author: HUFF, C. J.

text:
    FORD v. WARNER.
    (No. 689.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 20, 1915.)
    1.Principal and Agent <§=126 — Conveyance by Agenon-Title Conveyed.
    A conveyance by an attorney in fact for his principal conveys whatever right the attorney had in the property, whether he signed the conveyance as agent or as principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 430-450; Dec. Dig. <§=
    2. Appeal and Error <§=934 — Questions Reviewable — Presumptions in Support op Judgment.
    The court must presume that the trial court made findings which will support the judgment, where the facts warrant the findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. <§=934. ]
    3. Principal and Agent <§=126 — Execution op Instrument by Agent — Fraud—Eeeect.
    An attorney in fact induced by fraud to execute a deed for his principal to the fraudulent grantee is not bound thereby, and may subsequently acquire title as against the fraudulent grantee or those claiming under him.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 430 — 450; Dec. Dig. <§= 126.]
    4.Estoppel <§=107 — Pleading—Necessity.
    A plaintiff suing to remove a cloud on his title and to prevent defendant from asserting title under a deed, on the ground that defendant, in obtaining the deed, was the agent of plaintiff, is confined to the ground relied on, and cannot rely on an estoppel not pleaded.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. <§=107.]
    5. Estoppel <§=107 — Pleading—Facts.
    A plaintiff in a suit to remove a cloud from his title, who relies on estoppel to give him a title, must plead the facts necessary to create an estoppel and authorize a recovery.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. <§=107.]
    6. Estoppel <§=12 — Estoppel by Deed.
    To estop one by deed it must be alleged and proved that there was a consideration paid the grantor therein for the land, and this must be done independent of the recitals of consideration in the deed, or it must be alleged and proved that the party sought to be estopped was guilty of fraud or gross negligence in signing the deed, and that the person relying on the estop-pel was without knowledge thereof.
    [Ed. Note. — For other cases, see Estoppel, Dec. Dig. <§=12.]
    7. Estoppel <§=12 — Estoppel by Deed — Notice.
    A party relying on estoppel by deed is chargeable with knowledge of the state of the title shown by the record.
    [Ed. Note. — For other cases, see Estoppel, Dec. Dig. <§=12.]
    8. Appeal and Error <§=742 — Assignments op Error — Proposition.
    A proposition not germane to the assignment of error will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=742.]
    9. Appeal and Error <§=1011 — Findings — Conclusiveness.
    A finding on conflicting evidence is conclusive on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. <§= 1011.]
    10. Appeal and Error <§=747 — Questions Reviewable — Cross-Assignment.
    In the absence of a cross-assignment complaining of terms in a judgment for appellee, the court cannot reform the judgment so as to eliminate such terms.
    .[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. <§= 747.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by H. E. Ford against George P. Warner. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    D. H. Doom, of Austin, and W. T. Perkins, of Quánab, for appellant. J. C. Marshall and M. M. Hankins, both of Quanah (John W. Yeale, of Amarillo, of counsel), for ap-pellee.
   HUFF, C. J.

This is an action brought by H. E. Ford, against Geo. P. Warner to remove cloud from title and to prevent Warner from using a quitclaim deed alleged to have been fraudulently obtained by him for the purpose of claiming the title to the tract of land therein described, which deed was in Warner’s name, and which it is alleged that he obtained for the purpose of casting a cloud on plaintiff’s title, and for a decree quieting tile title in the appellant, Ford. The appellant alleged his title specially to the land given in the instruments, giving each instrument in his chain of title down to himself, and that he in good faith purchased the title from one Gardner Ruggles. He alleges that he believed he was getting a good record title at the time of his purchase, but after his said purchase, on an investigation of the record, it was found that the record title to said land was apparently vested in one H. M. Munsell; and he further alleged that Munsell, at the time of said purchase by Ford, had long since parted with his interest in said land by his deed of conveyance to some grantor in the chain of title under which appellant claims, but which deed has not been recorded. ' He alleges that, after being informed that the record title was in Munsell, he entered into an agreement with Warner to obtain a conveyance from Munsell to appellant, and that, in pursuance of said agreement, Warner, the appellee, obtained a quitclaim deed from Munsell to himself, and refused to convey the land to appellant or deliver him the deed so obtained, and has threatened to place said deed upon record, and thereby east a cloud upon appellant’s title to said tract of land, and claims the same adversely to appellant, although the title in said Geo. P. Warner by reason of said deed from said Munsell was acquired Long after said Geo. P. Warner had conveyed his interest in the land by general warranty deed, and therefore the title was, in law, an after-acquired title, and inures to the benefit of all those claiming under the said Geo. P. Warner. The defendant answered, in part stating that he did not knowingly execute a deed to Gardner Ruggles, which is set out and described in plaintiff’s petition, but that, if such deed was ever procured of and from appellee to Ruggles, it was procured by fraud and without the knowledge of ap-pellee, and without consideration; that he never at any time knowingly signed such a deed, and that he never at any time intended to convey the land, and that he did not then have title to said section sued for, but that the title to the land was then in H. M. Munsell, and that, if any such deed is in existence, it was procured by fraud, and never acknowledged by him, and was without consideration. It is further alleged by appel-lee that, if Ruggles deeded to appellant the land, it was never intended to convey the title to said land, that appellant borrowed from Ruggles on the day the deed bears date $320, and that Ruggles, without any legal right to do so, gave the mortgage to appellant on said section 3 to secure the payment of said sum of money, and that the deed pleaded by plaintiff from Ruggles was, in truth and in fact, but a mortgage, and was intended as such at the time it was executed on said land to secure the above debt, and he alleges, if his careless acts caused appellant to be misled in the matter, he is only damaged in the matter of making the loan on a piece of land upon which the borrower had then no title, etc. He denies also that appellant purchased the land from Ruggles in good faith, and says the instruments, if any there were, passed from Ruggles to appellant, were, in truth and in fact, nothing more than a mortgage on property to secure the debt owing appellant by said Ruggles, and that Ruggles did not have any title or right to said land at all. He denies that he ever entered into any contract or promised appellant to procure a deed from Munsell; that appellee for several years had an optional contract with Munsell to purchase the land; and that he had entered into a written agreement with M. M. Hankins, of Hardeman county, Tex., to sell the land to him, and promised to make him title to same as soon as appellee could obtain deed from Munsell, and in pursuance thereto again tried to procure the deed from Munsell, and later on did procure a deed of conveyance of said land from Munsell, and he holds the same, as above stated.

It was agreed in this case in the trial court that I-Iogle and Mahn were the original owners of the land in question, and were the common source of title as to all the parties; that anterior to all conveyances these parties executed their powers of attorney to appellee; that on February 15, 1900, Hascal A. Ilogle executed to appellee, Warner, his power of attorney, coupled with an interest and irrevocable, to sell all the lands, etc. On the 17th day of May, 1901, H. B: Mahn executed and delivered to Geo. P. Warner a power of attorney to sell and convey, among other-lands, the land in question, which power was filed for record June 19, 1901. The appellant also offered in evidence a deed from Hascal A. I-Iogle, by and through his agent and attorney in fact, Geo. P. Warner, to H. M. Munsell, dated the 20th day of September, 1901, and filed for record December 5, 1901, conveying the property in controversy in this suit. He offered in evidence a deed of conveyance from II. B. Mahn to H. M. Munsell, conveying, among other lands, the land in controversy, bearing date the 25th day of September, 1901, filed for record December 5, 1901. Appellant also offered in evidence a deed of conveyance from Hascal A. Hogle and H. B. Mahn, acting by and through Geo. P. Warner, their agent and attorney in fact, to Gardner Ruggles, dated the 21st day of September, IDOS, filed for record November 17, 1909, which is a general warranty deed, and purports to convey the whole title. Appellant offered in evidence a deed of conveyance from Gardner Ruggles to appellant, H. E. Ford, dated the 29th day of April, 1909, filed for record November 17, 1909, conveying the land in controversy, and being in form a general warranty deed, and purporting to convey the whole title to the property in controversy. There was on the date of this deed, an agreement entered into between appellant and Ruggles, the substance of which, in the disposition of this case, we have concluded is not necessary to set out in our findings.

The land conveyed by these several instruments is described as survey No. 3, block A, located by virtue of certificate No. 30/442, issued to the Texas & New Orleans Railroad Company, and patented to B. H. Epperson, assignee, by patent No. 88, vol. No. 24, situated in Foard county, Tex. The facts are undisputed and alleged by both parties that Munsell, some time in 1910, reconveyed the land in question to Geo. P. Warner, and it is shown by a letter dated Austin, Tex., December 5, 1908, addressed to M. M. Hankins, Quanah, Tex., that Geo. P. Warner had accepted an offer made by Hankins to purchase the land in question.

The facts in this case show that Warner and Ford lived in the city of Austin, and were acquainted with each other and had lived there a good many years at the time of this transaction, and each engaged in the land business, and in an indefinite way shows that there was a large body of land that possibly belonged to the Consolidated Copper Company. Just the connection that Hogle' and Mahn bore to this company is not developed by the record, and that Warner in some proceeding or other was receiver of that company, and that these lands were possibly placed in his hands by powers of attorney of Hogle and Mahn, and that Rug-gles was an attorney in the city of Austin, and assisted Warner in making a great many of these sales. It was the custom for Rug-gles to draft the deeds; and Warner to sign them as attorney in fact. From Warner’s testimony we gather that there was an agreement between the various parties some time previous to the conveyance of the lands to Munsell that appellee should have section 3, the land in controversy, as his individual property, to compensate him for his services, and that Ruggles should have another section out of a different block not clearly identified in this record; that in 1901 Warner, Hogle, and Mahn conveyed section 3, as shown by the deeds, to Munsell, which conveyances were recorded in December, 1901, in the proper county. In 1908 it appears from Warner’s evidence the Ruggles requested a deed from Warner for the section which Ruggles was to have for his services, and that he drew up the deed and sent for Warner to sign it, representing to him that it was the deed to his (Ruggles’) section of land, and that he (Warner), relying upon the confidential and trust relationship theretofore existing between him and Ruggles, accepted his statement as to the contents of the deed without reading it, as he had previously done perhaps, and signed the deed, •and that he, in fact, did not at that time acknowledge the deed. This deed, as it has since developed; conveyed section 3, the land which Warner was to have, and which had theretofore been conveyed to Munsell, which section was written into the deed. At the time Warner signed the deed to Ruggles he did not, in fact, know that it purported to convey section 3, and he did not know until the date of the trial in the court below that the deed he then signed actually conveyed section 3. Having heard that he conveyed the land, he really believed that his name had been forged to the deed, but he admitted upon the trial that the deed signed to section 3 was, in fact, his signature, and that he had made it, but that it was obtained in the manner above stated. There was no money actually paid him or any one, as far as this record goes, for section 3, by Rug-gles, at that time or any time previous thereto.

The appellant, when he claims to have purchased the land from Ruggles, did not examine the land or the title to the land,, or have an abstract made of the title, but accepted what is designated in the record as a written opinion by Ruggles, in which Ruggles stated the title appeared to be good in Hogle and Mahn, and that he found no instrument in writing in any wise affecting the title or right of possession from either Hogle or Mahn, or any person under authority of either of them, of record in either said Foard or Hardeman county. This was the only instrument that he took at the time with reference to the title — simply Ruggles’ representation as to the title as it appeared of record. Appellant testified at the time he purchased the land he paid $320 for it, that Ruggles first tried to borrow money from him, and that he refused to lend him the money, representing that the land was worth $2 or $3 an acre, but that, owing to his necessity and then condition, he would sell the land for 50 cents an acre, and that he bought it at that price. Ruggles was then in financial distress and sick, and he (Ford) had no actual knowledge of any fraud on the part of Ruggles in obtaining the deed in the manner above stated. He states that he left the deed which Ruggles executed to him (appellant) in the hands of Ruggles, who agreed to record the same, and that he afterwards wrote the clerk of Foard county to ascertain if the deed had been recorded, and, upon ascertaining that it had not, he made some effort to get the deed and have it recorded. He was not certain whether he obtained the deed for record himself or whether Ruggles sent it. It was not recorded until November 17, 1909. There is conflict in the evidence between Warner and Ford with reference to calling upon Warner to secure a deed from Munsell to Ford; Ford contending that he so employed Warner, and Warner denying it. According to Warner’s version of the matter, Ford, by his attorney and in person, spoke to him about Munsell, and he states that it was in the summer of 1909, and that* he was very much surprised at their mentioning the matter, and lie asked them (Eord and Ids attorney) if they were wanting the deed for Hankins of Qnanah, or why they wanted it, and that they did not answer his question, and that he had no idea at that time that they were claiming the property, and knew nothing of these deeds under which they were purporting to claim. He makes this conversation, and, in fact, Eord and his attorneys, show that this conversation occurred before either the deeds from Warner to Rug-gles and Ruggles to Ford had been recorded.

The case was tried before the court without a jury, and there are no conclusions of fact by the trial court in this record, so we do not know on just what grounds the court based his judgment. The judgment in this case establishes the title of the land in Warner, free from the charges or deeds of Eord, and decreeing possession of the land to Warner, and, in addition thereto, decrees a lien against the land for $320, with interest thereon at the rate of 8 per. cent, from the date of Ruggles’ deed to Eord. From this judgment, Eord appeals.

The appellant by his first and second assignments asserts that the deed dated September 21, 1908, from Hogle and Mahn, by their attorney in fact, Geo. P. Warner, ap-pellee, to Ruggles, and from Ruggles to Eord, dated April 29, 1909, both being general warranty deeds, estopped appellee or those claiming under him from asserting an after-acquired title, and that the execution of the deed by Warner, as attorney in fact, also conveyed any interest which Warner individually may have acquired in the property at the date of the deeds.

The appellee replies by a counter proposition that Hogle and Mahn had on September 20 and 25, 1901, by deeds in which Warner joined, conveyed the land to H. M. Mun-sell, and that at the time Ruggles got the deed September 21, 1908, and the deed from Ruggles to Eord, April 29, 1909, the title to the land was vested in Munsell, and therefore no title to the land passed to Eord, and that, if the deed was obtained from Warner, it was nevertheless secured by Ruggles without paying any consideration therefor, and was also obtained through fraud and deceit, and was for that reason ineffectual to pass the title.

We think it manifest from the record, when' the deed was made by Geo. P. Warner, as attorney in fact for Hogle & Mahn, to Gardner Ruggles, September 21, 1908, and from Gardner Ruggles to appellant, Eord, April 29, 1909, that the title to section 3 was in H. M. Munsell, and that these deeds were then properly recordéd in the proper county. The title would be thus vested whether the legal and equitable title was in Hogle and Mahn or the equitable title was in Warner. The deed from Hogle and Mahn, by Warner as attorney in fact, to Munsell, had the effect to vest the legal and equitable title to the land in him. The proposition in appellant’s assignments may be conceded to be sound; that is, if the deed from Hogle and Mahn, by Warner, as attorney in fact, to Ruggles, was, in fact, their deed, or the deed of Warner, then that the after-acquired title from Munsell to Warner passed, under the terms of Warner’s deed to Ruggles and by Ruggles’ deed to Eord, by estoppel, that is, estoppel by deed. Robinson v. Douthit, 64 Tex. 101; Lowry v. Carter, 46 Tex. Civ. App. 488, 102 S. W. 930. We also think the proposition sound; that is, the conveyances executed by appellee as the agent for his named principals would have the effect to convey whatever right Warner had to convey, whether he signed it as agent or as principal. Hough v. Hill, 47 Tex. 148; Bennett v. Virginia, etc., 1 Tex. Civ. App. 321, 21 S. W. 126-128, and authorities cited; Millican v. McNeill, 102 Tex. 189, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74. This brings us to a consideration of the appellee’s counter proposition that the deed and its covenants were not, in fact, the deed or covenants of Warner or of his principals, and that the deed was obtained without consideration and by fraud and deceit.

The trial court, we will presume and must presume, from his judgment, found that Warner did not in fact make the conveyance, and that there in fact was no consideration therefor; that it was obtained by Ruggles by fraudulent representations as to its contents, he using the long, confidential relations existing between him and appellee as a means of perpetrating the fraud. The facts in the record warrant such finding, or will support it, and it is our duty to presume such finding as will support the judgment if the facts warrant it. On this point Warner is not contradicted, unless there are circumstances tending in that direction. Warner never having assented to a conveyance of section 3, the land in question, by virtue of the deed signed by him, through mistake on his part, and fraud on the part of Ruggles, the minds of the parties did not meet, and no agreement was consummated; that is, no deed conveying section 3 was, in fact, made. Link v. Page, 72 Tex. 592, 10 S. W. 699; Stacy v. Ross, 27 Tex. 4, 84 Am. Dec. 604; Steffian v. Bank, 69 Tex. 513, 6 S. W. 823. This being true, there was no estoppel by deed. No such deed was made; and hence its. covenants will not bind the appellee and operate to convey an after-acquired title.

This brings us to a further question arising upon the record, which neither party has briefed, and here only present the question by argument or suggestion as being part of estoppel by deed. That is an equitable estoppel. We do not believe the pleadings of the appellant are sufficient to recover upon equitable estoppel. He does not claim title thereby. He brings this suit to remove the cloud from his title and to prevent Warner from asserting title by virtue of a deed from Munsell to bimself for the reason that in obtaining this deed appellee was the agent of appellant, and not entitled thereto. This being purely an equitable action in which the appellant set up specifically his rights, he should be held to his allegations. He neither in the original nor supplemental petition set up that, if the deed to Ruggles was not, in fact, Warner’s deed, he (Warner) was grossly negligent in signing the deed, or fraudulently did so, and that there was a consideration paid for the land, and that appellant was ignorant of the title and relied thereon. Having failed to set up this ground of estoppel, he cannot, we think, recover on it. Reed v. Robertson (Sup.) 156 S. W. 196; Missouri, etc., v. Linton, 141 S. W. 129; Box v. Lawrence, 14 Tex. 545, on page 556; Horton v. Reynolds, 8 Tex. 284, on page 290.

In this case it is manifest from the record and the pleadings that appellant only relies upon estoppel to give him a title or right, and for that reason he should plead, in order to recover the land on the ground of estoppel, facts necessary to his recovery (Box v. Lawrence, supra).; but, if we shall waive the question of pleading, we have reached the conclusion, under the record in this cause, appellant would not be entitled to recover under equitable estoppel. In order to make the deed to Ruggles a deed by appellee, it is necessary to do so by equitable estoppel, and, when this is done, give appellant title to the land through estoppel by deed, and thereby vesting in appellant the after-acquired title by appellee from Munsell by virtue of a deed created by equitable estoppel. The deed relied upon in fact not being Warner’s deed, he can only be estopped from saying it is not his deed by some fraudulent act or gross negligence on his part in signing it, which will now preclude him from telling the true facts. In order to estop one by deed or otherwise, usually it should be alleged and proven that there was a consideration paid the grantor therein for the land, and this must be done, independent of the recitals contained in the deed of the payment for the consideration. Haley v. Sabine, etc., 150 S. W. 598 (4), and authorities cited. The facts in this case show there was no consideration to Warner paid by Ruggles for the deed to the land. In the case of Robinson v. Douthit, supra, Judge Stayton, said:

“If the deed for want of valuable consideration was not sufficient as between the parties to pass title, or for other reasons was void as between them, then no estoppel would exist.”

In that case it was held that there was a sufficient consideration, and in determining the question involved in that suit it was not necessary to a decision in that case, but we think an expression coming from this great jurist, entitled to consideration. In order to estop the appellee he must have been guilty ■ of fraud or gross negligence in signing the deed. There is nothing to show fraud in this case in so signing the deed on the part of appellee. His fault was in signing the deed upon the representation of Ruggles, without reading the instrument. The confidential and trust relation existing between appellee and Ruggles may have robbed his act of gross negligence. This, however, would not, we are persuaded, justify or excuse Warner in negligently signing the deed, which caused an innocent third party to buy land on the faith of the deed. There is another element of es-toppel which the record in this case shows to be wanting; that is, that Ruggles and Ford were destitute of all knowledge of the true state of the title or of all means of acquiring such knowledge. 2 Pom. Eq. Jur. § 806.

“The truth concerning these facts [the title] must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done and at the time when it was acted upon by him.” 2 Pom. Eq. Jur. § 805.

Again it is said:

“If at any time when he acted such party [claiming estoppel] had knowledge of the truth, or had the means by which, with reasonable diligence, he could acquire the knowledge, so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representations or concealment.” 2 Pom. Eq. Jur. § 810.

This rule we apprehend should not be applied to a deed actually made by the grantor in his interest or that of his privies; but where he, in fact, did not make the declaration, but they are attributed to him because of his negligence, then we think, where a party claims title on such negligence, he should, before he can do so, show not only that he did not know, but that he could not have known by reasonable diligence, that the title was not conveyed by the deed. It must be borne in mind that the representations in the deed are that it conveys title to the land. Now, the grantee or his privies knew that the statements therein were not true, or, by the exercise of reasonable diligence, he could have known that the recitals were not true. He ought not to be allowed to estop appellee, who, in fact, did not make the deed, but only negligently stood by and permitted another to do so. Such conduct is analogous to that class of cases in which the silent conduct of a person affects title to land, and which the purchaser has relied on as estoppel, and where the record of the real title would furnish a means by which the other party might ascertain the truth, so that he cannot claim to be misled, and cannot insist upon estoppel. This statement of the rule must also be accepted with the further qualification that, if the person sought to be estopped is apprised of the ignorance of the buyer, and also that the buyer is relying upon the deed so fraudulently obtained, he cannot take advantage of this principle. In this ease the appellee was not only ignorant of the fact that the land was included in the deed, but also was without any knowledge that appellant was relying upon sueli deed. He was ignorant of-the entire transaction.

For a discussion of the principles above suggested, and where the title is of record, and the owner does not actively participate in the misrepresentation, see Wiser v. Lawler, 189 U. S. 260, 23 Sup. Ct. 624, 47 L. Ed. 802. In this case there was no opportunity to speak, or a duty to do so. Appellee did not know that appellant was relying on this deed, etc. It is said in Thor v. Oleson, 125 Ill. 365, 17 N. E. 780:

“The rule on this subject is, when the foundation of the estoppel insisted upon is silence, an omission to give notice of one’s rights, the party relying upon the same must not have had the means of ascertaining the true state of the title by reference to the public records. Here the title of defendant was a matter that appeared upon the public records, and was open to the inspection of everyone.” Clark v. Parsons, 69 N. H. 147, 39 Atl. 898, 76 Am. St. Rep. 157; Brinckerhoff v. Lansing, 4 Johns. Ch. 65, 8 Am. Dec. 538; Stewart v. Matheny, 66 Miss. 21, 5 South. 387, 14 Am. St. Rep. 538; Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228.

It is said in the case last cited:

“It is contended, however, that, inasmuch ■ as Koch consented that the title should be put in Zilmer, he thereby is now estopped, as against one who has acted to his disadvantage upon the theory that Zilmer was the true owner, from asserting otherwise. The doctrine of equitable es-toppel does not warrant this conclusion. * * * Neither does the principle that, where one of two equally innocent parties must suffer, he who has put it within the power of the wrongdoer to defraud must be the one to suffer, apply; for here Koch * * * was proclaiming to all the world his rights, and this notice was as puissant, at least, as was the record.”

The rule above established, by the various authorities cited, is, in part at least, supported by Link v. Page, 72 Tex. 592, 10 S. W. 701, and Steffins v. Milmo Bank, etc., 69 Tex. 513, 6 S. W. 823. We therefore conclude that it was not necessary that appellant' should have had notice that there was no consideration for the deed or of the fraud in obtaining it, in order to defeat his claim under estop-pel. Munsell’s title was duly recorded when he purchased the land, and was notice that the title was in him, and not then in I-Iogle, Mahn, and Warner. Any sort of diligence on the part of appellant would have disclosed that fact.

The facts in this case suggest that appellant either had notice of the fraud, or was in possession of facts which would have led to such knowledge. He was informed that the land at the time of his purchase was worth $2 per acre; he paid only 50 cents per acre. The purported deed to Ruggles is dated September 21, 1908, and had not been recorded when the appellant got his deed from Ruggles April 29, 1909. Appellant did not examine the records to ascertain the condition of the title nor ask or obtain an abstract, but took only a written opinion of Ruggles, in which Ruggles stated I-Iogle and Mahn were shown to have the title by the record at the time he (Ruggles) got his deed. This statement was not true, as the record then showed. Hogle and Mahn had conveyed their title to Mun-sell in 1901, some seven or eight years previous, and this title was duly of record. The appellant left the deed he obtained from Ruggles with Ruggles, he says, to have recorded, and did not make any inquiry with reference to its record until late that fall, some seven or eight months after the date of his deed, and then found that it had not been recorded. He cannot, and does not, state whether he himself had the deed recorded, or whether Ruggles did. The two deeds, the one to Ruggles by appellee, and the one to appellant by Ruggles, were recorded on the same day, November 17, 1909, nearly seven months after the execution of appellant’s deed. All this time appellant let his deed remain in the possession of Ruggles, the grantor. Ruggles was financially embarrassed and in distressed circumstances and sick at the time. The testimony of Warner and of Ford is susceptible of the construction that some time in the summer of 1909, before the deed was recorded, and before it was actually delivered to appellant, and before the death of Ruggles, which occurred in August, 1910, that the appellant then knew that the record title was in Munsell. At the time of requesting appel-lee to get a deed from Munsell he did not then mention or claim to have purchased the land from Ruggles, and did not so inform Warner, the appellee.. This conclusion is based on Warner’s testimony, and, according to his testimony, appellant- concealed from him that he (appellant) claimed under this deed of his to Ruggles. These facts, together with other circumstances, are of such a nature, we think, that the court would have been warranted in drawing the -inference that the appellant had notice of the fraud of Ruggles in procuring the deed. Both appellant and appellee resided in the same town and were in the same line of business, that is, land agents; yet at no time, even after appellant learned the state of the title, according to Warner’s testimony, did he claim to have a deed to the land vesting title in him through the deed of appellee to Ruggles. If this was a fair transaction, we see no reason for all this concealment, and it suggests to the mind that appellant was aware that there was some vice or fraud in .the transaction, in obtaining the deed from ap-pellee. Assignments Nos. 1 and 2 are therefore overruled.

The third proposition under the first assignment, to the effect that Warner accepted employment from Ford to get a deed from Munsell to Ford, and that, while in such employment, he obtained such deed to himself; the appellee thereby vesting title in Ford by virtue of such agency. This proposition is not germane to the assignment, and will be overruled. It is proper to state, however, that there is a conflict of evidence upon this point, and, the court having found against appellant’s contention, upon the evi-deuce, this proposition, if properly briefed, should he overruled.

The third assignment will be overruled. The conclusion we have reached in the case renders the error set up by this assignment, if in fact it is error, harmless, in so far as appellant is concerned. The judgment of the court gives appellant a lien on the land for the money he paid for the land, with interest. If we are correct in our former conclusion, appellant would not be entitled to this lien.

Appellee presents no cross-assignment on, the action of the court in so decreeing the lien, and we cannot reform the judgment without 'such an assignment. The judgment on this point is clearly in appellant’s interest, and it will not be disturbed on account of the alleged errors set up by the third assignment of error. We shall not, therefore, enter into a discussion of the effect of the contract made between appellant and Ruggles on the day that Ruggles executed the deed to appellant, and do not at this time express an opinion as to whether or not the court was correct in holding the deed and the contract and the evidence and circumstances then surrounding the parties established simply a mortgage from Ruggles to appellant to secure the money then obtained.

The fourth and fifth assignments will be overruled, and the ease affirmed.
      <§=For other cases see same topic and KEY-NUMBER in. all Key-Numbered. Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    TEXAS MFG. CO. v. FITZGERALD.
    (No. 8152.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 10, 1915.
    Rehearing Denied May 15, 1915.)
    1. Principal and Agent <@==>24 — Evidence of Agency — Sufficiency.
    In an action for the value of labor and materials performed and furnished in repairing a building, evidence held sufficient to make a question for the jury, as to the authority of the person who employed plaintiff to make the repairs to represent defendant.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723; Dec. Dig. <@= 24.]
    2. Principal and Agent <@=22 — Evidence ■ of Agency — Admissibility.
    Evidence that M. called up the defendant company on the telephone and asked for its president, and talked to some one answering the phone in response to this request, and evidence of his statements to the person answering the phone with reference to the repair work to be done on a building, and the probable charge therefor, was admissible on the question of whether M: was authorized to bind the company by a contract for repairs, as agency may be established by circumstantial evidence.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; ' Dec. Dig. <@=22.]
    3.Principal and Agent <@=190 — Actions on Agents’ Contracts — Admissibility of Evidence.
    M.’s statements to a tenant in the building after such telephone conversation that he had better do the work, and that when it was done he would O. K. the bill, was admissible on the question of whether M. in fact authorized the repairs.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 718-720; Dec. Dig. <@=
    4.Evidence <@=121 — Statements and Representations by Agent — Admissibility. Statements and. representations made by an agent of a corporation acting within the scope of his authority, are admissible as res gestee.
    iRd. Note. — lor other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dee.' Dig. <@=121.]
    5. Principal and Agent .<@=120— Evidence of Agency — Admissibility.
    . Evidence that after the repairs to a building were completed, plaintiff took a bill made out against defendant to its president, and that the president, without denying that he had authorized the work, refused to pay the bill because he did not know whether the work was done or not, and that he sent M. to see if the work had been done, was admissible on the question of whether M. had authority to contract,on behalf of defendant for the repairs.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 402-412; Dec. Dig. <@=120.]
    6. Corporations <@=406 — Officers—Authority.
    The president of a manufacturing company had authority to bind the company by a contract for repairs on a building, if entered into by him for the benefit of the company.
    [Ed. Note. — For other cases, see Corporations Cent. Dig. §§ 1611-1614; Dec. Dig. <@=406.]
    7. Property <@=9 — Evidence.
    In an action for the value of repairs on a building under a contract with M., defendant, a manufacturing company, denied its ownership of the building, and M.’s authority to bind it by contract. A witness testified that M. was in charge of brass works which occupied one floor of the building. A letter head purporting to be that of the defendant, and on which there was a picture of the building and beneath it the words, “Our Brass Foundry and Machine Shops,” was received in evidence. Held, that this letter head was admissible as tending to prove defendant’s ownership or control of the building, even though not admissible on the question of M.’s agency, especially as it would-seem that it bore incidentally upon the question of agency.
    [Ed. Note. — For other cases, see Property, Dec. Dig. <@=9; Evidence, Cent. Dig. § 1033.]
    8. Appeal and Error <@=1052 — Harmless Error — Admissibility of Evidence.
    In an action for the value of repairs tó a building, there was evidence that the work was done on Sunday for the convenience of a tenant whose laundry would have been forced to shut down if the work had been done on week days, and that double pay for Sunday work was usual and customary. No contract or understanding as to the prices to be charged appeared, except that it was estimated when the contract for the repairs was made, that it would cost from 8250 to $1,000, and the verdict was for an amount less than the minimum estimate. Held, that there was no merit in an assignment of error complaining of the admission of plaintiff’s testimony that the work was done on Sunday, and that his laborers were enticed to double pay for Sunday work.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4171-4177; Dec. Dig. <@= 1052.]
    Appeal from Tarrant County Oourt; Charles T. Pruitt, Judge.

      Action by J. H. Fitzgerald against tlie Texas Manufacturing Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ike A. Wynn, of Ft. Worth, for appellant. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.
   BUCK, J.

J. H. Fitzgerald, appellee herein, sued the Texas Manufacturing Company, appellant, to recover for certain repairs made on a building alleged to have been owned and controlled by the defendant company, alleging that he furnished in the performance of said repairs lumber and other material of the reasonable value of $69.08, and labor in the sum of $83.70, and the service of a foreman which he alleged of the reasonable value of $50, and he sought to recover further the sum of $50 for his own work and labor and risk in doing said work, making a total of $252.78. He further alleged that the contract of employment was made on behalf of defendant company by one W. W. Mayer, whom he alleged to be the agent and representative of the defendant company and authorized to so contract and bind said company.

Defendant answered, specifically denying all the allegations of the plaintiff’s petition, including the ownership of the building upon which the repairs were made and the agency of Mayer, and further denied that it had ever entered into such a contract, or that any person with authority so to do made any such contract for defendant company.

Upon a trial before the court and jury a verdict and judgment was rendered for plaintiff in the sum of $220.68, from which judgment the defendant appeals.

The building in question, and alleged to be owned and under the control of defendant company, was situated at the corner of First and Throckmorton streets in the city of Ft. Worth, and occupied upon the second floor by the Midland Brass Works and on the first floor by the Texas Laundry. The work done thereon for which plaintiff sought a recovery and for which' he alleged the defendant, through said W. W. Mayer, agreed to pay plaintiff the reasonable and necessary cost thereof, was on the floor occupied by the laundry and consisted of “shoring” or propping up the ceiling over and near the engine, and it seems that, on account of the heat from the engine and on account of the interference with the operations of the laundry, most of the work was performed on two Sundays, ' for which labor plaintiff sought to recover double the amount of wages usually paid for like services on week days, such double charges being alleged by him to be reasonable, usual and customary for such Sunday work. Defendant specially denied the right of plaintiff to recover such double wages, and that, in any event, plaintiff was not authorized under the alleged contract to perform the work on Sunday and. charge therefor such double wages.

In its first assignment of error appellant complains of the refusal of the court to give its first special instruction, which was in effect a peremptory instruction for the defendant, on the ground that there was no evidence that W. W. Mayer was the agent of the Texas Manufacturing Company, defendant, or was authorized to act for it in this transaction, and therefore the court should have instructed the jury to find for the defendant. Frank B. Creighton, manager of the Texas Laundry Company, testified, in part, as follows:

“The Midland Brass Works was located over the Texas Laundry Company, and there was a man named Mayer in charge of the Midland Brass Works at that time.”

Fie further testified that the laundry each month paid its rent to the defendant company, and identified a letter head, which he testified was used by the defendant company, and on which there was a picture of the building in question, and under the picture these words: “Our Brass Foundry and Machine Shops.” He further testified that when the plaintiff came to the building for the purpose of seeing about making the repairs, that' witness took the plaintiff back to show him the work to be done, and after-wards sent him to Mr. Mayer, and that he later heard a conversation between Mr. Mayer and plaintiff and heard Mayer call up the Texas Manufacturing Company and ask for Mr. Butler, the president of said company, for authority to do the work, and that Mr. Mayer told the person who answered the phone the condition of the building and told him what the repairs would cost, to wit, “not less than $250 and might run up to $1,000,” and that Mayer thereupon turned around and said to witness:

“You better do it and when it is done, you O. K. it for the safety of the laundry and I will O. K. the bill.”

Then the work was started. After the work was completed, the plaintiff testified that he went to see Mr. Butler about the payment of the bill, and that Mr. Mayer was present and — 1

“Mr. Butler said he would have Mr. Mayer go and examine the work; and he kicked at the price of the work and he said he did not propose to pay anything. He talked with me rough and he said he would not pay any bill unless he knew the work was done, and he would send Mr. Mayer up to see what had been done, and I suggested that I would meet Mr. Mayer up there, and Mr. Mayer set a time. * * * I met Mr. Mayer up there and we looked the work over. * * * ”

He further testified that Mr. Mayer O. K.’d the bill after examining the work done. There is other testimony in the record tending very strongly to show that in making the contract for such repairs Mr. Mayer was acting as agent for and on behalf of the defendant company, and we feel that the court did not err in refusing to give the peremptory instruction reguested, and the assignment is overruled.

The second, third, and iourth assignments are directed to the testimony of the witnesses Creighton, Fitzgerald, and Way-land, as to what was said by Mayer at the time of the conversation over the phone by him with Mr. Butler, or with some one supposed to be Mr. Butler, on the ground that such testimony was hearsay. We do not believe that such objection is well taken. Evidence of the fact that Mr. Mayer called up the defendant company and asked for Mr. Butler, the president thereof, and talked to some one answering the phone in response to the request for Mr. Butler, and the evidence of the statements made by Mr. Mayer to the person at the other end of the phone, with reference to the repair work to be done, and the probable charge therefor, would be proof, though circumstantial in its nature, we think admissible, probative, though not conclusive, upon the question of Mr. Mayer’s authority to act on behalf of, and to bind the defendant company; and Mayer’s statements to and in the presence of these witnesses, in effect, authorizing the work to be done, would be admissible upon the question of whether or not the purported agent did in fact authorize the repairs. Agency may be established by circumstantial evidence. Mechem on Agency, § 100; Railway Co. v. Jones, 82 Tex. 156, 17 S. W. 534; Jesson v. Texas Land Co., 3 Tex. Civ. App. 25, 21 S. W. 625; International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93. And as bearing upon the issues presented in these assignments might be cited Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 389; Life Ins. Co. v. Stuart, 163 S. W. 396. Statements and representations made by an agent of a corporation acting within the scope of his authority are admissible as res gestae. Henderson v. Railroad Co., 17 Tex. 560, 67 Am. Dec. 675; Railway Co. v. Garrett, 52 Tex. 133; Railroad Co. v. Sherwood, 84 Tex. 125, 19 S. W. 455, 17 L. R. A. 643; Cooper Gro. Co. v. Britton, 74 S. W. 91. Therefore we hold that the three assignments mentioned must be overruled.

The fifth assignment urges error in the admission of testimony of plaintiff, over objection, that after the work was done plaintiff carried the bill made out against the Texas Manufacturing Company to A. J. Butler, and that Butler refused to pay the bill upon the ground that he did not know whether the work was done or not, and that he sent the said Mayer to see if said work had been done, because, as claimed, said evidence did not show authority in said Mayer to make the alleged contract or a ratification thereof by Butler. Appellant urges that estoppel and ratification must be specially pleaded to be available, and that there was no plea of ratification, and therefore such evidence was inadmissible. Irrespective of the question of whether or not ratification must be specially pleaded to be available,’ which we do not think is necessarily involved in this connection, we believe the evidence is admissible as probative of the issue as ta> whether or not Mr. Butler, as president of the defendant company, a corporation, did' authorize the repairs to be made and the employment of plaintiff to make them. When the account made out to the defendant company was presented to Butler, he did not deny that the work had been authorized by him, and seemingly conceded that it had been so authorized, in that he delegated Mayer to go and see the work and report thereon. We further think that Mr. Butler, as president of the defendant company, would be authorized to bind said company by contract of this character if entered into by him for the benefit of the company. City of Austin v. Nuchols, 42 Tex. Civ. App. 5, 94 S. W. 336; Dallas Ice Co. v. Crawford, 18 Tex. Civ. App. 176, 44 S. W. 875. The assignment is overruled.

In its sixth assignment appellant urges error in the admission by the trial court of the letter head purporting to be that of the defendant company, and on which there was a picture of the building identified as the one upon which the repairs were made and under which were the words, “Our Brass Foundry,” etc. This was a circumstance tending to show the ownership or control of said building by the defendant company. Appellant urges that the letter head did not tend to prove the contract, or that Mayer was authorized to act for defendant. If it did tend to prove the ownership or control by defendant company of the building, that being one of the issues specially involved in the controversy, it was admissible, even though it did not bear upon the question of Mayer’s agency, though it would seem that it did bear incidentally upon that question, inasmuch as the testimony of the witness Creighton was to the effect that Mayer was in charge of the Midland Brass Works occupying the second floor of said building. The assignment is overruled.

In its seventh assignment objection is urged to the action of the court in permitting plaintiff to testify that the work was done on Sunday, and that the laborers were entitled to double pay for Sunday work, because, as claimed, there was no evidence that the contract provided for the work to be done on Sunday and paid for at double wages.

The record does not disclose that there was any contract or understanding as to price or prices to be charged for the work done, except that it would probably cost not less than $250 nor more than $1,000. The evidence tends to show that the work was done on Sunday for the convenience of the tenant, the laundry, occupying the building, and that such double pay for Sunday work was usual and customary, and that if the work had not been performed on Sunday the laundry would have been forced to shut down during week days, and moreover, the recovery awarded was some $30 less than even the minimum estimate of the probable cost, and therefore we hold that there is no merit in this last assignment.

The judgment is affirmed.
      <g^sFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: RAINEX, C. J.

text:
    LUMMUS COTTON GIN SALES CO. v. FARMERS’ CO-OP. GIN CO. et al.
    (No. 7195.)
    (Court of Civil Appeals of Texas. Dallas.
    May 1, 1915.
    Rehearing Denied May 29, 1915.)
    1. Evidence <§=5397 — Parol Evidence Affecting Writings — Contract. '
    A written contract cannot be varied, altered, or contradicted by parol except for fraud, accident, or mistake.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1756-1765; Dec. Dig. <§=5397.]
    2. Evidence <§=5434 — Parol Evidence Affecting Writing — Contract—Fraud.
    Where the agent of the ..seller represented in writing that he would guarantee that his machine would run cheaper than another kind, and agreed to insert that provision in the contract, and the contract was signed by the buyers with the understanding that it contained the guaranty, the agent’s conduct amounted to fraud, so that parol evidence was admissible to show the real terms of the contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. <§=434.]
    Appeal from District Court, Hill County; Norton B. Porter, Judge.
    Action by the Lummus Cotton Gin Sales Company against the Farmers’ Co-operative Gin Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    C. M. Smithdeal, of Dallas, for appellant. Collins & Cummings, of Hillsboro, and Morrow & Morrow, of Somerset, for appellees.
   RAINEX, C. J.

Appellant sued the Farmers’ Co-operative Gin Company, J. C. Harper, A. M. Martin, J. M. Harrison, W. G. Hayes, Joe Buie, Tom Files, and Eb Johnson to recover $2,335.88 as liquidated damages for breach of a written contract. By amended petition appellant omitted the name of the Farmers’ Co-operative Gin Company as a defendant, and pleaded against the other defendants. It alleged that the persons above named intended to organize and incorporate a gin company under the above name, and entered into a contract to purchase a certain gin outfit, which contract was signed “Farmers’ Co-operative Gin Company, J. C. Harper, President, and A. M. Martin, Secretary,” which was agreed to and authorized by the other parties mentioned; that said gin company was never incorporated, and the said defendants breached said contract by refusing to receive said gin outfit, whereby they became liable for damages. Appellees answered, admitting that on May 3, 1913, they signed the contract sued on, and alleged that it contained the following language: “This contract is subject to the approval of the seller at its home office” — and that it was never approved and never became a binding contract. They also alleged that at the time the contract was signed appellant agreed in writing in connection therewith as follows: “We agree that our direct current outfit 8-80 A-B will run 45 cents cheaper per hour than Brush outfits with line shaft” — and that this was a part of the contract, but that appellant repudiated the same. They also alleged that the consideration which induced them to make the contract sued on was a promise upon the part of appellant to make the guaranty that said machinery would run 45 cents per hour cheaper than Brush outfits, and that at the time the contract was made, and as part of it, and as part of the consideration therefor, appellant agreed to give a bond in the sum of $10,000, binding it to carry into effect all the provisions of the contract; that appellant failed and refused to give such bond. Appellant in its supplemental petition specifically denied that the contract was never approved by the seller, and specifically denied all the other defensive allegations of the answer filed by appellees. The case was submitted to the jury on special issues, and on return of its findings judgment was entered for appellees and the appellant prosecutes this appeal.

The instrument sued on is in the nature of an order for the purchase of a certain gin outfit, and its execution was procured by one Chandler, who was the duly authorized agent of the appellant. At the time of the execution of said instrument, and as an inducement therefor, the said Chandler then and there represented to said defendants, “We agree that our direct current outfit 8-80 A.-B will run 45 cents per hour cheaper than the Brush outfits with line shaft,” which representation was reduced to writing on a separate piece of paper and signed by Agent Chandler, and the said Chandler then and there agreed that appellant would execute a bond in the sum of $10,000, guaranteeing said representations. The appellant executed a bond in the sum of $9,344, payable to the Farmers’ Co-operative Gin Company, conditioned on the faithful performance of its. contract in the delivery of certain machinery as per the contract, with certain provisions thereto, one of which, among others, was “that no right of action shall accrue upon or by reason hereof, to or for the use or benefit of any one other than the obligee herein named, and that the obligation of the surety is, and shall be construed strictly as, one of suretyship only, shall be executed by the principal before delivery, and shall not, nor shall any 'interest therein or right of action thereon, be assigned without the prior consent, in writing, of the surety,” said bond n,ot containing a clause guaranteeing the representation made by Agent Chandler that “We agree that our direct current outfit 8-80 A-B will run 45 cents per hour cheaper than the Brush outfits with line shaft.”

The order executed by appellees contained the following clauses:

“This contract is subject to the approval of the seller at its home office, and in case purchaser fails or refuses to accept or receive said machinery on arrival, or in any other way fails to comply with this contract, purchasers agree to pay the said seller 25 per cent, of the amount of this contract as stipulated and liquidated damages for breach of the contract, which amount is hereby agreed to as covering the extra expense of manufacture, solicitation, and salesmanship which the seller has incurred in connection with this contract.”

Also:

“The machinery herein described is sold subject to the terms and conditions set forth in or printed upon this order, and it is speeinll' agreed that there are no understandings, warranties, or agreements, either verbal, or written, or otherwise, other than as hereinbefore specifically set forth.”

Soon after the giving of said order appel-lees changed the name of the Farmers’ Co-operative Gin Company, which had never been incorporated, to that of Farmers’ Electric Gin Company, and incorporated under the latter name. Some dissatisfaction arising with appellees about the order given to appellant, some correspondence resulted between them. Appellees on May 17, 1913, advised the appellant as follows:

“As president of the Farmers’ Electric Gin Company, formerly the Farmers’ Co-operative Gin Company, I hereby ratify the contract formerly made with you for gin machinery, which contract shall be considered complete when a bond for $10,000 for the faithful performance of said contract has been executed by said Luminus Cotton Gin Sales Company.
“[Signed] W. G. Hayes,
“Pres. Farmers’ Electric Gin Co.”

On May 27, 1913, appellant wrote to the Farmers’ Electric Gin Company as follows:

“In accordance with your understanding with our Mr. W. I). Chandler, we are inclosing herewith contract bond with the Equitable Surety Company, guaranteeing the faithful performance of the contract entered into between this company and the Farmers’ Electric Gin Company, the receipt of which bond by you makes complete our contract, and we take this opportunity to accept your order as tendered us, with the understanding that settlement papers are to be signed by Messrs. J. C. Harper, W. S. Hayes, and the other directors of your company, as individuals, as we understand that the papers for incorporation have not been issued. However, should you receive the incorporation papers in the meantime, this can be adjusted when the machinery arrives.”

The court submitted three special issues as follows:

(1) “Did the plaintiffs agree to furnish to the defendants a bond guaranteeing as follows: ‘We agree that our direct current outfit 8-80 A-B will run 45 cents cheaper per hour than Brush outfits with line shaft?’ ”
(2) “State whether or not the agreement, signed W. D. Chandler,’ which is in the following language: ‘We agree that our direct current outfit 8-80 A-B will run 45 cents cheaper per hour than Brush outfits with line shaft,’ was part of the consideration which induced defendants to sign the order for machinery, which is described in plaintiff’s petition and introduced in evidence before you?”
(3)“State whether or not plaintiffs accepted the order for machinery in the terms agreed to by defendants. If so, when was such acceptance, if any?”

In response to these issues the jury answered “Yes” to Nos. 1 and 2, and “No” to No. 3.

Appellant Insists that, the instrument sued on being in writing, it cannot be contradicted or changed by parol, and that the matters pleaded by appellees in defense do not fall within the exception to the rule allowing parol evidence to change, alter, or contradict the instrument sued on; therefore the court erred in admitting such evidence, and consequently the verdict of the jury was wrong, and judgment should have been for appellant.

It certainly is a correct principle of law that a written contract cannot be varied, altered, or contradicted by parol, unless for fraud, accident, or mistake. Appellees plead the failure of appellant to execute a bond to guarantee the representation made by Chandler, “We agree that our direct current outfit 8-80 A-B will run 45 cents per hour cheaper than the Brush outfits with line shaft,” in the following language:

“Defendants replead the matters set .out in the next preceding paragraph hereof, and say that the said W. D. Chandler representing plaintiff did agree to the warranty and guaranty set out in defendants’ answer and to the furnishing of the bond therein mentioned, and that said agreements were the consideration which induced the defendants to sign said contract, and said Chandler, as defendants believe and charge the fact to be, made said agreements without the intention of complying with the same,' and fraudulently omitted the same from said contract, and that his conduct in so doing was fraudulent, and he being the agent of the plaintiff intrusted with the business the plaintiff was affecte’d by and participated in the said fraud, and by reason thereof is estopped to contend that a part of said contract is binding upon the defendants, and to repudiate the remainder thereof, and is estopped by said fraudulent act from claiming any of the benefits of said alleged contract.”

There was no general or special exception leveled at this plea by the appellant, and the proof adduced sustains it. But the appellant complains of the action of the court for admitting said representation over its objections for various reasons, which are in effect that said representation was made before the instrument sued on was signed and delivered, that it varies the terms of the one sued on, that appellees did not plead it was a part of the contract and left out by mistake, accident, or fraud, and that it was not signed by appellant, but by appellant’s agent in his individual capacity.

The evidence shows that on the night the instrument sued on was signed the appellees had held a conference in relation to their organization; that Chandler, the appellant’s agent, was present and made the representa tions in regard to tlie bond and tbe outfit running cheaper than the Brush outfit, which representation, he wrote in a small book, signed it, and delivered it to one of the parties. This was done about 3 o’clock in the morning, some 30 or 40 minutes before the contract was signed up. One of the witnesses testified:

“Mr. Chandler agreed to put this writing into the contract. When we broke up that meeting, he read part of the contract, but didn’t read it all, and we didn’t vote on it that night, accepting the contract, after it was written, and when we got to the sidewalk I called his attention that he had left this out of the contract, that he had not put it in, and he said he would put it in, and I have never seen a contract with that in it, moi’e than that other there. It was on this very morning that I agreed to purchase this machinery.”

It was further shown that said representation was the consideration that moved and induced the appellees to sign the contract.

We think there was no error committed by the court in admitting said testimony. Chandler having made the representations pleaded and proven by appellees, and the evidence showing that appellees were induced to make said contract on the faith that, said representations were to become a part thereof, the failure of Chandler to insert the same in said contract constituted such fraud on appel-lees as is sufficient to defeat appellant’s cause of action. Gypsum Co. v. Shields, 106 S. W. 724, same case affirmed 101 Tex. 473, 108 S. W. 1165.

We think an affirmance of the judgment hinges upon the legality of the admission of this testimony, and therefore hold that the evidence supports the verdict and judgment, and consider it unnecesary to discuss the assignments’ presented, further than has been done, and overrule them all, and affirm the judgment.

Affirmed.
      (g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    HOVEY et al. v. ARLEDGE.
    (No. 8135.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 20, 1915.)
    1. Evidence <@=317 — Hearsay—Statements by Third Persons.
    In a shipper’s action against railroad receivers for damages to a shipment of cattle from delay, rough handling, etc., testimony of plaintiff that before the shipment reached a point on the line of the initial carrier the conductor told him that he had received a telegram. that the receivers of the connecting road had no facilities for taking care of the stock, and of the conductor that he had been notified by telegram from the trainmaster of the initial carrier to the same effect and had communicated such notice to the man in charge of the stock, was hearsay and inadmissible to prove that such notice came from the receivers.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 1174-1192; Dec. Dig. <@=>317.]

      2. Carriers <@=228 — Carriage ox Live Stock — Recovery.
    In a shipper’s action against railroad receivers for damages to a shipment of live stock, where there was no competent evidence to show that any agent of the receivers authorized notice to the conductor of the initial carrier that the shipment could not he received on the receivers’ connecting road, and where the damage to the shipment for which judgment against the receivers was given was due in part to the initial carrier’s delay, judgment would be reversed and the cause remanded.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dee. Dig. <@=228.]
    3.Evidence <@=121 — Res Gestas.
    In a shipper’s action for damages to stock, declarations of the initial carrier’s conductor offered to fix the liability of defendants, the receivers of the connecting carrier and incompetent therefore, were not admissible as part of the res gestm.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. <@=121.]
    Error from Nolan County Court; John H. Cocheron, Jr., Judge.
    Action by T. E. Arledge against S. B. Ho-vey and another, receivers. Judgment for plaintiff, and the receivers bring error.
    Reversed and remanded.
    H. S. Garrett, of San Angelo, and Douthit & Smith, of Sweetwater, for plaintiffs in error. Beall & Spencer, of Sweetwater, for defendant in error.
   DUNKLIN, J.

T. E. Arledge instituted this suit against the Texas & Pacific Railway Company and the receivers of the Kansas City, Mexico & Orient Railway Company of Texas for damages to a shipment of 105 head of cattle and 20 head of horses from Bonham, Tex., to Maryneal. The basis of plaintiff’s claim for damages consisted of allegations that the cattle were detained in improperly equipped pens at Bonham, were delayed en route, roughly handled, and transported without feed and water, all of which acts and omissions were charged as negligence resulting in the death of one animal and a depreciation in the market value of the rest. On February 16, 1913, a judgment by agreement was entered in plaintiff’s favor against the Texas & Pacific Railway Company for $325, and on March 6, 1914, the suit against the receivers was tried, the trial resulting in a judgment in favor of the plaintiff for $145, from which the defendants have prosecuted this writ of error.

The shipment was over the Texas & Pacific Railway from Bonham to Sweetwater, and from Sweetwater to Maryneal, a distance of some 17 miles, over the Kansas City, Mexico & Orient Railway. The trial was by the court without the aid of a jury, and the following are the findings of fact upon which the judgment against the receivers was based:

“(5) The defendant receivers had notice on January 17th that such shipment was en route and would be delivered to it at Sweetwater, Tex., during the night of said date or early morning of January 18th, and notified the defendant Texas & Pacific Railway Company that it was not prepared to handle said stock, and that by reason of such notification said stock were unloaded by tie defendant Texas & Pacific Company at Baird at about 10 p. m. January 17th, for rest, water, and feed, and left Baird at 8 o’clock a. m. January ISth, arrived at Sweetwater at 1:45 p. m., and were delivered to the defendant receivers at 2 o’clock p. m. the same day. The regular south-bound freight train of the defendant receivers, due at Sweetwater in the early morning .of January 18th, left Sweetwater for Maryneal and points south at 11 o’clock a. m. on that day. The stock pens of the defendant receivers at Sweet-water were inadequate in size and arrangement to hold this shipment.
“(6) There was no south-bound freight train out of Sweetwater over said receivers’ line until the morning of January 19, 1913. Said live stock were already bruised, tired, and injured when delivered to said receivers and were held in cars on tracks at Sweetwater until about 7.T5 p. m. January 18th, when upon the instance of the plaintiff three cars of said stock were taken south by defendant receivers’ regular south-bound passenger train, and delivered at said defendants’ stock pens at Maryneal, Tex., at about 9 o’clock p. m. that day, such train being unable to handle more than said three cars, one car of said shipment, containing seven head of. horses and two cattle, was left at Sweetwater and taken south by the regular south-bound freight train of said defendants the following morning, January 19th, and delivered at their stock pens at Maryneal, at about 6 a. m.
“(7) The defendant receivers’ stock pens at Maryneal were without water supply or watering facilities, the nearest sufficient water supply being two miles distant, and by reason thereof none of said stock were watered until the morning of January 19th, when same were watered by plaintiff.
“(8) That the delays at Baird and Sweetwa-ter were due to the defendant receivers being unprepared to receive said stock and handle 'same at the time delivery thereof would have been made to them by the defendant Texas & Pacific Railway Company, but for the notice given by such receivers to said Texas &• Pacific Company as above stated.
“(9) That by reason of said delay at Sweet-water and Baird and the deprivation of water for said stock at Maryneal due to lack of watering facilities in defendants’ pens at said point materially aggravated and increased the injuries already sustained by said stock, and additionally damaged said cattle to the amount of $1 per head and said horses to the amount of $2 per head.”

Plaintiff, who accompanied the cattle to their destination, testified that before the shipment reached Baird, Tex., over the line of the Texas & Pacific Railway, the conductor in charge of the train stated to him that he, the conductor, had received a telegram, to the effect that the receivers had no facilities for taking care of the stock at Sweetwater, and would not receive them, and that by reason thereof the stock would have to be unloaded at Baird. J. C. Ferguson, the conductor of that train, also testified that before his train reached Baird he received notice by telegraph from the trainmaster of the Texas & Pacific Railway that the stock would have to be unloaded at Baird for feed, water, and rest, as the receivers of the Kansas City, Mexico & Orient Railway were not prepared to handle the stock at Sweetwater for lack of pens, and that witness communicated such notice to the man in charge of the stock. The receivers objected to all of that testimony, substantially, upon the ground that it was hearsay; but the 'objection was overruled. We are of the opinion that in such ruling there was error, and as it seems there was no other evidence to show that any agent of the receivers authorized such notice to be given to the conductor of the Texas & Pacific Railway Company’s train, and as the court expressly found that the injuries to the cattle for which a judgment was given were due, in part, to the delay at Baird, the judgment must be reversed and the cause remanded. Tex. & Pac. Ry. Co. v. Cauble, 168 S. W. 369; G., C. & S. F. Ry. Co. v. Batte, 107 S. W. 633.

The contention of defendant in error that the declarations of the conductor were admissible under the rule of res geste we do not think applicable here, as they were introduced for the purpose of fixing liability upon the receivers and not upon the Texas & Pacific Railway Company

For the reasons indicated, the judgment is reversed, and the cause remanded.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOVEY et al. v. HALSELL-ARLEDGE CATTLE CO.
    (No. 8133.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 8, 1915.)
    New Trial t&wkey;86 — Grounds — Excusable Absence oe-Counsel.
    Counsel for defendant receivers had requested that certain cases against them be set for trial at a certain time, and, an important case in which he was engaged in another county going over to that time, attempted to reach the county judge by telephone to obtain a postponement, but was unable to do so, and then addressed letters to the attorneys for the plaintiff and to the county judge explaining the situation, and assumed that plaintiff’s counsel would follow the custom of not insisting upon an ex parte trial, and, on their unwillingness to postpone the case, he requested local counsel to appear for him, which request was received too late, and when defendant, whose witnesses had not been summoned, but who would have given testimony material to the defense and tending to reduce the damages, were absent, plaintiff was given judgment. Held, that the absence of defendants’ counsel was excusable, and refusal of a new trial was error.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 172-174; Dec. Dig. &wkey;86.]
    Error from Nolan County Court; John H. Cochran, Jr., Judge.’
    Action by the Halsell-Arledge Cattle Company against S. B. Hovey and another, receivers. Judgment for plaintiff, and defendants bring error.
    Reversed and remanded.
    H. S. Garrett, of San Angelo, and Doutbit & Smith, of Sweetwater, for plaintiffs in error. Wilson & Wilson, of Sweetwater, for defendant in error.
   DUNKLIN, J.

The Halsell-Arledge Cattle Company made two. shipments of cattle to Maryneal, Tex., a station on the Kansas City, Mexico & Orient Railway. One of the shipments was from Wallace, Tex., and the other was from Eagle Lake, Tex., and both moved over the road of the Gulf, Colorado & Santa FS Railway Company from the points of origin to Sweetwater, Tex., where they were delivered to the receivers of the Kansas City, Mexico & Orient Railway Company, and by them transported from Sweetwater to Maryneal, a distance of about 17 miles.

On August 6, 1913, the Halsell-Arledge Cattle Company instituted this suit against the receivers to recover damages for alleged injuries to the cattle resulting from alleged negligent delay in their transportation after they were delivered to the receivers, on account of which delay many of the cattle, which were already tired and jaded by reason of their long confinement in cars of the initial carrier, got down in the cars and were trampled and killed, and all of those not killed were bruised and rendered gaunt in appearance to such an extent that their market value was depreciated. The suit was tried March 3, 1914, at which time a judgment was rendered in favor of the plaintiff against the defendants for the sum of $909, with interest thereon from thé date of the shipments at the rate of 6 per cent, per annum; said recovery being for the full amount claimed in plaintiff’s petition. From that judgment the defendants have prosecuted this writ of error. The trial was ex par-te, the plaintiff appearing and introducing its evidence, but no one appearing for the defendants.

Plaintiffs in error complain of the action of the trial court in trying the case in the absence of any attorney to represent them and in overruling their motion for a new trial, in which it was alleged, substantially, that their attorney, who had been employed to defend the suit, was unavoidably and excusably absent. Evidence was heard in support of the motion and the same appears in the transcript. It consists chiefly of the testimony of H. S. Garrett, the attorney for the defendants. This testimony covers several pages of the transcript, and we shall not attempt to set it out in full, as the salient and controlling features of it can be briefly summarized.

H. S. Garrett was the general attorney for the Kansas City, Mexico & Orient Railway Company and also for its receivers. He resided in San Angelo and had no associate counsel either there or in Sweetwater. Pie filed an answer in the suit August 16, 1913. He represented the defendant in another case styled E. T. Brandenburg v. Imperial Irrigation Co. pending in the district court of Pecos county, which involved interest of great importance, and a special term of court of one week was set apart for the trial of that ease beginning February 23, 1914. 1-Ie engaged in the trial of that suit, but the trial was not finished during the week set apart therefor, but continued over until Friday of the following week, which was March 6, 1914, three days after the date of the judgment in this suit, and by reason of being engaged in the trial of that suit he was unable to be present at the trial of the present suit.

The present suit, together with several other suits of the same character against the receivers, were pending in the county court of Nolan county at the same time. At the reguest of Garrett all of those cases were set down for trial for the third week of the court, the setting being made two weeks in advance. If the trial of the suit in Pecos county had been concluded at the end of the week set apart therefor, Garrett would have been present at the county court of Nolan county in time to have attended the trial of the present suit and the other cases set for that week. On Saturday evening, February 28th, upon discovering that he would be unable to finish the trial of the case in Pecos county, he attempted to get in communication with the county judge of Nolan county over the telephone for the purpose of arranging for a postponement of the trial of this and the other cases until he could return to Sweetwater, but was unable to talk to the judge on account of some trouble with the wires of the telephone company. On Sunday morning, March 1st, he addressed letters to the attorneys for the plaintiff in this case and also .to the county judge explaining his inability to be present at the trial of this ease. He received no replies from these letters until Tuesday afternoon, March 3d, when he received a telegram from the attorneys for the plaintiff announcing their unwillingness to continue this case. Until the receipt of that message he had assumed that under the circumstances the present suit would not be taken up for trial until the latter part of that week; such assumption on his part being based upon a custom among lawyers of the bar in Sweetwater not to insist upon an ex parte trial under such circumstances, but to pass the case over in order to enable the absent attorney to be present. Upon receipt of the telegram last mentioned, Garrett wired to Douthit & Smith, attorneys at Sweetwater, requesting them to appear in all of the cases set for trial in the county court of Nolan county for that week and to protect his clients’ interests in some manner. Garrett also sent telegrams to the county judge again insisting upon a postponement of the cases on account of the fact that the trial in Pecos county had not been finished. Douthit & Smith, who were practicing attorneys residing in Sweetwater, were absent from home on Tuesday, March 3d, and did not receive Garrett’s message until the following day, March 4th, too late to appear in the trial of the present suit. Prior to Garrett’s trip to Ft. Stockton to attend the trial of the case in Pecos county, lie liad investigated the facts pertinent to the present suit and had discovered several witnesses whose testimony he had arranged to introduce upon the trial, and whose testimony would have tended materially to controvert the plaintiff’s right to a recovery, and, but for his unexpected absence at the time the ease was called for trial, he would have attended that trial in the interest of the defendants and would have introduced the testimony of said witnesses. The character of the testimony which he would have introduced was detailed upon the hearing of the motion for new trial. It is unnecessary to set out the same, it being sufficient for us to say that it was material to the defense and if taken as true would, at all events, have tended to materially reduce the amount of damages claimed by the plaintiff.

The following statement by the trial judge was appended to the bill of exception containing the testimony offered in support of the motion for new trial:

“On the first day of this term of county court, Mr. H. S. Garrett, attorney for the defendants, S. B. Hovey and M. L. Mertz, requested the court to set all of the cases in which S. B. Hovey and M. L. Mertz, receivers of the Kansas City, Mexico & Orient Railway Company of Texas, were defendants, for the third week of this term, stating at the time that he made the request that if the cases could be set for the third week he would come to Sweetwater and be present on Monday morning of that week and put in the entire week in disposing of these cases. At that time, I told Mr. Garrett that the plaintiffs were going to insist on a trial of this case and the other cases mentioned, and told him to be sure and be ready for trial in all of his cases at this term. When the docket was set, I arranged the docket especially in order to give Mr. Garrett the third week of court, as he had requested. This case was set for trial Tuesday of the third week, and the court never received any intimation from Mr. Garrett that he would not be present and ready for trial until about 9 o’clock a. m. on Tuesday, the day this case was set for trial, at which time the plaintiff’s witnesses were in attendance upon court, and the plaintiff ready for trial. When this case was called for trial, there had been no subpoenas issued for witnesses by the defendants, and no witnesses for the defendants were in attendance at court, and no depositions had been taken by the defendants, and no indications of any kind made that the defendants had endeavored to get ready for trial.”

The persons whom Garrett expected to use as witnesses in the trial of this case were employés of the receivers, and the following is a portion of this testimony explanatory of his failure to subpoena them:

“It is not my custom, and never was my custom, to subpoena an employs of the company. We have their personal attendance at all times, and, besides, these employés do not live in this county, and I could not subpoena them. But, whether an employé is living in the county or not, we always have their personal attendance and never go to the trouble to subpoena them. I never put the courts to the trouble and expense of subpoenaing employés.”

G. T. Wilson, one of the plaintiff’s lawyers, testified as follows:

“With reference to the first case we tried, the Halsell-Arledge Cattle Co. Case, No. 1130, the shipment from Sweetwater, Tex., the allegations of the damage in that case are the usual allegations of damages on account of delay and holding cattle in the cars on side tracks. However, after that case was set for the third week of the court, we notified our witness accordingly, and the client, and when the time arrived they were here. The witnesses were J. S. Ar-ledge, of the Halsell-Arledge Cattle Company. He' lives at Abilene, Tex.; and Mr. Zerick and Mr. Bell, of Maryneal. As to where Maryneal is, I have always heard it called 20 miles from here. Abilene is 42 miles east of here on the Texas & Pacific. These parties were here, insisting on a trial. Mr. Arledge represented the plaintiff, being the manager of the Halsell-Ar-ledge Cattle Company; and the very reason that we felt that it was impossible for us to agree to a continuance of the ease and protect our client’s interests was bn account of the fact that we anticipated a sale of the road under the receivership, and we thought, in order to protect our client’s interest, it was necessary to try the case before that sale, and we anticipated and believed from all reports, and from what had been stated by Mr. Garrett, the attorney for the roads, that that sale was contemplated right away.”

The statements contained in the testimony of plaintiff’s counsel set out above and those contained in the statements of the county judge appended to the bill of exception were uncontradicted. The same may be said of Garrett’s testimony.

Defendant in error stresses the point that a special week of court was set apart to try this and other companion cases against plaintiffs in error, and that this setting was at the special instance of their attorney. We do not believe that this would make any material difference in the disposition of the assignments now under discussion, because, if the setting had been made at the court’s instance, or at the instance of defendant in error, the diligence which would have been required of plaintiffs in error to prepare for trial and to be present when the cases were called would have been just the same. Nor do we believe that the absence of any motion by the plaintiffs in error to continue the case would make any difference under the circumstances detailed. We are of the opinion further that plaintiffs in error’s attorney’s absence from the court, under all the circumstances, was excusable as much so as if his failure to appear had been due to illness of himself or some one of his family; whether or not he was negligent being the controlling issue in each instance.

Of course, it would have worked a hardship upon plaintiff to continue the case, or to have granted a new trial, after plaintiff had incurred the expense of bringing witnesses to court, as shown in the testimony of Mr. Wilson, and perhaps under all the circumstances the court might equitably have imposed that expense upon the defendants as a condition for granting a new trial. However, such hardships are frequently necessary incidents to the best system of judicial procedure and do not furnish the sole test in determining the merits, either of a motion to continue, or a motion for new trial. When a case upon the docket is reached on regular call for trial, either liarty has the legal right to insist upon trial independent of the question whether or not a postponement of the case would work any particular hardship upon him. We are of the opinion further that the failure of plaintiffs in error to subpcana their witnesses has no material bearing upon the question at issue. The showing made was that, notwithstanding the failure to subpoena the witnesses or to take their depositions, they would have been present to testify in person if Garrett had not been unexpectedly detained in Et. Stockton. His absence from court when the case was called for trial, and not the absence of his witnesses, was the chief ground of his motion for new trial. If the witnesses had been present at the trial, their testimony would not have been available to the defendants, in the absence of some attorney to present their defenses to plaintiff’s suit.

The right of a party to a reasonable opportunity to appear in court upon the trial of a case and present his side of the controversy is fundamental. Of course, if he is .given that opportunity and through negligence or willful omission fails to take advantage of it, he cannot be heard to complain. But, if such failure occurs by reason of circumstances which repel any presumption of negligence and which constitute an equitable excuse for such failure, then he has not forfeited his right to his day in court. Under all the circumstances related, we believe that plaintiffs in error presented a meritorious showing for a new trial, the ' overruling of which was reversible error. See Howard v. Emerson, 59 S. W. 49; Harris v. Musgrave, 72 Tex. 19, 9 S. W. 90; Fitzgerald v. Wygal, 24 Tex. Civ. App. 372, 59 S. W. 621; Alexander v. Smith, 20 Tex. Civ. App. 301, 49 S. W. 916; Hargrove v. Cothran, 54 Tex. Civ. App. 5, 118 S. W. 177; Hornbuckle v. Luther, 47 Tex. Civ. App. 352, 105 S. W. 995; Goodhue v. Meyers, 58 Tex. 405; Lanius v. Shuber, 77 Tex. 24, 13 S. W. 614; Watkins v. Ahrens & Ott Mfg. Co., 38 S. W. 868.

For the reasons noted, the judgment is reversed, and the cause remanded.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. IMBODEN.
    (No. 8132.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 27, 1915.
    Rehearing Denied May 8, 1915.)
    1. New Trial <&wkey;140 — Grounds — Absence of Counsel at Trial — Opening — Meritorious Defense.
    On defendant’s motion for a new trial in an action against it for damages for delay and negligent handling of a shipment of stock, its presentation of witnesses who testified in explanation of delays and as to care in transportation, contradicting the plaintiff’s evidence on those points and comprehending a material part, though- not all of the journey, was such a showing of probable merit in the defense as to entitle defendant to have the court or jury determine the weight and credibility of such testimony.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 284-287, 289, 302, 306; Dec. Dig. <&wkey;140.]
    2. New Trial &wkey;>86 — Grounds—Absence of Counsel — Excuse.
    A case was set down for a hearing on the last week of a term by agreement, and on Thursday of that week was called for trial, and plaintiff was awarded judgment in the absence of defendant’s counsel, who was unexpectedly detained in a distant county in the trial of an important ease precluding his presence, and who had informed the court of his inability to attend and had been denied a continuance, and who had then obtained local counsel to appear for defendant and to offer an amended answer setting up defenses calling for additional proof by plaintiff, on denial of which the local counsel withdrew, without defendant’s authority. Held, that a sufficient excuse for the absence of counsel was shown, and that the judgment would be reversed and remanded for new trial.
    [Ed. Note. — For other’cases, see New Trial, Cent. Dig. §§ 172-174; Dec. Dig. &wkey;86.]
    Error from Nolan County Court; John H. Cochran, Jr., Judge. •
    Action by J. G. Imboden against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, motion for new trial overruled, and defendant brings error.
    Reversed and- remanded for new trial.
    H. S. Garrett, of San Angelo, and Douthit & Smith, of Sweetwater,- for plaintiff in error. Ed. J. Hamner and Geo. T. Wilson, both of Sweetwater, for defendant in error.
   CONNER, C. J.

Defendant in error instituted this suit in the county court on the 1st day of August, 1911, to recover damages in the sum of $250 because of alleged injuries to 50 head of cattle shipped by the plaintiff from Maryneal, Tex., to Suf-fren, Ill., over plaintiff in error railway and over the lines of several connecting carriers, which it is not material to name. It was alleged that the injuries charged were caused by negligent delays and want of due care in handling the shipment. The defendant answered at the August term by a general demurrer and a general denial. The case, however, was continued until the next term of the county court on the application of the defendant, at which time, viz., on November 9, 1911, the defendant amended its answer, pleading as before and setting up several special pleas not necessary to notice. Thereafter the case was continued from term to term, once on the application of the plaintiff, one or more times on the application of the defendant, once to make new parties, but generally by agreement, until the third and last week of the February term, 1914, at which time the ease, together with a number of other like suits against the same defendant, was set down for trial by agreement of all parties; the court consenting. On Thursday of said week, to wit, oh Thursday March 5, 1914, the ease was called and tried in the absence of the defendant’s counsel, under circumstances to be hereinafter stated, and the plaintiff was awarded a judgment for the full amount of damages claimed by him. Thereafter in due time the defendant made application for a new trial, which was overruled, and this writ of error has been prosecuted.

The material questions presented for our determination are whether defendant on the hearing of the motion for a new trial showed a sufficient excuse for the absence of its counsel, and, if so, whether the showing of probable merit in the defense to the plaintiff’s action was sufficient.

As to the last question, independent of any amendment of the answer made or offered, we think the showing meets the requirements of the law. On the hearing of the motion two witnesses, whose depositions were on file at the time of the original trial, testified in explanation of delays and to care in transportation in such way as to contradict the plaintiff’s testimony on the same points, thus tending in part, at least, to defeat plaintiff’s recovery. It is not thought to be material that this testimony failed to cover the entire journey. It did comprehend a material part of it, and for the purpose of the motion must be accepted as true; for, if the absence of the defendant’s counsel was excusable, it had the right under the general denial to meet-the case as alleged in the plaintiff’s petition as far as it could, and to have the court or jury, as the case might be, determine the weight and credibility of his testimony.

The foregoing conclusion brings us to the most serious question in the case and the one principally presented in the briefs before us; that is, did the defendant show a sufficient excuse for the absence of its counsel? This question has been answered by us in the affirmative in the companion case of S. B. Hovey & M. L. Mertz, Receivers, v. Halsell-Arledge Cattle Co., No. 8133, 176 S. W. 897, decided on the 20th inst. In this respect the two cases are dependent on the same circumstances; and the circumstances, the reasons, and authorities for our conclusions have been so fully and clearly stated in the opinion of Mr. Justice Dunklin in the case mentioned, that we feel it to be unnecessary to here do more than to refer to that opinion as expressive of the view we entertain on the subject in the present case, and to say very briefly in passing that it was shown by the affidavit of counsel that he was unexpectedly detained in a distant county in the trial of a very important case under circumstances that in all reason precluded his attendance during the trial of the present case. The case now before us, however, differs from the companion ease referred to in particulars to which defendant in error attaches importance, viz.: The case of S. B. Hovey and M. L. Mertz v. Halsell-Arledge Cattle Co., as will be seen by the opinion of Mr. Justice Dunklin, was tried on Tuesday morning of the week set apart for the hearing of the Orient cases, no counsel for defendant appearing at any time until after judgment. The present case was called for trial on Thursday morning thereafter. In the meantime the distant counsel communicated to the court his situation and inability to attend as he had agreed to do and sought to have this case continued or postponed, and, upon being informed by the court that this would not be agreed to, finally secured the promise of a firm of local counsel to appear for the defendant, sending to them certain information in his possession and an amended answer which he directed them to file. The local counsel appeared and sought permission for the presentation of the amended answer, which being denied by the court, they thereupon withdrew from the ease entirely, stating, as they swore upon the hearing of the motion for new trial, that their connection with the case had been so recent that they had not had time to learn the names and whereabouts of witnesses or the facts of the case, and hence did not believe they could be of any service. The amended answer set up one or more special defenses not theretofore pleaded which called for additional proof on the part of the plaintiff, and the effort to present it was denied on the ground that it would work a continuance. In view of the reversal, however, we need not review the court’s ruling in this matter. The general denial put in issue the plaintiff’s allegations, and, while local counsel might have read the depositions on file hereinbefore mentioned, they did not do so, but refused altogether to act. It should perhaps be stated in behalf of such local counsel that it is not pointed out that they knew of the depositions; but, whether so or not, their withdrawal from the ease left plaintiff in error wholly defenseless, and it is not shown that either it or its original counsel either knew of or authorized such refusal of local counsel to act, or that thereafter there was any opportunity to employ others. So that, on the whole, we think this case must take the course given to the case of S. B. Hovey and M. L. Mertz v. Halsell-Arledge Cattle Co.

It is accordingly ordered that the judgment herein be reversed and the cause remanded for a new trial.
      «gsjJTor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes