text:
    BUSH et al. v. MERRILL et al.
    (No. 13-2588.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Vendor and Purchaser <§x=>75— Obihoa-tio'N to Pay Unpaid Purchase Money-Resale or Ability to Resell as Condition Precedent.
    Under contract for sale of lots, resale or ability to resell at fixed prices held not a condition precedent to maturity of buyers’ obligation to pay the unpaid purchase money.
    2. Vendor and Purchaser <@^75 — Failure to Fix Time eor Payment — Reasonable Time.
    Where contract for sale of lots was definite in all its terms except as to time for payment with proceeds of resale of lots at certain prices, buyers were entitled to reasonable time within which to resell and pay seller with cash and vendor’s lien notes received.
    3. Contracts <@^>212(2) — Time for Performance-Reasonable Time.
    Where a contract fixes no time for performance, the law allows a reasonable time, depending on the circumstances of the case.

      4. Appeal and Error <&wkey;1095 — Review — Findings op Court op Civil Appeals.
    Supreme Court is bound by finding of fact of Court of Civil Appeals that a reasonable time for performance of the contract in suit had elapsed.
    5. Vendor and Purchaser &wkey;>93 — Default in Payment op Purchase Money — Rescission and Recovery.
    When purchaser by executory contract of sale has made default in payment of purchase money, vendor, at his option, may rescind and recover the property.
    6. Vendor and Purchaser <&wkey;9S — Option Contract — Recovery of Consideraton on Failure to Exercise.
    If contract merely gave option to acquire lots covered by paying fixed prices, the total consideration being $43,950, the $8,000 paid by the optionees was the price of the option, not recoverable by the optionees after they failed to exercise the option and the optionors rescinded.
    7. Vendor and Purchaser <&wkey;98 — Default in Paymeni>-Rescission Without Repayment.
    If contract was executory agreement to sell lots on payment of fixed prices, and buyers defaulted in payment of purchase money when due, sellers had the right to rescind without repaying what had been paid, in absence of circumstances rendering step inequitable.
    8. Vendor and Purchaser &wkey;>98 — Default in Payment — Rescission Without Return op Payments.
    Where vendors rescinded for default of buyers, who did not tender unpaid price, merely offering to pay for lots by resale on terms authorized by contract, a problematical event in view of deterioration in value to $10,000 less than unpaid purchase money, vendors could recover possession of lots, which had not been improved, without returning $8,000 paid by buyers of total price of $43,950.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by M. E'. Merrill and. others agáinst W. T. Bush and others. To review judgment for plaintiffs, defendants brought error to the Court of Civil Appeals, which affirmed (156 S. W. 006), and defendants bring error.
    Judgments of the Court of Civil Appeals and of the trial court affirmed on recommendation of the Commission of Appeals.
    Stephens & Miller, of Ft. Worth, for plaintiffs in error.
    Bean & Klett, of Lubbock, and Cooper, 'Merrill & Lumpkin, of Houston, for defendants in error.
   Statement of the Case.

MONTGOMERY, P. J.

This suit was instituted in the district court of Lubbock county, Tex., by the defendants in error, M. E. Merrill, J. C. Roberts, and F. G. Hudgins, against the plaintiffs in error, W. T. Bush, R. Hark-rider, the Western Realty Company, and J. B. Daniels Realty Company, in the ordinary form of trespass to try title to recover certain lots lying in the town of Lubbock, in Lubbock county, Tex. The J. B. Daniels Realty Company disclaimed all title to the property, and the other defendants answered by general demurrer, general denial, plea of not guilty, and by a special answer setting up the execution by the plaintiffs of a certain contract, which will be hereinafter set out, and claiming that said contract had not been breached, and further asking that, in event the plaintiffs should recover the land, the defendants should recover the money paid under the contract and for adjustment of equities. The above will be sufficient to indicate the issues in the case, as no question was raised as to the pleadings.

The contract out of which this litigation arose, omitting the description of the property, is as follows:

“This contract of bargain and sale made and entered into this the 15th day of July, A. D. 1909, by and between J. O. Roberts, N. E. Merrill and F. G. Hudgins, all of Lubbock county, Texas, hereinafter referred to as parties of the first part, and W. T. Bush, of Tarrant county, Texas, and R. Harkrider, of Howard county, Texas, hereinafter referred to as parties of the second part, witnesseth:
“(1) That the parties of the first part have this day sold and by these presents do hereby sell and obligate themselves to convey or cause to be conveyed in manner and time as hereinafter stated unto the said parties of the second part or their vendees all and singular the following described real estate situated in the county of Lubbock in the state of Texas, to wit: (Here follows description of property.)
“(2) The consideration paid and to be paid to said parties of the first part by said parties of the second part for the property above described and conveyed is the agreed sum of $43,-945.00 as follows: $500.00 cash in hand paid, receipt of which is hereby acknowledged, and a further sum of $7,500.00 to be paid in cash on or before the 1st day of August, A. D. 1909, making total cash payment on said date $8,000, and leaving balance unpaid of $35,945.00, which said balance is to be paid in manner and time as hereinafter stipulated.
“(3) It is mutually agreed and understood by and between the parties to this contract that the legal title to said above-described property shall remain vested in the parties of the first part until the entire purchase money as above specified has been paid, and said first parties agree and bind themselves, that whenever said entire purchase money shall have been paid, they will immediately thereafter execute and deliver to the parties of the second part, their heirs and assigns by a good and sufficient warranty deed conveying all of the above-described property, which has not at that time been previously conveyed under and by virtue of the terms of this contract.
“(4) It is further agreed and stipulated that parties of the second part shall be entitled to the immediate possession of all of said property conveyed by this contract upon payment of the said sum of $8,000 as hereinbefore provided, and that after the payment of said $8,000.00, said second parties shall be authorized and empowered to contract and sell the above-described property, either as a whole or in single lots, or in any number of lots at such price and on such terms as they may desire, and that in all cases where said second parties shall have sold said lots or any number of them singly or in bulk, parties of the first part will, on payment, execute and deliver to the buyer of such lot or lots a good and sufficient general warranty deed conveying same to him for the consideration agreed to be paid by them, provided however, that in no ease shall such deed be executed and delivered where the amount of cash paid is less than one-fourth of the total consideration, and in all cases where deeds are demanded by parties of the second part, they shall turn over and deliver to parties of the first part the total consideration for which such sale or sales have been made, including all of the cash payment, which must not be less than one-fourth of the total purchase price and the purchase' money notes for balance, which said notes shall mature not later than eighteen months from and after date of deed, and shall hear interest from date at the rate of 6 per cent, per annum, shall retain an express vendor’s lien on the lot or lots conveyed, and shall be the usual and regular form of vendor’s lien notes. In this connection, it is agreed however that said second parties 'shall he allowed to retain from the cash payment a sum not to exceed $10.00 for each lot sold to cover expense of making such sale, and it is further understood and agreed that said second parties shall not sell any of said lots for a less sum than $100.00 per lot, and it is further understood and agreed that all expense incident to the execution, of such deed or deeds shall be paid for by parties of the second part. It is the intent and purpose of the above agreement that whenever a sale of lot or lots shall have been made by parties of the second part on terms of not less than one-fourth cash and balance to be evidenced by note or notes maturing within eighteen months from date of such sale, and to bear interest at the rate of 8 per cent, per annum, then said first parties will make and execute a deed of conveyance to the purchaser of such lot or lots expressing therein the consideration for which such sale is made, acknowledging receipt of the cash payment which shall not be less than one-fourth of the purchase price, and take note or notes in their own names for the unpaid balance as above provided, which notes shall be secured by vendor’s lien, and that such sum less the $10.00 retained by the parties of the second part as above provided shall be applied as a credit on the unpaid balance owing to said parties of the first part by said parties of the second part, as hereinbefore provided, and that whenever the proceeds of sales and deeds made in pursuance of this agreement shall aggregate the amount sufficient to pay all of said balance of $35,945.00 then said first parties will execute and deliver to parties of the second part a general-warranty deed conveying to them all of remainder of said property embraced in this contract by proper and legal description, free and clear from any and all incumbrances.
‘•(5) It is a further agreement in the event said parties of the second part shall fail to make such additional cash payment of $7,500 within the time hereinbefore stipulated, then and in that event this contract shall become and remain null and void to all rights of said second parties, by reason thereof shall cease and terminate, and the said sum of $500.00 shall belong to said first parties.
“This contract executed in duplicate this 15th day of July, A. E>. 1909,” etc.

The evidence showed and the Court of Civil Appeals found that $500 was paid in cash at the time of the execution of said contract, and that the said $7,500 referred to therein was paid in accordance with the terms of the contract, about tire 1st of August, 1909.

The contract set out above provided for the sale of 517 lots in what is known as Merrill’s addition to the town of Lubbock.

After the execution of the contract and the making of the payments, as above set out, Bush and Harkrider took possession of the property for the purpose of sale, and on the 15th day of July, 1909, said Bush and Hark-rider conveyed to a corporation, the Western Realty Company, all the rights which they had in and to the property described in said contract under the terms thereof. Neither Bush nor Harkrider nor the Western Realty Company ever sold any of the lots. The Court of Civil Appeals found that shortly after the execution of the contract the plaintiffs in error Bush and Harkrider (and their assigns), after certain preliminaries had been perfected, in procuring agents, literature, and installment contracts in blank, fixed the prices of said lots for sale at from $140 to $350 per lot on a straight selling proposition, but that none of the lots were sold. The Court of Civil Appeals further found “that the plaintiffs in error made a diligent effort to sell the property within the limitations of the contract for several months after its execution at the prices indicated above, but that the conditions and the depreciation in the value of the property made it impracticable to continue further efforts or pursue any-method of selling the lots,” and further found that plaintiffs in error had expended something like .$2,100 for the purpose of selling said lots.

As we construe the above finding, after considering the same in connection with other statements of the opinion and the undisputed evidence as shown in the statement of facts, we have concluded that the Court of Civil Appeals intended to find that the plaintiffs in error made an effort to sell the property at prices ranging from $140 to $350.

We so construe this finding for the reason that the undisputed evidence in the statement of facts shows that, for several months after the execution of the contract, the plaintiffs in error attempted to sell the property at prices ranging from $140 to $350 per lot, and that there was no evidence showing that during said period of time the lots were offered for sale at prices ranging from $80 to $100 per lot. 1

The Court of Civil Appeals found that the lots at the time of the trial had greatly depreciated in value and were not then worth more than $50 per lot, and further found that the depreciation in value began soon after the execution of the contract. Such other facts- as may be necessary will be stated in the opinion.

Opinion.

The important question in this case is the proper construction of the contract.

The parties and the Court of Civil Appeals have treated it as a contract of bargain and sale, by which Merrill, Roberts, and Hudgins agreed to sell, and Bush and Harkrider to buy, the lots described therein at an agreed price and to pay therefor either from the proceeds of the lots when sold, or in cash; and the controversy was thus narrowed to the time and conditions upon which payment of the purchase money was to be made:

Merrill, Roberts, and Hudgins take the po-sitien that the contract evidences a sale of the property, and that there was an absolute obligation of Bush and Harkrider to pay the entire price, and that the only uncertainty arose out of the failure to fix a definite time for payment; in other words, the contention is that the right to contract and sell the lots and apply the proceeds on the purchase money was a mere privilege of paying all or part of the purchase money in that manner, and that, there being no time limit within which such sales should be made, the law would allow only a reasonable time, and that at the end of .such reasonable time the price became due and payable in cash.

It was further claimed by them that, such reasonable time having elapsed and payment refused, they were authorized to rescind the executory contract and recover the property.

Bush and Harkrider and their vendee, the Western Realty Company, take the position that the balance of the purchase money, after the payment of the $8,000, was to become due when they had sold enough of the property at not less than $100 per lot to pay the unpaid purchase money, or a reasonable time had elapsed after they could have sold the property at that price. Giving the contract this construction, the contention is made that, as there never was a time at which the property could have been sold at the price fixed, the purchase money was not due, and therefore no right of rescission existed. The further contention is made that, if the vendors were entitled to rescission, the ven-dees were on principles of equity entitled to have the $8,000 repaid to them.

The Court of Civil Appeals upheld the views of Merrill, Roberts, and Hudgins, and further held that the evidences disclosed no equity requiring a return of the $8,000 paid.

The contract which is set but in the statement above is by the parties named a “contract of bargain and sale.”

It recites that the sellers “do hereby sell and obligate themselves to convey, or cause to be conveyed, in manner and time as hereinafter set out,” the lots in controversy.

The second paragraph provides that—

“The consideration to be paid to said parties of the first part by said parties of the second part is the agreed sum of $43,950.00, payable as follows: $500.00 cash in hand paid, * * * the further consideration of $7,500.001 to be paid on or before the first day of August, A. D. 1909, * * * and leaving the balance unpaid of $35,945.00, which said balance is to be paid in manner and time as hereinafter stipulated.”

The third paragraph expressly retains the title to the property until all the purchase money had been paid, and the sellers bind themselves that, whenever the entire purchase money should be paid, they would execute proper conveyances.

The fourth clause provides that, after the payment of $8,000, Bush and Harkrider should have possession for the purpose of 6elling, and that they were “authorized and empowered” to contract and sell all or any number of said lots at such price and on such terms as they saw proper, provided that the lots should not be sold for less than $100 each and upon certain terms as therein provided.

The contract also provides that a part of the cash payment and all vendors’ lien notes received for lots sold should be credited on the unpaid purchase price.

There is no provision in the contract for rescission or forfeiture, except that contained in the fifth paragraph to the effect that, upon failure to pay the $7,500 mentioned in the contract, the contract should become null and void, and that the sellers should retain the $500 paid.

The object of all rules of construction of contracts is to arrive at the intention of the parties. In this case, this intention must be reached by consideration of all the terms of the contract without the aid of any extraneous circumstances, as we do not find anything in the record, outside the contract itself, which can be of any assistance.

The obligations of Merrill, Roberts, and Hudgins are clearly expressed in the contract, and the conditions under which they were obligated to make conveyances are fully set out. On the other hand, the obligations of Bush and Harkrider, after the payment of $8,000, if any were imposed, are left largely, if not entirely, to inference. There is not in the entire contract any promise or agreement on„ their part to pay anything or do anything, unless the obligation to pay can be inferred from that provision of the second paragraph, reciting that the consideration paid and to be paid to the parties of the-first part by the parties of the second part is $43,950, as follows: $500 cash, $7,500 to be paid in cash on or before August 1, 1909, and the balance in “manner and time as hereinafter stipulated.”

There is not in any subsequent portion of the contract any requirement that this balance should be paid at all. . The only provision is that contained in the fourth paragraph, authorizing Bush and Harkrider to sell the lots upon certain terms and to apply a portion of the cash payment and all vendors’ lien notes received on the amount unpaid, and a further provision binding Merrill, Roberts, and Hudgins to make a conveyance whenever the price is fully paid.

We are inclined to the opinion that, after the payment of the $8,000, Bush and Hark-rider had an option to purchase the lots upon the terms set out. The absence of any provision specifically requiring the payment of the balance and the fact that Bush and Harkrider were not required under the terms of the contract to sell or even make an effort to sell the lots, but only given the privilege of doing so, lead us to this conclusion.

However, we think it not necessary to go into this question, as, under our view of the law, the rights of the parties will- be the same under the facts of this case, whether the contract is one of sale or option.

Treating the contract as one of sale, we think that the proposition of plaintiffs in error Bush and Harkrider and the Western Realty Company, “that the unpaid purchase money did not become due until either plaintiff in error had sold the property in controversy for as much as $100 per lot, or until the lapse of a reasonable time after they could have sold said property at said price,” cannot be sustained.

The contract left it optional with 'the plaintiffs in error to sell the lots or not. They were not required to sell them at any price. “They were authorized and empowered” to sell them at such price as they saw proper, provided the price was not less than $100 per lot, and the cash payment at least one-fourth the full price, and the deferred I>ayments on time not to exceed 18 months. The contract itself does not contain any provision that the balance due shall be paid when the lots are sold, nor is the sale of the lots made, by any term of the contract, a condition precedent to payment. If the contract had provided for payment when the lots were sold, or could be sold at the price fixed, then the sale or ability to sell at the fixed price would have been a condition precedent to payment; but, as we construe the contract, such is not its effect.

We then have a contract for sale definite in all of its terms, except the time for payment. It was evidently contemplated that Bush and Harkrider should have a reasonable time within which to sell the lots and pay the vendor with the cash and vendors’ lien notes received in payment for the lots.

In every contract where no time for performance is fixed by the contract, the law allows a reasonable time for its performance; the length of time, of course, depending upon facts and • circumstances of the particular case. Self v. King, 28 Tex. 552; Drumm Co. v. McFarland, 30 S. W. 93; Hart v. Bullion, 48 Tex. 278.

The Court of Civil Appeals has foufid that a reasonable time for the performance of the contract had elapsed. We are bound by its findings, and therefore conclude that, whether the contract be treated as one of sale or option, Merrill, Roberts, and Hudgins had á right to renounce the same and recover possession of the property.

The case of Lipscomb v. Fuqua, 103 Tex. 585, 131 S. W. 1062, involved a contract ■similar to the one under consideration, except that in the case of Lipscomb v. Fuqua the contract provided a definite time in which the land should be sold and provided that, if not sold within the time limited, the balance should be payable at a fixed date. If the contract involved in this case is construed as a contract of sale, and it is conceded that a reasonable time had elapsed for the payment of the purchase money before the attempted rescission, then the contract in this case would be identical in legal effect as the contract in the case of Lipscomb v. Fuqua; that is, an executory contract for the sale of land. This being true, and the purchaser having defaulted in the páyment of the purchase money, the rights of the parties must be governed by the rules applicable to such contracts. It is too well settled in this state to require authorities that, when the purchaser in an executory contract has made default in the payment of purchase money, the vendor may at his election rescind the contract. We therefore think that the vendor in this case at the time suit was brought had the right of rescission and was entitled to judgment for the possession of the property.

The only other question in the case arises out of the claim of plaintiffs in error to a recovery of the purchase money paid. If the contract was a contract merely giving Bush and Harkrider the option of acquiring the property by payment of the prices, we think the $8,000 paid should be held to be the price of the option, and therefore that Bush and Harkrider, having received all that they contracted for, were not entitled to recover back the price paid. If, on the other hand, the contract evidences an executory agreement of sale, and default has been made in payment of the purchase money when due, that is, in a reasonable time, there being no time fixed in the contract, then the vendors had the right to rescind the contract without the repayment of the money paid under the contract, unless there were circumstances which rendered it inequitable for them to do so.

It will be noticed that the plaintiffs in error made no offer of performance by tendering the unpaid purchase money; the only offer made was in effect an offer to pay for the lots by a sale of them on the terms authorized by the contract1,- when, if ever, such sale could be made.

The lots at the time of the trial were worth much less than the amount due, and whether they would ever be worth more was a matter of speculation. The offer was no offer to perform at all. The contract gave the plaintiffs the privilege of selling the lots and of thus paying the purchase price. That privilege not having been exercised, or being impossible of exercise, did not have the effect of postponing indefinitely the performance of the contract.

In the opinion of Morre v. Giesecke, 76 Tex. 550, 13 S. W. 293, the law upon this subject is thus announced :

“The rule has been repeatedly and distinctly asserted, and is left by this decision in unimpaired force, that where the vendor has done nothing to waive that right he may, in every case of an executory sale of land where the vendee makes default in payment of the pui‘-chase money, maintain a suit for the recovery back of the land.
“We can see no good reason why, in every case in which the vendor sues to recover hack the land contracted to be sold, the original ven-dee. or any purchaser under liim, may not only show, if the facts warrant it, that a recovery or rescission should not be allowed, and if that remedy is maintainable also the existence of any facts entitling him in equity to have compensation for permanent and valuable improvements and to be compensated for partial payments previously made.
“We repeat what has already been said when we say that, when the vendor’s suit is predicated upon the mere refusal of the vendee to pay' the whole consideration contracted for, the facts that the vendee has paid part of the consideration and made valuable improvements, coupled with possession of the property, unaided by some other sufficient equity, will not entitle him to recover for such purchase money or improvements. In such cases, when the vendor has neither waived his legal rights nor committed any default, he cannot be involuntarily taxed with improvements made upon his property without his consent, or be made to pay a price for recovering it back.
“The remedy by rescission is not favored, and, as has been said, slight circumstances, when they may be properly treated as indicative of a purpose upon the part of the vendor not to insist on that remedy, may be treated as a waiver of the right to rescind, unless its maintenance becomes necessary to enable the vendor to enforce the payment of the consideration for which he contracted to sell the land; and when a suit for the recovery back of the land has been brought, where any portion of the purchase money has been paid, or where valuable and permanent improvements have been placed upon the land by the vendee or by purchasers under him, and the defendant when sued brings into court and offers to pay the balance of the purchase money with costs of suit, unless there exist strong countervailing equities, the money ought to be received and a recovery of the land denied. On the other hand, when the vendee does not seek to perform the contract, and the vendor shows himself entitled to recover back the land, then, before he should be compelled as a condition of its reacquisition to pay for improvements or refund purchase money, equitable right to such relief should be shown by the vendee. It should appear that it will not be unjust to the vendor to so charge him.”

This case has been frequently cited with approval and, as we understand, expresses the law as it exists to-day.

The facts of this case, in our judgment, fail to show any such, equity as entitles plaintiffs in error to recover the partial payment of purchase money made by them or any part thereof. There were no improvements placed on the land, and the land was not in any manner enhanced in value while the contract was in force. Nothing done by plaintiffs in error in any way inured to the advantage of the vendors. The land, during the existence of the contract, had so depreciated in value that the market value at the time of the trial was §10,000 less than the unpaid purchase money. The vendors at the time the contract was made had property worth approximately §43,000. They received in cash $8,000, and the property at the time of rescission was worth only about $25,000. It appears to us that it would be unjust to the vendors to require them, as a condition to recovering possession of their property, to repay the $8,000 received by them or any part of it. Upon the whole case, we are of opinion that the judgments in the district court and the Court of Civil Appeals are correct, and that the same should be affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      ®=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    PARHAM v. WESTERN UNION TELEGRAPH CO.
    (No. 4-2551.)
    (Commission of Appeals of Texas, Section A.
    Dec. 11, 1918.)
    1. TELEGRAPHS AND TELEPHONES <&wkey;53 — DELAY in Delivery — Contributory Negligence — Proximate Cause.
    Misspelling' by sender of telegram of name of addressee, though resulting in delay in delivery, does not prevent recovery, if 'by exercise of ordinary care the company, after learning the correct name, could have delivered in time to prevent the injury; it not being a proximate cause.
    2. Appeal and Error <&wkey;1090(l) — Review-Necessity op Cross-Assignments.
    The Supreme Court, on error to the Court of Civil Appeals, which erroneously reversed judgment for plaintiff, on the ground that a certain refused instruction should have been given, need not consider whether other instructions should have been given; defendant’s brief containing no assignment of error to failure to give them.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action hy C. W. Parham against the Western Union Telegraph Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (152 S. W. 819), and plaintiff brings error.
    Remanded to Court of Civil Appeals with directions.
    H. C. Bishop, of Hubbard, and H. G. Hart and R. M. Vaughan, both of Hillsboro, for plaintiff in error.
    N. L. Lindsley, of Dallas, and E. G. Senter, of Washington, D. C. (Geo. H. Fearons, of New York City, of counsel), for defendant in error.
   TAYLOR, J.

The suit was for damages for failure of the telegraph company to deliver, within a .reasonable time, a telegram sent to the plaintiff’s wife, announcing the death of her father, whereby it was claimed she was prevented from attending bis funeral.

The plaintiff, O. W. Parham, and his wife, Mrs. Fannie Parham, resided at Hubbard, Tex. E. Chrisenhall, Mrs. Parbam’s father, resided at Pollock, Tex., about 150 miles distant, where he died at the home of A. K. Martin February 12, 1911. The said Martin at once telephoned a message to the telegraph company’s agent at Lufkin, Tex., to be transmitted to the company’s agent at Hubbard, Tex., and there delivered to Mrs. Parham. The said Martin communicated the addressee’s name to the agent in such a way that it was transmitted to Hubbard spelled “P-h-a-r-a-m,” instead of “P-a-r-h-a-m.”

The message was promptly transmitted to Hubbard, being received there about 5:20 o’clock p. m., February 12, 1911. The company’s messenger delivered it to Mrs. Parham at her home in Hubbard' about 8 o’clock the following morning. The funeral of the father occurred about 4 o’clock p. m. the day the message was delivered to Sirs. Par-ham. A passenger leaving Hubbard on the 0:30 o’clock p. m. train was due to reach Pollock the next day at 10:26 o’clock a. m. A passenger leaving Hubbard at 8:33 o’clock a. m. would reach Pollock at 7:01 p. m. the same day.

The opinion of the Court of Civil Appeals (152 S. W. 819) states all of the material testimony regarding the mistake in spelling Mrs. Parham’s name. The opinion also sets out in part the testimony of assistant postmaster, Johnson, and seems to construe the same as tending to show that the defendant’s messenger received from said Johnson, the information as to where Mrs. Parham lived about 6 o’clock p. m. the same day the company’s agent at Hubbard received the telegram.

The petition alleged, among other things, that within about an hour after the receipt of the telegram the defendant’s messenger learned by inquiry at the post office in Hubbard, from the assistant postmaster, J. H. Johnson, where Mrs. Parham resided. The further allegations of the petition show that the plaintiff sought recovery on the theory that, within about an hour after the telegram had been received at Hubbard City, the defendant’s messenger learned who the addressee was ahd where she resided, and that the defendant, having ample time thereafter to deliver the message before the 9 o’clock p. m. train left Pollock, failed to do so, thereby causing the injured complained of; that, this being true, it was not material whether the plaintiff was negligent in misspelling the addressee’s name, the assistant postmaster having at the time stated supplied the information sought to be conveyed through the address.

The defendant denied liability, and answered specially that the plaintiff was guilty of contributory negligence, in, among other things, misspelling the name of the addressee. The defendant’s theory of the ease, as disclosed by the record, seems to be that inasmuch as the plaintiff’s negligence caused, or contributed to cause, some delay in delivering the message, the defendant was thereby relieved of liability, and that the plaintiff, having negligently caused some delay, was not entitled to recover, regardless of whether the delay thus caused was sufficient in point of time to prevent Mrs. Parham from attending the funeral.

The court, in the main charge, without specific reference to the misspelling of the addressee’s name, instructed the jury to determine whether the defendant, in view of the circumstances- disclosed by the whole evidence, delivered the message within a reasonable time after receiving the same at its Hubbard City office, and further instructed them that, unless they believed the defendant’s employes failed to deliver the message within a reasonable time after receiving same at Hubbard City, and that such failure was negligence, they should return a verdict for the defendant.

The defendant, in accordance with its view's of the case stated above, requested the court to give the following special charge:

“You are instructed that it appears from the undisputed evidence heroin that the mistake in the address of the message in controversy was caused by the plaintiff’s own agent. You are therefore charged that, if you should find that there was any delay in the delivery of the message after it reached Hubbard City, and if you should find that the mistake in the spelling of the name of plaintiff’s wife, as it appears in the message, caused or contributed to cause such delay, if any, you will return a verdict for the defendant.”

The charge was refused, and the Court of Civil Appeals reversed the judgment and remanded the case, for failure, of the trial court to give the requested charge, or some equivalent charge. The case is now before this court on the sole question of whether the Court of Civil Appeals erred in holding that the charge should have been given.

The charge requested in substance directs the jury to acquit the defendant of liability, if there was any delay in delivering the message caused, or contributed to, by the plaintiff’s negligence in misspelling the name of the addressee. That the plaintiff’s agent, by causing a defective address to be transmitted, occasioned some delay, may be conceded. It does not follow, however, as a matter of law, that, because the plaintiff caused a delay in the manner stated, the defendant is thereby relieved of liability, regardless of whether the delay was sufficient in point of time to cause the injury, or whether the defendant was negligent in failing to deliver the message within a reasonable time after receiving it. If, after discovering that the plaintiff’s wife was the person for whom the message was intended, and after learning where she resided, the defendant, by the use of ordinary care, could have delivered the message in time to enable her to .attend the funeral, and failed in the exercise of such care to so deliver the message, the defendant would be liable.

The theory on which the requested charge is predicated is that the error of the plaintiff’s agent in misspelling the name of the addressee, resulting, as it did, in a delay in the delivery of the message, would preclude a recovery by the plaintiff, even though the defendant by the exercise of ordinary care could have delivered the same in time to enable the plaintiff’s wife to attend the funeral. Contributory negligence on tbe part of tbe plaintiff would not relieve tbe defendant of liability, unless it should be found to be tbe proximate cause of tbe injury. Jones’ Telegraph and Telephone Companies, 302; Wells Fargo & Co. v. Benjamin, 107 Tex. 331, 179 S. W. 513.

The charge requested was an incorrect statement of tbe law as applied to tbe facts of this case and should not have been given.

Whether tbe court should have applied tbe law to the facts more directly, or whether the charge on contributory negligence should have been given need not be determined, as the defendant’s brief contains no assignment of error on the failure of the court to so charge.

In view of the conclusion of the Court of Civil Appeals, expressed in the opinion, that the amount of the verdict was probably excessive, we conclude that the case should be remanded to the Court of Civil Appeals for disposition on its merits.

PHILLIPS, C. J. The judgment by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission.
      <§s^>For other cases see same topic and KEY-NTJM.BEK in ail Key-Numbered Digests and Indexes


author: SONFIELD, P. J.

text:
    STATE NAT. BANK OF FT. WORTH v. VICKERY.
    (No. 18-2611.)
    (Commission of Appeals of Texas, Section A.
    Dec. 11, 1918.)
    1. Principal and Surety <&wkey;59 — Construction of Contract.
    The rule that surety contracts will be strictly construed applies only after the legal scope or effect of the terms used is determined by an application of the.same rules of construction that are applied to any other character of contract.
    2. Principal and Surety &wkey;>59 — Construction of Contract.
    Surety contracts will be strictly construed, merely that the obligation of the surety shall not be extended by implication or presumption, and not to relieve the surety from an onerous condition or obligation.
    3. Principal and Surety <&wkey;59 — Construction of Contract.
    A suretyship contract is to be interpreted with a view of ascertainment of the intent of the parties, the same to be gathered from the language of the instrument in its entirety, and where necessary resort may be had to the purpose of the parties in the making of the contract.
    4. Bills and Notes <&wkey;396 — Liability of Indorser — -Condition^.
    An indorser’s liability is contingent upon presentment of note for payment, and in event of nonpayment, ■ protest, and due notice to in-dorser.
    5. Bills and Notes <&wkey;396 — Indorser’s Liability — Conditions—Strict Compliance.
    Strict compliance with conditions upon which indorser’s liability is contingent is essen-tia] in order to hold the indorser.
    6. Bills and Notes <&wkey;301 — Extension of Time of Payment — Consent of Indorser and Surety.
    Time of payment must not be extended without the consent of the indorser and surety.
    7. Bills and Notes <&wkey;422(l) — Indorser’s Liability — Waiver — Presentment — Protest — Notice..
    The waiving of presentment for payment, protest, and notice does not increase the original liability of the indorser, but merely renders unnecessary the performance of these acts to fix such liability.
    8. Principal and Surety &wkey;>129(4) — Liability of Surety — Extension of Time of Payment — “To Extend.”
    The time for payment on a note, providing that “time of payment may be extended without notice thereof,” could be extended from time to time without releasing the surety, surety having consented not merely to one extension, but that time of payment could be prolonged or continued as agreed upon between maker and holder.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Extend.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by the State National Bank of Ft. Worth against R. Vickery and others. Judgment for plaintiff against defendant named, and, on appeal by first-named defendant, the Court of Civil Appeals reversed judgment against the first-named defendant and rendered judgment in his favor (159 S. W. 874), and plaintiff brings error.
    Judgment of Court of Civil Appeals reversed, and that of lower court affirmed.
    W. B. Paddock, F. M. Bransford, and Theodore Black, all of Ft. Worth, for plaintiff in error.
    Orrick & Terrell, of Ft. Worth, for defendant in error.
   SONFIELD, P. J.

Suit by plaintiff, the' State National Bank of Ft. Worth, against George Bury and W. S. Heaton, as principals, and R. Vickery, as surety, on a promissory note. A trial before the court without the intervention of a jury resulted in judgment discharging Bury and in favor of plaintiff against the other two defendants. From this judgment, defendant Vickery alone appealed. The Court of Civil Appeals reversed the judgment against defendant and rendered judgment, in his favor. 159 S. W. 874. The note in suit contained the following provision:

“The makers and all indorsers hereof severally waive presentment for payment, protest, and notice of protest and consent that time of payment may be extended without notice thereof.”

The court finds that there were eleven extensions of time of payment of the note; that, at the time of the several extensions, interest was paid in advance to the time when payment was extended; defendant had no notice of the extensions and did not consent to same; and that plaintiff had knowledge that defendant signed the note as surety.

The question involved is whether the stipulation that “time of payment may be extended without notice thereof” permits more than one extension of time of payment without the consent of the defendant as surety.

The question has never been determined in this state. Notes containing provision waiving all defenses growing out of “any extension” of time of payment have been construed by the courts of several states, some holding that the provision permitted of but one extension, others that the right was not so limited. Some of these cases and cases dealing with similar provisions in other character of contracts are cited and quoted from in the opinion of the Court of Civil Appeals, The case of Rochester Saving Bank v. Chick, 04 N. H. 410, 13 Atl. 872, is in largest measure relied upon by defendant and is approved and followed by the Court of Civil Appeals. The note stipulated that “all signers agree to be holden should the time be extended.” The note had been extended several times, and Clark, one of the defendants, xileaded that he signed the same as surety and was released through such extensions of time. The court said:

“The time of payment fixed upon in the note is six months, and the agreement, ‘to be holden should the time of payment be extended,’ naturally and by the ordinary force of language and taken in connection with the first part of the note, means a reasonable extension for a definite time, and not a series of extensions indefinite in number and endless in repetition. When- the plaintiffs, at the end of six months from the date of the note, extended the time of payment for a definite period of time, the extension was in accordance with the agreement of all parties; all parties were bound by it, and the defendant Clark was not thereby discharged. But the agreement in the note was met and satisfied by such an extension. Any further extension, upon a valid consideration and binding upon the plaintiffs, made without the consent of the surety, had the effect of discharging him.”

Tbe case of Bonart v. Rabito, 141 La. 970, 76 South. 166, not cited in the briefs or called to the attention, of the court in argument, involved the release of an accommodation indorser on the ground that several extensions of the time of payment had been granted. The note sued upon contained the following stipulation:

“The makers, indorsers, guarantors, and sureties of this note hereby severally * * * consent that time of payment may be extended without notice thereof.”

The court reviews the case above cited and the other cases relied upon by defendant. Construing this stipulation, the court said:

,, “We cannot conceive of any reasonable theory on which to hold that the indorser’s consent, as expressed in the note sued on, authorized the payee to grant the maker only one extension of the time of payment, however long, and did not authorize two extensions, however short. To maintain such a doctrine would lead to the anomalous conclusion that the indorser would not have-been released if .the payee had granted to the maker of the note, without notice to the indorser, one extension of the time of payment for one year, but that she would have been released by the granting of two extensions, for one month, or one week, or one day each. Our interpretation of the indorser’s consent that time of payment might be extended without notice thereof is that the payee and the maker of the note could agree to extend the payment from time to time without notice to the indorser and without releasing her from liability, unless and until at any time after maturity she saw fit to pay the note and become immediately subrogat-ed to a right of action against the maker.”

In City of Madison v. American Sanitary Engineering Co., 118 Wis. at page 512, 95 N. W. at page 1108, the Supreme Court of Wisconsin, answering a contention of a surety on a contractor’s bond, said:

“It is contended that the contract was materially altered by the second extension of time granted by the city, because the contract only provides for one extension of time. The contract says that the time for completion ‘may be extended only by the previous written consent of the mayor and city engineer for good canse shown.’ This does not say that there can be but one extension either in direct terms or by implication. Such a construction is not warranted by the words, and is, in our judgment, unreasonably narrow.”

We recognize that the rule of strict construction applies to contracts of surety-ship. The rule is applied, however, only after the legal scope or effect of the terms used is determined by an application of the same rules of construction that are applied to any other character of contract. 5 Elliott, Contracts, § 3941. The rule of strict construction does not involve a departure from the general rules of construction with a view to relieving the surety from an onerous condition or obligation, but merely that the obligation of the surety shall not be extended by implication or presumption. The contract is to be interpreted with a view to the ascertainment of the real intent of the parties, the same to be gathered from the language of the instrument in its entirety ;■ and, when necessary, resort may be had to the purpose of the parties in the making of the contract. This and similar provisions waiving presentment for payment, protest, and notice of protest, and consenting to extension of time of payment, are a comparatively recent innovation; and, in construing such provisions, regard should be had to the purpose of importing same into commercial paper.

Through indorsement, the indorser becomes contingently liable for payment. Tbe law merchant for the protection of the indorser writes into the note conditions upon which his liability becomes fixed. There must be presentment for payment,' in the event of nonpayment, protest, and due notice of protest to the indorser. Strict compliance is essential in order to hold the indorser. As a further protection to both indorser and surety, the time of payment must not be extended without their consent. The law thus safeguards the rights of those not primarily liable for payment.

These conditions and requirements lessened to a degree tbe value of the paper and tended to restrict the extension of credit through this medium. To meet the exigencies of an increased and more complex commerce, provisions similar to that contained in the note herein were inserted. As said by the court in discussing a somewhat similar provision to determine its effect upon the negotiability of the note:

“The obvious purpose of the provision, taken as a whole, was merely to relieve the holder of the paper from the burdens made necessary by the rigid requirements of the mercantile law in order to secure the continued liability of the indorsers and sureties upon the paper.” Bank v. Kenney, 98 Tex. 293, 83 S. W. 368.

The waiving of presentment for payment, protest, and notice does not increase the original liability of the indorser, but merely renders unnecessary the performance of these acts to fix such liability. The waiver is obviously for tile benefit and to the advantage of the payee or holder. The stipulation consenting that time may be extended is primarily for the benefit of the maker. It confers upon him the right by agreement with the holder to receive further extension of credit. It agrees that the original note may be given added life through extension of time of payment, .thus obviating the necessity of renewal notes and continuing the liability of indorser and surety. Incidentally, the stipulation is at times a benefit to the surety, as stated by the court in Bank of Whitehouse v. White, 136 Tenn. 634, 191 S. W. 332:

“Such a provision for extension not infrequently operates to the advantage of a surety in permitting the holder, at its option, safely to give grace to the maker, on the latter’s application ; when otherwise, pressure for payment might come inconveniently upon both maker and surety.”

With the purpose of the provision in view, there is little difficulty in the construction of the stipulation consenting that time may be extended. To “extend” is to prolong; to enlarge; to lengthen; to continue. The defendant as surety consented that the timé of payment may be prolonged or continued. There is no suggestion in the stipulation of a limitation to one extension; that the consent should be exhaused with one exercise of the right conferred. There is no warrant for such construction. On the contrary, taken in connection with the language of the entire provision, it is clear-that, as the in-dorser waived the performance of those acts necessary under the law merchant to fix his liability, the liability becoming fixed upon the execution of the note, so the indorser and surety waived their right to insist upon the time of payment remaining unchanged, and agreed that their liability should continue whatever change in time of payment might be agreed upon between the maker and holder.

The court in the case of Bank v. Chick, supra, reasoned that to construe the stipulation as granting the right to a series of extensions would enable the holder at his pleasure to keep the surety liable and forever prevent his enforcing payment against the maker or using the statute of limitation as a defense. The court in Bonart v. Rabito, supra, in its review of the case of Bank v. Chick, answers the argument by the statement that such stipulation would not deprive the surety of the right to pay the note at its maturity and become subrogated to an immediate right of action against the maker. This right of the surety and the right given under articles 6329 and 6330, R. S. 1911, need not here be discussed or determined, for the defendant herein has not sought to avail himself of any right through payment or any right he might have under the statute. Without this stipulation, defendant would have been released; but, in the execution of the note, he consented to the extensions, waiving notice thereof, and such extensions did not release him from liability.

We are of opinion that the judgment of the Court of Civil Appeals should be reversed, and that of the district court affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <®^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIJDSON, P. J.

text:
    YANCEY v. STATE.
    (No. 5222.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    Gaming <@=>98(2) — Betting at Pool — Evidence.
    Evidence held insufficient to sustain conviction for the offense of unlawfully betting at a game of pool.
    Appeal from Young County Court; W. P. Stinson, Judge.
    Punch Yancey was convicted of unlawfully betting at a game of pool, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for. the State.
   DAVIJDSON, P. J.

Appellant was convicted under an indictment charging him with unlawfully betting and wagering at a game of pool.

It is contended the evidence is not sufficient. The evidence is very brief, covering less than one page of the transcript. The only evidence bearing upon the question as to whether or not appellant bet is to be found in the testimony of the witness Brock. He says:

“I played several games of pool with defendant some time in January, 1918, but do not remember the exact day. I went in the pool hall one day some time in January; and the defendant and myself played several games of pool. I lost one of the games, and defendant lost the others, and we played several games, and when we finished playing I paid him 10 cents. There was no conversation between 'us with reference to any betting before we commenced or at any time. There was nothing said about any bet or wager; we just played several games, and when we finished I paid him 10 cents.”

We are of opinion this evidence does not show that appellant bet as charged in the indictment.

The judgment is reversed, and the cause remanded.
      ®=Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PREN-DERGAST, J.

text:
    BIRD v. STATE.
    (No. 5224.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    1. Indictment and Information <&wkey;79 — Mistake in Spelling.
    An indictment charging a violation of the law prohibiting the sale of intoxicating liquors in prohibition territory, omitting the letter “i” in the middle of the word “intoxicating,” when first used, 7telé not open to attack.
    2. Criminal Daw <&wkey;1091(5) — Appeal—Bill of Exception.
    Bills of exception, complaining of the rejection of evidence, helé too defective for consideration.
    3. Criminal Law (&wkey;341 — Offenses — Evidence.
    In a prosecution for violation of the law prohibiting the sale of intoxicating liquors in prohibition territory, evidence as to the number of defendant’s family helé immaterial.
    4. Intoxicating Liquors <&wkey;14G(l), 235-Offenses — Defense—Evidence.
    In a prosecution - for selling intoxicating liquors in prohibition territory, it is no defense that the seller made no money, or that the liquor did not belong to him, so evidence as to whether defendant got anything out of the sale was properly excluded.
    5. Criminal Law <&wkey;1170(2) — Appeal — Harmless Error.
    The exclusion of evidence was harmless, where the record shows the matter was elsewhere in substance admitted.
    6. Intoxicating Liquors &wkey;>239(2) — Offenses — Instructions.
    In a prosecution for selling intoxicating liquors in prohibition territory, a charge that the ownership of the liquor was immaterial, if defendant was exercising control, etc., helé correct, and applicable to the case.
    7. Criminal Law <&wkey;1099(14) — Appeal — Bill of Exceptions.
    A bill of exceptions is necessary to enable the appellate court to review objections to the charge.
    Appeal from District Court, Titus County; J. R. Warren, Judge.
    W. W. Bird was convicted for violation of the law prohibiting the sale of intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    T. C. Hutchings, of Mt. Pleasant, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PREN-DERGAST, J.

Appellant was convicted for violation of the law prohibiting the sale of intoxicating liquors in prohibition territory, a felony, and his punishment assessed at the lowest prescribed by law.

The charging part of the indictment Is that on December 6, 1913, an election in accordance with the laws of this state was held under the authority of an order of the commissioners’ court of said county, theretofore duly made and published as required by law, to determine whether or not the sale of “in-toxcating liquors” should be prohibited in Titus county, and the qualified voters at said election did then and there determine that the sale of intoxicating liquors should be prohibited in Titus county, Tex., and thereupon the commissioners’ court of said county did pass an order declaring the result of said election and prohibiting the sale of intoxicating liquors in Titus county, Tex., which order was duly entered of record in the minutes of the commissioners’ court, and was thereafter duly published by the county judge in the manner and form and for the length of time required by law, and thereafter, on or about July 1,1917, appellant in said county did then and there unlawfully sell intoxicating liquors to R. B. Graham in violation of said law.

Appellant made no motion to quash the indictment, but after conviction he made a motion in arrest of judgment, and also at the trial, when the order of the commissioners’ court declaring prohibition had carried and prohibiting the sale of intoxicating liquors in said county, was offered is evidence, he objected to it because the letter “i” in the middle of the word “intoxicating,” first used in the indictment was omitted. The court did not err in overruling his motion in arrest of judgment, nor in admitting in evidence the said order of the commissioners’ court, because of the omission of said letter in said word. The omission of this letter was wholly immaterial. It could in no way have misled the appellant, nor in any way injured him; besides to take the allegations in the indictment as a whole, they without doubt show that the omission of said letter where indicated was completely supplied in the other ¿negations of the indictment. Johnson v. State, 4 Tex. App. 268; Barrett v. State, 9 Tex. App. 33; Hargrove v. State, 51 S. W. 1124; Lustor v. State, 63 Tex. Cr. R. 541, 141 S. W. 209, Ann. Cas. 1913D, 1089; Somerville v. State, 6 Tex. App. 438; Hudson v. State, 10 Tex. App. 227, 228, and cases therein cited; Bailey v. State, 63 Tex. Cr. R. 586, 141 S. W. 224; Reyes v. State, 196 S. W. 532.

Appellant has a bill which merely states that while appellant was on the stand testifying, his attorney asked him this question “How much family have you?” the district attorney objected because that was immaterial, and the court sustained the objection. The bill states that if he had been permitted to testify he would have said that he had a wife and nine children. This is in substance the whole of the bill.

He has another bill which shows that, while he was testifying, he was asked: “And you didn’t get anything out of it?” to which the district attorney objected because said testimony was immaterial, and the court sustained the objection. The bill states that defendant would have answered said question, “No,” if permitted to do so. This is in substance tbe bill in full.

Each of these bills are so wholly defective as to preclude their consideration. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Best v. State, 72 Tex. Cr. R. 203, 164 S. W. 996; Lowe v. State, 206 S. W. 519, and the rulés and authorities cited in these cases. But, if either of these bills could be considered neither would show any error. It was wholly immaterial how much family appellant had. The appellant in his bill in no way shows how this could have been material; nor, in answer to the question in said second bill, does the bill show how his answer could have been material. It has all the time been held by this court that it was not necessary in a sale of intoxicating liquor for the seller to make any money out of it; in fact, he might lose money in making the sale; and it has also all the time been held that it would be wholly immaterial whether the intoxicating liquor belonged to the seller or not. He would be guilty of violating the law if he sold the liquor of some one- else as well as if he had sold his own liquor. Besides, if we could go to the statement of facts, it would show that he testified fully that the whisky was not his, but belonged to a man by the name of Jones, and that, while the purchaser at the time paid him $2 for the whisky, he did not use it, but later turned it over to Jones So that in no event does either of his bills show any error.

The record shows that appellant objected to this clause of the court’s charge, to wit;

“In this connection you are further charged that it is immaterial who the real owner of the property may be, if the party charged with the sale is in possession of the property and exercising control over the same, and for a valuable consideration paid or promised to be paid by another, delivers the property to another, to be by such other person used and appropriated as his own, then in law the sale would be complete.”

This charge lays down a correct legal proposition and was applicable in this case. However, appellant took no bill of exceptions, presenting the matter, which was necessary. As appellant took no bill presenting the matter, evidently he acquiesced in the court’s overruling his objections to the charge.

The judgment is affirmed.
      <gn»For other oases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    FALCONE v. STATE.
    (No. 5211.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    Receiving Stolen Goods <@=3 — Reception Without Knowledge oe Theft — Subsequent Knowledge.
    Defendant, who received jewelry without knowing it was stolen, but, after learning the fact, concealed it was guilty of receiving stolen property.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Vincent Falcone was convicted of receiving stolen property, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of receiving stolen property; his punishment being assessed at four years’ confinement in the penitentiary.

The evidence discloses that Otto Best, Roberta Armstrong, and Alberta Robinson burglarized a house belonging to Mrs. Hannah Melasky, and took from it valuable jewelry, alleged in the indictment to be worth $675, and that after this was done appellant received it from Frank Kyle and concealed it. The evidence is sufficient to support the finding of the jury that the property was taken from Mrs. Hannah Melasky’s house, and received and turned over to Kyle, who in turn passed it to appellant, and received money as a consideration for the reception of this jewelry. The jewelry stolen was mainly diamonds in one form or another.

It is contended that appellant, at the time he received it, did not know it was stolen. Such was appellant’s testimony; he being the only witness who testified in his own behalf. But -the evidence shows that after he received -the property, although under his testimony he may not have known it was stolen at the time he received it, he concealed it knowing that fact. We are of opinion •that this sufficiently makes out a case to justify the verdict of the jury. There are no bills of exception to any ruling or action of the court, either as to the admission or rejection of testimony, or charges given. As this record presents the matter, we are of opinion that the state has sufficiently made out a case to justify the conviction.

The judgment is therefore affirmed.
      ®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WALLACE et al. v. STATE.
    (No. 5212.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    1. Criminal Law <§=1159(2) — Appeal— Scope of Review.
    Where the evidence is sufficient to sustain the conviction, and no exceptions are taken to the charge, or to introduction of testimony, no question is raised on appeal.
    2. Homicide <@=250 — Murder — Evidence —Sufficiency.
    Evidence held sufficient to sustain conviction of crime of murder.
    Appeal from - District Court, Freestone County; A. M. Blackmon, Judge.
    Frank Wallace and Alvin Henry were convicted of murder, and they appeal.
    Affirmed.

      E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellants were indicted in the same indictment for tire murder of Brag Dunbar, who, the evidence shows, was constable at the time he was killed.

There are no bills of exception in the record, either, to the admission or rejection of testimony, or to - the charges of the court. Appellants pleaded guilty. Quite a lot of testimony was introduced, to the effect that a certain house was burglarized. Dunbar, constable, was notified of that fact by the owner of the house. He followed parties supposed to be the burglars; the defendants ■ being those parties. Dunbar and the owner were in an automobile together, and upon overtaking them Dunbar told them to hold up. One or both of appellants replied practically in the same language, for them to hold up, and began shooting at Dunbar before he got out of, the car. The evidence is to the effect, practically, that they shot three times at him before he got out of the car, or while he was getting out; each shot taking effect. They shot, also, at the party who was with Dunbar, the owner of the house that had been burglarized. One of the shots took effect in the hip of this party. They also shot at other parties. Later they were arrested in Walker county, and under this indictment in Freestone county were tried and convicted, with the death penalty assessed.

There being no exceptions taken to the charge of the court, and none reserved to the introduction of testimony, we are of opinion .that there is no question raised by the motion for new trial that can be considered. That the parties were guilty of murder under the testimony, it occurs to us, would hardly bei questioned; there being no extenuating facts or circumstances, and no adequate cause, either in fact or by a combination of circumstances, presented.

The jury might have found a different verdict, or one of less severity; but the facts and the circumstances indicate that it was an unnecessary killing, and one that authorized the verdict.

The judgment will therefore be affirmed.


author: PRENDERGAST, J.

text:
    THOMAS v. STATE.
    (No. 5216.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    1. Obihinad Law <@=1043(2) — Appeab — Exception S — SUEEICIEN CY.
    The objection to the court’s charge for failure to submit the issue of manslaughter, “because the issue was properly raised by the testimony adduced on the trial,” is too general to present any error.
    2. Homicide <@=309(5) — Instructions—Man-SLAT7 G-UTEK.
    If the case is either murder or perfect self-defense, it is not error to fail to charge on manslaughter.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Rubio Thomas was convicted of murder, and he appeals.
    Affirmed.
    John H. Crooker, Crim. Dist. Atty., and H. H. Cooper, Asst. Crim. Dist. Atty., both of Houston, and B. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at 25 years in the penitentiary.

The evidence has been carefully read. It without doubt was sufficient to show that appellant was guilty of murder as charged in the indictment. It did not raise the issue of manslaughter, and the court below correctly so ruled. Appellant’s testimony alone did raise self-defense, which the court submitted fully in his behalf in a correct charge, and to which there was no objection.

There is in the record what is styled defendant’s objections to the court’s charge, which, after giving the style and number of the cause and court, is to the -effect that the defendant, before the court’s main charge was read to the jury, “excepts to it and the court’s refusal to give the requested charge on manslaughter, as requested by defendant herein, because the issue was properly raised by the testimony adduced on the trial.” This is not signed, either by the appellant or any attorney for him. It shows to have been filed May 31st, but there is no indication that it was ever presented to or acted upon by the court. There is, however, also in the record a charge requested by appellant’s attorneys on the subject of manslaughter, but there is no bill of exceptions to the refusal of the court to give it, and no bill presenting his said exceptions to the court’s charge, if it could be considered such. There is nothing in either of these papers which recites in any way any testimony, or claimed testimony, which would raise the issue of manslaughter. Apparently, if not as a matter of fact, by not taking a bill to these matters, or either of them, appellant acquiesced in the court’s action.

Besides, the objection to the court’s charge, if it could be so considered, as has many times been held by this court, was too general to present any error and so was the requested charge. Mansfield v. State, 62 Tex. Cr. R. 631, 138 S. W. 591; Luster v. State, 63 Tex. Cr. R. 548, 141 S. W. 209, Ann. Cas. 1913D, 1089; Teague v. State, 67 Tex. Cr. R. 41, 148 S. W. 1063; Garrett v. State, 69 Tex. Cr. R. 462, 155 S. W. 251; Chant v. State, 73 Tex. Cr. R. 345, 166 S. W. 513.

Again, it has uniformly been held by this court, as stated by Mr. Branch, that “if the case is either murder or perfect self-defense, it is not error to fail to charge on manslaughter,” citing a large number of decisions of this court to that effect. 2 Branch’s An. P. C. § 2014.

The judgment is affirmed.
      <®=^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'


author: HALL, J.

text:
    PEOPLE’S SAV. BANK v. MARRS.
    (No. 1396.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Attorney and Client <&wkey;144 — Attorney’s Pees — Construction oe Agreement.
    Under agreement by a bank to pay plaintiff attorney’s fees for foreclosure against a third party, if the bank collected the full amount on foreclosure, profits made by the bank upon selling the property could not be credited on the foreclosure judgment in order to show that the entire judgment was collected.
    2. Assignments &wkey;48 —Equitable Assignments — Attorney’s Pees.
    An agreement between a bank and its attorney that attorney’s fees should be incorporated in a foreclosure judgment to the extent of 10 per cent, of the principal and interest, held to constitute an equitable assignment to the attorney of so much of the judgment as represented attorney’s fees.
    3. Attorney and Client &wkey;>144r — Attorney’s Pees — Construction of Agreement —Interest.
    Under an agreement to pay certain attorney’s fees if the entire amount of judgment, which included such attorney’s fees, should be collected from a third person, if the full judgment were collected the attorney would be entitled to interest not merely from the date of collection, but from the date of the judgment, since collection of the judgment would include interest, which it provided it should bear from its date.
    4. Evidence &wkey;>282 — Declarations.
    In an action against a bank for attorney’s fees included in a judgment against a deceased third person, evidence by plaintiff that the third person had told him to enter judgment for the full amount of attorney’s fees was admissible, in view of an instruction by the bank for the inclusion of such fees.
    5. Evidence <&wkey;177 — Copy of Letter.
    In an attorney’s action against a bank for fees, included in a judgment against a third person, recovered by the bank, a carbon copy of - plaintiff’s letter to such third person was admissible where such person was dead, and his wife was beyond the court’s jurisdiction, and had not been heard of for a year and a half.
    Appeal from District Court, Potter County ; Hugh. L. Umphres, Judge.
    Action by Lon D. Marrs against the People’s- Savings Bank. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant.
    C. E. Gustavus, of Amarillo, for appellee.
   HALL, J.

Appellee sued appellant bank to recover the sum of $876.98 as attorney’s fees ■due him from said bank for legal services rendered in a foreclosure suit against H. T. Groom, wherein appellee represented appellant in the district court of Potter count;?. Appellee alleges that H. T. Groom was indebted to him and to Mrs. Fannie S. Thompson as well as to appellant, and that such indebtedness was secured by deed of trust liens on three sections of land in Gray county, in the following order of priority: ap-pellee first, appellant second, and Mrs.. Thompson third; that with knowledge of this condition, and that appellee was going to foreclose, appellant employed appellee to handle the matter of the collection of its debt and arrange with H. T. Groom the amount of attorney’s fees that should be added, it being contemplated that such attorney’s fees should be realized from a sale of the lands; that the judgment in favor of appellant was subject tó a judgment in favor of appellee, and that a judgment in favor of Thompson was subject to both appellant’s and appellee’s judgments; that appellee was employed by appellant on or about January 12, 1912, to institute the suit against Groom; that the note executed by Groom to appellant, and upon-which suit was filed by ap-pellee, provided for reasonable attorney’s fees, and it was agreed between- appellee and appellant that; thj defendant would pay ap-pellee $100 in cash on his fee, and that the remainder due to be recovered and recited in the judgment should not be paid until and unless the defendant should collect the indebtedness due from Groom. Appellee alleged, in the alternative, that appellant directed appellee to arrange and agree with H. T. Groom on the amount of the attorney’s fees to be included in the judgment, and that the same should be paid to appellee only in the event the judgment against Groom-should be collected; that appellee filed the suit on June 15, 1912, secured a judgment August 31, 1912, which included the sum of $976.98 as attorney's fees; that on or about November 4th said land was sold under sheriff’s sale and bought in by W. O. Page, representing appellant bank, and reconveyed to H. P. Thompson by said bank for a consideration of $1,000 cash, and four notes aggregating $20,000, said notes secured by vendor’s lien on the land; that appellee received at such time a fee of $100, agreeing that the payment of the remaining $876.98 should await the final collection of appellant’s debt. It is further alleged that said judgment, including the attorney’s fees, had been fully collected by defendant, such collection, including, among other things, a note for $1,600, signed by Bron & McGregory, placed with appellant as collateral security by H. T. Groom, the principal and interest of which amounted to $1,832; also $6,606.31, collected from the Van Burén estate September 25, 1915, which should be applied as a credit on the Groom judgment; that these amounts, together with the $20,000 in notes given by Thompson, were sufficient to pay off the original judgment against Groom. Wherefore appellee was entitled to recover the remainder of tiie attorney’s fees. Defendant answered to the merits by general denial and a plea of accord and satisfaction, alleging that plaintiff and defendant agreed that plaintiff would accept the sum of $100 as his fee for services'in said foreclosure suit, and samq was paid to him on November 5, 1018, in full satisfaction and discharge of his claim for attorney’s fees. The case was submitted to a jury upon special issues/ and resulted in a judgment in favor of appellee against appellant for the sum of $876.98 principal, and interest at 10 per cent, from August 31, 1912, aggregating $1,331.53.

The first assignment, to the effect that the court should have directed a verdict for appellant because the evidence is undisputed that appellee agreed to receive $100 in settlement of his fee, must be overruled. The jury found that defendant bank agreed with plaintiff that, for the latter’s services as attorney in the prosecution of its suit against Groom, defendant would pay plaintiff a sum equal to 10 per cent, of the principal and interest on the note placed in his hands for collection, payment of same to be made when such judgment was collected. The jury also found that the sum of $100 paid plaintiff on his fee by the defendant bank was not in full settlement of the amount due him. The question presented is, Is there any evidence in the record which tends to support these findings? Appellee wrote appellant January 8, 1912, suggesting that a fee of $100 or $150 be added to the judgment for him. . Appellant replied on January 12th: “» * * You agree with Mr. Groom on the amount to be added to the judgment for your fee.” Ap-pellee testified that he discussed with Groom the matter of hisi attorney’s fees, and that Groom instructed him to sue for the full 10 per cent.

By the second proposition under the first assignment it is insisted that, if plaintiff is entitled to any fee above $100, his right to the same is conditioned upon the bank’s collecting the full amount of the judgment against Groom. Appellee assents to this proposition, 'but insists that the evidence shows conclusively that appellant has collected the full amount of its judgment.

We do not believe the record shows that the full amount of the judgment against Groom has been collected by appellant bank. If we admit that the judgment against Groom should be credited with the profit realized by the bank upon the sale of the land to Thompson, the appellee’s contention would be correct; but we do not agree with appellee that Groom is entitled to credit on the judgment for this amount.

The agreement between the parties that appellee’s attorney’s fees should be incorporated in the judgment to the extent of 10 per cent, of the principal and interest constitutes an equitable assignment to appellee of so much of the judgment as represented attorney’s fees. Ives v. Culton, 197 S. W. 619. The record discloses that when the sale was made under order of sale by the sheriff the parties were all there attending the sale. It is further shown that appellant had notified appellee that they intended to bid as much as $21,000 for the property, and stated to appellee that whoever bid more would get the property. Having bought the land at sheriff’s sale for $15,000, and having sold it to Thompson for $21,000, appellant cannot Be held to account to appellee or to Groom for this difference. This is the effect of this court’s holding in Evans v. Carter, 176 S. W. 749. Unless the profit realized upon tjue sale of the land to Thompson should be credited upon the judgment, it cannot be held that it has all been collected by appellant, and, according to the pleadings of the appel-lee, his right to recover the balance of the attorney’s fees sued for is based upon the full collection of the judgment. It is true appellee testified that he told the officers of the bank, that, if the land was sold under order of sale, he would be entitled to the full 10 per cent, attorney’s fees; but he does not say that they agreed to this, and there is no allegation in his pleadings that his right to recover is predicated upon such a contingency as a sale of the land by the sheriff. He alleges:

“ * * * And for such services that defendant would pay plaintiff $100 in cash to apply upon the fee that should be earned and recovered by plaintiff under the terms of said note, but that the remainder of such attorney’s fees should not be paid by defendant to plaintiff until and unless defendant should collect the indebtedness owing to it and the attorney’s fees that should be recovered in the judgment; * * * that, if plaintiff be mistaken as to the allegations in the 'foregoing paragraph, then, in the alternative, he alleges that defendant authorized and directed plaintiff to sue upon its note, adding and including such attorney’s fees thereto as might be arranged and agreed upon with said H. T. Groom, it being contemplated and understood that such attorney’s fees should be paid the said Groom, and from the sale of his lands and the proceeds thereof covered by defendant’s lien thereon, and that plaintiff should be paid such attorney’s fees only when and not unless the judgment to be obtained should be collected, it not being agreed that defendant should pay plaintiff the attorney’s fees recovered in the judgment independent of the collection thereof or from other sources than said lands, such judgment to be obtained for and in the name of defendant, including the attorney’s fees, which attorney’s fees were to belong to and be paid to plaintiff when collected.”

We think the court erred in submitting special issue No. 2, because there is no evidence that defendant agreed to pay the balance of the 10 per cent, attorney’s fees claimed by plaintiff when Thompson paid for the land, nor do appellee’s pleadings support a recovery upon any such ground. This disposes of the second and third assignments.

Under the fifth assignment appellant contends that the judgment is excessive because plaintiff is allowed a recovery of interest on his attorney’s fees from August 31, 1912, at 10 per cent., when, according to the pleadings and evidence, if lie was entitled to collect such attorney’s fees his right was conditioned upon the collection by defendant of the amount of its indebtedness, and such amount, if ever collected, was on September 25, 1916, when appellant received the proceeds of the sale of the Thompson land. This assignment is overruled. If it were shown that appellant had collected the full amount of the judgment, the amount paid would necessarily include the attorney’s fees and the interest which the judgment provides it should bear from its date. If, upon another trial, it should appear that appellant has collected the full amount of the judgment, appellee would be entitled to recover the amount of attorney’s fees named in the judgment, with interest from its date.

Appellant contends that the court erred in permitting appellee to testify that Groom told him to enter judgment for the full amount of 10 per cent, attorney’s fees. This evidence was admissible because, in agreeing with Groom upon the amount of attorney’s fees, appellee was obeying the instructions given him by appellant in its letter of January 12, 1912.

We think the carbon copy of appellee’s letter to Groom was also admissible in evidence for the same reason. It was shown that Groom had been dead for three years; that his wife was beyond the jurisdiction of the court, and had not been heard from for ¡more than a year and a half.

The judgment is reversed and the cause remanded.

       — ¡fur other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KELSEY v. EARLY GRAIN & ELEVATOR CO.
    (No. 1417.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1918.)
    1. Venue &wkey;>7 — “Contract in Writing.”
    If a broker negotiates contract for sale of grain by phone, reduces the terms of the contract to writing and mails each party a copy, and neither objects, there is a “contract in writing,” within Rev. St. 1911, art. 1830, subd. 5, as to venue.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Contract in Writing.]
    2. Associations &wkey;>5 — Accounts or Association — Contracts—Validity.
    A member of an association may, by prior agreement, authorize the association to act for him and bind him by subsequent by-laws, awards, and the like.
    3. Sales <&wkey;59 — Construing Instruments Together.
    Where plaintiff and defendant, as members of trade association, were bound by awards of association arbitration committees and association rules and regulations as to confirmation of contracts, on the issue whether defendant had sold plaintiff two cars of maize, defendant’s application for membership should be construed with plaintiff’s letter of confirmation and arbitration committee’s award.
    4.Venue <&wkey;7 — “Contract in Writing.”
    Where plaintiff and defendant, as members of trade association, were bound by awards of the association arbitration committees and by all association rules, one of which provided that if one party to a trade confirmed and the other failed to object upon receipt of confirmation both should be bound, defendant’s application for membership, plaintiff’s letter confirming a trade and specifying P. county as the place of performance together with arbitration committee’s award in plaintiff’s favor, constituted a “contract in writing” to perform the contract obligation in P. county, within Rev. St. 1911, art. 1830, subd. 5.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Action by the Early Grain & Elevator Company against Arthur Kelsey. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant.
    Ben H. Stone, of Amarillo, for appellee.
   HALL, J.

Appellee company sued appellant in the county court, alleging that it had purchased of appellant two cars of maize for immediate shipment; that it is a coi*-poration, having its' principal place of business in Amarillo, Tex.; that appellant resides at Lorenzo, in Crosby county, Tex.; and that he breached the said contract to appellee’s damage in the sum of $415. It is further alleged that, at the time of the making of the contract, both parties were members of the Texas Grain Dealers’ Association; that at the time of making application for membership appellant signed a written instrument, wherein he promised to comply strictly with the conditions, requirements, constitution, and by-laws of the association, and all amendments thereto, and to obey all orders or awards issued by the executive committee or arbitration committees of said association; that the constitution provides for arbitration, and in compliance with the rules appellant and appel-lee submitted the matters in controversy to the arbitration committee of such association; and that on May 24, 1915, said committee rendered its award, finding for ap-pellee in the sum of $415, and ordered that appellant pay said sum promptly at Amarillo. In due time appellant filed its plea of privilege to be sued in the county of his residence, praying that the cause he transferred to Crosby county. No exception is made to the form of the plea. Appellee filed its controverting affidavit, setting up substantially the facts alleged in the original petition. Upon' a trial the court overruled the plea and rendered judgment for the above amount in appellant’s favor. The evidence introduced is documentary and is in part as follows:

“Lubbock, Texas, 5/26/13.
“G. J. Gibbs, Secretary, Ft._ Worth, Texas: I, or we, hereby make application for membership in the Texas Grain Dealers’ Association, and promise if admitted, a strict compliance with all conditions and requirements of the constitution and by-laws of the association, and all amendments thereto, and all rules and regulations and all orders or awards issued by the executive or arbitration committees. The applicant is now continuously engaged in buying and selling grain and will so remain while a member of this association. Membership fee of $10.00 inclosed herewith.
“[Signed] Arthur ICelsey.”

It appears that the purchase was made by appellee by means of conversation over the telephone, on December 4,. 1914, and on that date appellee mailed appellant the following written confirmation:

“Arthur' Kelsey, Lorenzo, Texas: This confirms purchase from you by. phone of two cars, 60,000 pounds, No. 3, or better, bulk maize, at 80 cents per hundred pounds. Basis f. o. b. Lorenzo, Texas, destination grades; destination weights, shipment next week to be billed. Phone us at our expense for shipping instructions. Draft through Amarillo Bank & Trust Company, without exchange, leaving margin. If goods should arrive off grade, we to make best disposition possible without further notice. If either party defaults on this contract and causes other party a loss, party so defaulting shall pay to the other party said loss. If, for any reason, goods not shipped according to contract we reserve the right without further notice, to cancel contract, extend time, or buy in for seller’s account. Reserve right to change destination of cars. Inspection charges to be paid shipper. Contract performable in Amarillo, Texas. It is also understood and agreed that this confirmation is part of the contract and its acceptance without notifying us immediately of error therein is acknowledgment of contract as above. Regular trade and market terminal rules to apply.
“Early Grain & Elevator Co., per E.”

The parties submitted their respective statements to the arbitration committee of the Texas Grain Dealers’ Association, in which they set out the facts upon which they based their right to recover; but in neither statement is the committee requested or authorized to fix the place of payment of any damages which may be awarded. The award, after briefly reciting the facts, and outlining the respective contentions of the parties to the arbitration, proceeds as follows:

“In view of the fact that the defendant did not return the plaintiff’s confirmation and did not reply to the many letters demanding shipment, together with the affidavits of three different witnesses to the fact that the contract was actually entered into, and later the acknowledgment by phone by the defendant that such contract did exist, we are of the opinion that the plaintiff acted well within their rights in buying for the account of the defendant two1 cars of 10,006 pounds of maize, and that the loss is justly chargeable to the defendant and therefore we find for the plaintiff, Early Grain & Elevator Company, in the sum of $415.00, and hereby order that the defendant Arthur Kelsey promptly pay to the plaintiff at Amarillo, Texas, the amount of this award, and the secretary is instructed to return the plaintiff their deposit fee in this case.”

Rule 5 of the trade rules of the association. provides:

“Where only one party to a trade confirms, this confirmation shall be binding upon both parties unless objected to at the receipt of the same,”

If the transaction had been negotiated by a broker by phone and he had reduced the terms of the contract to writing, and' mailed each party a copy, which they had retained without objection, the written memorandum submitted to them would have been a sufficient contract in writing within article 1830, subd. 5, R. S. 1911; People’s Ice & Mfg. Co. v. Interstate Cotton Oil Refining Co., 182 S. W. 1163 (writ of error denied). In view of the provision of rule 5, and of the statement in appellee’s letter of confirmation that the letter itself would be a part of the contract, and that a failure to notify appellee of any objections would make the contract as outlined in the letter of confirmation binding, and in view of the further fact that the arbitration committee, in the award, recognized the binding effect of trade rule 5, we think the judgment should be affirmed if it can be held that the question of the place of payment was one which could properly he considered by the arbitration committee, and if the committee was authorized to bind the appellant.

That a member of such an association may, by prior agreement, authorize the association to act for him and bind him by subsequent by-laws, awards, and the like, is settled by the weight of authority. Eversberg v. Supreme Tent Knights of Maccabees of the World, 33 Tex. Civ. App. 549, 77 S. W. 246. It is held in Taylor v. Gribble, 33 S. W. 765, that the sureties upon the bond of the soliciting agent of an insurance company were bound upon a note given in settlement of the amount due by the agent, where the stipulation in the bond was that it should cover all liabilities and delinquencies of the agent which should arise under his present appointment or any future appointment, waiving notice of any change in the terms of the agreement “as to the working district assigned and otherwise,” even though the sureties had no knowledge of the execution of the note. It was further held in that case that where the note was made payable in Austin, Tex., the sureties could be held to answer in Travis county. It is true, as contended by appellant, that he did not submit to the arbitration committee the matter of where payment should be made in the event of a finding against him, but this issue was submitted by apipellee, and we think properly so, since the statement, “Contract performable in Amarillo, Texas,” to which he did not object, and which under rule 5 in such case became binding .upon him.

We think the court correctly held that the application for membership should be construed in connection with the letter of confirmation and the award of the arbitration committee, and that they together constituted a contract in writing to perform the obligation so evidenced, in Potter county, and was within subdivision 5, art. 1830, R. S. 1911.

The judgment is therefore affirmed.
      <&wkey;For otber eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes