author: MIDDLEBROOKE, J.

text:
    WESTERN UNION TELEGRAPH CO. v. ALEXANDER et al.
    (No. 104.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1916.
    Rehearing Denied July 3, 1916.)
    TELEGRAPHS AND TELEPHONES t&wkey;71 — EXCESSIVE Damages — Failure to Deliver Telegram Announcing Death.
    In action against telegraph company, a verdict of $975 is not excessive, where a telegram announcing death of addressee’s favorite brother was not delivered, causing her to miss his funeral, which she had made prior arrangements to attend, and addressee lived within speaking distance of the telegraph office, and the company was so advised by the sender of the telegram.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. <&wkey;> 71.]
    Error from Polk County Court; B. P. Bean, Judge.
    Action by Sleetie Alexander and another against the Western Union Telegraph Com-

      pany. Judgment for plaintiffs, and defendant brings error. Affirmed.
    P. J. & C. T. Duff, of Beaumont, for plaintiff in error. Campbell & Campbell, of Livingston, for defendants in error.
   MIDDLEBROOKE, J.

This was a suit instituted by Sleetie Alexander, joined by her husband, Sandy Alexander, in the county court of Polk county, Tex., on the 21st day of May, 19-15. Plaintiff alleged in the petition, in substance:

That on September 28, 1914, and prior thereto, they lived in Sour Lake, Tex.; that James Hall, a brother of Sleetie Alexander, died at Moscow, Tex., in Polk county, on September 27, 1914; that on the 28th day of September, Joe Hall, a brother, sent a telegram to Sleetie Alexander, reading as follows:

“Moscow, Texas, 9 — 28—14.
“Sleetie Alexander, Sour Lake, Texas. James died seven o’clock last night. Come at once. Answer. Joe Hall.”

That the telegram was never delivered to Sleetie Alexander, although she resided very near the telegraph company’s office in Sour Lake; that the plaintiff in error negligently and willfully failed and refused to deliver the telegram, and that thereby she was deprived of attending the funeral of her brother, and being present with her family in her bereavement; that in consequence she has suffered great mental anguish, to her damage in the sum of $975. They allege, further, in their petition, that if the message had been delivered she would and could have gone to Moscow and have been present at the burial of her brother,

The defendant, plaintiff in error, answered by original answer filed on August 1, 1915, demurring generally to plaintiffs’ petition; also filed general denial, and specially pleaded contributory negligence on the part of the sender of the message in not giving plaintiff in error sufficient information as to where or how defendant in error could be located; that it used due diligence to locate Sleetie Alexander, but on account of the negligence of the sender of the message was unable to do so; and that the defendant mailed to the plaintiff a card advising her that the message was in the office, and for her to call for same, which she failed to- do.

Plaintiff filed replication to this answer, denying same generally, and specially pleading that at the time of the delivery of the message to defendant for transmission, Joe Hall, the sender of the message, told defendant’s agent that Sleetie Alexander was a sister of the deceased, and lived within speaking distance of the telegraph station at Sour Lake. The case was tried before a jury on the 25th day of October, 1915, resulting in a verdict for the plaintiff in the sum sued for, $975. Motion for new trial was duly filed, and the same was overruled by the trial court, proper exceptions were reserved, and the case is now properly before this court for review.

Plaintiff in error’s first assignment of error is:

“Because the verdict of the jury is so excessive and unreasonable in amount as to show prejudice on the part of the jury.”

Its second assignment is:

“The verdict of the jury is not supported by and is against a preponderance of the evidence, in that, although the plaintiff swore that her failure to be at her brother’s funeral nearly killed her, yet the record discloses that: (1) The plaintiff, although she knew her brother was sick and dying for a period of three months, and that although she had the moans and ability to go to him, she did not do so. (2) That plaintiff had not seen or been with her brother for a period of three years before his death. (3) That plaintiff’s mental anguish, if any, was produced by regret at not having gone to her brother before his death, and not by reason of her failure to be present at his burial.

It is admitted by the defendant that a train leaving Sour Lake for Houston not later than 9 a. m. on September 28, 1914, would have made connection with the train of the Houston, East & West Texas at Houston, which was due to arrive in Moscow about 11 at night. It is also- admitted that 25 minutes would have been a reasonable time for the transmission of the message in question from the Moscow office to the telegraph office at Sour Lake.

It is not necessary to set out at length the statement of facts in this case, for a proper consideration thereof, under the assignments of error presented to- this court. Suffice it to say that the facts show that the plaintiff Sleetie Alexander suffered great mental anguish on account of not having the privilege of attending her brother’s funeral. The facts show also that her brother was afflicted with tuberculosis, and had been for some time; that her brother, some time previously, had lived in Louisiana, but had moved from Louisiana to Moscow, and at the time he moved back to Moscow Sleetie Alexander was living in Moscow; that she left Moscow and came to Sour Lake about three months before her brother’s death. Plaintiff in error, in its brief, states this time to be three years, but we are sure that this is a clerical error. The undisputed facts show that she was with her brother about three months before his death. They show, also, that she had made arrangements with her brother to telegraph her if her brother should die, in time for her to be present at the funeral, and that she had also made arrangements with a Mr. Hudson, for whom she cooked, in case she should get word of her brother’s death at an hour of the day that would preclude her taking passage from Sour Lake to Beaumont on a regular train, so as to make connection that would enable her to reach her brother in time for burial; to take her in his automobile to Beaumont to make connection. She testified, also, that deceased was her favorite brother, and if the message liad been delivered to her with reasonable dispatch she could and would have gone to her brother’s funeral, and it is also shown that from the time of receiving the message after her brother’s death, if it had been promptly delivered, she could have made connection on the railroad, so as to have been in Moscow about 11 o’clock, before her brother was buried the next afternoon. It shows, also, that her brother who' sent the message went to the telegraph operator several times and asked as to whether he had an answer, and that the funeral was delayed until all of the trains had passed that she could have reached Moscow on at any time during the afternoon of her brother’s burial, and it shows, also, that her brother who sent the message met the night train, expecting her to arrive on it. The telegraph operator at Sour Lake put the message in the hands of a negro porter or message boy for delivery, and he testified that he went to numerous persons and places, the post office, hotels, and one place and another, trying to locate Sleetie Alexander, and could not do so. The testimony also shows that Sleetie Alexander did live within speaking distance of the depot, the distance being determined at approximately three times the distance of the width of the courthouse, and it was agreed that the width of the courthouse was 05 feet.

Plaintiff in error’s counsel presents a most forceful argument in his brief; but, under our view of the case, his assignments of error are not well taken. He cites Western Union Telegraph Company v. Holcomb, 175 S. W. 750, as supporting his contention in his first assignment of error. An inspection of that case shows 'that the following message was sent:

“ ‘Mt. Pleasant, Texas. March 18, 1911. Pate Hawkins, De Leon, Texas. Brother Jess sick. No chance for him. Come at once. [Signed] Lena Raney.’ Lena Raney was plaintiff’s sister, and she and her brother, Jess Holcomb, lived in the country about nine miles from Mt. Pleasant, Plaintiff resided in the country near Downing, a small town about eight miles from De Leon. A telephone line connected De Leon and Downing, and a telephone line ran from Downing to plaintiff’s residence. A person at De Leon could talk to plaintiff at his residence over the telephone, but in order to do so it was necessary to call for him at the Downing exchange, from which station direct connection could bo made between plaintiff’s residence and De Léon. Jess Holcomb died at 4 o’clock on the afternoon of March 19th, and was buried near his home at 4 o’clock on the afternoon of March 20th. The telegram was delivered to plaintiff at his home by telephone from defendant’s office at De Leon on the morning of March 20th, too late to enable him to attend the burial.”

In passing upon that case, Justice Dunklin, writing the opinion, says:

“By another assignment it is insisted that the judgment, which was for the sum of $1,000, was excessive. According to plaintiff’s testimony, he moved from Titus county to Comanche county in the year 1904. During the time plaintiff lived in Titus county, Jess Holcomb, his brother, lived with him until the latter married, and then lived about a mile and a half from plaintiff’s residence. Plaintiff further testified: T suppose Jess had been married about a year and a half when he left Titus county. No; Jess was not my youngest brother. Jess was 27 years old when he died. I regarded my brother Jess very highly as a brother. He and I were always very friendly. It had been something like four years at the time my brother died since I had seen him. * * * When I found out I could not see my brother in his lifetime, and then could not even attend his funeral, I could hardly describe my feelings. I felt mighty bad, and was hurt badly over it.’ He further testified that he made no effort to have the burial postponed in order to enable him to attend the funeral; that he could have taken a train on Monday afternoon and reached his brother’s home the following morning at about 4:40 o’clock; that his brother did not have any one to write him of his illness; that he had never been to Mt. Pleasant since his brother’s death. We recognize the rule that the amount of damages to be awarded in such case as this is to be determined by the jury, and that the verdict will not be disturbed unless clearly excessive. Further, we are not unmindful of the rule that the facts of each case must be the guide in determining the amount of damages to be awarded; but we are of the opinion that the facts detailed by the plaintiff himself clearly do not warrant the amount of damages awarded.”

The evidence in that ease showed also that the telegram was carelessly delayed and ■that it reached the plaintiff too late for him to get passage that would enable him to reach his 'brother’s home in time for the funeral. The distinction between that case and the instant case is: The undisputed testimony in the instant case shows that Sleetie Alexander could and would have attended her brother’s funeral if the message had been promptly delivered, and she was so anxious to be in position to attend her brother’s funeral that she had prearranged to be able to do so, regardless of train service from Sour Lake to Beaumont.

In the case of Western Union Telegraph Company v. Johnson, 171 S. W. 859, as we understand it, that case was decided from the standpoint of “his action for mental anguish under the law of Arkansas will not lie for the failure to deliver an interstate message,” and is not applicable to the instant case, and the case of Southwestern Telegraph, etc., Company v. City of Dallas, 174 S. W. 636, which is a case in which a suit was brought for a reasonable sum for inspection of telegraph posts, etc., for $2 per post, under ordinances under special charter of the city of Dallas, and in that case a judgment was rendered against the telegraph company for the amount sued for, $2 per post, and the question of excessive damages was properly raised by the appellant, and was overruled by the court; the judgment being affirmed.

In Western Union Telegraph Company v. Rosentreter, 80 Tex. 406, 16 S. W. 25, the-Supreme Court, answering an assignment in point with the assignment in the instant case, in which a judgment was secured for $1,000, says:

“At last it now only remains to dispose of the twelfth assignment of error. * * * This assignment claims that the verdict of the jury is excessive in amount. We are unable to so bold. * * * Under a system of jurisprudence where the jurors are made the sole judges of matters of fact, they are as independent in their sphere, in legal contemplation, and presumably as fair and honest, as the judge on the bench. Where their power is thus made by law exclusive, some proof of a satisfactory nature ought to be furnished that they were influenced by passion, or prejudice, or other improper motive, in rendering the verdict, before the power of the court to annul the verdict for these reasons could be lawfully exercised. Even when a verdict is very large in amount, that affords at best but a suspicion of improper influence. But in this case the amount awarded is not unusually large, nor, indeed, so great as in many other cases whore the verdicts were sustained. * * * We cannot, therefore, hold that the verdict of the jury was influenced by any improper motive in assessing the amount of damages, although the effect of the verdict is, * * * as said in the able argument for the appellant, to allow the plaintiff ‘to coin his tears into silver dollars.’ ”

In the case of Western Union Telegraph Company v. McDavid, 121 S. W. 893, a judgment was secured by the plaintiff in ¡the sum of $1,350. The facts are very similar to the instant case, and the appellate court, in passing upon an assignment that the damage is excessive, says:

“There is no fixed rule for measuring the damages to be allowed in such cases, owing to the varying conditions and circumstances, and the jury being the exclusive judges of the facts, it must clearly appear that the amount allowed is excessive before this court would be authorized to disturb their verdict upon that objection. We have carefully examined the evidence, and, while the amount of the verdict seems somewhat large, we cannot say that it is excessive” — citing Telegraph Co. v. James, 31 Tex. Civ. App. 503, 73 S. W. 79; Telegraph Co. v. Houghton, 26 S. W. 448; Telegraph Co. v. Piner, 9 Tex. Civ. App. 152, 29 S. W. 66, and many other authorities.

We have carefully considered all of the authorities cited in appellant’s brief, as well as the able argument presented by counsel for appellant; but we do not think, as a matter of law, that the damages under the facts and surroundings of this case can be said by this court to he excessive. The first assignment of plaintiff in error is therefore overruled.

The second assignment of error is really nothing more or less than a reassertion of the first assignment of error in different form and verbage, and is answered by our disposition of the first assignment of error. We do not think as a matter of law that the verdict and judgment in this cause is excessive, and the judgment of the lower court is affirmed.

Affirmed.
      <&wkey;>For other cases see same topic and KISY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    ANDERSON COUNTY v. HOPKINS.
    (No. 7301.)
    (Court of Civil Appeals of Texas. Galveston.
    June 29, 1916.)
    Clerks oe Courts <&wkey;33 — Extra Compensation eor County Clerk — “Compensation” —“Excess Pees.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3881, 3882, 3889, and 3893, as to county clerk’s fees, allowing county clerks, in counties of 25,-000 inhabitants, to retain $2,400 as “compensation,” and, in counties of between 25,000 and 38,000 inhabitants, to retain as “excess fees” up to $1,250, one-fourth of the fees in excess of the amount allowed for salaries of themselves and assistants and deputies, and allowing the commissioners’ court in cases where the “compensation” ■ and “excess fees” do not reach the maximum provided for, to allow compensation for ex officio services, not to exceed the maximum, authorize the commissioners’ court to allow the clerk of the county court, in counties having between 25,000 and 38,000 inhabitants, compensation for ex officio services, provided such compensation, together with the fees retained by him under articles 3881, 3832, and 3889, does not amount to more than $3.650', and such compensation for ex officio services cannot be regarded as “excess fees” of which officers can retain only one-fourth, article 3888, providing that in no case shall the court be responsible for the payment of any sum when the fees collected by any oflicer are less than the maximum compensation, not being in conflict.
    [Ed. Note. — Por other cases, see Clerks of Courts, Cent. Dig. § 58; Dec. Dig. <&wkey;>33.
    Por other definitions, see Words and Phrases, First and Second Series, Compensation.]
    Appeal from Anderson County Court; P H. Springer, Special Judge.
    Action by Anderson County against J. I. Hopkins. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Campbell & Sewell, of Palestine, for appellant. O. C. Funderburk, of Palestine, for ap-pellee.
   PLEASANTS, C. J.

This suit was brought by appellant against appellee- to recover the sum of $850, claimed to have been unlawfully allowed appellee by the commissioners’ court of appellant county as compensation for ex officio services performed by him as county clerk of said county. A general demurrer was sustained to the petition, and, plaintiff declining to amend, the suit was dismissed.

The only questions raised by the appeal are whether the commissioners’ court of a county having more than 25,000 and less than 38,-000 inhabitants is authorized to allow compensation to the county clerk for ex officio services when the fees of the office, after paying the expenses allowed by law, amount to the sum of $2,400, and whether, if such compensation is allowed, it should be regarded as “excess fees,” as that term is used in the statute, only one-fourth of which can be retained by the officer. The facts upon which these questions arise are fully pleaded in the petition. The determination of the question depends upon the construction of our statutes fixing and regulating the fees and compensation of county officers. The statutes bearing upon the question are articles 3881, 3882, 3S89, and 3893, Vernon’s Sayles’ Civil Statutes. Article 3S81, in so far as it affects the question under consideration, provides that the “maximum fees of all kinds” that may be retained by a county clerk as compensation for his services shall not exceed the sum of $2,250. Article 8882 provides that in counties having a population of 25,000 inhabitants the county clerk may be allowed the sum of $2,400. Article 8880 is as follows:

“Each officer named in this chapter shall first, out of the fees of his office, pay or be paid, the amount allowed him, under the provisions ot this chapter, together with the salaries of his assistants or deputies. If the fees of such office collected in any year be more than the amount needed to pay the amount allowed such officer and his assistants and deputies, same shall bo deemed excess fees, and of such excess fees such officer shall retain one-fourth; and in counties having between 25,000 and 38,000 inhabitants until such one-fourth amounts to the sum of twelve hundred and fifty dollars; and counties containing a city of more than 25,000 population, or in which county the population exceeds 38,000, until such one-fourth amounts to the sum of fifteen hundred dollars, such population to be based on the United States census last preceding any given year. All amounts received by such officer as fees of his office besides those which he is allowed to retain by the provisions of this chapter, shall be paid into the county treasury of such county.”

Article 3893 contains the following provisions:

“The commissioners’ court is hereby debarred from allowing compensation for ex officio services to county officials when the compensation and excess fees which they are allowed to retain shall reach the maximum provided for in this chapter. In cases where the compensation and excess fees which the officers are allowed to retain shall not reach the maximum provided for in this chapter, the commissioners’ court shall allow compensation for ex officio services when, in their judgment, such compensation is necessary; provided, such compensation for ox officio services allowed shall not increase the compensation of the official beyond the maximum amount of compensation and excess fees allowed to be retained by him under this chapter.”

These articles of the statute seem to us to be so clear and unambiguous as to leave no room for construction. There is no doubt as to the meaning of the term “compensation and excess fees” as used in article 3893. By the provision of article 38S1 the maximum amount of fees the officer is allowed to retain is retained as “compensation” for his services. This “compensation,” is fixed by article 3882 at $2,400 for clerks of the county court in counties having a population of 25,-000 inhabitants. By article 3889 it is provided that, in counties having between 25,000 and 38,000 inhabitants, in addition to the compensation allowed in the preceding articles, the county officers may retain one-fourth of the “excess fees” collected by them until such one-fourth amounts to the sum of $1,250. It is perfectly clear that these articles permit a county clerk, in counties having between 25,000 and 38,000 inhabitants, to retain, as compensation and excess fees the sum of $3,650. Article 3893 expressly authorizes the commissioners’ court, when, in their judgment, such compensation is necessary, to allow compensation for ex officio services of any county officer, provided such compensation shall not increase the compensation of the official beyond the maximum amount of “compensation and excess fees” allowed to be retained by him under the preceding articles. These articles, we think, clearly authorize the commissioners’ court to allow the clerk of the county court, in counties having between 25,000 and 38,000 inhabitants, compensation for ex officio services, provided such compensation, together with the fees retained by him under the preceding articles, does not amount to more than $3,650. We do not think article 3893 is susceptible of any other reasonable construction. We think it equally clear that the language and manifest purpose and intent of the article excludes the idea that the compensation for ex officio services thereby authorized can be regarded as “excess fees” of which officers can only retain one-fourth.

Appellant contends that article 3893 should not he construed according to the literal meaning of its language, because to do so would defeat the manifest purpose and intent of the Legislature in the enactment of the statute regulating the fees of county officers when the several articles of the statute are considered as a whole. We find nothing in the act as a whole which throws any doubt upon the meaning of article 3893. The provision of article 3888, that “in no case shall the state or the county be responsible for the payment of any sum when the fees collected by any officer are less than the maximum compensation allowed by this chapter, or he responsible for the pay of any deputy or assistant,” are not in conflict with the provision of article 3893. The two articles, construed together, evidence the clear intention of the Legislature to protect the county against any claim on the part of the officers for any deficiency in the fees allowed him by law, but to authorize the commissioners’ court, when, in their judgment, such compensation is necessary, to allow the officer compensation for ex officio services in an amount not to exceed such deficiency. We think such legislation is reasonable and proper. The ex of-ficio services performed by a county officer may he much greater in one county than in another of the same population, and it is not unreasonable to leave to the judgment of the commissioners’ court the question of whether' a county officer should receive compensation for ex officio services, the amount of such compensation being limited by the statute.

We cannot agree with appellant in its further contention that the construction we have given this article of the statute adds to the inequality of the compensation allowed county officers, and therefore contravenes one of the primary purposes of the Legislature in the enactment of the fee bill statute. As before stated, we tbink tbe statute is plain and unambiguous, and we are not authorized to give it any construction than that which its plain language imports.

It appears from the face of the petition that Anderson county has a population, as shown by the last United States census, of between 25,000 and 38,000 inhabitants, and that the total amount of compensation received by the defendant, including the $850 for which this suit is brought, was less than the sum of $3,600.

We agree with the trial judge that the petition does not show any right in the plaintiff to recover any sum from the defendant, and the general demurrer was properly sustained.

It follows that the judgment of the trial court should be affirmed; and it is so ordered.

Affirmed.
      ¿&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, O. J.

text:
    TOWNSEND v. PILGRIM.
    (No. 8425.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 1, 1916.)
    1. TRIAL <&wkey;>192 — INSTRUCTIONS — ASSUMINQ Pact to be True.
    An instruction assuming a fact is not erroneous, where uncontradicted testimony establishes the fact.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. <&wkey;192.]
    2. Sales <&wkey;396 — Action by Buyer for Overpayment oe Purchase Price — Plead - i no aND Proof.
    In action for excess paid on purchase price of cotton by buyer, where the sale contract pleaded was that the cotton should be paid for on the basis of its grade and classification, it was unnecessary for plaintiff to allege that the contract provided for grading and classification in town to which it was to be shipped by seller, in order to admit testimony of its real grade ascertained at such place.
    [Ed. Note. — Por. other cases, see Sales, Cent. Dig. §§ 1134, 1135; Dec. Dig. &wkey;396.]
    3. Appeal and Error <®a^lO50(l) — Harmless Error — Testimony from Books by Person Not Making Entry.
    In such action, allowing expert to testify from a copy of his books as to the grade of the cotton made by him was not reversible, where he testified he was present and assisted at the grading and classification, and qualified as an expert, and there was no other dispute as to the result of the grading and classification.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. &wkey;>1050(l).]
    4. Evidence <&wkey;219(l) — Admission—Refusal of Goods Tendered.
    In such action, refusal of defendant to take back cotton sold by him at the same price he received for it, notwithstanding an advance of $2.50 per bale, was competent as in the nature of an admission bearing upon his claim that the grade and classification at which it was sold were the correct ones.
    [Ed. Note. — Por other cases, Cent. Dig. §§ 762, 765, 766, 770; 210(1).] see Evidence, Dec. Dig.
    5. Appeal and Error <&wkey;>1002 — Review — Conflicting Evidence.
    A verdict based on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3035-3937; Dec. Dig. &wkey; 1002.]
    Appeal from Shackelford ■ County Court; J. A. King, Judge.
    Action by W. H. Pilgrim against R. H. Townsend. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Action to recover the excess paid by the plaintiff in buying cotton at Moran, Tex., under a trade arrangement or custom whereby plaintiff paid a certain price, and if, after receipt and grading, the cotton was found to be of lower grade than paid for, the difference was to be adjusted by the defendant seller refunding the difference.
    The special charge complained of was:
    “If you should find and believe from the ’evidence and a preponderance thereof that the plaintiff and defendant agreed upon a stipulated price for 85 bales of cotton, if they did do so, and that it was understood and agreed by and between the said parties that said cotton should be classed and graded at Dublin, Tex., or if you should find or believe from the evidence and a preponderance thereof that there was a usage and custom among cotton men, in contracts of the character alleged to exist by the plaintiff, to ship cotton with bill of lading attached, and that such custom, if any, was for the out turns to be made as is shown to have been made in this case, and that such usage and custom, if any, was known to the defendant, Townsend, then and in that event you are instructed that the defendant would be liable for whatever amount, if any, that was in excess of the real grade of said cotton, unless you should find and believe that there was an agreement or stipulation to the contrary made between said parties.”
    The second assignment of error was:
    “The court erred in permitting the witness W. H. Pilgrim, while on the stand testifying as a witness in his own behalf, to testify as to the grade and class of said cotton at Dublin, Tex., to the effect that he had graded and classed the cotton at Dublin, Tex., after it arrived there, and that it did not class as high grade as the grade and class given by the defendant, because it was not alleged in the petition that it was the contract in the purchase of the cotton by plaintiff that it was to be classed by plaintiff at Dublin, Tex., and that it was to be paid for by plaintiff upon a grade or class made by plaintiff at Dublin, Tex.”
    Other assignments of error referred to were:
    “The court erred in permitting the witness Lewis Moore to testify before the jury as to the grade of the cotton made by him at Dublin, Tex., from a memorandum showing the class and grade of the cotton, over the objection of the counsel for defendant made at the time of testifying; the witness stating that he had not made the memorandum and had not seen it made, but that he turned the original memorandum of the grade and class of said cotton as made by him at the time of grading the cotton to a clerk in his office, and that the copy from which he was testifying was made by the clerk, and not by the witness, and that he had no independent recollection of the grade of said cotton as made by him, except as shown by the copy of memoranda made by said clerk, and from which he testified, because the same was immaterial, and could not be used by the witness to show the grade of said cotton.”
    “The court erred in permitting the witness W. H. Pilgrim to testify that he offered the cotton back to the defendant after he had the cotton graded at Dublin, Tex., for the same price he had paid defendant for the cotton, although cotton had advanced in price in the meantime about $2.50 per bale, because the evidence offered, if true, was made after the controversy over the cotton had arisen, and was made by the plaintiff, and was self-serving,_ arid in the nature of a compromise, and was immaterial, irrelevant, and prejudicial.”
    Scott & Brelsford, of Eastland, for appellant. Walter B. Morris, of Albany, for appellee.
   CONNER, O. J.

While the record in this case is not in a wholly satisfactory condition, so that we are entirely free from doubt, yet after a consideration of the whole case we find ourselves unable to say that any such error has been committed as to require a reversal of the judgment below. The special charge complained of in the first assignment of error, in some respects, at least, seems to bo upon the weight of the evidence as urged; but as presented in the assignment the objection is limited to a specific part of the charge, to wit, to that part referring to the custom alleged, which assumes that the custom “was for the out turns to be made as is shown to have been made in this case.” This, of course, assumes that out turns had been made in this case; but so far as we are able to determine from the record there is no doubt as to this. The appellee testified without contradiction, as we understand the record, that after the classification made by him and Moore in Dublin he returned to appellant, as usual in such cases, the result of the classification; such returns, as we understand, constituting what is designated as “out turns.” We accordingly feel constrained to overrule the assignment.

We think it is to be implied from the contract, as alleged in plaintiff’s petition, that the grade and classification of the cotton should be its real or true grade and class. In order, therefore, to admit testimony of its real grade as found by appellee and Moore in Dublin, it was unnecessary that there be an allegation in the petition that the contract provided for a grading and classification in Dublin. The objection, therefore, to the testimony referred to, on' the ground that it was not alleged in the petition that the cotton was to be “paid for on the grade and class made by the pilaintiff at Dublin, Tex.,” is not maintainable, and the second assignment of error must therefore be overruled.

There is possibly some force in the objection that Moore should not have been permitted to testify from the copy of his books as to the grade and class of the 85 bales of cotton in controversy at Dublin. The testimony of the keeper of the books himself, supplemented by further testimony that the books were correctly kept, would be the best evidence; but inasmuch as appellee testified that he was present and assisted in the grading and classification of the cotton at Dublin, and inasmuch as he further qualified as an expert to give such testimony, and there was no objection to the testimony so given, and inasmuch as we do not otherwise find any dispute as to the result of the grading and classification at Dublin, we think the objection to Moore’s testimony above noted must be overruled. What we here say also sufficiently answers' appellant’s assignment of error insisting that the judgment is not supported by the evidence. And the majority, at least, have concluded that appellant’s refusal to take back the cotton sold by him at the same price he received for it, notwithstanding an advance of §2.50 per bale, was in the nature of an admission on his part that was relevant to his credibility as a witness, and as a circumstance also proper for consideration in passing upon the weight of appellant’s testimony that his grade and classification at Moran were the correct ones.

On the issue of whether the contract was for the grading and classification to be done at Moran, we think the evidence is merely of conflicting tendencies, and we do not feel authorized to disturb the verdict of the jury in a determination of the conflict.

The judgment is accordingly affirmed.
      ©mjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    TRINITY COUNTY DUMBER CO. v. CONNER.
    (No. 120.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 27, 1916.
    Rehearing Denied July 3, 1916.)
    1. Judgment <&wkey;622(l) — Judgment as Bar.
    Where a set-off is presented by defendant in his pleadings and attempted to be supported by evidence, it mil, whether allowed or disallowed, become res adjudieata.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 1130; Dec. Dig. &wkey;622(l).]
    2. Appeal and Error <&wkey;80(l) — Judgments Appealable — Judgment Which Pails to Dispose of Set-Off and Counterclaim.
    A judgment, which does not specifically dispose of a set-off and counterclaim pleaded by defendant, held a final determination of those issues as against defendant and hence appealable.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 503, 505-509; Dec. Dig. &wkey;380(l).]
    3. Parent and Child &wkey;>6 — Actions for Wages of Child.
    An action for wages earned during plaintiff’s minority cannot be maintained where the evidence shows that his mother is living, and there is no pleading or proof that plaintiff was emancipated at the time he performed such labor.
    [Ed. Note. — Eor other cases, see Parent and Child, Cent. Dig. §§ 77-85; Dec. Dig. <&wkey;>6.]
    4. Parent and Child &wkey;>5{l) — Earnings of Child.
    A widowed mother, or a mother whose husband is imprisoned or has deserted her, is entitled to the services and earnings of a minor child to the same extent as the father would be if living.
    [Ed. Note. — Eor other cases, see Parent and Child, Cent. Dig. §§ 70, 76; Dec. Dig. <&wkey;5(l).]
    Appeal from Trinity County Court; C. M. McKinnon, Judge.

      Action by Ernest Conner against the Trinity County Lumber Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    R. E. Minton, of Groveton, for appellant. A. M. Campbell and C. H. Crow, both of Groveton, for appellee. '
   BROOKE, J.

This was a suit by the ap-pellee against appellant for the conversion of the sum of $36.95 alleged to be current wages, and for $20 attorney’s fees, and $25 punitive damages. Appellant pleaded a set-off of $35.10, tendered into court $1.85, pleaded the minority of plaintiff at the time such wages were earned and that they were the property of his mother, and set up a counterclaim for $150. Appellee abandoned his claim for $25 punitive damages, and judgment was rendered in his favor for $30.05, his current wages, and $20 attorney’s fees, and no disposition was made in the final judgment of appellant’s counterclaim, set-off, or the money tendered into court.

At the outset we are confronted with a motion to dismiss this appeal for the following-reasons: (1) Because the judgment of the trial court is not a final judgment, such as can be appealed from, in that the cross-action of the appellant was not disposed of by the judgment of the trial court. (2) Because, if it shall be held that appellant’s cross-action was disposed of by judgment of the trial court, then said judgment was adverse to the appellant, and the amount in controversy, under the assignments of error as made by the appellant, is not within the jurisdiction of this court, and that this court has no jurisdiction of the matters complained of by the appellant is manifest of record.

Upon the presentation of this motion, we were very much inclined to grant same, following a long line of decisions which we believe announce the correct doctrine. Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1001; Huggins v. Reynolds, 51 Tex. Civ. App. 504, 112 S. W. 110; Lewis v. Kelley, 146 S. W. 1197; Williams v. Bell, 53 Tex. Civ. App. 474, 110 S. W. 837; Railway Co. v. Stephenson, 20 S. W. 236; Clopton v. Herring, 26 S. W. 1104; Sapp v. Anderson, 135 S. W. 1068; Hedrick v. Smith, 146 S. W. 305.

But in the case of Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, the Superme Court held as follows:

“Davies v. Thomson, 92 Tex. 391, 49 S. W. 215, was a. suit by the heirs of Thomson, deceased, against the heirs and administrator of Davies, deceased, for recovery of one-half of certain real and personal property held and controlled by Davies at the time of his death, and one-lialf of all increase and gains in said property since his death, and one-half of all money received from sales of any of said property since that time. If the allegations of the petition were true, plaintiffs were entitled to recover everything sued for by them. The jury found simply ‘for the plaintiffs in the sum of $]4,000.’ The court entered judgment accordingly. Upon appeal, this question was certified to this court: ‘Is the judgment a final judgment from which an appeal may be taken? The contention is that the verdict and judgment should have in terms made some disposition of the real estate.’ In answering said question, this court quoted approvingly the foregoing excerpt from its opinion in the Rackley Case [89 Tex. 613, 36 S. W. 77], and added: ‘The proposition there announced was directly involved in the decision of that case, and is decisive of the question certified. The judgment, in our opinion, should bo construed to mean that the plaintiffs recover of the defendants the sum of $14,000 and costs, and that they are to take nothing more either in the property claimed or in money. We answer the question in the affirmative.’
_ “The principle which controlled the last-mentioned two cases is, we think, applicable in great measure to this case. The rule is thus stated in Freeman on Judgments, § 279, and note 1: ‘There is no doubt that if a set-off is presented by defendant in his pleadings, and attempted to be supported by evidence to the jury, it will, whether allowed or disallowed, become res adjudicata. It is settled by the judgment as conclusively, when it does not appear to have been allowed, as though there w-ere an express finding against it.’ * * * Nor is it material that the evidence to support a set-off was excluded because insufficient. * * *
“We feel constrained to hold that the judgment of the trial court, although irregular and imperfect in form, is sufficient to support the appeal. However, we feel impelled to say, also, that we think that, as a matter of practice, and to avoid confusion, every final judgment should plainly, explicitly, and specifically dispose of each and every party to the cause, and of each and every issue therein presented by the pleadings.”

Therefore, on the authority of the case last cited, we overrule the motion to dismiss the appeal.

Tested by the pleadings, this case was one of conversion and for damages. The testimony; which was uncontradicted, was as follows:

“My name is Earnest Conner, and I live on Mr. ITatt’s place four miles from Groveton, in Trinity county, Tex. I was in the employ of the Trinity County Lumber Company and quit work on February 14, 1914. I had been working for it during January, and until the 14th day of February of that year. They agreed to pay me, and at the time I quit owed me $36.95, which they refused to pay me. • I made demand for my money upon Mr. Chandler, the timekeeper, Mr. Hughes, the cashier of the Trinity County Lumber Company, and Mr. Cox, who works for the company in the woods, but they refused to pay me. I then went to see Mr. Campbell. I remember the 14th day of February, because it was pay day. They did not pay me off in January. They had no pay day for me in January. I went to them and demanded my pay on the first pay day for me after I went to work in January. They had their pay days on the closest Saturday to the 15th of each month at that time. I made no demand for pay during January, except for coupons, which I drew. I drew coupons during February, also. I did not draw any money during January or February. I am 22 years old. I was 21 years old on May 2, 1914. I lived out at the Springs until the sheriff put me off; I don’t remember the day. I never did own any property, and my mother has nothing subject to execution.”

That is practically all the testimony of the plaintiff. The judgment of the court found that the plaintiff labored during the month of January and up to and including the 13th day of February, and that, for the services rendered by plaintiff, tbe defendant was indebted to plaintiff in tbe sum of $36.95. Judgment was entered, upon said testimony, that tbe plaintiff recover of defendant $36.95, tbe amount of bis current wages sued for.

By tbe first assignment of error, tbe appellant calls in question tbe action of tbe court in rendering judgment for plaintiff, because tbe undisputed evidence shows that tbe sum sued for was earned during plaintiff’s minority; that bis mother is living; and that there is neither pleading nor proof that tbe plaintiff was emancipated at tbe time be performed such labor. This assignment must be sustained.

Tbe record shows that tbe plaintiff was a minor living with bis mother, and there is not a line of testimony even intimating that be had been emancipated, or that there was any relinquishment or gift by plaintiff’s mother. It has been held that a parent is only entitled to tbe services and earnings of tbe child while tbe child is supported by him. Although tbe general principle is clear and unquestioned that tbe father is entitled to tbe services of bis minor child, and to all that such child earns by bis labor, yet it seems 'to be equally clear that, as tbe right of tbe father to tbe services of the child is founded upon bis duty to support and maintain bis child, if be should fail, neglect, or refuse to observe and perform this duty, bis right to tbe services of bis child should cease to exist; and such is held to be tbe law. As tbe father may forfeit bis right to tbe custody and control of bis child’s person by abusing his power, so, by neglecting to fulfill tbe obligations of a father, be may forfeit bis right to tbe fruit of bis child’s labor. If be provides no home for bis protection, if be neither feeds nor clothes him, nor ministers to bis wants in sickness or health, it would be a most harsh and unnatural law which authorized tbe father to appropriate to himself all tbe child’s earnings. It would be recognizing in fathers something like that pre-eminent and sovereign authority which has never been admitted by tbe jurisprudence of any civilized people, except that of ancient Rome, whose law held children to be the property of the father, and placed them in relation to him, in the category of things, instead of that of persons. Tiffany on Persons & Domestic Relations, pp. 2G1, 262.

The same authority, continuing, says:

“There is some authority to the effect that the right to a child’s services and earnings does not vest in the mother, oven where the father has deserted her and the child, or is dead; that the mother, even under such circumstances as these, is entitled only to reverence and respect, and has no authority over the child, or right to its services. This, however, is a mistake, due perhaps, to some extent, to following without reason or other authority the dictum of Blackstone and other old writers and judges to that effect, and to a failure to recognize the fact that there is no longer any such principle or doctrine as the old feudal doctrine, which, requiring, as it did the abject subjection and servitude of the wife, was unable to recognize the supremacy of the mother. By the overwhelming weight of modern authority, a widowed mother is entitled to the services and earnings of a minor cmld to the same extent as the father would be if living. - The same rule applies where a wife is deserted by her husband, or he is imprisoned, and she is left to maintain her children, for the same reason for the rule applies in both cases.” Tiffany on Persons & Domestic Relations, p. 256; 29 Cyc. 1624-25; Barrett v. Riley, 42 Ill. App. 258; Soper v. Igo, 121 Ky. 550, 89 S. W. 538, 1 L. R. A. (N. S.) 362, 123 Am. St. Rep. 212, 11 Ann. Oas. 1171; Geraghty v. New, 7 Misc. Rep. 30, 27 N. Y. Supp. 403; McGarr v. National, 24 R. I. 447, 53 Atl. 320, 60 D. R. A. 122, 96 Am. St. Rep. 749; Matthewson v. Perry, 37 Conn. 435, 9 Am. Rep. 339; Bradley v. Sattler, 156 Ill. 603, 41 N. E. 171; Hollingsworth v. Swedenborg, 49 Ind. 378, 19 Am. Rep. 687; Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101; Keller v. St. Douis. 152 Mo. 596, 54 S. W. 438, 47 L. R. A. 391; Whitehead v. St. Louis, 22 Mo. App. 60.

The record in this case with reference to maintenance is silent. The defendant pleaded and proved the minority of the plaintiff, and while we might infer from the fact that he was living with his mother, that she was maintaining him, still there is no proof directly with reference to his maintenance.

Believing that the above is sound doctrine, and from the authorities, we are constrained to hold that the assignment is well taken, and the case, therefore, will be reversed and rendered in favor of the appellant. It is so ordered.
      <§^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    BARGER et al. v. BRUBAKER et al.

    (No. 7176.)
    (Court of Civil Appeals of Texas. Galveston.
    May 9, 1916.
    On Motion for Rehearing, June 29, 1916.)
    1. Bills and Notes <&wkey;254, 408 — Liability OE INDORSER — HOW FIXED.
    An indorser’s liability on a note may be fixed by protest or by bringing suit at the first term of court to which the suit can be brought after the note becomes due or by suit at the second term of court after it becomes due, and showing why suit was not instituted at the first term.
    [Ed. Note. — For other cases, see Bills and Notes, Gent. Dig. §§ 575-580, 1019-1021, 1113-1128; Dec. Dig. &wkey;254, 408.]
    2. Bills and Notes <&wkey;254, 408 — Liability OE INDORSEE — RELEASE.
    If no such liability is so fixed, the indorser is released.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 575-5S0, 1019-1021, 1113-1128; Dec. Dig. &wkey;254, 408.]
    3. Vendos and Purcbaser &wkey;>278 — Vendor’s Liens — Statute.
    Vernon’s Sayles’ Ann. Civ. St. J914, art. 5695, providing that when the time of payment of vendor’s lien notes is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance, by the party obligated to pay such notes, and filed for record, etc., the lien shall be in force until four years after the maturity provided in such extension, and the date of maturity set forth in the deed of conveyance or the recorded extension of the same shall be conclusive as to the date of maturity, is a statute of limitations for the protection of those who may deal with lands, against undisclosed liens against them.
    [Ed; Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 776, 777; Dec. Dig. &wkey;>278.]
    4. Evidence <&wkey;445(4) — Liability oe Ind orsers — Statute.
    Notwithstanding such statute, a verbal extension of a note by the indorser while it was in his hands may be shown by the indorsee in proving his promptness in bringing suit.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2055-2057; Dec. Dig. &wkey;445(4).]
    5. Bills and Notes <&wkey;254r — Liability oe Indorser — Waiver oe Prompt Suit to Fix Liability.
    An indorser, requesting an indorsee to give the maker of notes further time, waived the bringing of any suit to fix his liability as in-dorser until after he notified indorsee that he denied liability as indorser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 575-580; Dec. Dig. &wkey; 254.]
    6. Bills and Notes &wkey;404(l) — Fixing Liability oe Indorser — Suit within Reasonable Time.
    Instruments indorsed and transferred after maturity, being in legal effect payable on demand, must be presented within a reasonable time to charge an indorser, the holder not being strictly bound by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, providing for suit at the first term of court, etc., after the maturity of the instrument, so as to fix the liability of the indorser, since the note may pass, to the holder long after its maturity date and after one term of court after maturity.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1091-1094, 1099, 1101-1103; Dec. Dig. <&wkey;>404(l).]
    7. Bills and Notes &wkey;?254, 422(1) — Liability of Indorser — Waiver of Bringing Prompt Suit.
    Where the indorser by unequivocal words or acts misleads the holder, and induces him to dispense with notice, suit, etc., required by law to fix liability of an indorser, he may be regarded as having waived his right under the law to have the note protested, suit brought,' etc.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 575-580, 1196-1199, 1203-1208; Dec. Dig. &wkey;254, 422(1).]
    8. Bills and Notes <@=j452(1) — Parol Evidence — Varying Terms oe Note Indorsement-Extent of Liability.
    An indorser cannot escape liability by showing that he had an understanding that his in-dorsement was to be without recourse on him, that he was ignorant of the legal effect of signing his name on the back of the note, and that he was told that signing his name was only a formal matter necessary to transfer.
    [Ed. Note. — IPor other cases, see Bills and Notes, Cent. Dig. § 1352; Dee. Dig. <@=3452(1).]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Edward H. Bailey against W. L. Brubaker and others. From the judgment plaintiff and defendant A. G. Barger appeal.
    Appeal of plaintiff dismissed on his motion, and judgment affirmed as to appellant Bar-ger.
    McDonald & Wayman and G. G. Dibrell, all of Galveston, for appellants. Edw. H. Bailey, of Houston, for appellees.

      Application for writ of error pending in Supreme Court.

   LANE, J.

For the purpose of this opinion the following statement is deemed sufficient:

On the 7th day of August, 1911, A. G. Bar-ger conveyed to W. L. Brubaker 22 acres of land situated near League Oity, in Galveston county. In part consideration for said land Brubaker executed and delivered to Barger his two promissory notes for $1,000 each, numbered 2 and 3, respectively, due and payable to Barger on the 7th day of August, 1913 and 1914, respectively, bearing 10 per cent, interest per annum until paid. The date of payment of note No. 2 was thereafter extended by Barger to August 7,1914, thus ■making both of said notes due August 7, 1914. Three hundred forty-eight dollars was paid by Brubaker to Barger on the principal of note No. 2, and also all the interest due on both of said notes up to August 7, 1913, was paid.

On the 6th day of November, 1914, Barger transferred and delivered both of said notes to the Raywood Canal & Milling Company of Houston, and indorsed both of them in blank by writing his name on the back of each of them. On the 10th day of November, 1914, the Raywood Canal & Milling Company transferred and delivered said notes to Edward H. Bailey, without indorsement.

Edward H. Bailey brought this suit on the 10th day of March, 1916, against W. L. Bru-baker, as maker, and A. G. Barger, original payee, and the Raywood Canal & Milling Company as indorsers, to recover the principal, interest, and attorney’s fees due upon said notes, and for a foreclosure of his lien upon the said 22 acres of land, which was retained by Barger to secure the payment of said notes, when he conveyed said land to Brubaker.

Among other things, plaintiff Bailey alleged the insolvency of Brubaker, the maker of the notes, at all times since Barger transferred and indorsed the same, and that defendant Barger did, at the time he transferred said notes, and at various and sundry times since, up to January 12, 1916, beseech and importune the transferees of said notes not to sue on said notes, but to give defendant Brubaker more time.

The Raywood Canal & Milling Company answered specially, denying that it had indorsed either of said notes, or that it was in any way liable to Bailey for their payment.

A. G. Barger, the original payee of said notes, admitted that he had signed his name on the back of said notes at the time he transferred and delivered them to said Canal & Milling Company, but says that he was ignorant of the effect of said act in so signing his name on said notes; that it was understood and agreed at the time he so signed that his transfer was to be without recourse on him, etc. He also sets up as a defense that both of said notes became and were due and payable on the 7th day of August, 1914, and that if it be held that he is an indorser of said notes, then he says that said Bailey, the transferee and holder of said notes, did not protest the same, nor did he bring suit on them at the first term of the court having jurisdiction of such suit, after the maturity thereof, nor did he bring suit thereon at the second term of said court and show good cause for not bringing said suit at said first term of court, and therefore he, Barger, is released as such indorser.

W. B. Brubaker, maker of the notes, answered by general denial.

Plaintiff Bailey, by supplemental petition, in reply to the answer of defendant Barger, demurred to so much of said answer as alleged that it was understood and agreed between Barger, and those to whom said notes were first transferred and indorsed, that his indorsement was to be without recourse, and he further specially alleged that, on or about the 1st day of August, 1914, A. G. Barger, the original payee, while still the owner and holder of said notes, entered into a verbal agreement and contract with W. E. Brubaker, the maker of said notes, to extend the time of payment of the interest due thereon to January 1, 1915, with the further agreement that if said interest was then paid he would extend the time of payment of the principal of said notes to August 7, 1915, and therefore said notes were not due until Brubaker had made default in the payment of said interest on the 1st day of January, 1915. He further says that if Barger did not in fact make such extension, he, Barger, told those to whom he transferred said notes, at the time said notes were so transferred and indorsed, that he had made such extension, and that he, Bailey, was in turn told by said transferee that such extension was made at the time he purchased said notes, and that he believed and relied on said statement and information, and that on the 5th day of January, 1915, he received a letter from said Barger, in which he told him Bailey, that such was in fact made, and that, so believing and relying he did not bring suit on said notes earlier than he did, and that such statement in said letter was a ratification by Barger of what he had been told by those from whom he purchased said notes, and that said Barger is now estopped to deny that such extension was in fact made.

The case was tried before a jury. After all parties had closed their evidence the court instructed the jury to return a verdict in favor of plaintiff E. H. Bailey against W. L. Brubaker and A. G. Barger for the sum of $2,045.18, and against all the defendants for a foreclosure of the lien on said 22 acres of land, described in plaintiff’s petition, and in favor of the Raywood Canal & Milling Company as to liability upon the notes sued upon. The verdict of the jury was in accordance with said instructions, and a judgment was rendered accordingly. Erom so much of the judgment as refused plaintiff Bailey a recovery against the Raywood Canal & Milling Company he has appealed, and from so much of said judgment as was against A. G. Barger he has appealed.

Since the record has reached this court on appeal E. H. Bailey has filed a motion, joined in by the Raywood Canal & Milling Company, praying that his appeal from that part of the judgment of the trial court in favor of the Raywood Canal & Milling Company be dismissed at his costs, which said motion is here now granted, and plaintiff’s said appeal is here dismissed.

Appellant Barger insists by his first and second assignment of error that the court erred in overruling his demurrer to so much of appellee’s petition as alleged that he, Barger, had orally extended the time of payment of said notes, because it affirmatively appears that said notes are secured by a vendor’s lien on land, and that it is provided by article 5695, Vernon’s Sayles’ Civil Statutes, that when the tin^e of payment of vendor’s lien notes is extended, such extension must be by written contract, signed and acknowledged, as provided for in the law relating to the execution of deeds of conveyance, by the party obligated to pay such notes, and filed for record, etc., and unless such .provisions are complied with, the dates of maturity of such notes as set forth in the deed of conveyance shall, in all actions on such notes, be conclusive evidence of the dates of maturity of the same.

In this state the liability of an indorser on any promissory note may be fixed by protest, or by bringing suit on such note, at the first term of the court to which such suit can be brought, after the note becomes due, or by instituting suit thereon at the second term of said court after said note becomes due and showing why such suit was not instituted at said first term. If no such liability is so fixed the indorser is released. It would therefore ordinarily become an important inquiry to the parties as to whether the note sued on was in fact past due at the time of the institution of the suit. Appellee Bailey pleaded that appellant Barger had verbally extended the time of payment of said notes, in any event, to January 1, 1915, and therefore said notes were not due until that date, and that after that date, and before any court having jurisdiction of the subject-matter had convened, Barger had requested him to refrain from suit and to give Brubaker, the maker, more time, thus attempting to show good cause why he had not sued at the first term of said court after said notes became due. The court at which suit might have been brought upon said notes, if no extension was made, and before it was brought on March 16, 1915, convened on the first Monday of October and December, 1914, and the first Monday in February, 1915. Barger owned and held said notes until he transferred them on the 5th day of November, 1914.

Appellant’s contention is that it was not admissible to show that any verbal extension of the time of payment of said notes had been made, even if true, because article 5695, Vernon’s Sayles’ Civil Statutes, in substance, provided that the date of payment of notes secured by lien upon land can only be shown by the date of maturity, as shown on the face of the note, or by a contract of extension in writing, properly signed, acknowledged, recorded, etc., and therefore appellant’s said demurrers should have been sustained. We think it was the intention of the Legislature, in enacting said article 5695, to enable those who may deal with lands in this state to determine from the date, as shown on the face of the original instrument, then under consideration, the due date of a written obligation secured by a lien on land, or to so determine from some written contract entered into between the maker and holder of such obligation, by which said due date had been extended, properly signed, acknowledged, and recorded in the deed records of the county in which said land is situated, and to provide a reliable means by which one dealing with such land may legally presume that the due date shown by such Written instrument last recorded is the true date of such ohligation. Such statute is a statute of limitation for the protection of those who may deal with lands in this state against undisclosed liens against the same. Such statute has no application to, nor in any manner affects, the fixing of liability of an indorser of a note or other written obligation, the latter being the question presented in the present case. We do not think the trial court erred in overruling appellant’s demurrers ; therefore assignments 1 and 2 are overruled. ,

By appellant’s third and fourth assignments he insists that the trial court erred in instructing the jury to return a verdict against him in favor of appellee, because the evidence adduced upon the trial raised issues of fact which should have been submitted to the jury for its determination, as follows:

First. As to whether there was a contract of extension of the notes sued on as alleged by the plaintiff.

Second. As to whether appellant, by reason of his conduct and his statements made in the letters written by him to appellee, has estopped himself from showing that there was in fact no valid agreement made by him to extend the time of payment of said notes, as alleged by the plaintiff.

Third. As to whether or not appellee Bailey was induced by said letters or other acts and conduct of appellant to.delay the bringing suit on said notes at the first term of the proper court after he, Bailey, became the owner and holder thereof, or to bring suit at the second term of said court after becoming such owner and holder.

Fourth. As to whether Bailey brought his suit on said notes at the first term after he had been informed by appellant that he repudiated his liability as indorser of said notes.

Fifth. As to whether or not the letters written by appellant to Bailey, together with other acts and conduct of appellant, induced plaintiff, Bailey, to delay the bringing of his suit until after the convening of the February term of court in 1915.

We shall not undertake to discuss and dispose of the several subdivisions of assignments 3 and 4, but will, in a general discussion, dispose of the main proposition therein presented, to wit: Did the court err in instructing a verdict in favor of appellee Bailey against appellant "Barger?

The undisputed evidence shows that W. L. Brubaker executed and delivered the notes sued on to A. 6. Barger; that one G. N. Teg-nell owned a certain tract of land near Ray-wood, in Liberty county, which one J. W. Jump, a subagent of Elmen Land Company, was endeavoring to sell to A. G. Barger. Later this land was sold to Barger through the Elmen Land Company, Tegnell taking in part consideration for the purchase price of said land the two notes in question, which were transferred and delivered to Elmen Land Company for Tegnell by Barger, and at tbe time they were so delivered, A. G. Barger indorsed them in blank by writing bis name on the back of them; that said notes were thereafter transferred and delivered by Teg-nell, or some one acting for him, to the Ray-wood Canal & Milling Company, for the purpose of having said company release some interest it had in the land sold to Barger, and Barger executed a written transfer of said notes to said company as if said notes were transferred directly,by him to said company; that appellee Bailey had nothing whatever to do with said foregoing transactions; that in about 6 or 8 days,, to wit, November 10, 1914, after said notes were transferred to said Raywood Canal & Milling Company, said company sold and delivered the same to ap-pellee Bailey; that when said notes were sold to Bailey he was told by Mr. Tegnell, a member of the Elmen Land Company, who negotiated the sale, that the time of payment of the notes was extended. He was sent by Tegnell to J. W. Jump at League City, who was to show him the land sold by Barger to'Brubaker, and for which said notes were given in part payment. Jump, as the agent of Tegnell, told Bailey before he bought the notes that Barger had told him, Jump, that he, Barger, had extended the date of payment of the interest due on the notes to January, 1, 1915, and had extended the principal to August 7, 1915; that Tegnell, who sold the notes to Bailey, did not tell him that the Raywood Canal & Milling Company owned or had anything to do with the notes, nor did Bailey have any knowledge of such fact until the deal was closed. On the 2d day of January, 1915, after Bailey bought the notes and they had been transferred to him, he wrote appellant A. G. Barger the following letter:

“Houston, Texas, January 2, 1915.
“Mr. A. G. Barger, League City, Texas— Dear Sir: Some time ago I purchased from Raywood Canal & Milling Company the remaining notes, two and three, executed by Wm. L. Brubaker to you, the balance of the principal due thereon amounting to $1,015.49, and at once wrote Mi'. Brubaker that I had purchased those notes and that according to his agreement with you the interest would be due, amounting to $186.10, on January 1, 1915. Mr. Brubaker has never replied to my letter, and to-day I wrote him that unless this interest is paid at once I will declare the notes due and sue and foreclose the vendor’s lien against the property. As you are liable on these notes and will have to pay any balance which the property may not bring at forced sale, I thought you might wish to take the matter up with Brubaker and see if he intends to pay the interest. I was told when I purchased these notes that you had agreed with him to extend the time of the payment of interest to January 1, 1915, and the time of payment of the principal to August 7, 1915. I would be obliged if you would write me whether this is correct or not. Unless this interest is settled at once I will be compelled to file suit against Mr. Brubaker and yourself. Hoping .to hear from you by return mail, X remain,
“Yours very truly, Edward H. Bailey.”
To this letter Barger replied as follows:
“League City, Tex. 1 — 5—15.
“Mr. Edward H. Bailey. Houston, Texas-Dear Sir: I rec. your letter this A. M. The statements you make in regard to W. L. .Bru-baker notes are O. K. and I am writing him in regard to same. If I don’t hear from him I am going to Galveston next Monday & will do all I can to get him to do what is right. He is unfortunate in being deaf & it is hard to get him to realize what he is up against, however I think I can make it clear to him. Thanking you for your kindness, I am, A. G. Barger.”
On the 12th day of January, 1915, Barger wrote Bailey the following letter:
“League City, Tex. 1 — 12—15.
“Mr. Edward IT. Bailey — Dear Sir: I went to Galveston yesterday, & I seen Mr. Brubaker and explained the business to him as best I could. He tells me that he has an appointment with a man Wednesday that he thinks he will be able to close a deal right away, & he is willing to sacrifice all of his interest to satisfy those notes. I wish you could be easy a little longer & he will do all he cah to meet it. I am personally acquainted with the man he is dealing with & he is well fixed financially. I am going down again tomorrow & will see them again & let you know.
“Very truly, A. G. Barger.”

On the 20th or 21st day of January, 1915, Bailey received a letter from Barger in which he denied any liability as indorser, saying that he had not given Brubaker any’ extension of the date of payment of either the principal or interest due on the notes, and insisted that as no suit had been brought on said notes he, Barger, was no longer liable as indorser. On the 27th day of January, 1915, Barger wrote Bailey as follows:

“League City, Texas 1 — 27—15.
“Mr. Edward Bailey, Houston, Texas — Dear Sir: Received your letter yesterday & wrote Mr. Brubaker in regard to it and asked him to let us know at once what progress he is making with his sale. We will likely hear from him in a day or so, could be very glad if he can make the deal. Very truly, A. G. Barger.”

The first term of the court, after the letters of January 12, 1915, and January 21, 1915, were written, convened on the first Monday in February, 1915, 11 days after Bailey was notified by Barger that he denied liability as indorser. Bailey lived at Houston, Barger at League City, and Brubaker at Galveston. Bailey filed his spit upon the notes on the 16th day of March, 1915.

Appellant Barger testified that he had agreed with Brubaker to extend the time of payment of the interest due on said notes to Christmas, 1914, and that if such interest was then paid he would extend the principal to August 7, 1915; provided he, Barger, continued to own the notes.

J. H. Ross, a witness for appellant Barger, a lawyer of League City, testified that he heard the agreement wtih reference to extension of notes and interest thereon, made between Barger and Brubaker, and that said agreement was that as stated by Barger.

C. A. Elmen, of the firm of Elmen Land Company, who was the active agent in the purchase of the notes from Barger, testified that before and at the time Barger transferred the notes, he, Barger, said to him, El-men—

“that he sure did not want us (meaning Elmen Band Company) to take advantage of Brubaker, but wanted us to grant him the extension he had already given.”

J. W. Jump, who was active in an effort to have Barger transfer said notes, testified that Barger went to Houston to talk about his trade with Elmen Land Company three times; that he hesitated about making the transfer of the notes to Elmen Land Company for Tegnell, and said to him that they might transfer the notes to some one else and that he, Barger, did not want any advantage taken of the old man (Brubaker); that he had promised the old man to give him an extension, and that he wanted him to have it, and had Elmen to agree to give the old man more time before he would agree to make the transfer; that he told Bailey what Barger had said before Bailey purchased the notes.

The testimony of Elmen and Jump, as above stated, stands undisputed, except that appellant Barger says he qualified the alleged extension with the condition “that if he continued to own the notes to the time stated, he would grant the extension.”

If it be conceded that, to support the judgment rendered, it was necessary that the evidence conclusively show that the extension of the time of payment of the notes and interest due thereon, as alleged by ap-pellee Bailey, was in fact made, we would hold that the trial court committed reversible error in not submitting that question to the jury for its determination, as there was sufficient evidence to require the submission of such question, unless the same became immaterial and unimportant by reason of other facts shown by the undisputed evidence to exist. However, if it be conceded that no such extension as alleged by appellee Bailey was given, and that said notes were past due at the time appellant Barger transferred them, and at the time Bailey became the owner, and that Bailey did not fix the liability of the indorser (Barger) by protest or proper suit, nevertheless it is, we think, conclusively shown that appellant Barger, the indorser, was the owner of said notes from the 7th day of August, 1914, the date on which he insists they became, due, that before he transferred and indorsed said past-due notes, the October term of the court at which suit might have been brought on the notes had convened, and no suit had been brought on said notes; that appellant transferred said notes to Elmen Land Company, for the benefit of Tegnell, on or about the 5th day of November, 1914, and that at the time of said transfer and indorsement, he, Barger, requested the transferee to give the .maker of the notes further time in which to pay same; that when the notes were transferred to appellee Bailey, he was told by Elmen and Jump of such request; that on January 2, 1915, appellee Bailey wrote to appellant that he had been so told, and on the 5th day of January, 1915, appellant, in reply to Bailey’s letter, wrote him that the information given him was correct; that on the 12th day of January, 1915, appellant Barger wrote to appellee Bailey, asking him to give the maker of the notes further time; that not until January 21, 1915, did Barger ever insist that he could not be held as indorser because his liability had not been fixed as provided by law; that after Bailey was so informed he had only one day to prepare and file his suit so as to get service at the February term of court, and that it was impossible for him to bring his suit and get service on all the defendants so as to take judgment at said term of court, and that ap-pellee did bring his suit at the next term thereafter.

From the facts stated we conclude:

First. That as appellant was the owner of the notes in question long after they became due, and although he had an opportunity to do so, he had brought no suit to collect the sum due on the notes, the transferee of the same was not required to exercise that degree of diligence in fixing the liability of the indorser which he would have been required to exercise if said notes had been transferred to him before maturity, but should be required to exercise such reasonable diligence only as was apparently necessary, under all the facts and circumstances of the case, to protect the indorser from loss by delay in bringing suit, and that appellee did exercise such diligence.

Second. That appellee Bailey did show good cause why he did not bring his suit at the December term, 1914, or at the February term, 1915, of said court.

Third. That appellant, by his request to appellee Bailey and others to give the maker of said notes further time, waived the bringing of any suit to fix his liability as indorser until after he notified appellant that he denied his liability as such indorser, and therefore the court did not err in instructing a verdict against appellant as indorser. Holliman v. Karger, 30 Tex. Civ. App. 558, 71 S. W. 299; Chadwick & Co. v. Jeffers, 1 Rich. Law (S. C.) 397, 44 Am. Dec. 260; Wickersham v. Altom, 77 Ill. 620; Brown v. Robbins, 1 Ind. 82; Lowther v. Share, 44 Ind. 390 ; Free v. Kierstead, 16 Ind. 91.

We are so forcibly impressed with the reasoning of the court in the case of Chadwick & Co. v. Jeffers, supra, as applicable to the propositions under discussion, we have adopted the same in this case, as follows:

“The distinction between the case of a note indorsed after it is due, and of one indorsed before it is due, with respect to the diligence required in making demand and giving notice, is very obvious. When a note is indorsed after it is due, no time for payment is prescribed. The reasonable expectation of the holder that it will be paid when due has been already disappointed, and he has had the opportunity o| using such extraordinary diligence as might he necessary, if it could avail to protect himself against the failure of the maker to pay. The note has lost credit before the holder parts with it,. and is unaccompanied by any engagement of the maker, respecting the time of payment, so that punctuality is out of the question. But a note indorsed before it is due, unless payable on demand, has a prescribed time for payment, at which it is the duty of the indorsee to demand, and of the maker to pay, the sum stipulated. The indorser may reasonably expect that it will be promptly paid when due, and may require the indorsee to demand payment at that time, and not subject him to the risk of loss that might follow on delay. If not paid when due, the in-dorser may also require the earliest reasonable notice of the failure of the maker. If the in-dorsee neglects to demand payment at the proper time, and to give notice to the indorser of nonpayment, be may justly resist liability for the loss when the indorsee has neglected to do what was important to his security.
“All the rules of diligence applicable to negotiable instruments are designed for the security of the parties secondarily liable, and when demand or notice is not necessary for their protection, it is dispensed with. * * * The same principle would dispense with notice of nonpayment to the indorser of a note past due. To visit on the indorsee in such case, a loss which may be presumed to arise from want of punctuality in making demand and giving notice of nonpayment of a note not payable at any specified time, and as to which the debtor had made default, while the note was in the hands of the indorser, on the presumption of an injury to the indorser, by depriving him of the advantage of taking prompt measures for recovery against the maker, which, while the note was in his possession, he had wholly neglected to pursue or had pursued ineffectually, would be, -on a presumption against the fact, to substitute the in-dorsee to a loss justly chargeable to the indorser.
“The earlier decisions in our courts have not been very consistent, but the more recent cases have maintained that the rules of diligence respecting demand and refusal which are applicable to negotiable instruments transferred before they are due do not apply to transfers after they are due. Though demand and notice are not dispensed with, yet the duty of the holder, in these particulars, is limited to the use of such diligence, according to the circumstances of the case, that the indorsor suffer no injury through his remissness or neglect.”

Instruments indorsed, and transferred after maturity, being in legal effect payable on demand, must be presented within a reasonable time. Under such circumstances the holder cannot be strictly bound by the provisions of article 570, Vernon’s Sayles’ Statutes, which provide for suit at the first term of the court, etc., after the maturity of the instrument, so as to fix the liability of the indorser, for the reason that the note may pass, and in this case it did pass, to the holder long after its date of maturity and after one term of the court had passed, after such maturity.

Where the indorser by unequivocal words or acts misleads the holder, and induces him to dispense with notice, suit, etc., required by law to fix liability of an in-dorser, he may be regarded as having waived his right under the law to have the note protested, suit brought, etc. Ruling Case Law, § 409, pp. 1187, 1188. In Lowther v. Share, supra, the court said:

“All the questions raised in the case resolve themselves into the question whether, under the circumstances, the appellant is liable to the ap-pellee on the indorsement. We think, assuming that the delay to prosecute the maker was at the instance of the defendant, * * * the defendant is clearly liable to the plaintiff on the indorsement.”
In Brown v. Robbins, supra, it is said:
“We think, on this evidence, the plaintiff had a right to recover. It appears by the evidence that, at the.time of the assignment, the defendant did not think the maker of the note able to pay it, and did not wish that strict legal diligence should be used by the plaintiff to collect the note from the maker. The defendant told the plaintiff, at the time of the assignment, that the maker was an honest man; that he was under the weather, and to wait awhile and he would get his money.”

We have reached the conclusion that from the simple, clear, and undisputed facts of this case no other judgment than the one rendered by the trial court could have been rendered, and it follows that we do not think that the court erred in instructing the jury to find for appellee against appellant, and therefore we overrule assignments three and four.

By appellant’s fifth assignment it is insisted that the court erred in sustaining plaintiff’s special exception to so much of appellant’s first amended answer as alleges that it was the understanding between him and those acting for his transferee that his in-dorsement was to be without recourse on him, and that he was ignorant of the legal effect of his signing his name on the back of the note transferred, and that he was told by those representing the transferee that his signing his name on the back of said notes was only a formal- matter, and was necessary to make a proper transfer, and that, relying- on such representations, he so signed his name, believing that he was transferring said notes without recourse on himself. In Wizig v. Beisert, 120 S. W. 954, it was held that the statement of an attorney for the in-dorsee of a note that the indorser of a note would not be bound thereby is only the expression of an opinion as to the legal effect of the indorsement, and not the mistatement of a fact entitling the indorser to avoid liability of his obligation, on the grounds of fraudulent representations; that a verbal agreement between the indorser and indorsee of a note that the former will not be bound by his indorsement is no defense to an action thereon, for the reason that evidence thereof cannot be offered to defeat the action. This proposition is also supported by the cases of Cresap v. Manor, 63 Tex. 485-488, and Dwiggins v. Merchants’ National Bank, 27 S. W. 171. The fifth assignment is overruled.

As we find no error in the trial of this cause, the judgment rendered in the trial court'is affirmed.

Affirmed.

On Motion for Rehearing.

In the original opinion filed in this court on the 9th day of May, 1916, we stated:

“That as appellant was the owner of the notes in question long after they became due, and although he had an opportunity to do so, he had brought no suit to collect the sum due on the notes, the transferee of the same was not required to exercise that degree of diligence in fixing the liability of the indorser which he would have been required to exercise if said notes had been transferred to him before maturity, but should be required to exercise such reasonable diligence only as was_ apparently necessary, under all the facts and circumstances of the case, to protect the indorser from loss by delay in bringing suit, and that appellee did exercise such diligence”

—and in support of such statement we quoted with approval a portion of the opinion in the case of Chadwick v. Jeffers, 1 Rich. Law (S. C.) 397, 44 Am. Dec. 200. Upon further consideration, on motion for rehearing, we have concluded that such statement, and the rule quoted from Chadwick v. Jeffers, supra, is not the law of this state as' made by our statutes or by the decisions of our courts. We therefore recede from such holding.

But as we still think the judgment of the trial court was properly affirmed for the other reasons given in our opinion, the motion for rehearing is overruled.
      <®=5jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes