author: CARL, J. Brazoria

text:
    BRAZORIA COUNTY v. ROTHE et al.
    (No. 5186.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1914.
    On Motion for Rehearing, July 1, 1914.)
    1. Public Lands (§ 173) — School Lands— Power op Counts' Court — Delegation op Authority.
    As the commissioners’ court of a county is the trustee of school land owned by the county, it cannot delegate to others the authority to sell the land, for the sale of the land involves an exercise of discretion, and a trustee cannot delegate any duty involving the exercise of discretion.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    2. Public Lands (§ 173) — Sale op School L AND — R ATIFIC ATIO N.
    The commissioners’ court of a county delegated to others the power to sell county land. Pursuant to this power the agents sold the land for an adequate consideration, only part of which was paid in cash. Thereafter, the remainder of the consideration having been paid, the court of county commissioners directed the treasurer to execute to the purchaser a release of the mortgage retained. Held that, while the first sale did not pass title because the court could not delegate to others its functions as trustee, there was a complete ratification of the acts of the unauthorized agents, and the county could not thereafter question the sale.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    Appeal from District Court, Medina County ; R. H. Burney, Judge.
    Action by Brazoria County against Louis Rothe and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Masterson & Rucks, W. T. Williams, and Louis J. Wilson, all of Angleton, for appellant. De Montel & Fly, of Hondo, Webb & Goeth, of San Antonio, and W. D. Love, of Uvalde, for appellees.

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

   CARL, J. Brazoria

county brought this suit, in the form of trespass to try title to one league and labor of land situated in Uvalde and Medina counties, against Louis Rothe, J. M. Kinkaid, W. B. Biggs, D. D. Groce, W. P. Locke, A. C. Rothe, and W. B. Locke. The survey is known as No. 906 in section No. 6 patented to the school commissioners of Brazoria county by the state of Texas on April 27, 1848.

Louis Rothe, J. M. Kinkaid, W. B. Biggs and wife, Maggie Biggs, August Rothe, W. P. Locke, and W.'B. Locke answered and filed a cross-action against Brazoria county for the recovery of the title to and possession of certain parts of the land in controversy. In addition to the usual pleas of not guilty, these defendants asserted title in this manner: That Brazoria county, acting by and through an order of the commissioners’ court of said county, dated and entered November 16, 1876, sold said surveys Nos. 905 and 906 in Medina and Uvalde counties, through agents and commissioners duly appointed to make such sale, to one W. S. Thompson for the sum of $1,381.50 cash and $5,576 evidenced by four notes; that said price was a reasonable and fair market price of said land, and that the sale was duly approved by the commissioners’ court of Brazoria county on March 23, 1877, by an order duly made and entered by said court; that conveyance of said land was made to said W. S. Thompson; that said W. S. Thompson paid to the county the full amount of the purchase money, and that thereafter the county of Brazoria, through its commissioners’ court, by an order duly made and entered, directed and caused to be executed and delivered an instrument of writing whereby said county granted, bargained, sold, released, conveyed, ratified, and confirmed all of said land to said W. S. Thompson, his heirs and assigns; that said county of Brazoria ratified, recognized, and confirmed said sale by its acts and conduct ever since said sale was made, and used, appropriated, and accepted the benefits of the purchase money for more than 33 years. These defendants also im-pleaded John N. Warden and wife, Prances E. Warden, Lulu Thompson (afterwards Nutt), and her husband, Albert Nutt, John N. Garner, E. Gray and wife, Martha A. Gray, Ed Bell and wife, D. J. Bell, on their respective warranties.

. John N. Garner and Albert Nutt and wife, Lulu Nutt, answered and adopted the answer and cross-petition of the defendants, Louis Rothe et al., in so far as the same is in answer to the plaintiff’s suit, and further answered the cross-action of the defendants on warranties by demurrer, denial, and that said defendants had received the use and rents of said land.

In a supplemental petition Brazoria county answered the cross-petitions by demurrers, denial, and plea of not guilty, and denied specially that any valid and legal sale of the land or any part thereof had ever been made by the commissioners’ court of Brazoria county, or that any legal, or valid order was ever made by its commissioners’ court authorizing the sale of said land or any part thereof, or that any valid and legal order was ever made approving .a sale thereof to 'W. S. Thompson, or that the commissioners’ epurt or any authorized officer or agent of Brazoria county ever received or accepted 'and paid into the permanent school fund of said county the sum of $1,381.50 in money alleged to have been paid by W. S. Thomp* son, or the proceeds of said notes, or that the permanent school fund of Brazoria county ever received any benefit from the alleged sale to Thompson, or that the commissioners’ court or any other authorized officer or agent of the county has in any .manner ratified or approved the sale of said land to Thompson. It was further pleaded that .the county was not liable or bound to return or to tender to W. S. Thompson, his heirs or assigns, the $1,381.50 paid and the amounts of said notes in order to be entitled to Judgment for title and possession of the land; but, if the court should decide that said sums should be returned from the permanent school fund of the county, that the judgment should be foi plaintiff for the land on condition that Bra-zoria county pay the amount of money so received by. the permanent school fund of Brazoria county into the registry of the court.

The suit was dismissed by plaintiff against defendant D. D. Grace, and Louis Rothe et al. dismiss their action against John N. Warden and Frances E. Warden. The trial was before the court from April 29, to May 1, 1913, and judgment was for defendants, excepting defendants on warranties.

Findings of Fact.

(1) Survey No. 906 of the land in controversy was patented by the state to the school commissioners of Brazoria county on April 27, 1848; and survey No. 905 was patented to the school commissioners of that county on April 7, 1848.

(2) The commissioners’ court of Brazoria county, on November 16, 1876, made and entered upon the minutes of that court the following order:

“State of Texas, County of Brazoria.
“Copy of decree made by commissioners’ court of said county at a regular meeting of said court November 16/76.
“Whereas by virtue of section 6, article 7 of the Constitution of the state of Texas entitled ‘Education — The Public Free Schools’ — it is ordained that all lands heretofore granted to the several counties of this state are of a right the property of said, counties, and it is therein among other things provided that ‘each county may sell or dispose of its lands in whole or in part, in manner to be provided by the commissioners’ court of the county,’ and the proceeds thereof when sold shall be held by said counties alone as a trust for the benefit of the public schools therein; and whereas many coun-, ties are availing themselves of said provisions of the Constitution, and thereby disposing of their lands; and whereas the lands belonging to the county of Brazoria are unproductive and yielding no income to said county for the maintenance or support of the public free schools, and it is deemed advisable, judicious, and to the interest of said county that said lands should be sold or disposed of, in whole or in part, as is thereby authorized by said provision of said state Constitution: Therefore, be it resolved by the commissioners’ court of Bra-zoria county, Texas, that Erwin N. Wilson and Andrew J. Burke, Jr., Esqrs., be and they are hereby constituted and appointed commissioners to make sale and conveyance on behalf of said county of Brazoria, and on behalf of the commissioners’ court of said county of Bra-zoria, Texas, of all lands heretofore granted to said county of Brazoria for education or schools; and said E. N. Wilson, and A. J. •Burke, Jr., are hereby fully authorized and empowered to sell said lands in' whole or in part, for cash or on time, taking notes for deferred payments payable to them as commissioners as aforesaid, secured by lien on the land for which said notes are given, at such price or prices as in their judgments they may deem reasonable and proper; and upon such sale or sales, good and valid deeds of conveyance of said land, to make and deliver in behalf of said county of Brazoria; and in behalf of said commissioners’ court of said county of Brazoria, to the purchaser or purchasers thereof, and said Erwin N. Wilson and A. J. Burke, Jr., commissioners as aforesaid, be and are hereby fully authorized and empowered to employ a surveyor or surveyors, if they so desire, and determine, and to cause said lands to be surveyed and subdivided into, tracts of such size and. description as may seem to them advantageous; and said Erwin N. Wilson and A. J. Burke, Jr., be and are hereby authorized to sell said land, in whole or in part, to such person or persons for such price or prices, on such terms as they may determine upon, hereby giving and granting to said Erwin N. Wilson and A. J. Burke, Jr., full power and authority to exercise freely their discretion in the manner of said sales and the terms thereof, and all deeds executed and delivered by said Erwin N. Wilson and A. ' J. Burke, Jr., as commissioners as aforesaid, shall be binding,. conclusive and effectual in behalf of said county of Brazoria, and upon the commissioners’ court thereof, and it is expressly provided that all reasonable and neepssary expenses incurred by said Erwin N. Wilson and Andrew J. Burke, Jr., including traveling expenses, surveyors’ 'fees, investigation fees and all other incidental expenses connected therewith shall be reimbursed them bv said county of Brazoria; and Erwin N. Wilson and Andrew J. Burke, Jr., shall be and are hereby authorized to receive and retain reasonable commission' and compensation upon all sales made by them of said lands or any part thereof, said compensation to be not only a reasonable commission upon all cash received by them, but also a reasonable commission upon the amount of all note or notes taken by them, or received in part payment of said lands or any part thereof, and a special lien upon all cash payments, and upon all notes taken or received by them as aforesaid, .is hereby granted to said Erwin N. Wilson and A. J. Burke, Jr., to secure their commissions, compensation and expenses aforesaid. A certified copy of this decree, recorded in each county in which said lands are., situated, shall be deemed and held full evidence of the authority of said Erwin N. Wilson and A. J. Burke, Jr., in the premises ; and all sales of said lands made by said Erwin N. Wilson and Andrew J. Burke, Jr., commissioners as aforesaid, and all acts of said commissioners in relation thereto, shall be and áre hereby decreed valid, binding and conclusive on the commissioners’ court of said county, and upon said county of Brazoria.”

