author: BRAD'S, J.

text:
    SANGER v. FUTCH.
    (No. 5963.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1918.
    Rehearing Denied Feb. 5, 1919.)
    1. Cancellation of Instruments @=>37(1) —Pleading—Sufficiency of Petition — Illegal Transaction.
    Petition seeking cancellation of deeds alleged to have been executed to defendant as accommodation to secure dealings in cotton futures was not subject to general demurrer because of allegation of plaintiff’s knowledge that money was to be used for illegal purpose, where it did not appear from petition that, plaintiff was in pari delicto with defendant, as the cancellation of the deeds would not be in furtherance of the illegal transaction.
    2. Appeal and Error @=>1099(6) — Subsequent Appeal — Law of Case — Sufficiency of Petition.
    Decision of Supreme Court denying writ of error to review decision of Court of Civil Appeals sustaining sufficiency of petition to state cause of action -as against general demurrer was binding on subsequent appeal involving sufficiency of same petition.
    3. Appeal and Error @=>999(1) — Review— iSpecial Verdict.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1986, providing that a special verdict is conclusive between the parties as to the facts found by the jury, a special verdict should be upheld unless there is no evidence to sustain it.
    4. Judgment @=>198 — Rendition on Special Verdict.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1986, 1990, the trial court should render judgment on jury’s findings of special issues unless verdict be set aside or new trial granted.
    5-. Cancellation of Instruments @=>50— Questions for Jury — Consideration.
    In action to cancel deeds alleged to have been executed as an accommodation to defendant for use in raising money, without intention to pass title or possession, where defense was that deeds were executed in settlement of plaintiff’s indebtedness to defendant, evidence hold insufficient to entitle defendant to instructed verdict.
    6. Evidence ©=>443(3) — Warranty .Deed —Parol Agreement.
    In action to cancel warranty deeds alleged to have been executed for accommodation of defendant for use as collateral for loan without intention to fully pass title, evidence as to agreement at time of execution, whereby plaintiff’s wife was to continue collecting rents from property, was admissible to prove that such agreement was part of consideration.
    7. Evidence ©=>419(2) — Parol Evidence -^Consideration' oe Deed.
    Parol evidence is admissible to show the true consideration of a deed although it may not be disclosed upon its face.
    8. Cancellation oe Instruments ©=>50 — Deeds — Jury Question — Nature oe Transaction.
    In action to cancel deeds alleged to have been executed without intention to pass title or possession, but for accommodation of defendant for use in raising money, whether it was understood between parties at time of execution that property was to vest in defendant, purely for purpose of enabling him to raise money, was an issue of fact for the jury.
    9. Judgment ©=>198 — Special Verdict — Conflicting Evidence.
    Whore evidence was conflicting, and tended to support theory of both defendant and plaintiff, where findings of jury were in support of plaintiff’s theory of case, court properly entered judgment for plaintiff.
    10. Appeal and EfeROR ©=>930(3) — Review-Presumptions.
    In action to cancel, deeds claimed by defendant to have been deeds of trust to secure sum advanced by defendant for plaintiff, where defendant failed to request special finding in favor of lien on land, it will be presumed on appeal, in support of judgment for plaintiff, that court found against legality of lien.
    11. Appeal and Error ©=>930(3) — Review —Presumptions.
    Where defendant did not request special finding of certain issue raised by plaintiff’s supplemental petition in reply to defendant’s cross-action, it will be presumed on appeal that court found against defendant on such issue.
    12.- Gaming ©=>18 — Foreclosure oe Mortgage.
    Where deed of trust was executed to secure grantor’s indebtedness to grantee, which was incurred by grantor in furtherance of cotton future transactionls wherein grantee acted as grantor’s agent, the court will refuse to foreclose lien.
    13. Gaming ©=>18 — Deeds oe Trust.
    Where deed of trust was executed to secure grantee against loss in guaranteeing grantor’s indebtedness, and the written guaranties were executed at time of execution of deed, but no money passed at such time, the guaranties and deed of trust did not become effective until the delivery of the guaranties by grantor to grantee, and, where delivered in settlement of cotton future transactions between them, the deed of trust and guaranties became a part of such illegal transaction.
    Appeal from District Court, McLennan County; Geo. N. Denton, Judge.
    Action by J. J. Futch against C. L. Sanger. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. D. Williamson, of Waco, for appellant
    R. Q. Murphree, J. A. Kibler, and Sleeper, Boynton & Kendall, all of Waco, for appel-lee.
   BRAD'S, J.

Appellant’s brief contains a statement of the nature and result of the suit, which is accepted by appellee as substantially correct, and which we adopt, as follows:

“This suit was instituted by J. J. Futch as plaintiff in the court below, seeking the cancellation of two deeds executed and delivered .by J. J. Futch to O. L. Sanger on November 19, 1912', covering two tracts of land in Waco, Mc-Lennan county, Texas, which were described by field notes in Ms said petition, plaintiff alleging that in each of said deeds the consideration was recited at $1,500.00 cash in hand paid, and that' at the time that the said deeds and conveyances were made and executed, that plaintiff and defendant each understood, knew, and agreed that said deeds and transfers were not in fact and truth made as bona fide deeds and conveyances, but, on the contrary, were made for the following purposes and consideration; that the defendant, C. L. Sanger, was then, and had been for a length of time prior thereto, engaged in the business of what is commonly known as a dealer in cotton futures, and the plaintiff had contracted with said defendant as such cotton broker to sell and buy through the brokerage of defendant, at sundry times and prices, sundry and numbers of bales of cotton; that it was never in the contemplation 'of plaintiff or defendant that the actual delivery of said cotton should be made, but, on the contrary, was to be settled in dollars and cents, according to the rise or fall of the market prices of said cotton; and that by reason of said buying and selling of cotton futures as alleged, that the defendant did on or about the 19th day of November, 1912, falsely and fraudulently represent to plaintiff that he, the said Sanger, was then in great need of money, and if this plaintiff would execute and deliver to him the deeds to the land described that he, the defendant, could and would use said deeds and title to said premises for security for himself in the furtherance of said business; and that, by reason of said representations so made by the defendant, plaintiff did execute, sign, and deliver said deeds, but the same were not at any time a settlement or closing of the gambling contracts of plaintiff and defendant for the settlement of any debt or claim due defendant by plaintiff.
“Plaintiff further alleged that the considerations recited in said deeds were false and fictitious, and that the recited consideration of $1,500.00 in each of said deeds, or no other amount, was paid at the time of said transfers, but that the said deeds and conveyances were executed and delivered as a matter of accommodation of plaintiff to defendant.
“Plaintiff prayed that said deeds he canceled, and that the cloud cast upon plaintiff’s property by said deeds be removed, and for general relief.
“The defendant answered said petition, first, by general demurrer; second, by general denial; and, third, by special answer, denying that he was engaged in the business of cotton futures or personally interested in any of the transactions set out in his answer, but alleged the facts to be that on September 3, 1912, plaintiff came to defendant, and represented that he desired to engage on his own account in the spot cotton business in the city of Waco; that in order that he might do such business with profit, and protect himself against losses, that it would be necessary that he be able to make arrangements to get money to buy cotton, and in addition that he be able to make arrangements wherein and whereby he could hedge his cash purchases of cotton or contracts by selling futures against such contracts; that he desired to obtain credit and a guaranty from defendant; that defendant, being desirous of assisting plaintiff, agreed with him that if he would execute two notes, one in the sum of $1,500.00, and one in the sum of $500.00, due and payable May 1, 1913, which notes were to be secured by a lien upon the same real estate that was subsequently deeded to defendant, that the defenda'nt would furnish plaintiff, Futch, means and credit for the conduct of his business to the amount and extent of $2,000.00, and thereafter might furnish him additional means and credit to the amount and extent of $2,000.00.
“That plaintiff duly executed the two certain promissory notes of $1,500.00 and $500.00 each to plaintiff, and on the 9th day of September, 1912, plaintiff and his wife executed a deed of trust on the two tracts of land subsequently deeded to defendant, to secure defendant in the payment of said notes and the additional amount of $2,000.00 which might be furnished; that on the same date, to wit, September 9, 1912, defendant gave plaintiff his three certain instruments in writing, worded as follows:
“ ‘To Whom It may Concern: This is to inform you that I hereby guarantee the account of J. J. Futch to an amount not exceeding $500.-00, this guaranty to be good until the 1st of May, 1913;’ which instruments were signed by defendant.
“That in addition to the execution and delivery of said guaranties, that the defendant guaranteed the account of Futch in the purchase and sale of cotton for hedging purposes with the firm of Kahn & Ettelson, of New York; that said purchases and sales made in New York were made in the name of this defendant, but were the purchases and sales of Futch, and were made by him and not by this defendant.
“That thereafter Flitch made his certain future transactions with Kahn & Ettelson in New York, and on the 19th day of November, 1912, that the said Futch, as a result of his transactions through Kahn & Ettelson, had made losses on such transactions, and this defendant, by virtue of his guaranties to such transactions, was indebted to Kahn & Ettelson in the sum of $3,076.00, which sum he paid; and that the defendant called on said Futch to pay said amount, and that said Futch thereupon agreed to pay same, provided that the defendant would advance him $1,000.00 additional, or guarantee him future purchases through Kahn & Ettelson to that amount and extent. He agreed that he would pay such amount by executing and delivering to the defendant the deeds to the two pieces of real estate described in plaintiff's petition, and upon which defendant then had a deed of trust as above set forth.
“That defendant accepted said proposition, and on said day and date the said Futch executed two certain warranty deeds to said premises, and delivered said deeds and possession of said land to defendant, and that defendant did advance the sum of $1,000.00 additional for Futch to Kahn & Ettelson, and that said funds were thereafter lost by plaintiff in his cotton transactions.
“The defendant further alleged that the plaintiff conducted all of said transactions and negotiations, received the benefits of such transactions as were in his favor, and ratified and confirmed the payment of all losses which he made.
“Defendant further alleged that he was in no manner interested in said transactions, and there was no profit therein for him in any manner on said transactions, either in the way of commissions or otherwise.
'“The defendant, by way of cross-action, alleged that if for any reason the deeds dn question did not convey title, then he sought a foreclosure of his deed of trust lien upon the said two pieces of property for the $4,000.00 advanced, with interest on same, further alleging that he was in possession of the property, and that he was willing to surrender possession thereof upon payment of his debts. The defendant prayed that he go hence without day, or that, if the deeds be canceled, he then prayed for foreclosure of his lien upon the property. The plaintiff filed a supplemental petition, denying all of the piatters that were alleged by the defendant.
“The defendant’s general demurrer was overruled. The case was submitted to a jury upon special issues, and, upon their answers to such special issues, judgment was rendered in favor of plaintiff, canceling the two deeds, and refusing the defendant a foreclosure of his lien as against Futch, and refusing defendant a judgment for the moneys that he had advanced to Futch. A. motion for new trial and amended motion were seasonably filed, which were by the court overruled. The defendant, G. L. Sanger, duly filed a bond, bringing this cause before this court on appeal for revision and correction.’’

By the first assignment of error appellant complains of the action of the trial court in overruling his general demurrer, because appellee’s petition shows upon its face that he was seeking relief of the court ini aid of a gambling contract, and set up a cause of action not cognizable by a court of law or equity.

We think the assignment is without merit This same question was before this court, upon the same petition, in Futek v. Sanger, 163 S. W. 597. There the court below sustained a general demurrer to the petition, and in an opinion by Justice Rice we held that it was error, and reversed and remanded the case. It is unnecessary to repeat the reasons assigned for holding that the petition stated a good cause of action, or to again review the authorities cited by Justice Rice. The gist of the decision was that the plaintiff alleged a mere knowledge that the property might or could be used by the defendant in conducting an unlawful business, but did not allege any facts showing that he did anything in furtherance of defendant’s illegal business, and therefore these facts did not make the petition bad upon general demurrer. A writ of error was applied for in that case, but denied by the Supreme Court (170 S. W. xvii).

We might well rest our conclusion overruling the first assignment upon the authority of the previous holding, but appellant has cited certain authorities, which we will briefly consider, and also tersely state the general principles upon which we adhere to our former ruling.

We think the petition good as against a general demurrer, because it does not appear therefrom that appellee sought the aid of the court in furtherance or enforcement of ¡the illegal transactions, and, further, because it does not show the parties in pari delicto. His cause of action, as pleaded, was not essentially founded upon anything illegal, although an apparently illegal act was incidentally alleged as explanatory of the other facts in the case. Under the weight of authority, these averments did not make the petition subject to general demurrer.

Appellant cites several authorities in support of his contention that the general demurrer should' have been sustained, all of which, we think, may be differentiated from the instant cáse.

In Jones v. Akin, 80 S. W. 385, this court, speaking through Justice Key, held that a .check given for borrowed money, with knowledge on the -part of the lender that it was to be used by the borrower to gamble at cards, could not be collected by suit; and he refers as authority to the case of Reed v. Brewer, a Supreme Court decision (90 Tex. 145, 37 S. W. 418), which we will later briefly review. We regard the facts as different from those alleged in this case, and also that, in Reed v. Brewer, the Supreme Court did not decide that mere knowledge' of an intended illegal use of borrowed money would debar the lender from a recovery. It is further to be borne in mind that Justice Key stated in his opinion in Jones v. Akin that there was some testimony in the record showing that the lender actually participated in the game in which the borrowed money was used. In effect, this testimony would show an actual furtherance of, and participation in, the illegal transaction, and this consideration alone might serve to distinguish the case.

In the case of Reed v. Brewer, 90 Tex. 145, 37 S. W. 418, relied upon by appellant, the suit was based upon notes given for furniture which was known by the vendor to be intended to be used by the vendee in conducting a house for prostitution. The Supreme Court concluded that the facts not only showed knowledge by the vendor of the illegal purpose for wliich the goods were bought, but also that the trial court might have concluded from the facts that at the time of sale he contemplated and actually afterwards aided and abetted the vendee in the unlawful venture. The Supreme Court expressly refrained from expressing any opinion upon the legality of the notes had the proof only showed a sale with mere knowledge of the intended unlawful use, and that the illegal business was the only means of paying for the same. Therefore we do not consider this case in point.

Appellant further cites the case of Beer v. Landman, 88 Tex. 450, 31 S. W. 805. The facts of this ease show that appellee executed to appellant, upon an illegal consideration, two principal notes, and also two collateral vendor’s lien notes. One of the principal notes having been paid, appellant brought suit in the county court upon the remaining note. Before that suit could be tried appel-lee filed his suit in the district court, asking an injunction against appellants to restrain the collection of both the principal and collateral notes, and for cancellation of the principal note and redelivery of the collateral notes. Justice Denman expressly stated that the point before the court did not require a ruling upon the question as to why or under what circumstances equity would lend its aid to cancel an executory contract founded upon illegal consideration, as in the case of the principal note referred to. The Supreme Court held that the evidence showed the parties were in pari delicto, that the contract as to the collateral notes was executed, and that equity would not aid either of them. As to the principal note, however, the court held that because appellee Landman had had an opportunity to make his defense at law in the county court while the suit'was pending there, and before it was dismissed, and having voluntarily declined to do so, he could not ask an injunction against the collection of the note without alleging some sufficient reason for not making his defense at law while the suit was pending and before its dismissal.

Considering all the facts in the case, we do not think Beer v. Landman in conflict with the conclusion we have reached, especially in view of the allegations in appellee’s petition in the present case charging that he had executed the deeds to the property in question to appellant merely for the latter’s accommodation, and not intending to pass full title to him, and that he had not parted with the possession thereof, but that appellant was illegally seeking to claim both the title and possession thereof.

It is also to be noted that among the cases cited with approval by Justice Denman in Beer v. Landman is that of Frost v. Plumb, 40 Conn. 112, 16 Am. Rep. 18, wherein the rule is announced that the test is whether the plaintiff in the particular case is obliged to prove his own illegal act or contract as'a necessary part of his cause of action, and that if he can show a complete cause of action without relying on his own illegal act he may recover, although incidentally such illegal act may appear, and may even be important as explanatory of other facts in the case. This latter authority, we think, announces the correct principle applicable to this case under the pleadings of appellant.

It follows that we are of the opinion that none of the cases cited by appellant are applicable under the particular facts, and are certainly not controlling in this case. On the other hand, the sole question b:efore this court in Futch v. Sanger, 163 S. W., supra, was whether the trial court there properly-sustained. the general demurrer to the very petition that is now before us. Necessarily, this was the only question before the Supreme Court when the application for writ of error was denied, and we think this action of the Supreme Court must be construed as approving our holding that the petition was good on general demurrer, and that the question is therefore settled. So believing, _we. overrule appellant’s first assignment of error.

By his second assignment appellant attacks the refusal of the trial court to give the peremptory instruction requested by appellant, because it is claimed that the evidence showed that the deeds wfere executed and delivered either in settlement of gambling contracts or transactions, or in furtherance thereof, and that therefore a court should not aid either party to the illegal transactions. ■

This case was submitted to the jury upon special issues, the questions and answers of the jury being as follows:

