author: SWEARINGEN, J.

text:
    BRADY v. RICHEY & CASEY.
    (No. 5979.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 6, 1918.
    Rehearing Denied April 3, 1918.)
    1. Brokers <@=>88(2) — Trial—Questions for Jury — Employment oe Broker.
    There being sufficient evidence to sustain finding that defendant either impliedly or expressly employed the plaintiffs as brokers, through their representative, to lease his theater, a peremptory instruction for defendant in action for commission was properly refused.
    2. Brokers <@=>71 — Actions for Compensation — Judoment—Implied Contract.
    An express contract to pay brokers the reasonable value of their services in procuring a lease is unnecessary to support a judgment for commission which is supported by evidence showing an implied agreement therefor.
    3. Evidence <@=3553(3) — Expert Testimony-Value of Services — Hypothetical Question.
    The age, experience, and average monthly earnings of brokers’ representative are not facts to be considered in determining reasonable value of brokers’ services for work done largely by such representative, and a hypothetical question based thereon was properly excluded.
    4. Appeal and Error <@=>1003 — Review — Verdict against the WeIght of Evidence —Conclusiveness.
    Where there was evidence to sustain a ver■dict that the owner of a theater knew, or should have known, when accepting their services, in leasing theater, that brokers were his and not tenant’s agents, the verdict will not be set aside, although the preponderance of the evidence appears otherwise.
    5. Appeal and Error <@=>1051(2) — Harmless Error.
    Although it was error to admit the conclusion of a witness that when a broker negotiates a lease the owner passes upon responsibility of the tenant, yet, where the owner accepted tenant and was satisfied with rent contract, it was not reversible error.
    6. Brokers <@=>69 — Compensation—Trial-Verdict — Excessive.
    A verdict of 2 per cent, of 'the total rent of $270,000 for a theater for 15 years for broker’s compensation of leasing, where lease provided lessee could breach same on forfeiture, of $9,000 deposited, and owner testified services were worth $13,500 if rent for full time should be paid, is not excessive.
    7. Brokers <@=>88(13) — Action for Compensation — Trial — Instruction — Employment and Right to Compensation.
    The objection that an instruction requires a jury to find for a broker his commission for services, without requiring a finding that the services were rendered and accepted with expectation that owner would pay same, is without merit, where facts are such the law implies promise to pay reasonable value for such services.
    8. Trial <@=>252(4) — Instruction to Jury-Sufficiency of Evidence to Warrant Instruction.
    Instruction on the question of brokers’ agent being the agent of tenant in procuring a lease for landlord was properly refused, where there was no evidence on such question.
    9. Brokers <@=>88(9) — Actions for Compensation — Trial—Abandonment and ReEmployment After Commission Earned.
    The refusal of instruction that if after securing contract to make lease of theater, the landlord entered into a contract with brokers’ agent, etc., was not error, where the commission was payable to the brokers and not their agent, for such employment could not release the obligation for payment of commission.
    10. Brokers <@=>81 — Actions for Compensation-Parties.
    In action by brokers for commission for leasing landlord’s theater to tenant, because the evidence showed brokers’ agent was to get a part of the commission did not require his being made party plaintiff or limit brokers’ recovery, since he was not a partner.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Action by Richey & Casey against Thomas E. Brady. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Denman, Franklin & McGown, of San Antonio, for appellant. Boyle, Exell, Houston & Grover and Wm. C. Church, all of San Antonio, for appellees.
   SWEARINGEN, J.

This cause was reviewed and reversed by this court upon a former appeal. The opinion is reported in 187 S. W. 508. The pleadings and evidence are for all practical purposes the same as appeared in the record upon the first appeal, except that by a trial amendment appellees made the following allegations:

“That the said R. C. Hill as agent for these plaintiffs carried on negotiations for several months, by which he procured W. J. Lytle to lease defendant’s said property, with the full knowledge, consent, and approval of defendant, and said services and the benefits thereof were accepted by defendant with the understanding, express or implied, that defendant would pay plaintiffs the reasonable value thereof; that said services so rendered were and are of the reasonable value of $5,400, wherefore defendant became and is indebted to plaintiffs in the sum of $5,400 with interest thereon from and after September 10, 1014, at 6 per cent, per annum, and plaintiffs pray 'for judgment therefor as in their second amended original petition”

—and except that appellant by a 'third amended answer set up a plea in abatement, alleging that R. C. Hill was the owner of one-third interest in the claim sued for, and alleged a conspiracy to defraud appellant by concealing from him the intention to charge a commission for services until Mr. Brady signed the lease contract. Because the record before us is the same as that presented on the appeal from the first trial, we adopt the statement of the nature and result of the suit, the statement of the pleadings, with the exceptions above mentioned, and the findings of facts expressed in the opinion heretofore rendered by Mr. Justice Moursund, and for convenience quote them herein:

“R. A. Richey and L. A. Oasey, composing the firm of Richey & Casey, sued Thos. F. Brady for $5,400, with interest thereon at the rate of 6 per cent, per annum, alleging: That plaintiffs were engaged in the real estate rental and brokerage business in the city of San Antonio and in order to properly conduct the same were compelled to employ many agents; that defendant Brady is the owner of a certain building, a portion of which is adapted and intended for use as a theater; that ‘on or about February 1, 1914, plaintiffs, acting by and through one of their said agents and employes, to wit, R. O. Hill, were duly employed by said defendant, as his agent, by directly soliciting their services, by approving and participating in all negotiations and by agreeing to, acquiescing in, and accepting the benefits of said services and negotiations, to secure a responsible tenant under contract of lease for said theater, said lease to cover a period of 15 years, at a monthly rental of $1,500, payable in advance, the yearly rental of said theater being the, sum of $18,000, or for a total amount of $270,000 for the full term of said 15 years; that in pursuance of said employment by said defendant, plaintiffs acting by and through their said agent and employé, R. O. Hill, immediately proceeded to carry out the terms and conditions of their said employment by energetic negotiations for securing a tenant for said theater, under the terms and conditions and for the period of time for which the same was to be leased, said defendant participating in said negotiations, instructing said plaintiffs by and through said Hill how such negotiations should be conducted, said negotiations being directed at and confined to one W. J. Lytle, until on or about July 21, 1914, when plaintiffs, acting by and through said Hill, succeeded in successfully closing a contract in writing for the lease of said theater, the same being made and entered into by and between the defendant and the said Lytle, un.der the terms and conditions heretofore set out, to wit, at the rate of $1,500 per month for the full term of 15 years, said contract of lease being prepared by said plaintiffs, acting by and through said Hill, under the instructions and at the special instance and request of said defendant; that in pursuance of the provisions, conditions, and terms of said contract, on or about September 10, 1914, a formal lease was prepared by said Hill and signed by, and between said Lytle and. said defendant, Brady, embodying substantially the terms of said contract, whereby the said Lytle agreed and bound himself to lease said theater and did lease the same for a period of 15 years at an annual rental of $18,000, payable monthly in advance at the rate of $1,500 per month, and said lease since said date and now is in full force and effect.’
“Plaintiffs further alleged that ‘in addition to and irrespective of the solicitation, approval, acquiescence in, and acceptance of said services of plaintiffs as aforesaid, it is the usage and custom in transactions of the nature and character herein set out, to wit, in the rental, lease, or sale of real property, buildings, or otherwise by an agent or broker, that his commission or compensation therefor shall be paid by the owner of such property so rented, leased, or sold, unless by special agreement or understanding the same shall be paid by the lessee or vendee thereof, and plaintiffs specially allege that no such contract, agreement, or understanding was had in this instance by or with either said defendant or the said W. J. Lytle;’ that by reason of' said services so rendered by the plaintiffs the defendant became liable to pay the fair and usual commission and compensation for such services, and that the usual, reasonable, and customary fee is and was 2 per cent, of the amount due for the full period, namely, 2 per cent, of $270,000. Defendant’s answer consisted of a general demurrer, special exceptions, and denials of the material allegations of the petition. The trial resulted in a verdict and judgment in favor of plaintiffs for $5,400, with interest thereon at the rate of 6 per cent, per annum. * * *
“In deference to the verdict of the jury, we find that Brady, knowing Hill to be an employé of Richey & Oasey, who were engaged in the real estate and insurance business, expressly agreed to avail himself of Hill’s services for the purpose of procuring a lessee for the theater portion of his building for 15 years; that the conversations between them were of such character as to reasonably charge Brady with notice that Hill expected compensation for his services; that no inquiry was made by Brady with regard to the amount of compensation he would be expected to pay, nor was any statement made by Hill in regard to compensation until after the preliminary contract was signed; that Hill prepared the preliminary contract, which was approved by Brady and Lytle, and a meeting was then had at which it was signed by them; that the preliminary contract provided for various things to be done by Brady in preparing the theater for use and fixed September 19, 1914, as the last day upon which a final contract should be executed; that the final contract was prepared by Brady, who on September 10, 1914, reminded Hill that the final contract must be signed and asked him to bring Lytle to Brady, and Hill did so, whereupon the final contract was signed. Hill testified that after the preliminary contract was signed he told Brady he presumed the latter was then ready to pay the commission; that Brady first said he supposed Lytle was going to pay the commission, to which Hill replied that it was always customary for the owner to pay the commission; that he gave Brady a letter he had procured from the Real Estate Exchange stating what the customary commission would be, but Brady did not have his glasses and said he would read it later; that in the next conversation Brady said he would talk to Hill about the commission in a few days; that in the third conversation Brady said he did not think the matter of commission ought to be taken up until after the lease was signed, as the first was just a preliminary contract, and Hill said that would be agreeable; that after the final lease was signed he again broached the subject of commission, whereupon Brady complained of illness and asked Hill to see Mm at the end of the week; that he did so, and Brady put him off until the first of the next week, and at that time contended he ought not to pay a commission on the full 15-year lease because he did not know that the tenant would stay in the building; that they argued the matter for quite a while and Brady finally told him to come back in a few days; that finally Brady told him he thought it would be better to leave it to Richey & Oasey to suggest the basis for estimating commission, and for Hill to tell them to see Brady; that he notified Richey & Casey and had no further conversations with Brady. Richey & Casey took up the matter with Brady, but no agreement was reached. Richey & Casey contended for 2 per cent, on the amount which would be paid in the 15 years if the lease was kept in force, while- Brady contended that Lytle was not bound to carry out the lease, for there was a clause in the contract which permitted him to give it up by forfeiting $9,000.
“The final contract, in part, reads as follows: ‘Eor and in consideration of $9,000, the receipt of which is hereby acknowledged, first party this day agrees to lease to second party the theater, now in course of construction, at the corner of .St. Mary and College streets in this city for a term of 15 years beginning oh the date that same is completed and ready for oceu-paney and ending on the corresponding day in the year 1929, 15 years thereafter. Eor the use thereof second party is to pay $1,500 per month or $18,000 per year, paying the same monthly in advance. As a guaranty for the carrying out of the provisions of the lease contract second party shall deposit with the first party $9,000, on which deposit first party will pay 6 per cent, interest per annum, paying the same semiannually as it accrues. Said $9,000 to apply as the rent for the last six months of the lease contract if not forfeited under the. conditions therein specified. Should there at any time be any default in the payment of rent for five days from the date it is due or in any of covenants herein contained, then it shall be lawful for the first party to re-enter said premises and remove all persons therefrom without prejudice to any legal remedies which may be used for the collection of rent, all and every claim for damages for or by said re-entry being expressly waived, and should legal services be employed to collect any rents after default is made, then and thereupon 10 per cent, is hereby added to the rent or rents so defaulted for an attorney’s fees. And in the event of such default the guaranty of $9,000 shall at once become the property of first party as liquidated damages in full settlement for breach of the lease contract.’ The other portions are not deemed material in this suit. The preliminary contract contained the same language with reference to time of lease and the clause relating to default is almost a literal copy of a similar clause in the preliminary contract.”

There was no evidence to support the plea of fraud contained in the third amended answer.

The refusal of a peremptory instruction for appellant is complained of in the first assignment ; the proposition being that there is no evidence that Mr. Brady either impliedly or expressly employed Richey & Oasey or agreed to pay them the reasonable value of any services.

The wituéss R. O. Hill testified that he told Mr. Brady that he was with Richey & Oasey and that he knew of a party to whom he believed he could rent Mr. Brady’s theater, to -which Mr. Brady replied: “If you know of a party who you think will -rent it, go ahead and see what you can do with it.” Mr. Brady testified that when Hr. Hill returned to him the third time and reported that Mr. Lytle, the person whom he believed would rent the theater, refused to pay $18,000 a year, but would pay $15,000, then Mr. Brady gave Hill the following instructions: “Go back and make certain arguments to Lytle to show him what a superior theater this was to any other in San Antonio and * * * show Lytle how much finer this theater was than any other in San Antonio.” With' this instruction Mr.' Brady suggested illustrations and other arguments for Mr. Hill to use as inducements to persuade Mr. Lytle to rent the theater. Mr. Brady also told Hill: “Well, bring him (Lytle) up here and let me get a chance to talk to him.” Mr. Hill, together with Mr. Brady, prepared a rental contract for Mr. Lytle to sign, which contract was subsequently signed. Mr. Brady further testified: “The first time I ever saw Mr. Hill he might have told me he was with Richey & Oasey; * * * he might have told me when he came down there to talk to me about getting a tenant for this theater that he was with Richey & Oasey.” Again, Mr. Brady testified: “No, sir; I never at any time said to Mr. Hill that I was dealing with him as the representative of Mr. Lytle.” “When he (Hill) came with Mr. Lytle he never said anything about whether he was working for me or Mr. Lytle. No, sir; Mr. Lytle never stated to me in Mr. Hill’s presence that he was renting the building through Mr. Hill.”

In deference to the verdict of the jury, we find that the above testimony establishes the fact that Mr. Brady employed Richey & Oasey through their agent, R. O. Hill, to secure for Mr. Brády a renter for his theater. The first assignment is overruled.

The second assignment presents the following proposition:

“The verdict of the jury is contrary to the law and the evidence in this:
“(1) There is no evidence showing an express agreement between plaintiffs and defendant, binding defendant to pay to plaintiff the reasonable value of services rendered or to be rendered by plaintiff to defendant under such contract.
“(2) There is no evidence of any implied contract binding defendant to pay plaintiffs the reasonable value of any service plaintiffs may have rendered to defendant.
“(3) There is no evidence that plaintiffs ever rendered any service to defendant.
“(4) The undisputed evidence shows that if any services were rendered to defendant they were rendered by one R. G. Hill individually, without any express agreement between the said R. O. Hill and defendant, or between plaintiffs and defendant, and that defendant in receiving the services of said Hill did not know, or' have any reason to believe, that the services were being rendered for and on behalf of plaintiffs, and that plaintiffs expected to charge defendant for such services, and the undisputed evidence shows that Richey & Oasey is a real estate firm in the city of San Antonio of experience and standing in the community, and that on the other hand R. O. Hill is a young man with limited experience, and that at the time of the alleged services was working on a salary not exceeding $125 per month.
“(5) The undisputed evidence shows that R. O. Hill, who is not a party to this suit, had at and before the filing of this suit, and has ever since had, an undivided one-third interest in the claim for commissions sued upon by Richey & Casey in this suit, and the verdict for the full amount of $5,400. is not justified nor sustained therefor by any testimony in the case.”

The absence of evidence of an express contract to pay appellee the reasonable value of his services would not require the reversal of the judgment herein, for it is supported by the evidence of an implied agreement. Hall v. Southland Imm. Ass’n, 53 Tex. Civ. App. 592, 116 S. W. 831. The evidence is sufficient to justify the jury in finding that Mr. Hill was only the agent of Richey & Casey, and that Mr. Brady dealt with him as such and by an implied agreement engaged, through Mr. Hill, the services of Richey & Casey to secure a tenant for his theater. There were facts proven from which the law will presume that Mr. Brady expected and impliedly promised to pay Richey & Casey the reasonable value of the services promised and performed. The age and experience of Mr. Hill were immaterial to the issue of the reasonable value of the services rendered. The undisputed evidence shows that all of the claim for commissions belonged to the appellees, Richey & Casey. That they intended paying a portion of it, after collection, to Mr. Hill is not a matter that Mr. Brady can inquire into in this suit. San Antonio v. Reed, 192 S. W. 549; Cothran v. Marmaduke, 60 Tex. 370. The second assignment is overruled.

The third and fourth assignments complain of the refusal of the trial court to permit appellants to propound a hypotbétical question intended to elicit expert testimony as to the reasonable value of the services sued for herein. The court did not err in excluding the question, because the question included as elements to be considered in estimating the value of the services, the age, experience, and average monthly salary or earnings of appellees’ representative. The age, experience, average monthly earnings of the representative of the brokers or real estate agents, Richey & Casey, are not facts to be considered in determining the reasonable value of the broker’s commission for securing an accepted renter for Mr. Brady’s theater.

“In determining the reasonable value of'such services, the benefit to the defendant [Brady] labor performed, and time and money expended by plaintiff [Richey & Casey] should be considered.” Bond v. Hancock, 163 S. W. 660; Hall v. Southland Imm. Ass’n, 53 Tex. Civ. App. 592, 116 S. W. 831.
“The amount of compensation to which a real estate broker is entitled in the absence of a contract or usage fixing the rate, is to be determined by the end accomplished, and the time taken in procuring the sale [lease] is not the only thing to be considered.” Gracie v. Stevens, 56 App. Div. 203, 67 N. Y. Supp. 688.

The case last mentioned is cited as authority in the note in Ann. Cas. 1912A, 1267, and also in 4 R. C. L. § 67, note 8. Because the hypothetical question made the age, salary, and experience of the representative of Richey & Casey elements for determining the reasonable value of the services in securing the tenant for Mr. Brady, the court did not err in excluding the question. The third and fourth assignments are overruled.

The fifth assignment presents the following proposition:

“The court erred in refusing to give special charge No. 13, requested by defendant, as follows: ‘You are instructed that in estimating the value of the services rendered, if any, you may take into account the evidence of the amount of work, the experience and capability for the particular work of the persons rendering the services, if any, and the value of the results produced.’ ”

It was not error to refuse the above-mentioned charge, for the charge was erroneous in that it authorized the jury to consider “the experience and capability for the particular work of the person rendering the services,” none of which are proper elements to be considered by the jury in determining the value of the real estate broker’s commission. Bond v. Hancock, 163 S. W. 660. The fifth assignment is overruled.

It seems to us that one of the real substantive issues in the instant case is whether or not Mr. Brady realized that Richey & Casey, through their representative, R. C. I-Iili, were rendering services for him as his agents for which he was expected and bound to pay. Appellees alleged that they were employed by Mr. Brady to act as his agents for securing a tenant for his theater. Appellant denied this and alleged that he dealt with appellees, through their representative Mr. Hill, as the agent of Mr. Lytle and did not recognize them as his agents. The undisputed evidence is that Richey & Casey were not, in fact, the agents of Mr. Lytle, the renter.

There is evidence which seems to us sufficient to sustain the verdict that appellees were in fact acting as the agents of Mr. Brady, and that Mr. Brady did know, or ought to have known, this at the time he accepted the service and the benefit of that service. There is, however, very persuasive tes-’ timony that Mr. Brady did not realize that appellees were representing him, but dealt with them as the agents of Mr. Lytle, the renter, and that it never occurred to him when dealing through them that he was incurring any obligation to pay for the services. The testimony upon the issue above stated does not seem to us to show a preponderance in favor of the appellees; but the jury found that it does, and, as there is evidence to sustain the verdict, we are bound by it. The issue, with slight variations, appellant endeavored to have affirmatively submitted as a defense in his behalf and from his standpoint, by requesting the submission of the fourth, sixth, seventh, eighth, and ninth special charges, all of which were refused. Undoubtedly appellant had the right to require the trial court to submit to the jury affirmatively the group of facts constituting the above-mentioned issue upon which his defense was founded. M., K. & T. Ry. v. McGlomory, 89 Tex. 635, 35 S. W. 1058; Wichita Falls Traction Co. v. Adams, 183 S. W. 155. A careful examination of the fourth paragraph of the general charge given by the trial court convinces us that the issue above set out was fully and affirmatively submitted to the jury from appellant’s point of view. We therefore overrule the sixth, seventh, eighth, ninth, and tenth assignments, which present as error the refusal of various special charges submitting the defensive issue of appellant herein discussed.

The eleventh assignment complains of the admission, over objection, of the following testimony:

“When a real estate agent negotiates to obtain a tenant for the .owner of a building, does the owner pass on the responsibility of the tenant?
. “The owner passes on the responsibility.”

The question calls for, and the answer is, a conclusion of law, which is not made an issue in this suit. However, as the undisputed evidence shows that the tenant was accepted by Mr. Brady, and as he was perfectly satisfied with the rent contract and the tenant, we cannot say the error is sufficient to justify a reversal of the judgment. Rule 62a [149 S. W. x]; Brady v. Richey & Casey, 187 S. W. 512. The eleventh assignment is overruled.

The twelfth assignment presents no error. Mr. Brady’s liability did not depend upon his own manifestations by word or act. The facts constituting his liability were found by the jury upon a correct general charge. The twelfth assignment is overruled.

The thirteenth assignment complains that the verdict is excessive, in view of the clause in the rental contract which provides that if the contract is breached by Lytle at any time a deposit of $9,000 made by Mr. Lytle with Mr. Brady will be forfeited and will be paid in full settlement of any damages growing out of said breach. The lease obligated Mr. Lytle to pay $1,500 a mouth or $18,000 a' year for 15 years, a total' of '$270,000. The verdict was for $5,400, which was 2 per cent, of the $270,000. The court in the fifth paragraph of its general charge instructed the jury that the lease contract may run for 15 years, but that the lessee, W. J. Lytle, may cancel the contract of lease at any time upon forfeiting to the lessor, Brady, the sum of $9,000, and charged the jury that it could take into consideration the terms of the lease in fixing the value, if any, of the services rendered. Without any testimony by experts of the reasonable value of the services, the jury was authorized to determine that value. Hall v. Southland Imm. Ass’n, 53 Tex. Civ. App. 592, 116 S. W. 831. The record reveals an abundance of testimony from expert witnesses that the reasonable value of the services rendered was $5,-400. Mr. Brady himself testified that the services were worth $13,500 if the $18,000 should be paid according to the lease for the 15 years. We cannot say that the evidence fails to sustain the full amount found by the jury. We overrule the thirteenth assignment.

The above discussion also disposes of the fourteenth assignment, which is overruled.

The basis of the fifteenth assignment is the following objection to the second paragraph of the trial court’s general charge:

“Defendant objects to the second paragraph of said charge because it requires the jury to find a verdict for the plaintiffs without requiring them to find that the services therein described were rendered with and accepted with the expectation that defendant should pay for same, or were rendered in connection with such acts and circumstances that a reasonable man would infer therefrom that defendant should pay for same.”

The paragraph of the general charge criticized is:

“(2) You are further instructed that if you. believe from the evidence that R. O. Hill was the regularly constituted agent of the plaintiffs, Richey & Casey, and that same was known to the defendant, Thomas P. Brady, at all times during the negotiations testified about, and if you further believe from the evidence that said defendant, Brady, by words, acts or conduct, if any, authorized said Hill to act for him, the said Brady, in procuring W. J. Lytle as a tenant for his theater, if you find that he did, and if you further believe from the evidence that through the acts and negotiations of said Hill, said Lytle executed said contract of lease introduced in evidence, then you are instructed that your verdict must be for the plaintiff.”

The law implied a promise to pay for such services rendered under the circumstances pleaded and proven in this case. As stated by Mr. Justice Moursund in disposing of the former appeal of this case:

“Plaintiffs alleged an express agreement that the services should be rendered, by stating that defendant directly solicited their services to make the lease, and alleged an implied agreement, by stating facts showing a conscious appropriation by defendant of their labors. In either case, the compensation not being agreed upon, the law implies a promise to pay a reasonable amount.”

The second paragraph of the general charge was not incorrect. The fourth paragraph of the charge instructed the jury upon the same issue, but affirmatively for the appellant, and embraces all that appellant was entitled to under the pleading, proof, and law. The fourth paragraph is not in conflict with the second paragraph. The principle announced in the case of M., K. & T. Ry. v. Mills, 65 S. W. 75, is that a charge which makes an incorrect statement of the law in one paragraph is not cured by a correct statement of the law in a subsequent paragraph of this same charge. The vice is that the two paragraphs in such a charge are conflicting and therefore confusing. The general charge in the present case contains no contradictory statements of the law. The fifteenth assignment is overruled.

The three objections to the first paragraph of the general charge, the overruling of which is urged as error in the sixteenth assignment, are without merit because, contrary to the first criticism, there was evidence to justify the said paragraph; the second criticism has been discussed and answered in our discussion of the fifteenth assignment, and the third criticism is untenable for the reasons given by us in our discussion of the fifth paragraph of the second assignment. The sixteenth assignment is overruled.

The seventeenth assignment urges that the fourth paragraph of the general charge was error because there was no evidence to authorize it, and that the court therein did not limit the jury in its deliberations to the acts and circumstances known to appellant. We think there was evidence requiring the charge objected to. The second criticism is without merit. We overrule the seventeenth assignment.

Considering the eighteenth assignment. Because there is no evidence that R. C. Hill was the agent of W. J. Lytle in the negotiations for the lease of Mr. Brady’s theater, the special charge No. 3 was properly refused. There was evidence that Mr. Brady thought Mr. Hill was the representative of Mr. Lytle, and dealt with him as the agent of Mr. Lytle. To this Mr. Brady clearly testified. This issue was submitted, and determined against appellant. But no one testified that Mr. Hill was in fact the agent of Mr. Lytle. The eighteenth assignment is overruled.

The nineteenth assignment contends that the court erred when it refused the following special charge:

“You are charged that the contract introduced in evidence dated in July, 1914, is an agreement between Brady and Lytle, that a lease contract between the two for the Empire Theater will be thereafter entered into, and if you believe from the evidence that after the execution of that instrument R. C. Hill entered into the employ of the defendant Brady at a salary to manage and rent the Brady Building, then in no event would plaintiffs be entitled to recover of defendant, Brady, for any services rendered by said R. C. Hill to said Brady thereafter rendered in securing final contract of lease between said Brady and Lytle of the Empire Theater.”

The refusal of this was not error, because Mr. Brady owed no commission to R. C. Hill; the commission was payable to Richey & Casey. That Mr. Brady employed Hill after the preliminary contract for the lease was signed,by Mr. Brady and Mr. Lytle could not release Mr. Brady from his obligation to pay Richey & Casey the commission. Ross v. Moskowitz, 95 S. W. 87; Martin v. Jeffries, 172 S. W. 151. The nineteenth assignment is overruled.

The alleged errors presented in the twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth assignments all concern the contention, viz.: That because the evidence developed that R. C. Hill would receive from Richey & Casey, as a part of his compensation, one-third of any amount the latter recovered from Mr. Brady, therefore Hill was a joint owner of the claim, and should have joined in the suit as a party or, if not, that Richey & Casey’s recovery should have been limited to two-thirds of the entire claim. If Mr. Hill was an equal partner of Richey & Casey, or if he was an owner of one-third of the claim against Mr. Brady, the rule of law announced in the authorities cited by appellant would have applied to the facts 'of the case here reviewed; but the facts do not bring this case within the doctrine relied upon. The undisputed evidence shows that Hill was only a clerk or agent of the firm of Richey & Casey. As such agent, he was not the owner of any part of the commission due on the Brady-Lytle transaction. All the commission was owned in equal parts by Richey & Casey. The relationship of principal and agent between the firm of Richey & Casey and R. C. Hill being unequivocally established, it follows that the agent, Mr. Hill, had no such ownership in the claim against Mr. Brady as would permit Hill to be joined in the suit. There was no privity of contract between Mr. Hill and Mr. Brady. The authorities cited by appellee announce the rule applicable to the facts of the present case. Cothran v. Marmaduke, 60 Tex. 370; Stevens v. Gainesville Nat. Bank, 62 Tex. 499; Grabenheimer v. Rindskoff, 64 Tex. 49; Brackenridge v. Claridge, 42 S. W. 1005; Texas & Pac. Ry. v. Smissen, 31 Tex. Civ. App. 549, 73 S. W. 42; McBrayer v. Smith, 145 S. W. 1053; Mo. Pac. Ry. v. Johnson (Sup.) 7 S. W. 838; Brady v. Richey & Casey, 187 S. W. 508; City of San Antonio v. Reed, 192 S. W. 549-553. The twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth assignments are overruled.

The judgment is affirmed.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    THOMPSON v. THOMPSON.
    (No. 8070.)

    (Court of Civil Appeals of Texas. Dallas.
    March 2, 1918.
    Rehearing Denied March 30, 1918.)
    1. Infants <&wkey;92 — Action by Parent — An- ' NULMENT OF MARRIAGE,.
    A petition, wherein a parent sued to annul the marriage of his minor son, held to have been instituted by the parent as next friend, although the son was named as a defendant, and the parent sought certain relief in his own behalf.
    2. Infants <&wkey;78(7) — Action by Parent to Annul Marriage of Child.
    A parent, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2167, relating 'to suits by minors, can bring an action, if in good faith, as next friend to annul a marriage of a minor son.

      3. Appeal and Error @=3837(4) — Matters Re viewable — Record.
    On appeal from an order granting a temporary injunction, the answer of the defendant, not filed at the time of the granting-of the injunction, cannot be considered.
    4. Statutes @=>281 — Foreign Statutes — Pleading and Proof.
    Where it was not alleged that a parent had authority to sue to annul the marriage of a minor child under the laws of another state, such fact cannot be shown.
    5. Evidence @=>80(1) — Foreign Statutes — Presumptions.
    In the absence of pleading and proof, the statute law of another state will he presumed to be the same as the law of the forum.
    8. Marriage @=>3 — Procedure—Questions Affecting Remedy.
    The question of a father’s right to maintain a suit in his own behalf to annul the marriage of his minor son is one affecting the remedy, and is governed by the law of the forum.
    7. Marriage @=>54 — Validity—Statutes.
    Statutes regulating mode of entering the marriage relation, as to consent of parents and requirement for license, are merely directory, and noncompliance therewith does not affect the validity of a marriage, except where the statutes expressly declare a marriage in violation thereof shall be a nullity.
    8. Appeal and Error @=>907(3) — Matters Revie,wable — Findings op Fact.
    AVhere, in granting prayer for temporary restraining order in action to annul a marriage, the court stated that the petition and proof had been considered, allegations that marriage in another state obtained through false representations as to age was invalid must be taken as true on appeal, where there was no statement of facts.
    9. Marriage @=>3 — 'Validity op Marriage— What Laws Govern.
    The law of the state in which a marriage was celebrated generally affords the criterion for testing its validity.
    10. Marriage @=>58(7) — Validity—Fraud-Mi SREPRESENTATION.
    Where consent of a party to a marriage is gained by conspiracy, fraud, and misrepresentation of material facts, the marriage can be annulled.
    11. Marriage @=33 — Validity—Necessity por Coition.
    That there was immediate separation and no coition .does not affect the validity of a ceremonial marriage.
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Suit by J. A. Thompson, in his own behalf and as next friend of his minor son, William Thompson, against Mrs. Anna Lee Thompson, nSe Anna Lee Matthews, and others, to annul a marriage. From an order restraining defendants from communicating with or approaching the minor, the named defendant appeals.
    Affirmed.
    Callicutt & Johnson, of Corsicana, and Crane, Crane, Adams, Stennis & Crane, of Dallas, for appellant. Richard Mays, of Cor-sicana, and Etheridge, McCormick & Brom-berg, of Dallas, for appellee.

       Judgment modified on second motion for rehearing 203 S. W. 939.

   TALBOT, J.

J. A. Thompson, in his own behalf, and as next friend of his minor son, William Thompson, instituted this suit to have the marriage of the said William Thompson with the appellant, Anna Lee Thompson, née Anna Lee Matthews, annulled, and to obtain an injunction restraining and prohibiting the appellant, her attorneys, agents, and employés, from having any communication, dealings, or transactions of any character whatever with the said William Thompson, and from having a communication with him by letter, telegram, or signs “under the pains and penalties of the law.” W. A. Jones, who is charged with having issued the marriage license by authority of which the said William Thompson and Anna Lee Matthews were joined in marriage, was also made a party defendant. In the first paragraph of the petition J. A. Thompson styled himself “plaintiff herein,” and complains of “defendants herein, W, A. Jones and William Thompson and Anna Lee Matthews.” In the second paragraph of the petition the said J. A. Thompson, as plaintiff, alleges that William Thompson is his infant son under the age of 21 years, and that plaintiff is not only his natural guardian and charged by nature with his training, nurture, and welfare, but also by law is vested with the right and authority to control, direct, and avoid his acts and contracts, and to control him in his attempted effort to enter the marriage state. It is further alleged in this paragraph of the petition as follows:

“And in this connection, and in the event that such shall be necessary, plaintiff in the alternative is joined herein by the said William Thompson, as plaintiff, against the remaining defendants, and plaintiff J. A. Thompson brings this suit in his own behalf, in virtue of the relationship aforesaid, and also brings it for and in the capacity of next friend for said William Thompson.”

Following the foregoing allegations, it is. charged that the defendant Anna Lee Matthews is an infant under 18 years of age; “that while the said William Thompson is physically developed commensurate with his age, yet his mental development had not advanced in keeping with his physical, growth; that as is often the case with children, he is confiding in his nature and unsuspecting, and in the material affairs of1 life he is unsophisticated and incapable of exercising an intelligent discretion; that the-said William Thompson, without the knowledge of plaintiff or his family formed, as plaintiff is now advised, an attachment for-the said Anna Lee Matthews, but with no Intention of undertaking to enter the marriage-relation with her; that the said William Thompson was subjected to the influence of a conspiracy, formed by the said Anna Lee-Matthews with others, and said Anna Lee-Matthews and her conspirators, taking advantage of the want of intelligent discretion, and the unsuspecting nature of the said William Thompson, and by resort to. their impor-tunities, persuaded and induced the said, William Thompson to attempt t.o, enter the-marriage state with the said Anna Lee Thompson, and thereby induced the said William Thompson to consent thereto; that the said conspirators, operating upon and in connection with the said William Thompson clandestinely and without the knowledge and consent of plaintiff or of his mother, secretly and by false representations fled the state of Texas to the state of Oklahoma for the purpose of attempting to consummate, the purpose of said conspiracy.” The petition further charges, in substance, that after said parties reached Durant, Bryan county, Okl., with and upon the aid and advice of the conspirators, a fraud was perpetrated upon the rights of plaintiff, the laws of Oklahoma and Texas; that said fraud was this: That one or all of said conspirators represented to the county clerk of said Bryan county, or to a deputy in his office, and made affidavit, which was signed by one or all of said conspirators, that the said William Thompson was more than 21 years of age, and the said Anna Lee Matthews more than 18 years of age, which representation and affidavit were false; that as a result of said false representation and affidavit the clerk issued a marriage license to said William Thompson and Anna Lee Matthews authorizing certain .named authorities to unite them in marriage, and that by virtue of said fraudulent marriage license they were married; that it was and is necessary to a valid marriage to lawfully obtain a marriage license in the state of Oklahoma as well as in the state of Texas; that but for the false affidavit and representation the clerk would not have issued the marriage license to the said William Thompson and Anna Lee Matthews, and said pretended marriage ceremony could not and would not have been performed; that by reason of the fraud alleged said marriage was and is void. It is further alleged that a few hours after the pretended marriage plaintiff intercepted said conspirators and took the said William Thompson to his home, and the said Anna Lee Matthews to her home, and that there has not been any cohabitation between them; that by reason of the fact that the said William Thompson was under 21 years of age, and the said Anna Lee Matthews was under 18 years of age, each was without power to make a valid contract of marriage, and such undertaking was forbidden by law, and independently of the said false affidavit and representations and fraud referred to said pretended marriage is null and void. Plaintiff further alleged that the conspiracy charged was “still active,” and that unless prevented by the court it might result in an attempt to force if possible the assumption of the marriage relation between the said William Thompson and Anna Lee Matthews, and to prevent which plaintiff is - without adequate remedy at law, and that plaintiff and the said William Thompson will sustain irreparable injury, unless the relief prayed for is granted. The prayer, in which it is stated William Thompson joined, was that plaintiff have judgment annulling the marriage between William Thompson and Anna Lee Matthews; that a writ of injunction directed to Anna Lee Matthews and those acting in conspiracy with her and to. her attorneys, agents, and employSs enjoining, restraining, and prohibiting them and each of them from communicating, as stated in the former part of this opinion, with the said William Thompson. Plaintiff also, prayed that a writ of injunction likewise is-, sue to the said William Thompson restraining and prohibiting him in like manner and to the same extent from having any commu> nication whatever with the said Anna Lee Thompson. There was the further prayer, in which it is stated that the said William Thompson joined:

“For all such further relief, both general and special, as plaintiff may show himself entitled to either in his individual capacity or as next friend of the said William Thompson.”

The plaintiff’s petition appears to have been filed January 3, 1918, and on that day presented to Hon. H. B. Daviss, district judge, who, without notice to either of the. defendants, indorsed thereon the following order:

“Corsicana, Texas, January 3, 1918.
“In Chambers. This petition for injunction, together with proof in support thereof, presented and considered by me. It is ordered that the district clerk of Navarro county, Texas, will issue the writ as prayed for when plaintiff files with him a good and sufficient bond in the sum of one thousand dollars, conditioned and approved as required by law. It is further ordered that the clerk shall incorporate a true copy of this order in said writ of injunction; and it is ordered that the sheriff of Navarro county, Texas, shall immediately serve same, and make, due return thereof as required by law.”

This order was signed by said judge in his official capacity. The writs of injunction as prayed for by plaintiff in his petition and as, ordered by the court were issued and served on the said William Thompson and Anna Lee Matthews on January 3, 1918. After the. issuance and service of the writ of injunction upon Anna Lee Matthews and on the 9th day of January, 1918, she filed a lengthy answer, to plaintiff’s petition, as appears from a copy thereof sent up in the transcript, and within the time and in the manner prescribed by law, perfected an appeal from the said order of the district judge to this court.

The appellant insists, in effect, that it is manifest from the allegations of the petition that the appellee did not institute this suit as the next friend of his son, William Thompson, and that he had no right to. bring it to annul the marriage, even though the defendant Anna Lee Thompson and others enticed the said William Thompson into the marriage by frand; that only the. party to a marital contract can bring, suit to annul it. It may be conceded that the petition is, an unusual or anomalous one, but we are. constrained to hold against the view that it cannot he said from the record before us that the suit is prosecuted by the father of William Thompson as his next friend. It is true, as shown in our statement of the nature of the ease, that in the first paragraph of the petition William Thompson, the son, is made a party defendant, and J. A. Thompson, the father, appears to be the plaintiff suing alone in his own behalf; but as evidencing some doubt of his right to so maintain the action he says, in the second paragraph of the petition:

That “in the event that such shall be necessary, plaintiff in the alternative is joined herein by the said William Thompson as plaintiff against the remaining defendants (who are the appellant and W. A. Jones), and plaintiff, J. A. Thompson, brings this suit in his own behalf, in virtue of the relation aforesaid, and also brings it for and in the capacity of next friend for said William Thompson.”

If, as contended by appellant, J. A. Thompson was not authorized to institute and maintain the suit in his own right to annul the marriage of his son with the appellant, still he could maintain the suit for and in behalf of his minor son as next friend, and the fact that he sought to maintain it in the dual capacity mentioned, and that there are some allegations made and relief asked which are inconsistent with the idea that William Thompson is a party plaintiff, would not militate against or affect such right. The inconsistencies referred to may be accounted for on the ground that appellee seeks to maintain the suit in his own behalf as well as in behalf of William Thompson. William Thompson, so far as the record shows, had not been emancipated by his father, and while article 4628, Vernon’s Sayles’ Civil Statutes, provides that every female under the age of 21 years, who shall marry in accordance with the laws of this state, shall from and after the time of such marriage be deemed to be of full age, etc. No such statute has been found declaring a male under 21 years of age emancipated by his marriage. We do find, however, express statutory authority for the maintenance of suits by a minor by next friend. Article 2167 of Vernon’s Sayles’ Statute provides that any minor having a sufficient cause of action, and who has no legal guardian, can bring suit in any of the courts of this state by next friend. We are unable to escape the conclusion that the allegations of the appellee’s petition are sufficient to show a suit for and in behalf of his minor son, William Thompson, by him as next friend. It is alleged that appellee is joined in the suit by William Thompson; the effect or fair construction of which is, that the suit is prosecuted by the consent of William Thompson, and that he was a voluntary party to it, by and through his next friend J. A. Thompson. Suits in behalf of minors by next friend has been a common practice in this state, and, as correctly said in Railway Co. v. Lemons, 152 S. W. 1189:

“By the common law, and in this state by statute, a father may act as next friend for his minor child in the prosecution of suits in the child’s interest, and the' courts, generally speaking, will give effect to the acts of the next friend, when done in good faith.”

The allegations of the petition in this case are sworn to by the appellee, and there is absolutely nothing in the record which can be considered by this court on the present 'appeal, controverting them, or which shows that in the institution and prosecution of the suit, the appellee was not actuated by the utmost good faith, whether he was or not. There is no statement of facts in the record, and the answer of appellant was not before the district judge when the order granting the injunction was made, and, under several decisions of our appellate courts, cannot be considered here. City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Jelinek v. State, 52 Tex. Civ. App. 402, 115 S. W. 908; Houston Electric Co. v. Glen Park Co., 155 S. W. 965. The appellee’s petition, sis hereinbefore shown, was filed on January 3, 1918; the injunction was granted and issued on that date, whereas the answer was not filed until January 9, 1918.

The views expressed render it unnecessary for the purposes of the appeal for this court to definitely determine whether or not the appellee, J. A. Thompson, by reason of the relationship existing between him and William Thompson, was authorized to bring and maintain this suit in his own right. We will say, however,, that we are inclined to the opinion that he was not, and much authority is cited by appellant and may be found sustaining this view. In some jurisdictions statutory provision has been made allowing parents to sue to annul the marriage of a minor child, but there is no such1 statute in this state.

The contention of appellee that, since his son William Thompson, from want of age and understanding, was incapable of contracting marriage, he (appellee), as his father, was authorized by the statute of the state of Oklahoma, where the marriage was celebrated, to bring and maintain this suit in his own name for the purpose of declaring the marriage with the appellant void, cannot, at least in the present state of the record, be sustained.' There is no allegation in the petition that such authority was conferred by the statute of Oklahoma, and without such allegation proof of such statutory authority could not furnish' a basis for the conclusion that such was the law of that state. A judgment or material finding must be supported by both allegations and proof. In the absence of allegation and proof the statute law of another state will be presumed to be the same as the law of the forum. As said, there is no statute in this state authorizing a father to maintain a suit in his own name and right to annul the marriage of his minor child. But at any rate we regard the question of the father’s right to maintain a suit in his own behalf to annul the marriage of his minor son as one affecting the remedy and governed by the law of the place when such _suit is brought. A review of the authorities establishing the rule and a statement of the reasons given therefor we deem unnecessary at this time.

Having held that we would not, in view of the uncontroverted allegations of the appellee’s petition, be warranted in saying that this was not a suit authorized and prosecuted by the appellee as next friend of William Thompson, the questions whether or not the allegations of the petition are sufficient to show a cause of action for the annulment of the marriage by William Thompson and to justify the action of the district judge in granting the temporary injunction prayed for arises and must be determined. We have reached the conclusion that these questions should be decided favorably to appellee. This is true, we think, regardless of the allegations that William Thompson was a minor, and that he married the appellant, Anna Lee Matthews, without the consent of his parents. It is the well-established general rule that statutes regulating the mode of entering into, the marriage relation including the consent of parents and provisions requiring that a license be obtained before performance of the marriage ceremony, are merely directory, and that, although marriage is entered into otherwise than in accordance with the provisions of such statutes, it is nevertheless a valid marriage. 18 Ruling Case Law, §§ 18, 19. This general rule must of course yield to an express declaration of a statute that the marriage of a minor without consent of parents or other requirements thereof shall be a nullity. But in addition to the allegations that William Thompson was a minor, and that his marriage with appellant was without the consent of his parents, it is alleged, in effect, that it was necessary to a valid marriage under the law of Oklahoma to lawfully obtain a marriage license in that state authorizing its celebration; that the marriage license for the celebration of the marriage between William Thompson and the appellant, and by virtue of which the marriage ceremony was performed, was procured by a false affidavit and representations made by one or more of certain conspirators seeking to bring about such marriage; that the said William Thompson was over 21 years of age and the appellant over 18 years of age; that but for such false affidavit and representations said license could not have been legally issued and said marriage ceremony could not and would not have been performed.

These allegations, which must be considered as true by this court for the purposes of this appeal in the condition we find the record, that is, since the judge in his order granting the injunction declares that proof was heard in support of said allegations, ana everything must be presumed, in the absence of a statement of facts, in favor of the correctness of the judgment rendered (Sutherland v. Cabines, 146 S. W. 331; Kell Milling Co. v. Bank, 168 S. W. 46), show the law of the state of Oklahoma on the subject to which they relate, show that the marriage license under which the marriage ceremony uniting William Thompson and Anna Lee Matthews, the appellant, in marriage were obtained, not lawfully, but unlawfully, in violation of the law of Oklahoma, and declares that by reason thereof such marriage was invalid. According, then, to these allegations, the statute of the state of Oklahoma expressly declares that a marriage of a minor celebrated by authority of a marriage license obtained unlawfully, that is, by a false affidavit and representations, is invalid and presents an exception to the general rule stated above to the effect that ordinarily provisions of a statute simply regulating the mode of entering into the marriage relation and requiring the issuance of a license authorizing the performance of the marriage ceremony are directory merely, and that, although a marriage entered into otherwise is nevertheless a valid marriage. There is no allegation in appellee’s petition that William Thompson made the alleged false affidavit by which the license authorizing his marriage to appellant was obtained, nor does it appear in any manner, subject to the consideration of this court, that such' affidavit was made with the free consent or acquiescence of the said William Thompson. That the law of the state in which a marriage was celebrated generally affords the criterion for testing its validity is so well recognized and universally conceded that the citation of authority in support of the rule is unnecessary.

Again, as grounds for annulling the marriage in question, it is alleged / in substance, as has been seen, that the mental development of William Thompson has not advanced in keeping with his physical growth; that like a child, he is confiding in his nature and unsuspecting; that in the material affairs of life, he is (unsophisticated and incapable of exercising an intelligent discretion; that he formed an attachment for the appellant, but had no intention of entering the marriage relation with her; that shortly before his marriage with her, he began to be and was subjected to the influence of a conspiracy formed by appellant with others and that appellant and her conspirators, taking advantage of his want of intelligence, discretion, and unsuspecting nature, and by resort to importunities, induced the said William Thompson to consent to and to enter the marriage state with appellant; that said conspirators, operating upon and in connection with the said William Thompson clandestinely and without the knowledge and consent of Ms parents, secretly and by false representations fled with the said William Thompson to the state of Oklahoma with the view of attempting to consummate the purpose of their conspiracy; that after reaching the city of Durant, in Bryan county, in said state, one and all of said conspirators represented to the county clerk of said county and made aflidavit that the said William Thompson was more than 21 years of age, and that the appellant, Anna Lee Matthews, was more than 18 years of age; that such representations and aflidavit were false and untrue, for that the said William Thompson was not 21 years old and the said Anna Lee Matthews was not 18 years old; that as a result of said false aflidavit and representations the clerk issued a marriage license authorizing certain named authorities to perform the marriage ceremony between them, which was done, and that but for such false affidavit and representations the clerk would not have issued said) marriage license, and the pretended marriage ceremony would not have been performed; that the conspiracy charged was “still active,” and unless prevented by the court, it might result in an attempt to the assumption of the marriage relation between said William Thompson and Anna Lee Blat-thews; that such condition is threatening and eminent; that appellee is without an adequate remedy at law; and that he and William Thompson will suffer irreparable injury, unless the injunction prayed for is granted. The foregoing are substantially the allegations of fraud alleged to have been practiced to bring about the marriage of William Thompson and appellant; and the contention of appellee is that they disclose a state of facts which render said marriage void or voidable. This view is supported by high authority, and must be sustained. The rule is well settled that no marriage is valid to which the parties have not fully and freely consented, and that every misrepresentation of a material fact, made with the intention to induce one of the parties to enter into it, justifies the court in holding that the marriage is not binding, and in annulling it. In Robertson v. Cole, 12 Tex. 356, it is said that it is a well-established principle that a marriage procured by force or fraud is null and void. This principle is recognized and admitted by appellant’s counsel, but its applicability here is denied. They say “that the injured party may waive the objections, as they may waive the objections in any other proceeding, and thus ratify the contract with full knowledge of the fraud; that in this case the fraud was committed by William Thompson; that he made all the affidavits that were made, and procured the marriage license; that appellant condones the fraud by apologizing for it, and therefore William Thompson is in no position to complain. The foregoing statements of appellant’s counsel are based upon the allegations made in her answer, which, as hereinbefore stated was not filed in the district court until after the injunction in this case had been granted. It was not therefore before and considered by that court when the order was made directing the issuance of the writ. The allegations of that answer, as we have before stated in this opinion, cannot be looked to and considered by this court on this appeal in determining the correctness of the district judge’s action in awarding the injunction, nor for any other purpose. The authorities already cited upon the question are directly in point; they are approved by this court, and are conclusive of the matter. In disposing of this appeal we must look to the allegations of the appellee’s petition alone in determining whether or not the action of the judge in granting the writ of .injunction was justified. This petition was verified by the affidavit of the appellee, and in his order directing the issuance of said writ the judge stated that proof was heard in support of the petition. What this proof was, other than the verified petition, we do not know, as no statement of facts has been brought to this court, but the order of the judge is authoritative, and, in the absence of evidence to the contrary, will be presumed to speak the truth. Its recitals are conclusive here. Railway Co. v. Mosel, 180 S. W. 1138; Sutherland v. Cabines, supra; Milling Co. v. Bank, supra.

It must be understood that the views we have expressed are predicated upon the record now before us. The case, unless otherwise disposed of, will doubtless be tried upon its merits in the district court, and what the evidence will then be we do not know, but it may present a state of facts materially different from those now before us, and call for different conclusions than here expressed.

In view of that trial, and since some importance seems to be attached to the alleged fact that the áppellant and William Thompson were separated shortly after their marriage, and that there had been no cohabitation between them, we will take occasion to state that the consummation of a marriage by coition is not necessary to the validity of a ceremonial marriage, and that the status of the parties is fixed in law when the marriage contract is entered into in the manner prescribed by law. There seems to be some difference of opinion upon the subject, but it is generally conceded that the general rule is as we have stated it. 18 Ruling Case Law, § 15.

For the reasons indicated, the judgment of the court below is affirmed.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests,and.InSexes


author: HIGHTOWER, C. J.

text:
    SMITH v. HOUSTON NAT. EXCH. BANK et al.
    (No. 329.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 16, 1918.)
    1. Appeal and Eeeoe <S^> 173(2) — Objection Below — Propriety oe Proceedings.
    Garnishees having interposed no exceptions or pleas to plaintiff’s attempt to hold them. liable in the garnishment proceeding on a direct liability of them to him, objection thereto is not available on appeal.
    2. Garnishment <@=>13 — Issues.
    The only issue properly determinable in a garnishment proceeding strictly, as between plaintiff and garnishee., is whether garnishee was indebted or had in its possession effects belonging to defendant in the main action.
    3. Garnishment <@=>13 — Liability oe Garnishee-Collection eor Third Person..
    Where S. shipped plaintiff’s goods to him, drawing a draft on him, in 'favor of G., for more than plaintiff owed S., attaching to the draft the bill of lading, and assigned the same to G., the bank to which G. sent the same for collection, and which collected it, not setting up any right or interest in the draft or its proceeds, but simply holding it for collection for G., was not liable as garnishee of S. to plaintiff.
    4. Payment <@=>87(5) — (Recovery oe Payment —Duress.
    Where S. shipped plaintiff’s goods 'to him, drawing draft on him in favor of G. for more than plaintiff owed, attaching thereto the bill of lading, and assigned the same to G., plaintiff, paying the same under protest in order to get his goods, could recover the excess of G. as money obtained by duress, G. having no greater rights than S., regardless of good faith in purchasing or taking the draft with bill of lading attached.
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Garnishment proceeding by G. E. Smith against the Houston National Exchange Bank and others. Prom an adverse judgment,
    plaintiff appeals.
    Affirmed in part and reversed and rendered in part.
    E. V. Hardway, of Houston, for appellant. Searcy & Botts, of Brenham, and Otto Taub, of Houston, for appellees.
   HIGHTOWER, C. J.

This is an appeal from a judgment of the county court at law of Harris county in a garnishment proceeding, wherein appellant, George E. Smith, sought judgment against the Houston National Exchange Bank, as garnishee, and also against Giddings & Giddings, a firm composed of D. C. Giddings, D. C. Giddings,-ex-ecutor and trustee, and D. C. Giddings, Jr., the said bank and said firm being appellees herein.

The cause was tried before the court without a jury, and judgment was rendered that appellant, plaintiff in the garnishment, take nothing as against either the saiii bank as garnishee, or the said firm of Giddings & Giddings, and, further, that said garnishee bank should recover reasonable attorney’s fees for filing its answer in said cause, the amount of which was fixed at $25.

We shall not undertake to follow counsel in their statement of the case in full, but will make a brief statement thereof, which we think will suffice for the purposes of this opinion:

About January 15, 1916, (the appellant, George E. Smith, was the owner of a drilling rig used for the purpose of drilling oil wells, and on or about that date he entered into a contract with a concern known as the O. K. Oil & Gas Company, by which he rented to said Oil & Gas Company said drilling rig for a consideration of $10 per day, or $300 per month, with the understanding that the drilling rig should be shipped to Bender, Harris county, Tex., consigned to said Oil & Gas Company at that point, by January 21, 1916, and that payment of rent for same should commence on that day, in the event the rig should be delivered to the consignee by that time. At the time this contract was made between appellant and the O. K. Oil & Gas Company, appellant was living in the city of Houston, Harris county, and the drilling rig was located near the town of Bren-ham, Tex., and was the property of appellant ; and on or about January 16, 1916, appellant entered into a verbal contract with one Heber Stone, who was residing at Bren-ham, Tex., by the terms of which it was agreed between appellant and said Stone that the said Stone would load said drilling rig on railroad cars at Brenham, Tex., and take a bill of lading therefor, showing appellant as consignee, and ship said rig to the station of Bender, in Harris county, Tex.; that the said Heber Stone was to have for his services in loading said rig for appellant the sum of $125, and that the said Stone should draw a draft against appellant for the sum of $125, and attach the same to said bill of lading, and rorward the same to the Houston National Exchange Bank for collection. It appears from the undisputed testimony in this record that said Heber Stone, acting under said contract with appellant, did load said drilling rig on the railroad cars of the Gulf, Colorado & Santa Eé Railway Company at Brenham, Tex., but that this was not done as soon as was contemplated by his contract with appellant, but such loading was complete on January 24, 1916; and, after loading said rig, the said Stone took a bill of lading from the Gulf, Colorado & Santa Fó Railway Company therefoi-, which bill of lading showed said Heber Stone to be both the consignor and consignee of said rig, and that the same was to be delivered at said station of Bender, in Harris county. The said Heber Stone thereupon drew up a draft in favor of the firm of Giddings & Giddings, who were doing a banking business in Brenham, Tex., agaipst appellant, for the sum of $325, and attached said bill of lading to said draft, and assigned the same to Giddings & Giddings. At the time of this assignment to Giddings & Giddings, this firm paid said Heber Stone $100 in cash, and gave Mm credit on their 1 books for the balance of said draft, the said Stone being at that time indebted to Giddings & Giddings to the full extent of the balance of said draft. Thereupon Giddings & Gid-dings immediately sent said draft, with bill of lading attached, to the Houston National Exchange Bank at Houston, Tex., for collection against appellant, and said Houston Bank, upon receipt of same, promptly notified appellant that it held said draft for collection. Appellant went to the Houston Bank, and, on discovering that said draft was for the sum of .$325, told the Houston Bank that the draft was for a greater sum than he owed Heber Stone, and thereupon explained to the bank his contract with Stone, and stated that he would not .pay the draft for the full amount of $325, but that he would pay the sum of $125, which he owed Stone for loading this rig. The Houston bank, however, informed appellant that it could not accept anything less than the full amount called for in the draft, and could not turn over to him the bill of lading for said rig until such draft was paid in full; that it only held said draft for collection for Giddings & Giddings, and that it would not be authorized to release said bill of lading until said draft should be fully paid, unless authorized so to do by Giddings & Giddings. Thereupon appellant got in communication with Giddings & Gid-dings by telephone, and fully explained to Giddings & Giddings the situation that appellant was in — that is to say, that he had contracted to rent this rig, and that it was important that he get possession of the same at once — and fully explained to Gid-dings & Giddings that he only owed Heber Stone $125 for loading the rig, and that Stone was not authorized to draw the draft on him for any amount in excess of $125. To this Giddings & Giddings replied that they held the draft for valuable consideration, and that they had purchased the same from Stone without any notice of appellant’s contention or claim, and that they must insist that appellant pay the full amount of the draft, $325, before they would order the Houston Bank to release or turn over to him the bill of lading for the rig. Thereupon appellant, being made to understand that he could not get possession of said bill of lading, and consequently could not get possession of the drilling rig from the railroad company in the absence of the bill of lading, paid to the Houston National Exchange Bank $325, the full amount of said draft, which payment was made under protest, and thereupon the bill of lading was turned over to him by said Houston Bank. When this was done, appellant immediately filed suit in said county court of Harris county against the said Heber Stone, seeking to recover judgment against the said Stone in the sum of $200, which he had been compelled to pay to said Houston Bank, in order to get possession of said drilling rig, and also sought to recover damages for an additional amount, which he claimed against said Stone by reason of his failure to promptly load said drilling rig, but which additional damages are unnecessary to further mention here. Appellant also immediately sued out a writ of garnishment against the Houston National Exchange Bank, alleging that he had reason to believe and did believe that said bank was indebted to the said Heber Stone, or had in its possession effects belonging to the said Heber Stone; which writ of garnishment was promptly issued, and thereafter the bank filed its answer in the garnishment proceeding, and by its answer denied that it was indebted to the said He-ber Stone in any sum at the time the, writ of garnishment was served upon it, or at any time between that date and the date of its answer, and also denied that it had in its possession any effects belonging to the said Heber Stone or that it had ever had. This answer by the garnishee bank was in due time controverted by appellant, and appellant having learned that the firm of Gid-dings & Giddings were claiming the money which he had paid to the Houston Bank, garnishee, he also made Giddings & Giddings parties defendant in this garnishment proceeding, and alleged that he believed that they were indebted to the said Heber Stone, or that they had effects in their possession belonging to him, and had them served also. Thereafter Giddings & Giddings filed their answer and denied under oath that they were indebted to Heber Stone in any sum, or that they had in their possession any effects belonging to him; and further alleged that they had become the purchasers of the draft for $325, which was drawn by Stone against appellant, as hereinbefore mentioned, and that they were owners and holders of same in good faith, and were entitled to have the same paid by appellant to the Houston bank, as was done, and denied any liability whatever to appellant on any ground. Appellant thereafter amended his pleading, and thereby controverted the answer of Giddings & Giddings, in so far as they alleged that they were not indebted to Stone, etc.; and further alleged, in substance and effect, that Giddings & Giddings were liable to him to the extent of $200, for the reason that he was compelled to pay to the Houston National Exchange Bank that sum of money in excess of what he owed Heber Stone, on account of the acts and conduct on the part of said Giddings & Giddings in refusing to release said bill of lading until said draft for $325 should be paid in full, and alleged, in substance, that this $200 in excess of what he owed Stone was paid under protest by him, and under duress exercised by the said Giddings & Giddings.

There were no exceptions or pleas of any character interposed by Giddings & Giddings against the attempt of appellant to thus hold them liable in this garnishment proceeding in Harris county, and therefore no such question is before this court.

. The case proceeded to trial, and the uncon-tradicted testimony showed that the Houston National Exchange Bank had no connection with the transaction in question between appellant and Heber Stone, or between Hebei-Stone and Giddings & Giddings, other than to collect for Giddings & Giddings the draft for $325 drawn on appellant, and to hold the bill of lading until such draft should be paid in full. Upon this state of case the trial court held that in view of the fact that this was simply a garnishment proceeding, and since it appeared by the undisputed testimony that the garnishee bank was in no sense indebted to Heber .Stone, and that it had no effects in its possession belonging to him, rendered judgment to the effect that plaintiff take nothing as against said bank as garnishee, and to this extent, we think, the judgment of the trial court was correct.

The rule seems to be well established in this state tha't, in a garnishment proceeding strictly, the only issue to be determined, or which could be properly determined, as between the plaintiff in garnishment and the garnishee, is whether the garnishee was indebted to the defendant in the main suit or had in its possession effects belonging to him. The proceeding is strictly statutory, and the issues to be determined in such proceeding are clearly defined by the statute, and it is well established that the rules of equity have no place in such exclusively statutory proceeding, and that such aid cannot be invoked therein. Ry. Co. v. Terry, 50 Tex. 135; article 273, Vernon’s Civil Statutes; Bank v. Floeck, 17 Tex. Civ. App. 418, 43 S. W. 589.

The evidence is clear that the appellee Houston National Exchange Bank was setting up no right or interest whatever in the draft drawn by Stone against appellant, or the proceeds thereof, but that it was simply holding the same for collection for Giddings & Giddings, the owners thereof, under the undisputed testimony; and we are cited to no authority by appellant which holds that any liability could attach to the bank in this garnishment proceeding under these circumstances, and the court did not err, we think, in rendering judgment in favor of the garnishee, and in allowing it attorney’s fee of $25, and to that extent the judgment of the trial court is affirmed.

We think, however, that upon the undisputed facts, as we have detailed them above, it clearly appears that appellant, in order to get possession of the bill of lading under which the drilling rig in question was shipped, was compelled by Giddings & Giddings to pay the draft for $325, which was drawn on him in their favor by Heber Stone, and that appellant paid this draft under protest, and under duress exercised by Gid-dings & Giddings. Heber Stone had no right to draw a draft against appellant for a sum in excess of $125, and under the law in this state, as determined by our courts, his act is-'drawing the draft for $325, and attaching the same to the bill of lading in question, could not have the effect to confer upon Gid-dings & Giddings any greater or better right than he himself had; and Giddings & Gid-dings could not, under the undisputed facts in this case, have collected against appellant more than $125 had they attempted to do so, regardless of their good faith in purchasing or taking the draft, with bill of lading attached, from Heber Stone. We do not believe that there is any necessity for a further discussion of this matter, and simply content ourselves with the citation of the following authorities: Caldwell v. Auto Co., 158 S. W. 1030, and authorities there cited; Michalke v. Brown, 185 S. W. 429; Commercial Bank of Chicotah v. State Bank & Trust Co., 153 S. W. 1175; 2 Daniel, Negotiable Instruments, pp. 1972, 1958.

Since it is undisputed in this record that appellant owed Heber Stone only $125, and since on account of the insistence and duress on the part of Giddings & Giddings he was compelled to pay said draft, which was in excess of what he owed Stone to the extent of $200, and since the uncontradicted testimony shows, that the full amount of this draft was turned over by the Houston Bank to Giddings & Giddings, that firm became-clearly liable to appellant for the amount in the sum of $200, and the trial court should, have so held. Several of appellant’s assignments of error raise this point, and, without discussing them specifically, such assignments are sustained. It is therefore ordered by this court that the judgment of the trial court, in so far as it refused to render judgment in favor of appellant against the firm of Giddings & Giddings, should be reversed, and that judgment should be here rendered in appellant’s favor against said firm of Gid-dings & Giddings, composed of D. O. Gid-dings, D. C. Giddings, executor and trustee, and D. C. Giddings, Jr., for the sum of $209, together with all costs incurred on this appeal; but in so far as the trial court’s judgment was in favor of the garnishee, Houston National Exchange Bank, the same is in all things affirmed.

Affirmed in part, and reversed and rendered in part.
      <§z=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes