author: PRENDBRGAST, J. HARPER, J.

text:
    POULTER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 28, 1913.)
    1. Criminal Law (§ 1091) — Apueaj>-Bill or Exceptions— Sufficiency.
    A bill of exceptions complaining of the overruling of accused’s challenge to a juror presents no error, where it was not shown that this juror served, or any other objectionable juror served.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2S24. 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Perjury (§ 32) — Prosecutions—Evidence —Admissibility.
    In a prosecution for perjury based on accused’s false testimony that he was an infant when he incurred the obligation sued on, evidence that, in the action in which the testimony was given, he was asked if he had not stated to the clerk, when he applied for a marriage license some time before, that he was more than 21 years of age, is admissible.
    [Ed. Note. — For other cases, see Cent. Dig. §§ 108-116; Dec. Dig. § 32. Perjury, 1
    3. Witnesses (§ 251) — Knowledge — Reasons.
    In a prosecution for perjury based on false testimony by accused that he was an infant when he contracted the liability sued on, testimony by a witness that he filed a suit for accused’s mother for divorce is admissible when limited only to fix the date of his first acquaintance with accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 865; Dec. Dig. § 251.]
    4. Criminal Law (§ 454) — Evidence—Opinion Evidence.
    Where it was claimed that accused falsely testified as to his age, testimony by witnesses as to their opinion of the age of accused is admissible when based on their acquaintance with him, and his size, weight, and appearance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1043%; Dec. Dig. § 454.]
    5., Perjury (§ 32) — Prosecution—Evidence —Admissibility.
    In a prosecution for perjury based on false testimony by accused that he was an infant when he incurred an indebtedness to plaintiff, the charter and amendments of the .plaintiff corporation in the former action are admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    6. Criminal Law (§ 406) — Evidence — Admissions — Age.
    In a prosecution for perjury based on false testimony by accused that he was an infant when he incurred the liability sued on, evidence of conversations between accused and the road overseers, in which accused admitted that he had reached his majority before the time such debt was incurred, is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, S94r-917, 920-927; Dec. Dig. § 406.]
    7. Criminal Law (g 1091) — Appeal—Bill op Exceptions.
    A bill of exceptions reciting that in a prosecution for perjury based on false testimony by accused that he was an infant, a witness for the state testified that in a certain year he was thrown in company with accused, and that his residence was in the jail in Wise county, presents no error, where it showed that the court charged the jury to disregard testimony that accused was in the jail with the witness, and the witness was only allowed to testify'as to the length of his acquaintance with accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]
    8. Criminal Law (§ 1091) — Appeal — Bill oe Exceptions.
    A bill of exceptions reciting that one of accused’s witnesses was asked on cross-examination if he had not been indicted for murder, and when, presents no error when taken by itself, not showing that such evidence was not admissible for impeachment, and it appearing from the record that the witness in question was one of accused’s attorneys, and that he stated he did not object to going into the details of the whole transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2S18, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. ( 1091.]
    9. Perjury (§ 6) — Offenses— Administration of Oath.
    Under Pen. Code 1911, arts. 304, 308, respectively, providing that perjury is a false statement, written or verbal, relating to something under the sanction of an oath¡ where such oath is legally administered under circumstances in which it is required by law, or is necessary for the protection or defense of any private right, and that all oaths or affirmations legally taken in any stage of a judicial proceeding are included in the description of this offense, false testimony by accused upon the trial of an action in justice court that he was an infant at the time he incurred certain obligations constitutes perjury, though the cause was continued upon the claim of plaintiff that it was surprised by such testimony.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 7-17; Dec. Dig. § 6.]
    10. Perjury (§ 29) — Prosecution — Variance.
    Although an indictment for perjury charged that a material issue in an action in justice court against accused was whether he was a minor at the time he incurred certain obligations, and that upon that issue accused falsely testified, and the proof showed that upon accused’s testimony of his minority plaintiff made a claim of surprise, and the cause was continued, there is no fatal variance, a variance being a disagreement between, the allegations and proof in some matter which in point of law is essential, and it being immaterial in this prosecution whether the cause in the justice court proceeded to final judgment or was continued.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.*]
    11. Criminal Law (§ 1172*) — Prosecution-Instruction.
    In a prosecution for perjury, charges requiring the jury to find, beyond a reasonable doubt, that issue was joined between accused and plaintiff in an action in justice court, and that while it was pending accused gave the testimony upon which perjury was assigned, coupled with other charges, stating the averments of the indictment, and requiring a finding that they were true in order to convict, and that if, when accused testified in the justice court, the question was whether a continuance should be granted, and he was interrogated by counsel in order that the latter might determine if he would ask for a postponement, then accused should be acquitted, are more favorable to accused than he is entitled.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3128, 3164-3157, 3159-3163, 3169; Dee. Dig. § 1172.]
    Appeal from District Court, Parker County; D. M. Alexander, Special Judge.
    Ed Poulter was convicted of perjury, and he appeals.
    Affirmed.
    John L. Poulter, Mike B. Smith, and Leonard M. Levy, all of Ft Worth, for appellant G. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDBRGAST, J.

Appellant was convicted of perjury, and his penalty fixed at the lowest prescribed by law, two years in the penitentiary.

Appellant made no motion to quash the indictment on any ground. In his motion for new trial he complains of the indictment in some particulars. The indictment is in accordance with the approved form therefor, and it fully complies with the statutes prescribing the offense (P. C. arts. 304-308, inclusive) and with the statutes prescribing the requisites of an indictment for such offense (articles 451, 465, 453, 460, C. C. P.).

Appellant has some 14 bills of exception. It is not necessary to take up each separately, as some of them relate to the same character of matter. One is to the overruling by the court of his challenge of a juror. The bill in no way shows that this juror served, or that any other objectionable juror served. The bill presents no error. Oates v. State, 149 S. W. 1194, and cases there cited.

The testimony of some of the state’s witnesses, objected to by appellant, was to the effect that the appellant, in the justice court case wherein he is charged with having sworn falsely to his age, and that he was at the same time, when examined, asked in the justice court case if he had not in substance stated to the clerk, when he applied for license to marry some time before then, that he was then more than 21 years of age. This testimony, under this case, was clearly admissible.

Neither is any error shown .by his bill complaining that the state’s witness Shropshire, in order to fix the date of his first acquaintance with appellant, fixed it by stating the date he filed a suit for his mother for divorce. The court specifically limited such evidence for the purpose of the witness fixing the date. Bice v. State, 37 Tex. Cr. R. 41-42, 38 S. W. 803.

Neither does any of his bills objecting to the various witnesses testifying their opinion as to the age of the appellant, they showing fully their acquaintance with the appellant, and his size, weight, appearance, etc. Earl v. State, 44 Tex. Cr. R. 467, 72 S. W. 175; Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; Jones v. State, 32 Tex. Cr. R. 108, 22 S. W. 149; Garner v. State, 28 Tex. App. 561, 13 S. W. 1004; Earl v. State, 66 S. W. 839; Railroad v. Bowles, 32 Tex. Civ. App. 118, 72 S. W. 451; Donley v. State, 44 Tex. Cr. R. 428, 71 S. W. 958.

Neither does his bill complaining that the court admitted the charter and amendment thereto of the Lowe-Carter Hardware Company, which was the plaintiff in the original justice court case, wherein appellant is charged to have sworn falsely.

Neither did the court err in permitting the road overseers to testify that they had summoned appellant to work on the roads— one in 1905 and 1906, at which respective times he stated to the overseer that he was 18 years of age in 1905, and that he was 19 in 1906. To the other overseer, who summoned him for the year 1910, that he then worked the road, and when told by said overseer that he had failed to find him, to notify him to work the road in 1911, he stated he was glad he was not there, and that he beat him out of that much. All this was admissible as tending to show his age, which was a material question in the case.

The ninth bill is as follows: “Be it remembered that upon the trial of the above-styled and numbered cause Tom F. McClure, a witness for the state, testified, in part, as follows: ‘In 1901 I was thrown in company with the defendant Ed Poulter for some time — several days or weeks possibly. I was then living in Decatur, Wise county, Texas. My residence was in the jail in Decatur, Wise county.’ Witness was then asked by state’s counsel: ‘State whether or not the defendant, during this time you associated with him, was in jail with you?’ The witness answered: ‘He was.’ Defendant’s Counsel: I object to that —to the question and answer. I except to the question, and reserve a bill to the statement of counsel. The Court: I sustain the objection to that. Gentlemen of the jury, you will not regard this last question and answer for any purpose; will not consider it. Q. Now about how long was it — was he there, or with you there, in town, in'Wise county, in Decatur, that you knew him or saw him? A. Why, it was several days, and of course I cannot recall now how many weeks it was —how long he was there with me. Defendant’s Counsel: I object to the question and answer and except to it — to evidence along that line hereafter. The Court: I think the witness could testify as to his acquaintance with him; how long he knew him. Defendant’s Counsel: I do not object to that. The Court: I sustain the objection to the question asked. Gentlemen, you will not regard that last question and answer, nor consider it in this ease for any purpose. Q. About how often, during these occurrences or incidents that you speak of, in 1901, how often did you see him? Defendant’s Counsel: I object to that and except to the question, because the court has held that occurrence is inadmissible. They have already stated what the occurrence was; immaterial and prejudicial. The Court: You can ask him how long he knew him. The defendant now presents this bill of the exceptions above, stated, and asks that it be approved and made of record in this case, and it is done.” This in no way shows how appellant was injured, or could have been injured, thereby. Sweeney v. State, 146 S. W. 883.

The only other bill is in full thus: “Be it remembered that, upon the trial of the above styled and numbered cause, John L. Poulter was called, and testified as a witness for the defendant, and on cross-examination was asked if he had not been indicted for murder in Wise county, and answered that he had, about ten years ago, and was never tried for it. Q. Defendant’s Counsel: For the murder of your uncle? A. Yes. Defendant’s Counsel: We object, and take a bill of exception to the question and answer. And the defendant here tenders this bill, and asks that it be approved and made of record in this case, and it is done. Witness: I do ndt object to going into the details of the whole transaction. State’s Counsel: When was that? A. Ten years ago — something like that. Defendant’s Counsel: The objection is because it is irrelevant and immaterial; not admissible; too remote; sheds no light upon the issue in this case; not admissible for impeachment. The court overruled the objection, and to such ruling and action of the court the defendant then and there excepted, and here now tenders this his bill, and asks that the same be approved and made of record in this case, which is done.”

This bill, under all the rulings of this court, is too general to authorize or require this court to review the question. It does not state the status of the case so that we can tell whether any error was committed or not, nor does it even tell what the testimony of this witness was, so as to show whether it could have possibly affected even his testimony. If we could look to the record for all the facts, it would show that this witness was one of appellant’s attorneys in this case, and at the time he testified, it will be seen by the bill itself, he stated that he did not object to going into the details of the whole transaction. Nor does the bill show any such state of facts as to show that this evidence was inadmissible. That the bill is wholly insufficient under the rules of this court, see Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112, and cases there cited. Neither does the bill show any such state of facts as to show that this evidence is not admissible for impeachment purposes. For aught that the bill shows, it may have been clearly admissible. Ortiz v. State, 151 S. W. 1058; Oates v. State, 149 S. W. 1196; and see cases cited by Mr. Branch in his Criminal Daws of Texas, p. 551.

The appellant contends that the evidence is wholly insufficient to sustain the conviction, and that the court erred in refusing to give his peremptory charge to findi him not guilty. The indictment charges to this effect, and the evidence was amply sufficient to sustain it: That shortly prior to December 26, 1911, Lowe & Co., a corporation, sued the appellant and one John Baker in the justice court in precinct No. 1 of Parker county, Texas, on two promissory notes executed by appellant, one for $80 and the other for $40, each providing for interest and attorney’s fees, and to foreclose two mortgages on personal property to secure the payment of said two notes respectively, executed by appellant to said Lowe & Co.; that on December 26, 1911, the case came on for trial regularly, at a regular term of said court, before said justice of the peace; that issue was duly joined between them, the plaintiff in that case seeking a judgment against appellant on said two notes and a foreclosure of said mortgage liens; that appellant in that case filed his answer therein, alleging as a defense that he was then and there under 21 years of age, and was, at the several times of the making of the said notes and mortgages, 19 years of age; that the said court had jurisdiction, and after the' said issues had been duly joined between the parties the case came on to be tried, and that appellant appeared and testified as a witness, after being then and there duly sworn by said justice as authorized and required by law and was necessary; that in said trial of the issues so joined between the parties it was a material question whether appellant was under the age of 21 years at the time of the filing of his said answer, and whether he was under 21 years of age at the time he made, signed, and executed said notes and mortgages, and whether or not he was only 19 years of age at the time he made, signed, and executed said notes and mortgages; and that, after being so sworn on the trial of said issue, he did falsely, willfully, and deliberately, before said justice court, swear that he was 19 years of age at the time he was so testifying, andi was 19 years old on March 23,1911, meaning thereby that he was only. 19 years old on March 23, 1911, which said statements were material to the issue in said cause. The indictment then charges,, traversing the truth of the said testimony of appellant on all these issues, and alleges that he was more than 21 years of age at the time he signed and executed said notes and mortgages, and that his said testimony was deliberately and willfully made, and deliberately and. willfully false, which he well knew. The testimony also shows, that the case was regularly reached for trial; that both sides announced ready; that each side stated its pleadings; that the plaintiff in that ease then had appellant duly sworn; that he then testified that he was not 21 years of age; that he was only 19 years of age; and that he was only 19 years of age when he signed said, notes and mortgages, and was 19 years of age on March 23, 1911, and that he was not older than that. Thereupon the plaintiff in that case claimed that it was surprised at said testimony and said plea of minority, and asked the court to permit him to withdraw his announcement of ready, and to postpone the trial of the cause for a few days so that he could meet that issue and the testimony just given by appellant; that appellant opposed this, and insisted that the trial proceed, but that if it could not be then tried that it be continued until the next term of court, and the court took this action—continued the case until the next term.

The appellant’s contention is that this was not a trial, and that there was a fatal variance between the allegations of the indictment and the evidence. Our statute prescribes (article 304 P. O.) that perjury is a false statement, either written or verbal, deliberately and willfully made relating to something past or present, under the sanction of an oath, where such oath is legally under circumstances in which an oath is required or is necessary for the prosecution or defense of any private right. And article 308 is that all oaths legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court, are included in the description of this offense. We think that clearly, in contemplation of this law, what occurred and is alleged and shown in this case was in truth and in fact a trial of the issue-joined, which was whether or not appellant was a minor at the time of said trial, and when he signed said notes and mortgages, and the court did not err in refusing to peremptorily charge the jury to find for the appellant.

There was no fatal variance between the allegations of the material facts and issues in controversy and the proof. As stated by this court, in Smith v. State, 7 Tex. App. 385: “Variance is ‘a disagreement between the allegation and the proof, in some matter which, in point of law, is essential to the charge or claim.’ 1 Greenl. on Ev. § 63; 1 Bishop’s Cr. Proc. § 485. And ‘matter which is merely useless never vitiates.’ State v. Elliott, 14 Tex. 426; Warrington v. State, 1 Tex. App. 168.” Again, this court in Werbiski v. State, 20 Tex. App. 132, said: “To constitute a fatal variance, there' must be a material misdescription in the pleadings of the cause of action, such as is calculated to mislead or surprise the adverse party. McClelland v. Smith, 3 Tex. 210; Warrington v. State, 1 Tex. App. 168.” 39 Cyc. 1122, defines variance as: “A disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge or claim; a substantial departure from the issue- in the evidence adduced; an essential difference between the pleadings and the proof.” In Skinner v. Grant, 12 Vt. 462, it is said: “Variance” means “material difference.” It is no variance that the proof does not show all the points in a declaration.

As stated above, the indictment in this ease charged that a material issue in the justice court was whether or not appellant was at the time a minor, and that he was only 19 years old at the time of said trial, and at the time he signed said notes and mortgages; that that issue had been joined in said suit, and that that issue was then being tried. It was not essential, under the allegations in this case, that the cause or issue then being tried should proceed to a final judgment and a final, adjudication on the whole merits of the whole case. That the evidence establishes that said issue had been joined between said parties and that it was material, and the proof showed that that issue was being tried and that appellant gave material false testimony therein, we think is abundantly established.

The court, in every way, by the charge covered this point completely and fully; first in the main charge, in requiring the jury to find as an affirmative fact, beyond a reasonable doubt, that, in said justice court cause, issue was duly joined between the plaintiff and the defendants therein, and that said cause came on to be tried, and was then and there being tried, before said court on said issue, before they could convict. Then, in another separate paragraph entirely, the court charged that the indictment alleged that at the time appellant gave the testimony upon which perjury is assigned said cause was pending in said justice court, and was at the time being tried by the presiding justice thereof, and that unless the jury believed from the evidence, beyond a reasonable doubt, that said cause was being tried, or if they had a reasonable doubt thereof, to acquit appellant. Still, in addition to this, the court gave appellant’s special charge No. 6, wherein it is again recited what said indictment charges on this point, stating what the indictment did so charge, and told the jury: “Xou are instructed in this connection that, unless you believe beyond a reasonable doubt all of the foregoing allegations to be true, it will' be your duty to acquit defendant.” And still further gave another special charge of appellant on this subject: “If you find and believe from the evidence that, at the time Ed Poulter testified in the justice court, the court was engaged in determining whether or not a continuance of the ease should he granted, or if the said Poulter was then being interrogated by said Shropshire, in order that the said Shropshire might decide whether he would ask for a postponement of the case, then you will acquit the defendant.” All these charges charged the law as favorably, if not much more favorably, to appellant than should have been charged.

The court, in the sixth paragraph of his charge did tell the jury correctly what were the material allegations in the indictment upon which perjury was based, following the indictment on that subject, and appellant’s complaint that he ought not so to have charged cannot be sustained. Nor can appellant’s complaint in his ninth ground of his motion for new trial be sustained, wherein the court submitted to the jury the question as to whether or not appellant swore in the trial in the justice court that he was 19 years old on March 23, 1911 (meaning thereby that he was only 19 years old on March 23, 1911). The charge in this respect followed substantially, if not literally, the allegations of the indictment and of the proof thereon. The charge on all of the material issues in this and in every other respect followed substantially, if not literally, the allegations in the indictment and the proof thereon submitted. We think it is unnecessary to take up in detail each of appellant’s complaints of the charge of the court. What we have said applies to the whole of them without this.

The evidence was abundantly sufficient to sustain, and did sustain, every material allegation in the indictment, and was amply sufficient to show that appellant, at the time he swore in the justice court that he was then only 19 years of age, was in fact, at least, 25 or 26 years of age, and that he knew that he was testifying falsely at the time he testified that he was only 19 years of age.

We have carefully considered all of appellant’s assignments of error, and none of them present any reversible error. The judgment will be affirmed.

HARPER, J.

In agreeing to the affirmance of this case, I do not agree that no error is presented in the bill in regard to the cross-examination of the witness John Poulter; but inasmuch as he was an attorney in the case, and did not insist on the objection, and was permitted to explain the entire transaction in a way that would perhaps not prejudice the jury against him, it may not present such error as would call for a reversal, especially as it was waived by appellant. However, I think the charge of murder too remote, and it was not permissible 'to show whom he had killed, nor were the details of that transaction admissible in evidence.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    JAFFRAY REALTY CO. v. SOLOMON’S ESTATE.
    (Court of Civil Appeals of Texas. Austin.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Limitation op Actions (§ 84) — Suspension op Limitation — Residence Beyond State.
    When a defendant resides out of the state at the time a cause of action arises, such absence will not interrupt the running of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 439-448; Dec. Dig. § 84.]
    2. Limitation op Actions (§ 84) — Absence from State — Suspension — Cause op Action-Accrual — Action on Judgment.
    Since no action accrues to revive a judgment until it has become dormant, where the judgment debtor at that time had left the state and was residing in New York, his absence did not suspend the running of limitations, so that, where limitations had run against the action to revive at the time the judgment creditor sued for administration of his estate in Texas, the proceeding was barred.
    TEd. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 439 — 448; Dec. Dig. § 84.]
    Appeal from District Court, McLennan County; Marshall Surratt, Judge.
    Proceeding by the Jaffray Realty Company for foreign probate of the will of Joseph A. Solomon, deceased. From a decree denying the petition, plaintiff appeals.
    Affirmed.
    H. C. Lindsey, of Waco, for appellant. D. A. Kelley, of Waco, for appellee.

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

   KEY, C. J.

In 1911 appellant, claiming to be a creditor, filed an application in the county court seeking to have the will of Jos. A. Solomon, deceased, probated and administration opened upon his estate. That court refused to probate the will, and the matter was carried by appeal to the district court, where judgment was again rendered refusing to probate the will, and an appeal has been prosecuted to this court. The learned district judge filed the following conclusions of fact and law:

“Findings of Fact.
“In this case plaintiffs are seeking to probate the will of Joseph A. Solomon and have letters of administration issued upon his estate in this county. Solomon at the time of his death was a citizen of the city and state of New York, and died there in 1910, at which time he owned real estate, situated in Waco, McLennan county, Tex., and the will which is sought to be probated here has already been admitted to probate in the state of New York, and Benjamin M. Solomon appointed and qualified as executor thereof, and he is contesting the probate of said will and the grant of letters of administration in this proceeding.
“E. S. Jaffray & Co. obtained a judgment for $3,691.41, drawing 8 per cent, interest per annum, against the firm of Lessing, Solomon & Rosenthal, of which Joseph A. Solomon was a partner, and against him individually, in the district court of McLennan county, Tex., on the 13th day of May, 1890, and upon said judgment an execution was issued on the 26th day of July, 1890, and no return thereof made, and no further execution has issued upon said judgment.
“Stowe, Bills & Hawley also recovered a judgment against said Lessing, Solomon & Rosenthal and said Solomon individually in the United States Circuit Court for the Northern District of Texas on the 19th day of November, 1891, for $4,668.06, with 8 per cent per annum interest thereon, upon which judgment an execution issued on the 15th day of October, 1892, and an alias execution was issued on the 17th day of October, 1893, each of which was returned not satisfied, and no further executions have been issued upon said judgment. Plaintiffs claim to be the owners of such judgments, and therefore creditors of the estate of Joseph A. Solomon, deceased.
“Joseph A. Solomon lived in Waco, Tex., at the time of the obtaining of said judgments and continued to reside there until the fall of 1896 or 1897, when he sold his residence there and moved with his family to New York City, where he resided continuously from that time until his death in said city.
“Conclusions of Law.
“Upon the foregoing facts I am of the opinion that plaintiffs’ claims are barred by the statute of limitation, and hence that they are not entitled to have administration issued upon the estate of said Solomon in this county, or to have the will of said Solomon probated. Marshall Surratt, Judge.”

As it had the right to do, appellant has not brought up a statement of facts, and bases its appeal upon the judge’s findings of fact and conclusions of law. At the submission, appellee tendered a statement of facts, but we have declined to consider it because it was not filed in this court in proper time.

Opinion.

It is earnestly contended by counsel for appellant that Solomon’s absence from the state, as disclosed by the trial court’s findings of fact, interrupted and prevented the running of limitation, and therefore the court erred in holding that the two judgments referred to were barred by limitation.

It is well settled in this state that, when a defendant resides out of the state at the time the cause of action arises, such absence from the state will not interrupt the running of limitation. Lynch v. Ortleib, 87 Tex. 592, 30 S. W. 545, and other cases therein cited; Haberman v. Hendrick, 66 S. W. 795.

From this it follows that, if Solomon was residing outside of this state at the time a cause of action founded upon such judgments accrued, the indebtedness evidenced by the judgments was barred by limitation, and the trial court ruled correctly in refusing to probate the will. In Gale Manufacturing Co. v. Dupree, 146 S. W. 1048, this court held that, when ten years have elapsed after the issuance of execution upon a judgment, such judgment becomes dormant and a cause of action immediately accrues for the purpose of reviving the same; and that such cause of action would be barred at the expiration of four years after the right to sue upon it accrues, and that no suit can be founded upon such judgment until it becomes dormant. Counsel for appellant does not controvert the correctness of that holding, but contends that the cause of action based upon the judgments referred to existed immediately after the judgments were rendered, and that, as Solomon then resided in this state, his subsequent removal therefrom stopped the running of limitation. We do not agree with counsel' as to when the cause of action arose, and we hold that no cause of action existed until the judgments became dormant, which was in 1900 as to one and in 1903 as to the other; and at that time Solomon resided in the state of New York, and continued to so reside up to the time of his death.

Counsel for appellant undertook in oral argument to distinguish between a cause of action and a right to sue, but we fail to perceive such distinction. The right to sue is what constitutes a cause of action; and, although an indebtedness may exist, such indebtedness does’ not constitute a cause of action until the creditor has a right to bring suit to enforce payment. Hence we hold that, as the judgments referred to were barred by limitation, no necessity was shown for probating the will and opening an administration in this state for the benefit of creditors; and from this it follows that the judgment of the trial court should be affirmed, and it is so ordered.

Affirmed.


author: JENKINS, J.

text:
    IOWA MFG. CO. v. TAYLOR.
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1913.)
    1. Justices ox the Peace (§ 44) — Jurisdiction — Lien.
    Where plaintiff sued in a justice court for breach of an employment contract and to enforce a lien on property exceeding $200 in value, but before trial he dismissed his lien claim, the court did not err in overruling defendant’s plea to the jurisdiction.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.]
    2. Principal and Agent (§ 89) — Contract of Employment — Evidence.
    Where plaintiff’s contract of employment to sell vehicles for defendant provided that defendant might cancel orders because of insufficient financial ability of buyers, in its discretion it was immaterial what plaintiff thought as to the responsibility of buyers, and hence evidence that plaintiff always made diligent inquiries as to such responsibility and never sent in orders unless he thought the parties were good was immaterial.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 216, 229-239; Dec. Dig. § 89.]
    3. Evidence (§ 213) — Efforts at Compromise.
    Where plaintiff sued on a contract for services performed and expenses incurred, evidence that ho spent two weeks in trying to effect a settlement with defendant was immaterial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.]
    4. Evidence (§ 213) — Efforts at Compromise.
    In an action on a contract for services performed and expenses incurred, evidence that plaintiff made several efforts to settle with defendant, but that they could not agree on the amount, was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.]
    5. Evidence (§ 129) — Similar Transactions —Breach of Contract.
    Where a salesman’s contract provided a forfeiture of $2 for canceled orders, evidence .that defendant had made similar contracts with other salesmen, but had not at all times enforced such forfeiture against them, was immaterial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. § 129.]
    6. Trial (§ 194) — Instructions — Weight of Evidence.
    Where, in an action on a contract of employment, defendant pleaded a set-off, an instruction that if, when the last contract was made, no demand was made' of plaintiff for the sum claimed in the set-off for advances made, and after plaintiff’s discharge, in undertaking to settle their differences, no such claim was made, then plaintiff was not liable therefor, was objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dee. Dig. § 194.]
    Appeal from Caldwell County Court; Geo. W. Kyser, Judge.
    Action by J. M. Taylor against the Iowa 'Manufacturing Company. Judgment’ for plaintiff, and defendant appeals.
    Reversed and remanded.
    E. B. Coopwood, of Lockhart, and G. W. Mendell, Sr., of Austin, for appellant. J. B. Hatchitt, of Lockhart, for appellee.

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

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

   JENKINS, J.

Appellee brought this suit in the justice’s court for salary, expenses, and commission alleged to be due him upon the following agreement with appellant: “Memorandum of agreement made this 15th day of May, 1911, by and between the Iowa Manufacturing Company of Des Moines, Iowa, and J. M. Taylor of Commerce, Texas. The Iowa Manufacturing Company agrees to hire the said J. M. Taylor and he agrees to work for them for such portions of the year, beginning May 15, 1911 and ending May 15, 1912, as the Iowa Manufacturing Company may direct at a salary of $60 per month and actual expenses while on the road for them. Traveling expenses to commence at the time of leaving Austin, Texas, and continue until returning to Commerce, Texas, at the end of the year. It is understood that no salary or expense shall be paid for any time lost by sickness or any other cause which is the fault of the said J. M. Taylor, and the Iowa Manufacturing Company reserves the right to cancel this contract at any time that the said J. M. Taylor is not making sales to warrant the above-named salary. Said J. M. Taylor hereby agrees to faithfully carry out all instructions given him to the best of his ability and to use his best endeavors to promote the interests of the Iowa Manufacturing Company in every respect, and to give his whole time and undivided attention to their business exclusively and in whatever capacity they may direct. In addition to the above-named monthly salary J. M. Taylor is to receive 2 per cent, of all cash payments made on or before the delivery of the vehicle when sale is approved, and is to forfeit $2 for each canceled sale that he reports. At the termination of this contract he is also to receive $10 per job for all approved sales made over 92 approved sales reported by him during the year, providing his average expense per job does not exceed the average expense of the entire selling force.”

As originally filed, appellee sought to enforce a lien on property exceeding $200 in value, but he dismissed this portion of his claim in the justice’s court before trial, and also dismissed the same in the county court. Appellant filed a counterclaim, alleging that when said contract was entered into appel-lee was indebted to it in the sum of $42.20 on a prior contract, and also claimed $2 forfeit on 14 canceled sales, and pleaded general denial and specially denied the item of $7.50 commission.

Appellant’s first assignment of error is as to the court’s overruling its plea to the jurisdiction on account of the claim originally filed in the justice’s court to enforce lien on property of the value of more than $200. Appellee abandoned his claim for lien, and hence the court did not err in overruling the plea to the jurisdiction.

Appellant assigns error on the court’s permitting appellee to testify that he always made diligent inquiries as to the responsibility of buyers, and never sent in any orders, unless he thought the parties were good. This testimony was relative to the claim, of appellant of $2 for each order canceled. The contract provides that appellant might cancel such orders at its discretion, and it is immaterial that appellee thought the parties to whom he made sales were good. Hence it was error to admit this testimony.

The court erred in permitting appellee to testify that he spent two weeks in trying to effect a settlement with appellant. His suit was upon his contract for services performed and expenses incurred, and it is immaterial as to what time he spent in trying to effect a settlement.

Also the court erred in compelling the witness Layborn, the manager of appellant, to testify that appellee made several efforts to settle with the company, hut that they could not agree upon the amount.

Also the court erred in compelling the witness Layborn to testify that he made contracts with other parties with a similar clause as to forfeiture for sales canceled by the company, but did not at all times enforce same against such other parties, and particularly that he did not enforce this part of the contract against one Bolton when he settled with him. The contract provided for such forfeiture, and it was immaterial whether or not the company enforced a similar forfeiture clause against other parties.

We sustain appellant’s assignment as to the charge of the court with reference to the $42 off-set pleaded by defendant. The court charged the jury that if “at the time said last contract was entered into no demand of plaintiff for said amount so claimed for said advances was made, and you further find that after discharge of plaintiff by defendant in undertaking to settle their differences no claim was made prior to such advances, then plaintiff would not be liable for them, and you will not allow defendant’s 'said claim of $42 as an offset.” This charge is clearly upon the weight of the evidence.

As this case is to be reversed for the reasons herein stated, we will only remark as to the language of appellee’s counsel in addressing the jury that it was highly improper and prejudicial.

Reversed and remanded.


author: RICE, 3.

text:
    GULF, C. & S. F. RY. CO. v. IDEUS et al.
    (Court of Civil Appeals of Texas. Austin.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1.Evidence (§ 482) — Opinions—Usage.
    Where, in an action for injuries to cattle from rough handling in transit, a witness had had considerable experience in shipping cattle over the same route, and detailed facts and circumstances on which his opinion was based, it was proper to permit him to testify that the shipment was handled rougher than was ordinary or usual.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2235; Dec. Dig. § 482.]
    2. Appeal and Error (§ 1050) — Harmless Error — Evidence.
    Defendant was not entitled to object to the admission of certain evidence on plaintiff’s behalf, where similar testimony was given by other witnesses without objection by defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1088, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Carriers (§ 228) — Transportation op Live Stock — Delay.
    'Where, in an action against a carrier for delay in transporting cattle to market, plaintiff claimed that by reason of the delay he was compelled to sell on the evening market, which was lower than the morning market, and that if the cattle had been transported promptly they would have reached their destination in time lor the morning market, evidence as to the difference between the market price of the cattle in the morning and the evening was competent.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    4. Evidence (§ 525) — Experts—Opinion-Appearance of Cattle.
    In an action for damages to plaintiff’s cattle by delay and rough handling in shipment, evidence of a salesman of nine years’ experience in the market to which the cattle had been shipped, after detailing facts and circumstances, that there had been loss because of depreciation in weight and stale appearance of the cattle, due to delay, etc., was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2333; Dec. Dig. § 525.] '
    5. Carriers (§ 228) — Transportation of Live Stock — Delay—Rough Handling-Evidence.
    In an action against a carrier for injuries to cattle by delay and rough handling en route, evidence held to warrant a verdict for plaintiff, notwithstanding he accompanied the shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. .Dig. § 228.]
    6. Trial (§ 295) — Instructions—Construction as a Whole.
    Where it appears from the whole charge that the jury could not have been misled, the fact that an isolated paragraph may be technically incorrect will not require a reversal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dee. Dig. § 295.]
    7. Carriers (§ 230) — Transportation of Live Stock — Instructions.
    In an action for injuries to cattle by delay and rough handling in transportation, an instruction that if the shipment went out from division joints on the first train after arrival, and no delay occurred at such places, plaintiff could not recover, notwithstanding the fact that there may have been rough handling and delay, whereby the cattle may have been injured at intervening points along the route, was properly refused.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    Appeal from Llano County Court; A.. H. Wilbern, Judge.
    Action by Will Ideus and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and W. B. Garrett, of Austin, for appellant J. H. McLean, of Llano, for appellees.

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

   RICE, 3.

On tlie 25th of October, 1910, appellee Ideus shipped 120 head of cattle from liano to Ft. Worth over the Houston & Texas Central and Gulf, Colorado & Santa Eg Railways to market. He alleges that, on account of delay and rough handling, said cattle were damaged in loss of weight and shrinkage and marketable appearance, and, on account of the delay, were sold on a lower market than they would have been, had they been promptly transported, and brings this suit to recover damages therefor.

The Houston & Texas Central answered, pleading that there was no delay or rough handling on its line, and that the shipment was delivered- by it to its eodefendant in good condition.

The Santa Fé, after general denial, specially pleaded that it received said cattle under written contract, whereby it undertook to transport same from Lampasas to Ft. Worth, -which it did in the ordinary and usual time, without delay and in good condition; that said contract provided that said cattle were not to be transported nor delivered at any particular time, nor for any particular market ; that said shipment was transported by the first train going out after receipt thereof; that there was no unnecessary or unreasonable delay at any point on its line; and that said shipment was handled with ordinary care and all reasonable dispatch.

A jury trial resulted in a verdict and judgment in favor of appellee against appellant for the sum of $175, together with interest to date thereof, aggregating $195.70, and in favor of the Houston & Texas Central Railway Company, from which judgment this appeal is prosecuted alone by appellant.

The evidence discloses that this shipment left Llano on the morning of the 25th of October, and in the ordinary course of transportation should have reached Ft. Worth by 8 o’clock next morning, but did not in fact do so until 1:30 p. m.; that, in addition to such delay, there was rough handling of the cattle en route, by reason of which they lost in weight and appearance, which diminished their market value; that the market was lower in the afternoon than in the'forenoon of said day, by reason of which said cattle brought less than they would if sold upon the morning market.

We do not think there was any error in permitting the witness Smith to state that this shipment was handled rougher than is usual and ordinary, for the reason that it appears that said witness detailed, in connection with said statement, the facts and circumstances upon which the same was based. In addition thereto it was shown that he had had considerable experience in shipping cattle over this route. Apart from this, however, it appears that similar testimony was given by other witnesses without objection on the part of appellant.

Nor do we think there was error in permitting the witness Rogers to testify as to the difference between the morning and evening market, as we think it was competent to show such difference by any witness who knew the facts. Appellee’s contention was that by reason of the delay in shipment he was compelled to sell on the evening market, which was lower than the morning market, and that if the cattle had been transported promptly they would have reached Ft. Worth in time for the morning market. This evidence was competent and, we think, admissible for the purpose for which it was offered. Moreover, three other witnesses were permitted, without objection, to testify to the same fact.

We do not think there was any error in permitting the witness Chesser to express an opinion with reference to the loss in weight and the stale appearance of a delayed shipment, and the consequent effect upon its market value, for the reason that it appears that he was an expert, with nine years’ experience as a cattle salesman at Ft. Worth, to which market the cattle had been shipped, he having made a detailed statement of the facts and circumstances upon which said opinion was predicated, for which reason we overrule the third assignment

The evidence on the part of the plaintiff having shown rough handling and ill treatment and delay en route to this shipment, by reason of which one of said animals died, and the weight of the others was diminished and their salable appearance affected, from which appellee suffered damage, the court did not err in overruling appellant’s motion for new ’ trial, on the ground of the insufficiency of the evidence to warrant the verdict, notwithstanding the fact that appellee accompanied the shipment. We therefore overrule the fourth assignment.

We think it is evident from the charge as a whole that the jury must have understood that before they could find for appel-lee they must have believed that appellant was guilty of negligent delay, whereby the cattle failed to arrive in Ft. Worth in time to be sold upon the morning market. We therefore overrule the seventh assignment, which contends that the court assumed that appellant was guilty of negligence in this respect. It is elementary that if it appears from the whole charge that the jury could not have been misled then, notwithstanding the fact that an isolated paragraph thereof may have been technically incorrect, no error is shown that would require reversal.

Special charge 1, requested by appellant, we think was properly refused, for the reason that it denied a recovery on behalf of the plaintiff, if it appeared that the shipment went out from the division points on the first train after its arrival at such points, and no delay occurred at such places, notwithstanding the fact that there may have been rough handling and delay, whereby said cattle were injured, at intervening points along its route; and, further, because the law of the case was fully presented by the main charge.

Believing that the evidence is sufficient to support the verdict of the jury, and that the same is in no sense excessive, the judgment of the lower court is affirmed.

Affirmed.


author: RICE, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. TUCKER.
    (Court of Civil Appeals of Texas. Austin.
    March 26, 1913.
    On Motion for Rehearing, May 14, 1913.)
    On Motion for Rehearing.
    1. Appeal and Eeeoe (§ 743) — Assignments op Eeeoe — Repekence to BIotion pob New Tbial.
    Since objections to charges given and refused need not be set up in. the motion for new trial, assignments of error alleging error in the charges need not refer to the motion for new trial as required by rule 25 (142 S. W. xii).
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and Eeeoe (§ 882) — Estoppel to Allege Eeeoe.
    Where a charge on contributory negligence is in the exact language of defendant’s plea of contributory negligence, defendant may not complain.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882; Pleading, Cent. Dig. § 1145%.]
    3. Appeal and Eeeoe (§ 216) — Objections —Instbuctions—Requests.
    If a charge is correct as far as it goes, 'appellant may not complain where he does not request a further instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. §§ 627-641.]
    4. Tbial (§ 194) — Instbuctions—Weight op Evidence.
    A charge that the issues raised by these charges constituted contributory negligence was on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-154, 456-466; Dee. Dig. § 194; Negligence, Cent. Dig. § 360.]
    5. Appeal and Eeeoe (§ 1068) — Haemless Eeeoe — Instbuctions.
    Where several specific acts of negligence are relied upon for recovery, and the evidence is sufficient to warrant a finding upon any two or more of them, it is harmless error for the court to refuse an instruction directing a finding in favor of defendant on one alone, where there is a general verdict in behalf of plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. § 1068; Trial, Cent. Dig. § 525.]
    6. Evidence (§ 219) — Admissions — Com-PEOMISE AND SETTLEMENT — ACCIDENT IN-SUEANCE.
    In an action for injuries to a servant, defendant may not show a settlement, the result of a compromise, by plaintiff with an insurance company on an accident policy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 760, 761; Dec. Dig. § 219.]
    Appeal from District Court, Bfilam County; J. C. Scott, Judge. .
    Action by J. E. Tucker against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    R. J. Boyle, of San Antonio, and Henderson, Kidd & Gillis, of Cameron, for appellant. J. R. Norton and James Routledge, both of San Antonio, and W. A. Morrison, ‘ of Cameron, for appellee.

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

   RICE, J.

This suit was brought to recover damages for personal injuries alleged to have been sustained by appellee while in the employ of appellant, resulting from a collision between appellant’s freight train, and a hand car upon which he was engaged at work, charging various acts of negligence which brought about the collision. Defendant, after interposing a general demurrer and a general denial, answered, in substance, that the plaintiff’s injuries were the result of his own negligent, rash, and reckless conduct, and that he had ample time to have avoided the injuries to himself, if he had obeyed the orders of his foreman to leave the hand car and go to a place of safety. There was a jury trial, resulting in a verdict and judgment for appellee, from which this appeal is prosecuted. There are seven assignments of error, all of which, except one, complain of certain paragraphs of the court’s charge, and the refusal to give certain special charges requested by appellant. None of said assignments refer to the motion for new trial, or that part thereof complaining of the matters involved therein, as required by rule 25 for the government of this court adopted by the Supreme Court January 24, 1912. This omission has been called to our attention by appellee, who insists that the assignments should not be considered by us, and the case affirmed without reference to its merits; his objection being based on a noncompliance with rules 24 and 25 for the government of this court (142 S. W. xii).

The case was tried on the 24th day of April, 1912; the amended motion for new trial and the assignments of error were filed, respectively, on the 27th of May and the 26th of July, 1912. These rules were adopted on the 24th of January, 1912, and were officially published in 142 S. W. vii, which was issued and went into the hands of the profession about the middle of April of said year.

In the case of Davidson v. Patton, 149 S. W. 757, and St. Louis S. W. Ry. Co. v. Ledbetter, 153 S. W. 646, as well as the case of Tinsley v. Bottom, decided by this court Blarch 19th, not yet published, it was held that a failure to comply with said rules, where objection is made by the opposite side, required the court to hold said assignments as waived and disregard same; except in the last case referred to, where the assignment was considered, because it appeared that the case was tried and the appeal prepared so soon after the promulgation of said rules as to warrant the belief that they had not come to the knowledge of counsel. See, also, Sargent et al. v. Barnes. 159 S. W. 366, this day decided by this court, wherein the question involved is fully discussed and a .like ruling made.

However, it was urged by counsel for appellant at the hearing that paragraphs 9 and 10 of the court’s main charge, upon which are predicated assignments Nos. 1 and 2, constituted fundamental error. We have carefully -examined same and disagree with counsel in this respect.

Believing that the rules of the court should be observed, and that a noneomplianee therewith (especially when insisted upon by opposing counsel) is sufficient ground for disregarding the assignments, we conclude that in the instant case the assignments should be regarded as waived, and the judgment of the court below affirmed, and it is so ordered.

Affirmed.

On Motion for Rehearing.

This case was heretofore affirmed without reference to the merits, on the ground that appellant’s brief did not conform to the rules in that the assignments of error did not refer to that part of the motion for new trial wherein the error was complained of. This ruling has been challenged by counsel for appellant in their motion for rehearing, since which time Chief Justice Brown, in M., K. & T. Ry. Co. v. Beaseley, 155 S. W. 187, has construed the recent rule with reference to this question, holding that it was not necessary that objections to charges given and refused should be set up in the motion for a new trial.

Under the authority of that case, we recede from our former holding, and will now take up and discuss the questions presented by appellant in its brief.

By its first and second assignments appellant insists that the court erred in the ninth and tenth paragraphs of -its main charge to the jury, in this, that said paragraphs, in effect, instructed the jury that plaintiff’-s failure to obey the order of the foreman and leave the hand car would not be contributory negligence, unless his conduct in so failing and refusing was rash and reckless. These charges are not open to this objection; besides, as far as they went, they were unquestionably the law of the case. They were likewise in the exact language of defendant’s plea of contributory negligence; and, certainly, it cannot insist that the court erred in giving the charge in accordance with its own line of defense. Being correct as far as they went, if appellant desired an additional charge it should have requested it.

The court properly refused to give special charges Nos. 4, 5, and 6, forming the basis of its third, fourth, and fifth assignments of error, for the reason that they are upon the weight of evidence in that the jury ■are told that the issues raised by these charges constituted contributory negligence; whereas, the issue of contributory negligence vel non presented by them should have been submitted to the jury for a finding thereon. Where several special acts of negligence are relied upon for recovery, as in the present case, and the evidence is sufficient to warrant a finding upon any two or more of them, it is harmless error for the court to refuse an instruction directing a finding in favor of defendant on one alone, where there is a general verdict in behalf of plaintiff; for which reason the court- properly refused to give appellant’s special instruction No. 7.

At the time of his injury, plaintiff had an accident policy in the Continental Casualty Company. Appellant offered to show a settlement by plaintiff with said company, indemnifying him for time lost by reason of the injuries inflicted upon him in this collision. Upon objection this evidence was excluded, for the reason that it clearly appears from the bill of exception that such settlement was made in compromise of plaintiff’s claim, and therefore could not be put in evidence against him over his objection.

Finding no error in the proceedings of the trial court, the motion for rehearing is overruled.

Motion overruled.


author: HODGES, J.

text:
    FULLER v. PRUITT & BIGGS.
    (Court of Civil Appeals of Texas. Texarkana.
    May 15, 1913.)
    Set-Off and Counterclaim (§ 35) — Unliq-uidated Damages.
    Under Rev. St. 1895, arts. 754, 755, providing that if the plaintiff’s cause of action be a claim, for unliquidated damages the defendant cannot set off any debt due him, and if the suit be founded on a certain demand the defendant cannot set off unliquidated damages, but that defendant may plead any counterclaim founded on a cause of action arising out of plaintiff’s cause of action, a defendant, in an action for the price of lumber, cannot plead as a set-off damages arising out of plaintiff’s breach of another contract to. deliver other lumber than that upon which suit was brought.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Dec. Dig. § 35.]
    Appeal from Panola County Court; W. R. Anderson, Judge.
    Action by Pruitt & Biggs against S. J. Fuller. From a judgment for .plaintiffs, defendant appeals.
    Affirmed.
    H. N. Nelson and Frank Lawson, both of Carthage, for appellant. Brooke & Woolworth, of Carthage, for appellees.

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

   HODGES, J.

The appellees sued the appellant in the „county coprt of Panola county to recover an indebtedness of $536.92, the value of two car loads of lumber which it is alleged they sold to the appellant. Appellant answered by a general denial, and also reconvened for damages in the sum of $990.30, claimed as the result of the breach of a contract by the appellees. The evidence showed that in June, 1906, the appellees sold the appellant one car load of lumber, and that $162.25 of the purchase price was still due and unpaid at the time of this suit; that in November following they sold him another ear load of lumber for $368.67, all of which was unpaid. It must be conceded, however, that from these items there should ■be deducted the sum of $25.61 for inferior lumber in one car and shortage in the other, leaving a net balance of $511.31 still unpaid.

The only defense interposed to these items consists of the damages claimed in the plea in reconvention. It is alleged by the appellant, and shown by the evidence, that in August, 1906, after the shipment of the first ear above mentioned, he and the appellees entered into a contract by which the latter sold him all of the lumber upon their millyard in Panola county, estimated at 475,000 feet, at an agreed price of $11.50 per M. There is some dispute about the exact terms of that agreement. According to the testimony offered by the appellees, they were to ship this lumber to the appellant at Marlow, Okl., only in the event they could get cars for that purpose; while the appellant testified that no such condition entered into their contract. The proof shows that the appellees failed to ship the lumber to the appellant, but sold it to other parties, claiming that they were unable to procure the necessary cars. The price of lumber during that season advanced, and the appellant claims he was damaged to the extent of that advance.

The principal issue in the case is whether the appellant was entitled to the damage claimed as an offset against his debt to the appellees. This was objected to by the ap-pellees upon the ground that the damages claimed constituted an unliquidated demand and could not be set off against one that was certain. See Rev. St. 1895, arts. 754, 755. According to the testimony of Biggs, who testified for the appellees, neither of these cars was sold and delivered as a part compliance with their contract for the sale of the 475,000 feet. There is no dispute about the fact that the first was not, because it was delivered before the contract was madé. There is an intimation on the part of Fuller, the appellant, that the last car was shipped in part performance of that contract; but we think the testimony clearly establishes the fact that this car was bought upon a separate order. Biggs testified, and he is not disputed by Fuller, that in November of that year they were requested by Fuller to purchase this particular lot of lumber and ship it to him at Marlow, Okl.; that they did buy and ship this car upon that special order. If that be true, damages arising from the breach of another and 'different contract could not be set off against the demand for the purchase price. The trial court, however, submitted to the jury the question of whether or not the shipment of this ear of lumber was in part performance of the contract of sale of the 475,000 feet of lumber, and authorized the consideration of this counterclaim as a defense in the event they found that it was in part performance of that contract. The verdict for the plaintiffs in the suit determined that issue in their favor.

There are a number of assignments of error complaining of the charge given by the court and of the refusal of special charges requested by the appellant. It is not necessary to discuss these in detail. After reforming the judgment and deducting the amount of $25.61 there is left no other error of which the appellant can complain.

The judgment is accordingly so reformed and affirmed. The costs of this appeal will be taxed against the appellees.


author: HIGGINS, J.

text:
    BECKWITH et al. v. POWERS.
    (Court of Civil Appeals of Texas. El Paso.
    April 17, 1913.
    Rehearing Denied May 22, 1913.)
    1. Venue (§ 32) — Plea oe Privilege — Sufficiency.
    Rev. Civ. St. 1911, art. 1903, provides that a plea of privilege to be sued in the county of one’s residence shall be sufficient if in writing and sworn to, and stating that the party claiming- such privilege was not, at the institution of suit or the time of service or the filing of the plea, a resident of the county in which the suit was instituted, and that none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1830 exist in said cause. Held, that a plea of privilege need not specifically negative all of the exceptions in article 1830, as that defendant was a married woman, transient person, etc.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.]
    2. Venue (§ 32) — Plea oe Privilege — Amendment.
    A plea of privilege to be sued in the county of defendant’s residence may be amended.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.]
    3. Abatement and Revival (§ 84) — Order oe Pleading — Plea oe Privilege — Amendment.
    The filing of an amended plea of privilege related back to the original plea, so that the fact that an answer to the merits was filed between the filing of the original and amended plea of privilege was immaterial.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 155, 176, 507-510; Dec. Dig. § 84.]

      4. Appeal and Error (§ 1043) — Harmless Error.
    Any error in striking a plea of privilege by one of the defendants to be sued in another county was harmless, where all the defendants were jointly liable and were sued jointly, and the jury found that the appealing defendant was liable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115 — 4121; Dec. Dig. § 1043.]
    5. Fraud (§ 59) — Damages—Measure.
    The measure of damages for fraud in the sale of personalty, such as corporate stock, by misrepresenting the value of the corporate properties, etc., is the difference between the value of the property received and the amount paid therefor, plus any sums legitimately expended as a result of the fraudulent representations.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-02, 64; Dec. Dig. § 59.]
    6. Fraud (§ 59) — Measure op Damages.
    Defendant stated to plaintiff that the actual value of the stock of a corporation, as represented by its available assets, after deducting all liabilities, was $10,000, which was par value, but it appeared that the corporate liabilities exceeded its assets, and plaintiff was compelled to pay its debts, amounting to several thousand dollars, in order to protect the assets. Beld, that plaintiff’s measure of damages was the difference between the amount paid for the stock and its value, plus such amounts as plaintiff was required to pay to discharge the corporate debts in order to protect the assets.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.]
    7. Appeal and Error (§ 1066) — Harmless Error — Instructions on Damages.
    Error in charging, in an action for damages for fraudulent representations as to the value of corporate stock purchased, that the jury should allow plaintiff the difference .between the value of what $10,000 worth of stock would have been, if the statements as to its value had been true, and its actual value, was not harmless, though the evidence showed the value of the stock as represented to be $10,-000, its par value, which was the amount paid, where the evidence also showed that the good will of the business had substantial value.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    8. Trial (§ 240) — Instructions—Requests— Argumentative Instructions.
    An argumentative charge requested was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.]
    9. Trial (§ 260) — Instructions—Requests— Charges Already Given.
    A requested charge, the substance of which, so far as proper, was contained in charges given, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 260.]
    10. Appeal and Error (§ 1173) — Reversal —Reversal in Part.
    A reversal as to two of the defendants, jointly sued and jointly liable, would work a reversal as to all of the defendants and a vacation of the entire judgment against them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4658; Dec. Dig. § 1173.]
    Appeal from -District Court, El Paso County; A. M. Walthall, Judge.
    Action by W. E. Powers against J. W. Beckwith and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    McBroom &. Scott and Jones & Jones, all of El Paso, and Fisher, Sears & Campbell, of Houston, for appellants. Patterson, Buckler & Woodson, of El Paso, for appellee.

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

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

   HIGGINS, J.

This was a suit by appel-lee against J. W. Beckwith, a resident of El Paso county, and J. E. Bishop and J. E. Er-vine, residents of Harris county, brought in the county of the residence of the defendant Beckwith. Plaintiff in his petition averred that prior to and during April, 1910, the El Paso Grain Company was a corporation; that the three defendants owned all of the stock of said corporation and were the only directors thereof; that prior to the 20th day of April, 1910, the defendant Beckwith, acting for himself and as agent for the defendants Bishop and Ervine, had been negotiating with plaintiff for the sale to plaintiff of all the capital stock of said corporation; that defendant Beckwith was authorized by said Bishop and Ervine to act as their agent in selling said stock, and was held out by them as their agent for that purpose; that during the negotiations between said Beckwith and plaintiff the said Beckwith, acting for himself and as agent for Bishop and Ervine, furnished plaintiff a statement of the condition of the business affairs of said corporation, said statement having been furnished for the purpose of inducing the plaintiff to buy the stock in said corporation of said Beckwith, Bishop, and Ervine; that said Beckwith represented to plaintiff that said statement showed the true condition of the business affairs of said corporation; that said Beckwith also represented to the plaintiff that the books of said corporation showed the true condition of said corporation; that said statement purported to be a true statement taken from the books of said corporation; that plaintiff examined said statement so furnished him by said Beckwith and believed that said statement and the books of said corporation showed the true condition of said corporation; that, believing said representations of said Beckwith, he (plaintiff) during the month of April, 1910, agreed to buy the $10,000 capital stock of said corporation, and to pay par value thereof; that the plaintiff did, in fact, during the month of April, 1910, acting upon said statement and believing same to show the true financial condition of the said corporation, buys $10,-000 of the capital stock of the said corporation, that being the stock of the said Beck-with, Bishop, and Ervine therein, and paid $10,000 therefor; that said stock was bought by plaintiff from said Beckwith, who was selling his own stock and also was selling the stock of said Bishop and Ervine as their agent; that thereafter, and after the plaintiff had bought all of said stock from the said Beckwith, who had been acting for himself and as the agent for Bishop and Er-vine, the said Bishop came to El Paso and agreed for himself and for Ervine to sell their part of said stock to plaintiff at the par value thereof, and that the said Bishop and Ervine thereby ratified and confirmed the sale so made by said Beckwith; that said statement so furnished to plaintiff was false, wrongful, and fraudulent, and known by all of said defendants to be so; that said statement was made and furnished to plaintiff for the purpose of inducing him to buy said stock at more than its value and had that effect; that plaintiff believed said statement of the condition of said corporation to be true, and buying said stock acted upon that belief; that he would not have bought said stock had be known the true condition of said corporation; that said statement was not true but was false, and that in fact said corporation had less assets than said statement showed and more liabilities than said statement showed; that in truth said corporation was worthless, and that said corporate stock was actually worthless.

On September 2, 1911, Bishop and Ervine filed a plea to the jurisdiction of the court over their persons and claimed their privilege of being sued in Harris county, and thereafter, on September 4, 1911, they filed their original answer, consisting of exceptions and a general denial, stating in same that they did not waive their said plea of privilege but insisted upon the same and answered subject thereto. On February 12, 1912, said defendants Bishop and Ervine, by leave of court, filed their first amended plea to the jurisdiction of said court over their persons in lieu of their original plea filed September 2, 1911. On February 15, 1912, the court sustained certain exceptions to the amended plea of privilege and held that the same was not filed in due order of pleading and struck out the plea and held same for naught. It seems to be contended that the amended plea of privilege was insufficient because it did not deny that Beckwith was a proper defendant, and did not allege a fraudulent joinder for the purpose of conferring jurisdiction upon the district court of El Paso county over the persons of Bishop and Ervine.

The amended plea of privilege is quite lengthy and undertakes to specifically negative all of the exceptions contained in article 1830 of the Revised Statutes of 1911 to the general rule requiring parties to be sued in the county of their domicile. These allegations were all quite unnecessary in view of article 1903 with relation to the sufficiency of such a plea. The amended plea contains a general allegation in compliance with the provisions of the article last cited, and the plea was therefore, sufficient, and the court erred in. sustaining the exceptions thereto. The court likewise erred in holding that the same was not filed in due order .of pleading, and that the plea of privilege was therefore waived.

The original plea of privilege was filed in due order, and we know of no reason why the same should not be held to be amendable, and it has been so held. Railway Co. v. Barnett, 57 S. W. 600; Lindheim v. Davis, 2 Willson, Civ. Cas. Ct. App. § 108.

The filing of the amended plea related back to and superseded the original plea and was therefore filed in due order of pleading. The fact that an answer to the merits had. been filed between the date of filing the original plea and the amended plea does not affect the question, since the answer to the merits was filed subject to the plea of privilege, and, as we have seen, the amended plea related back and superseded the original plea as of the date the latter was filed.

The error, however, is not reversible, since Beckwith was sued jointly with Bishop and Ervine; and if Beckwith represented Bishop and Ervine in the sale of their stock as their agent and made the false and fraudulent representations in their behalf, as alleged, then there was a joint liability upon the part of all of the defendants, and upon the trial of this issue before a jury it was resolved against appellant. No harm could therefore have resulted from the court’s action in striking out the plea of privilege.

Upon trial the court charged the jury that, if they found for the plaintiff, they would allow him the difference between tie value of what the $10,000 worth of stock sold would have been if the statement made of its value had been true, and the value of the stock as it actually was.

Whatever may be the rule in other jurisdictions, and regardless of certain decisions of the Courts of Civil Appeals referred to in appellee’s brief, it is now well settled in this state by numerous authorities that the measure of damage for fraudulent representations in such cases is the difference between the value of the property received and the amount paid therefor, plus any other outlay legitimately attributable to or resulting from the fraudulent representations. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456; Pickens v. Major, 139 S. W. 1040; Gordon v. Rhodes, 117 S. W. 1023; Wimple v. Patterson, 117 S. W. 1034; Connally v. Saunders, 142 S. W. 975; Day v. Steverson, 145 S. W. 1062; Tompkins v. Perry, 128 S. W. 1164; Simmons v. Clark, 130 S. W. 619; Williams v. Detroit, etc., 114 S. W. 169; Tompkins v. Perry, 128 S. W. 1164; Peek v. Derry, 37 Chan. Div. 541. The rule, as we have stated it, is clearly stated and recognized by the authorities quoted above, and it is not for this court to question its correctness or to evade its provisions by refined distinctions, and we therefore hold it applicable in this case.

It appears from the evidence that, according to a statement rendered to appellee by the defendant Beckwith, acting for himself and for his codefendants, the actual and intrinsic value of the stock of the El Paso Grain Company, as represented by its available assets, after deducting all liabilities, was $10,000, which was the par value of such stock. As a matter of fact, however, it developed that the liabilities of the corporation exceeded its assets, and that, in order to protect the assets of the company, appellee was required to pay debts of the company amounting to several thousand dollars.

It is contended by appellants that under the authority of George v. Hesse, supra, the correct measure of damage is the difference between what Powers paid for the stock and its value. A literal application of the rule contended for by appellants would preclude a recovery of the amounts which appellee had been obliged to pay out to creditors of the company to protect its assets. The authority relied upon sustains no such narrow and restricted view of the correct measure of damages.

The primary and fundamental principle recognized in the case cited is that the defrauding party was bound to make good the loss actually sustained, which would include moneys paid out and any other outlay legitimately attributable to the .fraudulent conduct. Applying this principle to the case at bar, the correct measure of damage is the difference between the amount paid by appellee to appellants for the stock and the value of the stock, plus such amounts as appellee may have been required to pay out in settlement of debts of the corporation in order to protect its assets. Any other rule of. damage would not compensate appellee for the loss actually sustained.

It is contended by appellee that, while the measure of damage given by the court in this case may be incorrect, yet, as applied to the facts in the case, the error was abstract and has no practical importance. It is argued that inasmuch as the evidence shows the value of the stock as represented by the statement to be $10,000, which was its par value, and inasmuch as the amount paid by appellee was $10,000, plus the amounts paid out by him, therefore the jury necessarily took into consideration the same relative amounts in determining the amount of the appellee’s damage. This contention, however, is based upon the premise that the stock in fact was of no value and, by reason of the debts of the company, was in fact worth less than nothing, and this assumption as to the value of the stock is based upon the further premise that the only items to be considered in determining the value of the stock were the assets and liabilities shown in the statement rendered to appellee, upon the faith of which he purchased. This premise, however, is false, because it appears from the evidence that the El Paso Grain Company had an established business of considerable magnitude and a line of customers, all of which, while intangible in its nature, yet had some actual and intrinsic value, which should be taken into consideration in determining the value of the stock. The point is properly raised that there was no evidence before the jury by which they could properly determine the value of the stock which appellee received, and we must therefore overrule the appellee’s contention that the error in the charge was abstract in its nature, presenting merely an academic question.

Special charge No. 5, the refusal of which is complained of under the ninth assignment, was properly refused because it was argumentative in its nature, and, in so far as proper, its substance was contained in charges given by the court.

Special charge No. 6 was also properly refused. In its requested form it was calculated to divert the minds of the jury from the controlling issue upon which the liability of Bishop and Ervine rested; i. e., the agency relation to them of Beckwith, or of their ratification of his fraudulent action inducing appellee to purchase the stock. Eor the reasons indicated, we are of the opinion the special charges noted were properly refused.

Appellee suggests that, inasmuch as the appellant Beckwith has filed no brief in the cause, the judgment should therefore be affirmed as to him. There can be but one final judgment in a case, and a reversal as to Bishop and Ervine carries with it a reversal and vacation of the entire judgment rendered by the lower court. Danner v. Walker-Smith Co., 154 S. W. 295, and cases there cited.

Eor the error indicated, the cause is reversed and remanded.

McKENZIE, J., did not sit in this case.