“Special Issue No. 1: Were the deeds in question executed by Futch with the understanding and agreement between him (Futch) and the defendant, Sanger, that they were executed merely for the accommodation of the defendant, Sanger? Answer this issue ‘Tes’ or ‘No.’
“To special issue No. 1 we answer, ‘Yes.’
“Special Issue No. 2: Did the plaintiff, Futch, execute the deeds in question to the defendant, Sanger, in. settlement or satisfaction of the indebtedness owing by Futch to Sanger on account of losses in cotton future dealings between the said Futch and the said Sanger? Answer this issue ‘Yes’ or ‘No.’
“To special issue No. 2 we answer, ‘No.’
“.Special Issue No. 3: If you answer special issue No. 2 ‘Yes,’ then did Futch ever deliver possession of the property in question to the defendant Sanger? You will answer this issue ‘Yes’ or ‘No,’ and in determining your answer to the same you may take into consideration all of the evidence, facts, or circumstances which may have been introduced in evidence; and if you should find from the evidence that at the time of the execution of said deeds it was understood and agreed between the said Sanger and the said Futch that the said Sanger could collect and be entitled to all the rents arising from s,aid property free from any conditions, and without having to account to the said Futch for the same, and that said rents were to become 'the property of the said Sanger after the execution of said deeds, then, and in such event, if you so find from the evidence, you will answer this special issue ‘Yes’; but if you should find from the evidence that said Sanger was not to receive or collect said rents, or that he should collect same upon some condition or understanding between.the parties, or that same should not become -the property off said Sanger when collected, then and in such event, if you so find from the evidence, you will answer this issue .‘No:’
“To’ special issue No. 3 we answer, ‘-.’
-“Special Issue No. 4: If you have answered special issue No. 2 in the affirmative — that is, if you find from the evidence that said deeds were executed in settlement of an indebtedness between the said Sanger and the said Futch — then did the defendant, .Sanger, agree to advance any additional amount to the plaintiff for the purpose of enabling the plaintiff to deal in cotton futures to be engaged in after the execution of said deeds between the said Sanger and the said Futch? Answer this issue ‘Yes’ or ‘No.’
“To special issue No. 4 we answer ‘-.’
“Special Issue No. 5: What was the amount of the indebtedness owed by Futch to Sanger on November 19, 1912? You will answer this special issue by writing the amount in dollars and cents.
- “To special issue No. 5 we answer, ‘$3,171.69.’
“Special Issue No. 1, requested by the plaintiff (and given by the court): At the time the deeds in question were executed by Futch to Sanger, find whether or not it was understood between them that the title to the property was to vest in Sanger for the purpose only of enabling .Sanger to thereby raise money for his (Sanger’s) use? Answer this issue ‘It was’ or ‘It was not.’
“We, the jury, in answer to special issue No. 1, requested by the plaintiff, find, ‘It was.’
“Special Issue No. 2, requested by the plaintiff (and given by the court): Was the defendant, Sanger, acting as the agent for Kahn & Ettelson in the sale of the cotton futures purchased by the plaintiff, Futch, an account of which the indebtedness of Futch to Sanger was incurred? Answer this issue ‘He was’ or ‘He was not.’
“We, the jury, in answer to special issue No. 2, requested by the plaintiff, find, ‘He was.’
“.Special Issue No. 3, requested by the plaintiff (and given by the court): Was the two thousand dollars secured by the deed of trust which has been introduced in evidence used by Futch in furtherance of his cotton future transactions with Sanger with the defendant Sanger’s knowledge? Answer this issue ‘It was’ or ‘It was not.’
“We, the jury, in answer to special issue No. 8, requested by the. plaintiff, find, ‘It was.’
“Defendant’s Special Issue No. 1 (given by the court): On November 19, 1912, when the plaintiff executed the deeds in evidence in this ease to the defendant, were such deeds executed in furtherance of, or for the purpose of permitting the plaintiff to have further dealings in cotton futux-es thx-ough the credit to be furnished by the defendant? Answer this issue ‘Yes’ or ‘No,’ as you find the facts to be from the evidence.
“We, the jury, answer special issue No. 1 (requested by the defendant), ‘No.’ ”

In view of the fact that the case was submitted upon special issues, and that the jury returned special ¿findings thereunder, which are not directly challenged by any assignment as being unsupported by the evidence, it' is very doubtful whether the mere request for a peremptory instruction, and alleged error in refusing it, is sufficient challenge to the sufficiency of the evidence to support the verdict and judgment, so as to require this court to search the statement of facts to determine the sufficiency of the evidence. See Essex v. Mitchell, 183 S. W. 399.

Furthermore, under our statute a special verdict is conclusive between the parties as to the facts found by the jury (article 1986, Vernon’s Sayles’ Civil Statutes), and should be upheld, unless there is no evidence to sustain it. The issues submitted to the jury were all made by the pleadings, and each.question required to be answered by the jury was answered, and we do not find that in any of the assignments contained in Ms brief appellant directly challenges the findings of the jury as contrary to the evidence. Under our statute, and numerous decisions of our courts construing it, the trial court shall, unless the verdict be set aside or a new trial granted, render judgment thereon. Article 1990, Vernon’s Sayles’ Civil Statutes. We do not believe that- the court below could have entered any other judgment upon the special verdict than one in plaintiff’s favor; and the insufficiency of the evidence to support the particular findings not being directly raised by assignments presented in the brief, it would seem that we should not be required to examine the statement of facts for ail the evidence appearing upon the material issues in the case.

Appellant, however, requested a peremptory instruction before the special issues were submitted by the court, duly preserved his exception, made the claimed error in refusing the charge a ground, in his motion for new trial, and also in his motion for new trial moved to set aside the landings on the material issues, and by the last assignment mentioned challenges the correctness of the court’s ruling in refusing to so instruct the jury. Therefore it is possible that appellant may be entitled to have the statement of facts examined, and his full statement under said assignment considered, in order to determine whether upon the entire evidence he was entitled to a peremptory instruction, and we will so treat the question. .

We have carefully read the evidence in the statement of facts, and we do not believe that the same entitled the appellant to a peremptory instruction. The testimony of the ap-pellee, Futch, was to the effect that appellant represented to him that he was needing some money in Ms business, and that, if Futch would make him a deed to the property in controversy, it would enable him to raise the money by iising the property as security. Ap-pellee further testified that in order to help appellant, and because of their business dealings together previously, he agreed to convey the property to him merely as an accommodation, and without.the intention of finally or fully passing title or possession to same. He further testified, substantially, that the conveyance was not made in settlement of any indebtedness owing by him to appellant, and especially was not made to settle any debts growing out of gambling transactions, or, in other words, future cotton contracts. All this was vigorously denied by appellant, who claimed that the consideration for the deeds of conveyance was the indebtedness owing by ap-pellee to him, growing out of future contracts for the purchase or sale of cotton on the New York Exchange, and of other similar contracts to be thereafter made, and that the deeds were intended to fully pass the title, as well as the possession to appellant.

As we have shown above, the jury found against appellant upon these issues; but, independently. of - their findings, we certainly are not able to say that the evidence is such as to have entitled appellant to an instructed verdict. We do not think it necessary to go into the details of the evidence, but believe the above conclusions are fully supported by the testimony. We overrule appellant’s second assignment of error.

Appellant’s third assignment of error relates to the alleged error of the,trial court in permitting appellee, Futch, over the objection and exception of appellant, to testify in sub - stance that it was agreed, at the time the deeds in question were executed, that Ms wife should collect the rents on said properties, and should not be disturbed in the collection thereof, because the deeds were general warranties with no reservation or limitation therein, and that by such testimony it was sought to vary a written instrument, without pleading fraud, accident, or mistake, and further because rent, being one of the incidents of ownership, passed with the title, , and could only be reserved in the deeds themselves, and not by parol contract. These objections to this testimony were duly preserved in a bill of exception copied in the statement under said assignment.

One of the issues made by the pleadings was that, while the deeds were on their face general warranty deeds, they were in fact made for the accommodation of appellant, and merely for the purpose of enabling appellant to raise money for his business ends, t and.to be used as security for such purposes; arid also that part of the inducement and-consideration for the execution and delivery 0¾ the deeds was the agreement on appellant's part not to disturb appellee’s wife in the collection of the rents from the property. As we understand the record, this testimony wap introduced and admitted for this purpose, and we believe the testimony was admissible. ^

The issue was afterwards submitted to the jury in special issue No. 3; but the question was not answered, because dependent upon an affirmative answer to special issue No. 2, which the jury answered “No.” ,The testimony complained of was admissible to show the intention of the parties as to the purpose of the deeds and the inducement and real consideration therefor. We do not think it varied or contradicted the written instrument, but was explanatory thereof, and related to the real consideration, .as well as to the intention of the parties.

Under the authorities parol evidence is admissible to show the true consideration of a deed, although it may not be disclosed upon its face, and parol evidence is admissible for such purpose. Loving v. Milliken, 59 Tex. 423; Ry. v. Jones, 82 Tex. 160, 17 S. W. 534; Moore v. Kirby, 52 Tex. Civ. App. 200, 115 S. W. 632; Miller v. Yturna, 69 Tex. 554, 7 S. W. 206; Nagle v. Simmank, 54 Tex. Civ. App. 432, 116 S. W. 862; McLean v. Ellis, 79 Tex. 398, 15 S. W. 394; Morehead v. Hering, 53 Tex. Civ. App. 605, 116 S. W. 164; Tipton v. Tipton, 55 Tex. Civ. App. 192, 118 S. W. , 842; Ellis v. Lehman, 48 Tex. Civ. App. 308, 106 S. W. 453; Springman v. Hawkins, 52 Tex. Civ. App. 249, 113 S. W. 966; Pope v. Taliaferro, 51 Tex. Civ. App. 217, 115 S. W. 309. It follows that appellant’s third assignment of error must be overruled.

Appellant’s fourth assignment of error complains of the submission to the jury of special issue No. 1, requested by plaintiff, which issue is as follows: .

“At the time the deeds in question were executed by Futch to Sanger, find whether or not it was understood between them that title to the property was to vest in Sanger, for -the purpose only of enabling Sanger to thereby raise money for his [Sanger’s] use.”

It is claimed in this assignment that such issue should not have been submitted to the jury, because the deeds were general warranty deeds, and their construction was a question of law for the court, and it was error to submit to the jury the question of a parol understanding that would vary the effect of the written instruments, and further because it was not alleged that the deeds were obtained by fraud, accident, or mistake.

We are of the opinion that the issue submitted was the main issue raised by the pleadings, and this special issue embraced one of fact, namely, the intention of the parties in the execution of the deeds, and the consideration therefor, from which the true construction and effect of the deeds might be determined by the court. It did not submit a 'question of law to the jury, as contended by appellant. The authorities last above cited, we think, sustain our conclusion on this point, and the fourth assignment is overruled.

Appellant’s fifth assignment of error presents the point that the trial court erred in sustaining appellee’s motion for judgment on the verdict, and in entering judgment for appellee thereon, because the evidence shows:

(a) That the deeds in question were executed in settlement or satisfaction of the then existing indebtedness between Futch and Sanger. .

(b) That they were executed by Futch in order to obtain further credit for further future dealings on, the New York Cotton Exchange, through Kahn & Ettelson.

(c) Because, even under Futch’s testimony, the deeds in question were executed in order that Sanger might have credit and funds in New York with which to have future cotton future transactions or dealings, with Futch’s knowledge.

(d) Because the evidence shows, and the jury found, that Sanger furnished credit to Futch to the amount and extent of $3,171.69, up to November 19, 1912, for his cotton future dealings, and that in order for Sanger to be reimbursed or paid, or get money to pay, such losses, the deeds in question were executed by Futch, and with the further understanding that Sanger was to furnish Futch additional credit; and the evidence shows that the. credit, to the amount and extent of in excess of $1,000, was furnished Futch by Sanger after the execution and delivery of said deeds, -and that said sum was consumed by Futch in his cotton future dealings.

(e) Because' there was no evidence that Sanger agreed at any time to reconvey the property to Flitch, except upon payment of an amount equal to the sum he had advanred to Futch.

The statement by appellant under his second assignment of error in the brief contains a very full statement of the evidence relied upon by appellant to sustain this assignment. It will be remembered that the jury, in answer to special issues Nos. 1 and 2, found that the deeds were executed by appellee upon the understanding and agreement with appellant that they were executed merely for his accommodation, and that they were not executed in settlement or satisfaction of the indebtedness owing by appellee to appellant on account of losses in cotton future dealings between them.

By their answer to special issue No. 1, re; quested by plaintiff, the jury further found that at the time the deeds were executed it was understood between the parties that the title to the property was to vest in appellant merely for the purpose of enabling appellant to raise money for his own use.

As we have before stated, under our statute the trial court, in a special issue case, shall, unless the verdict be set aside and a new trial granted, render judgment thereon. These were the main issues in the case, and we have heretofore held that the plaintiff’s petition, alleging the facts sustained by these findings, showed a good cause of action. Therefore we must hold that they were properly submitted to the jury, and that the trial court properly entered judgment thereon for appellee, unless the findings are without evidence to support them.

We have carefully examined , the statement of the evidence made by appellant, as well as all the evidence shown by the statement of facts, and we do not believe that these findings and the judgment thereon are \without support in the evidence. These issues were sharply controverted in the evidence, and there was testimony tending to support either theory of the case; but the jury made findings which support the theory of appellee that the deeds were not based upon illegal considerations or unlawful contracts or transactions, and that they were executed merely for the accommodation of appellant, with no intention of passing the complete legal title. There is evidence further tending to show that no possession was delivered, or was intended to bb delivered, under the deeds.

It follows from the above conclusions that the court did not err in sustaining ap-pellee’s motion for judgment on the verdict, nor in entering judgment for appellee thereon, and the fifth assignment of error is therefore overruled.

■ The sixth and last assignment of error in appellant’s brief assigns as error the action of the trial court in failing to enter judgment in favor of appellant for $4,247.69, upon his cross-action, and for foreclosure of lien upon the property in controversy, because the un-contradicted evidence shows that appellant advanced appellee said sum, that he was not interested in appellee’s illegal transactions, and that the evidence does not show that, in appellee’s purchases or sales on the New York Exchange, actual delivery of the cotton was not contemplated.

It would perhaps be a sufficient answer to this assignment to say that the jury made no finding of the amount specified therein, nor any special finding in favor of the lien attempted to be created by the deed of trust, and, appellant having requested no such finding, it will be presumed on appeal, in support of the judgment, that the trial court found against the validity of the lien.

Further that, by the averments of ap-pellee’s supplemental petition, he made the issue, in reply to appellant’s cross-action, that the consideration for the deed of trust had failed, and this issue not having been submitted to the jury, and appellant not having requested a finding thereon by the jury, it will be presumed on appeal that the trial court found against appellant on this issue.

But there is at least another answer to be made. In appellee’s brief we find the following counter proposition under the sixth assignment of error:

“The notes by Futch to Sanger, secured by the execution of the deed of trust having been used by Futch in furtherance of his cotton future transactions with Sanger, with Sanger’s knowledge, and while Sanger was acting as the agent of l£ahn & Ettelson, and actively participating in such transactions, it was proper for the court to refuse to enter judgment in favor of Sanger on his cross-action foreclosing the lien.”

We think this proposition is sound and should be sustained. In answer to special issue No. 3, requested by the appellee, the jury found that the $2,000 secured by the deed of trust was used by appellee in furtherance of his cotton future transactions with appellant, with the knowledge of appellant. The jury also found, in answering special issue No. 2, requested by appellee, that appellant acted as agent for Kahn & Ettelson in the sale of the cotton futures purchased by appellee, on account of which the indebtedness of appellee to appellant was incurred. Appellant had made no direct attack upon either of these findings, as unsupported by the evidence, in any assignment in his brief, and they are conclusive on the facts found as against the parties; but, in addition, we think the facts in the record sustain these findings.

It is impossible to read this record without concluding that part, at least, of the money to be raised by appellee by the execution of the deed of trust was to be used for illegal cotton future contracts, with the knowledge of appellant, and that he aided ap-pellee in such unlawful purpose, and actively participated therein, even to the extent of thereafter paying appellee’s losses to the New York brokers with whom the contracts were placed. Appellant transmitted or caused to be transmitted to New York for appellee telegrams giving the orders for the future contracts, used or allowed appellee to use his name in the transactions, and his credit in protecting the margins, and even paid the entire losses of appellee. The undisputed evidence is that the $500 note secured by the deed of trust was for the purpose of enabling appellee to raise money to buy cotton contracts. These future transactions began on the very day the deed of trust was executed, as shown by statement No. 105 in the statement of facts, and continued for months. How the appellant himself viewed these transactions is reflected by his own testimony, from page 52 of the statement of facts, as follows:

“I paid Kahn & Ettelson for Futch’s personal losses about $4,150. I have got my books here to show it. It was paid by sending exchange to' Kahn & Ettelson at various times. I not only sent money to Kahn & Ettelson for Futch’s account only, but I. sent money for my own account. I vías speculating myself, too, you. know.”

For the reasons above given, we think the above-quoted counter proposition of appellee under the sixth assignment of error must be. sustained.

Appellee in his brief makes still another counter proposition under the sixth assignment of error, as follows:

“The fact that the deed of trust from Futch to Sanger and the three $500 guaranties from Sanger to Futch at the time of their execution may have been executed for a lawful consideration; but, no money having passed between them as consideration for the execution of the deed of trust, these guaranties and deed of trust did not become effective until the delivery of' the guaranties by Futch to Sanger, and the evidence showed that they were delivered by Futch to Sanger in settlement of cotton future transactions between them; therefore at that time the deed of trust and guaranties became a part of the illegal transaction.” )

We think this counter proposition is correct, and contains another good reason why the trial court did not err in refusing to enter judgment in favor of appellant on his cross-action and foreclosing his lien. The sixth assignment of error is overruled.

This disposes of all the assignments of error in the brief of appellant; and, finding no reversible error in the record, the judgment of the court below is affirmed.

• Affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes

      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. MORROW et al.
    (No. 1445.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 8, 1919.
    Rehearing Denied Feb. 5, 1919.)
    1. Action <§=350(3) — Joinder of Causes — Pasties Involved.
    Where the brother of two sister's as their agent sent a telegram announcing their father’s fatal illness, held, that it was not improper, the cause of action being the same, for the two" sisters to join in a suit for damages for delay in delivery which precluded their attendance at the funeral.
    2. Appeal and Ereos @=>1170(4) — Review— Harmless Error.
    Plaintiffs’ joinder in an action against a telegraph company for delay in the delivery of a message held no ground for reversal under Rule 62a for the Courts of Civil Appeals (149 S. W.' x), the company not having been harmed.
    3. Appeal and Error @=>1039(2) — Harmless Error — Pleading.
    In an action for delay of death message, where plaintiffs alleged that had message been promptly delivered they could have reached place of funeral by use of railway facilities, failure to set out lines of transportation held harmless, if erroneous.
    4. Appeal and EIrroe @=»1039(13) — Harmless Error.
    . In an action for delay of death message, where ■ plaintiffs alleged that had message been promptly delivered they could have reached place of funeral by use of railway facilities, admission of evidence as to railway facilities, though same were not set out, held harmless.
    5. Telegraphs and Telephones <⅜=>29 — Interstate Commerce Act — Regulations Applicable.
    Act June 18, 1910, amending Interstate Commence Act (U. S. Comp. St. 1913, § 8563), so as to' include telegraph companies as common carriers, did not extend to such companies inapplicable regulations designed to govern carriers of different character.
    6. Telegraphs and Telephones @=54(7) — Nondelivery of Message — Interstate Commerce Act.
    Stipulation on back of telegraph blank as to damages for nondelivery held not binding in Texas, it not appearing plaintiffs had any notice, as required by Interstate Commerce Act, of any such regulation.
    7. Principal and Agent @=175(1) — Authority of Agent.
    That plaintiffs’ brother was their agent to notify' them of father’s fatal illness does not show he was their general agent and preclude recovery against telegraph company for delay of death message on ground that plaintiffs were bound by refusal of their brother, as their agent,' to delay funeral, for a general agency cannot be implied from principal’s acceptance of assumed agent’s- special act in one particular.
    8. Appeal and Error <§==>1066 — Harmless Error.
    Where there is no question of contributory negligence in the case, error in an instruction on contributory negligence is harmless.
    • Appeal from District Court, Collingsworth County; J. A. Nabers, Judges
    Action by Dora Morrow and another and Lillie C. Kelley and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed. ’
    Veale'fe Lumpkin, of Amarillo (Albert T. Benedict, of New York, of counsel), for appellant.
    Small & Mahan, of Wellington, and Fires & Diggs, of Childress, for appellees.
   HALL, J.

Mrs. Dora Morrow, joined by her husband, R. E. Morrow, and Mrs. Lillie O. Kelley, joined by her husband, F. P. Kelley, appellees, instituted this suit in the dis>-trict court of Collingsworth county against appellant, to recover in behalf of Mrs. Morrow and Mrs. Kelley $1,450 each, and the sum of 50 cents additional, which they alleged was the price paid for the transmission of the telegram. It is alleged that F. F. Foster, a brother of appellees, Mesdames Morrow and Kelley, residing at Waelder, Tex.; delivered to appellant at said place the following message:

“Waelder, Texas, December 5, 1916, 9:35 A. M. R. E. Morrow, Wellington, Texas. F'ather much worse. Dora and Lillie come at once. F. F. Foster.”

It is alleged: That, at the time said message was delivered to appellant’s operator, said Foster informed the operator that W. H. Foster, his father, was then in a critical condition and was not expected to live more than a few hours, and that his daughters mentioned in the telegram, when apprised of this fact, would at once come to Waelder to be with their father during his illness and to attend the funeral in the event of his death. That by reason of the negligence and carelessness of appellant said message was never transmitted to Wellington, and as a direct and proximate result of such negligence they were deprived of the opportunity of being at their father’s funeral. That had the message been properly transmitted and delivered they could and would have gone to Waelder, viewed his remains, and attended his funeral. Appellants answered that the message was sent under the terms of a special contract limiting the liability of appellant for its negligence; that the message was an interstate message, and was therefore governed by the Interstate Commerce Act approved June 18, 1910 (36 Stat. 539, c. 309). The ease was submitted to the jury upon special issues, resulting in a judgment in favor of each of the appellees, Mesdames Morrow and Kelley, in the sum of $530.

The first assignment is that the court erred in overruling and not sustaining the appellant’s exception to the petition upon the ground that it appeared therefrom that there is a misjoinder of parties plaintiff, for that it appears that each plaintiff has an independent cause of action against the defendant in no sense joint. Under this assignment it is insisted that any right of action accruing to Mrs. Morrow by reason of the negligence of appellant was a personal one, in which Mrs. Kelley had no interest and that Mrs. Kelley’s right of action was likewise separate and distinct from that asserted by Mrs. Morrow. Appellant relies upon the case of Western Union Telegraph Co. v. Campbell, 36 Tex. Civ. App. 276, 81 S. W. 580, and Anderson v. Western Union Telegraph Co., 84 Tex. 17, 19 S. W. 285, to sustain its contention. In the Campbell Case it appears that R. P. Watson and his daughter Mrs. Minnie Campbell, before leaving Shreveport, La., wired the husband of Mrs. Campbell at Garrison, Tex., as follows: “Meet Minnie and self at train to-night.” The telegram was never delivered to Campbell, who had left his own residence in the town of Garrison and gone to his father’s residence about a mile and a half away to spend the night. It is alleged that a heavy rain- fell in Garrison, causing the streets to be muddy, and that Mrs.. Campbell and Watson were compelled to walk 259 yards from the depot to the Campbell residence, which they found locked, and they were forced to return through the mud and chill of the night air to a hotel. Damages in the sum of $950 were claimed for Mrs. Campbell, who it is alleged got her feet wet and caught a severe cold. Claim was made for Watson for $1, hotel fare, and 25 cents, paid for the telegram, and $25 additional damages. There was a judgment in favor of Mr. and Mrs. Campbell for $200 and in favor of Mr. Watson for 25 cents. Neill, Justice, said:

“Mr. Watson’s cause of action is separate and distinct from that of his coplaintiffs, and was therefore improperly joined with theirs.”

The case as reported does not inform us of the nature of Watson’s claim, except as to the hotel bill of $1, and 25 cents for transmitting the telegram. The issue of mental anguish is not in the case. The claim of Campbell and wife is based upon the injury to Mrs. Campbell’s health, but Watson seems to have made no such claim. In such a case the holding of Judge Neill may have been proper, but we doubt if such would have been the holding had rule 62a (149 S. W. x) been in force. In the Andprson Case it appears that T. W. Anderson was near Hutchins at the Dallas county poor farm serving a sentence imposed for some misdemeanor; that his family resided in the city of Dallas; that his minor son, .S. E. Anderson, and the constable in the city of Dallas, wired the manager of the poor farm at Hutchins of the death of one of T. W. Anderson’s children and to release him from custody. Neither of these telegrams were delivered to him until the following day, and as the result of such negligence he did not reach Dallas in time to attend the funeral of his child. The suit was filed by T. W. Anderson, joined by his minor son, S. E. Anderson. The decision is by Garrett, presiding justice of the commissioners of the Supreme Court, in which it is said:

“There was no error in sustaining the defendant’s plea of misjoinder of parties and causes of action. It is doubtful if any cause of action at all is shown in behalf of the son, S. E. Anderson; but the petition does show a good pause of action in favor of the father. At least, they could not be joined.”

Tlie report of tlie case does not set out tlie appellant’s pleadings, but we may reasonably infer tbat the father claimed damages for being deprived of the privilege of attending his child’s funeral. No such claim could have been made by his minor son, who it appears from a perusal of the case was in Dallas, and, under the facts shown, the holding is correct. The facts in the instant case are altogether different. The brother of the ap-pellees, as their agent, sent the telegram for their benefit. The consideration paid the company for its transmission was paid for their benefit. The failure to deliver the telegram, considered in connection with the telegram itself, is their cause of action. H. & T. C. Ry. Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Westinghouse Elec. & Mfg. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; Planters’ Cotton Oil Co. v. Whitesboro Cotton Oil Co., 146 S. W. 225. The damages claimed by each is for mental anguish, growing out of the same transaction or rather cause of action. In Western Union Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982, the father alone sued for damages for mental anguish to himself and his wife because of the negligence of the company in the transmission of a telegram announcing that their son was dying in a distant town. Since any recovery by the wife would be community property, the husband was permitted to recover for .the sufferings of his wife in the same action in which he sought to recover damages for his own mental anguish. To the same effect is the holding of Judge Finley in Southwestern Telegraph Co. v. Dale, 27 S. W. 1059, in which it is said:

“Where damages to both husband and wife arises upon the same acts or transaction, recovery of damages sustained by each of them may be had in the same suit.”

The case of Western Union Telegraph Co. v. Burris and Wife, 147 S. W. 1173, is one in which the suit is filed by both husband and wife, and in which there was a joint recovery because of nervous shock and physical breakdown on the part of the wife, occasioned by the failure of the company to promptly deliver a telegram sent by. the wife to the husband announcing the serious illness of their daughter. The general rule is that the party for whose benefit the telegram is sent may "maintain the action. Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Western Union Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896. It is further held in the last-named case:

“That mental anguish, whether accompanied by injury to the person or not, is a proper element of actual damages; and, when caused by the negligence of the telegraph'company in failing to deliver a message, compensation therefor may be recovered by the injured party.”

The form of such action is in this state ex contractu rather than ex delicto. El Paso & Northeastern Ry. Co. v. Sawyer, 54 Tex. Civ. App. 387, 119 S. W. 110; Potts v. Western Union, 82 Tex. 545, 18 S. W. 604. In Dunn v. Smith, 74 S. W. 576, it appears that one Harry Smith died of smallpox in the pest-house of Dallas county; his mother, brothers, and sister contracted with J. E. Dunn ⅝ Co., undertakers, to inter the body; that the relatives of the deceased went to the appellant’s undertaking establishment, selected a coffin, with glass front, silver handles, etc., at an agreed price of $25, and selected a burial robe at the price of $3, to be delivered at the pesthouse that night; that appellant, instead of delivering the coffin and robe purchased, delivered a cheap pine box coffin and no robe at all; and,it is alleged that the box was too small to contain the remains, and that in an effort to crowd the body into the box a portion of the bottom of the box was detached, and the arms and legs of the corpse extended outside the box. By reason of that fact the appellees were prohibited from attending the burial. The appellant, by general and special exception, raised the issue of misjoinder of parties and causes of action. On appeal Rainey, Chief Justice, said:

“The plaintiffs having a joint interest in the contract made by them, with the ’defendant, they were entitled to a joint action for such damages as arose from a breach of the contract. Mental anguish being caused by the breach of said contract, a recovery therefor was authorized, and a joint action by them could be maintained. The plea of abatement on this ground, in our opinion, was not well founded.”

In the case of Flanders v. Wood, 83 Tex. 277, 18 S. W. 572, it appears that several architects had submitted to the commissioners’ court of Dallas county/ their several plans and specifibations for the erection of a courthouse, and that it was unknown to any of them whose plan would be accepted; that said architects agreed to retire from further contest and let their plans alone compete, and, Whichever plan should be accepted, the remuneration accruing to the author of such plans should be shared equally by all of the contestants. The suit was filed against the successful architect by the others to recover under the agreement. Oollard, Justice, said:

“The first assignment of error is that the court erred in holding that there was not a mis-joinder of parties plaintiff. The question was raised in the court below by exceptions to the petition. There was no error. In a suit to enforce a’ contract, all persons interested therein are proper parties. It would be a singular proceeding to require each of the parties to bring separate suits against the same defendant, on the same promise, subject to the same defenses. This suit was by two partners to compel the third to account, in the same amount, to each. We know of no authority that requires separate suits in such a case. Creditors holding separate claims against a debtor cannot join as plaintiffs in the collection of their debts (Blum v. Goldman, 66 Tex. 622, 1 S. W. 899), but that rule does not apply to this case.” Moore v. Minerva, 17 Tex. 20; Wilson v. Hampton, 2 Posey Unrep. Cas. 426; Harris v. Warlick, 42 S. W. 356.

It has long been declared by the courts in this state, even before the promulgation of Court of Civil Appeals rule No. 62a (149 S. W. x), that, unless it was shown that an improper joinder of parties plaintiff or causes of action had resulted in harm to the defendant, it would not be ground for reversing the judgment. Hall v. Murphy, 14 Tex. 637; Hartford Fire Insurance Co. v. McLemore, 7 Tex. Civ. App. 317, 26 S. W. 928; Texas, etc., Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; Dwyer v. Hosea, 1 Posey, Unrep. Cas. 596; Galveston, etc., Co. v. Heard, 91 S. W. 371; Thompson v. Griffin, 69 Tex. 139, 6 S. W. 410; Street Ry. Co. v. Helm, 64 Tex. 149; T. & P. Ry. Co. v. Andrews, 80 S. W. 390; Morris v. Davis, 31 S. W. 851; St. Louis & Southwestern Ry. Co. v. Hengst, 36 Tex. Civ. App. 217, 81 S. W. 833; G., H. & S. A. Ry. Co. v. Heard, 91 S. W. 372; Western National Bank of Ft. Worth v. Texas Christian University, 176 S. W. 1194. It is held by some of the cases above cited that the question of the joinder of causes of action is one within the sound discretion of the trial judge and his ruling will not ordinarily be reviewed on appeal unless it is clear that such discretion has been abused, and such is the holding in Texas Brewing Co. v. Bisso, 50 Tex. Civ. App. 119, 109 S. W. 270. The same rule obtains as to the consolidation of causes of action though technically irregular. Harle v. Langdon, 60 Tex. 585; Lesley v. Elliott, 26 Tex. Civ. App. 578, 64 S. W. 1037; Blackman v. Housels, 35 S. W. 511; Moore v. Francis, 17 Tex. 28; Young v. Gray, 65 Tex. 99. It has been the policy of the Texas courts, under our liberal procedure, to discourage a multiplicity of suits and to favor a joinder of parties and causes of action when injury will not likely result. Appellant has shown no injury in this case; but, on the contrary, we may presume that in the matter of costs the joinder has resulted in pecuniary benefit to the company. '

Appellant further assigns as error the action of the court in overruling its exception numbered D, to the following allegation in the petition:

“Plaintiffs say that R. E. Morrow resided in the town of Wellington and that, had defendant used ordinary diligence and care in transmitting said message, it would have been received in the •town of Wellington by 10 o’clock a. m., December 5, 1916, where it would have been promptly delivered to the said R. E. Morrow, * * * and that if said message had been so delivered plaintiffs could and would have left Wellington on the afternoon of December 5th and could and would have reached Waelder, Tex., on the evening of December 6th, by the use of the railway facilities connecting the two points.”

In its answer appellant admits that appel-lees could ¿ave reached Waelder on Friday December 8th. However, we will consider the exception to that part of the pleading quoted, which urges that the allegation is merely a conclusion of the pleader and insufficient, because it fails to state by or over what lines of transportation they could have reached Waelder, or what facilities or agencies they would have availed themselves of in making the said journey.

Under another assignment appellant urges that the court erred in permitting the plaintiffs and other witnesses to give in detail the route traveled and necessary to be traveled in going from Wellington to Waelder and in testifying as to the schedules of the several trains with the connections, delays,' and changes en route. Both assignments present practically the same question and will be considered together. Strict application of the rules of pleading would possibly require ap-pellees to allege the particular roads over which they would have traveled and show the train schedules and connections, by means of which they could have reached Waelder in time for the funeral (Western Union Tel. Co. v. Forest, 157 S. W. 204), though the contrary is held in this state (Western Union Telegraph Co. v. Rowe, 44 Tex. Civ. App. 84, 98 S. W. 228). It was plaintiffs’ duty, of course, to travel over the route which would enable them to reach Waelder in the shortest time. They could not select a more circuitous line of travel and hold appellant liable. The pleading is notice to appellant that appellees would have made use of the railway facilities connecting the two towns, and appellant could easily have obtained all the information necessary for its defense by reference to the usual and common sources of information as to trains and schedules. Having alleged that appellees would travel by rail, appellant knew that the trip would not be made by auto or other means of conveyance. It does not appear that appellant has been injured by the courus ruling upon the exception to the pleading or surprised by the admission of the evidence. The errors therefore are harmless.

Under the third assignment it is urged that, the telegraphic message being an interstate message, the rights of appellees are controlled by the Interstate Commerce Act, and, because of the contract printed on the back of the message blank limiting the sum to be recovered to $50, appellees were not entitled to recover, if at all, any amount exceeding the sum fixed. It is held in Western Union Telegraph Co. v. Piper, 191 S. W. 817, that the Act of June 18, 1910, c. 309, 36 Stat. 544 (U. S. Comp. St. 1913, § 8563), amending the Interstate Commerce Act, classifying telegraph companies as common carriers, does not subject such companies to the operation of wholly inapplicable regulations originally designed to govern carriers of altogether a different character. So that the federal statute has no application to the rules of decision in the several states governing controversies growing out of the negligence of the company in transmitting messages. It is not shown here that appellees had any notice, as required by the Interstate Commerce Act, of' any such regulation, and they are not bound by the stipulation found on the back of the blank.

It is contended under the sixth assignment that because E. E. Eoster, the sender of the telegram, acted as the agent of appel-lees, in notifying them of the condition of their father, he was their agent for all purposes, and they are bound by his refusal* to delay the funeral until their arrival. A general agency to do certain things cannot be implied from the fact that an assumed agent’s special act in one particular has been accepted. Foster was the agent of his sisters only in a special sense and in so far as they had adopted his acts. The jury found that Eoster was not guilty of contributory negligence in the matter of burying the deceased when he did, and that he acted on his own responsibility, and not as the agent of appellees, in doing so. We think this finding is correct.

Even though the definition of “contributory negligence” given-by the court is erroneous, it is not ground for reversal, since, in so far as the rights of appellees are concerned, there is no question of contributory negligence in the case.

It is unnecessary to consider the remaining assignment. There is no reversible error in ■the record, and the judgment is affirmed.
      <gss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    ABLES v. WAGGONER.
    (No. 8115.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1919.)
    1. Injunction <§=>241 — Bond—Pleading and Proof — Misnomer of Obligee.
    Without pleading and proof of mistake in injunction bond in favor of defendant B. E. W., held that judgment against surety on cross-complaint of defendant D. E. W. was unauthorized, despite statutory requirement that bond be payable to adverse party.
    2. Injunction <§=>235 — Injunction Bond — Misnomer oe Obligee.
    It is not contemplated that mistake in making injunction bond to B. E. W. instead of D. E. W., the real name of defendant, shall relieve surety of liability, but the obligee may plead and prove mistake and show true intention of parties.
    ,3. Injunction <§=>241 — Injunction Bond — Judgment against Surety — Evidence.
    Judgment, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4667, on cross-complaint against surety on bond to procure injunction against disposition of notes assigned to defendant by seller of automatic piano to plaintiffs, being for amount of principal, interest, and attorney’s fees of notes, held without support in evidence.
    Error from Dallas County Court; T. A. Work, Judge.
    Suit by J. A. Johnson and Will Henderson against'the Automatic Music Manufacturing Company, plaintiffs impleading D. E. Wag-goner, and executing bond, with A. 0. Sage and A. H. Abies as sureties, to procure issuance of writ of injunction, Waggoner bringing cross-action, praying judgment against plaintiffs and the sureties on the injunction bond. To review judgment for defendant, Waggoner, against plaintiffs and the sureties, one of the latter, A. H. Abies, brings error.
    Reversed and remanded.
    Bumpass & Crumbaugh, of Terrell, for plaintiff in error.
    W. T. Henderson and Davis, Johnson, Golden & Handley, all of Dallas, for defendant in error.
   RASBURY, J.

J. A. Johnson and Will Henderson sued the Automatic Music Manufacturing Company in the county court of Kaufman county to cancel certain negotiable promissory notes executed in part payment of a pian.o. Subsequently Johnson and Henderson impleaded D. E. Waggoner in the suit, alleging, in substance, that he was asserting ownership of the notes by purchase from the Automatic Music Manufacturing Company, and that if the notes had been transferred to Waggoner he acquired same with notice that the consideration for which they were given had failed, and in furtherance of a conspiracy to defraud Johnson and Henderson, including other matters not necessary to detail. Prayer was that Waggoner be cited to appear and answer, and that pending hearing mandatory injunction issue, requiring Waggoner to bring into court the notes held by him, and that he be restrained from in any manner disposing of, hypothe-cating, or transferring the notes pending trial, and that on trial they be canceled. By order of the trial judge the clerk of the county court was directed to issue the writ in terms of the order indorsed on the petition whenever Johnson and Henderson had executed a bond in the sum of $1,300, payable to D. E. Waggoner. A bond in said sum, signed by plaintiffs and by A. O. Sage and A. I-I. Abies, as sureties, conditioned as required by law and payable to B. E. Waggoner, was tendered to and approved by the clerk and filed in the proceeding. Under authority of said bond the statutory writ of injunction was issued, directed to B. E. Waggoner, commanding him “not to sell, transfer, convey or in any manner change the present status of said notes during the pendency of this suit until” the further order of said county court. The writ was served by the sheriff of Dallas county upon D. E. Waggoner. The case, it inferentially appears, was transferred from the county court of Kaufman county to toe county court of Dallas county, at law. In the latter court Waggoner filed amended pleading, denying the facts alleged by Johnson and Henderson, and by cross-action alleged that he was the owner of nine of the notes sought to be canceled, which he acquired before maturity for value and without notice of any defenses thereto, and that due to the fact that he had been restrained from proceeding to collect same, though past due, and foreclose the lien on the piano given in security therefor, which would probably have sold for sufficient to satisfy said notes, said security had deteriorated to such extent that he would be unable to satisfy said debt by the sale of said security, and that the said Johnson and Henderson were insolvent, and had not in the state of Texas property subject to execution sufficient to satisfy said debt. Prayer was for judgment against Johnson and Henderson and the sureties on their injunction bond for his damages and debt, interest, and attorney’s fees, and the statutory penalty of 10 per cent, and for foreclosure of the chattel mortgage lien upon said piano. At the succeeding term of the court and on appearance day, Johnson and Henderson failing to appear, Waggoner was awarded judgment by default, but the damages were not assessed until the case was called in its regular order, at which time evidence was introduced and final judgment awarded Waggoner against Johnson and Henderson and the sureties on the injunction bond, A. O. Sage and A. H. Abies, for $618, being the principal, interest, and attorney’s fees upon the notes held by Waggoner, for $44.51, statutory damages, for foreclosure of the chattel mortgage lien and dissolution of the writ of injunction. The evidence introduced at the hearing consisted of the injunction bond, the writ issued thereon with the sheriff’s return, the notes and chattel mortgage, together with proof by Waggoner that he purchased the notes from the Automatic Music Manufacturing Company for value before maturity, and that they were all past due and unpaid. Prom the judgment recited A. H. Abies, one of the sureties on the injunction bond, has brought the case to this court by writ of error for revision, and has assigned error in that respect.

The first contention, in effect, is that the court erred in rendering judgment against Abies for the reason that the pleading and proof will not sustain it, in that the bond signed by Abies is in favor of B. E. Waggoner, while the judgment is in favor of D. E. Waggoner. The contention is, in our opinion, sound. The bond signed by Abies obligated him to pay to B. E. Waggoner all sums of money and costs that might be adjudged against him as surety. The undertaking was not to pay any sum to D. E. Waggoner. It is obvious, of course, that the intention was to make the bond to D. E. .Waggoner, and that by mistake it was made payable to B. E. Waggoner. And in such cases it is not contemplated that such mistake shall relieve the surety of liability, since the obligee may in his suit against the obli-gor plead and prove the mistake and show the intention of the parties. Collins v. Chas-tain, 30 S. W. 503. In that case the surety obligated himself to pay the debt of M. B. Collins. Judgment was rendered against him for toe debt of C. H. Collins. The judgment was reversed, the court declaring “there was neither allegation nor proof to the effect that the name of M. B. Collins had been inserted in the bond * * * by mistake.” Nor was any “attempt made to reform the bond.” So in the present case there was no allegation, and as a consequence no proof, that the bond was intended for the benefit of D. E. W&ggoner, but by mistake was made to B. E. Waggoner. Counsel argue, however, that since the statute requires the bond to be payable to the adverse party the only matter with which we should seriously concern ourselves is whether or not D. E. Wag-goner is the adverse party, and it appearing without controversy from the record that he is, the mistake becomes immaterial. The statute does require the bond to be payable to the adverse party, and D. E. Waggoner we concede is the adverse party. The difficulty lies in the fact that the statutory requirement was not complied with by making the bond payable to such adverse party. To hold that one obligated to B. E. Waggoner is bound to D. E. Waggoner, in the absence of pleading and proof of mistake in the execution of the obligation, is, in our opinion, in violation of the fundamental rule in such matters, since until there is pleading and proof it is not established that there was a mistake, and unless there was a mistake, a judgment other than according to the terms of the obligation is unauthorized.

It is also contended, in effect, that the court erred in rendering judgment against Abies, one of the sureties on the injunction bond, for the amount of the principal, interest, and attorney’s fees of the notes, for the reason that such judgment was without support in the evidence. This contention must also be sustained. Article 4667, Vernon’s Sayles’ Civ. Stats., in substance • provides that in case injunction restraining the collection of money is dissolved the court may, if satisfied the writ was obtained for delay, award as damages 10 per cent, of the amount of funds released by the order of dissolution. The injured party, however, is not precluded by the provisions of the statute from recovering further damages against the sureties on the bond, but is not entitled, as a matter of course, to recover from the sureties on the bond the amount of his debt against the principal merely upon proof thereof. The measures of damages in such cases is ordinarily the statutory penalty unless, by pleading and proof, it is made to appear that other damages proximately resulting from the issuance of the writ have ■been occasioned. T. & N. O. Ry. Co. v. White, 57 Tex. 129; Fernandez v. Casey, 77 Tex. 452, 14 S. W. 149; Wood v. Hollander, 84 Tex. 394, 19 S. W. 551; Patterson v. English, 142 S. W. 18; Hicks v. Murphy, 172 S. W. 1135. Counsel for Waggoner, recognizing the rule just .stated, pleaded that Johnson and Hen■derson were insolvent, and that, due to the delay brought about by the injunction, the .security for the payment of said note had •deteriorated in value, and he would be unable to realize his debt therefrom. An inspection •of the evidence fails to disclose, however, .any proof whatever in support of such allegation. No proof was offered concerning the •probable value of the security at the time the injunction was issued and its piobable value at the time the injunction was dissolved and foreclosure of the lien was had. No proof was made that due to the delay occasioned by the issuance of the writ the original defendants, Johnson and Henderson, were any less solvent or less able to pay the notes; in truth no single fact or circumstance was adduced which would authorize a judgment against Abies for more than the statutory penalty. The evidence being so, it is our duty to reverse and remand the case for another trial consistent with the views herein expressed; and it is so ordered.

Reversed and remanded.
      <§=cEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALKER, J.-

text:
    STARK v. STAFFEN.
    (No. 419.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 1, 1919.)
    1. Boundaries <§=»35(3) — Evidence — Admissibility.
    In a suit to determine boundary line, testimony of one who had assisted surveyors in running the line many years previously, had lived near, and knew the claims of parties, one being his uncle, relating to the boundary line, was properly admitted before the jury.
    2. Appeal and Error <§=>1001(1) — Review —Evidence.
    Where there was abundant testimony to sustain verdict locating boundary line, verdict will not be disturbed on appeal.
    Appeal from District Court, Orange County; W. T. Davis, Judge.
    Trespass to fry title by Charles Staffen against W. H. Stark. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Holland & Holland, of Orange, for appellant.
    V. A Collins, of Beaumont, for appellee.
   WALKER, J.-

This is a suit brought in trespass to try title, by which appellee seeks to recover from appellant 120 acres of land alleged to be a part of the Stephen Jett league in Oirange county, Tex. In reality, it is a suit to determine the location of the dividing line between the Jett league and the Dykes survey. The appellee claims no land on the Dykes survey, and the appellant claims no land on the Jett league. This case was submitted to the jury on one issue, as follows:

“Is the line as claimed hy the plaintiff, Charles Staffen, or the line as run hy Mi’. Cox, the original south boundary line of the Stephen Jett survey?” To which the jury answered, “As claimed by Staffen.”

On this answer, the court entered judgment fo*r appellee for the title and possession of the land as described in Ms petition.

On this appeal appellant asserts two propositions, to wit:

(a) “The burden of proof rested upon the ap-pellee to establish by legal evidence the fact that the land sued for was located on the Stephen Jett league, and failing to offer any probative evidence as to the true location of the Stephen Jett league, and it being shown by undisputed evidence that a portion of the land sued for was in fact located on the Wesley Dykes survey owned by appellant, and the ownership of the portion of the land sued for being the only dispute, the trial court should have instructed a verdict for 'appellant.”
(b) “In the state of the record, it being an undisputed fact that a portion of the land sued for was located on the Wesley Dykes survey, admittedly owned by appellant, and not located upon the Stephen Jett league, and no probative evidence having been offered showing a conflict between the said surveys or that the said land was part of the Stephen Jett league, judgment for appellee for this portion of the tract of land sued for is without evidence to support it.”

On the location of this line, appellee introduced the following testimony by Jóe Foreman:

“My name is Joseph H. Foreman. I am reflated to one George Foreman, tax assessor here. He is my brother. I have lived in this county all my life, 47 years. * * * I think when the fence on the south of the Staffen tract was first put up there Uncle Joseph Bland built it. Old man Joe Bland was my uncle. I remember the time that fence was built there. * * * It was a good many years ago. It was a good many years ago when that fence on the south line was built by old man Joseph Bland. He lived out there then. He did not live on the Jett tract. When he built that fence, he built it clear across the south part of the tract that Mr. Staffen claims here. * * * I think I know, where the Jett south line is. At least, it was established as the old line of the Jett survey. When Uncle Joseph Bland bought that land, he built it on the line that had been considered in the community as the Jett line. I know where that old gum tree stood down there. It is dead and rotted away, but I can show any one where it stood. That gum stood right on the south line of the Jett survey right by it. I have seen that tree lots of times when it was standing. * * * The first time I had my attention called to that tree, it was about 25 years ago. It was then considered on the south line of the Jett survey. Joseph Bland was at one time county surveyor of this county. I have heard my uncle Joseph Bland say that was the south line of the Jett survey. That fence was built there on that line. He didn’t claim the Jett, but he claimed another survey south of there, and he built that fence for his line fence. That would be the north line of the Dykes. It would be the south line of the Jett and the north line of the tract he had on the Dykes. He was a very old man when he died. He has been dead 2 or 3 years. * * * He was personally present when the fence was being built. Sometimes he would be out there, and sometimes he wouldn’t. He went ahead and staked it off, and he had another man to put up the fence, and sometimes he would come around where they were at work, and sometimes he wouldn’t. * * * I have known personally where the south line of the Jett was reputed to be for about 30 years. I have owned land on the Jett that runs down to the south line of the Jett, that runs down as far south as Mr. Staifen’s land. We have owned that land about 30 years. My father bought it. I have always considered my south line the same as Mr. Staffers south line. If my south line is the same as Mr. Staffen’s south line, I suppose the Staf-fen tract will all be on the Stephen Jett survey. I have had the line that I claim on the Jett fenced for about 30 years. * * *
“My fence joined my Uncle Joe Bland’s fence on the south line, he holding on the Dykes and I holding on the Jett, considered that the line about 30 years ago. * * * I have helped run the south line of the Jett with a surveyor. I couldn’t tell you when I helped run it. It was when I was a boy. We ran that line right where that sweet gum is. We saw signs of the line along there then. We saw marks on the trees right along the line we ran. I wa’s with old man Cleveland and old man Morgan. I have been with both them when they surveyed it. Cleveland was a surveyor. I have been with both these men when they ran what they claimed to bo the south line of the Jett. * * * My father bought from Hugh Ocheltree. This was the line he was running for the Hugh Ocheltree tract when I helped survey it. I don’t know how many marks or signs I saw at that time; I saw a good many. I saw some hacks on some trees. I couldn’t tell you what it was, whether it was X’s or S’s, or what, just marks on trees. I found them along regular in a straight line. They looked to me like they were pretty old then. They were healed over and cured up. I found some marks on this -particular old gum. * * * I found some marks on both sides, some of the trees going to the east, and some to the west, all going along in the same straight line. My father was along at the time we surveyed that land. My father got Cleveland to come out there and survey it. I don’t recollect whether my Uncle Joe Bland was along or not. There were several along, but I don’t know who all they were. When my Uncle Joe bought the land on the Dykes, he recognized the same line .Cleveland ran for our south line there. I suppose he recognized my father’s line as run by Cleveland as being the true line. That is where he put the fence. It was about the time my father bought that land that we were trying to locate that south line there. * * * On that line that we ran all trees to the cast and trees to the west of that old gum we found marks, and they looked old then. * * *
“Q. I will ask you if Joe Bland ran this fence so as to inclose the land he claimed at that time? A. Yes, sir; I couldn’t answer otherwise.”

The appellant introduced two surveyors, T. G. B. Cox and T. B. Daniels. They ..located the line between the Jett and Dykes as contended for by appellant. This testimony by Mr. Foreman was properly admitted before the jury, and it was for the jury to decide from all the facts before them the truel location of this line. There being abundant testimony in the record to sustain the verdict of the jury, we will not disturb it.

Finding no error in the record, this case is affirmed.
      <®=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    WESTERN INDEMNITY CO. v. MURRAY.

    (No. 913.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Insurance <®=»146(3) — Bonds — Construction.
    Where a surety bond is fairly open to two. constructions, one of which will uphold and the other defeat claims against the surety, that which is most favorable to claimants will be-adopted.
    2. Municipal Corporations <@=>703(1) —<- Jitneys — Bonds — Construction.
    Though city ordinance for the licensing of operators of jitney busses required such operators to file a bond in the amount of $1,000 conditioned on payment of all damages from negligence, etc., declared that in no event should the sureties be liable for more than the amount of the bond, yet, where a bus operator filed two-bonds each in the amount of $1,000, the liability of the sureties is not restricted to $500 each, and in event of a judgment for more than $2,000 against the operator, surety is liable to the full amount of the bond, though the other surety had paid $900 in compromise of the claim against him.
    Appeal from District Court, El Paso County; Bañará Coldwell, Judge.
    Action by Margaret Murray against the Western Indemnity Company and others.From a judgment for plaintiff for part only of the recovery sought, the named defendant appeals, and plaintiff cross-appeals.
    Judgment rendered for plaintiff on the cross-appeal.
    Ware & Norcop and C. H. Kirkland, all of Ei Paso, for appellant.
    E. M. Whitaker and Ponder S. Carter, both of El Paso, for appellee.

      Writ, of error granted by Supreme Court April 2, 1919.

   HARPER, C. J.

Margaret Murray brought this suit, as the surviving wife of Harry Murray, against certain railway companies comprising the El Paso & Southwestern System and E. Martinez, the latter alleged to be the owner and operator of a jitney bus, for damages for negligent killing of her husband, and joined as defendant the appellant, Western Indemnity Company, and seeks to recover the full amount of an indemnity bond for $1,000 executed by the latter company for the purpose next detailed.

Martinez, being desirous of operating a jutney bus in the city of El Paso, it became necessary for him, because required by city ordinance, to secure a license, and to secure a license it was required that he file with the city, clerk a bond in the sum of $1,000. This bond was filed by appellant. The condition of said bond is that:

“Said Martinez * * * should make prompt and faithful payment of all damages which he and the said indemnity company or either of them should * * * be condemned to pay on account of injury to the person or property of any other person by reason of the negligence of the said Martinez or his agents or employés, etc., in connection with the operation of the jitney bus.”

The appellant for defense says: That defendant, Martinez, in addition to the bond sued on and subsequent, executed a similar bond with the Maryland Casualty Company as surety, and filed it with the city clerk; that the latter company thereby became a cosurety with this defendant for the bond to satisfy the requirements of said ordinance.

That the Maryland Casualty Company has since the institution of this suit paid the plaintiff herein the sum of $900 in consideration of a release of all its liability for damages claimed in this suit, and that it operated as a credit in that amount upon the bond sued on. Therefore it, Western Indemnity Company, is only liable for the sum of $100 in case a recovery be had against said Martinez.

Before trial, the railway companies compromised with plaintiff, and paid $3,000 for a release of her claim against them.

' The case was submitted to a jury upon special issues as against Martinez. The jury found that Martinez’ negligence was the proximate cause of the death, and assessed the damages at $10,000, and upon this verdict the trial court entered the following judgment:

“That Margaret Murray recover of the Northeastern Railway Company $3,000; that this compromise with the railroad companies is in no way to act as a release or discharge of defendant, Martinez, or the Western Indemnity Company. It appearing that the claim against the Maryland Casualty Company had been compromised and $900 paid, and it further appearing that the Western Indemnity Company and the said Maryland Casualty Company were co-sureties upon the obligation of Martinez, * * * it is ordered and decreed that plaintiff recover one-half or $500 of the defendant Western Indemnity Company.”

From which the latter appealed, and has assigned one error, viz:

“The court erred in entering judgment for $500 against the Western Indemnity Company •s * * because, the plaintiff having received $900 from the Maryland Casualty Company on account of the same injury, the city ordinance and the terms of the bond limited the liability of the surety or sureties to $1,000.”

The propositions are:

(1) The two companies were cosureties to each other.

(2) the city ordinance, reading as follows:

“ * * * Which bond shall be in the sum of $1,000.00 for each vehicle that such applicant shall be licensed to operate * * * but in no event shall the surety or sureties thereon be liable for more than the amount of such bond”

—limited the amount which may be recovered to the amount fixed. (3) Therefore the court should have allowed appellant credit for $900 paid by the Maryland Casualty Company, its cosurety, and have rendered its judgment for plaintiff for only $100.

These indemnity companies have executed separate and distinct bonos for distinct amounts. The purpose of these bonds was to indemnify — not the city, but all persons who, by reason of the negligence of the principal (Martinez) might thereafter suffer damages in person or property, and in case the principal defaulted. The purpose of this defendant’s bond filed with the city, in addition to the above, was that a license might be issued, permitting its principal to operate a jitney bus upon the streets of El Paso, and this -bond alone served that purpose, for upon it the license was issued. It therefore seems evident that the act of executing and filing the bond of Maryland Casualty Company was for the purpose of an additional' $1,000 indemnity to persons suffering damages. The clause in the city ordinance that “in no event shall the surety or sureties thereon be liable for more than the amount of such bond,” if it has any legal effect, it is no more than the restrictions placed upon obligations of like character by the law. No one is held to pay more than the amount of his obligations. The question here is: Do these bonds obligate the two companies to pay the sum of $1,000 and no more? “Where the bond is fairly open to two constructions, one of which will uphold and th'e other defeat the claim of the insured, that which is most favorable to the insured will he adopted.” R. C. L. § 201, vol. 21, p. 1162. American Surety Co. v. Pauley, 170 U. S. 133, 18 Sup. Ct. 552, 42 L. Ed. 977. There is no reason why this rule should not be applied to the facts of this case.

The appellant by the provisions of this bond bound itself to pay $1,000 in case of default of its principal — the latter defaulted to the extent of many thousand dollars. Its obligation is. in no sense a joint undertaking with the Maryland Casualty Company, but is separate and distinct. Therefore the fact that the latter afterwards executed a similar bond could not relieve defendant from paying the full face of its bond so long as any amount for which Martinez is liable is left unpaid.

The rule of contribution might apply as between appellant and the Maryland Casualty Company, if the amount of default had not been more than $1,000, but where, as in this case, there are two separate and distinct bonds, each supported by its own monthly payments of premium, the assured, the person injured, must be held to be entitled to recover upon both up to the amount of the bonds if the liability and default is that much. It follows that appellee is entitled to judgment here, upon his cross-assignment, for $500 in addition to that given by the trial .court.

The judgment of the trial court is therefore here rendered for $1,000.
      ©==jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes