author: HUFF, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. BOYCE.
    (No. 1384.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1918.)
    1. Justices oe the Peace <&wkey;202(2) — CERTI-ORARI — AEEIDAVIT OE PETITION.
    An affidavit or jurat to a petition for cer-tiorari to the justice court by one not shown by petition, jurat, or record to be petitioner’s attorney, or to have knowledge of facts alleged in petition, is insufficient, under Rev. St. 1911. art. 745.
    2. Justices oe the Peace <&wkey;199 — Certiora-ri — Right oe-Review.
    • An application for certiorari to review a justice court judgment is addressed to the court’s discretion, and not to be granted as a matter of right.
    3. Justices oe the Peace <&wkey;202(2) — Certi-orari — Petition—Sueeiciency.
    A petition for certiorari to the justice court should state sufficient facts to show that another trial would probably result in a different judgment, so that mere general averments of no liability are insufficient.
    4. Justices oe the Peace &wkey;202(2) — Certi-orari — Petition — Sueeiciency — Default Judgment.-
    A petition for certiorari to review a justice court default judgment showing an alleged excuse for absence from the trial, but setting up no sufficient excuse for failure to appear or answer, is insufficient.
    Appeal from Dallam County Court; Lawrence Ashby, Judge.
    Action by J. H. Boyce against the Chicago, Rock Island & Gulf Railway Company and another. From a judgment of the county court, dismissing its petition for certiorari to the justice of the peace, the named defendant appeals.
    Affirmed.
    Bailey & Richards, of Dalhart, for appellant.
    R. E. Stalcup, of Dalhart, for appellee.
   HUFF, C. J.

This is an appeal from a judgment of the county court of Dallam comity, dismissing the petition of appellant railway company for certiorari to the justice of the peace for precinct No. 2 of said county and to send up the record in the case of J. H. Boyce against appellant and the El Paso & Southwestern Railway Company, wherein Boyce sued to recover $150 for damages for the killing of two horses of the al-' leged value of $75 each, alleged to have been caused by the negligence of the defendants in the transportation of the horses from Curvo, N. M., to Dalhart, Tex., October 18, 1915. The suit therefor was filed in the justice court on the 8th day of February, 1916, and judgment was rendered therein for the amount sued for October 1, 1917, reciting that the plaintiff, Boyce, dismissed as to the El Paso & Southwestern Railway Company, and rendering judgment by default against the appellant railway company. The record shows proper service against appellant in the justice court, and the judgment recites that, upon hearing the pleadings and the evidence, the court proceeded to render judgment against appellant for the amount so established. The petition for the writ alleged the rendition of the judgment; that on the 15th of October, 1917, the justice of the peace issued an execution against appellant, which was then in the hands of the constable, who was threatening to levy the same; and further alleged that, after the service of appellant before the justice of the peace, appellant immediately began to investigate the justness of the claim, and pending the investigation of the claim appellant placed the defense in the hands of J. Y. Powell, a local attorney at Dalhart, and that by agreement between said local attorney and appellee’s attorney, and at the request of appellee’s attorney, the canse was continued from time to time in order that Boyce might secure the written testimony of two witnesses; -that in the meantime Powell removed from Dal-hart to Houston, Tex., leaving appellant without a local attorney; that the attorney for Boyce assured the railway company that nothing more would be done without notice to it, and that he would not call the case up for trial until due notice had been issued; that the continuance and delays by Boyce and his attorney were at his instance and in order to procure the testimony of the two witnesses; that the depositions of the witnesses were not obtained until the latter part of March, 1917, which were then forwarded to appellant to examine; that its flies of investigation papers disclosed no liability on its part, and it so wrote to the attorney for Boyce April 25th, returning to him the depositions; that, on the 28th of April, Boyce’s attorney again wrote the attorney for the railroad, requesting further investigation and that the road offer a reasonable settlement of the case; that on the 30th of April its attorney wrote he would do so, and that on the 19th day of June appellant’s attorney wrote that further investigation failed to disclose liability, and stated therein, if appellee concluded to further prosecute the suit, that the road would have to arrange for a local attorney, and would be glad to have him advise the road after giving the case consideration, suggesting in the letter that the road would be willing to pay the costs already incurred if it could avoid employing a local attorney; that ap-pellee’s attorney assured appellant the case would not be called without due notice in time to prepare the case and to procure a local attorney; that on the 1st day of October, 1917, without notice to appellant, ap-pellee, in the absence of his own attorney, procured judgment of which appellant was not apprised until too late for appeal. It is alleged in the petition: “Petitioner alleges that it was not liable for any sum in said suit but had a good defense thereto, and was ready and willing to present the same to the court upon notice from the plaintiff that the case would be called for trial;” that the assurance that appellant should have ample notice of the time of taking up said case caused it' to slacken its preparation for the trial, and it is alleged again in general terms that it had, and now has, a good defense, and that it had been prevented from presenting the same solely by the act of Boyce and Ms attorney ; that it had not in any manner been guilty of negligence, and that an injustice had been done, etc.; praying for a writ of certiorari. The petition is signed by Bailey & Richards, as attorneys for the petitioner. The following is the jurat to the petition: “J. S. Bailey, being duly sworn, says the matters set forth in the foregoing petition are true,” signed by J. S. Bailey. Upon presentation of the petition to the county judge he granted the prayer for certiorari and fixed the amount of the bond. The bond was executed and the writ issued. At the first term of the court thereafter appellee presented Ms motion to dismiss the certiorari, “for the reason that the petition and the affidavit to same does not contain and state a sufficient cause for the issuance of such writ of certiorari.” The trial court entered an order sustaining the motion and dismissed the certiorari, from which order this appeal is prosecuted.

By a proper assignment the appellant asserts error in sustaining the motion. While the motion does not appear to have questioned the affidavit or jurat specifically on the ground that Bailey does not state the capacity in which he represented! the appellant, and that the facts stated were within Ms knowledge true and correct, we nevertheless have grave doubts as to the sufficiency of the affidavit in that particular, and we cannot know judicially that J. W. Bailey was am attorney representing appellant, or that the facts stated within the petition were within his knowledge true. They may have been true, but they must have been true within the knowledge of the party making the affidavit which should disclose that fact. Article 745, R. C. S., provides the writ shall not be granted unless the party applying for the same, “or some person for him, having knowledge of the facts, shall make affidavit in writing, setting forth sufficient cause to entitle him thereto.” Spinks v. Mathews, 80 Tex. 373, 15 S. W. 1101; Hughes v. Underwood Typewriter Co., 187 S. W. 399. The jurat perhaps is sufficient if the petition itself disclosed the necessary facts. It will be seen from the petition that it negatives the fact that Bailey was appellant’s attorney in the case before the justice court. It is stated that the agreements, promises, etc., were made to and with other persons, and that because of such promises appellant had no one representing it locally. The petition so showing, we are inclined to believe that it should have shown that Bailey was its agent or attorney in making the affidavit, and that the facts stated therein were known to the affiant to be correct. We infer from the petition that the correspondence was not with him, and he did not make any of the agreements alleged.

Certiorari to review a justice court judgment is not granted as a matter of right. The application is addressed to the discretion of the court, and in considering the petition the court should look to the application as well as to the transcript to determine the .merits on the motion to dismiss. The mere general statement that appellant had a good defense or that injustice has been done is not sufficient, but the petition must state facts upon which it is expected to recover should the writ be granted. Ford v. Williams, 6 Tex. 311; Perdew v. Steadham, 8 Tex. 276; Robinson v. Lakey, 19 Tex. 140; McBurnett v. Lampkin, 45 Tex. Civ. App. 567, 101 S. W. 864; Jirou v. Jirou, 136 S. W. 493; Hall v. Davidson, 176 S. W. 642; Hall v. Collier, 200 S. W. 880. The above eases, together with the authorities cited therein, established, we think, that the petition must allege the facts upon wliich reliance is had as a defense to the plaintiffs cause of action. Mere general averments, that the defendant was not liable for damages is not, in •our judgment, sufficient. There should be sufficient facts stated to show that probably upon another trial a different judgment would be had. The petition in this case alleged no facts by which the court could determine appellant’s defense or whether it in fact had one except upon its mere assertion. In fact, the record shows there was •evidence by deposition upon the trial of the case in the justice court. This evidence or its substance was not shown in the petition. The petition indicates) that the record kept by it showed no liability on its part, but what that record or its substance is, is not set out. The justice court rendered its judgment upon evidence as shown by the recitals thereof. This evidence is not shown in the petition nor is there any excuse alleged for not producing it or setting it out. The petition shows affirmatively that appellant had examined the deposition and therefore knew its substance. The petition possibly alleged an excuse for not being present at the trial, but does not allege a sufficient excuse for having failed to make an appearance or to file an answer setting up its grounds of defense.

We believe the trial court ruled correctly, and the judgment will therefore be affirmed.

BOYCE, J., not sitting.
      <g£5>For other cases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    GRELLE v. GRELLE et al.
    (No. 5951.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 16, 1918.)
    1. Witnesses <&wkey;131 — Competency— Statement by Testator — Will Contest.
    Rev. St. 1911, art. 3690, as to competency of parties in action by or against executor to testify to statement by testator, does not apply to contestant in’ a will contest.
    2. Appeal and Error &wkey;>1003 — Reversal— Yerdict Against Evidence.
    Verdict being contrary to the overwhelming testimony, judgment thereon will be reversed.
    Appeal from District Court, Mills County; F. M. Spann, Judge.
    Will contest by Erich Grelle and others against Mrs.. Anna Grelle and others. From a judgment for contestants, on appeal from the county court, the named defendánt appeals.
    Reversed and remanded.
    E. B. Anderson, of Goldthwaite, and Mar« tin & McDonald, of Austin, for appellant.
    J. C. Darroch, of Goldthwaite, for appellees.
   JENKINS, J.

William Grelle, deceased, made a will, in which he devised all of his property to his wife, Anna Grelle, appellant herein, with a proviso that, if any of it remained in her possession at the time of her death, the same should be divided equally between his children by Anna Grelle, his second wife. This will was admitted to probate in the county court of Mills county. The contestants, appellees herein, who were children of William Grelle by his first wife, appealed said cause to the district court of Mills county. In that court upon a verdict of the jury in favor of appellees, finding that the will was executed by reason of the undue influence of appellant, judgment was rendered refusing to allow said will to be probated. This case is now here for our decision upon appeal by said Mrs. Anna Grelle.

No question of law is involved in this case, except as to the admissibility of the testimony of certain of appellees as to conversations by them with their father, which testimony tends to show undue influence over their father by appellant. The contention of appellant is that this testimony was not admissible, by virtue of Revised Statutes, art. 3690. We overrule this assignment, on the authority of Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 446, and authorities there cited.

In our opinion, the verdict of the jury is contrary to the overwhelming testimony, for which reason we are unwilling that the judgment based on said verdict should be allowed to stand. As this ease is to be sent back for another trial, we do not think it proper to comment on the testimony, especially as we cannot anticipate what the evidence may be upon another trial.

For the reason that the verdict of the jury is not sustained by, but is contrary to the overwhelming weight of, the testimony, this cause is reversed and remanded for a new trial.

Reversed and remanded.
      <g=oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    RHODES v. TATUM, District Judge, et al.
    (No. 1466.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1918.)
    1. War e&wkey;4 — Control oe Railroads— Abatement oe Actions. .
    Under Act Cong. Aug. 29, 1916, empowering President to take possession of systems of transportation, and Act March 21, 1918, as to operation of transportation systems under federal control, section 9 of which gives the President all powers necessary or appropriate to give effect to the powers of regulation and control, the President’s appointment of a Director General, and the orders of the Director General Nos. 18, 18A, and 26, in effect requiring suits against carriers under federal control to be brought in the county where plaintiff resided at the time of the injury, or where the cause of action arose, and prohibiting trial of a suit brought in any other county, are valid.
    2. CONSTITUTIONAL LAW <&wkey;62 — LEGISLATIVE Powers — Delegation to Executive.
    Congress may authorize an executive officer to make such rules and regulations as may be necessary to the effective execution of the laws, though their enforcement depends upon conditions to be ascertained by him and the exercise of his sound discretion.
    3. Constitutional Law <&wkey;>191 — Ex Post Facto Laws — Laws Relating to Remedies.
    Act Cong. Aug. 29, 1916, empowering President to take possession of systems of transportation, and Act Cong. March 21, 1918, as to operation of transportation systems under federal control, general order No. 18 of the Director General of Railroads, general order No. ISA, and general order No. 26, which relate only to the remedy of a person injured and desiring to sue, are not subject to the objection that they are ex post facto or retroactive.
    4. Mandamus <&wkey;13 — Conditions Precedent —Application to Executive Officer.
    One injured in New Mexico suing railroad in Texas could not by mandamus compel immediate trial of his action contrary to general orders Nos. 18, 18A, and 26 of the Director General of the Railways, in the absence of compliance with No. 26, permitting application to the Director General for relief in event of unnecessary hardship by postponement according to those orders.
    Application, on relation of J. M. Rhodes, for writ of mandamus to compel the trial of relator’s action against the El Paso & Southwestern Railway Company and others to proceed, opposed by Reese Tatum, district judge, and others.
    Application denied.
    R. R. Hazlewood, of Amarillo, and M. B. Keator, of Tucumcari, N. M.,' for relator.
    C. E. Gustavus, of Amarillo, and N. H. Las-siter, of Ft. Worth, for respondent Chicago, R. I. & G. Ry. Co. W. M. Peticolas, of El Paso, for respondent El Paso & S. W. Ry. Co.
   HALL, J.

This is an application for a writ of mandamus to compel the judge of the Sixty-Ninth Judicial District to proceed with the trial of the case of J. M. Rhodes v. El Paso & Southwestern Railway Company et al., pending in the district court of Oldham county. Relator, Rhodes, alleges that respondent Tatum is district judge of the Sixty-Ninth judicial district, and that Oldham county is one of the counties composing said district. The Ohicago, Rock Island & Gulf Railway Company and the El Paso & Southwestern Railway Companies are joined as respondents. As grounds for .the writ, relator alleges that on the- day of -, 1917, he filed suit in the district court of Oldham county against the above-named railway companies, claiming damages in the sum of $20,000 for personal injuries inflicted upon plaintiff through the negligence of the agents of said companies; that service upon all of the defendants was complete for more than 10 days before the August term, 1918, of the district court of Old-ham county; that both of said defendants appeared and answered at that term, and when the ease was called for trial plaintiff announced ready; that the said railway companies filed pleas in abatement, setting forth that both of said railway companies were under federal control, and prayed that the cause be abated during said control; that W. E. Gee, as special judge of said court, sustained the plea, and ordered that the case be postponed during federal control. Copies of the pleadings and the order of the district court are made a part of the motion. Plaintiff alleges that he is 60 years old, is a material witness in the trial of his case, and that the continuation of the war is uncertain, and a speedy trial is necessary for the protection of his rights. The record before us fails to show when the plaintiff’s original petition was filed, but shows that the amended original petition was filed in the district court January 22, 1918, alleging that the relator was injured in the switch-yards owned and operated jointly by the defendants in the town of Tucumcari, N. M. It is further alleged that relator was injured on or about the 23d day of January, 1917, by a switch engine striking and demolishing the hack or wagon in which relator was driving across one of the tracks in the yards. The El Paso & Southwestern Railway Company filed an answer, which we presume was filed at the August term, 1918, of the district court of Oldham county, in which it is alleged that, if any cause of action exists, it arose in Tucumcari, N. M., vyhere plaintiff resided at the time of the alleged injuries; that Tucumcari is about 79 miles from the place of holding court in Oldham county, Tex.; that the defendants are under federal control, and are being operated by the national government, by the President, his officers and agents, as authorized by the Constitution and laws of the United States. As a basis of recovery plaintiff alleges there was negligence on the part of the employés of said railway companies, and by reason of such allegations it is necessary to have the testimony of such employés upon the trial; that the just interests of the government would be prejudiced by a trial at the August term of the court, in this: that there is a material shortage of employés to operate trains; that in the exercise of prudence defendants would be compelled to call for the attendance of a number of employes as witnesses, who are engaged in the operation of trains now being handled by the government. The answer sets out the names of eight witnesses, some of them it is alleged residing in Dalhart, some in El Paso, and the remainder in Tucumcari, N. M., and prays for an abatement of the action during the 'federal control of said railway companies. The Chicago, Rock Island & Gulf Railway Company adopted the answer oí its co-defendant, and denied that it owned or operated any switch yards in Tucumcari, N. M., and. alleged that the engine which it is charged caused the injury was not its engine, and that the employes operating it were not its agents or employes in any sense.

It appears from the record that the Hon. Reese Tatum, the duly elected judge of the Sixty-Ninth district, was absent, and that the Hon. W. E. Gee, a practicing attorney, was duly elected special judge, and upon the hearing of the motion to abate ordered that the suit be abated;; that it remain on the dockets of the district court, but not subject to trial while the federal government exercised control of said railway companies. Exception was taken, and notice of appeal to this court was given. In open court it was agreed that the employé of the defendants in charge of the tower at the street crossing where plaintiff was injured is not now in their employ. In support of their motion the defendants presented general order No. 18, issued by Wm. G. McAdoo, Director General of Railroads, April 9, 1918, as follows:

“Whereas, the act of Congress approved March 21, 1918 [c. 25], entitled ‘An act to provide for the operation of transportation systems while under federal control,’ provides (section 10) ‘that carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act * * * or with any order of the President, * * * tnt no process, mesne or final, shall be levied against any property under such federal control»; and
“Whereas, it appears that suits against the carriers for personal injuries, freight and damage claims, are being brought in states and jurisdictions far remote from the place where plaintiffs reside, or where the cause of action arose, the effect thereof being that men operating trains engaged in hauling war materials, troops, munitions, or supplies are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more, which practice is highly prejudicial to the just interests of the government, and seriously interferes with the physical operation of the railroads, and the practice of suing in remote jurisdictions is not necessary for the protection of the rights of the just interests of plaintiffs.
“It is therefore ordered that all suits against carriers while under federal control must be brought in the county and district where the plaintiff resides or in the county or district where the cause of action arose.”

It further appears that this general order No. 18 was amended on April 18, 1918, by general order .No. 18A, amending the last paragraph of the original order as follows:

“It is therefore ordered that all suits against carriers while under the federal control must be brought in the county or district where the plaintiff resides at the time of the accrual of the cause of action, or in the county or district where the cause of action arose.”

General order No. 26, issued by W. G. McAdoo, as Director General of Railroads,

.on May 23, 1918, was also introduced, and is as follows:

“Whereas, the act of Congress approved March 21, 1918, entitled ‘An act to provide for the operation of transportation systems while under federal control,’ provides (section 10) that carriers, while under federal control ‘shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act, * * * or with any order of the President, * * * but no process, mesne or final, shall be levied against any property under such federal control,’ and authorizes the President to exercise any of the powers of said act theretofore granted him with relation to federal control through such agencies as he might determine ; and
“Whereas, by a proclamation dated March 29, 1918, the President, acting under the federal control act, and all other powers him thereto enabling, authorized the Director General, either personally or through such divisions, agencies, or persons, or in the name of the President, to issue any and all orders which may in any way be found necessary and expedient in connection with the federal control of systems of transportation, railroads, and inland waterways, as fully in all respects as the President is authorized to do, and generally to do and perform all and singular acts and things, and to exercise all and singular the powers and duties which in and by said act or any other act in relation to the subject hereof the President is authorized to do and perform; and
“Whereas, it appears that there are now pending against carriers under federal control a great many suits for personal injury, freight and damage claims, and that the same are being pressed for trial by the plaintiffs in states and jurisdictions far removed from the place where the persons alleged to have been injured or damaged resided at the time of such injury or damage, or far remote from the place where the cause of actions arose; the effect of such trials being that men operating the trains, or engaged in hauling war materials, troops, munitions, or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more, which practice is highly prejudicial to the best interests of the government, and seriously interferes with the physical operation of railroads, and the practice of trying such cases during federal control in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs:
“It is therefore ordered that upon a showing by the defendant carrier that the just interests of the government would be prejudiced by a present trial of any suit against any carrier under federal control, which suit is not covered by general order No. 18, and which is now pending in any county or district other than that where the cause of action arose, or other than in which the person alleged to have been injured or damaged at that time resided, the suit shall not be tried during the period of federal control, provided if no suit on the same cause of action is now pending in the county or district where the cause of action arose or where the person injured or damaged at that time resided, a new suit may, upon proper service, be instituted therein, and if such is now barred byi the statute of limitations, or will be barred before October 1, 1918, then the stay directed by this order shall not apply unless the defendant carrier shall stipulate in open court to waive the defense of the statute of limitations in any suit which may be brought before October 1, 1918. This order is declared to be necessary in the present war emergency. In the event of
unnecessary hardship in any case either party may apply to the Director General for relief, and he will make such order therein as the circumstances may require consistent with the public interests. This order is not intended in any way to impair or affect general order No. 18 as amended by general order No. 18A.”

The relator insists that these orders are without authority; that Director General McAdoo could not assume possession and control of the railroads; that President Wilson was not authorized to appoint him Director General; and that the court’s order abating suits during the period of government control is not supported by any law. By the act of Congress approved August 29, 1916, c. 418 (39 Stat. 619), entitled “An act making appropriations for the support of the army for the fiscal year ending June 30, 1917, and for other purposes,” it is provided:

“The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or -systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable.”

War having previously' been declared against Germany and against Austro-Hun-gary, the President, joined by the Secretary of War, issued a proclamation, dated December 26, 1917, assuming control of railroads, and appointing Wm. G. McAdoo Director General, to operate all transportation systems in the performance of needed services in the prosecution of the war. The act before quoted, together with the President’s proclamation, was reviewed in the federal District Court of Kentucky by Judge Evans in the case of Muir v. D. & N. R. R. Co., 247 E'ed. 888. While in that case Judge Evans was considering the right of a railway company under the act of August 29, 1916, and the President’s proclamation, to remove from state to the federal courts, the power of the President to assume control of the railroads of the country in the manner provided in the proclamation, and to appoint Wm. G. McAdoo Director General, is seriously questioned. It is there said:

“Under no established rule of interpretation can it be doubted that it was the intention of the legislative body to authorize, in time of war, the War Department, and no other, to take over the railroads for war purposes, such as transportation of troops and war materials, and for such other purposes as might be desirable in the emergencies of war. Besides being, an appropriate function of the War Department, it was the plain meaning of the statute which Congress enacted that the War Department should have authority over it, and even if we assume (which is inconceivable) that the Secretary of War declined for that department to take up the war work indicated, we find nothing in the statute which authorizes it to he taken up by tho Treasury Department, nor by a Director General of Railroads, Congress not having intrusted the work to either. And the situation, if strict rules were to operate, might involve consideration of the question whether the rule stated by the Supreme Court in Smith v. Black, 115 U. S. at page 319, 6 Sup. Ct. 56, 29 L. Ed. 398, to the effect that, ‘wl}$r,e there is a statute requiring a thing to be dcihe by a known and responsible public officer, it may'well he held that he must do it in person,’ would not apply.”

Further in the same opinion it is said:

“Certainly the proposition is so well established as to be elementary that Congress may authorize heads of departments or other officers to make regulations within certain limits, and, when made within those limits, such regulations have the force and effect of ' law, and may be enforced as such; but it has often been held that the delegation of authority to make regulatory orders gives no power to add to, take from, or modify the limitations prescribed by Congress.” “On its face the act of August 29, 1916, does not give authority to the President to make or promulgate a proclamation of any character. No one, however, would contend that he had not obtained authority to issue such documents whenever he thought it proper to give notice or information to the public. But such papers cannot have any effect as laws, in the absence of express constitutional or congressional authorization.”

The court concludes that the statute does not authorize the proclamation, and that it has no force as a law, and because the statute is silent upon the subject of litigation of any character, and does not attempt to close either the state or federal courts to any litigant, upon the ground that the property had been taken over by the government, the causes should not have been removed from the state to the federal court. It was doubtless this criticism of the act which induced Congress to pass the law of March 21, 1918, and; we think this act cures the defects in the former act discussed by Judge Evans. One purpose of the act of August 29, 1Q16, and of the act of March 21, 1918, was to place all transportation companies under the control of the national government to facilitate the handling of troops, equipment, etc., necessary to a successful prosecution of the war. It is provided by section 8 of the latter act that “the President may execute any of the powers herein and heretofore granted him with relation to federal control through such agencies, as he may determine, and may fix the reasonable compensation for the performance of services in connection therewith,” etc. This section, in effect, approves the appointment of a Director General, and approves the acts of such officer and his subordinates, done in the execution of the powers granted the President, and under its provisions we must accept the Director General and his department as one of tho agencies selected by the President to aid him in the execution of the powers granted by the acts mentioned. Section 9 of the act is as follows:

That “the provisions of the act, entitled ‘An act making appropriations for the support ,of the army for the fiscal year ending June 30, 1917, and for other purposes,’ approved August 29, 1916, shall remain in force and effect except as expressly modified and restricted by this act; and the President, in addition to the powers conferred by this act, shall have and is hereby given, such other and further powers necessary or appropriate to give effect to the powers herein and heretofore conferred. The provisions of this act shall also apply to any carriers to which federal control may be hereafter extended.”

If it appears to the President that the practice of suing carriers in jurisdictions other than where the cause of action arose, or where the plaintiff resides, interferes with the efficiency of the transportation companies, section 9 confers the power upon him to adopt all reasonable means to relieve the condition and to abolish the practice.

Congress may authorize an executive administrative officer to make such rules and regulations as may be necessary to the effective execution of the laws, even though the enforcement of such laws is made to depend upon conditions to be ascertained by him and the exercise of a sound discretion in the matter of its execution is given him. Section 10 of the act has this provision:

That “carriers, while under federal control, shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers, and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government.”

Any order issued by Mr. McAdoo as Director General must be considered as the order of the President. General orders 18, l&A and 2®, above set out, were all issued subsequent to the approval of the act of March 21, 1918, and we must presume were issued for the purpose of putting into execution the provisions of the act and in furtherance of the President’s effort to carry out the evident purpose of Congress in its enactment.

Since the act and the orders referred to affect the relator’s remedy only, they are not subject to the objection that they were ex post facto or retroactive in their effect. The importance of having absolute control of transportation systems in the prosecution of the war is a matter of common knowlege. After hearing the motion the trial judge decided that a trial of relator’s case in the district court of Oldham county would be prejudicial to the justice interests of the government and would seriously interfere with the physical operation of the 'defendant 'railways. Under the record here the presumption of the validity of the court’s order obtains. The case, therefore, comes within the purview of the general orders above quoted, and the further prosecution of the action should, we think, be controlled by their provisions. The court’s ruling does not deny to relator the right to sue and in no degree does it effect the merits of his case. The order simply grants a stay of proceedings during federal control in the event relator insists upon prosecuting his suit in the district court of Oldham county, Tex. Under general order 18, as amended by general order 18A, relator has the right to take a nonsuit in the district court of Oldham county, Tex., and prosecute his actions against the defendant in Tucum-cari, N. M. In entering the order postponing the trial in the district court pending federal control of the defendant railway companies, the trial judge was properly obeying these orders.

General order No. 26 further provides:

“In the event of unnecessary hardship in any case either party may apply to the Director General for relief and he will make such order therein as the circumstances may require, consistent with the public interests.”

It does not appear that relator has applied to the Director General for relief before filing his petition for mandamus in this court, and we incline to the opinion that such application is a condition precedent to his right to appear here. An extraordinary emergency exists; the welfare of the nation is in jeopardy. As war measures the acts of Congress referred to above, and the orders issued in accordance with such acts, must be deemed to be necessary and proper under all the circumstances. Even though the effect of their enforcement would be to seriously handicap relator in the prosecution of his suit, we think merely personal rights should be postponed when the safety of the nation is involved. In our opinion, however, the enforcement of the orders is not a serious obstacle, and deprives him of the right only tc prosecute his suit to judgment without delay in a court removed from the jurisdiction in which the right of action accrued.

The action of the trial judge in postponing the trial of the case in Oldham county was, under all the circumstances, legal, and the application for the writ of mandamus is denied.
      c3=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    WADE v. MADISON.
    (No. 8191.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1918.)
    1. Landlord and Tenant <@=>75(2)—Lease— Subletting — Permission to Pasture Stock.
    The act of a tenant in permitting a third person to pasture stock on the leased premises together with tenant’s stock, there being no surrender or abandonment, either actual or constructive, of the premises by the tenant to the third person, was not a subletting, forfeiting the lease under the statute.
    2. Landlord and Tenant <@=>275—Lease-Breach of Covenant—Right of ReEntry.
    Ordinarily breaches of express covenants, much less those that arise only by implication, do not forfeit the right of possession or confer the right of re-entry, in the absence of an express provision to that effect in the contract.

      8. Appeal and Error <§=>1010(1) — Evidence to Support Finding.
    Unless the evidence upon which a finding is based is entirely without probative force, the appellate court is not at liberty to disturb the finding.
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Suit by W. B. Wade against J. L. Madison. Prom a judgment granting plaintiff a part of the relief prayed for, plaintiff appeals.
    Affirmed.
    H. M. Wade, of Rockwall, for appellant.
    T. B. Ridgell, of Rockwall, for appellee.
   RASBURY, J.

This proceeding was instituted in the court below by appellant, among other things, to terminate the rental agreement between appellant and appellee, and to perpetually enjoin the latter from grazing his stock and that of one Counts upon certain lands of the former. Upon ex parte hearing, temporary injunction was granted. Upon subsequent hearing in chambers, upon motion of appellee, the temporary injunction was modified, so as to permit appellee to graze his stock upon the lands described, and perpetuated so far as related to- the live stock of others. Prom such judgment this appeal is prosecuted.

The substance of the first assignment of error is that the act of appellee in permitting Counts to graze his stock upon the lands of appellant constituted in law a subletting of the premises, and hence under the statute a forfeiture of the lease, and for which reason alone the injunction should have been perpetuated. Por the .purpose of the issue so presented it may be said that the evidence discloses that appellee was a tenant of appellant under oral agreement, and, if he had the right to graze his. live stock upon appellant’s lands, it is without dispute that he did permit Counts to graze his stock thereon, and that he did not have that option under the rental agreement. Our statute does prohibit tenants from subletting leased premises without the consent of the lessor. The question then arises: Does the act of appellee in permitting Counts to graze his stock on the lands constitute in law a subletting of the premises? We conclude it does not. There was no surrender or abandonment, actual or constructive, by appellee to Counts of the rented premises. At most there was a permission to Counts to turn his stock thereon at will of appellee, without any purpose or intention to surrender the premises as a whole to his control and management. The evidence at most discloses a breach of an implied covenant to use the pasture lands solely for appellee’s stock. It seems settled, however, that ordinarily breaches of express covenants, much less those that arise only by implication, do not forfeit the right of possession or confer the right of re-entry, in the absence of an express provision to that effect in the contract. Johnson v. Gurley, 52 Tex. 222; Ewing v. Miles, 12 Tex. Civ. App. 27, 33 S. W. 235. The rental contract in the present case was oral, and the evidence does not disclose that the breach complained of should work a forfeiture thereof.

The next assignment of error asserts that the finding of the court that appellee had the right to graze his live stock upon what is designated in the record as the “stalk field” is without support in the evidence. In connection with the issue so raised, it may be said that so far as the present appeal is concerned it is not denied that appellee had the right to use the other two pasture tracts. Concerning the use of the “stalk field,” appellant testified in substance that the right to use it was not included in the original agreement, but that when) it was agreed, in the summer of 1917, that appellee would continue on the place as tenant during 1918, a change was made in the contract by which appellee was to plant the "stalk field” tract in corn, and that, if the corn was gathered early, they (meaning appellant and appellee) could use said tract for early pasturage. Appellee’s wife testified that she heard appellant make the suggestion to appellee concerning the use of the “stalk field”; and appellee testified that he used that tract as pasturage, because “that was our contract.” The court concluded, upon the evidence just stated, that appellee did have the right to pasture his stock in the “stalk field,” and we think the evidence supports his finding. It was the court’s duty and privilege to pass on that question, and unless the evidence upon which it is based is entirely without probative force we are not at liberty to disturb it.

Finding no reversible error in the record, the judgment is affirmed.
      @=}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUEF, C. J.

text:
    SMITH v. TEXAS POWER & LIGHT CO.
    (No. 1305.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1918.)
    1. Statutes <§=>225% — Construction—Adoption after Construction by Courts.
    Rev. St. art. 2021, authorizing impeachment of verdict on motion for new trial, by testimony Of jurors as to their misconduct, will be held to have been adopted with the construction, previously placed by the Court of Criminal Appeals on a similar statute for criminal cases, that the issue was not one in the main case tried before the jury, and therefore that the evidence thereon must be preserved by bill of exceptions or statement of facts filed in term time.
    2. Appeal and Error <§=>564(2) — Exceptions, Bill of <§=>38 — Statement of Pacts —Evidence on Motion for New Trial-Time of Piling.
    Rev. St. art. 2073, giving, on appeal from judgment, time beyond the term in which to prepare and file statement of facts and bill of exceptions, does not apply to testimony taken on motion for new trial for misconduct of jury, which must be preserved by bill of exceptions or statement of facts filed in term time.
    3. Highways <§=>184(2) — Frightening Team.
    Verdict for defendant, in action based on claim that plaintiff’s team which ran away was frightened by articles which defendant had piled on the road, held, supported by evidence.
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by R. N. Smith against the Texas Power & light Company. Judgment for defendant, a^id plaintiff appeals.
    Affirmed.
    R. L. Porter and Evans & Shields, all of Greenville, for appellant.
    O. C. Mulkey, of Commerce, and Clark & Sweeton, of Green-ville, for appellee.
   HUEF, C. J.

This case was transferred by order of the Supreme Court, from the Court of Civil Appeals of the Fifth District, sitting at Dallas, to this court. While the record was before that court the appellee, the Texas Power & Eight Company, made a motion to strike out the bill of exception No. 1, contained in the transcript, which bill appears to have been taken to the action of the court in overruling appellant Smith’s motion for new trial, and to preserve exception to the action of the court thereon. To the bill is attached the testimony of several witnesses in narrative form, which is shown to have been made and signed by the court stenographer; which appears to have been filed as a part of the bill of exception, some 80 days after adjournment of court. The trial judge marked the bill “Approved,” and ordered it filed. Before the case was transferred to this court, the Dallas court sustained the motion to strike out the bill, and also overruled the motion for rehearing thereon. In this court the appellant makes a motion to reinstate the bill, the submission of which we took to be considered on the submission of the main case. The Dallas court, in passing on the motion, did not write an opinion. The ground of the motion for new trial to which the evidence in the bill is addressed is to the effect that one juror had prejudice against suits on claims for damages of this kind, and that he concealed that fact when examined on his voir dire, and led the other jurors in opposition to a verdict for appellant; and it is asserted in the motion that the juror’s prejudices were not ascertained until after the trial. The evidence attached to the bill of exceptions was directed to the issue so presented by the motion, and perhaps to other issues raised by the motion.

The appellant obtained an order of court giving him 90 days after adjournment of court within which to prepare and file statement of facts and bills of exception. The bill was filed within the time granted by the order. It is the contention of appellant that the bill was filed within proper time, under article 2073, Rev. Civ. St., which provides:

“When an appeal is taken from the judgment rendered in any cause, in any district or county court, the parties to the suit shah be entitled to, and they are hereby granted, thirty days after the * * * adjournment of court, in which to prepare or cause to be prepared and to file a statement of facts and bills of exception; and upon good cause shown the judge trying .the cause may extend the time in which to file a statement of facts and bills of exception.”

The court of Criminal Appeals has constantly held that a statement of facts taken on an issue presenting the misconduct of the jury in reaching a verdict must be filed in term time, notwithstanding the statute authorizing the filing after adjournment. The reason for so holding is stated by Mr. Justice Ramsey, while on the Court of Criminal Appeals, in the case of Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 203:

“Since the decision of this court in the case of Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, it has been uniformly held that the provisions of our statutes, both civil and criminal, with regard to the preparation and filing of statement of facts for appeal, have reference only and exclusively to a state of facts adduced upon the merits of the case before the jury or the court, as the case may be, and that our statutes have no reference to issues of fact formed on grounds set up in motion for new trial, and that the facts as to such issues, in order to be entitled to consideration on appeal, must have been filed during the term. This rule has since been followed by this court in many cases.”

It was said in the Black Case, supra:

“These matters must be made part of the record during the term of court. There is no statute authorizing such matters to be perpetuated in papers filed subsequent to the term.”

That court as now constituted still adheres to the rule so established. See Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 980, 981; Wiley v. State, 78 Tex. Cr. R. 406, 181 S. W. 728; Reyes v. State, 190 S. W. 533, see also, this case for a long list of authorities cited; Miles v. State, 200 S. W. 158; Gates v. State, 200 S. W. 397. In so far,'as we have been able to ascertain, except in this case, none of the Courts of Civil Appeals, or the Supreme Court, have passed upon this direct question. A casual reading of the statute with reference to preparing and filing bills of exceptions will lead an attorney preparing his case for appeal to the belief that he could file his exceptions within the time stated by article 2073, above quoted. The able jurists who have occupied the Court of Criminal Appeals, however, have established the rule in that court to the contrary. It has, from the beginning our criminal procedure, been the rule by statute, that the verdict of the jury could be assailed for misconduct of the jury or any member thereof by motion for new trial, together with evidence thereof, thereby raising an issue to be tried by the court upon evidence introduced before him. Acts 1905, p. 21, amended the civil statutes, by adding thereto what is now R. C. S. art. 2021, in relation to misconduct of the jury as grounds for a new trial. Prior thereto the courts of this state had passed upon numerous attacks made upon verdicts supported by affidavits or testimony of jurors setting up irregularities of different kinds and had uniformly denied the competency of such testimony. The courts recognize that in such procedure there was no such rule by statute. See Railway Co. v. Ricketts, 96 Tex. 68, 70 S. W. 315 (2). The Legislature did not see proper to alter the rule established by the courts until 1905.

The Code of Criminal Procedure (article 817, subdivisions 7 and 8, White’s Code of Criminal Procedure) permits evidence of misconduct upon motion for new trial and such has been the statute in criminal cases from an early day. It will be seen from an examination of the decisions of the Court of Criminal Appeals that it has uniformly held that the evidence taken to impeach the verdict was held to be upon an issue not an issue in the main cause tried before the jury, and, as no statute fixed the time when the statement of facts so made could be filed, that such statement must be filed in term time. This was the holding of the Court of Criminal Appeals construing the article of the Penal Code, when the Legislature -saw proper to change the rule established by the courts with regard to impeaching the verdict of the jury in civil cases, giving substantially the same rights in civil as in criminal cases, and the right to hear evidence from the jurors by the trial court. The case of Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, was decided October 25, 1899, announcing the rule when the statement or bill of exceptions should be filed of the evidence taken on the trial of the issue raised by the motion for new trial. The courts having placed such construction on a similar statute, the presumption will prevail that the Legislature, when it amended the civil statute, did so knowing the construction which would be given such proceedings on motions for new trial in civil cases. It is fair to presume that the members of the Legislature were advised of the construction which the Court of Criminal Appeals had placed upon the statute, the language of which is substantially the same as that of the amendment passed, and we may presume the legislators intended that the amendment to the civil statute should.receive the same construction in civil cases. Johnson v. Hanscom, 90 Tex. 321, 37 S. W. 601, 38 S. W. 761.

Article 2073 gives the appellant from.the judgment in any cause 30 days in which to file a statement of facts therein, etc. This statute and former statutes with reference to statements of facts are substantially the same, with the exception that the time for filing isi extended.' A motion for new trial, based on misconduct of the jury, is after the judgment in the cause, and raises a different issue, is heard by the court, instead of a jury, and hence the Court of Criminal Appeals holds the statement of facts on such motion is not the statement of facts proven before the judgment in the main cause, and therefore the extension of time does not apply to the evidence taken upon the motion. This rule having been established and followed by a long line of decisions, which was the rule and construction when the civil statute was amended, we think it was intended that the statute in civil courts should receive the same construction. The motion to reinstate the bill of exceptions will therefore be overruled.

The first and second assignments of error are based upon the action of the court in overruling the motion for new trial, founded upon the evidence showing misconduct of the jury. As the evidence of this alleged misconduct has been stricken out, there is nothing in the record showing error, and the assignments fall with the bill of exceptions.

The third assignment asserts that the court erred in refusing a new trial, because the verdict of the jury is contrary to, and not supported by, the evidence. Appellant alleged that appellee company owned and operated a line for the transmission of an electric current; that in constructing its lines it used large spools to handle and transport wires so used, and after removing the wire from the spools the company negligently stacked a great number in and upon the public road in such manner as was reasonably calculated to frighten horses of ordinary gentleness, passing same on the road; that his team became frightened at the spools so placed, and ran with the wagon on which appellant was riding into a ditch, turning the wagon over, and upon him, and inflicting the injuries of which he complains. The evidence is sufficient, we think, to show that the mules were not safe, but ran away on more than one occasion previous to the one in question; that they had been frightened and ran at the point where the accident occurred on a previous occasion to the one in question, and that on that occasion they took fright and ran from a passing auto at the same point. The evidence shows, or was sufficient for the jury to find, that on the occasion in question an auto passed the team, and that they took fright at the anto, which caused them to run, and that it was not at the spools, as alleged. It was also sufficient to authorize the jury to find that appellant knew the disposition of the mules in that particular, and that he drove them, at the time with weak or rotten lines, one of which broke at the time of the accident. It is sufficient to show that appellant was negligent in so handling the mules, which negligence contributed to his injury. The verdict of the jury has ample evidence, we believe, to support it.

The judgment will be affirmed.
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author: MOURSUND, J. H. R.

text:
    QUEIROLI et al. v. WHITESIDES.
    (No. 6071.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 23, 1918.)
    1. Judgment <s&wkey;143(5) — Failure to- Appear —Excuse.
    Motion for new trial, made at same term that default judgment was rendered, alleging that defendants were cited to appear November 19th, that Legislature 'by Acts 36th Leg. c. 91, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), effective August 1st, changed term of court so that it began October 8th instead of November 19th, and that defendants were nonresidents and had no knowledge of the change, showed sufficient excuse for failure to appear.
    2. Judgment <&wkey;106(2). — Default — Change of Teem of Court — Jurisdiction.
    Although defendants were cited to appear November 19th, where act of Legislature (Acts 35th Leg. c. 91, § 2 [Vernon’s Ann. Civ. St. Supp. 1918, art. 30]), effective August 1st, changing term so that it began October 8th instead of November 19th, contained a clause making all process theretofore issued returnable to term of court therein fixed, court was authorized to render default judgment on October 13th, no answer having been filed.
    3. Judgment <&wkey;145(2) — Default—Meritorious Defense — Necessity.
    Although defendants presented sufficient excuse for not appearing at time default judgment was rendered, court was justified in refusing to grant new trial unless it was shown that defendants had a meritorious defense.
    4. Evidence <@=»461(1) — Paeol Evidence to Vaey Conteact.
    Where agents by plain terms of contract bound themselves, parol evidence was not admissible to show that it was their intention to bind their principals.
    D. PRINCIPAL AND AGENT <&wkey;142 — UNDISCLOSED Peinolpal — Facts Putting Third Persons on In QUIET.
    That defendants’ contract of sale recited that the sale was of specific growing crop of a person named was consistent with the theory that the contract was one made for the purpose of binding defendants personally.
    6. Principal and Agent <&wkey;146(3) — Contract Creating Personal Liability.
    Defendants were personally liable on a contract whereby defendants sold plaintiff 10 cars of onions, although plaintiff had information on which he could have elected to sue defendants’ principals.
    7. Contracts <&wkey;127(2) — Agreement to Settle by Arbitration.
    Provision of contract that any dispute is to be settled by arbitration is contrary to public policy, and will not oust courts of jurisdiction.
    Error from District Court, Webb County; J. E. Mullally, Judge.
    Suit by H. R. Whitesides against Joe Quei-roli and another. Judgment for plaintiff, motion for new trial overruled, and defendants bring error.
    Judgment affirmed.
    Mann & Henry, of Laredo, for plaintiffs in error.
    George P. Brown, of Mission, for defendant in error.
   MOURSUND, J. H. R.

Whitesides sued Joe Queiroli and F. L. Gregory, partners doing business as Gregory-Queiroli Company, for damages for breach of a contract whereby said defendants sold Whitesides 10 cars of onions. On October 13, 1917, no answer having been filed, the court heard evidence and rendered a judgment in favor of plaintiff for 83,825.

On November 27, 1917, at the same term of court, said Queiroli and the widow and children of said Gregory filed a motion for a new trial, which was overruled on December 1, 1917. In this motion it was alleged that the defendants were cited to appear November 19, 1917, and that the Legislature changed the term of court by an act effective August 1, 1917 (Acts 35th Leg. c. 91, § 2 [Vernon’s Ann. Civ. St. Supp. 1918, art. 39]), so that it began on October 8th instead of November 19th; that both defendants were nonresidents and shortly after being served left the state; that they had no knowledge of the change of the time of holding court, and on November 4th Gregory, who had undertaken the management of the ease, wrote to an attorney at Lareao, inclosing the citation, and asking that continuance be procured on account of the illness of said Gregory; that the attorney ascertained that judgment had already been rendered, and wired Gregory to that effect about November 7th, -whereupon Gregory, although ill, went to Laredo, but was unable to attend to business, and died on November 21st. They further alleged their willingness to try the case during that term of the court. The act changing the term of court contained a clause making all process theretofore issued or served returnable to the term of court as therein fixed and validating all such process. In view of this provision, it appears that the court was authorized to render the default judgment at the time it did so, but, while parties are presumed to know the law, our courts have excused the failure of parties to appear when it was caused by ignorance of the law on the part of their attorneys, and have shown great liberality when a party appears by motion for new trial in time io try the case during the term at which the judgment was rendered. We conclude that the allegations show a sufficient excuse for failure to appear at the time the judgment was taken. Scottish Union Ins. Co. v. Tomkies & Co., 28 Tex. Civ. App. 157, 66 S. W. 1109; Dowell v. Winters, 20 Tex. 796; Springer v. Gillespie, 56 S. W. 369.

However, even though a sufficient excuse was presented for not appearing at the time the judgment was rendered, the court was justified in refusing to grant a new" trial unless it was shown that defendants had a meritorious defense to the cause of action alleged by plaintiff.

The principal defense relied upon was that defendants were the agents of W. E. Shelton and J. N. Long in selling the onions; that Shelton and Long were the owners of the onions, and had employed the defendants to sell the same, agreeing to pay them a commission for their services; that defendants did not hold themselves out as the owners or sellers, but fully advised plaintiff before any contract was made that they were merely the agents of the grower and sellers. The theory of the defendants was, as shown by their motion, that if they were in fact agents, and the buyer knew it, they would not be personally liable.

This theory leaves out of consideration the fact that, although persons are agents, they may contract so as to bind themselves, and when they do parol evidence cannot be received to show that, although by the plain terms of the contract they bound themselves, it was their intention to make a contract which should only bind their principals.

The contract was executed by Walker & Gerks, brokers, of Rochester, N. X., who state therein that the sale isi for account of Gregory-Queiroli Company, to H. R. White-sides, Louisville, Ky., and, in noting their acceptance on the contract, said GregoryQueiroli Company, after its signature, is designated as “seller.” The onions sold are described as follows in the contract:

‘TO cars choice yellow Texas onions, at 800 per crate, f. o. b. Pearsall, Texas. This is a sale of specific growing crop of W. E. Shelton, Pearsall, Texas, estimated at 50 carloads. In case of crop damage, sellers may reduce quantity pro rata without penalty.”

The name of J. N. Long does not appear in the contract. While the 10 cars of onions were described as part of Shelton’s crop, the contract contains no intimation that in making it Gregory-Queiroli Company acted as agents for Shelton, and the. recital descriptive of the onions is perfectly consistent with the theory that the contract was one made for the purpose of binding Gregory-Queiroli Company personally, as it in fact purports to do throughout There is nothing in the contract to indicate that Gregory-Queiroli Company acted as brokers, and upon their letterheads they described themselves as “Car Lot Shippers and Distributors” of onions, cabbage, and lettuce, engaged in business at Laredo, Tex.

We fail to see how the defendants could escape personal liability on such a contract, and, that being the case, it is immaterial that the buyer may have had information on which he could have elected to sue Shelton and Long.' In support of the conclusion that Gregory-Queiroli Company made itself personally liable on the contract, we cite: Mechem on Agency, §§ 1170, 1176, 1408, 1422, 1423, 1424; Corpus Juris, vol. 2, p. 813, § 487; R. C. L. vol. 21, p. 847, § 27.

The contract contained a clause to the effect that any dispute arising out of such contract is to be settled by arbitration, each party to name an arbitrator, and the two thus appointed to name a third in case of disagreement. Such a provision is contrary to public policy and will not oust the jurisdiction of the courts. Ruling Case Law, vol. i 2, p. 360; Corpus Juris, vol. 5, p. 42, §§ 68, 69; Elliott on Contracts, § 726. There is therefore no merit in the suggestion that the failure of the plaintiff to demand arbitration constitutes a defense to the suit.

The court did not err in concluding that defendants had no meritorious defense and in declining to grant a new trial. The motion should have been refused, and such was the effect of the order of the court, although the court sustained a demurrer to it and dismissed it, instead of adjudging that it was overruled.

The judgment is affirmed.
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author: SWEARINGEN, J.

text:
    QUEIROLI et al. v. SIMON & DUNLAP.
    (No. 6072.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 23, 1918.)
    Judgment &wkey;>106(2) — Default—Change of Term of Court — Jueisdiction.
    Although defendants were cited to appear November 19th, court had jurisdiction, no answer having been filed, to render default judgment October 13th, in view of Acts 35th Leg. c. 91, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), changing term of court so that it began October 8th instead of November 19th, and making all process theretofore issued returnable to term of court therein fixed.
    Error from District Court, Webb County; J. P. Mullally, Judge.
    Suit by George W. Simon and another, partners under the firm name of Simon & Dunlap, against Joe Queiroli and another. Defendants’ motion to set aside default judgment denied, and they bring error.
    Judgment affirmed.
    Mann & Henry, of Laredo, for plaintiffs in error.
    George P. Brown, of Mission, for defendants in error.
   SWEARINGEN, J.

George W. Simon and William S. Dunlap partners in the firm of Simon & Dunlap sued Joe Queiroli and E. L. Gregory individually and as partners doing business as Gregory-Queiroli Company for damages for breach of a contract whereby defendants sold Simon and Dunlap 10 carloads of onions. The suit was filed May 22, 1917. Citation was issued and served upon both Gregory and Queiroli on May 22, 1917, commanding them to appear and answer in the suit at the next term of court, which was November 19, 1917, as the law stood at the time the process was issued and served. Subsequent to the service of process, namely, on the 1st day of August, 1917, the act of the Legislature became effective which changed the beginning of the term of the district court in Webb county from November 19th to the fifth Monday after the first Monday in September, which fell on October 8, 1917. The legislative act making this change in the beginning of the term also contained the following clause:

“That all _ process * * * issued, served * *' * prior to the taking effect of this act, and returnable to the terms of said court, as heretofore fixed by law, in the several counties composing said district, are hereby made returp-a'ble to the terms of said court in the several counties, as fixed by this act, and all process heretofore returnable, * * * shall be valid and binding as if no change had been made by this act in the times of holding said terms of court.” Gen. Laws 35th Leg. p. 247, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30).

Accordingly the district court convened in Webb county on October 8, 1917, and thereafter, on October 13, 1917, no answer or appearance or waiver having been made by either of the defendants, judgment by default was rendered against the defendants, and the damages assessed at $3,825 for which amount judgment was entered.

On November 27, 1917, Joe Queiroli, Mrs. Lillian Gregory, Fendall Littlepage Gregory, Jr., and Judith Gregory filed a motion to set aside the default judgment, and therein averred-that P. L. Gregory, on the 21st day of November, 1917, after the rendition of the default judgment, had died intestate, and that the widow and children were the only heirs of E. L. Gregory.

Plaintiffs’ general demurrer to the motion to vacate was sustained by the trial court, and, defendants declining to amend, the court dismissed the motion.

Hie first question presented by the foregoing narrative of facts is whether or not the trial court obtained jurisdiction over the persons of Joe Queiroli and F. L. Gregory on October 13th to render the default judgment, since the citation stated the date for appearance and answer to be November 19, 1917. We are of the opinion that the act of the Legislature which changed the terms of the court sufficiently notified the defendants to appear and answer at the earlier date, and that they were bound by that law to answer, and, not having done so, the court was authorized to render the judgment. The case of Bagley v. Spruill, 1 Posey, Unrep. Cas. 277, relied upon by plaintiffs in error, announces the law in similar cases where the Legislature omitted that portion of the act quoted above, which directed that process issued and served prior to the passage of the law should be returnable to the changed date as though no change had been made in the term of court. The legislative act involved in the Bagley-Spruill Case contained no clause referring to process. The court did have jurisdiction.

The only questions remaining for us to consider are: Did defendants show a sufficient excuse for the failure to file an answer by October 13, 1917, and did they plead such a meritorious defense as would require the trial court to vacate the default judgment? The facts and pleadings presented that concern these two questions are precisely the same as those fully stated in the opinion disposing of the case of Joe Queiroli et al. v. H. R. Whitesides, 206 S. W. 122, to-day rendered by this court, and, as therein held, we hold that there was sufficient excuse for the delay, but that the motion failed to present a meritorious defense, and we cannot say that the trial court abused its discretion.

The judgment i§ affirmed.
      ÉrmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURT, J.

text:
    BOWDEN v. SOUTHERN ROCK ISLAND PLOW CO.
    (No. 7932.)
    (Court of Civil Appeals of Texas. Dallas.
    June 8, 1918.
    Rehearing Denied Nov. 2, 1918.)
    1. Damages ©=>77 — Liquidated Damages on Penalty — Intention.
    In determining whether contract stipulation discloses a penalty or provides for payment of liquidated damages, the intention of the parties, if it can be ascertained from the language, shall prevail.
    2. Damages ©=>79(1) — Liquidated Damages oe Penalty — Ceetainty as to Amount oe Actual Damages.
    Where it appears from the subject-matter of the contract that the damages which will probably result from its breach are uncertain and indeterminate, the sum stipulated to be paid, in case of breach will be construed as liquidated damages;' but where it appears that such damages are certain and determinate, the sum will be regarded as a penalty.
    3. Sales ©=3-384(2) — Rights oe Sellee — Buy-ee’s Refusal to Accept Goods — Damages.
    Measure of seller’s damages upon buyer’s refusal to accept shipment of wagons is difference between the contract and the market price, at the time and place of delivery.
    4. Damages ©=>79(5) — Liquidated Damages oe Penalty — Ceetainty of Actual Damages — Conteaot of Sale.
    Where contract of sale of wagons provided for payment to seller of 20 per cent, of purchase price as “liquidated damages,” upon buyer’s refusal to accept the shipment, but contained nothing to disclose the purpose of such stipulation, the sum agreed to be paid is a penalty; the parties having known at time of making contract that damages in case of breach could be easily proved.
    5. Sales ©=>340 — Rights of Sellee — Election of Remedies.
    Upon buyer’s refusal to accept goods, seller may retain property and recover difference between contract and market price at time and place of delivery, or hold property at buyer’s risk and recover contract price, or resell property and recover difference between amount realized at sale and contract price and expenses of sale.
    6. Sales ©=5339 — Buyeb’s Refusal to Accept — Rights of Selles — Damages — Resale.
    Where buyer refused to accept goods he had purchased, seller, having elected to resell the goods, could recover as damages only the difference between contract price, plus expenses of sale and the amount realized from the sale, although he could have sold similar property to buyer at resale and recovered another profit.
    Appeal from Dallas County Court, at Law; T. A. Work, Judge.
    Action by the Southern Rock Island Plow Company against Andrew Bowden. Judgment for plaintiff, and defendant appeals.
    Reformed, and affirmed as reformed.

      R. P. Dorough, of Texarkana, for appel--lant.
    Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   RASBURT, J.

Appellee sued appellant in the court below for certain items of damage alleged to be the consequence of appellant’s refusal to accept a shipment of wagons sold by the former and purchased by the latter, and tendered through carrier for delivery at Texarkana in compliance with the terms of a written contract between the parties. There was trial by jury, to whom were referred, in the form of the usual interrogatories, certain controverted issues of fact for special verdict. Upon the verdict returned by the jury there was judgment for appellee on all matters in controversy; and no issue is made in this court in that respect. A part of the judgment, however, consists of an item of $318.90, which is attacked, and which was referred to and determined by the court, due to the fact that the right to recover that item depended upon the provisions of the contract and certain uncontroverted facts. It is therefore necessary to recite the provision of the contract and the facts relating to that item.

The contract is an elaborate one, and has numerous provisions relating to as many matters. The only provision affecting the matter in controversy, however, is one which in substance provides that appellant, the buyer, shall not countermand the “order,” refuse to receive the articles of merchandise, or have shipment held beyond current season, save upon payment to appellee, the seller, of all freight, storage, injury to the property, or other actual outlay and expenses, together with 20 per cent, of the purchase price thereof, or invoice, “as agreed liquidated damages.” When the wagons arrived at Texarkana, where they were by the contract to be delivered, appellant refused to accept them from the carrier. They were taken in charge by appellee and resold for $54.20 less than the amount appellant agreed to pay therefor, after deducting all expenses incurred in the resale. The approximate average profit realized by appellee upon sale of wagons of the character purchased by appellant and the profit realized on the sale to appellant is 20 per cent, of the sale or invoice price, which in the instant case was $31S.90. The action of the court in awarding appellee judgment for said item is founded upon the provision of the contract and the facts just recited.

Appellant complains of the action of the court in the respect stated, and contends, in effect, that the contract provision quoted discloses a penalty, and not liquidated damages, entitling appellee to recover only his actual damages, which, without controversy, the record discloses is $54.20, from which it results that the judgment is excessive to the extent of said item of $318.90. This contention presents an old and oft-recurring issue, one in fact which arises with nearly every attempt to enforce similar agreements. The fight to contract for the payment of compensation for loss or injury which may accrue as result of a breach of the contract is inherent, of course, and as a consequence the issue always is whether the sum named is a penalty or liquidated damages, which the parties as a rule declare it to be. An eminent authority declares that the English and American cases concede the following rules:

“Where the sum fixed as liquidated damages is manifestly above the injury sustained, it will be held to be a penalty, and only actual damages can be recovered. Where the contract is for a matter of uncertain value, and a sum is fixed to be paid on the breach of it, the sum, if not clearly unreasonable, is recoverable as liquidated damages. Where the payment of the money appears to have been intended only to secure the performance of the contract, it will be construed as a penalty. Where the contract contains a number of conditions, and the penalty is applied to only one of them, it is not recoverable as liquidated damages.” 4 Elliott, Contracts, § 3767.

The cases from our own courts reflect at least the following well-defined rule: Since the intention of the parties is. a cardinal factor in determining the meaning and purpose of the parties, it shall prevail, if it can be ascertained from the language. This rule has been applied in cases where the parties expressly declare the sum named is intended as a forfeiture or penalty, and no other intention can be gathered from the contract. Durst v. Swift, 11 Tex. 273; Eakin v. Scott, 70 Tex. 442, 7 S. W. 777; Norman v. Vickery, 60 Tex. Civ. App. 449, 128 S. W. 452; Witherspoon v. Duncan, 62 Tex. Civ. App. 361, 131 S. W. 660. See, also, 13 Cyc. 90; 8 R. C. L. 560. The latter authority, at page 567, cites authorities indicating that the intention of the parties is not all-controlling, when the sum stipulated is shown to be out of proportion to the probable loss. As much is indicated in Collier v. Betterton, 87 Tex. 440, 29 S. W. 467. Where it appears from the subject-matter of the contract that the damages which will probably result from a breach of the contract are uncertain and indeterminate, the sum stipulated will be construed as liquidated damages. Eakin v. Scott, supra; Collier v. Betterton, supra; Orenbaum Bros. v. Sowell Bros., 153 S. W. 905. Where it appears from the subject-matter of the contract that the damages which will probably result from a breach thereof are certain and indeterminate, the sum stipulated will be held to be a penalty. Eakin v. Scott and Collier v. Betterton, supra; Palestine Ice Co. v. Connally & Co., 148 S. W. 1109 We have not cited all the cases on the subject, but merely those regarded as representative of the rules. Incidentally, it would seem that the last two rules stated would include aE conceivable cases, since in every case the damages are or are not certain and determinate; yet • there have been as many cases applying the rule first stated as have applied the latter two rules, which seem to firmly fix that rule in our jurisprudence, although the modern tendency is against it.

We come, then, to the task of apply ing the rules as we conceive them to the contract involved in the present proceeding. The contract, summarized and briefly restated, declares that it may not be revoked by the buyer, save upon payment of any injury to the property, charges thereon for the freight, storage, or other expense, and in addition 20 per cent, of the purchase price as ‘‘agreed liquidated damages,” which is but to say it may be revoked by complying with those provisions. Nothing more tending to disclose the intention of the parties is contained in the contract. What the 20 per cent, is intended to cover cannot be determined by the other provisions of the contract, save the recital that it is agreed liquidated damages. But it is at once apparent that such sum was not inserted for the reason that tlie actual damages could not be ascertained in ease of breach, since the measure of damages in such case would be the difference in the contract price of' the wagons and what they would bring in the market after the breach, a fact easily proved. It is equally apparent that there is nothing in the contract from which it may be inferred that the probable damages had been considered by the parties and fairly fixed at the sum myned. There is in the contract nothing expressly indicating tfiat! the sum was intended as a forfeit, by which \t may be said that no other conclusion can be reached, save an intention to forfeit the sum named at all events in case of breach. Some purpose was intended, to be sure; but the purpose not being disclosed by the contract, or inferable from its other provisions, it follows that the sum named is a penalty, or the price to be paid for revoking same, and as a consequence the amount recoverable under the contract will be,- not the penalty, but whatever the actual damages may be shown to be.

In that connection it appears without dispute in the evidence that the actual loss to appellee was 20 per cent, of the purchase prjce, or $318.90; such sum being, the profit he would have made on the sale, to appellant. It also appears that appellee resold the wagons, and realized from the sale the profit he would have secured from appellant, less $54.20. Appellant argues that, appellee having resold the property for only $54.20 less than he would have received, had appellant accepted it, that sum is the measure of appellee’s damage. Appellee argues, however, that the resale does not satisfy his damage, since, but for appellant’s default, he would have sold other wagons to the party to whom he resold the wagons purchased by appellant. The question then is: How was appellee’s actual damage to be measured? The determination of that issue depends upon the remedy pursued by the seller when the contract is breached. The seller may retain the property and recover the difference between the contract price and the market price at the time and place of delivery, or hold the property for and at the risk of the buyer and recover the contract price, or resell the property at the best obtainable price at the place of delivery, if there be a market there, and, if not, at the market most accessible, and recover the contract price and all reasonable expenses of sale, less the net amount realized at the sale. White v. Matador L. & C. Co., 75 Tex. 465, 12 S. W. 866; Waples v. Overaker & Co., 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Halbert v. Newell, 27 S. W. 767; Sour Lake Townsite Co. v. Deutser Furniture Co., 39 Tex. Civ. App. 86, 94 S. W. 188.

Appellee elected to resell the property, and, after paying certain items of expense or special damages, about which there is no controversy, he realized ithe net amount, less $54.20, he would have received from appellant, had the latter accepted the property. That in our opinion, under the rule stated, compensates appellee for the actual loss sustained, since, where the buyer elects to resell, he is entitled to recover the contract price and all reasonable expenses incurred after deducting the net amount realized at the resale. It may be true that appel-lee could have sold similar property to the customer to whom he resold the property refused by appellant, and thereby realized another profit. Appellee could have preserved that right and secured the additional profit by holding the property for and at the risk of the buyer and recovering the contract price. This it did not do, and, having made its election, is limited to that measure of damages regulating the remedy pursued.

In consonance with the foregoing views, the judgment of the trial court will be reformed, by reducing the amount thereof to $183.78, with interest at 6 per cent, per an-num from the date of the entry of the judgment below until paid, and, as reformed, will be affirmed: appellee to pay the costs of appeal.
      <&=»For oilier cases see same topic and KEY-NXJMBBR in all Key-Numbered Digésts and Indexes


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CLEMENT GRAIN CO.
    (No. 5935.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 7, 1918.
    Rehearing Denied Nov. 6, 1918.)
    1. Carriers <S=>69(5) — Bill ott Lading — Bona Fide Purchaser — Findings.
    Facts as found by the court held to show that plaintiff was an innocent holder for value of a bill of lading for a car of corn.
    2. Carriers <@=359 — Bills oe Lading — De-lated Shipment — Liability to Bona Fide Purchaser.
    Where a carrier, in accordance with its custom issued a bill of lading, complying with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 715, 716, in exchange for initial carrier’s bill of lading routing over its lines to destination, and same was transferred to an innocent purchaser for value, it became incontestable under article 719, and the carrier was liable for loss of shipment by delayed transportation, although it did not receive shipment until long after issue of bill of lading, because routing was changed withoht its knowledge.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Suit by B. E. Clement, doing business as the Clement Grain Company, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. E. Spell and G. H. Penland, both of Waco, for appellant. Davis & Cocke, of Waco, for appellee.
   KEY, C. J.

This is a suit by B. E. Clement for the value of a ear of corn shipped from St. Joseph, Mo., to Temple, Tex. There was no jury in the case, and the trial court rendered judgment for the plaintiff, and the defendant railway company has appealed. The plaintiff was doing business in the name of Clement Grain Company.

' The judge’s findings of fact, which are not challenged by appellant, are as follows:

“(1) I find that on February 28, 1912, plaintiff, B. E. Clement, doing business at Waco, Tex., under the name of Clement Grain Company, purchased from Walker Grain Company, of Ft. Worth, Tex., a car of No. 3 white corn, 60,000 pounds, to be delivered at Temple, Tex., at an agreed price of 80% cents per bushel, inclusive of fréight charges to Temple, Tex.
“(2) That on the same day Walker Grain Company, pursuant to said contract of sale, indorsed and attached to a demand draft on plaintiff for $703.50 (being the amount of agreed purchase price less freight charges) a bill of lading issued by defendant, Missouri, Kansas & Texas Railway Company of Texas, at Ft. Worth, Tex., on February 28, 1912, authenticated according to law, and acknowledged receipt at Ft. Worth, Tex., from said Walker Grain Company of 60,000 pounds of bulk com in apparent good order, consigned to order of Walker Grain Company at Temple, Tex., notify Clement Grain Company at Temple, Tex., car initials and number recited to be No. 65190 B. & M. There were also attached to said demand draft on plaintiff official weight and grade certificates dated February 24, 1912, issued, respectively, by St. Joseph, Mo., Board of Trade and Missouri State Grain and Inspection Department at St. Joseph, Mo., showing the corn contained in said car was of contract weight and grade.
“(3) The bill of lading above referred to as issued by defendant railway company also bore the notation, ‘Issued in lieu of C. G. W. St. Joseph, B/L of 2/24.’
“(4) I find that the next day, to wit, March ,1, 1912, said demand draft, with indorsed bill of lading and certificates attached, was presented to plaintiff and paid by him, and that in paying same plaintiff relied upon the bill of lading and accompanying certificates, and acted in good faith ami without notice of any vice or defect therein.
“(5) The ordinary running time of a car of corn from St. Joseph, Mo., to Ft. Worth, Tex., is about five days, and the ordinary running time from Ft. Worth to Temple, Tex., would be twenty-four hours.
“(6) No. 3 white corn, such as that involved in this shipment, at the season in question, would not begin to deteriorate before ten or fifteen days after it was loaded into cars.
“(7) The market value at Temple, Tex., of corn of the grade involved in this controversy, on or about March 1, 1912, was 80% cents a bushel delivered there, or $703.50 for car of 60,000 lbs., over and above freight charges.
“(8) I find further that the car of corn in question was not in fact in Ft. Worth, Tex., on February 28, 1912, when the bill of lading transferred to plaintiff was issued by defendant railway company; that on February 24, 1912, car No. 65190, B. & M., the car described in said B/L, containing 60,000 lbs. of No. 3 white corn, officially weighed and inspected, was delivered to Chicago' & Great Western Railway at St. Joseph, Mo., by Burk Grain company, consigned to shipper’s order, Sherman, Tex., notify Walker Grain Company at Ft. Worth, Tex., the bill of lading specifying routing as follows: O. & G. W. to Kansas City; thence over rails of the M., K. & T. Ry. Co., to Sherman, Tex.
“(9) The car of corn left St. Joseph, Mo., on February 27th, over line of C. & G. W. Ry. Co., arriving at Kansas City on the same day, where, upon request of Walker Grain Company, said Burk Grain Company had the routing changed so that said car should go via Santa Fé Ry. Co. from Kansas City instead of over M., K. & T. Ry. The car was thence transported over various lines of the Santa Fé system to Dallas, Tex., where on March 6, 1912, it was delivered by G., C. & S. F. Ry. to the H. & T. O. Ry. Co., by which last-named railway it was carried to Sherman, arriving there at noon on March 12, 1912, postal card notice being given on that date by the railway agent to the Walker Grain Company, Ft. Worth, Tex., of the arrival of the car at Sherman.
“(10) The car remained at Sherman in possession of the H. & T. C. Ry. Co. until April 13, 1912, when, under authority of freight claim agent of said railway company, it moved to Dallas over its line, and on April 15th was delivered by it to defendant, M., K. & T. Ry. Co., by whom it was carried to Temple, Tex., arriving there on same day.
“(11) While the car remained in Sherman it was inspected twice, the first time on April 8th, when same was found hot and musty, and the second time on April 10th, and the corn found to be musty, partly decayed, hot, and stuck together in cakes, and not in a merchantable condition.
“(12) Upon the arrival of the corn at Temple it was carefully inspected, and the corn found very hot and rotten, and was wholly worthless ; whereupon Crouch Grain Company, to whom plaintiff had two or three days after his own purchase contracted to sell same at the prevailing market price, refused to accept same or pay plaintiff for same, and the value of the ear was a total loss to plaintiff.
“(13) When plaintiff purchased the car of corn from the Walker Grain Company and paid the draft he did not, nor did he at any time up to the arrival of the car at Temple, know where the ear of corn was, otherwise than as represented by the bill of lading, upon which he relied in paying the draft.
“(14) I find that in February, 1912, it was a general custom in the office of the commercial agent of defendant railway company at Ft. Worth, Tex., to issue what was known as exchange bills of lading in lieu of other bills of lading that had been issued by other roads, where the original bill of lading, showed routing via line of defendant railway, although the cars affected might not have actually come into possession of the defendant railway company, the original bill of lading being always surrendered before the exchange bill of lading was issued.
“(15) I find that Walker Grain Company, on February 28, 1912, delivered to the commercial agent of the defendant, M., K. & T. Ry. Co. of Texas, at Ft. Worth, Tex., the original bill of lading issued by Chicago & Great Western Railway Company at St. Joseph, Mo., above referred to, covering the ear of corn in controversy, showing routing C. & G. W. Ry. to Kansas City, care of M. K. & T. Ry. Co., with request that the car be diverted from Sherman, Tex., to the order of the Walker Grain Company, Temple, Tex., ‘notify Clement Grain Company, Temple, Tex.’ Bill of lading properly executed, as prescribed by Texas statutes, was accordingly issued and delivered to Walker Grain Company by defendant, M., K. & T. Ry. Co. of Texas, as requested, in form, of ordinary order hill of lading, dated Ft. Worth, Tex., February 28, 1912, which was the same hill of lading indorsed in blank by Walker Grain Company, and on same day attached to draft on plaintiff as above set forth. The original bill of lading was retained by the railway agent.
“(16) I further find that at the time said exchange bill of lading was issued defendant M., K. & T. Ry. Co. of Texas had no knowledge or notice that Walker Grain Company had already diverted the car of corn at Kansas City to the line of Santa Fé Railway Company, nor did plaintiff know of such fact at the time he paid the draft drawn on him for the purchase price of the car, or at any other time before said car reached Temple.
“(17) I find that the market value at Temple, Tex., of corn of the grade involved in this controversy, continued to advance from March 1, 1912, up to date of arrival of car in Temple.
“(18) I find that, two or three days after his own purchase from Walker Grain Company, plaintiff contracted to sell the same car of corn to Crouch Grain Company of Temple, who refused to accept same when the car arrived at Temple, on account of its worthless condition; plaintiff also declined to accept the car, and plaintiff has never collected the price of the car from Crouch Grain Company, nor collected back any money, nor had any allowance from or adjustment with Walker Grain Company on account of it.”

Opinion.

As conclusions of law the learned trial judge held: (1) That the plaintiff was an innocent holder for value of the bill of lading issued at Ft. Worth, Tex., February 28, 1912, by appellant, and that by force of statutory law it was incontestable as to the matters and things therein' set forth; and (2) that appellant had constructive possession of the car of com when it issued the bill of lading referred to.

On the first point we concur with the trial court, and-express no opinion as to the second question. 1 Vernon’s Sayles’ Civil Statutes, arts. 715, 716, 719.

The statute referred .to prescribes the requisites of a bill of lading, and requires common carriers, except express and pipe line companies, to issue to shippers bills of lading in conformity with the statute. Article 719 of that statute reads as follows;

“Each and every bill of lading issued by the authorized agent of any carrier or receiver thereof, affected by the provisions of this chapter, shall be deemed and held to be the act and deed of such carrier or receiver thereof, and the principal shall be liable thereon in accordance with the terms thereof. When any such bill of lading shall be validated, authenticated, or certified in accordance with the rules and regulations herein provided for, and as may be prescribed by the railroad commission in accordance with the provisions of this chapter, and in the hands of an innocent holder for value, it shall be incontestable as to the matters and things therein set forth.”

The facts found by the trial judge and disclosed by the testimony show that the plaintiff in this case was an innocent holder for value of the bill of lading issued by appellant on the 28th day of February, 1912; and although the shipment did not, in fact, come into its possession until a considerable time thereafter, and although it may have exercised proper diligence to deliver the same after it came into its possession, nevertheless as it was stated in the bill of lading that it was then in possession of the property, and as appellee relied upon that statement when he bought and paid for the ear of corn, he was an innocent holder for value; and therefore by force of the statute the bill of lading was incontestable, and it constituted no defense for appellant to show that, as a matter of fact, it did not at that time have possession of the property referred to, and exercised due care and diligence after it received it. Nor does it make any difference that appellant was ignorant of the fact that the routing of the shipment had been changed, and believed that the property was at the time referred to in appellant’s possession. It could have ascertained that the routing of the shipment had been changed and that the property was not in its possession before it issued the bill of lading. If it had been shown that appellant was misled by some statement made by appellee, and thereby caused to believe that the routing had not been changed, and that the property was in appellant’s possession, a different question would be presented; but no such state of facts was shown. On the contrary, the proof shows that, when appellee bought the car of corn and paid for it, he had no knowledge of the fact that it was not in possession of appellant at the time the bill of lading referred to was issued.

Some other questions are presented and decided against appellant.

Judgment affirmed.
      <g=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes