I am a practicing physician at Leigh, Tex. Have been since 1900. I recall being called to see Roxana Weisner early one morning in December. She was at the depot, and I was called at about 6 o'clock a. m. When I arrived at the depot I found the woman in a dying condition. I gave her a heart stimulant, but it had no effect Weisner told me she had gotten hurt getting off the train; said when the train stopped they got up to get off, and when they were on the platform of the car the train gave a lurch and threw his wife against the iron railing around the platform of the car, striking her in the stomach. After she died I examined her and looked for an injury; there was no sign of an injury that I could find, and I attributed her condition to the shock she had received. I had known the woman and had practiced in the family ever since I have been here. She had always been a stout, healthy woman so far as I know. Neither Weisner nor any one else gave me any history of her having been sick or complaining before she reached Leigh. Her breath was very offensive. She was a woman 47 years old, and I supposed had had change of life, but when I examined her I found her menses were on her. I attribute her death to a shock; her bowels were loose.” The following are the objections urged to the introduction of that statement: (1) That it is a statement prepared by the defendant and not signed by the witness Leach; (2) that each witness had testified about the .conversation had, and that was all that should legitimately go before the jury; (3) that the written statement was not signed by the witness Leach; if read to the jury under the instructions of the court it would prejudice the rights of the plaintiffs; that it did not tend to prove any issues of the case, and was hearsay, irrelevant, and immaterial. The evident purpose in introducing this writing was to impeach the witness Leach, and to show that he had previously made a statement to the effect that when he examined the deceased at the depot he discovered no external evidences of injury about her person, and that there were no bruises on her body. Upon the trial he had testified that there was a bruise across her stomach. Leach had denied making the statement contained in the writing. Thomas, the claim agent, testified that he wrote down the statements made to him by Leach in the paper offered in evidence; that after completing it he read the paper over to Leach, and permitted Leach to read it for himself; that Leach admitted that it was correct, but declined to sign it because he might be a witness in the case and did not wish to do so. Thomas further stated that the writing did contain a correct record of what Leach had told him on that occasion. The mere fact that this instrument was unsigned did not affect its admissibility. Whether or not Leach made the statements therein contained was an issue for the jury. If the statement was but a reproduction of what had already been detailed in the hearing of the jury by other witnesses, its admission was harmless, and could not justify a reversal of the case. It is not contended that no sufficient predicate was laid for the introduction of this impeaching evidence.

The judgment of the district court is affirmed.


author: I-IARPER, G. J.

text:
    LOOK v. BAILEY.
    (Court of Civil Appeals of Texas. El Paso.
    March 5, 1914.)
    1. PARTNERSHIP (§ 218) — TAKING CASE FROM Jury — Quantum of Evidence.
    Where the pleading and the evidence raised the issue of a consummated partnership and th»"" was evidence, though slight, tending to establish it, the court must submit it to the jury.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 49, 429-428; Dec. Dig. § 218.]
    2. Limitation of Actions (§ 49) — Action between Partners — Limitation.
    Where plaintiff advanced money to defendant in contemplation of a partnership, limitations would not apply to his action to recover it, if it was invested in the partnership, but, where no partnership was formed, it did not begin to run until after a reasonable time had elapsed in which to bring about the partnership agreement or the parties'had agreed not to enter into it.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 266-272; Dec. Dig. § 49.]
    3. Trial (§ 194) — Province of Jury — Instructions.
    A charge that the undisputed evidence showed that defendant was indebted to plaintiff after all the undisputed items were allowed and to find for plaintiff for a certain sum, invaded the province of the jury, where such evidence was not undisputed.
    , [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Partnership (§ 21) — Improvements under Agreement — Liabilities.
    Where plaintiff advanced money to defendant in contemplation of a partnership which was not consummated, and they agreed that wells on defendant’s property should be sunk at the cost of each of them, which was done and paid for by defendant, plaintiff was chargeable with one-half of the cost, less one-half of the beneficial use or improvement to defendant’s property.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 6; Dec. Dig. § 21.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Thomas Bailey against George Look, with counterclaim by defendant for dissolution of the partnership and for an accounting.
    Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
    John L. Dyer, O. W. Groom, and A. R. Grambling, all of El Paso, for appellant. Galloway & Whitaker, of El Paso, for ap-pellee.

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

   I-IARPER, G. J.

On April 22, 1913, appel-lee filed his first amended original petition, in lieu of his original petition filed on December 11, 1911, alleging appellant and John Moore in June, 1909, were doing business in the Republic of Mexico as partners in the stock business, and appellant was desirous of severing his connection with Moore, and appellant and appellee made an agreement that, if appellant could sever his connection with Moore, they would enter into a partnership for the purpose of engaging in the live stock business on the ranch owned by appellant in Mexico, and further alleged: That certain moneys had been turned over to appellant by appellee in furtherance of the plan to purchase said Moore’s interest in the Look-Moore partnership business, to the end that a partnership might be entered into between the parties at such time, as appellant had fully severed his connections with said Moore. That appellant did not sever his connections with said Moore, and that, when it became apparent that he could not do so, ap-pellee advised appellant that he would not enter into the proposed copartnership and demanded the return of moneys advanced.

Appellant pleaded general denial, and specially alleged: “That, at all times complained of in the plaintiff’s petition, plaintiff and defendant were partners engaged in the stock business, buying, raising, and selling cattle, and that the moneys received by defendant were received for and on behalf of the partnership’s business, and were expenses and used for such purpose. That said partnership has heretofore become dissolved, and, if not, then he prays for a dissolution of such partnership and that an accounting be had between the parties.”

The assignments from the first to the twelfth, inclusive, charge that the trial court erred in the following charge to the jury: “You are further instructed that the pleading of the parties and the evidence introduced do not show that a partnership agreement was made and entered into by the plaintiff and defendant as alleged, and you will find for the plaintiff and against the defendant on the issues of a partnership agreement, and all the items of expense growing out of the alleged partnership agreement are eliminated from your consideration.”

The reasons assigned are: (1) Because plaintiff alleged a partnership and introduced evidence to establish the allegation, it then became a question of fact for the jury to determine. (2) If the evidence showed an agreement between the parties to enter into a partnership in the future upon contingencies named, still it. was within the province of the» parties to waive such agreement and enter into a partnership in presentí. The pleadings and evidence having raised this issue, it became a jury question. (3) Because parties by their conduct and dealings with each other may bring themselves into partnership relations with each other so as to constitute a partnership in law, and the pleadings and evidence support this theory, and it became a question for the jury. (4) Because under the pleadings and evidence it was a question for the jury to determine whether the facts showed an executed or an executory agreement to form a partnership, and, if there was an agreement to form a partnership upon contingencies to happen, it was for the jury to determine whether the parties waived them and entered into a partnership in the meantime. And, if partnership was found to exist, the jury should have been permitted to consider items of expense. (5) Because parties are estopped to deny the existence of a partnership by their acts and conduct.

Since we have concluded that the case shall be reversed and remanded for a new trial, we refrain from quoting the evidence any further than may be necessary to pass upon the errors assigned by appellant.

The vital question to be determined is: Was there a consummated partnership agreement between the parties? If there was, then the moneys advanced merged into the business, and the prayer of defendant, Look, that the partnership be dissolved and an accounting be had between the parties is the matter to which the trial court should have directed its attention; and if, when submitted, the jury should determine that a copartnership existed, the question would be: What is plaintiff’s half interest in the assets of the partnership worth? But if the moneys were advanced by the plaintiff to defendant upon condition that Moore should be disposed of as a condition precedent to a partnership, and Moore was not disposed of, and plaintiff did not waive the condition and consummate the partnership, notwithstanding Moore was not entirely eliminated, then plaintiff is entitled to recover all the moneys advanced by him, without regard to any expense Look may htive incurred in securing the Moore interest in the cattle.

Both the pleading and evidence, raise the issue of a consummated partnership, and, where there is evidence, though slight, which has a tendency to establish an issue raised by the pleadings, the court must submit it to the jury. Mitchell v. McLaren, 51 S. W. 269; Tex. Brok. Co. v. Barkley, 49 Tex. Civ. App. 632, 109 S. W. 1001.

The thirteenth assignment of error reads: “The court erred in charging the jury as follows: ‘You will return a verdict in favor of plaintiff and against the defendant bn defendant’s plea of the statute of limitation of two years’ — for the reason the evidence in this case shows that plaintiff’s original petition in this case was not filed .until December 11, 1911, and the evidence further shows that there was advanced by plaintiff to defendant the sum of $5,400 about July, or the summer of 1909, and the defendant having pleaded the two-year statute of limitation, and it conclusively appearing that said sum of $5,400 had been advanced by plaintiff to defendant more than two years before the institution of this suit, to avoid said plea of limitation, it becomes the duty of plaintiff to plead matters in avoidance thereof, which he did by pleading the absence of the defendant from the state of Texas during said time, and the evidence in this case failed to show conclusively that plaintiff was so absent from the state of Texas a sufficient time to relieve the bar of the statute of limitation, and the court erred in so charging the jury, because said charge was upon the weight of the evidence, and took away from the jury the question of limitation in favor of the defendant, and took .from their consideration an issuable fact in this cause, when the evidence did not show, as a matter of law, and conclusively, that the absence of the defendant had arrested the running of limitation. This assignment being contained in motion for new trial, and being set forth in section 16 thereof. * * * ”

The undisputed evidence shows that the $5,400 advanced by appellee to appellant was in contemplation of their forming a partnership. If the partnership was formed, then the statute would not apply, because the amount became invested in the partnership; but, if no partnership was formed, the statute of limitation did not begin to run in favor of appellant until, under all the facts, a reasonable time had elapsed within which to bring about the partnership agreement, or until the parties had agreed between themselves that they would not enter into a partnership agreement, as contemplated at the time the money was advanced.

Tlje fourteenth and fifteenth, sixteenth, and seventeenth assignments of error charge that the court erred in the following instruction to the jury: “You are further instructed that the undisputed evidence shows that the defendant is indebted to the plaintiff, after all the undisputed items are allowed and deducted, the sum of $3,424.20, and you will therefore find for plaintiff against defendant for said sum.” Because the evidence was not undisputed, therefore, said charge invaded the province of the jury.

The evidence in the record is such that if, upon another trial, it shall be determined that there was no consummated partnership between the parties, then the question of the claim as to amounts due one to the other should be submitted to the jury for determination.

The eighteenth and nineteenth charge that the court erred in the following charge: “The statute of frauds, as pleaded by the defendant, is not involved in this suit, and you will find against the defendant on said plea, because the evidence in this cause shows that the plaintiff and defendant agreed that the wells should be dug and sunk at the cost of the plaintiff and defendant, and that same was done and paid for by the defendant, and that they cost $3,000, and, even thou'gh they were erected upon the property of defendant, the plaintiff at all events should have been charged with one-half of the cost of the wells, less one-half of the beneficial use or improvement to the freehold estate, and the matter in appropriate and proper form should have been submitted to the jury, and should not have been withdrawn from their consideration, and, in so charging, the court charged upon the weight of the evidence, and took away from the consideration of the jury the right of defendant’s offset against the plaintiff for the cost of the wells.”

If there was no consummated partnership agreement between the parties, then the court’s charge in this trial would be correct, but, if upon another trial it should be determined that a- partnership agreement was consummated, then it becomes a question for the jury to determine whether the plaintiff (below) should be charged with one-half of the expense of the wells, under appropriate instruction.

For the reasons above stated, the cause is reversed and remanded for a new trial.


author: DUNKLIN, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SMITH BROS. GRAIN CO. et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 24, 1914.)
    Carriers (§§ 157, 166) — Freight—Bills oe Lading — Reasonableness of Stipulation.
    A bill of lading provided that property delivered on private or other sidings shall be at the owner’s risk after the cars are detached from trains. There was evidence that the shipper knew that there was no depot or agent at the destination of the shipment, and that it could only be left upon the sidetrack. Rev. St. 1911, art. 6589, requires every railroad company to erect at each place established for delivering freight suitable buildings, etc., to protect freight from damage by exposure, in default of which it shall be liable to the owner for resulting damage. Held, that the provision of the bill of lading was not contrary to any law, and the question of its reasonableness should be submitted to the jury; the only purpose of the statute being to protect freight from damage and exposure, so that it would not invalidate the contract of shipment.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 649, 672, 705y2, 706, 732, 733; Dec. Dig. §§ 157, 166.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by the Smith Bros. Grain Company and another against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    E. B. Perkins, of Dallas, and Thompson & Barwise and A. O. Wood, all of Ft. Worth, for appellant. Q. T. Moreland, of Ft. Worth, for appellees.

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

   DUNKLIN, J.

The St. Louis Southwestern Railway Company of Texas, defendant in the court below, has appealed from a judgment rendered against it in favor of the Smith Bros. Grain Company and Bert K. Smith, plaintiffs, for the value of a car load of feed and flour shipped over the Gulf, Colorado & Santa Fé Railway and defendant’s railway from Ft. Worth, Tex., to Aldridge, Tex.

L. C. Odom Lumber Company received the car without any specific directions from plaintiffs to do so. At the time the car was shipped, plaintiffs drew a draft upon the L. C. Odom Lumber Company at Aldridge, Tex., in care of T. F. Patterson, banker, Pittsburg, Tex., for the selling pnce of the goods with the bill of lading attached to the draft, but this draft was not honored.

It was alleged in plaintiffs’ petition that plaintiffs sold the contents of the car to the L. O. Odom Lumber Company, but according to other allegations in the petition, it can be reasonably inferred that the sale alleged was not absolute, but was conditioned upon the payment for the goods by the vendee upon the receipt of the goods. A bill of lading was introduced in evidence which showed that the goods were consigned to the Anchor Roller Mills, “destination, Aldridge, state of Texas,” and that the freight was prepaid. The bill of lading contained no statement that the goods were “consigned to the order of any person named in such bill of lading,” and therefore it was what is termed a “straight” bill of lading, instead of an “order” bill of lading, as defined by express xu'o-vision shown in the face of the bill of lading. The following stipulation printed on the back of the instrument was made a part and parcel of the contract of shipment: “Property destined or taken from the station, wharf, or landing at which there is no regularly appointed agent shall be entirely at the risk of the owner after unloaded from cars or vessels, or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at the owner’s risk until the cars are attached to and after they are detached from trains.”

It was proven beyond controversy that the town of Aldridge contained only about 75 or 100 inhabitants; that appellant had a side track used for the delivery of cars at that point, but maintained no station house or agent there; that the car in question was placed on the side track and, after being detached from appellant’s train, was opened by a representative of the L. 0. Odom Lumber Company and its contents taken and appropriated by that company. As the bill of lading was a “straight” bill of lading and not an “order” bill of lading, appellant insists that leaving the car upon the side track was a delivery within the meaning of the stipulation on the back of the bill of lading and quoted above. Revised Statutes, Art. 717.

Appeliant requested an instruction to the jury which was given by the court, which, after reciting that the shipment was made upon a bill of lading containing the stipulation above quoted, concludes as follows: “And if Jou find and believe from the evidence that the said Aldridge was a nonagen-cy point, and that the said car of goods was transported to said point and there placed on a side track or siding, and after being detached from the train was taken possession of by the L. O. Odom Lumber Company without the consent of the defendant railway company, you will find in favor of the defendant railway company and so say by your verdict.” Hence the verdict of the jury imports a finding that the Odom Lumber Company took possession of the ear with defendant’s consent.

The only evidence relied on by appellees to show that the Odom Lumber Company took possession of the car with appellant’s consent was the testimony of L. C. Odom, the manager of the company, who unloaded the car. After a careful examination of that testimony, the majority of us are of the opinion that it is insufficient to show such consent.

The special instruction given at appellant’s request is upon the theory that the stipulation for the kind of delivery provided in the indorsement on the back of the bill of lading should be upheld as reasonable. We are of the opinion that the evidence was sufficient to support that contention, and are of the opinion further that there is no inhibition by the laws of this state against giving effect to such a contract under such circumstances. In addition to the stipulation in the bill of lading quoted above, it was alleged that at the time of the shipment plaintiffs knew that there was no depot building at Aldridge and no agent to take charge of the goods upon their arrival, and that the only delivery that could be made of the shipment would be to leave it upon the side track, and there was testimony tending to support this allegation. Elliott on Railroads, § 1521; 2 Hutchinson on Carriers (3d Ed.) § 710; Allen v. Pennsylvania Ry. Co., 183 Pa. 174, 38 Atl. 709, 39 L. R. A. 535; L. & N. Ry. Co. v. Gilmer, 89 Ala. 534, 7 South. 654; Railway Co. v. Wood, 66 Ala. 167, 41 Am. Rep. 749. But upon another trial the issue whether or not the stipulation for such a delivery upon the side track was reasonable should be left for determination by the jury under appropriate instructions from the court. T. & P. Ry. Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56.

Appellees invoke the provisions of article 6589 of the Revised Statutes, which reads: “Each and every railroad company is hereby required to erect at each and every depot, station or place established by such company for the reception and delivery of freight, suitable buildings or inclosures to protect produce, goods, wares and merchandise and freight of every description from damages by exposure to the weather, stock or otherwise; in default of which such railroad company shall be liable to the owner of such produce, goods, wares or merchandise for the amount of damages or loss sustained by reason of such improper exposure, together with all costs and expenses of recovering the same, including necessary attorney’s fees.”

The conclusion announced above is not at variance with this statute, as the only purpose of the statute was to protect property shipped from damages by reason of exposure to “weather, stock or otherwise.”

In the absence of sufficient evidence to show that the Odom Lumber Company took possession of the car with defendant’s consent, the judgment must be reversed, and .the cause remanded, and it is so ordered.


author: WILLSON, C. J.

text:
    GUARANTY STATE BANK OF CARTHAGE v. CONTINENTAL BANK & TRUST CO. OF SHREVEPORT, LA., et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 5, 1914.)

    1. Limitation ox Actions (§ 21) — Contract —Actions.
    Defendant bank, having contracted to take over the business of the M. bank, adopted a resolution, reciting that, whereas the directors of the M. bank had agreed to sell to defendant bank the securities, realty, property, and other assets thereof, and whereas defendant bank, by resolution, had agreed to purchase the same, in consideration of the transfer, defendant bank “assumes the payment of all liabilities of the M. bank as the same shall appear on its books at the close of business April 11, 1910.” Held, that an action to charge defendant with liability for certain of the stock of the M. bank which had been pledged to plaintiff, but the value of which defendant bank had wrongfully paid to the pledgor, was an action for breach of contract, and not for a conversion of the stock, and was therefore not barred by the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 90-99; Dec. Dig. § 21.]
    2. Banks and Banking (§ 67) — Consolidation — Liabilities.
    Where a contract for the consolidation of certain banks bound defendant bank to pay all the liabilities of the M. bank as the same appeared on its books at the close of business April 11, 1910, such agreement bound defendant to pay the value of the M. bank’s stock to the lawful holders as a part of the M. bank’s liabilities.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 129; Dec. Dig. § 67.]
    3. Banks and Banking (§ 67) — Consolidation — Stock—Payment—Estoppel.
    Where a consolidation agreement between banks bound defendant to pay the M. bank’s liabilities, which included its stock, as the same appeared on its books of a specified date, and certain of the M. bank’s stock had been pledged to plaintiff, it was entitled to assume that defendant would not pay the value of the stock to the pledgor without requiring a surrender thereof, and hence plaintiff’s failure to notify defendant of the pledge did not estop it to recover from_ defendant the value of such stock, notwithstanding the prior payment to the pledg- or who was insolvent.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 129; Dec. Dig. § 67.]
    4.Banks and Banking (§ 67) — Consolidation — Liabilities — Payment — Capital Stock — Market or Book Value.
    Where a consolidation agreement between banks obligated defendant bank to pay all the liabilities of the M. bank as they appeared on the M. bank’s books at the close of business April 11, 1910, defendant was liable for the stock of the M. bank at its book value, and not at its market value.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 129; Dec. Dig. § 67.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Action by the Continental Bank & Trust Company of Shreveport and others against the Guaranty State Bank' of Carthage. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    By its suit the appellee bank, plaintiff in the court below, sought and recovered a judgment against R. E. Trabue, the other appellee, for the amount of two promissory notes in its favor, made by said Trabue, one dated August 29, 1912, payable 90.days after its date, for $2,000, interest and attorney’s fees, and the other dated June 7, 1912, payable October 7, 1912, for $5,000, interest and attorney’s fees. Said appellee bank alleged and proved that the note for $5,000 was a renewal of one made by Trabue in October, 1906, and that the note for $2,000 was a renewal of one made by him February 10, 1909. It further alleged and proved that, at the time, to wit, said February 10, 1909, the original $2,000 note was delivered to it by Trabue, he delivered to it, as collateral security for same and any other indebtedness due it by him, 30 shares of the capital stock of the Merchants’ & Farmers’ National Bank of Carthage, Tex., of the face value of $100 each. It further alleged and proved that on April 11, 1910, said Merchants’ & Farmers’ National Bank sold all its assets of every kind to appellant, and that the latter then assumed the payment of all the liabilities of the former as the same appeared on its books at the close of business on said 11th day of April, 1910. It alleged that said 30 shares of its capital stock was a liability of said Merchants’ & Farmers’ National Bank, and that appellant, by means of the transfer thereof to it, had “converted all of the properties, realties, securities and other assets of the Merchants’ & Farmers’ National Bank to its own use and benefit.” The prayer was for judgment against Trabue for the amount of the notes, for a foreclosure of the appellee bank’s lien on the SO shares of stock, and for judgment against appellant for the value of same. The trial was to the court without a jury. The court found there was due ap-pellee bank on the two notes the sum of $8,055.59, and rendered judgment in its favor against Trabue for that sum. He further found that the 30 shares of stock were pledged to appellee bank to secure the payment of both notes, and decreed in favor of ap-pellee bank a foreclosure of the lien it asserted on the stock. He further found that the stock was worth $80 per share, or $2,400, that appellant had acquired all the property of the Merchants’ & Farmers’ National Bank, and rendered judgment against it in favor of appellee bank for said sum of $2,400 as the value of said stock, directing that payment by appellant of said sum should operate as a payment pro tanto of the sum adjudged in favor of appellee bank against Trabue. Both appellant and the appellee bank appealed from the judgment rendered.
    Brooke & Woolworth, of Carthage, for appellant. H. N. Nelson, of Carthage, for ap-pellees.

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

   WILLSON, C. J.

(after stating the facts as above).

In its first assignment appellant insists that the suit of the appellee bank against it was for “a conversion of the security upon which it claimed a lien”; that the conversion occurred on April 11, 1910; that the suit was not commenced until after the expiration of more than two years from that date; and therefore that the court below erred in overruling its plea setting up the statute of limitations of two years as a bar to the suit. If we thought the appellee bank’s suit was for a conversion as claimed, we would overrule the assignment, because it does not appear from anything in the record we are authorized to consider when the suit was commenced. The case was tried on an amended petition filed April 23, 1913. The record does not disclose when the original petition was filed. But, as we construe the pleadings of the appellee bank, its suit against appellant was not for a conversion, but was to enforce a contract in writing made by appellant with the Merchants’ & Farmers’ National Bank, containing stipulations as follows: “Whereas, by a resolution duly adopted by the directors of the Merchants’ & Farmers’ National Bank of Carthage, Texas, made and entered on the minutes of said bank, it was agreed to sell and transfer to the Guaranty State Bank of Carthage, Texas, the securities, realty, properties and other assets of said corporation; and, whereas, the Guaranty State Bank by a resolution of the same date, which was passed by its directors, agreed to purchase the securities, realty, properties and assets of the Merchants’ & Farmers’ National Bank of Carthage, Texas, in consideration of the transfer of said securities, realty, properties and other assets of the said Merchants’ & Farmers’ National Bank to the Guaranty State Bank, the last-named bank does by these presents assume the payment of all the liabilities of the said Merchants’ & Farmers’ National Bank of Carthage, Texas, as the same appears on the books of the said Merchants’ & Farmers’ National Bank at the close of business on the 11th day of April, 1910.” Such being the nature of the suit, the statute of limitations of two years did not apply to it.

No question is made by the assignments — and, perhaps, one could not be made (Ins. Co. v. Anderson, 152 S. W. 816; Id. [Sup.] 155 S. W. 1176) —as to the right of the appellee bank, for lack of privity, to maintain a suit on the undertaking of the appel lant, just set out.' Therefore, in determining whether the judgment should be affirmed or not, the question which should be considered first is: Was the stock held by the appellee bank a liability of the Merchants’ & Farmers’ National Bank which appellant assumed to pay? Appellant does not contend, and reasonably could not, that the capital stock of a corporation, as between the corporation and a person holding such stock, is not a liability of the corporation. It does not contend, and could not, in face of the positive and uncontradicted showing in the record to the contrary, that the capital stock of the Merchants’ & Farmers’ National Bank did not appear on its books as one of its liabilities at the close of business on April 11, 1910. Clearly, therefore, the question propounded above must be answered in the affirmative; for appellant’s undertaking was to pay all the liabilities of said Merchants’ & Farmers’ National Bank as same appeared on its books at the close of business on April 11, 1910.

The liability of the Merchants’ & Farmers’ National Bank for the 30 shares of stock being one appellant assumed, we think its undertaking must be construed as binding it to make the payment due from it on account of same to the lawful holder of the stock. As the appellee bank, as the transferee of Trabue, was the lawful holder thereof, in the absence of conduct on its part creating against it an estoppel in favor of appellant, we think it was no answer to the suit for appellant to say, as it did, that it had paid to Trabue the sum due by it on account of its said undertaking. Therefore, in determining whether the appellee bank was entitled to recover against appellant or not, the question remaining is: Did it appear that the appellee bank was estopped from asserting the liability it claimed against appellant? It was shown that the Merchants’ & Farmers’ National Bank was placed in voluntary liquidation by a resolution of its shareholders, owning more than two-thirds of its stock, adopted April 11, 1910, and that notice of the fact was given in the manner required by law. It also was shown, as appears from the contract set out' (in part) above, that said Merchants’ & Farmers’ National Bank, on the day its said shareholders adopted said resolution, conveyed its assets to appellant. In the court below appellant contended, and it contends here, that the appellee bank should have been held to be estopped from claiming a recovery against it, because, it says, it appeared that the appellee bank knew said Merchants’ & Farmers’ National Bank had been placed in liquidation, and had conveyed its assets to appellant, yet it did not present said stock to appellant for payment within a reasonable time after it acquired such knowledge, and did not notify appellant it held said stock and' claimed a liability against it on account of same, until appellant, believing he was the owner thereof and that it was complying with its undertaking whereby it bound itself to pay the liabilities of the Merchants’ & Farmers’ National Bank, had paid to Trabue the value of said stock, and until after said Trabue had become insolvent. It may be conceded it so appeared; still we do not think a question as to estop-pel on the part of the appellee bank was presented. “Fraud, actual or imputed,” said the court in Gulf City Trust Co. v. Hartley, 20 Tex. Civ. App. 180, 49 S. W. 902, “in the conduct of the party complained of, and injury from the fraud to the party complaining, are essential elements in every equitable estoppel.” There is nothing in the facts relied upon showing wrong conduct on the part of the appellee bank. Even if it appeared it knew, before appellant paid Trabue, and before he became insolvent, that appellant had undertaken to pay the liabilities of the Merchants’ & Farmers’ National Bank, it did not appear it knew, or had any reason to believe, appellant contemplated paying or had paid the amount due on account of the 30 shares of stock to Trabue. If the appellee bank knew of the undertaking on the part of appellant, it had a right to assume that appellant, before it paid anything on account of said shares of stock, would demand that same be delivered to it for cancellation. That appellant failed to take such a precaution, and was content to pay Trabue for same on his assertion that he still owned and was entitled to demand and receive the sum due by appellant on account of it, was not the fault of the appellee bank.

We are of the opinion there is no error in the judgment in so far as it determines that appellant is liable to the appellee bank for the value of the 30 shares of stock. In reaching this conclusion we have not considered the second and third assignments, in which appellant complains of the action of the court below in overruling, as it asserts, certain special exceptions contained in its answer to the petition of the appellee bank. There is nothing in the record showing that the exceptions were called to the attention of the court and therefore they must be deemed to have been waived. Chambers v. Miller, 9 Tex. 236.

The question remaining to be determined in disposing of the appeal is based on the finding by the trial court that the'30 shares of stock were worth $80 each. Appellant insists that, while it appeared that the book value of the shares was $104 each, it further appeared their market value was at most only $29 each, and that the judgment should not, in any event, have been against it for a sum in excess of the market value of the stock. The appellee bank, on the other hand, insists that the judgment in its favor against appellant should have been for a sum equal to the book value of the stock. We think the controversy is determinable by reference to the terms of the contract between appellant and the Merchants’ & Farmers’ National Bank, and that, as it is, it must be so determined. By the terms of that contract appellant assumed the “payment of all liabilities of the said Merchants’ & Farmers’ National Bank of Carthage, Tex., as the same appears on the books of the said Merchants’ & Farmers’ National Bank at the close of business on the 11th day of April, 1910.” Clearly, therefore, the market value of the stock was not the measure of appellant’s liability. It bound itself to pay the value of the stock as it appeared on the books of said Merchants’ & Farmers’ National Bank, and the recovery against it by the appellee bank should have been for that value. Therefore the judgment will be so reformed as to adjudge a recovery in favor of the appellee bank against appellant for the 30 shares of stock at a valuation of $104 per share, and, as so reformed, it will be affirmed.


author: MeMEANS, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. GRACE.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 9, 1914.)
    1. Railroads (§ 414) — Injubies to Stock-Defective Right of Wat Fence — Liability of Company.
    Plaintiff’s mule escaped from his lot through a break in defendant’s right of way fence, and strayed onto defendant’s bridge, where it was caught in the spaces between the ties, and was so injured thereby and by exposure that it died. Held that, no injury by train being involved, the company could not be held liable on the ground of negligence in failing to fence against live stock.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1474, 1475; Dec. Dig. § 414.].
    2. Railroads (| 422) — Fences—Injury to Animals.
    An adjoining landowner could not assume that a railway right of way fence was in such condition as to prevent his mule from entering on the track, or that the company had repaired it, where he actually knew at the time that stock could go through the fence onto the right of way.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1512-1515; Dec. Dig. § 422.]

      Appeal from Matagorda County Court; W. S. Holman, Judge.
    Action by B. F. Grace against tbe Galveston, Harrisburg & San Antonio Railway' Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Baber, Botts, Parber & Garwood, of Houston, Proctor Vandenberge & Crain, of Victoria, and Holland & Murpby, of Bay City, for appellant. Linn, Conger & Austin, of Bay City, for appellee.

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

   MeMEANS, J.

B. F. Grace sued tbe Galveston, Harrisburg & San Antonio Railway Company in tbe justice court of Matagorda county to recover $200, tbe alleged value of a mule alleged to bave been killed as a result of tbe negligence of tbe railway company, and recovered a judgment for $187.50. Tbe railway company appealed to tbe county court, where, upon a trial before a jury, tbe plaintiff recovered a judgment for $200, and, from this judgment, tbe defendant has appealed.

Tbe evidence in tbe record justifies the following fact findings: Defendant maintained and operated a railroad through tbe station of Gainesmore. At this station there was a side track and a depot building; but no agent was kept there, and shipments from that point were only in car lots, and no shipments were delivered there, except when tbe consignee was present to receive them, or when tbe shipment was to be delivered at tbe consignee’s risk. Originally the right of way bad been fenced; but of late years tbe fence at and near tbe station had been allowed by defendant to become out of repair, and on tbe side of tbe track on which plaintiff lived it was down in several places, and a gate which bad been placed at a road crossing near plaintiff’s home had been allowed to become out of repair, and to remain constantly open, and no effort was made by defendant to keep it closed. There was nothing in tbe situation at tbe place where this gate was, or at tbe place where tbe fence was down, to prevent defendant from fencing its right of way, and keeping it fenced, if it desired to escape absolute liability for stock killed or injured on tbe track by its locomotives and cars. At a point not far from tbe gate, and from tbe place where tbe fence was down, defendant bad constructed, as a part of its track, a trestle bridge over a creek. This bridge is the usual and customary kind used by railroads, and was properly constructed and well adapted to tbe uses to which it was applied. At tbe ends of this bridge tbe floor of same was made of cross-ties placed very closely together in tbe nature of a solid floor, and as tbe trestle continued tbe apertures between tbe ties were widened until they' were so far apart that a horse or other animal could not cross tbe same without danger of falling through. To a person approaching on 'the track, tbe bridge bad tbe appearance of having a solid floor its entire length, and, from tbe point where it was first entered upon, it could not be seen that there were any openings which would be dangerous. Plaintiff’s mule escaped from bis lot in the nighttime and strayed upon tbe railway track, and upon tbe bridge, and, after it bad gotten about 20 feet from the end of tbe bridge, its feet passed through an aperture between tbe ties, and became so fastened that it could not extricate itself, and as tbe result of injuries received in this way, and from exposure, it died. The mule was not struck or injured by tbe locomotives or cars of defendant ; but its death was due solely to tbe injury received by its feet becoming fastened in tbe bridge, and to exposure.

Under this state of facts tbe contention is made that, as tbe uncontradieted evidence shows that tbe mule was not injured by coming in contact with a locomotive or car, but its injury and death were caused solely by its voluntarily walking upon tbe trestle bridge and becoming fastened therein, appellant is not liable for its value. It is further contended that there was no duty resting upon appellant to so construct its bridges as to prevent live stock from being injured, if they should happen to walk thereon.

We think these contentions must be sustained. This suit was not brought under article 6603, Revised 'Statutes 1911, which makes railroad companies absolutely liable for stock injured or killed by locomotives and cars on unfenced tracks, but appears to be based solely upon the negligence of the appellant in failing to fence its track against the incursions of live stock thereon.

We cannot distinguish this case in principle from Padgitt v. Railway Company, 90 S. W. 67. It appears that in that case the railroad right of way was fenced on both sides, but that Padgitt’s mare walked over a cattle guard and went upon the track about 100 yards where appellee had a bridge and was injured. The cattle guard was so constructed as to form no obstacle to animals crossing over it. Padgitt lost in the trial court and appealed, and, in affirming the judgment, the court said: “The animal was not injured through the locomotives or cars of appellee. The case of appellant is no better than if appellee had never inclosed its right of way across the farm. At best the evidence shows that appellee had its track in such condition that animals had free access to it. Appellee was not required to keep its track or bridges in such condition as not to injure animals that went upon the right of way. Railway v. Hughes, 68 Tex. 291, 4 S. W. 492; Railway v. Tamborello, 67 S. W. 926.”

Railway v. Tamborello, cited in the opinion above referred to, is very similar in ics facts to the case before us. There, as here, the animal walked upon a trestle at a point where the road was unfenced. In deciding that the railway company was not liable for-the injury to the animal caused by its falling from the trestle, the court said: “The first requisite to establish negligence is to show the existence of a duty to the party aggrieved, and then a violation or neglect to perform that duty. Cooley on Torts, 859, 860. No duty requires a railroad company to abstain from using its property for any lawful purpose, or to use any care to keep the premises in good condition, on account of the possibility that cattle may stray upon the unfenced track and suffer injury. Shear. & R. Neg. § 419; Railway v. Kirksey (see this case for citation of authorities and discussion of the subject) 48 Ark. 366, 3 S. W. 190; Railroad Co. v. Carraher, 47 Ill. 833.” See, also, Railway Co. v. Harrison, 146 S. W. 596.

Appellee, Grace, in support of the judgment, cites and relies upon the case of Railroad v. Dixon, 49 Tex. Civ. App. 506, 109 S. W. 978. The facts in that case were in substance that Dixon’s horses escaped from his field and entered upon the railroad right of way through a gate, which formed a part of the right of way fence, and which the railway company had negligently allowed to become defective and out of repair, and failed to keep it closed. After the animals had gone upon the track, they became frightened at the approach of a train and ran down the track in front of the train and fell into a bridge. They were not struck by the locomotive or any of the cars constituting the train. It was held that the railway company was liable. The following, taken from the opinion in that case, readily suggests its distinction from this: “It may be conceded that the railway company was not required to inclose its track with a fence, and, when it is not done, it would only be held liable in the event the locomotive or some part of the train came in contact with the animal; but, when a fence is erected, and the track inclosed, it must exercise ordinary care to keep the fence in a proper condition, and this new duty arises, not only to the public, but to adjacent owners, so that harmful results may not follow from the failure to perform this duty. When the track and right of way is protected by a fence erected by the railway company, and under its control, and it is supposed to be sufficient to prevent stock from entering upon the track, the owner of the adjacent inelosure, which is so separated from the right of way by the fence, should be permitted to act upon the assumption that he can, with safety to his stock, turn them into the inclosure, resting upon the belief that the railway as to him has performed its duty to keep the fence in proper condition. Of course, if there is no duty, there ean be no liability; but in a case of this character the erection of the fence, and assuming the duty to keep it in repair, when there is no Indication of a purpose to abandon this duty, is an implied understanding with the owner that his adjoining inclosure may be used without danger to his stock trespassing upon the right of way and track.”

In the case before us the plaintiff, Grace, testified that he moved to Gainesmore in the fall of 1911, and that during the time he has lived there the railway company had made no effort or attempt to repair its right of way fence; that the fence had been down on his side of the right of way, and the gate had remained open, ever since he lived there; that he knew his stock or any other stock could get on the railroad track and on the bridge over the creek either through the gate or through the right of way fence, and that he knew such condition existed the night his mule got out on the bridge; that he presumed the mule walked onto the bridge of its own accord, and fell through the ties. Knowing all this, he certainly was not authorized to act upon the assumption that the fence was in such condition as to prevent his mule from entering upon the track, and to rest upon the belief that the railway company as to him had performed its duty, indeed, if it owed him any, to keep the fence in proper condition.

We think that under the facts of this case no liability upon the part of appellant is shown or can be shown, and, for this reason, the judgment of the court below is reversed, and judgment is here rendered for the appellant.

Reversed and rendered.


text:
    BYERS et al. v. CHATFIELD.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1914.
    Rehearing Denied March 12, 1914.)
    Principal and Agent (§ 34) — Power of Attorney — Cancellation—Consideration.
    The instrument executed by plaintiff, appointing defendants his agents and attorneys in fact, authorizing them to enter on, sell, and convey his tract of land or any part of it, and for this purpose to subdivide it, and lay out and dedicate roads through it, and to institute any necessary suits for possession, all at their own expense, they for all such services to be paid a commission on sales, is more than a naked power of attorney, so that they having accepted its terms, and performed obligations imposed by subdividing the land and laying out and constructing roads, and proceeding to make sales, it becomes a contract binding on plaintiff, and so may not be canceled on the ground of want of consideration; though it may be revoked after defendants have had a reasonable time to sell.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 55; Dec. Dig. § 34.]
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Suit by Norman Chatfield, Sr., against George A. Byers and another for cancellation of a power of attorney. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Byers & Jackson, of Alvin, for appellants. Louis J. Wilson, of Angleton, for appellee.

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

   MeMEANS, J.

On January 16, 1911, Norman Chatfield, Sr., was the owner of 500 acres of land in Brazoria county, and on that date he executed and delivered to George A. Byers and J. S. Jackson a power of attorney, by the terms of which he appointed said Byers and Jackson his agents and attorneys in fact, authorizing them to enter upon the tract and sell and convey the same or any part thereof, and for this purpose to divide the tract into such parcels as the agents might deem proper, to lay out and dedicate roads through the same, and to convey the same for any sum of money not less than forty dollars per acre; to receive the consideration therefor and to execute deeds to the purchasers thereof in the name of the owner; and to institute such suit or suits for the recovery of the possession thereof as might be necessary. The instrument contained the further agreement as follows: “It being fully agreed and understood that in compensation for the services of said attorneys in and about the work and labor done and to be performed by them, the said J. S. Jackson and Geo. A. Byers in and about the handling, management and sale of my said property, that I am to pay them a commission of five per cent, on the said price of forty dollars per acre hereinbefore stipulated as the lowest price at which they are to sell or make sales of said property; and I further agree, and hereby give, grant and convey unto said J. S. Jackson and Geo. A. Byers all amounts in excess of forty dollars per acre for which they may sell the above-described land, whether sold in bulk, or subdivided; it being fully understood that said Geo. A. Byers and J. S. Jackson have full power and authority to employ such agent or agents as they may see fit in connection with the subdivision and sale of said land, and that said J. S. Jackson and Geo. A. Byers are to pay any and all expenses connected with the subdivision and sale of said properties, and will do and perform any and all such legal work as may be necessary in and about the bringing of such suit or suits'as may be necessary to clear the title to said land, if found defective, and also to defend such suit or suits as may be brought against it during the time it is owned by me; and to .secure the payment of said fees and commissions, I hereby grant, bargain, sell and convey unto said J. S. Jackson and Geo. A. Byers a five per cent, interest in and to the above-described tract of land and I hereby fix a lien upon said property in favor of said Geo. A. Byers and J. S. Jackson to secure the payment of any and all sums over and above the price herein agreed upon of forty dollars per acre for which they, or the agent or agents employed by them, may sell said land or any portion thereof.”

The instrument concluded as'follows: “To have and to hold the above-described five per cent, interest in said land to the said J. S. Jackson and Geo. A. Byers, their heirs and assigns forever. And I hereby bind myself, my heirs, executors and administrators to warrant and forever defend, all and singular, the said five per cent, interest in the above-described land unto the said Geo. A. Byers and J. S. Jackson, their heirs and assigns forever, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

Acting under this power, Byers and Jackson entered upon the land and caused it to be surveyed and subdivided without expense to Chatfield, caused a road to be laid out and graded through the tract, and procured the execution of releases of two vendor’s liens upon the land and had them recorded, and sold 200 acres of the 500-aere tract, and accounted to Chatfield for the proceeds, and in good faith made efforts to sell the remainder.

In January, 1912, Chatfield, becoming dissatisfied with his arrangement with Byers and Jackson, notified them that he did not desire them to longer act as his agents and attorneys in fact, and on February 12, 1912, he executed and filed for record in the county clerk’s office of Brazoria county a revocation of the power of attorney he had theretofore executed to Byers and Jackson, and thereby attempted to cancel all the rights and privileges theretofore exercised and claimed by them thereunder. On June 21, 1912, Chatfield filed this suit against Byers and Jackson, to remove cloud and quiet his title to 300 acres of the land, which was the balance remaining after the sale by Byers and Jackson of 200 acres, alleging that he was informed that the latter were asserting pretended rights and title to, or lien upon, the land or some part thereof under an alleged instrument dated January 16, 1911 (which was the power of attorney before mentioned), and further alleging that if he ever executed said instrument he did so without fully understanding its contents, and charged fraud and misrepresentation on the part of Byers and Jackson in procuring the execution thereof by him; that he did not intend to convey to appellants any interest in the land or to give them any lien thereon; and that, if said instrument conveyed to them any interest therein or gave them any lien thereon, the same was without consideration.

The case was tried before the court without a jury, and upon .the conclusion of the evidence the court rendered a judgment in favor of plaintiff, Chatfield, quieting him in the title and possession of the remaining 300 acres of the tract, and adjudging that Byers and Jackson have no estate, title, or interest in or lien upon the same by virtue of said power of attorney, and specially decreeing that the power of attorney be revoked and canceled, and that all clouds cast upon plaintiff’s land by the claims, rights, titles, and lien asserted by defendants thereto under said power of attorney be removed. From this judgment the defendants Byers and Jackson have appealed.

The trial judge upon proper request filed Ms findings of fact, and therein found against plaintiff on the issue of fraud of Byers and .Jackson in procuring the power of attorney, but found that there was no consideration for the execution of the power of attorney. He further found that, at the time of the execution and filing by plaintiff of the attempted revocation of the power of attorney, he was not indebted to Byers and Jackson for fees or commissions due them for any service rendered under the power of attorney.

We will not discuss appellants’ assignments of error in detail. The court having found against appellee on the allegation of fraud of Byers and Jackson in procuring the execution of the power of attorney (and this finding is amply sustained by the evidence), that issue is eliminated. Having found for appellee on the issue of want of consideration only, we must look to the evidence to determine whether the finding was warranted. By accepting the power of attorney appellants impliedly agreed to take upon themselves and to perform, all the obligations required of them by its terms. Some of these were that appellants should enter upon the land and take possession thereof and without expense to appellee subdivide the land and record plats thereof in Brazoria county, and to dedicate a road or roads thereover. Soon after the execution and delivery of the power of attorney, Byers and Jackson entered into a contract with George W. Sheffield, whereby the latter contracted to survey the land and subdivide it and make a plat of such subdivision and to place the same on record, and also to lay out and grade a road on the land, and Byers and Jackson, to compensate him therefor, agreed to give him a part of the money derived by them as commissions from the sale of the land. Acting under this contract, Sheffield, without expense to plaintiff, surveyed, subdivided, and platted the land and laid out a road 1% miles long on the land and had the same graded at the cost to himself of $108. These acts were caused to be performed by Byers and Jackson in fulfillment of the stipulations of the power of attorney above referred to; and we think the agreement to perform the stipulations which must be implied by their acceptance of the power of attorney wMeh contained them, and the performance of the same thereafter by them, was a sufficient consideration for the execution and delivery of the power of attorney. As before shown, appellee sought the cancellation of the power of attorney on two grounds only — one being the alleged fraud of Byers and Jackson in procuring its execution and the other want of consideration — and as the court found in favor of appellants on the first ground and against him on the second, its judgment was, of course, based on the latter. It seems to us that ap-pellee had no right of cancellation on this ground because a sufficient consideration was shown.

The instrument was more than a naked power of attorney, and when Byers and Jackson accepted its terms and performed the obligations imposed upon them it became a contract binding upon the grantor. We will not say that it was one that could never be revoked by the grantor, but, as no limit was therein-fixed of the time in which the grantees should exercise the powers and receive the benefits therein stipulated, Byers and Jackson, after the performance by them of their part of the contract, were entitled to a reasonable opportunity to sell the land and thus obtain compensation for the labor and expense of surveying and subdividing the same and laying out and grading the road. Hollingsworth v. Young County, 40 Tex. Civ. App. 590, 91 S. W. 1094.

What would be a reasonable opportunity is a question of fact to be determined by the court or jury from all the facts and circumstances. But we think it is clear that under the facts of this ease appellee was not entitled to a cancellation of the power of attorney on the ground of want of consideration, and for this reason the judgment of the court below is reversed, and judgment is here rendered that appellee take nothing by tMs suit.

Reversed and rendered.


text:
    BIBB et al. v. BLUFFDALE STATE BANK.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 21, 1914.)
    1. Bills and Notes (§ 140) — Renew al— Eeeect — Liability on Original.
    Defendants, who were sureties on a note, signed a renewal thereof, but the principal did not sign. Meld, that the failure of the principal to sign was no defense to an action on the original note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 355-359; Dec. Dig. § 140.]
    2. Appeal and Error (§ 1068) — Review-Harmless Error.
    Where defendant filed a plea in reconvention, setting up his right to actual and punitive damages for plaintiff’s wrongful attachment of exempt property, errors in the charge on the measure of actual and punitive damages are harmless, where no damages were allowed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Appeal from Erath County Court; R. L. Thompson, Judge.
    Action by the Bluffdale State Bank against J. H. Bibb and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    B. E. Cook, of Stephenville, for appellants. Chandler & Pannill, of Stephenville, for ap-pellee.

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

   DUNKLIN, J.

The Bluffdale State Bank instituted this suit against W. N. Eades, J. S. Meador, J. H. Bibb, and J. P. Jenkins, but subsequently was dismissed as to Jenkins upon the allegation that he was notoriously insolvent and that he was a nonresident of the state. The cause of action alleged was a promissory note in plaintiff’s favor executed by the defendants.

In reply to the petition, the defendants alleged that they signed the note as accommodation sureties for one J. Sam Jenkins, who had not then signed it, and under an agreement by and with plaintiff’s agent that the note was not to become effective until it should be signed by said Jenkins; that said principal had never signed it, and therefore defendants were not liable thereon.

The defendant Bibb further pleaded in re-convention against the plaintiff for damagés, actual and exemplary, alleged to have resulted to him for the wrongful issuance and levy of a writ of garnishment which prevented him from using certain funds which were exempt from the payment of the plaintiff’s debt by reason of the fact that the same were the proceeds of the sale of his homestead, which sale occurred less than six .months prior to the service of the writ.

Plaintiff then filed a supplemental petition containing a general demurrer and certain special exceptions to defendants’ answer, and alleging that the note sued on was the second renewal of an original note, and that the signatures of each and all of the defendants were upon some one or more of the former notes, and prayed for judgment upon the former notes, if for any reason it should be adjudged that a recovery could not be awarded upon the note set out in the original petition. None of the defendants filed any reply to this additional cause of action alleged in the supplemental petition.

Erom a judgment in favor of the bank, the defendant^ have appealed.

The record shows that, when plaintiff’s exceptions to defendants’ answer were presented, the trial judge announced that he would reserve his rulings thereon until after he heard the evidence. The trial then proceeded, and, after hearing the evidence, an order was entered sustaining plaintiff’s general demurrer and the fourth special exception to the answer because that answer was not verified by the affidavits of the defendants. By different assignments appellants insist that the court erred in sustaining the exception to the answer and in not sustaining the defense thereto alleged. Appellants cite considerable testimony shown in the statement of facts tending to prove the allegations contained in their answer. A discussion of these assignments is unnecessary, for, even though the defense urged should be established, the same would not defeat plaintiff’s right to recover on the former notes to which no defense whatever was urged.

Appellant Bibb has presented other assignments of error to the charge of the court upon the measure qf actual and exemplary damages alleged in his plea in reconvention. The charge upon the measure of actual damages is criticised in that the amount of interest which the court authorized the jury to find as actual damages for impounding the proceeds of the sale of Bibb’s homestead was limited to too short a period of time. In view of the fact that the jury allowed no actual damages, this error, if any, was harmless. Likewise, as no actual damages were allowed, the error, if any, in the instruction on the measure of exemplary damages becomes harmless also.

The judgment is affirmed.