(3) On February 15, 1877, Erwin N. Wilson and Andrew J. Burke, Jr., as commissioners for Brazoria county, sold said land to W: S. Thompson for $6,907.50, paid and to be paid as follows: $1,381.50 “by draft on the house of Texas Banking & Insurance Company in the. city of Galveston, which, when paid, shall be a receipt in full for said sum” ; and four notes each for $1,381.50 due, respectively, on or before June 1, 1878, 1879, 1880, and 1881. These notes drew interest at 10 per cent, per annum. The cash payment was made and the notes given were subsequently paid.

(4) The defendants in this cause, except those sued upon' warranties, deraign title through the sale made to W. S. Thompson by the commissioners, Wilson and Burke, for Brazoria county.

(5) On March 23, 1877, the commissioners’ court of Brazoria county made and entered the following order:

“The State of Texas, County of Brazoria.
“Be it remembered that on Friday, the 23d day of March, A. D. 1877, there was begun and holden in the town of Brazoria county.
“Present and presiding, Hon. E. N. Wilson, County Judge.
“Present, Hon. A. J. Burke, Com’r Pree’t No. 2.
“Present, Hon. W. J. Bryan, Com’r Prec’t No. 4.
“Present, Hon. Walter Wormly, Com’r Prec’t No. 1. ,
“Present, T. T. Copes, Sheriff.
“Present, W. H. Sharp, County Clerk.
“It is ordered that the sale of two leagues and labors of Brazoria county school land, situated in Uvalde county, Texas, by A. J. Burke, Jr., and E. N. Wilson, as commissioners to make sale of said land for said county of Brazoria, to W. S. Thompson, of said county of Uvalde, according to the terms of a certain deed made, executed and delivered to said Thompson by said commissioners and the mortgage given by said Thompson to the county treasurer of Brazoria county to secure the deferred payments due on said land, is hereby in all things approved and confirmed and a good and valid title shall vest in the said Thompson, purchaser of said land as aforesaid, upon his compliance in full with the terms of said sale. And it appearing to the court that by the terms of said sale the said Thompson was to pay the sum of thirteen hundred and eighty-one 60/ioo ($1,38150/ioo) dollars cash as the first installment and payment upon said land, which said sum was to be paid" by draft for said amount on some house in Galveston, and when said draft was paid in full the same was to be considered a receipt in full for said first installment. And it appearing that the said Thompson had signed, executed and delivered his four certain promissory notes in writing each for the sum of thirteen hundred and eighty-one 50/ioo dollars, bearing date February 15/77, one payable on or before the first day of June, A. D. 1S79, one payable on or before the first day of June, A. D. 1880, and one payable on or before the first day of June, A. D. 1881, to the county treasurer of said Brazoria county, Texas, at his ollice in said town and county, and each of said notes bearing ten per cent, interest from date until paid. And it further appearing to the court that the sa:d Thompson instead of sending his draft for the sum of thirteen hundred and eighty-one 50/ioo ($1.381-50/ioo) dollars as expressed in the deed of conveyance of said land to said Thompson (which said deed was forwarded through th'e mails by said Commissioners Burke and Wilson to Wm. Burson, the agent of said Thompson to-Uvalde, Uvalde county, Texas), the said Thompson forwarded to said commissioners at Bra-zoria a bill of exchange in favor of the treasurer of said Brazoria county, Texas, on the Texas Banking & Insurance Company of Galveston, Texas, No. 7185, for the sum of, to-wit, one thousand and thirty-six ($1,036.00) dollars, said bill of exchange bearing date San Antonio, March 16, 1877, leaving a balance due on said first installment by said Thompson off three hundred and forty-five 50/ioo ($345.50) dollars: It is therefore ordered that the said commissioners, A. J. Burke, Jr., and E. N. Wilson, be, and they are hereby, allowed the sum of five hundred and ninety-five 37/ioo ($595 37/ioo) dollars as commissions for effecting said sale, and it is further ordered that drafts be issued by the clerk of this court, one in favor of the said A. J. Burke, Jr., for the sum of, to wit, two hundred and ninety-seven 08/ioo ($297 6'Vioo^ dollars, and one in favor of the said E. N. Wilson for the sum of, to wit, two hundred and ninety-seven s8/ioo ($297 Gs/ioo) dollars, on the county treasurer of said Brazoria county, payable out of the cash installment received from said Thompson for the purchase of said land. And it is ordered that the said commissioners, upon their delivering to the sa'd county treasurer the four notes of said Thompson and the bill of exchange for said sum of, to wit, $1,036 °°/ioo, and the mortgage of said Thompson, said commissioners shall be, and are hereby released from any and all liability as said commissioners upon their filing with the clerk of this court the county treasurer’s receipt for said bill of exchange and said notes, which said receipt shall be entered of record by said clerk. The said commissioners, however, are fully authorized and empowered to collect from said W. S. Thompson the balance due upon said first payment for the purchase of said land and receipt to him for the same and when the same shall have been collected, to pay it over to the county treasurer of said Brazoria county and take said treasurer’s receipt for the same and file it with the clerk of this court, which receipt shall also be entered of record.
“Recorded in vol. D, pages 141 et seq., of the minutes of commissioners’ court for Brazoria county, Texas.”

(6) W. S. Thompson executed a mortgage on the land to secure the four notes on February 15, 1877.

(7) On August 19, 1899, the commissioners’ court of Brazoria county, by an order of that date, authorized the county judge and county treasurer to execute a release of the deed of trust given by Thompson on these two surveys, and that order recites, “it appearing to the court that the deferred payment on said land has long since been made.”

(8) On August 19, 1899, M. S. Munson, Jr., county judge, and H. A. Perry, county treasurer of Brazoria county, executed a release of the land from the Thompson deed of trust, and recites the sale of the land by Wilson and Burke, commissioners, to Thompson, under order of the commissioners’ court of Brazoria county November 16,1876. This release refers to the mortgage for description of the land and recites that “the notes secured by said mortgage having long since been paid off and discharged.”

(9) W. H. Crafton was county treasurer at the time Thompson purchased the property, and on March 24, 1877, he acknowledged receipt from E. N. Wilson and A. J. Burke, Jr., of the draft for $1,036 and the four notes each for $1,381.50 executed by W. S. Thompson, stating that the money and notes belonged to the Brazoria county school fund, and refers to the mortgage given by Thompson.

(10) On January 30, 1882, Asa E. Stratton was appointed and qualified as county judge of Brazoria county, vice E. N. Wilson resigned.

Case Presented.

Brazoria county could not delegate to Wilson and Burke the power to make sales of the school lands, because the commissioners’ court is the trustee for the county public free school fund, and it is well settled that a trust cannot be delegated. This applies to any duty that requires the exercise of a discretion. It is contended that the deed made by the commissioners is void, and that the county can retain the money paid therefor and also recover the land. No offer is made to return 'what was paid for the land, and no contention is made that the land did not sell for a fair market value at the time it was sold. No bad faith is charged against Thompson, the purchaser, nor is it urged that the county did not receive the full proceeds of the notes and the cash payment, except as to the amount paid Wilson and Burke. The commissioners’ court received the report of the sale, accepted it, entered a solemn order reciting the terms of the sale, and ratified and approved the same. The court had required and received a mortgage on the land from Thompson to secure the deferred payments, and subsequent thereto it made its order reciting the full and final payment of the notes and receipt of the cash and ordered its county judge and county treasurer to execute and deliver to Thompson, his heirs and assigns, a release of that mortgage, which was given to secure the notes.

It is claimed that Thompson was chargeable with notice of the want of authority in Wilson and Burke to make the deed they did make, so as to bind the court. This is carrying presumptions of law too far to assume that Thompson, one of those hardy frontiersmen who braved the drouths and hardships of border life 37 years ago and helped transform that country to its present high state of civilization, should be presumed to have known that which the commissioners’ court of Brazoria county, headed by a lawyer, did not know, and which no one seems to have known until the case of Logan v. Stephens County, 98 Tex. 283, 83 S. W. 365, was decided.

Let us assume that the deed made by Wilson and Burke was voidable as originally entered into. The court was in possession of all the facts when they received the cash payment and knew just what the agents had done. The mortgage was required and the notes held until maturity when they were paid; and, after all that was done, the court, knowing full well that its treasury had Thompson’s money for the benefit of Brazoria county children, authorized the execution of a release in which the court forever relinquished its interest in the land to the purchaser. When the sale, as made by these-agents, was reported, and the county knew that an unauthorized deed had been made, it had the right to reject the same, for, “when, an agent exceeds his authority, his principal may, upon learning the facts, accept or reject. the contract made. If he accepts them, his acceptance is a ratification of the previously unauthorized acts or conduct and makes them as valid and binding on him from the time they are done as if originally authorized.” Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291. This commissioners’ court said in plain words by a solemn order, after all the facts of the deal were known, that it. ratified and approved the sale as made. Much is said about trustees and their sacred duty to protect and preserve the permanent free school fund from unlawful diversion or use; but the lamented Justice Neill has voiced the higher conception of law and good citizenship when he said in the Gallup Case, supra, “The education of the children of Texas does not demand the sacrifice of public integrity.” And we fail to see how the schools of that county could consistently teach the principles of good faith, when the court which handles their funds refuses to keep faith with those dealing with it.

We hold that the sale as made was the subject of ratification by the court, and that the court did ratify that sale. Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291; Boydston v. Rockwall County, 86 Tex. 237, 24 S. W. 272; Brazoria County v. Padgett, 160 S. W. 1170.

The Padgett Case, supra, deals with almost the same situation as confronts us and arises out of the same appointment of agents by Brazoria county. In that case Mr. Justice Jenkins has written an opinion which meets our approval, and which covers nearly all of the questions involved in this case. We refrain from a fuller discussion of this case by referring to the opinion in the Padgett 'Case as meeting our views. We have examined all the assignments of error and overrule same.

The assignments raising questions not discussed in the authorities above cited would not require a reversal of the case, and the judgment is in all things affirmed.

On Motion for Rehearing.

In addition to the findings of fact in the original opinion, let us state that on March 23; 1877, vouchers were issued on W. H. Crof-ton, county treasurer of Brazoria county, in favor of A. J. Burke, Jr., and E. N. Wilson, each for the sum of $296.68 for commissions on the sale of this land, and were payable out of the draft or cash payment for the land.

In the deed made by A. J. Burke,, Jr., and E. N. Wilson, commissioners, to W. S. Thompson, is contained a reference to the order of the commissioners’ court of Brazoria county which is dated November 16, 1876, and it is recited that same is attached to and made a part of the deed. But we are unable to say from the record that the deed contained such certified copy, because the record does not show it. In fact, the order does not appear except by reference.

With these additional findings of fact, the motion for rehearing is overruled.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    TEXAS PRODUCE EXCHANGE v. SORRELL et al.
    (No. 5337.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 17, 1914.
    Rehearing Denied July 2, 1914.)
    1. Landlord and Tenant (§ 323) — Renting in Shakes — Nature of Relation.
    Where land is rented for a share of the crop to be raised, the parties are not partners.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1350, 1351, 1355, 1356; Dec. Dig. § 323.]
    2. Principal and Agent (§ 169) — Unauthorized Act — Ratification.
    There was no ratification by E. of the unauthorized act of S. in signing for both of them a contract with T., where, as soon as he knew what the contract was, though not as soon as he knew one had been signed, he repudiated it, and informed T. thereof.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 636, 637; Dec. Dig. § 169.]
    3. Contracts (§ 10) — Mutuality— Consideration.
    A contract providing that defendants shall grow onions and deliver them to plaintiff, that plaintiff, without liability for damages on any account, shall have the exclusive right to determine when and where they shall be sold, that it guarantees that they shall receive 35 cents per crate for all fancy onions, it or some one acting for it to iiave the right to first inspect and determine whether they come up to the prescribed standard, and that for its services in selling it shall receive a certain per cent, of the sales price of the fancy onions, and a smaller per cent, in case of the others, is lacking in mutuality, and so without consideration, and therefore cannot be enforced against defendants.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40-; Dec. Dig.- § 10.]
    Appeal from District Court, Bexar County ; W. F. Ezell, Judge.
    Action by the Texas Produce Company against W. E. Sorrell and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Marcus W. Davis and Geo. M. Mayer, both of San Antonio, for appellant.

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

   CARL, J.

Appellant, Texas Produce Exchange, an Illinois corporation doing business in Texas under a permit, brought this suit against W. E. Sorrell and J. H. Evans, of Frio county, and M. B. Potts and F. L. Gregory, who reside in Webb county, and alleged substantially: That on October 11, 1913, Sor-rell and Evans entered into a written agreement with Texas Produce Exchange, under the terms of which they agreed with that company to deliver free on board cars at shipping points the entire 1914 Bermuda onion crop grown and to be grown on 50 acres of land owned and controlled by said Evans arid Sorrell in Frio county about four miles from Melon, Tex.; that under said contract it was agreed that appellant was to handle the said crop of onions for the best price obtainable at the time sold, at the cost of said Sorrell and Evans, and that the proceeds of such sales, after expense of handling, including commission to the agents, were to be turned over to said Sorrell and Evans, and that such brokers and agents should have the exclusive right to determine when, how, and at what points or markets said crop was to be sold; that the company agreed and guaranteed that the owners would receive 35 cents per crate, f. 0. b. loading point, for all fancy, symmetrical, dried, cleaned, bright, smooth onions, said onions to be true to type, free from sunburn, and to be not less than 2% inches in diameter, and all such onions to be solidly packed in standard crates. The commission tó be paid was 15 per cent, of the gross amount, payable at San Antonio when the produce was sold. The company was also to handle all onions not up to type at 10 per cent, of the gross amount, and a partnership agreement between Sorrell and Evans is alleged.

The contract signed having been executed by Sorrell for himself and Evans, it is further alleged that if they were not in fact partners, that Evans did not repudiate the same after he knew the existence of the same, had ratified and confirmed it, and is estopped to deny its binding effect, or the authority of Sorrell to execute the same.

The petition charges that the crop was grown and is matured ready to be harvested, and that the produce company is ready and willing to comply with the contract, but that the defendants have refused to permit the fulfilling of the contract.

It is charged that on account of the advance in the market the defendants Sorrell and Evans have conspired with their code-fendants M. B. Potts and E. L. Gregory for the purpose of defrauding and defeating the company out of the benefits of said contract, by refusing to make delivery of the onions, and have refused to permit and allow the company to market and sell the onion crop in open market in accordance with said agreement, and have refused to pay the 15 per cent, commission on all onions coming up to type and specifications, and have refused to pay 10 per cent, commission on all onions not coming up to type as stipulated in the contract.

It is further charged that in order to defeat the contract Sorrell and Evans have threatened to sell the onions to Potts and Gregory, and have obligated ■ themselves so to do, and that, unless restrained, they will do so, by reason of which the produce company will be deprived of its commissions as aforesaid; and it is alleged that Sorrell and Evans are insolvent, and plaintiff is without an adequate remedy at law. It is also charged that Potts and Gregory knew of the contract and conspired with Sorrell and Evans to defraud the produce company; and it is alleged that the onions from said crop coming up to type and for which the company guaranteed 35 cents per crate amounted to $22,000, and that the entire crop was up to type, and the damage is placed at $3,300.

Prayer was made for judgment for $3,300; for temporary injunction to compel compliance with the contract on the part of Evans and Sorrell and to restrain all parties defendant from removing the onions or selling the same; as well as for a mandatory injunction requiring Sorrell and Evans to deliver said crop of onions to the plaintiff for sale under said contract. In the event it should be found that Evans is not bound by the contract, then the same relief is - prayed for against Sorrell.

The defendants joined issue. A temporary restraining order was entered hy the trial court,- and on hearing the court refused to issue the injunction prayed for, and assigned as his reason for so doing the following:

“(1) Because the court is of the opinion that the contract made the basis of the. plaintiff’s suit is unilateral, without consideration, and without mutuality; (2) because the evidence shows that the onions involved in the suit were sold by defendants Sorrell & Evans before plaintiff 'applied for an injunction; (3) because the court is of the opinion that J. H. Evans and defendants Potts and Gregory are solvent.”

The material parts of the contract, in so far as this case is concerned, are as follows:

“I, the undersigned grower, hereby agree to grow, produce, and deliver to the Texas Produce Exchange, or its duly authorized agents, servants, or employés, under the terms and conditions hereinafter stated, f. o. b. cars at shipping point, all my 1914 Bermuda onion crop grown and to be grown on fifty acres of land, described as follows, to wit: On land owned and controlled by W. E. Sorrell and J. H. Evans, situated about four miles west of Melon, Texas.”

The next paragraph deals with the handling of same, and provides the Texas Produce Exchange shall have the exclusive right to determine how, when, and where to sell, and states that the company shall not be liable, in damages or otherwise, on account of the sale or want of sale, loss or damage so delivered. It then proceeds:

“The said Texas Produce Exchange hereby guarantees that the undersigned grower shall receive thirty-five cents per crate, free on board at loading point, for all fancy, symmetrical, dry, clean, bright, smooth onions, said onions to be true to type, free from sunburn, all to be not less than two and one-half (2%) inches in diameter, and all such onions to be solid packed in standard crates; provided, however, that the Texas Produce Exchange, or some one acting for it, shall have the right to first inspect, select, and determine whether or not said onions meet said requirements, before this guarantee shall be binding.
“In consideration for the services of the Texas Produce Exchange, under the terms of this provision of this contract, in the sale and disposition of said onions, it. the said Texas Produce Exchange, shall receive, and the undersigned grower agrees to pay it, the said Texas Produce Exchange, at San Antonio, Texas, fifteen (15%) per cent, of the gross amount for which said onions under this provision of this contract may be sold.”

The last paragraph, and the only other one material here, is:

“It is further agreed that if any onions should be tendered the Texas Produce Exchange under this contract not up to the specifications herein-before stated, and not acceptable to said Texas Produce Exchange under the foregoing guarantee, then the undersigned grower agrees to deliver all such onions to the Texas Produce Exchange and to give it, the Texas_ Produce Exchange, the exclusive right and privilege to handle and sell all such onions, and for such services in the sale of said onions, I, the undersigned grower, hereby agree to pay the Texas Produce Exchange, at San Antonio, Texas, ten (10%) per cent, on the gross amount for which said onions may be sold.”

This contract is signed by “W. E. Sorrell and J. PI. Evans, by W. E. Sorrell,” and by “Texas Produce Exchange, by Joseph Flory, Pres,”

It is contended by appellant that Evans and Sorrell were partners, and that as such Sorrell could bind Evans in the contract signed. Evans owned the land and rented it to Sorrell for one-third of the crop. This does not constitute them partners. They are not sharing in the profits, but are interested jointly in the thing produced. If the crop fails, the owner of the land does not stand part of the expense, but when the crop is grown each owns a certain interest, whether there is a profit or not. It has been held that where one party furnishes the land and the team to cultivate it, and the other party furnishes the labor, with stipulations, express or implied, to divide the crop between them in certain proportions, the agreement is held to be a contract of hire and not a lease. Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881. Where the agreement is for a part of the crop as rent, they are to that extent tenants in common. Sparks et al. v. Ponder, 42 Tex. Civ. App. 431, 94 S. W. 428; Fagan v. Vogt, 35 Tex. Civ. App. 360, 80 S. W. 664; Antone v. Miles, 47 Tex. Civ. App. 289, 105 S. W. 39; Rogers v. Frazier Bros. & Co., 108 S. W. 727. But they are not partners. Tiffany’s Landlord and Tenant, § 253; Smith v. Schultz, 89 Cal. 526, 26 Pac. 1087; Williams v. Rogers, 110 Mich. 418, 68 N. W. 240; Rose v. Buscher, 80 Md. 225, 30 Atl. 637.

The contention is made, however, that, if they were not partners so that Sorrell could sign for him, Evans ratified the same by acting on the contract after he knew his name was signed to it, and is estopped to deny the authority of Sorrell to sign. But the evidence does not bear out this theory, because it was about 60 days after the contract was signed before Evans knew anything about it, and then he did not see it, because he was down in the field and the contract was at the house. It was about 30 to 60 days more before he saw it, and when he did see it and that his name was signed to it, he asked Sorrell to write Flory and get him to explain what was meant by the commission, which. Sorrell did.

“When we got Mr.'Flory’s answer, be [Evans'j told me to write him we would not ship to him,” “Yes, sir; the first time he saw the contract was the first time he didn’t agree to it, to accept it. Then he told me to tell Mr. Flory he wouldn’t ship it.”

So it will be seen that as soon as Evans knew what the contract was he repudiated it, which fact was communicated to appellant.

The court found that the onions, the subject-matter of the suit, had been sold before the injunction suit was filed; and we have looked into the evidence to see if the finding of the court is sustained by the testimony. W. E. Sorrell said:

“I sold the onions to Mr. Potts, and sold them before these other people had a chance to get them under this contract.”

Joseph Flory, the plaintiff’s president, said:

“After that we received information through our inspector there, Mr. Johnson, by telephone, that they had sold that crop; phones us on Sunday they closed a contract that night at 12 o’clock, I think, and had sold it on a basis of $1.02%, and the other party was to pay for the crates.”

Again Mr. Flory says:

“I made demand on the defendants in this case, and especially Mr. Sorrell and Mr. Evans, for delivery of these onions under this contract, and they said they had sold the stuff; declined to deliver them.” “I stated a while ago that I made demand on Mr. Sorrell through our agent to deliver these onions to me. That was the very next day when I heard they had disposed of the crop.”

This testimony is undisputed. It is not contended, as we understand, that Potts and Gregory did not, in fact, buy the crop of onions, but that they bought them with knowledge of appellant’s contract and to prevent the produce company from getting same. The petition does not charge Potts and Gregory with being insolvent, but says that they conspired with Evans and Sorrell for the purpose of defrauding the plaintiff. The court finds that Gregory and Potts and J. H. Evans are solvent, and gives that as the third ground for denying the injunction. And, for that matter, Sorrell is not shown to be insolvent. It is only shown that he is a tenant and owns no land, but that does not show insolvency. 'And when we revert to the petition we find that the crop of onions is worth $22,000, and the evidence shows that Evans, as the owner of the land, got one-third, and Sorrell, as the grower, got two-thirds, or a little over $14,666, and, if a man with that much money is deemed insolvent in Frio county, this court is curious to know how much money is required that a citizen of that prosperous community must have in order to be considered solvent.

We' are well aware of the holdings of the courts that:

“It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration, as the remedy in equity.” Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Holbein v. Garza (Civ. App.) 126 S. W. 42.

But the only interest appellant has in the subject-matter of this suit is its commissions. And this brings us to the consideration of the first ground assigned by the court for refusing the injunction, viz.:

“Because the court is of the opinion that the contract made the basis of the plaintiff's suit is unilateral, without consideration, and without mutuality.”

The only clause in the contract that would show anything binding upon the produce company, if there is anything at all, is what is termed the guaranty clause; because there is nothing else in the contract that binds or attempts to bind it to do anything, except possibly to perform a personal service, and it will be seen that it avoids obligating the company to do that except by implication. It is carefully stated that the company shall not he liable in damages for anything it does or fails to do; it is not liable under the contract for any rotten, decayed, or unmerclftmtable or bad onions; is not to be liable for damages on account of the sale or want of sale, nor for delivery or delay in transporting, “or for any other cause not the fault of said Texas Produce Exchange, its servants, agents, and employes.” The company has the right to reject or refuse to handle any onions, it sees fit to refuse, and is left the absolute and sole arbiter of the class, condition, etc., of the onions, and as to whether it will handle any of them. What it does consent to handle, the grower is made to give it an exclusive contract to deal with as it sees proper, and for which service the company is to receive 15 per cent, and 10 per cent., respectively. There is not a word in the contract which binds the produce company to handle the onions, but only limitations upon its liability in the event it should handle them and giving it powers and privileges.

This case is on the same footing, it seems to us, as Hazelhurst Lumber Co. v. Mercantile Lumber & Supply Co. (C. C.) 106 Fed. 191. In that case the complainant agreed with the defendant to sell and deliver to defendant all ties it could produce and ship up to January 1, 1908. A general demurrer was interposed, and the court said:

“The contention presented by the demurrer and urged by counsel for defendant is that the agreement made between the parties, as pleaded by plaintiff, is nonenforceable in law for want of mutuality of obligation. No consideration is expressed in the contract as having been paid 'by the one party to the other as compensation to the other for entering into the agreement. Presumably, therefore, it was thought the undertaking of the one was a sufficient consideration to bind the other.
“It is true the making of a contract by one party is sufficient to bind the other if both are by its terms bound; otherwise not. The contract pleaded purports to bind defendant to receive and pay for all ties plaintiff could produce and ship to defendant from October 2, 1907, to January 1, 1908, at the rate of $11.75 per 1,000. The number of ties agreed to be furnished by complainant is not stated. By the terms of this contract what obligation did plaintiff assume legally enforceable against it? How many ties could plaintiff have produced? How many ship to defendant? Suppose defendant had sought to enforce this contract against plaintiff, or to have maintained an action against it for damages for breaching the contract ; could it not have answered defendant’s demand by admitting the contract to have been made between the parties as stated, but to have further answered: ‘We could produce no ties within the time specified, or, having produced ties in any amount, we could procure no cars in which to ship them to defendant, or we could not procure men and teams to draw them to a point of shipment, therefore we were not blameable.’ Manifestly, such answer would be a complete defense by plaintiff to any demand presented against it by defendant, whether to enforce delivery of ties or by way of damages for breach of agreement. This being true, the contract is manifestly void in law for want of mutuality. The able opinions on this subject by Circuit Judge Sanborn in Cold Blast Transportation Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696, and of Judge Philips in A. Santaella & Co. v. Otto F. Lange Co. et al., 155 Fed. 719, 84 C. C. A. 145, leave nothing further to be said on the question presented on the demurrer.”

If Evans and Sorrell had sought to compel the produce company to accept and handle their crop, what clause or word in the contract could they look to for aid in that task? Where does the company bind itself absolutely to do one thing, except to pay 35 cents per crate for such onions as they, acting as sole judge, may decide to accept. After giving the specifications, class, etc., of the 35-cent onions, the contract says:

“Provided, however, that the Texas Produce Exchange, or some one acting for it, shall have the right to first inspect, select, and determine whether or not said onions meet said requirements, before this guarantee shall be binding.”

The courts of this state have repeatedly held that a contract which attempts to bind one party without some binding obligation on the other is unilateral and unenforceable. This has generally occurred in options on land or oil contracts where it was sought to bind the owner of the land without any corresponding binding obligation on the other party. Roberts & Corley v. McFaddin, Weiss & Kyle, 32 Tex. Civ. App. 47, 74 S. W. 105; National Oil & Pipe Line Co. et al. v. Teel, 95 Tex. 586, 68 S. W. 979, opinion by Judge Gaines, the appeal court case being in 67 S. W. 545. See, also, Jolliffe v. Steele, 9 Cal. App. 212, 98 Pac. 545; A. Santaella & Co. v. Otto F. Lange Co. et al., 155 Fed. 719, 84 C. C. A. 145.

When we examine carefully this contract, we look in vain for a single provision therein upon which Evans and Sorrell could stand and make demand that such contractual obligation be met and carried out by the produce company. The contract is artfully worded, with a view to binding the grower and leaving the company free to consider itself bound when it was pleased to be bound. The court does not mean to say that it was the purpose so to draw the contract, but parties are sometimes prone to look so well to their own interests that the rights of others are ignored. It is urged that, “as parties bind themselves, so should they be bound,” and that is Just the point. We do not see where the produce company is bound at all.

“A contract which is wanting in mutuality, or which is unfair and oppressive to one of the parties, will not be enforced against him by injunction.” Joyce on Injunc. vol, 1, § 435.
And the same authority (volume 1, § 448) holds that:
“An injunction will not be granted in aid of an action for specific performance of a contract which is unilateral, and therefore will not be decreed to be specifically performed, as where the defendant has a mere option to purchase, but is under no obligation to purchase.”

Judge Gaines says in Oil Co. v. Teel, supra:

“A naked agreement, by which one promises to convey to another an interest in land in consideration of money to be paid or acts to be performed by such other, but which does not bind the other to pay or to perform the consideration, as the case may be, cannot be enforced. In such case there is a want of mutuality in the agreement. The one party promises to do something; the other does not promise absolutely to do anything; hence there is no consideration to support a contract, and it is void.”

That fits this case exactly, because the company has not absolutely bound itself to do anything, and its contract is unenforceable and void.

The judgment of the trial court is in all things affirmed.


author: FLY, C. J.

text:
    AGUINAGA v. MEDINA VALLEY IRR. CO.
    (No. 5302.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1914.
    On Motion for Rehearing, July 1, 1914.)
    1. Death (§ 14) — Trespasser of Invitee-Liability..
    Where defendant corporation, desiring to move certain laborers, including plaintiff and his wife, directed a teamster to transport their property with his team, and, when the women mounted the wagon on top of the property, defendant’s superintendent ordered them off and directed them to stay off, but they afterwards got on the wagon again, and, by reason of the teamster’s negligence or otherwise, plaintiff fell from the wagon and received injuries from which she died, she was a trespasser, and not an invitee, and defendant was therefore not liable.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 16; Dec. Dig. § 14.]
    On Motion for Rehearing.
    2. Master and Servant (§ 185) — Injuries to Third Persons — Vice Principal.
    Where defendant, desiring to move certain laborers and their property from one point to another, procured a team to transport the property, and defendant’s superintendent, desiring to know why the wagon had not left, ordered M. to hurry the laborers, and then ordered the women to get out of the wagon and stay out, M., by reason of his orders, did not become a vice principal with authority thereafter to permit the women to ride in the wagon.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Nicholas Aguinaga against the Medina Valley Irrigation Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. D. Childs, of San Antonio, for appellant. Wm. Aubrey and West & McMillan, all of San Antonio, for appellee.

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

   FLY, C. J.

Appellant sued appellee to recover damages for the death of his wife, who it was alleged, fell or was thrown from a wagon, the property of appellee, either through the negligence of appellee in loading the wagon, in failing to have a brake on the same, in failing to have a light on the wagon, in failing to have a safe and careful driver, in overloading the wagon, in going over the road at night, or in failing to have the wagon go over another and safer road. Appellee pleaded a settlement with appellant, and, in a supplemental petition, J. D. Childs alleged thaf he was the attorney of appellant; that said settlement could- not divest his interest in the cause of action; and that, if the settlement was fairly made, said Childs prayed “that the suit proceed in his name for the benefit of said J. D. Childs, and the said J. D. Childs comes now and joins in said petition and says that in the event that the jury and the court should decide that said settlement, as alleged in defendant’s said answer, was honestly and fairly made, the interest of said J. D. Childs may be awarded” to him. The cause was submitted to a jury on 26 special issues, and upon the answers the court sought to render judgment that appellant take nothing for himself or for J. D. Childs; that appellee have a judgment for costs against appellant, “but not against the said J. D. Childs, and it further appearing to the court that J. D. Childs, attorney for the plaintiff, Nicholas Aguinaga, joins in the petition of said plaintiff and asks for recovery in this case, and the court being of the opinion that upon the facts, as found by the jury in this case, the law is with the defendant as against the said J. D. Childs, it is therefore ordered, adjudged, and decreed that the said J. D. Childs take nothing by this suit, but that the defendant have judgment in its favor against said J. D. Childs.” J. D. Childs has not appealed to this court.

In answer to the special issues, the jury found that a vice principal of appellee instructed the driver of the wagon to place appellant and wife, as well as their property, in the wagon and transport them from the “Big Dam” to the “Little Dam” by the road over which the wagon went; that appellee was not guilty of using the wagon without brake or light; that appellant suffered damages by the death of his wife in the sum of 81,000; that the driver was negligent in the manner in which he drove the team; that the vice principal was not guilty of negligence in sending the driver over the road that he used, and yet that the use of the road was the direct and proximate cause of the death of appellant’s wife; that appellant was intoxicated when he settled with appellee, but it was not of such a nature as to deprive him of his capacity to contract;. that the deceased wife was not guilty of contributory negligence, but that appellant was guilty of contributory negligence; that, at the time of the death of his wife, she was riding in the wagon contrary to the orders of appellee, but neither she nor her husband knew it; that J. D. Childs was entitled to $250 if appellant was so intoxicated that he did not know what he was doing; that the consideration paid by appellant for the release was $500; that appellant and his wife assumed the risk that resulted in her death; that appellant was ordered, prior to the departure of the wagon from the “Big Dam,” to get out and stay out of the wagon; that he did not know the road over which his wife was going; that, if appellant knew the road and that the wagon had no brakes, he was guilty of contributory negligence; that he did not know that either of these things might cause his wife’s death; that he did not exercise ordinary care, if he knew the wagon had no brakes or lights and that the road to be traveled was rough; that he did not know that one of these things or a combination of them might cause his wife’s death; that the wagon was not driven with ordinary care; that the deceased did not know about the road; that if she had known of that matter, as well as of the lack of lights and brakes, she would have Deen guilty of negligence in riding in the wagon.

The answers to the questions were inconsistent and contradictory, and it is not to be wondered at that either side of the controversy should have concluded that the verdict was in his favor. It is an object lesson on the submission of special issues to juries in every conceivable case in which they may be requested. In this case, a simple one, for damages for a death, more issues were submitted than would be required to settle an International dispute involving the honor and stability of governments, and the jury were lost amid a mass of interrogatories, and wandered without chart or compass through a jungle of facts, to them, as impenetrable as that from which has recently emerged the young, but noted, “River of Doubt,” at least on the map of a distinguished American explorer and writer.

There are three assignments of error which are grouped, two of them to the effect that judgment should have been rendered in favor of appellant on the answers of the jury, and the other is that the verdict is “vague, inconsistent, conflicting, uncertain, and ambiguous.” The assignments are overruled. The court should not have entertained for a moment a verdict that was “confusion worse confounded,” and could not form the basis for any judgment, but the error is one that was harmless, as will hereinafter appear.

To cap the climax in this case, after the judgment was rendered, four of the jurors filed an affidavit that it was their intention to render a verdict in favor of the plaintiff; “that it was not our intention to find the plaintiff or his deceased wife guilty of any negligence in this matter, and it was our intention to find the defendant guilty of negligence in failing to have a brake and light upon said wagon and in routing it over the route in which it was routed, and in directing it to be done in said manner and in sending Clarence Chipman, who we find guilty of negligence in driving and operating.” That affidavit forms a sadly ludicrous commentary on the Texas practice of submitting cases, without "limit, on special issues. How the other eight jurors thought they were deciding does not appear from the record.

The evidence showed that Mitchell was what was known as a “corral boss,” having charge, as the name would indicate, of a certain “corral” or pen and the teams connected therewith. It appeared from the evidence that Clarence Chipman, acting under instructions of Mitchell, went from the diversion, or little dam, to the large dam, which is about five miles above the small dam, to move some Mexicans and their personal property to the lower or diversion dam; that the women and children were permitted by Chipman vto mount on top of the property in the wagon to ride down with it, in defiance of the rules of the corporation and orders of Ellwood, who was a superior to Mitchell, and the wife of appellant fell off and was killed. Mitchell, corral foreman, under the uncontro-verted testimony, had no authority to authorize any one to ride on the wagon, and, when the Mexicans started on top of the wagon, they were ordered off by Ellwood and obeyed, but seem to have mounted it afterward. None of the testimony shows that any one who had the authority to do so ordered or permitted the wife of appellant to ride upon the wagon.

The liability of appellee could not arise in this case, no matter how defectively equipped the wagon may have been, nor how negligently it may have been driven,. unless appellee ordered, invited, or permitted the wife of appellant to mount and ride upon the wagon. It could not, as the law then existed, be held liable for the death of any person unless it was caused by its own “wrongful act, negligence, unskillfulness, or default.” Its liability could not be brought about by the “unfitness, negligence, or carelessness of its servants or agents.” In other words, to create liability on the part of the corporation, as the law was in December, 1912, the corporation itself must have been guilty of negligence which proximately caused the death. Article 4694, Rev. St. 1911; Sullivan-Sanford Lumber Co. v. Cooper, 105 Tex. 21, 142 S. W. 1168; Commerce Cotton Oil Co. v. Camp, 105 Tex. 130, 145 S. W. 902; Williams v. Coca Cola Co., 150 S. W. 759.

In the last. Supreme Court case cited, it was held that the corporation would not be liable for tlie acts of a superintendent who had the authority to hire and discharge servants. The court, after discussing the facts as to whether the superintendent had hired the boy who was hilled, said:

“We are not to be understood as holding that the superintendent’s act, if he did employ the boy, would bind the corporation for his negligence, if negligent.”
Again the court said:
“To recover, the plaintiff was required to prove that Oscar was employed by G. W. Day, the general manager, and the only person for whose negligence the corporation was liable.”

That language is certainly broad enough to exclude a “corral boss” from binding the corporation by his negligence, who had no right to hire and discharge hands without permission from another authority.

The .case of Routledge v. Rambler Automobile Co., 95 S. W. 749, is cited by appellant as authority to sustain the proposition of the negligence of appellee, although the act of negligence was not that of the corporation. In that case the liability of the company for the negligence of the driver is not discussed and is not adverted to. The cases from other states have no pertinency because not decided under laws similar to ours. Hendrick v. Walton, 69 Tex. 192, 6 S. W. 749. Since that opinion was rendered, in which it was held that no other state had a statute similar to the article cited, the Supreme Court of Arizona has construed a similar act in the same way as the Texas court. Don Yan v. Ah You, 4 Ariz. 109, 77 Pac. 618. The Thirty-Third Legislature, doubtless in response to the later decisions of the Supreme Court, has changed the law so that the second clause of article 4694, instead of placing liability “when the death of any person is caused by the wrongful act, negligence, unskill-fulness or default of another,” has added .■“person or corporation, their agents or servants.” Gen Laws 1913, p. 2S8, c. 143. So at this time any person or corporation is liable for the acts of servants or agents just as the proprietors of railroads, steamboats, stage coaches, and other vehicles have been in the past and are now. The new law went into -effect on or about August 1, 1913, over seven months after the death of the woman.

It follows that it does not matter whether the judgment in favor of appellee could be based on the verdict or not; it was correct because it followed the law. A verdict should have been instructed outright for ap-pellee.

The questions raised by the cross-assignments become unimportant and need not be ■considered.

The judgment is affirmed.

On Motion for Rehearing.

Appellant states that Ranney was present •and superintended the loading of the wagon and directed Chipman to load' the wagon so the women and children could ride on it. The evidence quoted by appellant in his argument refutes the statement. Ranney came by when the wagon was being loaded and asked why the wagon had not gone, and, upon being told that it was on account of the Mexicans being so slow, said he would send a man “to make them hurry up.” lie went off and sent the man, and there is no testimony to the effect he ever directed the wagon to be loaded so the women and children could ride on it, and appellant fails to point out any testimony sustaining his assertion to that effect. There is not one word of testimony tending to show that the man sent by Ranney to hurry the Mexicans had any authority from Ranney or any one else to tell the women to get on the wagon. No case has been cited, nor can, we think, be cited, sustaining the proposition that, because the man was sent down to assist in loading the wagon, he thereby became a vice principal and could bind the corporation as to orders which subverted one of its positive rules, which was that women and children should not be permitted to ride on the wagons.

The question of whether Walter Mitchell was a vice principal was one of law under the undisputed facts. Elhvood, the only vice principal who spoke to the Mexicans, ordered them to get out of the wagon and to stay out of it. His statement was not contradicted, and the jury found that he gave the order to the woman, the wife of appellant. That was the last order given to the Mexicans and had the effect of countermanding any orders theretofore given. And yet in spite of that order they got back on the wagon and the woman fell off and was killed. The shipping clerk, in the case of Hugo, Schmeltzer & Co. v. Paiz, 128 S. W. 912, had charge of the men working under him, and the elevator was released by his order. He was held to be a vice principal by this court. The facts of this case do not render that case applicable.

The motion for rehearing is overruled.


author: TALBOT, J.

text:
    FORD MOTOR CO. v. FREEMAN et al.
    (No. 7161.)
    (Court of Civil Appeals of Texas. Dallas.
    May 30, 1914.
    Rehearing Denied June 20, 1914.)
    1. Appeal and Error (§ 743) — Assignments oe Ebror— Requisites — Statements.
    Defendant assigned error to an instruction on the measure of damages; the only proposition urged thereunder being that the measure of damages for the conversion of personal property was the reasonable market value at the time it was converted, plus lawful interest from that date until the date of the trial, and no reference being made to the bill of exceptions in the statement, or in the proposition. Held, that the assignment was fatally defective, and could not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2909, 3011; Dec. Dig. § 743.]

      2. Appeal and Error (§ 499) — Bill of Exceptions — Record.
    In order that an objection to an instruction may be reviewed, the record . must show by bill of exceptions that objections to the charge were made before it was read to the jury, together' with the court’s action thereon, and objections not so presented will be deemed waived as provided by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*]
    3. Appeal and Error (§ 756) — Briefs— Requisites.
    Where an objection urged to a paragraph of the court’s charge was not shown by the briefs to have been made in the trial court and ^overruled, and a bill of exceptions reserved thereto, the Court of Civil Appeals would not search the record for a bill of exceptions, but would assume that none was taken, and that the objection was waived.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. § 756.]
    4. Bailment (§ 32) — Conversion by Bailee —Measure of Damages.
    Where defendant, having surrendered its lien on an automobile for repairs, thereafter peaceably obtained possession and refused to surrender the machine, unless the bill claimed was paid, an instruction that, if defendant had no lien at the time of seizure, plaintiffs were entitled to recover such sum as would reasonably compensate them for the deterioration, if any, of the automobile, and such further sum as would be a reasonable rental thereof from the date of seizure to the date of the trial, the total not to exceed $850, the amount demanded, and in addition thereto the jury should award possession of the machine to plaintiffs, or in lieu thereof its then reasonable market value, was proper.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. § 133; Dec. Dig. § 32.]
    5. Appeal and Error (§ 742) — Assignments of Error — Objections.
    Assignments of error to which no statements are appended referring to the number of the bill of exception taken to the ruling objected to and assignments followed by no proposition cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Bailment (§ 18) — Mechanic’s Lien for Repairs — Termination—Voluntary Surrender.
    Where a mechanic employed to make repairs on an automobile voluntarily surrendered possession, without payment, in July, 1912, and the machine remained in the possession of the owner until December following, when it was voluntarily carried to the mechanic’s place of business for other repairs, and, when the later repairs were finished and paid for, the mechanic refused to surrender the machine until the debt for the July repairs was paid, its lien for the earlier repairs was lost, though the rights of no third person had intervened.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 77-79, 81-84; Dec. Dig. § 18.]
    7. Appeal and Error (§ 757) — Assignments of Error — Requisites.
    Assignments of error that the court erred in refusing to give certain special charges requested, numbered 1 to 8, inclusive, were insufficient, where the brief did not disclose the charges, and made no reference to the page or pages of the transcript where they could be found.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    8. Appeal and Error (§ 742) — Assignments of Error — Proposition—Statements.
    An assignment of error recited that the verdict was excessive, in that it authorized a recovery for an automobile of an aggregate of more than the value of the car itself, and also provided for the return of the car. The proposition was that, when an injured party finds that a wrong has been perpetrated on him, he must use reasonable means to arrest the loss; the only statement thereunder being that the controversy was over the question of the payment of a bill for repairs, claimed by defendant to be $59.29, the payment of which would have secured for plaintiffs the machine, they conceding that they owed at least $20 of that amount. Held, that the proposition was not germane to the assignment, and that the statement was not in support thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by W. M. Freeman and others against the Ford Motor Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    William H. Atwell, of Dallas, for appellant. D. A. Frank and Thomas, 'Milam & Touchstone, all of Dallas, for appellees.

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

      For other cases see sanie topic ana ‘section NUMBER in Dec.' Dig. & Am. -Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

In July, 1912, the appellees carried their automobile to appellant’s repair shop to be repaired. The repairs were made, and a charge of $59.29 made therefor. Ap-pellees claimed that this charge was exorbitant, and refused to pay it. Appellant, however, voluntarily gave possession of the automobile to appellees, who removed it from appellant’s shop, and retained possession of it until December, 1912. At this time appellees again carried the automobile to appellant’s place of business for repairs, and, notwithstanding the charges for the last repairs were paid, appellant refused to allow appellees to take the car away, or regain possession of the same, unless they would pay the bill for repairs made in July, 1912. Appellees refused to pay the July bill and sued out a sequestration, which was levied upon the automobile, and thereupon the appellant replevied the same by giving a replevin bond in the terms of the statute. Appellees then gave notice in writing to appellant that the automobile, was used for business purposes, and of the damages which they claimed would accrue to them if the automobile should be held, and also made a legal tender to appellant of the amount which appellees claimed they owed for the July repairs. Appellant refused the tender, whereupon appellees again sued out a writ of sequestration, and appellant again replevied the automobile, and refused to allow appellees to take it, and has ever since continued to hold the automobile over the protest of appellees.

In their amended petition the appellees alleged, among other things, that the appellant forcibly took possession of their automobile, and without probable cause retained the same; that said automobile was in use by appellees in the delivery of dairy products in and about the city of Dallas, and that the delivery of milk by appellees to their customers in said city depended upon the possession of said automobile; that on account of the deprivation of the possession of their said automobile their dairy business had been greatly damaged; that the value of the use of said automobile since December, 1912, and the deterioration in the value of the same, was $850; and that the automobile, at the time the petition was filed, by reason of deterioration in value while in the possession of appellant, was only $150. They prayed judgment for $850, as damages in the use of the automobile and the deterioration of same since December, 1912, and for a return of said automobile, or for said $850, and the further sum of $150, the value of said automobile. On the same day the appellants filed their amended answer, alleging, among other things, that they claimed a lien upon the automobile for the July work to secure the sum of $59.29, and that when the appellees refused to pay the bill the appellants kept possession of the car, and that the car had been ever since, was at the time of the filing of the answer, and on all of the days intervening, subject to the possession and order of the plaintiffs upon the payment of said $59.29.

The case went to trial on December 16, 1913, and the jury rendered a verdict in favor of the appellees for the sum of $365 and the return of the automobile, or in lieu thereof the sum of $150. Judgment was rendered on the verdict in favor of appellees, and appellant appealed.

The court charged the jury on the measure of appellees’ damages as follows:

“But if you find that the defendant did not have a lien upon the said automobile at the time of its seizure, and that such seizure was wrongful, your verdict will be for the plaintiffs for such sum as will reasonably compensate them for the deterioration, if any, on their said automobile, from December, 1912, or date of seizure, to this date, and such further sum as under the evidence you may find to be a reasonable rental of said automobile from date of seizure of said automobile to this date, the total sum to be allowed not to exceed $850, and in addition thereto award the possession of said automobile to plaintiffs, or in lieu of said automobile such additional sum as you find said automobile now to be reasonably worth on the market, not to exceed $150.”

This charge is complained, of and made the basis of appellant’s first assignment of error ; the only proposition urged being that:

“The measure of damages for the conversion of personal property is its reasonable market value at the time it was converted, plus lawful interest from that date until the date of trial.”

The consideration of this assignment is objected to by appellees on the ground that it is not briefed in accordance with the rules. This objection is well taken. A proposition without a sufficient statement cannot, under the rules and laws of this state, be considered; and a statement which fails to show that objection was made to a charge given and complained of by appeal, and particularly one which fails to refer to a bill of exception, where a bill is required to preserve the point, giving the number of the bill or page where it can be found in the record, is insufficient. Ferguson v. Faiu, 164 S. W. 1040; Stephenson v. Luttrell, 160 S. W. 666. In the last case cited it is said:

“No reference is made to a bill of exceptions in the twenty-third assignment of error, nor in the propositions and statement thereunder; and this court assumed, as it had a right to do, that there was no bill of exceptions. It is under no obligation to search through the statement of facts or other parts of the record to find bills of exception.”

As in the cases cited, no reference is made to a bill of exception in the assignment under consideration, nor in the proposition and statement thereunder. The assignment is not, therefore, entitled to consideration. The record must show by bill of exception that objections to the court’s charge were made before it was read to the jury, and the court’s action thereon, and objections not so presented, must be deemed to have been waived. Acts 33d Leg. c. 59; Johnson v. Hoover & Lyons, 165 S. W. 900.

If the objections now urged to the paragraph of the court’s charge under consideration were made in the court below and overruled, and a bill of exception reserved thereto, it does not appear in appellant’s brief in any manner. This being the condition of the brief, we are not required to search the record for a bill of exception, but may assume that none was taken, and the objection waived. The index to the transcript sent to this court shows that appellant, in the course of the trial, reserved 13 bills of exception, numbered from 1 to 13, inclusive, and to ascertain whether either one of these bills relates to the charge here complained of would require this court, beginning with No. 1, to examine each bill until such bill, if among the number, could be found. It is not incumbent upon us to do this. But, however, if we were disposed to consider the assignment, we are not prepared to hold that the court’s charge on the measure of damages is erroneous. On the contrary, the correctness of the charge, as applied to the facts of this case, is sustained, it occurs to us, by the following authorities: Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7104, 7108; Craddock v. Goodwin. 54 Tex. 578; Moore, McKinney & Co. v. King, 4 Tex. Civ. App. 397, 23 S. W. 484; Haviland v. Parker, 11 Mich. 104.

The consideration of appellant’s second, third, fourth, fifth, and sixth assignments of error, which complain of the admission of certain testimony, is also objected to by appellees because not briefed in accordance with the rules, and the objection should be sustained. There is no statement whatever made in support of the third and fifth assignments, and neither statement under the other assignments refers to the number of the bill of exception taken, if any, to the admission of the testimony therein complained of, or the page of the transcript where such bill could be found. Indeed, neither of the statements shows that any bill whatever was reserved to the action of the court in admitting the testimony. The second assignment and proposition thereunder relate to the admission of testimony showing . the .rental value of appellees’ automobile during the time it was detained by appellant; while the statement made in support of the assignment and proposition relates solely to the value of the automobile, its purchase price, its value at the time it was taken and at the time of the trial. The sixth assignment is subject to the furthef criticism that it is followed by neither proposition nor statement.

The eleventh assignment challenges the correctness of the following paragraph of the court’s charge, namely:

“You are instructed that if you believe from the testimony that defendant did certain work as claimed by it upon the said automobile, but that said work was done in July, 1912, and that said defendant voluntarily gave up possession of said automobile in July, 1912, and said automobile was in the possession of the plaintiffs from July to December, 1912, the defendant would have lost any lien it had, and would not be entitled to hold said automobile from the plaintiffs, and its seizure, if you so find, would be illegal.”

The proposition urged under this assignment is that:

“The mechanic’s lien given by the statute of Texas is alive and may be asserted at any time possession of the article is secured, provided the interest or title of no third party Intervenes or is transgressed.”

It appears, without contradiction, that on July 12, 1912, appellant voluntarily and unconditionally gave possession of the automobile in question to appellees, and the same remained in possession of the latter until December, 1912, when it was voluntarily carried by appellees to appellant’s place of business for other repairs. When these repairs were finished and paid for by appellees, appellant refused to allow appellees to have their automobile, holding same under a lien claimed because of the debt for repairs made in July, 1912. These being the facts, appellant had lost any lien it may have had under the statute for the repairs made in July, 1912. It was so held upon a similar state of facts in the case of Caldwell v. Auto Sales & Supply Co., 158 S. W. 1031, by the Court of Civil Appeals of the Third District: In that case Mr. Justice Rice, speaking for the court, said:

“The right on the part of appellees to retain possession of said machine for their charges thereon depends upon articles 5665, 5666, Rev. Stat. 1911, and articles 3320 and 3321, Rev. Stat. 1895. If they had previously, voluntarily, and unconditionally surrendered possession of the machine to appellant, they lost their lien and were not entitled to hold possession thereof, and their subsequent coming into possession of the machine, under the circumstances above indicated, would not revive their right under the statute.”

This case is against the- contention of appellant that the lien would be revived if no interest of a third party intervened between the time the lienor lost and regained possession of the automobile, for it appears that the automobile was delivered to Caldwell and remained in his possession without the intervention of any interest whatever of a third party, just as in the case at bar, and notwithstanding that fact the court held that the subsequent possession of the lienor did not revive the statutory lien.

The twelfth assignment is objected to, and not entitled to consideration. It complains that the trial court erred in refusing to give special charges requested by the defendant, numbered 1 to 8, inclusive. What these charges were is not disclosed by the brief, and no reference to the page or pages of the transcript where they may be found is given. In fact the assignment is not followed by any statement whatever in support thereof, nor is it followed by any proposition, and just what error or errors is complained of, or what we are called upon to decide, does not appear.

The thirteenth and last assignment of error is as follows:

“The verdict is excessive, in that it authorizes a recovery from this defendant of an aggregate of more than the value of the car itself, and also the return of the car.”

The proposition is:

“When an injured party finds that a wrong has been perpetrated upon him, he should use all reasonable means to arrest the loss. He cannot stand idly by and permit the loss to increase, and then hold the wrongdoer liable for the loss which he might have prevented.”

This assignment is also objected to because not briefed in accordance with the rules. This objection is well taken. The proposition is not germane to the assignment, and there is no such statement, as is required by the rules, made in support of the assignment. The only statement made is as follows:

“There is no controversy over the question that the payment of the bill claimed by the defendant, to wit, $59.29 for repairs, would have secured' for the plaintiffs their automobile. They conceded they owed at least $20 of the amount.”

The evidence, however, discloses that the verdict is not excessive. At least we would not be authorized to hold that it is.

The judgment is affirmed.


author: PLEASANTS; C. J.

text:
    HOUSTON OIL CO. OF TEXAS v. TALIAFERRO et al.
    (No. 6734.)
    (Court of Civil Appeals of Texas. Galveston.
    June 18, 1914.)
    Injunction (§.137) — Temporary Injunction —Right to Writ.
    Where, in trespass to try title, complainant claimed 460 acres out of an 810-acre tract, and sought to restrain defendants from cutting timber from its portion of the land, while defendant T. claimed to own 350 acres of the tract, and denied cutting any timber from complainant’s land, the only issue being the_ location of the boundary line, on which the evidence was conflicting, and there being no allegation that defendants or either of them were insolvent or not able to respond in damages for any timber cut from complainant’s land, the court did not err in refusing a temporary injunction.
    [Ed. Note. — For other cases^ see Injunction, Cent. Dig. §§ 307-309; Dec. Dig. § 137.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Suit by the Houston Oil Company of Texas against W. F. Taliaferro and another. From an order denying complainant’s application for a temporary injunction, it appeals.
    Affirmed.
    H. O. Head, of Sherman, and Parker & Kennerly and John L. McMeans, all of Houston, for appellant. W. G. Taliaferro, of Bryan, and Oliver J. Todd, of Beaumont, for appellees.

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

   PLEASANTS; C. J.

This appeal is from an order of the district court of Newton county refusing to grant appellant a temporary injunction in a. suit of trespass to try title brought' by appellant against appellees to recover 460 acres of land, a part of a tract of 810 acres on the Seth Swift league, in Newton county.. In addition to the usual allegations in an action of trespass to try title, plaintiff’s petition alleges that defendants have cut and removed a large quantity of timber from plaintiff’s land, and that said defendants—

“are- still cutting, felling, and removing the timber from said 460-acre tract of land owned by plaintiff without the consent and over the protest of plaintiff, and without any authority or right whatever so to do, and without any reasonable grounds for believing that they have any right so to do,, and plaintiff says that, unless restrained by your honor’s most gracious writ of injunction, said defendants will continue to cut, fell, and remove from said tract of land owned by plaintiff the timber growing thereon, and will appropriate the same and the proceeds thereof to tbeir'own use and benefit, to the great and irreparable damage of this plaintiff.”'

In addition to a prayer for the recovery of the land and tiie value of the timber taken therefrom by the defendants, the petition contains the following prayed:

“Plaintiff further prays that your honor grant to it your most gracious writ of injunction, restraining and enjoining said defendants, and' each of them, their agents, representatives, servants, and employés, from further trespassing upon said 460-acre tract of land above described, and from further cutting, felling, or removing any of the timber therefrom, save and except such timber as had already been cut and felled by them, and now laying on the ground, but, as to said timber as had already been cut and felled by said defendants, plaintiff does not ask that they be enjoined from removing the same, for the reason that this plaintiff is not in a position to take care of same, and, if left to remain upon the ground in its present state, will deteriorate and'ruin.”

The petition was properly verified. It was presented to the district judge on February 24, 1914, and a hearing upon the application for temporary injunction was set tor March 2, 1914, and notice thereof ordered issued to defendants. Upon the day set for the hearing the defendants appeared and answered. The hearing upon the petition and answer and evidence introduced by the parties resulted in a judgment refusing plaintiff’s prayer for.an injunction.

It appears from the pleadings and evidence introduced upon the hearing that the defendant Taliaferro owns a tract of 350 acres on the 810-acre tract mentioned and described in plaintiff’s petition, and that the remainder of said 810-acre tract is owned by the plaintiff. The defendants denied that they had cut any timber from plaintiff’s land, and claimed that all of the timber cut by them was taken from the 350-acre tract owned by appellee Taliaferro. The only issue of fact raised by the evidence was in regard to 'the location and boundaries of the 350-acre tract. Upon this issue the evidence was conflicting, but there is ample evidence' to sustain the finding that' the location and boundaries of said tract are as claimed by defendants, and that defendants have not cut any timber on plaintiff’s land, and are not threatening to cut any timber thereon. There is no allegation that defendants, or either of them, is insolvent, or that they are not amply able to respond in damages if, upon a final trial, it be found that they have cut any timber on appellant’s land. Upon this state of the record we cannot hold that the trial court erred in refusing the injunction, and the judgment must be affirmed.

Affirmed.


author: RAINEY, C. J.

text:
    DALTON et al. v. HOOPER et al.
    (No. 7165.)
    (Court of Civil Appeals of Texas. Dallas.
    June 13, 1914.)
    1. Theaters and Shows (§ 6) — Duty to Persons Attending.
    The manager of a theater is not an insurer against accidents to persons attending, yet owes them the duty of exercising. reasonable care to keep the place in a safe condition for use and of making proper inspection to see that it is in such condition; but, unless a defect in a stairway was brought to the notice -of himself or his employés before an injury to a patron alleged to have been caused thereby or had existed for such a length of time that by the exercise of ordinary care he would have discovered it, he was not liable.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.]

      2. Theaters and Shows (§ 6) — Injury to Persons Attending— Action — Question eor Jury.
    In an action for personal injury resulting from plaintiff’s shoe catching on a projecting strip on a step of defendant’s theater, whereby she was thrown and injured, where there was proof to show inspection by defendant, the question whether the projection was known to be defective, or should have been known to him by the exercise of reasonable care a sufficient time before the accident to have repaired it, was for the jury.
    [Ed. Note. — Eor 'other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.]
    Appeal from District Court, Dallas County; Kenneth Eoree, Judge.
    Action by Mrs. J. D. Hooper against E. O. Dalton and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    T. L. Camp, Walter Nold, and C. M. Smith-deal, all of Dallas, for appellants. C. A. Pippin, Thurman Barrett, and Adams & Stenniss, all of Dallas, for appellee.

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

   RAINEY, C. J.

This is a suit to recover damages from the controllers and managers of the Orpheum Theater for personal injuries received by Mrs. J. D. Hooper while a patron of said theater in descending a flight of stairs leading from thé gallery; her shoe catching on a projecting iron or brass strip on one of the steps, whereby she was thrown and injured. Defendant pleaded the general issue. A trial resulted in a verdict and judgment for plaintiffs, from which this appeal is prosecuted.

The Reason for Reversing.

One complaint by appellants is that the court refused to give their requested charge No. 3, which is as follows:

“Unless you find and believe that the stairway ■herein referred to was defective as alleged by plaintiff, and that such defect, if any, was brought to the notice of defendants or their agents or employes, before the accident herein complained of, or had existed for such a length of time that by the exercise of ordinary care the defendants or their agents or employes would ■have discovered such defect, if any, then your verdict must be for the defendants on this issue.”

This charge should have been given. The court’s charge only in a general way submitted to the jury the duty of appellants to use care to prevent injury to appellee, while the special charge presented an issue raised by appellants’ evidence and called special attention to a phase of the case to which appellant was entitled. Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139; Butcher v. Hyde, 152 N. Y. 142, 46 N. E. 306.

Appellee’s evidence shows that while visiting the Orpheum Theater for the purpose of attending a performance there, and after having paid an admission fee, in descending a stairway her foot caught on a projecting metal strip that was fastened to one of the steps, and caused her to fall, and she was injured thereby. While the appellants were not insurers against accidents to the patrons of the theater, yet they owed to them the duty to exercise reasonable care to keep their place of amusement in a safe condition for the use of their patrons. It is their duty to make proper inspections to see that the place is in proper condition to avoid injury. In this case there was proof to show inspection, and whether the projecting metal strip' that caused appellee to fall was known to be in that condition, or should have been known to appellants, by reasonable care, a sufficient length of time before the accident to have been repaired by appellants, was a question for the jury’s determination.

Eor failing to give the special charge No. 3 requested by appellants, the court committed error, and the judgment is. reversed, and cause remanded.