text:
    CROWDER v. GRAHAM.
    (No. 8948.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 9, 1918.)
    1. Injunction <§=>152 — Issuance Without Giving Opportunity to be Heard.
    Code Cr. Proc. 1911, art. 148, providing that one indicted for carrying on an occupation injurious to health may be enjoined from carrying on such occupation, does not authorize a restraining writ, without proof and giving defendant an opportunity to be heard.
    2. Health <§=>33 — Restraining Unlawpul Practice op Medicine, — “Trade, Business, or Occupation Injurious to Health oe Neighborhood.”
    “Unlawfully practicing medicine,” within the provisions of Pen. Code 1911, arts. 754, 755, not being a public nuisance under the common law, cannot be enjoined as a “trade, business, or occupation injurious to the health of those in the neighborhood,” within the meaning of article 694 and Code Cr. Proc. 1911, art. 148, authorizing injunction of’ injurious occupation after indictment therefor; these latter statutes relating only to offenses constituting a public nuisance under the common law.
    Appeal from District Court, Taylor County ; Joe Burkett, Judge.
    Suit by W. H. Graham against Roy Crow-der. Prom an order granting a temporary injunction, defendant appeals.
    Reversed and rendered.
    Stinson & Chambers, of Abilene, for appellant. W. H. Graham, of Abilene, for appel-lee.
   DUNKLIN, J.

W. H. Graham, as county attorney of Taylor county, instituted this suit against Roy Crowder, to restrain him, by writ of injunction, from practicing his profession in Taylor county. It was alleged in the petition that the defendant claimed to follow the profession of a masseur, and by advertising in the newspapers solicited the public to call at his office and receive treatment for diseases of the human body, and that he does treat patients for such diseases for hire. It was further alleged:

“That although he claims to be nothing but a masseur, yet in truth and in fact he performs certain manipulations with his hands over, upon, and about the human body of his patients, in such way as that it clearly comes within the meaning of the term ‘practicing medicine’ under our state laws, and the said Roy Crowder has not sufficient training in medical science to properly diagnose and treat or offer to treat diseases, disorders, and ailments of the human body, without being likely to produce death or serious permanent bodily injury to his patients, and his profession is injurious to the health of the citizens of Taylor county who patronize him, and on One occasion he massaged a fracture of a bone of a patient, not being able to diagnose the case properly, which mas’sage tended to prevent the said fracture from knitting together, instead of knitting together. That, while he represents himself publicly to be only a masseur, yet in truth and in fact he is unlawfully engaged in the practice of medicine, as defined by our statute, for the reason that he treats and offers to treat diseases, disorders, and ailments of the human body, and charges therefor a sum of money, and is not acting under the direction of a regularly licensed physician, surgeon, or osteopath, and is not carrying on his business or profession in the particular sphere of masseur as contemplated by the laws of Texas. And petitioner alleges that the particular sphere of a masseur is working under the direction of a regularly licensed physician, surgeon, or osteopathand petitioner says that said Crowder is in truth and in fact practicing medicine in Taylor county, and calling it massage as a subterfuge to evade the law. And plaintiff says that the said Roy Crowder has never procured from the state board of medical examiners of the state of Texas any proper license or certificate to practice medicine in Texas, and cannot get such certificate in the office of the district clerk of Taylor county, the county of his residence, as required by law, and hence is not entitled to practice massage, except under the direct supervision of a regularly licensed physician, surgeon, or osteopath.”

Following those allegations are further allegations that two cases are now pending upon the criminal docket of the county court of Taylor county, in each of which the defendant stands charged with the offense of unlawfully practicing medicine in Taylor county, Tex., one of which cases is upon information and complaint filed in the county court, and the other is upon an indictment found by the grand jury and duly transferred from the district court to the county court. Plaintiff further alleged that, notwithstanding the filing of such criminal proceedings, of which defendant had due notice, he—

“continued to unlawfully practice medicine in the manner aforesaid, to the injury of the health of the citizens of said Taylor county, and plaintiff says that his unlawful_ practice is calculated to produce death or serious bodily injury to his patients.”

The petition then concludes with a prayer that the court issue an order directing the defendant to appear, at a time and place to be fixed by tbe court, to show cause why he should not be restrained from practicing his profession illegally pending the trial of the criminal charges against him. The petition was signed by W. H. Graham, county attorney of Taylor county, but was not verified. It was filed on December 4, 1917, and on the same day it was presented to the judge of the district court during a regular session of said court, and the judge thereof made the following order thereon on December 4, 1917, the same day the petition was filed:

“On this day there was presented to me the petition of W. H. Graham, county attorney of Taylor county, Texas, in the above-entitled and numbered cause, on the civil docket of the said court, praying for an order restraining the said Roy Crowder from unlawfully practicing medicine, which the petition alleges is injurious to the public health of the community in which the said Roy Crowder resides; and it appearing to the court that the petition shows upon its face sufficient grounds for an injunction: It is ordered by the court that the said Roy Crowder be and he is hereby enjoined from further practice of medicine in Taylor county, Texas, in any manner until a hearing is had on the merits of this case. Said clerk is ordered to issue all process applied for by either plaintiff or defendant, for witnesses, and place same in the hand of said sheriff for service.”

Article 694 of chapter 1, title 12, of Branch’s Annotated Penal Code, reads as follows:

“If any person shall carry on any trade, business or occupation injurious to the health of those who reside in the vicinity, or shall suffer any substance which has that effect to remain on premises in his possession, he shall be punished by fine not less than ten nor more than one hundred dollars; and each separate day of carrying on such business, trade or occupation, or of permitting such substance to remain on the premises shall be considered a separate offense.”

Other articles of the same chapter specifically provide that it shall be an offense punishable by fine to pollute or obstruct water courses, lakes, ponds, or common sewers in such manner as to render the same unwholesome or offensive to the inhabitants of any county, city, or neighborhood in that vicinity, or to leave carcasses of dead animals on or near any public highway or within fifty yards thereof, or within 500 yards of a private residence, or for any one to fail to comply with the regulations promulgated by the state health officer; also other acts not necessary to mention.

Article 148 of the Code of Criminal Procedure, Vernon’s Criminal Statutes of 1916, reads as follows:

“After an indictment or information has been presented against any person for carrying on a trade, business or occupation injurious to the health of those in the neighborhood, the court shall have power, on the application of any one interested, and after hearing proof both for and against the accused, to restrain the defendant, in such penalty as may be deemed proper, from carrying on such trade, business or occupation, or may make such order respecting the manner and place of carrying on the same as may be deemed advisable; and, if, upon trial, the defendant be convicted, the restraint shall be made perpetual, and the party shall be required to enter into bond, with security, not to continue such trade, business or occupation to the detriment of the health of such neighborhood, or of any other neighborhood within the county.”

Chapter 6, title 12, of the Penal Code, prescribes the necessary steps to be taken by one in order to authorize him to practice medicine in any of its branches upon human beings within the limits of the state, including the requirement that he must successfully pass an examination before the Board of Medical Examiners, unless such person was a legal practitioner in the state under the provisions of laws passed previously to the year 1907, or under a diploma issued by some reputable and legal college of medicine. By article 754 it is provided that the statutes included in that chapter shall not apply to “masseurs in their particular sphere of labor, who publicly represent themselves as such.” Article 755 reads as follows:

“Any person shall be regarded as practicing medicine within the meaning of this act: (1) Who shall publicly profess to be a physician or surgeon and shall treat, or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method or to effect cures thereof. (2) Or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.”

Erom an order granting a temporary writ of injunction restraining the defendant from practicing his profession pending the trial of the two criminal cases against him, the defendant- has prosecuted this appeal.

Appellee has filed no briefs, but it is apparent from the record that the injunction sought was under article 148 of the Code of Criminal Procedure and article 694 of the Penal Code, both of which are quoted above; it appearing that the county attorney and the district judge proceeded upon the theory that the business or profession followed by appellant was injurious to the public health within the meaning of those two statutes, which could be restrained by writ of injunction under and by virtue of article 148 of the Code of Criminal Procedure, and that the proceedings were not upon the theory that appellant’s business was a public nuisance under the common law, which would be subject to a writ of injunction.

We gravely doubt the jurisdiction of the district judge to grant the writ, in view of the fact that the two criminal cases against appellant were pending in the county court, and not in the district court. Prom a reacting of article 148 it would seem that the power to grant a writ of injunction pending such a criminal case is given solely to the court in which the case is pending. But it is not necessary for us to decide that question, since the judgment will be reversed for other reasons hereinafter shown.

It is also apparent that the temporary-writ was granted without notice to the defendant, and without giving him any opportunity to be heard thereon, and upon the allegations contained in the petition, without hearing evidence to sustain the same. It is evident from a reading of article 148 of the Code of Criminal Procedure, copied above, that the Legislature did not contemplate the granting of a restraining writ, except upon proof, and until the defendant is given an opportunity to offer proof to show that he is not guilty of the offenses charged in the indictment or information that has already been filed against him. Accordingly, the appellant’s assignment to the effect that the court erred in granting the writ without giving defendant an opportunity to be heard, and without hearing proof of the truth of the charges presented against him, is sustained.

We are of the opinion, further, that the offense of “unlawfully practicing medicine,” within the meaning of the provisions of chapter 6, title 12, of the Penal Code, referred to above, is not a “trade, business, or occupation injurious to the health of those in the neighborhood,” within rthe meaning of article 694 of the Penal Code and of article 148 of the Code of Criminal Procedure, authorizing the issuance of a writ of injunction after indictment or information has been filed alleging such offense.

Article 694 prescribes as a punishment a fine of not less than $10 nor more than $100, while by article 756 the punishment prescribed for the unlawful practice of medicine is a fine not less than $50 nor more than $500, and by imprisonment in the county jail for a term not exceeding six months; and those articles are in separate and dis--tinct chapters of the statutes. The acts denounced as an offense in article 694 constitute a public nuisance under the common law. We are of the opinion that such is the only character of acts made an offense by that statute, as indicated by those acts described in other articles of the same chapter, which are specifically made criminal offenses and specific penalties are prescribed therefor, and that by article 148 of the Code of Criminal Procedure it was not intended to authorize the issuance of writs of injunction to restrain the commission of such an offense as the unlawful practice of medicine.

It is well settled that, in the absence of some statute specifically authorizing the same, an injunction will not lie to restrain the violation of a penal statute, simply because the act enjoined is denounced as an offense, but that an injunction will lie to restrain the act, even though it is an offense, if it constitutes a public nuisance under the common law. See ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334, Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653. We are of the opinion, however, as indicated above, that the business followed by appellant would not constitute such a public nuisance.

From the foregoing conclusions, it follows that the order granting the temporary writ of injunction must be reversed, and judgment must be here rendered, vacating said order and the writ issued thereunder, without reference to other assignments, which therefore it will be unnecessary to discuss; ana it is so ordered.

Reversed and rendered.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
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source: Caselaw Access Project

author: KING, J.

license: Public Domain

text:
    BUSH v. CAMPBELL.
    (No. 317.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 8, 1918.)
    Appeal and Ebbok. <©=>493 — Recokd—Jueis-DICTION.
    Under the rule that in suits to foreclose liens upon chattels, jurisdiction is determined by the amount of the debt where it exceeds the value of the chattels, and by the value of the chattels where such value exceeds the debt, on appeal from a suit in the county court to foreclose a debt of $412.21, where the transcript did not affirmatively show, by allegations in the pleadings, the value at the time of the suit of the chattel sought to be foreclosed on, the Court of Civil Appeals had no jurisdiction; it not appearing affirmatively from the record that the county court had jurisdiction.
    Appeal from Liberty County Court; C. N. Smith, Judge.
    Suit, by P. C. Campbell against A. E. Bush. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    H. E. Marshall, of Liberty, for appellant. E. B. Pickett, Jr., and C. H. Cain, both of Liberty, for appellee.
   KING, J.

This is an appeal from the county court of Liberty county, wherein ap-pellee sued appellant upon several notes and on an open account, aggregating $412.21, and for a foreclosure of a mortgage upon a certain automobile, executed to secure the notes and such additional amounts as appellant might become indebted to appellee.

We cannot entertain the assignments of error in this case, for the reason that there are no allegations in the petition as to the value of the automobile at the time of the suit, and therefore it does not affirmatively appear from the transcript on appeal that the county court had jurisdiction to hear and determine this cause. It is the well-settled law of this state that the amount of the debt, in cases in which the value of the mortgaged property is less than such debt, determines jurisdiction, but in cases in which the value of the mortgaged property exceeds the debt the value of such property fixes the jurisdiction. In suits to foreclose a lien upon chattels, in justice’s and county courts, even though the debt be one of which such courts would have jurisdiction were no foreclosure sought, it is always a material inquiry as to the value of the property.

There being no allegations in the pleadings with reference to the value of the chattels upon which the lien is sought to be foreclosed, the transcript therefore does not affirmatively show that the value of such property does not exceed the jurisdiction of the county court. The petition must affirmatively ■show that the court has jurisdiction, not that it may have. Cotulla v. Goggan Bros., 77 Tex. 32, 13 S. W. 742; T. & P. Ry. Co. v. Jordan, 83 S. W. 1105; American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714; Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618; Bates v. Hill, 144 S. W. 289; Stricklin v. Arrington, 141 S. W. 189; Brown v. March, 149 S. W. 353; Walker Mercantile Co. v. Raney, 154 S. W. 318; Wilson v. Ford, 159 S. W. 73; Randals v. Pecos Valley State Bank, 162 S. W. 1190; Marshall v. Stowers Fur. Co., 167 S. W. 232; Busk v. Hardin, 176 S. W. 787; Reeves v. Faris, 186 S. W. 772.

It is our duty in all cases to examine the pleadings and the judgment rendered thereon, in order to ascertain whether this court has jurisdiction of the case; and it not being affirmatively shown by the record that the county court of Biberty county had jurisdiction to hear and determine this suit, it follows that it does not appear from the record that this court has jurisdiction, and for this reason the cause is reversed and remanded.
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author: HIGHTOWER, C. J.

text:
    DAWSON v. CITY OF HOUSTON.
    (No. 330.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 8, 1918.)
    Master and Servant 150(2) — Safe Place to Work — Dangers Incident to Work.
    One employed by a city to remove rubbish, etc., from street gutters cannot recover from the city for injury received when in such work he sprained his ankle by stepping on a three-cornered brick in the gutter, which turned over; the brick being such an obstruction as he was hired to remove, so that the city owed him no duty of warning.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by B. F. Dawson against the City of Houston. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Dowell & Dowell, of Houston, for appellant.
   HIGHTOWER, C. J.

This suit was filed by appellant, Dawson, in one of the district courts of Harris county, to recover damages for personal injuries alleged to have been sustained in consequence of negligence on the part of the appellee, the city of Houston. The material allegations in appellant’s petition were substantially as follows:

Appellant’s duties, under Ms employment with the city, were to clean out and straighten one of the gutters paralleling one of the streets of the city of Houston, and, among other things, this contemplated that trash, rubbish, and other obstructions which had gotten in the gutter were to be removed by appellant; and the petition alleges that on the occasion of the alleged injury, when appellant stepped down from the edge of the gutter to the bottom for the purpose of the discharge of ’his duties, he stepped on a three-cornered brick that was in this gutter, and his foot turned to one side, and his ankle was severely sprained. He alleges that he did not know that this brick was in the gutter, and that he had not been warned by appellee that the brick was in the gutter, and further alleges that by reason of the Xiresence of the brick in the gutter, it was a dangerous place to work, and that it was negligence on the part of appellee to permit this brick to be in the gutter, and also negligence on appellee’s part in failing to warn appellant that the brick was in the gutter. We think this substantially states the material allegations in plaintiff’s petition as to the claim of negligence on the part of appel-lee. Defendant answered by general demurrer, several special exceptions, and a general denial. The trial court sustained the general demurrer interposed by appellee, and several of thef special exceptions, unnecessary to mention here, and appellant duly excepted, and has properly perfected his appeal. The only question for our determination is whether the trial court erred in sustaining the general demurrer, and we have concluded that it did not.

It is apparent from the petition, we think, that it was contemplated that appellant should discover and remove from the gutter whatever trash or other accumulations that might be in the gutter which might constitute an obstruction, including the piece of brick, the presence of which in the gutter is made the basis of the claim of negligence in this case, and we cannot see how it can be reasonably contended by appellant that ap-pellee was guilty of negligence toward him simply because it employed him to clean out this gutter, and remove obstructions found therein while doing so, which must include the piece of brick complained of. It certainly is but a reasonable deduction to say that it was the duty of appellant to discover and remove from the gutter any and all character of trash, débris, or other material that might be found therein, constituting an obstruction to the gutter, and certainly it was not expected that appellee should tell appellant, in minute detail, just what was in the gutter in the way of obstructions, or to warn him that he might be injured on a piece of brick while in the discharge of his duties in the gutter.

This disposes of appellant’s contention as made in substance by his first proposition. The second assignment of error raises practically the same question as the first, which challenges the correctness of the trial court’s action in sustaining the general demurrer, and the main contention under the second assignment of error we quote as follows:

“It is the duty of a municipal corporation to use reasonable care to construct and maintain their streets and sidewalks in such manner and condition as will permit the use ‘thereof in the customary way in the exercise of due, reasonable, or ordinary care, without endangering the safety of those thus using them.”

That this is a correct proposition of law in the abstract we might concede, but wé cannot admit that it has any application in this case. The fact of the matter is, it is shown by appellant’s petition that he," among others, was employed by appellee to do one of the things which it was the duty of appellee to do as a municipal corporation, all of which, however, was for the protection of the public in using the streets, etc., of the city. We have no hesitancy in saying that the appellant’s petition stated no cause of action against appellee, and that the trial court was correct in sustaining the general demurrer.

The judgment of the trial court is therefore affirmed.
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author: BUCK, J.

text:
    YOUNGBLOOD v. HOEFFLE.
    (No. 8809.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 2, 1918.)
    1. Pabent and Child ©=>14 — Transactions Between Steffather and Stepdaughter.
    Neither the relationship of stepdaughter and stepfather nor the fact that the stepdaughter lived in the stepfather’s home and that he bought her certain items of clothing, books, and scholarship in a business college, etc., would deprive her of the right of ownership in money loaned him by her.
    2. Infants ©=328 — Gifts—Acceptance.
    An infant is capable of being a donee of property, and in a case of a gift to an infant no formal acceptance is necessary, but if the gift is for his advantage, the law accepts it for him, and will hold the donor bound; while, if the gift is not for the infant’s advantage, the law will repudiate it, at his instance, even though he in terms has accepted it.
    3. Infants ©=>31(1) — Purchase of Person-alts'.
    A purchase of personalty by an infant is voidable at his option, but the adult seller cannot avoid the transaction.
    4. Fraudulent Conveyances ©=96(1) — Gift by Father to Minor Child — Solvency.
    A gift of personal property by a father to a minor child, at a time when the father is solvent, is valid even as against a creditor.
    5. Parent and Child ©=>14 — Stepchildren —Gifts.
    As respects a stepdaughter’s right to money given or paid her by her stepfather for services rendered, and by her loaned to him, it is immaterial whether she had been emancipated by him, or whether, under the circumstances, he was in loco parentis to her and entitled to her services.
    6. Parent and Child ©=>14 — Emancipation.
    Emancipation of a stepdaughter by her stepfather does not necessarily make her liable for board and for clothing purchased by him while she was living with him, where there was no understanding by either that a charge was to be made therefor,
    7. Appeal and Error ©=>1052(5), 1056(4), 1068(1) — Harmless Error — Evidence—Instructions.
    If the verdict of the jury is the only proper verdict that could have been returned under the evidence, any errors shown as to the admission of testimony, or the giving or refusal of instructions, etc., are harmless, and do not constitute an error for reversal.
    Appeal from Tarrant County Court; Geo. E. Ilosey, Judge.
    Action by Lillie Hoeffle against F. J. Youngblood. From judgment for plaintiff, defendant appeals.
    Affirmed,
    Graves & Houtchens, of Ft. Worth, for appellant. Mays & Mays, of Ft. Worth, for appellee.
   BUCK, J.

The fact that plaintiff below, appellee here, was the stepdaughter of defendant and lived in his home, and that defendant bought her certain items of clothing, books, and a scholarship in a business college, etc., would not deprive her of the right of ownership in the money which she alleged she had loaned defendant and for which she sued. She testified that a part of this money was given her by her mother, and that the rest of it she earned by working for her stepfather in his factory; that he paid her weekly wages, and demanded in return that she pay board. An infant is capable of being a donee of property. In a case of a gift to an infant no formal acceptance is necessary, but if the gift is for his advantage, the law accepts it for him, and will hold the donor bound; while, if the gift is not for the infant’s advantage, the law will repudiate it, at his instance, even though he in terms has accepted it. 22 Cye. 530. A purchase of personalty by an infant is also voidable at his option, but the adult seller cannot avoid the transaction. 22 Cyc. 529. A gift of personal property by the father to a minor child, at a time when the father is solvent, will be upheld even as against a creditor. A fortiori the gift will be valid as between donor and donee. Hillebrant v. Brewer, 6 Tex. 45, 50, 55 Am. Dec. 757, Manley v. Culver, 20 Tex. 143, and other cases cited in 1 Kose’s Notes on Tex. Rep. p. 210. The fact that the stepfather paid the stepdaughter wages, especially when connected with the circumstance that he demanded of her and received from her payment for board, is, we think, amply sufficient to support the conclusion reached by the jury and the trial court that the stepfather intended a delivery of the money and intended to pai t with the title thereto. This conclusion renders immaterial the questions: (1) Whether the stepfather, under the circumstances shown, was in loco parentis to his stepdaughter ; (2)' whether the evidence shows the stepdaughter had been emancipated by the stepfather, which the jury found in answer to a special issue submitted. We do not believe such finding is essential to support the judgment rendered. Hence we overrule appellant’s first, second, and third assignments. We do not think the authorities cited by appellant in support of these three assignments are pertinent to the real issue involved in this case. We recognize the rule that, while a stepfather is not entitled to the earnings of his stepchild simply by reason of their relation, and neither is he liable for such support and maintenance of stepchild, yet when the father receives his minor stepchild into his family and treats it as a member thereof, he stands in the place of a natural parent, and the reciprocal rights, duties, and obligations of a parent and child continue as Jong as such relation continues, as contended for by appellant. The ease of Schrimpf, Adm’x, v. Settegast et al., 36 Tex. 296, cited by appellant, merely holds that the presumption of a contract of hiring and an obligation to pay, arising by reason of services rendered, may be overcome by proof of facts or circumstances showing that neither party contemplated such a contract or obligation; that when a person, through kindness or charity, has received an orphan child into his family, and treats it as a member of his family, he stands tpward it in loco parentis so long as it remains in his family; and he is bound for the maintenance, care, and education of such child, and is entitled to its services without other compensation, unless he has otherwise stipulated. We think this case correctly states the law with reference to the facts there shown, but that it is not applicable to the facts disclosed in the instant case. In certain other cases cited, for instance, Eickhoff v. Railway Co., 106 Mo. App. 541, 80 S. W. 966, it has been held that a stepfather who assumes the relation of a father to a stepson by taking him into his family and' treating him as a son is entitled to the proceeds of the boy’s labor, and entitled to sue for the loss of his services. We concur in this announcement, but we do not think it is applicable to a case where the stepfather has given or paid to the stepchild money for services rendered, and where it is shown that he borrowed the money for which suit is brought.

We do not think any error is shown, as contended in the fourth assignment, by reason of the overruling of defendant’s motion for a new trial. Appellant argues that, if the stepdaughter had been emancipated by her stepfather, which the jury found, then necessarily she was liable for board for the period of some 27 weeks and for clothing, etc., purchased by, her stepfather. We do not think such deduction is 'required by the facts shown. There was no contention made in the evidence, even in the testimony of appellant himself, that in furnishing appellee the board, clothing, scholarship, etc., for which he sought a recovery that either party understood that a charge was to- be made by appellant against appellee therefor. The testimony of appellant is contrary to such conclusion. He testified:

“She was living at my house, and did live with me all the time that her mother and I lived together, and I treated her just as if she was my own daughter. * * * From October, 1914, to May 4, 1915, Lillie lived at my house, and I treated her just the same as I had always been doing since I married her mother, and she did not pay me any board during that time from October 27, 1914, to May 4, 1915.”

While he did testify that he charged her for board during the 27 weeks, yet he did not testify as to any contract on her part to pay board, nor is it disclosed when he charged her for board, whether at the time she was an inmate of his house or after the separation of her mother and appellant, and after appellee filed suit against him. I-Ie further testified:

“I was married to Mrs. Hoeffie six years and two or three months, and we were divorced, I think, in May, 1916. Lillie got money whenever she wanted it; the way was open to her and her mother at all times, although there was no particular arrangement about the girl getting money any particular time. I did not keep account of how much she got. I supported her as the best I could just the same as if she was my own child.”

It is further disclosed in appellant’s testimony that during the time for which he sought to recover board of appellee he and Mrs. Youngblood occupied different parts of the house, and the daughter lived with her mother, and that he paid for the groceries. 1-Ie further testified:

“I cannot say whether I paid out $5 or $50 for this girl in 1914.”

We think the testimony to the admission of which the fifth assignment is directed was inadmissible, and was of a nature reasonably calculated to prejudice the rights of appellant, if the record did not disclose that the judgment rendered was the only proper judgment which could have been rendered under the facts shown. Also we are of the opinion that the language of the counsel for appellee in his argument to the jury was extremely improper, and were it not for our conclusion that the record requires an affirmance by us of the judgment rendered, irrespective of any' effect which may have been made on the minds of the jury by this language, we would feel compelled to sustain both the fifth and sixth assignments, and reverse the judgment. Although it appears that the trial court, upon objection being made to the language used by counsel for appellee in his argument, stopped counsel and instructed the jury not to consider the remarks made, but to wholly disregard same, and instructed counsel not to indulge in such remarks further, which was not done, yet the conduct of counsel for appellee, both in asking the question objected to and in using the language complained of, was so palpably an effort to inject into the case issues which were improper, and reasonably calculated to prejudice the jury against the appellant, that we would feel compelled to reverse and remand the case if it were not for our conclusions already stated that the judgment rendered is the only judgment that should have been rendered under the facts. If the verdict of the jury is the only proper verdict that could have been returned under the evidence, any errors shown as to the admission or exclusion of testimony, or the giving or refusal of instructions, etc., are harmless, and do not constitute an error for reversal. Worthington v. Wade, 82 Tex. 26, 17 S. W. 520; Railway Co. v. Gill, 86 Tex. 284, 287, 24 S. W. 502; Browning v. Pumphrey, 81 Tex. 163, 169, 16 S. W. 870.

All assignments are overruled, and the judgment is affirmed.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    MINDES MILLINERY CO. et al. v. WELLBORN et ux.
    (No. 5986.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1918.
    Rehearing Denied March 27, 1918.)
    1. Evidence <©=>249(1) — Admission — Let-tee Written by Partner.
    Where one member of a partnership, m response to plaintiff's telegram, directed her sister to write plaintiff, and plaintiff in an action for breach of contract of employment relied thereon, such letter, it appearing that plaintiff received it and handed it to the other partner, is admissible as against objections that it contained unauthorized terms and that its contents were unknown to the partner who directed it to be written.
    2. Master and Servant <®=>41(6) — Breach op Contract op Employment — Matters op Defense.
    In an action for breach of contract of employment, the facts showing mitigation of damages by reason of the employe’s earnings after termination of the contract must be pleaded and proven by the employer.
    3. Trial <©=>350(4) — Special Issues — Submission — Answers.
    In an action for breach of contract of employment, where the defendants did not plead as mitigation earnings by the employs after termination of the contract, it is improper to submit that issue to the jury and the finding thereon should be disregarded.
    4. Appeal and Error <©=1033 (9) — Review-Harmless Error.
    Where plaintiff requested deduction of part of the recovery, although defendants were not entitled thereto, defendants not having objected cannot complain of the deduction; it being to their advantage.
    Appeal from Bexar County Court for Civil Cases; Jno. J. H. Clark, Judge.
    Action by R. L. Wellborn and wife against the Mindes Millinery Company and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    O. M. Eitzhugh and E. B. Cocke, both of San Antonio, for appellants. Douglas Cater, of San Antonio, for appellees.
   SWEARINGEN, J.

The appellee Nettle Wellborn brought this suit against Mrs. M. Mindes, a feme sole, and Ben Mindes, alleged to be partners and operating a millinery business under the firm name of ¡Mindes Millinery Company. The purpose of the suit was to recover damages in the sum of $524 for breach of a contract of employment for a period of one year beginning May 15, 1915. Special issues were submitted to a jury. Judgment was rendered in favor of appellee for the sum of $480.

The cause of action is alleged as follows:

“That heretofore, to wit, on or about the 15th of May, A. D. 1915, the defendant Mrs. Mindes, acting for herself and for the Mindes Millinery Company, solicited and engaged the services of the plaintiff Mrs. Nettie Wellborn to be performed for her in the place of business of the Mindes Millinery Company aforesaid. That Mrs. Mindes offered plaintiff work as milliner for a period of one year from that date and to pay her therefor the sum of $12 a week for five months, and $15 a week for the remaining seven months of the period, and to pay the wages to plaintiff weekly as the work was performed. That plaintiff accepted such offer and thereupon went to work for Mrs. Mindes and the Mindes Millinery Company under such agreement and discharged and performed her services thereunder. That at said time Mrs. Mindes promised plaintiff to give her their said contract in writing. That plaintiff worked for defendants under said agreement until July 27, 1915, when the defendants discharged plaintiff from their employment. That the defendants discharged plaintiff without just cause therefor. They refused to permit plaintiff to continue work, which she offered to do, and denied her the right and disavowed their obligation under their said contract. That for the remainder of her contract period, after said discharge, plaintiff was unable to find employment as milliner or trimmer, although she tried continually to do so, and was unable to secure lucrative employment in other lines.”

Appellants answered by a general and several special exceptions and a general denial. The answer averred that appellee’s services were unsatisfactory, because she was wasteful of material, and because she would not submit to orders from those in position to give her orders; that she was a trouble maker, and was incompetent; all of which would have justified the discharge of appel-lee; but, as a matter of fact, appellee voluntarily left the employ of appellants. The answer closed with the following prayer:

“Wherefore, premises considered, defendants pray that plaintiff take nothing by reason of this suit, and that defendants be permitted to go hence without day and recover their costs, and that they also have such other and further relief as they may show themselves entitled to in law or in equity with credit, if plaintiff recovers, for plaintiff’s earnings during the alleged contract period.”

The undisputed evidence discloses that ap-pellee was employed for personal service in the Mindes Millinery Store from May 15, 1915, and continued in that employment until July 28, 1915; that the employment ceased on the latter date. Appellee received $12 a week compensation up to July 28, 1915. She received nothing alter that date from the Mindes Millinery Company. Appellee earned $60 from other employment after ceasing to work for the Mindes 'Millinery Company. This $60 was deducted from the amount found to be due appellee by the verdict of the jury. The deduction was requested by ap-pellee in a motion presented to the trial court before the decree was rendered.

The first assignment urges that the court erred in admitting in evidence over timely objections the following letter:

“Caldwell, Tex., July 18, 1915.
“Dear Friend: Mrs. Wellborn I received your message. As I can not send you a guarantee from here but if you think you are capable of holding the position it will be all right with us, and your season will be just as long as you will wish for. Mrs. Erwin has not asked for a contract & not any of the other girls asked for any. I do not leave Caldwell until Sat. You can write & lot me know what your intentions are. “Respectfully, Mrs. Mindes.”

The objections were:

“The evidence showed that it was not written by Mrs. Mindes or any one of the defendants; that Mrs. Mindes nor any one of the defendants ever saw the letter or read it or knew its contents before it was mailed to the plaintiff; and the evidence also showed that no one had been authorized by Mrs. Mindes or any one of the defendants to write to plaintiff the matters contained in said letter, and said letter could not therefore be binding upon Mrs. Mindes, or any one of the defendants, and in no sense would be competent testimony and would be highly prejudicial to the interest of defendants if admitted to the jury.”

The statement of facts shows that Mrs. Mindes, while visiting her sister in Caldwell, Tex., July 28, 1915, received the following telegram from appellee:

“San Antonio, Texas, July 28, 1915. “Mrs. Mindes, c/a Segil Merchandise Co., Caldwell, Texas.
“Wire me my expense stating contract I made with you.
“álrs. L. R. Wellborn, 106 Dilworth Ave.”

On the same day she directed her sister to write a letter in reply to the telegram, and authorized the sister to sign appellant’s name, “Mrs. Mindes,” to the letter. The letter was mailed to and received by appellee in due course of the mail. In fact the identical letter was handed to appellee by Ben alindes, one of the appellants, and at that time active manager of the store. The context of the letter shows that it was relevant to the issue of whether or not a year’s contract existed between appellee and appellants. From the foregoing facts it is clear that the letter was prima facie evidence admissible in testimony as an admission of Mrs. Mindes that appellee could make her season of employment with the ¡Mindes Millinery Company as long as she chose. Whether the sister wrote unauthorized statements in the letter, or whether Mrs. Mindes did not know the contents of the letter, were questions of fact for the determination of the jury. The letter was sufficiently identified as the one written in response to appellee at the request of appellant Mrs. Mindes, and signed and mailed upon appellant’s order. The letter was properly admitted in evidence.

The assignment is overruled.

The second, third, fourth, fifth, and sixth assignments require a review of the rulings of the court in reference to the answer of the jury to the eighth special issue submitted. No objection was made to the submission of the eighth issue or to its form. The question and answer are:

“What amount was earned by the plaintiff Mrs. Nettie Wellborn between the 28th of July, 1915, and May 15, 1916?” “We, the jury, answer the foregoing question, $540.00.”

The contention is that by the answer to the eighth question just quoted the jury found that appellee had earned $540 during the period from July 28, 1915, to May 15, 1916, and that this sum deducted from the $540 found by the jury to be the amount due the appel-lee from appellants during that period exactly balanced the account between them. Appellant bases this contention upon the proposition that the pleadings made an issue in the case of the amount that appellee had earned while working for other persons than the Mindes Millinery Company after she ceased her work with them. Appellant had no allegation that appellee earned any sum from July 28, 1915, to May 15, 1916, nor that by the use of reasonable diligence appel-lee could have earned money.

Appellee alleged her cause of action when she set out the contract and its breach. Facts showing mitigation of the damages caused by the breach of the contract could and should have been alleged by appellant as matters of defense. The burden was upon appellant to plead and to prove such facts. San Antonio Light Pub. Co. v. Moore, 46 Tex. Civ. App. 259, 101 S. W. 867; Southern Wells Sales Co. v. Eastham, 181 S. W. 698.

No such defense was alleged by appellant, and therefore the eighth special issue should not have been submitted to the jury, and the answer to that issue could not have properly entered into the judgment of the court. The court did not err in ignoring that finding.

The remittitur of $60 by appellee before the decree was rendered was a generous gratuity to appellant which appellee had a legal right to grant and of which appellant cannot and did not com plain. The contention that because appellee gave appellant $60 the entire judgment should be reversed is hardly fair or reasonable.

The court very properly disregarded the jury’s verdict upon the eighth issue, because there was no such issue pleaded. The court did not err in accepting for appellant the gift of $60 and deducting that sum from the decree, and, if it did err in this respect, the appellant made no objection to the reduction, and is not in a position to complain that it suffered any substantial injury by that reduction.

All assignments are overruled.

The judgment is affirmed.
      <g=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    WATTS et al. v. STEWART.
    (No. 5993.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 13, 1918.)
    Courts <§=>170 — County Court — Amount in Controversy — Pleading.
    Where the petition in a suit on notes and for foreclosure of a chattel mortgage discloses that the sum sued for is less than $200, and contains no allegation of the value of the mortgaged property, the petition does not affirmatively allege facts showing that the county court has jurisdiction of the cause of action.
    Appeal from Bexar County Court for Civil Cases; Jno. H. Clark, Judge.
    Suit by Carrie B. Stewart against S. J. Watts and another. From a judgment for plaintiff, defendants appeal.
    Reversed, and cause remanded.
    McCollum Burnett, of San Antonio, for appellants.
   MOURSUND, J.

Carrie B. Stewart sued S. J. Watts and Israella D. Watts on August 23, 1917, for principal, interest, and attorneys’ fees due on six notes, the principal of which in the aggregate was $190, but which were credited with $35, and for foreclosure of a chattel mortgage lien on a Ford automobile, given to secure payment of said notes. Judgment was rendered in favor of plaintiff for $175.40.

The petition discloses that the sum sued for is less than $200, and contains no allegation of the value of the mortgaged property. It therefore appears that the petition does not affirmatively allege facts showing that the county court has jurisdiction of the cause of action. Reeves v. Faris, 186 S. W. 772; Marshall v. Stowers Furniture Co., 167 S. W. 230; Glasscock v. Sinks, 185 S. W. 405.

The judgment is reversed, and the cause remanded.


author: FLY, C. J.

text:
    FAVILLE et al. v. ROBINSON et al.
    (No. 5972.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1918.
    Rehearing Denied March 27, 1918.)
    1. Evidence <§=>419(3) — Deeds—Parol Evidence to Snow Consideration.
    In a suit to cancel a deed, the consideration of which was recited to be “one dollar, love and affection_, and other valuable considerations,” parol evidence was admissible to show that the consideration was in part an agreement by the grantee to make a will in favor of the grantor; such evidence merely adding to the consideration recited and not contradicting it.
    2. Trial <§=312(1) — Instructions — Effect of Special Verdict.
    In an action to set aside a deed, it was not erroneous for the court to inform the jury, after retirement, of the legal results of their answers to issues submitted.
    3. Trusts <§=^44(1) — Evidence — Degree of I’roof.
    Proof of an express trust must be clear and satisfactory.
    4. Deeds <§=>211(3) — Trusts <§=>44(2) — Evidence — Fraud—Sufficiency.
    In a suit to cancel a deed for fraud, or in the alternative to decree that grantee held the land in trust for grantor, evidence held not to sustain a verdict for plaintiff.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by Kate Robinson and others against Margaret Faville and others for the cancellation of a deed. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Terrell & Terrell, of San Antonio, for appellants. James F. Boyls and Lewright & Douglas, all of San Antonio, for appellees.
   FLY, C. J.

This cause was tried upon a third amended petition, in which it was alleged by appellees, Kate Robinson and her husband, George C. Robinson, as against Margaret Faville and Ada M. Atchison, appellants, that on January 1, 1915, Kate Robinson was seised and possessed of a certain lot or parcel of land on Soledad street in the city of San Antonio; that on January 23, 1900, Margaret Faville, the mother of Kate Robinson and Ada M. Atchison, obtained a decree of divorce from her. husband, F. D. Faville, in which decree a life interest in the property in question was vested in Mrs. Fa-ville, and it was provided that at her death the property should be divided between the two daughters of the parties, Kate Robinson to receive two-thirds and Ada M. Atchison the remaining one-third. Afterwards, on January 23, 1900, the two daughters, joined by their husbands, conveyed the property in controversy to their mother, Mrs. Faville, the recited consideration of the deed being “one dollar, love and affection, and other valuable considerations.” It was alleged that the true consideration for the deed was an agreement upon the part of Mrs. Faville that she would execute and leave a will devising all of the property to Kate Robinson; that on or about December 8, 1906, a will was executed by Mrs. Faville, in pursuance of the agreement, in which the property was devised to Kate Robinson, subject, however, to a charge of $1,000 to be paid by the dev-isee to Ada M. Atchison. It was alleged that on or about October 31, 1914, appellees were ordered by Mrs. Faville to move away from the property, and she, in terms, repudiated the agreement as to the will, and denies that such agreement was made by her to devise the property to Kate Robinson. It was prayed that all claims of Ada M. Atchi-son be canceled, as well as the conveyance of appellees to Mrs. Faville; that title to the property be vested in said Kate Robinson, and in tiie alternative that the court decree that Mrs. Faville holds the property in trust for Kate Robinson, subject only to the life interest of Mrs. Faville. The cause was submitted on special issues to a jury and the answers returned, judgment was rendered that the deed of conveyance made by Kate Robinson to Margaret Faville for two-thirds of the property be set aside, and that she have the same rights in the land vested in her by the decree of divorce in the case of Margaret Faville v. F. D. Faville, that, Ada M. Atchison having disclaimed, appellees recover nothing as to her, and that appellees recover of Margaret Faville all costs except those incurred as to Ada M. Atchison, which were adjudged against appellees.

The following issues were submitted to the jury, to which the attached answers were given:

“First. Is it true (as alleged in substance by the plaintiff) that at the time when the plaintiff Kate Robinson and her husband executed and delivered the deed to the defendant Margaret Faville, the said defendant Margaret Fa-ville agreed with and promised to the plaintiffs that she, the said Margaret Faville, would make a will devising or leaving to the said Kate Robinson the property (lot of land and improvements) on Soledad street, subject to a charge thereon of one thousand ($1,000.00) dollars to be paid to Mrs. Ada M. Atchison by said Kate Robinson; that said promise or agreement, if any, was the consideration and inducement to said Kate Robinson and her husband for the execution and delivery of said deed by them; and that but for said promise or agreement, if any, the said Kate Robinson and her husband would not have executed and delivered said deed? We, the jury, answer: Xes.
“Second. When did the plaintiff Kate Robinson first learn that the defendant Margaret Faville had repudiated said agreement or promise, if any? We, the jury, answer: November, 19-14.”

The second assignment of error complains of the refusal of a special instruction to the jury to return a verdict for Margaret Faville, because there was no proof of either fraud or mutual mistake when the deed of the daughters to the mother was made and appellees could not contradict the recited consideration. There was no attempt made to contradict the consideration recited in the deed, but only to add to the consideration. As said in Taylor v. Merrill (64 Tex. 494) .hereinbefore cited, in answer to a contention similar to the one made in this case:

“What the answer did seek to do was to show that the note and deed did not express the entire consideration for which the notes were given. It is a well-settled rule at common law that where no consideration is recited in a written contract one may be shown by extraneous proof; and, moreover, that such proof may be used to vary the consideration of which there is a recital. * * * Whether this he an exception to the rule that parol evidence is not admissible to vary or contradict a written contract, or in consonance with it, the principle is as well established as the rule itself. It has met with various applications, and, among others, that when the whole consideration is not expressed, in such case parol evidence is admitted to supply the deficiency.”

Again, in the same case, it is held:

“This principle of allowing extraneous proof of a different or additional consideration is not founded upon any right, such as is enforced in courts of equity, to have an instrument reformed when, through fraud, accident, or mistake, it does not state truly the contract of the parties. It is a common-law rule, and enforced in courts having common-law jurisdiction. In the present case, we think no allegation of fraud, accident, or mistake was necessary to be made.”

The ruling is cited and followed in Boren v. Boren, 29 Tex. Civ. App. 222, 68 S. W. 184. The effect of showing an additional consideration did not destroy, nor tend to destroy, the deed. The cases cited by appellant are not to the contrary.

It is held that where a party, promising to do an act, did not intend to perform it at the very time of making the promise, it would be such fraud as would support a rescission of the contract. Insurance Co. v. Seidel, 52 Tex. Civ. App. 278, 115 S. W. 945; Wyatt v. Chambers, 182 S. W. 16. There is an allegation bringing this case within the rule, but a total lack of evidence to show, if Mrs. Faville ever made the agreement attributed to her by Mrs. Robinson, that she intended when she made the agreement that she would comply with it. Mrs. Robinson swore that she believed her mother intended to meet the terms of the contract and carry it into execution. She intimates that her mother was led to change her mind through the influence of Mrs. Atchison. If this was true, Mrs. Robinson failed to make out a case under the pleadings. Mrs. Faville admitted that she intended to destroy the will when she made it, but that intention was formed six years after the alleged agreement was made and the deed executed. In the cited case of Insurance Co. v. Seidel, the court said:

“It is the general rule that a promise to perform some act in the future will not amount to fraud in the eyes of the law; and, although it may have been the propelling inducement to the execution of the contract, and though it may have been totally disregarded, it could not be made the basis for a rescission. There is, however, an exception to the rule recognized in Texas, in this: That if, at the time the promise is made, it was the design and intention of the party making it to disregard it, and no intention to perform it, and it was only made to deceive and intrap the other party, then such promise, in case the refusal to perform took place, would amount to such actual fraud as would justify and authorize the rescission of a contract induced by such promise.”

To the same effect are Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, Railway v. Smith, 98 Tex. 553, 86 S. W. 322, and May v. Cearley, 138 S. W. 165.

The morning after the case was submitted to the jury they returned into court and asked if question 1 would determine the final division of the property, which the court did not answer, and afterwards they presented the following message in writing to the trial judge:

“A misapprehension has arisen as to the wording of the charge to the jury in question No. 1: If we may assume the amount of $1,-000.00 is merely nominal and could substitute the words, ‘one-third or its equivalent to be paid to Mrs. Ada M. Atchison by said Kate Robinson,’ a verdict could be reached at once.”

To that communication the court replied:

“The only duty you have to perform is to answer the questions propounded to you as they are written, and you have nothing to do with the legal effect or consequence of your answers. But, as from the language of your communication you appear to be under the impression that it is a suit to enforce the carrying out of the alleged agreement, you are instructed that this suit is not for that purpose, but is a suit merely to set aside or cancel the conveyance made by Mrs. Kate Robinson and her husband to her mother.”

The first paragraph of the reply of the court’s answer was unobjectionable, but the latter paragraph was- purely gratuitous and absolutely unnecessary. It was objected to, however, on the ground that it informed the jury as to the result of their verdict, and, if that be true, we fail to see that it in any way affected the result. The issues were simple, and no jury of even ordinary intelligence would fail to discover the effect of their answers on the judgment of the court. The desire seemed to be to have the form of the question changed so that they could find something in favor of a party who had disclaimed all interest in the land. The paragraph of which complaint is made did not have any effect on the verdict of the jury so far as Mrs. Eaville is concerned. The jury in effect informed the court that they found against Mrs. Eaville, hut desired to give-Mrs. Atchison one-third of the property. 1-Iow the language of the court could have been prejudicial to appellant is not apparent, and no effort is made to clear up the matter. There is nothing in the record that sustains the insinuation made by appellant that the jury indulged in any sympathy, or were influenced by prejudice against any one.

We have seen no case in which it is held that the action of a court, in informing a jury of the result of their answers to special issues would be ground for reversal. Three cases are cited by appellant, two decided by the Court of Civil Appeals of the First District, viz. Fain v. Nelms, 156 S. W. 281; Railway v. Hodnett, 182 S. W. 7. Patterson v. Bushong, 196 S. W. 962, was decided by the Ft. Worth court. In the Fain-Nelms Case, an attorney told the jury what the effect of their answers would be, and the court held that the argument was improper, but refused to reverse on that ground. The court said:

“We are inclined to the opinion that counsel only told the jury what they already knew, and we cannot believe that they disregarded the evidence and charge of the court, and were influenced by the argument.”

In the Hodnett Case again the argument of counsel was considered, but the court refused to commit itself on the subject.

The third case, Patterson v. Bushong, was decided by the Court of Civil Appeals of the Second District, and in it again the árgu- ■ ment of counsel was under consideration, and again the court declined to commit itself to the proposition that the argument was such error as to necessitate a reversal.

The only case coming under our consideration, in which the question before this court was directly decided is the case of Railway v. Casey, 172 S. W. 729, by the Court of Civil Appeals of the .Sixth District. In that ease the court submitted special issues to the jury, and then gave a general charge, informing the jury that they should find for one party under certain facts and for the other party under a different state of facts. The court in reply to the argument of counsel held:

“This argument is based upon the assumption that the jury would take into consideration the character and conditions of the parties to the suit, and would be moved by a feeling of sympathy for the plaintiff. It may be that in controversies of this character such emotions do sometimes control the verdicts of juries; but, in the absence of some evidence to that effect, we cannot assume that such bias and sympathy existed. The mere finding of facts favorable * * * is not sufficient when the evidence is of that character which warranted such finding. To gratuitously assume that a jury which has been properly tested and selected yielded to such sympathy, or was probably controlled by such emotions under such conditions, .is to impeach the system of trial by jury for being fundamentally unreliable. Where a general verdict is to be rendered, the jury are necessarily informed of what is required to be found in order to entitle either party to a judgment. Evidently the law does not contemplate that such information should be concealed from juries in order to insure absolute impartiality. The error, if any there was in giving this general charge, was harmless, and does not warrant a reversal of the judgment.”

The deed from Kate Robinson and Ada M. Atchison to Margaret Faville recited that it was executed in consideration of the sum of $1, love and affection, and other valuable considerations, and it was proper to allow testimony to explain the deed and show what the “other valuable considerations” were. As said by the Supreme Court of Kentucky, in Gully v. Grubbs, 1 J. J. Marsh. 387, 389, quoted in Devlin on Real Estate, § 830:

“A deed is not- conclusive evidence of everything which it may contain. For instance, it is not the only evidence of the date of its execution ; nor is its omission of a consideration conclusive evidence that none passed; nor is its acknowledgment of a particular consideration an objection to other proof of other and consistent considerations. And by analogy the acknowledgment in a deed that the consideration .„had been received is not conclusive of the fact.' This is but a fact. And testing it by the rationality of the rule which we have laid down, it may be explained or contradicted. It does not necessarily and undeniably prove the fact. It creates no right. It extinguishes none. A nelease cannot be contradicted or explained by parol, because it extinguishes a pre-existing right. But no receipt can have the effect of destroying, per se, any subsisting right. It is only evidence of a fact.”

In the Pennsylvania case, cited in a note to section 831, of Devlin on Real Estate, of McMullin v. Glass, 27 Pa. 151, an owner of land conveyed it to another, the deed, expressing a consideration in money, and acknowledging receipt of the consideration. The true consideration, however, was the parol agreement of a third party to devise to the grantor a certain farm, and such third person executed his will at the same time, making in it such a devise. The court held that the true consideration could be shown. The eighth, ninth, and tenth assignments of error are overruled.

The only evidence in this case to add to the consideration of the warranty deed made by Mrs. Robinson and Mrs. Atchison to Mrs. Paville is that of Mrs. Robinson and her husband. Her version is:

“I made this deed because my mother promised to make a will and deed me the place. ⅜ * * X will state that I did not get a dollar, nor any money, for signing this deed. I would not have signed this deed if my mother had not made the promise to make a will and deed me the place.”

Six years after the deed was executed to Mrs. Paville the latter made a will in which she devised to Mrs. Robinson all of her property, real and personal, that remained after paying her debts, upon condition that she pay Mrs. Atchison $1,000, and if such payment was not made in six months after the death of the testatrix, then one-third of the estate was devised to Ada Atchison, and the remainder to Kate Robinson. This is George G. Robinson’s version of the agreement with Mrs. Paville when the deed to her was executed:

“The agreement between Mrs. Faville and my wife was that if we would sign this deed, she would make a will and give her daughter the place, all of it. Mrs. Atchison was to get $1,-000, or get the value of the place at her death, at the last — she was to get the full value of one-third; in other words, at the time of the making of the deed my wife was to get a two-thirds interest, and Mrs. Atchison was to get a one-third interest in money.”

Mrs. Paville and Mrs. Atchison denied that there was any agreement made with appellees as to devising the property to Kate Robinson. Mrs. Paville swore that she- executed the will because she was worried and harassed by Kate Robinson, and because she was afraid of her. She afterwards destroyed the will.

In this case no reason can be given for making a deed to Mrs. Paville with the understanding either that all of the land conveyed by deed should be devised to Kate Robinson as testified to by her, or that all of it should be devised to Mrs. Robinson charged with $1,000 in favor of Mrs. Atchi-son, if the donation feature is rejected, ex-eept it was with the intention upon the part of Mrs. Faville and Mrs. Robinson to obtain Mrs. Atchison’s part of the land or a large part thereof for nothing. None of the testimony shows that she knew anything about the secret understanding between her mother and Iiate Robinson. She in good faith made a donation to her mother of her interest, thinking that her sister was in good faith donating her part of the land to the mother. A fraud was perpetrated upon her, if the agreement alleged and sworn to by Mrs. Robinson was made because no reason was given for the agreement to devise the whole of the land to Mrs. Robinson, and none is apparent unless the agreement was made to deprive Mrs. Atchison of her interest in the land. It may be that she is perfectly satisfied with having parted with her title, but her satisfaction is based' on the hypothesis that she was assisting her mother, and that her sister had joined her in her kind purpose. Under the testimony of appellees, they and Mrs. Paville were guilty of a deception, and, instead of coming, as they are compelled to do in order to obtain redress, into a court of equity with clean hands, they came with the suspicion of fraud resting upon them. After the deed was made, if the testimony of appellees is true, Mrs. Paville had obtained no additional interest in the land, the only changes made by the deed being that Mrs. Paville was required to devise, the land, when originally it was not hers to devise, and provision was made to deprive Mrs. Atchison of her part of the property and give it to Mrs. Robinson.

While the evidence of Mrs. -Robinson sustained the allegations of the petition, the evidence of her husband was in several points in conflict with her testimony, and this conflict might not have any other influence, yet it would be a circumstance that would impair the clearness and satisfactory character of the evidence to prove a trust. Proof as to an express trust, as well as an implied or constructive trust, must be clear and satisfactory. Mead v. Randolph, 8 Tex. 191; King v. Gilleland, 60 Tex. 271. Not only was the evidence of the two plaintiffs contradictory and unsatisfactory, but it was absolutely denied by Mrs. Faville and Mrs. Atchison.

Why Mrs. Paville would desire to obtain one daughter’s share of the estate from her in order that she might give it to the other does not appear. Mrs. Robinson, it would seem, was amply repaid for her kindness to her mother by obtaining through the decree in the divorce suit twice as much of the property as her sister received, but she was not satisfied, hut wanted the whole of it. The evidence is too unsatisfactory to sustain the verdict. Dyess v. Rowe, 177 S. W. 1001.

The other assignments of error present matters not likely to arise on another trial and need not be considered.

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


author: PDEASANTS, C. J.

text:
    NORTH AMERICAN DREDGING CO. OF NEVADA v. STATE.
    (No. 7485.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 10, 1918.)
    1. Taxation <⅝=>593(3) — Actions foe Taxes —Ageeed Statement of Facts.
    An action for taxes was brought against the N. Company, and the petition alleged that defendant was incorporated under the laws of Nevada. Defendant answered under the name of the N. Company of Nevada without suggesting a misnomer. An agreed statement of facts stated that the defendant N. Company was organized under the laws of Nevada; that an inventory of property and statement of taxes attached thereto were made a part thereof; that the taxes in controversy were assessed by duly qualified and proper officers, and the assessment had been approved by the county commissioners’ court; that the taxes were unpaid; and that the property consisted of a dredging plant and its equipment, which were engaged in the performance of "a dredging contract in Galveston Bay in pursuance of the business of the defendant. The inventory mentioned indicated that it was made in the name of the N. Company of Texas, but there was nothing else to show that there were two companies of that name. Held, that, while the facts shown by the agreed statement were meager, they were sufficient to sustain a finding that the property rendered and assessed and upon which the taxes were due was the property of defendant and was duly rendered and assessed.
    2. Taxation <§=»593(3) — Actions foe Taxes— Ageeed Statement of FIacts.
    The statement in the agreed statement of facts that the property was engaged in the performance of a dredging contract in pursuance of the business of defendant was an admission that the property upon which the assessment was made was defendant’s property.
    3. Pleading <®^290(2) — Veb'ification — Necessity of Answeb undee Oath.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, subd. S, requires the answer to be verified, where it contains a denial of the execution by defendant of an instrument in writing upon which any pleading is founded and which is charged to have been executed by him or by his authority. Article 3710 provides that, when any petition or answer is founded in whole or in part on any instrument in writing, charged to have been executed by the other party, such instrument shall be received' as evidence without proof of its execution, unless the party by whose authority the instrument is charged to have been executed shall file his affidavit in writing denying its execution. Held, that an allegation in the petition that the taxes were duly and lawfully assessed and levied, as shown by exhibits thereto attached and made a part thereof, was, in the absence of a special exception, an allegation that the N. Company, against whom the suit was brought, made the rendition shown by one of the exhibits, and where defendant answered without objection to the name given in the petition, if 'the rendition was not made by it or its authority, it should have so pleaded under oath, and, having failed to make such a plea, could not deny that it made the rendition.
    4. Taxation <⅜»93(5) — Pbobebty Subject to Taxation — Peopeety of Noneesident.
    A state cannot levy taxes upon personal property of a nonresident temporarily within its borders.
    5. Taxation ®^98 — Peopeety Subject to ■ Taxation — Vessels and Boats.
    A vessel plying between ports of different states engaged in coastwise trade has its situs for taxation at the domicile of its owner, unless it has acquired an actual situs in another state. 6. Taxation <©=^593(2) — Actions foe Taxes— Burden of Peoof.
    Where a dredgeboat and its equipment, owned by a Nevada corporation, was in the state of Texas and rendered for taxation by the corporation, the burden was on it when sued for the taxes to show that the property was not taxable in Texas, which burden was not sustained where it did not appear how long the dredge had been in Texas or that it was ever used elsewhere than in the county where it was assessed, and it was only shown that the corporation’s business consisted of using its dredgeboats for dredging purposes in all navigable waters of the various states and in foreign countries and waters.
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by the State of Texas against the North American Dredging Company of Nevada. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Stewarts, of Galveston, for plaintiff in error. W. E. Cranford, Asst. Co. Atty., of Galveston, for the State.
   PDEASANTS, C. J.

This appeal is from a judgment of the court below in favor of defendant in error against plaintiff in error for the sum of $1,275.99.

The suit was brought by defendant in error against plaintiff in error to recover taxes alleged to be due by the latter for the year 1910. The case was tried in the court below upon the following agreed statement of facts:

“This action is based upon a real dispute between the parties herein, and in order to avoid the expense incident to the production in open court of testimony upon the various issues raised by the pleadings it is stipulated and agreed that the ease be tried wholly upon the following statement of facts in lieu of all other evidence:
“I. The defendant, North American Dredging Company, is a private corporation organized under the laws of the state of Nevada, and not elsewhere, and that it has never been a resident of the state of Texas, or had its domicile therein, or been by the laws of Texas authorized to do business in such state.
“II. The inventory of property and statement of taxes attached hereto ás Exhibits A and B, respectively, are by the terms of this stipulation made a part hereof, to be read as proof of all the matters of fact therein set out, except that nothing therein contained shall be considered as proof, or an admission on the part of the defendant of liability for the payment of the amount claimed or any i>art thereof.
“III. That the taxes in controversy rendered and assessed were so assessed by duly qualified and proper representatives of the state under proper authorization, and such assessment has. been approved by the county commissioners court of Galveston county, Tex.
“IV. That such taxes are unpaid, and the-institution of this suit for the recovery thereof has been duly authorized.
“V. That, with the exception of the automobile described in Exhibit A, heretofore referred to, all of the other property therein described, consisting of a dredge plant, machinery, pipe, equipment, etc., consisted of or were a part of the equipment of a movable seagoing dredgeboat plant, which dredgeboat was at all the times mentioned in the pleadings in this case engaged in the performance of a dredging contract in Galveston Bay in pursuance of the business of the defendant, which consists of using its dredge-boats for dredging purposes in all navigable waters of the various states of the United States, and in foreign countries and waters, and that the said dredgeboat and equipment had for its home port the domicile and residence of the defendant corporation, which was and is in the state of Nevada, and that it was pot under registry or enrollment by the collector of any port of the United States situated in the state of Texas. [Signed] H. H. Treaecar, Assistant County Atty., Attorney for the State of Texas. Stewarts, Attorneys for North American Dredging Co.
“Exhibit A. — Inventory of Property.
“Owned by North American Dredging Co. of Texas, and Rendered for Assessment of Taxes for the Tear 1911 by C. N. Hopkins to F. McC. Nichols, Assessor of Galveston County, State of Texas.
“List of Personal Property.
“Carriages, buggies, wagons, etc., auto 123, value $500.00.
“Value of all .property of companies and corporations other than the property hereinbefore enumerated, dredge plant, machinery, pipe, equipment, etc., $15,000.00.
“State of Texas, County of Galveston.
“I, C. N. Hopkins, do solemnly swear (or affirm) that the above inventory rendered by me contains a full, true, and complete list of all taxable property owned or held by me in my name for North American Dredging Company in this county, and personal property not in this county, subject to taxation in this county by the laws of this state on the 1st day of January, A. D. 1911, and that I have true answers made to all questions propounded to me touching the same; so help me God.
“[Signed] C. N, Hopkins,
“Secty., N. A. D. Co.
“Subscribed and sworn to before me this 27th day of Feby. 1911.
“F. McC. Nichols, Tax Assessor,
. “Galveston County.”

This suit was defended by the North American Dredging Company of Nevada on the grounds: First, that no assessment or rendition for taxation of its personal property having been made, it cannot be called upon to pay taxes thereon; second, that, the property of a non resident of Texas which has not acquired an actual situs in the state is not subject to taxation in Texas.

The first assignment of error assails the judgment on the ground that there has never been any assessment or rendition of the property of the defendant for taxes, and defendant cannot legally be required to pay taxes on unrendered and unassessed property.

The contention under this assignment is that the inventory and rendition of the property shown by Exhibit A, above set out, shows that the property rendered and upon which the taxes claimed in this suit were assessed was rendered as the property of the North American Dredging Cómpany of Texas, and, there being no evidence showing the assessment of property of this defendant, the North American Dredging Company of Nevada, appellee wq.s not entitled to recover.

The assignment cannot be sustained. The suit was brought against the “North Amer-ian Dredging Company.” The petition alleges that the defendant was incorporated under the laws of the state of Nevada, but the name of the corporation as alleged in the petition is “North American Dredging Company.” The appellant answered under the name of North American Dredging Company of Nevada. The answer does not suggest a misnomer of defendant, and there is nothing in the pleadings or evidence showing that there are two North American Dredging Company corporations, one having the name of North American Dredging Company of Texas, and the other North American Dredging Company of Nevada, further than the answer of the defendant, which states its name as North American Dredging Company of Nevada, and the statement in Exhibit A, above set out, iu which the name of the property rendered is given as the North American Dredging Company of Texas. Exhibit B, referred to in the agreed statement, is a copy of the assessment roll and shows that the property was assessed as the property of the North American Dredging Company.

While the facts shown by the agreed statement are meager, and the purpose of the agreement appears to have been to obscure rather than disclose the full truth in regard to- the ownership and rendition of the property, we think the facts shown are sufficient to sustain the finding of the court that the property rendered and assessed, and upon which the taxes herein claimed are due, was the property of the appellant, and was duly rendered and assessed. Article V of the agreed statement is, we think, an admission that the property upon which the assessment was made, as shown by Exhibit A, was the property of appellant.

We are further of opinion that the allegations in the petition that the “taxes were duly and lawfully rendered and assessed and levied, as shown by Exhibits A and B hereto attached and made a part hereof,” in the absence of a special exception, is an allegation that the North American Dredging Company, against whom the suit was brought, made the rendition shown by Exhibit A, and appellant having answered the suit without any objection to the name given in the petition, if the rendition was not made by it or its authority, it should have so pleaded under oath, and, having failed to make such plea, cannot be heard to deny that it made the rendition. Article 1906, subd. 8, Vernon’s Sayles’ Civil Statutes; article 3710, Vernon’s Sayles’ Civil Statutes. The second assignment complains of the judgment on the ground that the property upon which the taxes were assessed, being personal property of a nonresident and having no permanent or actual situs in Texas, was not taxable in this state. The agreed statement is as meager in its statement of facts upon this question as it is upon the question above discussed.

Having reached the conclusion above stated, that the facts are sufficient to sustain the finding that the property was rendered for taxes in Galveston county by the appellant, we do not think the facts stated in article V of the agreed statement are sufficient to show that the property did not have such an actual situs in this state as would make it taxable here. It is well settled that a state has no authority to levy taxes upon personal property of a nonresident temporarily within its borders. Hall v. Miller, 102 Tex. 294, 115 S. W. 1168. It is also well settled by the decisions of the Supreme Court of the United States that as a general rule a vessel plying between ports of different states engaged in coastwise trade has its situs for taxation at the domicile of the owner, unless such vessel has acquired an actual situs in a state other than that of its owner’s domicile. Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, 26 Sup. Ct. 679, 50 L. Ed. 1082, 6 Ann. Cas. 205; Southern Pacific Company v. Kentucky, 222 U. S. 63, 32 Sup. Ct. 13, 56 L. Ed. 96.

In the case of North American Dredging Co. v. Taylor, 56 Wash. 565, 106 Pac. 162, 29 L. R. A. (N. S.) 105, it was held that a dredge which had been built in a harbor of one state and remained there two years had a taxable situs there, though its owner’s domicile was in another state.

The property was here and was rendered for taxation by the defendant, and if it could relieve itself of liability for taxes assessed on its voluntary rendition without pleading mistake, the burden was on it to show that the property was not taxable in this state.

It is not shown how long the dredge had remained here, not shown that it was ever used elsewhere than in Galveston county. It is stated that defendant’s business “consists of using its dredgeboats for dredging purposes in all navigable waters of the various states of the United States and in foreign countries and waters.” We think these facts fall far short of showing that the property did not have an actual situs in Galveston county.

Our conclusion upon the whole record is that the trial court did not err in rendering the judgment, and it is therefore affirmed.

Affirmed.
      (fc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■


author: PLEASANTS, C. J.

text:
    NORTH AMERICAN DREDGING CO. OF NEVADA v. STATE.
    (No. 7486.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 10, 1918.)
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by the State of Texas against the North American Dredging Company of Nevada. Judgment for plaintiff, and defendant brings
    Affirmed.
    Stewarts, of Galveston, for plaintiff in error. W. E. Cranford, Asst. Co. Atty., of Galveston, for the State.
   PLEASANTS, C. J.

This appeal is from a judgment of the court below in favor of defendant in error against plaintiff in error for the sum of $1,329.99.

The suit was brought by defendant in error against plaintiff in error to recover taxes alleged to be due by the latter for the year 1911. The case was tried in the court below upon the following agreed statement of facts:

“This action is based upon a real dispute between the parties herein and in order to avoid the expense incident to the production in open court of testimony upon the various issues raised by the pleadings it is stipulated and agreed that the case be tried wholly upon the following statement of facts in lieu of all other evidence:
“I. The defendant, North American Dredging Company, is a private corporation organized under the laws of the state of Nevada, and not elsewhere, and that it has never been a resident of the state of Texas, or had its domicile therein, or been by the laws of Texas authorized to do business in such state.
“II. The inventory of property and statement of taxes attached hereto as Exhibits A and B, respectively, are by the terms of this stipulation made a part hereof to be read as proof of all the matters of fact therein set out, except that nothing therein contained shall he considered as proof or an admission on the part of the defendant of liability for the payment of the amount claimed or any part thereof.
“III. That the taxes in controversy rendered and assessed were so assessed by duly qualified and proper representatives of the state under proper authorization, and such assessment has been approved by the county commissioners’ court of Galveston county, Tex.
“IV. That such taxes are unpaid, and the institution of this suit for the recovery thereof has been duly authorized.
“V. That, with the exception of the automobile described in Exhibit A, heretofore referred to, all of the other property therein described, consisting of a dredge plant, machinery, pipe, equipment, etc., consisted of or were a part of the equipment of a movable seagoing dredgeboat plant, which dredgeboat was at all the times mentioned in the pleadings in this case engaged in the performance of a dredging contract in Galveston Bay in pursuance of the business of the defendant, which consists of using its dredgeboats for dredging purposes in all navigable waters of the various states of the United States, and in foreign countries and waters, and that the said dredgeboat and equipment had for its home port the domicile and residence of the defendant corporation, which was and is in the state of Nevada, and that it was not under registry or enrollment by the collector of any port of the United States situated in the state of Texas. [Signed] H. H. Treaccar, Assistant County Atty., Attorney for the State of Texas. Stewarts, Attorneys for North American Dredging Co.
“Exhibit A. — Inventory of Property.
“Owned by North American Dredging Co. of Texas, and Rendered for Assessment of Taxes for the Tear 1911 by C. N. Hopkins to E. McC. Nichols, Assessor of Galveston County, State of Texas.
“List of Personal Property.
“Carriages, buggies, wagons, etc., auto 123, value $500.00.
“Value of all property of companies and corporations other than the property hereinbefore-enumerated, dredge plant, machinery, pipe, equipment, etc., $15,000.00.
“State of Texas, County of Galveston.
“I, C. N. Hopkins, do solemnly swear (or affirm) that the Above inventory rendered by me contains a full, true, and complete list of all taxable property owned or held by me in my name for North American Dredging Company in this county, and personal property not in this county, subject to taxation in this county by the laws of this state on the 1st day of January, A. D. 1911, and that I have true answers made to all .questions propounded to me touching the same; so help me God.
“[Signed] C. N. Hopkins,
“Secty., N. A. D. Co.
“Subscribed and sworn to before me this 27th day of Feby. 1911.
“E. McC. Nichols,
“Tax Assessor, Galveston County.”

This suit was defended by the North American Dredging Company of Nevada on the grounds: First, that no assessment or rendition for taxation of its personal property having been made, it cannot be called upon to pay taxes thereon; second, that the property of a man resident of Texas which has not acquired an actual situs in the state is not subject to taxation in Texas.

The first assignment of error is as follows:

“The court erred in rendering judgment for the plaintiff and against the defendant, for the reason that the evidence in the case conclusively proves that there has never been any assessment or rendition of the property of the defendant for taxes, and in the absence of such assessment or rendition the defendant cannot legally be required to pay taxes on such unassessed and unren-dered property.”

The second assignment is: “The court erred in rendering judgment for the plaintiff and against the defendant, for the reason that the judgment rendered is for taxes upon property having no taxable situs in the state of Texas.”

The questions presented by these assignments are identical with those presented and decided by this court in the Case of North American Dredging Company of Nevada, a companion case to this and this day decided by us. 201 S. W. 1065. For the reasons stated in the opinion in the case referred to we hold that both of the assignments above set out should be overruled.

No other assignment is presented. It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.