text:
    INTERNATIONAL TRAVELERS’ ASS’N v. BRANUM.
    (No. 5351.)

    (Court of Civil Appeals of Texas. Austin.
    April 22, 1914.
    Rehearing Denied June 17, 1914.)
    1. Insurance (§ 618) — Accident Certificate — Action—Venue.
    Rev. St. art. 1830, subd. 30, provides that whenever, in any law authorizing or regulating any particular kind of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given. Article 4744 declares that suits on policies may be instituted and prosecuted against any life or accident insurance company in the county where the company’s home office is located, or in the county where loss has occurred or where the plaintiff policy holder or beneficiary resides. Held that, since parties cannot contract so as to deprive a court of jurisdiction when jurisdiction is fixed by statute, a provision in an accident certificate and in the by-laws of the company that all suits on the certificate should be instituted in Dallas county, Tex., did not prevent the beneficiary from instituting and maintaining the suit in the county where the insured died.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1536-1539: Dec. Dig. § 618.]
    2. Insurance (§ 449) — Accident Certificate — Accidental Death — Apoplexy.
    Decedent, while in a hotel, witnessed from his window a fire in a building on the opposite side of the street, in which a helpless man was accidentally burned to death. Decedent was greatly shocked and excited, so that he became insensible and fell, either by fainting from the excitement or from the rupture of a blood vessel in his brain, causing apoplexy, from which he died thre.e days later. He was but 40 years of age, of temperate habits, and in good health, but was very excitable and sympathetic. No other cause for the apoplexy was suggested, and the physicians testified that it was a very unusual occurrence for a man in good health and of decedent’s years .to have apoplexy, unless it was occasioned by some external, violent means, and that it could be produced by great excitement. Held, that decedent’s death was properly found to have been ■caused by external, violent, and accidental means, within the terms of his accident certificate, and not from disease.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1162; Dec. Dig. § 449.]
    3. Insurance (§ 152) — Accident Certificate — Amount Recoverable.
    Where an accident certificate on its face provided for the payment of $5,000 in case of decedent’s accidental death, without qualification, and neither the certificate nor the application made any reference to a by-law providing that, for death from cerebral hemorrhage, cerebral paralysis, apoplexy, or heart failure caused by accident, the amount payable should be limited to $500, such by-law was unavailable to limit the amount recoverable under the certificate for apoplexy resulting from accident.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 312; Dec. Dig. § 152.]
    4. Insurance (§ 152) — Accident Certificate — Loss—Amount Payable — Statutes.
    Rev. St. art. 4807, provides that every policy or certificate, issued by an accident insurance corporation, shall specify the sum which it promises to pay on the contingency insured against, and the number of days after receipt of satisfactory proof of the happening of such contingency at which such payment shall be made, and upon the happening thereof the corporation shall be liable for the payment of the amount “in full” at the time so specified, subject to such legal defenses as it may have against the same. Held, that the amount required to be paid in full under such section is the amount specified in the certificate, which the company promises to pay on the contingency insured against; and hence such liability cannot be avoided by any by-law fixing aijy other or different amount on any contingency whatever.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 312; Dec. Dig. § 152.]
    5. Insurance (§ 615) — Accident Certificate — Amount Payable — “Legal Defense.”
    Under Rev. St. art. 4807, providing that accident insurance companies shall be liable for the payment of the amount specified in their policies in full at the time so specified, subject to any legal defenses which they may have against the same, the term “legal defenses” means those which defeat a recovery, as that the insured did not die as the result of accident, and not that, by reason of a by-law not referred to in the certificate, defendant is at most only liable for an amount less than that specified in the certificate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1530, 1532-1534; Dec. Dig. § 615.]
    6. Appeal and Error (§ 1073) — Harmless Error — Accident Certificate — Payment — Installments — By-Laws.
    A by-law of an accident insurance association provided that the association should have the option of paying death losses in five equal annual installments, the first payment to be due 90 days after proofs of loss were filed. Held, that the association was bound to exercise its option to pay in installments, if at all, within 90 days after proofs of loss were filed; and hence, more than 90 days having expired pending appeal from a judgment in favor of a beneficiary on a certificate, it was not material that the trial court added a condition, to defendant’s right to pay the judgment in installments, that defendant should accept the decree as final and not appeal therefrom, and, in the event of an appeal, the judgment should stand without condition or qualification as to the manner or time of payment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. S 1073.]
    7. Insurance (§ 659) — Accident Certificate — Apoplexy—Evidence.
    Where, in an action on an accident certificate, it was claimed that decedent came to his death from apoplexy superinduced by excitement on seeing a person burned to death, evidence of a nurse, who cared for him, that at intervals he suffered great pain in his head, and that he talked about the fire, would get very much excited, would gesticulate with his arms, and on one occasion tried to get out of be'd, was relevant to show injury to the head, and that decedent was of an excitable nature.
    [Ed. Note. — For other cases, see Insurance. Cent. Dig. §§ 1691-1693; Dec. Dig. § 659.]
    8. Appeal and Error (§ 1052) — Right to Allege Error — Rulings on Evidence.
    Defendant may not assign error on the admission of testimony, the substance of which was otherwise given, by another witness without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    9. INSURANCE (§ 602) — Loss — FAILURE TO Pat — Damages—Attorney's Fee.
    A casualty insurance company carrying on business on the assessment or annual premium plan under Rev. St. tit. 71, is nevertheless subject to article 4746, subjecting insurance companies to a liability of 12 per cent, damages for failure to pay a loss within 30 days after demand, together with a reasonable attorney’s fee, since article 4957, exempting such companies from the “provisions of this chapter,’’ refers to chapter 15, whereas article 4746 is a part of chapter 2.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by Anna C. Branum against the International Travelers’ Association. ' Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Eidson & Eidson, of Hamilton, and Seay & Seay, of Dallas, for appellant. Langford & Cliesley, of Hamilton,.for appellee.

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

       Writ of error pending in Supreme Court.

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

   Findings of Fact.

JENKINS, J.

The appellant is an accident insurance company, chartered under the provisions of chapter 5, tit. 71, of the Revised Statutes. It issued a certificate to Calvin C. Branum, payable in the sum of $5,-000 to his wife, Anna C. Branum, upon receipt of satisfactory proof of the accidental death of the insured. On May 27, 1913, the insured was in a hotel in Hot Springs, Ark., and witnessed from his window a fire in a building on the opposite side of the street, in which a helpless man was accidentally burned to death, by reason of which the insured was greatly shocked and- excited, so that he became insensible and fell, either by fainting from the excitement or from the rupture of a blood vessel in the brain, causing apoplexy. He recovered sufficiently to start home, and arrived at Ft. Worth, where he was in charge of a physician and a trained nurse until the next day, when he was taken home by his wife, who had come to Ft. Worth upon being notified of .his condition. On May 30th the insured died in Hamilton county from apoplexy produced either by the excitement alone occasioned by witnessing the fire, or by the fall which he received, or by both. Proof of death was made and demand for payment of said policy more than 30 days before the institution of' this suit. Appellant offered to pay $500 to the beneficiary, but refused to pay any greater sum. Suit was instituted by the beneficiary, the appellee herein, in the district court of Hamilton county, and judgment was rendered in her favor for $5,000. The case was tried before the court without a jury.

Opinion.

Appellant filed a plea of privilege to be sued in Dallas county, which was overruled. The application upon which thé certificate herein sued on was issued, the certificate itself, and appellant’s by-laws provided that all suits on said certificate should be instituted in Dallas county, Tex. Article 1830, subd. 30, Revised Statutes, reads as follows:

“Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 4744, Revised Statutes, reads as follows:

“Suits on policies may be' instituted and prosecuted against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home.office of such company is located, or in the county where loss has occurred or where the policy holder .or beneficiary instituting such suit resides.”

Appellant insists that it is neither an accident insurance company, nor life and accident, nor health and accident insurance company. We overrule this contention. Article 4724, Revised Statutes, reads, in part, as follows:

“An accident insurance company shall be deemed to be a corporation doing business under any charter involving the payment of money or other thing of value, conditioned upon the injury, disablement or death of persons resulting from traveling or general accidents by land or water.”

Venue is fixed by law and not by contract. For instance, a suit upon a contract in writing, to be performed in any particular county, may be instituted in such county, but this is by reason of the statute fixing the venue in such case. Parties cannot contract so as to deprive a court of jurisdiction, when such jurisdiction is given by statute. Eaton v. Assurance Association, 136 S. W. 817, though differing somewhat in its facts from the instant case, involves the principle above announced.

“Insurance companies cannot, by stipulation in the policy, limit the right to sue to the courts of a certain county, where, in the absence of such stipulation, the action might be brought in other counties.” 25 Cyc. 909.
“Agreements, whose object is to oust the jurisdiction of the court, are contrary to public policy and will not be enforced.” 9 Cyc. 510.

We overrule appellant’s contention that death from the bursting of a blood vessel in the brain, caused by the insured’s witnessing an accidental fire, is not a death by accident. The physicians in attendance upon the deceased gave it as their opinion that he died from apoplexy, caused either ,by the excitement of witnessing the fire, or by the fall produced by such excitement or 'by both. Four physicians, upon a hypothetical case, including all of the undisputed facts in this case, expressed a similar opinion. The deceased was about 40 years of age, of temperate habits, and in good health; he was very excitable and sympathetic. No other cause for the apoplexy from which he died is suggested by the evidence, and all of the physicians testifying in this case stated that it was a very unusual occurrence for a man in good health, and not over 40 years of age, to have apoplexy, unless the •same was occasioned by some external, violent means, and they included great excitement as a means capable of producing death from apoplexy. This issue was found in favor of appellee, and the evidence is sufficient to sustain such finding. Insurance Co. v. Hunter, 30 Tex. Civ. App. 336, 70 S. W. 789; Railway Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642; Insurance Co. v. Hicks, 23 Tex. Civ. App. 74, 56 S. W. 87; Paul v. Insurance Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758; Healey v. Accident Ins. Ass’n, 133 Ill. 556, 25 N. E. 520, 9 L. R. A. 371, 23 Am. St. Rep. 637; McGlinchey v. Casualty Co., 80 Me. 251, 14 Atl. 13, 6 Am. St. Rep. 190; Omberg v. Mut. Ass’n, 101 Ky. 303, 40 S. W. 909, 72 Am. St. Rep. 413.

Appellant insists that, if appellee was entitled to judgment herein in any sum, it should have been limited to $500, and offers in support of its contention one of its bylaws, which, among other things, provides:

“For death resulting in the following manners, the amount payable shall be limited to $500: * * * Second. Death resulting from cerebral hemorrhage, cerebral paralysis, apoplexy or heart failure caused by accidental means.”

The undisputed testimony shows that the assured died from cerebral hemorrhage ■or apoplexy caused by accidental means. We do not believe that this by-law should control as to the amount recoverable. The certificate, in plain terms and without qualification, provided:

“In the case of accidental death of said member, there shall be payable to Anna C. Branum, wife of Calvin C. Branum, if living at the time of such accidental death, otherwise to the legal representatives of said member, in such manner as provided in the by-laws of said association, after the receipt by said association of satisfactory proof of the happening of said accidental death, the sum of $5,000.”

The manner of such payment, as provided in the by-laws, was that the full sum might be paid in one payment, or might be made in five annual installments, at the option of the association. We do not think that where a policy provides in plain terms, and without qualification, for the payment of a certain amount, and there is no reference in such policy to a by-law changing such amount in a manner that is calculated to cause the insured to examine such by-law, and where it is not shown, either by his application or otherwise, that he was aware of such by-law, the amount named in the policy can be limited by any such by-law. In such case there would be a contradiction between the policy and the by-law, and the policy should prevail. Laker v. Fraternal Union, 95 Mo. App. 353, 75 S. W. 705; Davidson v. Mut. Ben. So., 39 Minn. 303, 39 N. W. 803, 1 L. R. A. 482; 29 Cyc. 70-1.

Appellant cites the case of Duer v. Ohosen Friends, 21 Tex. Civ. App. 493, 52 S. W. 109. In that case the policy was not for a specific amount, but was for “an amount not to exceed $3,000.” A by-law subsequently passed reduced the amount of payment one-half, but it also lowered the amount of the assessments, and all members holding certificates were given the option to continue under the old plan or under the new. The deceased had actual notice of the change in the by-law and did not object. It was held, under such circumstances, that he had elected to accept the new by-law. The contract of insurance provided that the insured should be governed by the by-laws then in existence or thereafter to be adopted.

However, should we be in error upon the general proposition of law as above enunciated, we think our statute settles this matter against appellant’s contention. As above stated, appellant was chartered under the provisions of chapter 5, tit. 71, of the Revised Statutes. Article 4807 of this chapter provides:

“Every policy or certificate issued by any such corporation shall specify the sum of money which it promises to pay upon the contingency insured against, and the number of days after the receipt of satisfactory proof of the happening of such .contingency at which such payment shall be made, and upon the happening of such contingency such corporation shall be liable for the payment of such amount in full at the time so specified, subject to such legal defenses as it may have against the same.”

The legal defenses referred to are those which defeat recovery, such, for instance, as that pleaded by appellant in this case, that the insured did not die as a result of accident. “Such corporations shall be liable for the payment of such amount in full.” What amount? The amount specified in the policy, which it promised to pay upon the happening of the contingency insured against. We think it clear, under this statute, that, if the association is legally liable for any sum, it is for the full amount specified in the policy, and that this cannot be avoided by any bylaw fixing any other or different amount upon any contingency whatever. Courtney v. Mut. Aid Ass’n, 120 Mo. App. 110, 94 S. W. 768.

The trial court, after entering judgment for the sum of $5,000, .added the following as a part of said judgment;

“And it appearing to the court that the bylaws of the defendant provide that death losses may be paid in five equal annual installments, it is therefore ordered and decreed by the court that said defendant may exercise such option of paying said policy, with accrued interest, in five equal installments, provided, however, that said defendant shall accept this decree as final, and. shall not appeal therefrom; but, in the event said defendant shall appeal from the judgment here rendered, then said judgment shall stand without condition or qualification as to the manner and time of payment.”

Appellant insists that that portion of the judgment following the words “provided, however,” is erroneous. Its contention is that the court could not penalize appellant for exercising its right of appeal. This is true, but the by-law referred to provided:

• “That the association shall have the option of paying death losses or losses of limb or limbs in five equal annual payments, the first payment to be due and payable 90 days after proofs of loss are filed with the association.”

As we construe this by-law, the association must exercise its option to pay in five installments within 90 days after proofs of loss are filed, and not thereafter. Appellee insists that so much of the judgment as permitted payments in five equal annual installments was erroneous, for the reason that the time for exercising said option.had expired when said judgment was entered. It is not clear from the record whether this is true or not, but it is clear that, in the event of an appeal, such option would have expired before the judgment could be enforced. It is clear that the 90 days in which such option could have been exercised have expired before the present time, for which reason the judgment of the court will be reformed, so as to make it an unqualified judgment for appellee for $5,-000.

Appellant assigns error upon the action of the court in admitting, over objection, the testimony of Miss Annie McClung, a professional nurse, to the effect that the deceased told her that he saw the fire in Hot Springs, Ark., and a man being burned therein, and that he fell to the floor insensible; the grounds of objection being that said testimony was hearsay and a self-serving declaration. In addition to the testimony above set out, the witness also testified that:

“He was at intervals suffering a great deal of pain in his head. * * * When Mr. Bra-num talked about the matter (the fire and the man burning- to death), he would get very much excited. ;; * * He would gesticulate with his arms, and, on one occasion, tried to get out of bed.”

This testimony was relevant and admissible for the purpose of showing injury to the head, and also that the deceased was of an excitable nature, as alleged. Roth v. T. P. A., 102 Tex. 241, 115 S. W. 31, 132 Am. St. Rep. 871, 20 Ann. Cas. 97. The objection was to the testimony as a whole, for which reason there was no error in overruling it. Railway Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Railway v. Powell, 38 Tex. Civ. App. 157, 86 S. W. 21; Rice v. Taliaferro, 156 S. W. 242; Williams v. Neill, 152 S. W. 694; Scott v. Townsend, 159 S. W. 344.

There was no reversible error in admitting the testimony above referred to, for the reason that the same testimony was given, in substance, by Dr. Lackey, without objection.

For the reasons above stated, the sixth assignment, with reference to admitting the testimony of Mrs. Branum, is overruled.

Appellant’s remaining assignments relate to the sufficiency of the testimony, and are overruled for reasons appearing in this opinion.

The eleventh finding of fact by the trial court is as follows:

“I find that $1,000 is a reasonable attorney fee in this case, and a penalty of 12 per cent, on the face of the policy amounts to $600.”

The fourth conclusion of law by the court is as follows:

“I conclude that, in this character of 'insurance, penalty and reasonable attorney fee are not allowed under our statute.”

Appellee has filed a cross-assignment of error on this conclusion of law. Article 4746, R. S., is as follows:

“In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demana therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent, damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.”

The court based its conclusion of law upon article 4957, Id., which reads as follows:

“None of the terms or provisions of this chapter shall apply to, nor in any wise affect, fraternal beneficiary associations as defined by the laws of this state, nor apply to companies' carrying on the business of life or casualty insurance on the assessment or annual premium plan, under the provision of this title.”

Conceding that appellant is a “casualty insurance company carrying on business on the assessment or annual premium plan under the provisions of this title,” to wit, title 71, it nevertheless is not exempt from the provisions of article 4746, for the reason that article 4957 exempts such companies from the “provisions of this chapter,” viz., chapter 15, whereas article 4746 is not a provision of chapter 15, but of chapter 2, of title 71.

For the reasons stated, we sustain appel-lee’s cross-assignment and here render judgment in her favor for $1,000 attorney’s fees and $600 penalty.

The judgment of the trial court is here reformed, so that appellee shall have judgment against appellant for $5,000, the amount of the policy sued on, $1,000 attorney’s fees, and $600 penalty, together with 6 per cent, interest thereon from October 13, 1913. As thus reformed, the judgment is affirmed.

Reformed and affirmed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    DEL CURTO v. BILLINGSLEY.
    (No. 5352.)
    (Court of Civil Appeals of Texas. Austin.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. Sales (§417) — Contract — Seller’s Breach — Buyer’s Ability to Pereorm.
    Where defendant contracted to take $3,000 for fixtures and saloon and restaurant business, with the stock of merchandise and liquors at cost, and it appeared that the merchandise inventoried and was worth from $6,000 to $7,000, plaintiff’s proof of ability to pay the $3,000 was insufficient to entitle him to recover for defendant’s breach of contract by refusing to convey in the absence of any proof that plaintiff was able, willing, and ready to pay for the merchandise.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1173 ; Dec. Dig. § 417.]
    2. Contracts (§ 171) — Construction—“Entire Contract.”
    A contract is said to be entire when by its terms or by its nature or purpose it is contemplated and intended that each and all of the parts and provisions thereof shall be dependent upon each other and not separate and distinct, or when it by its terms, nature, and purpose contemplates and intends that each and all of its parts and material provisions and the consideration are common each to the other and interdependent (citing Words and Phrases, vol. 3, p. 2411).
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 754r-757; Dec. Dig. § 171.]
    Appeal from District Court, Travis County ; Charles A. Wilcox, Judge.
    Action by R. E. Billingsley against O. Del Curto. Judgment for plaintiff, and defendant appeals.
    Affirmed in part, and reversed and rendered in part.
    Dickens & Dickens, M. H. Goldsmith, and Gregory, Batts & Brooks, all of Austin, for appellant. A. S. Phelps, of Austin, for appellee.

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

   RICE, J.

For several years prior to the 20th of September, 1911, the date of the transaction out of which this controversy arose, appellant and his brother Louis were engaged in the saloon business at Austin. On said day they made, executed, and delivered to appellee the following option contract:

“Austin, Texas, Sept. 20, 1911.
“This is to certify that I, O. Del Curto Bros, has this day agreed to take $3,000.00 Dollars for all fixtures and their business at cost — situated at corner Congress Ave. being 302 Cong. Ave. and restaurant included in Austin Texas and all apertenances thereto with stock of Mds. and lickors at actual cost Dollar for Dollar.
“O. Del Curto and Bros.
“Witness: Jos. Mayer.” .

And it was shown in connection therewith that, notwithstanding they had so proposed to sell their said business, fixtures, and stock of merchandise, consisting of liquors, cigars, etc., to- appellee, yet they thereafter declined to convey- same to him, and he brought this suit to recover $10 earnest money paid by him to appellants, as well as for $8,000 damages for breach, of said contract, alleging that he was able, ready, and willing to comply with his part thereof.

Each “of the Del Curtos answered separately, and appellant, after a general denial, defended on the ground: First. That he did not execute said contract as written, claiming that the words “all fixtures” had been inserted therein without his knowledge and consent, for which reason said contract was void and not enforceable against him. Second. That appellee did not offer to comply therewith until after the expiration of ten days, the time within which it was agreed it was to be performed. Third. That appellee was never at any time able, ready, and willing to perform his portion of said contract, in that he was not at any time able to pay the purchase price, and never offered to do so. Fourth.» He pleaded tender of said $10, which had been paid as earnest money.

The case, having been dismissed as to Louis Del Curto, proceeded against appellant alone. There was a jury trial, the case being submitted on special issues, and a verdict was returned in behalf of plaintiff for said $10 so paid into the registry of the court, as well as for $500 damages, and judgment accordingly.

While numerous errors have been assigned, in the view we take of the case it is only necessary to consider the fourth, wherein it is urged that the judgment is erroneous in that the verdict finding that, plaintiff was ready, able, and willing to carry out said contract is not supported by the evidence, in that it wholly fails to show that plaintiff was at the time of the making of said contract, or at any time thereafter, ever able to pay for such merchandise, and that as the contract was indivisible, if plaintiff has failed to perform any part of his portion of said contract, then he is not entitled to recover. We agree with this contention. At the time of the transaction, it appears that plaintiff possessed but little money or property, admitting that he was unable to perform said contract unless he could borrow the money with which to make the payments. The evidence does show, however, that after great effort he finally succeeded in perfecting an arrangement with one Berkley by which he obtained the sum of $3,000, which it seems was tendered to Louis Del Curto in part payment, who declined to accept it on the ground that he had nothing to do with the transaction, referring him to his brother. Notwithstanding the evidence clearly shows that the stock of merchandise inventoried and was worth from $6,000 to $7,000, there is a ■ total want of evidence showing, or tending to show that appellee possessed sufficient money with which to. pay therefor, or that-he was ever able to perfect any arrangement whatever whereby he could raise said sum.

The contract sued upon was an entire and indivisible one, and, before appellee was entitled to sue for breach thereof, he must show his offer to comply with all of its requirements. A failure in any particular would defeat his right of action. A contract is said to be entire when by its terms, or by its nature or purpose, it is contemplated and intended that each and all of the parts and provisions thereof shall be dependent upon each other and not separate and distinct. See Words and Phrases, vol. 3, p. 2411. It is also said that:

“A contract may be said to be ‘entire’ when by its terms, nature, and purpose it contemplates and intends that each and all of its parts and material provisions and consideration are common each to the other and interdependent.” Id. 2411.

In Broumel v. Rayner, 68 Md. 60, 11 Atl. 834, it is said:

“Whether a contract must be sued on as an entirety, or is divisible, and can become the foundation of separate suits, for the infraction of independent stipulations, depends on its terms ; and, in order to arrive at a correct construction, due regard must be had to the intention of the contracting parties, as revealed by the language which they have employed and the subject-matter to which it has reference.”

See, also, Smith v. Lewis, 40 Ind. 98; Pope v. Porter, 102 N. Y. 366, 7 N. E. 304.

“If the promise is entire or indivisible and is not independent, as heretofore explained, its entire performance is, as a rule, a condition concurrent or precedent to the liabilty of the other party to perform.” 9 Oye. pp. 648, 649, and note 94, with authorities collected.

Prom the above authorities, it is evident that the contract in the instant case, was entire and indivisible, and that, before appellant could be legally required to perform his part of the contract, it must appear that plaintiff was ready, able, and willing to perform his portion thereof, which was not only to pay or offer to pay the $3,000, but to pay for the stock of merchandise as well. Being unable to comply in this particular, he was in no attitude to demand performance on the part of appellant. See Davis v. Yates, 1 White & W. Civ. Cas. Ct. App. p. 106, § 265, wherein it is said:

■ “Before a party is entitled to recover damages for breach of a contract, he must show that he has complied or offered to comply with his part of the contract.”

See, also, Brown v. Binz, 60 S. W. 483, wherein it is said, as shown by the syllabus, that;

“A party suing for breach of contract must show that he would have performed all conditions precedent to its execution, had not the right to perform them been repudiated.”

Believing, as we do, that the evidence shows an absolute want of ability on the part of appellee, to comply with that portion of the contract which required him to pay for the stock of merchandise, or to make some arrangements by which he could do so, we conclude that he was not entitled to recover damages for the alleged breach of said contract; and, the case having been fully developed on this phase, we deem it our duty to reverse and render the same in favor of appellant, só far as appellee’s claim for damages is concerned, but affirm the judgment as to the $10 earnest money paid into the registry of the court.

Affirmed in part, and reversed and rendered in part.


author: JENKINS, J.

text:
    SUGG v. GEORGE B. HENDRICKS & SON.
    (No. 5346.)
    (Court of Civil Appeals of Texas. Austin.
    April 15, 1914.
    On Motion for Rehearing, June 17, 1914.)
    On Motion for Rehearing.
    Sales (§ 442) — Payment of Price — Shortage op Delivery — Measure op Damages.
    Where defendant contracted to deliver to plaintiff all bis cattle in a certain pasture, estimated at about 2,389 head, at $33 per head, and plaintiff paid defendant for a larger number of head than defendant delivered, plaintiff’s measure of damages was an amount sufficient to cover the shortage at the contract price per head, and not the market value of the cattle not delivered at the time and place they should have been delivered under the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.]
    Error to District Court, Tom Green County; J. W. Timmins, Judge.
    Action by George B. Hendricks & Son against J. D. Sugg. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Wright, Wynn & Harris, of San Angelo, for plaintiff in error. Hill, Lee & Hill, of San Angelo, for defendant in error.

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

   JENKINS, J.

Plaintiff in error contracted to deliver to defendants in error certain cattle in Oklahoma at $33 per head. Defendants in error, at the time said contract was entered into, paid plaintiff in error $10,-000 cash, and subsequently, upon plaintiff in error’s representing that he had delivered 2,340 head, Geo. B. Hendricks paid him the remainder of the agreed purchase price for that number. Defendants in error, claiming that only 2,326 head were delivered, sued for value of the remaining 14 head at the time and place when they should have been delivered, which they alleged to be $40 per head. The case was tried before the court, who found in favor of defendants in error, and rendered judgment for 14 head at $33 per head. The court filed conclusions of law and fact, among which was the following:

“Fourth. That on or about the 1st day of April, 1910, defendant delivered to plaintiff 2,304 head of steers, and in two or three days thereafter defendant delivered to and plaintiff received from him 22 head more of steers.”

There is no disagreement as to the 22 head, but the plaintiff in error contends: That at the time of the first delivery he in fact delivered to Bruce Hendricks, one of the defendants in error, 2,333 head of cattle, and that Hendricks left 29 head of them. That in the bunch of 22 head which he subsequently delivered to Hendricks were 7 head not included in the 2,333 head previously delivered, thus making in all 2,340 head.

Plaintiff in error assigns error upon the finding of fact by the court that only 2,304 head of cattle were included in the first delivery. The issue of fact was as to whether the cattle cut out and not driven off by Bruce Hendricks at the first delivery were delivered to him at that time, or were they included, in the second delivery. The evidence sustains the finding of the court on this issue, for which reason the plaintiff in error’s assignments are overruled.

The defendants in error, by cross-assignment, insist that the court erred in not rendering judgment in their favor for $40 per head for the 14 steers that they paid for but never received, instead of $33 per head, the' price that they paid.

The proper measure of damages under the evidence in this case is the market value of the cattle at the time and place they should have been delivered under the contract. Calvit v. McFadden, 13 Tex. 324; Johnson v. Miller, 163 S. W. 592. The court having found that the defendants' in error paid for 14 head of cattle that were not delivered, and the undisputed evidence being that said cattle, at the time and place they should have been delivered, were worth $40 per head, we sustain said cross-assignment, and here render judgment for defendants in error for said amount, which, with interest from May 10, 1910, to the date of trial, is $066.20, together with interest on said amount at the rate of 6 per cent, per annum. As thus reformed, the judgment is affirmed.

Reformed and affirmed.

On Motion for Rehearing,

Upon further consideration, we are of the opinion that we were in error in sustaining the cross-assignment of defendants in error. This suit was brought upon a written contract dated December, 1909, wherein plaintiff in error agreed to sell to defendants in error, not a specified number of cattle, but all of his cattle in a certain pasture in Oklahoma, estimated at about 2,389 head, to be delivered about April 10, 1910, for the consideration of $33 per head. Had the plaintiff in error failed to deliver any of said cattle, the measure of damages would have been that stated in our opinion herein. But it is not contended that he did not deliver all of the cattle that he had in said pasture. The issue in this suit was as to how many he delivered; his contention being that he delivered 2,340 head, and the contention of defendants in error being that he delivered only 2,326 head. The testimony amounts to this, in substance: Plaintiff in error represented to Geo. B. Hendricks, one of the defendants in error, that he had delivered to Bruce Hendricks, the other defendant in error, 2,340 head of cattle on said contract, and guaranteed that number, and upon this Geo. B. Hendricks paid plaintiff in error $33 per head for that number. The court found that the number delivered was only 2,326 head, and gave judgment for the 14 head shortage at $33 per head, with interest from the date of such payment. In this we have concluded that the trial court wás correct. When Hendricks paid the money to plaintiff in error, he did not intend to purchase cattle for future delivery, but was paying for cattle that he supposed he already purchased and received. It was simply an overestimate of the number of cattle delivered on the contract, and the measure of damages is the money paid for the cattle in excess of those actually delivered.

We overrule the plaintiff in error’s motion for a rehearing as to so much of our judgment as sustained the judgment of the trial court, but grant said motion as to so much of our judgment as reformed the judgment of the trial court.

For the reasons stated, the judgment herein, heretofore rendered by us, is set aside, and the judgment of the trial court is affirmed.


text:
    BRYANT v. MOORE.
    (No. 5295.)
    (Court of Civil Appeals of Texas. Austin.
    May 13, 1914.
    On Motion for Rehearing, June 17, 1914.)
    1. Appeal and Error (§ 80) — Decisions Appealable — Final Judgment.
    A judgment which fails to dispose of all the issues raised by the pleadings is not a final judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    2. Appeal and Error (§ 742) — Waiver op Errors — Jurisdictional Matters.
    Though the assignment raising the question that the judgment below was not final, and hence not appealable, because it did not dispose of all the issues raised, was not properly briefed, the question will be disposed of, being a jurisdictional one.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Appeal and Error (§ 80) —Decisions Appealable —Final Judgment —Construction op Verdict.
    In an action for several years’ rent and for money due for the sale of personal property, a judgment based on a directed verdict for a small amount, not in controversy, which did not dispose of the other issues, cannot be held a final judgment, on the theory that the verdict, being for only part of the amount in suit, was an implied finding against plaintiff’s other claims.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    Appeal from Falls County Court; W. E. Hunnicutt, Judge.

      Action by W. G. Bryant against B. F. Moore, who counterclaimed. From the judgment, plaintiff appeals.
    Appeal dismissed.
    Nat Llwellyn, of Marlin, for appellant. Spivey, Bartlett & Carter, of Marlin, for appellee.

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

   RICE, J.

The record discloses that appellant rented to appellee, for the year 1912, 112 acres of land, and as rent therefor was to receive one-third of the corn and one-fourth of the cotton raised on said premises; and this suit was brought by him to recover said rent, and also to recover the sum of .$522.50, alleged to be due for a span of mules sold and furnished by him to appellee, to enable appellee to make a crop on said premises during said year, as well as for $34.45, alleged to be due as balance on rent for the year 1911. Appellant likewise sued out a distress warrant, which was levied upon the crop grown upon said premises; and prayed for judgment for his rents, advances, and for foreclosure of his landlord’s lien upon the property so distrained. Appellee replied by general and special exceptions, a general denial, and reconvened for damages for illegally suing out said distress warrant. There was a jury trial, resulting in a verdict in behalf of plaintiff for said sum of $34.45, with interest thereon, and in favor of defendant upon his plea in reconvention in the sum of $750, and judgment- was entered in accordance therewith.

Notwithstanding that the record shows that the chief controversy was over appellant’s right to recover for the value of the mules alleged to have been sold by him to appellee, ahd for foreclosure of his landlord’s lien thereon, still the verdict and judgment failed to dispose of these issues, as well as failed to pass upon the question as to whether or not there was anything due appellant for rents for said year, for which reason appellant asserts that the judgment is not final.Ordinarily, appeals can only be taken from final judgments. See article 2078, Rev. Civ. St. 1911. And it has been frequently held by the courts of this state that a judgment is not final which fails to dispose of all the issues raised by the pleadings. See Waco Cement Works v. Smith, 162 S. W. 1158, and cases there cited; also, the case of Sapp v. Anderson, 135 S. W. 1068, where previous eases on this subject are cited and reviewed.

Appellee claims, however, that the assignment raising this question is not properly briefed, and hence should not be considered; but he overlooks the fact that the question raised is jurisdictional, and the error assigned is fundamental, for which reason it cannot be waived. Besides this, appellee asserts that, since there was a general verdict in behalf of appellant, the doctrine as.to final judgment, above announced, does not apply. There was no general verdict, however, in his behalf, but only a verdict for one claim, to wit, $35.45,. upon which, the court instructed a verdict in his behalf, ignoring the claim for rent for 1912, as well as that for value of the mules. See First Natl. Bank of Mason v. Vander Stucken, 37 S. W. 170, where a suit was brought to establish claims against an estate on two notes, executed by decedent. The jury, to whom both claims were submitted on issues made by the pleadings, found for the plaintiff as to the claim based on one of the notes only, and neither the verdict nor judgment mentioned the other. It was held that no appeal would lie from the action of the court on such unad-judicated claim, and the appeal was dismissed; which case, we think, is decisive of the question here involved.

Notwithstanding that we are without authority, in the state of the record, to pass on any of the assignments, still, in view of another trial in the court below, it is proper to say that it is doubtful whether the petition stated a cause of action that would authorize a recovery as to the rents of 1912, or for the mules claimed to have been furnished, in that it did not state or show the amount of rents due, nor state the facts showing the indebtedness of appellee for the mules and negativing payment therefor. Demurrers, though filed, were not urged to this pleading in the trial court, and hence must be regarded as waived; but, as there was no final judgment, it becomes our duty to dismiss the appeal, an'd it is so ordered.

Appeal dismissed.

On Motion for Rehearing.

Counsel for appellee have filed an ingenious motion for rehearing, insisting that we erréd in dismissing this appeal, contending that the judgment was final. We have reviewed all of the cases cited in support of their contention, and have arrived at the conclusion that they can be differentiated from the instant case. They seem to announce the rule that where a plaintiff institutes a suit for two or more different demands or causes of action which are submitted by the court in the charge to the jury, and a verdict is returned in his favor on one of them, this, by implication, is a finding against the other causes of action, and hence the verdict is final; but this is not the case here. Appellant sued to recover different amounts of rents for the years 1911 and 1912, and also sought to recover for the value of a span of mules, alleged to have been furnished by him to defendant for the purpose of making a crop for the last-named year, and sought a foreclosure of his landlord’s lien for such rents and advances. There was no issue as to the rent for 1911, and the court directed a verdict in favor of the plaintiff thereon, so that this item was not in issue; but the pleadings and evidence raised an issue as to all. the others, and they were specifically embraced in the charge of the court, which was submitted for the determination of the jury, But the jury did not find as to either or any of said last-named items, hence there is no analogy in this respect to the cases cited by appellee. If there had been a finding in favor of the plaintiff on the rents for 1912, and no mention made in the verdict as to the other items, then the cases cited would be analogous, and it might be inferred that by such specific finding they found against* him as to the other items; but there is absolutely no finding as to any of these items in issue, hence no inference can be indulged one way or the other; and, in our judgment, this was equivalent to no finding whatever upon any question in issue before the jury, for which reason we feel justified in holding that the verdict was not responsive to the issues raised by the pleadings and evidence and embraced in the charge, and therefore adhere to our original view upon this question.

It seems that we were mistaken in stating that appellee’s demurrers and exceptions were not presented to or passed upon by the court. This was occasioned by our overlooking an amended transcript, which contains a recital to the effect that they were in fact presented to and overruled by the court. We reiterate our intimation as to the insufficiency of the petition, but have no authority to do anything more than to make the suggestion, since the appeal must be dismissed.

The motion for rehearing is overruled.


text:
    INTERNATIONAL & G. N. RY. CO. v. PARKE.
    (No. 5342.)
    (Court of Civil Appeals of Texas. Austin.
    April 15, 1914.
    On Motion for Rehearing, June 10, 1914.)
    1. Appeal and Error (§ 907) — Record— Waiver of Errors.
    A bill of exceptions, complaining that the trial court failed to prepare and read its charge to the jury before argument as required by statute, which merely recited that certain proceedings were had and occurred, and then stated the course of the trial, is not defective in failing to show that appellant did not waive the provisions of the statute.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    2. Trial (§ 220) — Instructions—Statute.
    Rev. St. 1911, arts. 1970, 1971, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970, 1971), which require the court to prepare and read its charge to the jury before argument, are mandatory.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 506; Dec. Dig. § 220.]
    3. Evidence (§ 471) — Opinion Evidence— Conclusion of Witness.
    Where a witness testified that he knew the ordinary running time made with cattle shipments between two points and that if a shipment took the given time, the run was a bad one such testimony merely meant that the run was not made in usual time and.did not involve any conclusion of the witness as to any question of law.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    4. Appeal and Error (§ 499) — Exceptions —Effect.
    A bill of exceptions to the admission of testimony must state the grounds of the objection, or it will not be considered, and the appellant is limited to the grounds stated.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    5. Evidence (§ 514) — Opinion Evidence— Expert Testimony.
    Expert testimony is admissible on the question whether a shipment of live stock was made in the usual time.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2319-2323; Dec. Dig. § 514.]
    6. Carriers (§ 227) — Carriage of Live Stock — Actions for Injuries — Evidence.
    In an action for damages for injuries to a shipment of live stock, evidence of the intrinsic value of the stock at the place of destination is admissible under a general allegation as to their value at such place, where- there was no market at the point; the question whether intrinsic value or market value shall be shown being merely one of evidence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    7. Carriers (§ 229) — Live Stock — Injury— Measure of Damages.
    In an action for damages to a shipment of live stock, some of which died, the measure of damages is the value of the stock at the time at which it should have been delivered, which value, if there is a market at the place of destination, will be measured by the market value, and, if not, by the intrinsic value.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    On Motion for Rehearing.
    8. Courts (§ 78) — Rules of Practice.
    Under Const, art. 5, § 25, and Rev. St. 1911, art. 1523, giving the Supreme Court authority to establish rules of practice not inconsistent with the laws of the state, rules of the Supreme Court, though entitled to the force of law, are void when in contravention of an express statute.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig. § 78.]
    9. Statutes (§ 243) — Mandatory Provisions — Law Relating to Procedure-Power of Court.
    Where the legislature has established a mandatory procedure, there is no room left for discretion, and it is the duty of the courts to enforce the law as written.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 324; Dec. Dig. § 243.]
    10. Appeal and Error (§ 263) — Review-Harmless Error.
    Where the trial court did not prepare and read its charge before argument in accordance with the mandatory statute, the error is reversible and cannot be held harmless under Court Rule 62a (149 S. W. x), requiring a disregard of nonprejudicial errors; for, though the appellant reserved no exceptions as to the charge given, such failure does not show that the charge was harmless, it being apparent that such exceptions would come too late and would be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.]

      Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Action by O. G. Parke against the International & Great Northern Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded on rehearing.
    Fisher & Fisher, of Austin, and Wilson, Dabney & King, of Houston, for appellant. Will G. Barber and R. E. McKie, both of San Marcos, for appellee.

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

   JENKINS, J.

Appellee shipped 319 head of stock cattle over appellant’s road from San Marcos to Webb. There was delay and rough handling in the shipment, from the effects of which 8 cows died and the others were injured. The cows were of the value of $35 each at Webb, the place of delivery. Judgment for appellee for $440.

Appellant assigns error upon the failure of the court to prepare and read its charge to the jury before argument in the ease, as required by articles 1970 and 1971, Revised Statutes of 1911, and presents the following bill of exception:

“Be it known and remembered that upon the trial of the above numbered and entitled cause the following proceedings were had and occurred, that is:
“(1) The jury was impaneled, _ the pleading read, and evidence for both plaintiff and defendant heard in due order.
“(2) At the conclusion of the evidence, _ counsel for plaintiff and defendant proceeded in the ordinary way to argue the case upon the facts before the jury; counsel for plaintiff making the opening argument, then counsel for defendant arguing same, and then counsel for plaintiff making the closing argument.
“(3) The court’s general charge to the jury and the special charges given in the case were none of them read to the jury prior to the argument, nor was the court’s general charge delivered to counsel for either party prior to the argument of the case, but all charges given were read to the jury by the court after the argument to the jury by counsel for each side had been finished, and, after receiving. the charges as given, the jury in the ordinary way retired' and made up their verdict and' returned same into court.
“(4) At no time did counsel for either party request that the charges of the court be given to the jury before argument of the case, and at no time did counsel for either party request that the general charge of the court be delivered to him for examination. Neither party requested that the charges be read to the jury before the argument of the case, and neither party made any objection at the time to the manner in which the charges were submitted to the jury, and, after the charges were in fact read to the jury, neither counsel for plaintiff nor defendant requested privilege of then making any argument to the jury, and at no time did counsel for either party request the court to deliver to them the charge or charges to be given for examination.
“(5) At no time did any party to this suit request the court to submit his general charge, or any of the special charges to the respective parties or their attorneys for inspection, and at no time did any party thereto request any time in which to examine such charges and present objections thereto.
“(6) Counsel for defendant in this case prepared and submitted to the court certain special charges, with request that same be given, and those special charges were submitted to the court by counsel for defendant before the court had read his general charge to the jury, but after the argument of the cause to the jury.
“(7) No objection or complaint in any way was made by either party to the procedure above shown in this cause, or to any other procedure in this cailse, with reference to the matter of the charges given, until the filing of motion for new trial herein by defendant, when the matters covered by this bill were then for the first time called to the attention of the court and complained of by defendant, at which time the court could not, without setting aside the verdict and judgment, correct the irregularities complained of; the verdict having been already returned and judgment rendered thereon, and the jury discharged.
“(8) The court did not at any time refuse to deliver his charges to' counsel for inspection or examination, or the making of objections thereto, because counsel did not request or demand same, and the court did not at any time refuse to allow counsel a reasonable time to examine its charges and present objections thereto, and no exception was at any time taken in any way by either party as to the manner of the trial of the cause until the motion for new trial filed by defendant in this cause.”

Appellee contends that this bill of exception does not affirmatively show that appellant did not expressly waive the provisions of said articles. It is true, as contended by appellee, that everything set out in said bill of exception might have occurred if appellant had expressly waived the preparation and reading of the charge before argument; but we think that a proper construction of the bill of exception is that there was no such waiver on the part of appellant. The bill states, “The following proceedings were had and occurred,” which, we think, by fair intendment, means that the bill sets out all of the proceedings in that behalf, had it not been so, most assuredly the court in signing this bill would have explained such proceedings by stating that the provisions of the articles above referred to were expressly waived, and, had such been the case, no reason can be conceived why the bill would have been presented.

We think that the statute above referred to is mandatory. It was held under the provisions of article 1316, R. S. 1905, which Were enacted in 1853, that it was discretionary with the judge as to delivering a written charge to the jury. The language of this article was:

“After the argument of a cause the judge may, in open court, deliver a charge to the jury on the law of the case, subject to the restrictions hereinafter provided.”

The restrictions referred to were set forth in the succeeding article, and among other things required the charge .to be in writing. The Act of 1903, p. 55, amended article 1316 so as to read as follows:

“After the argument of a cause the judge shall in open court unless the same be expressly waived by the parties to the suit, prepare and deliver a written charge to the jury on the law of the case, subject to the restrictions hereinafter provided.”

It was held, in Sharman v. Newsome, 46 Tex. Civ. App. 112, 101 S. W. 1021, that:

“The changes thus made in the statute evidence an intention upon the part of the Legislature to work a change in the construction theretofore given to that statute, to the effect that it was optional with the judge to give a written charge. The language of the statute appears now to be mandatory, in the absence of an express waiver by the parties.”

The language in the Act of 1913, page 113 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970, 1971), which is carried forward in said articles 1970 and 1971, is undoubtedly mandatory.

It does not follow, however, that a case must be reversed for an error in procedure. In Railway Co. v. Shinn, 153 S. W. 639, and in Railway Co. v. Perryman, 160 S. W. 409, 410, it was held that under Rule 62a (149 S. W. x), a case should not be reversed on the ground “that the trial court committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case.” In the instant case, it is not necessary for us to go to this extent. It has always been the rule of practice in this state that a case will not be reversed for error in procedure, where it affirmatively appears from the record that no injury probably resulted to the party complaining. Carter v. Eames, 44 Tex. 548; Loper v. Robinson, 54 Tex. 515; McWilliams v. Commissioners’ Court, 153 S. W. 372; Englefield v. Railway Co., 159 S. W. 1033; Bonnell v. Prince, 11 Tex. Civ. App. 402, 32 S. W. 856; Railway Co. v. Smith, 153 S. W. 394. We think it is apparent from the record that such is the fact in this case. The object in presenting the charge to counsel before reading the same to the jury is to secure correction of any errors in the charge. Appellant does not complain of the charge given, nor that any charge was improperly refused. Such being the case, it is apparent that the charge would not have been different had it been submitted to counsel before bang read to the jury. If it be contended that by reading the charge before the argument counsel is better prepared to present his ease to the jury, the answer in the instant case is that no argument that could have been presented ought to have induced the jury to render a judgment more favorable to appellant than that which was rendered. Appellee testified that eight of his cows were killed, and that they were of the value of $35 each, and that the remainder were damaged to the extent of $1.50 per head. This testimony was not contradicted, and would have entitled appellee to a judgment for $740.50, but the jury gave him only $440.

Appellant assigns error on permitting the witness Hawkins to testify for appellee that, if it took from noon one day until 5 o’clock p. m. the next day to ship the cattle from San Marcos to Webb, such a run would not be the usual and ordinary run, but would be a bad run. We think this testimony can be differentiated from that which was held objectionable in Railway Co. v. Roberts, 101 Tex. 418, 108 S. W, 808; Ry. Co. v. Tomlinson, 157 S. W. 279, and Ry. Go. v. Beckham, 152 S. W. 229. In the Roberts Case, supra, the court said:

“In answering, if he answered intelligently, the witness. must have determined for himself what would constitute ordinary care, and then have deduced, from a consideration of all of the elements that would, in his opinion, enter into the question of the time reasonably necessary for the transportation in the exercise of such care, a conclusion as to what that time would be. The elements or facts, which should be considered were first to be determined in part by the court in the admission and exclusion of evidence; and the conclusion to be drawn from them, as to the time reasonably required to carry the cattle to their destination with ordinary diligence, was then to be drawn by the jury by applying to the facts admitted in evidence their own judgment as to what would constitute ordinary diligence and a reasonable time. The opinion of the witness, therefore, was given in part upon questions of law addressed to the court, and in part, upon conclusions of fact to be drawn by the jury.”

But, the court further says:

“Some of the facts from which the conclusions in this case were to be drawn might doubtless have been shown by opinions of witnesses, such as distance, speed of trains, time required for particular things,” etc.

The witness Hawkins testified that he had many years’ experience in shipping cattle; that he knew what the usual and ordinary running time made with such cattle shipments was; and that he knew the distance from San Marcos to Webb. This testimony, as indicated in the Roberts Case, supra, was admissible, and in fact was not objected to. The additional statement, based upon this testimony, that the shipment consuming from noon of one day to 5 o’clock p. m. on the next day was a “bad run,” meant simply that it was a slow run; in other words, that the run was not made in the ordinary and usual time. This testimony does not involve any Conclusion of the witness as to any question of law, and his deduction from the facts stated that it was a bad or slow run is one which necessarily results from the facts stated by him. He did not undertake to say that such run resulted from negligence on the part of appellant.

However, the assignment as to the admission of this testimony must be overruled for another reason. The assignment is:

“The court erred in the admission of the testimony set out in defendant’s bill of exception No. 1, for each and all of the reasons there assigned.”

It was necessary for appellant to state in his bill the grounds of objection to the testimony, otherwise it would have been entitled to 'no consideration, and lie is limited to the grounds of objection there stated. By reference to appellant’s bill of exception No. 1 it will be seen that the objection was that the testimony “called for the conclusion of the witness about a matter not calling for expert testimony.” The testimony was of a hind upon which expert testimony was admissible, and the contrary is not insisted upon by appellant in its brief herein.

Appellant assigns error upon the admission of testimony as to the intrinsic value of the cattle at Webb, the place of delivery, for the reasons: (a) That such value is not alleged in plaintiff’s petition; (b) the evidence shows that there was a market for cattle of this kind at Laredo, a distance of about 20 miles from Webb.

Appellee alleged both the intrinsic and the market value of the cattle at Webb. Such evidence would' have been admissible upon an allegation as to their value at such place, without stating whether it was the market value or intrinsic value. Market or intrinsic value is simply a matter of evidence. Kerr v. Blair, 47 Tex. Civ. App. 406, 105 S. W. 550. The measure of damages is the value of the article at the time and place it should have been delivered. If there be a market for articles of that nature at such place, the market value will control. If there be no •market, then the intrinsic value is the measure of damages. Railway Co. v. Chittim, 40 S. W. 23; Railway Co. v. Smith, 93 Tex. 728, 47 S. W. 279.

It is true that evidence is admissible as to the market value in the vicinity or at the nearest market, if there be no market at the time and place of delivery; but this testimony is admissible for the purpose of showing the intrinsic value. Thus, if a party could have replaced an article destroyed by purchasing an article of the same kind in a nearby market, the intrinsic value would be shown not to exceed the price of such article in such adjacent market, plus the expense of purchasing it in such market and transporting it to the place where the article should have been delivered. Railway Co. v. Williams, 31 S. W. 556; Railway Co. v. Coggin, 44 Tex. Civ. App. 474, 99 S. W. 431; Steamship Co. v. Weiss, 47 S. W. 675; Railway Co. v. Crews, 139 S. W. 1052. In the instant case it was shown by the testimony of appellee that cattle of the same character as his were bought and sold in the market at Laredo, 20 miles distant; but the market price of such cattle was not shown.

No error appearing of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

On a former day of the present term of this court we affirmed the judgment of the trial court herein under the provisions of Rule 62a (149 S. W. x). In this we think that we were in error. The Constitution of this state (Article 5, § 25) and also R. S. art. 1523, provide that:

“The Supreme Court shall have power to make and establish” and enforce all necessary “rules of” practice and “procedure, not inconsistent with the laws of this state, for the government of said court and the other courts of this state, to expedite the dispatch of business” in said courts.

Rules which the Supreme Court has power to make should be given the force of law, but a rulé in contravention of a statute is void. Railway Co. v. Beasley (Sup.) 155 S. W. 187; Railway Co. v. Wilkinson, 152 S. W. 203; Schuette v. Bishop, 153 S. W. 379; Railway Co. v. Galloway, 154 S. W. 653; Rowson v. McKinney, 154 S. W. 604; Conn v. Rosamond, 161 S. W. 76; Johnson v. State, 49 Tex. Cr. R. 429, 93 S. W. 735; People v. McClellan, 31 Cal. 103; Main v. Lynch, 54 Md. 658; Purcell v. Railway Co., 50 Mo. 506; State v. Posey, 17 La. Ann. 252, 87 Am. Dec. 525; Suckley v. Rotchford, 12 Grat. (Va.) 62, 65 Am. Dec. 240.

Where a rule of procedure, whether prescribed by statute or by the Supreme Court, is merely directory, the discretion of the' court ought always to be exercised in behalf of substantial justice; but, when the Legislature has made a mandatory rule of procedure, there is no room left for discretion, and it is the business of courts to enforce the law as it is written. There is no way for an appellate court to enforce the mandate of the law, except to reverse a case when such mandate has been disobeyed.

In our original opinion herein we said, “Appellant does not complain of the charge given.” It did not have an opportunity to object to the charge in the manner prescribed by statute, and “all objections not so made and presented shall be considered as waived.” Articles 1970 and 1971, R. S. It would have been useless for appellant to assign error upon the charge after the same had been read to the jury, as such assignments could not have been considered on appeal.

For the reason that the trial court did not comply with the statute with reference to the preparation and reading the charge before argument to the jury, the appellant’s motion for a rehearing is granted, and the judgment of the trial court herein is reversed, and this cause is remanded for a new trial.

Motion granted. Judgment reversed, and cause remanded.