author: SWEARINGEN, J.

text:
    PEREZ et al. v. MAVERICK.
    (No. 5941.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1918.
    On Motion for Rehearing, April 3, 1918.)
    1. Cancellation of Instruments <&wkey;37(8)— Petition— Sufficiency.
    In suit to rescind an executory contract for the sale of land on the ground that the purchase-money note had not been paid, plaintiff’s petition, which did not disclose that any portion or the purchase money had been paid, hut which clearly alleged that the superior title was in him, and that defendants unlawfully entered the premises and ejected plaintiff, and were withholding from him the land, stated a cause of action, though not alleging offer to return or notice of intent to rescind.
    2. Vendor and Purchaser <&wkey;119 — Rescission — Time.
    In suit to rescind an executory contract for the sale of land on the ground that the purchase-money note, secured by a vendor’s lien reserved in the deed, had not been fully paid, although Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5694, provides that purchase money will be conclusively presumed to have been paid 4 years after maturity of indebtedness where the right to rescind matured February 23, 1881, a petition filed November 16, 1914, was within time in view of article 5695, providing that the owners of all notes secured by vendor’s liens reserved in deeds, executed prior to July 14, 1905, and which are more than 4 years past due when this act takes effect, shall have 12 months after this act takes effect in which to bring suit; such statute extending time in present case to November 19, 1914.
    3. Witnesses <&wkey;159 (2) — Transactions with Persons Since Deceased.
    In a suit against heirs to rescind a contract for the purchase of land on the ground that the purchase-money note had not been paid, plaintiff could not testify in his own behalf that the balance of the note had never been paid, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, as to evidence of transactions with a deceased party in action against heirs.
    4. Appeal and Error &wkey;>913 — Appearance oe Unknown Heirs — Presumption.
    Where plaintiff made the unknown heirs parties defendant, as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1875, it must be presumed on appeal that the unknown heirs appeared and answered whore the attorney sign-. ed the answer as the answer of all defendants, and the court did not appoint an attorney ad litem to represent unknown heirs, as required by article 1941, whore they do not appear.
    5. Appeal and Error <&wkey; 1048(2) — Admission of Incompetent Testimony — Reversible Error.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, providing that the survivor should not be allowed to testify in his own behalf as to any transaction with deceased in suit against heirs in suit to rescind a contract for purchase of land on the ground that the purchase-money_ note had not been paid in full, permitting plaintiff to testify over objection that the balance of the note had never been paid, was reversible error, where it appeared from the face of the note introduced in evidence that it was more than 30 years past due; the legal presumption in such case being that the note had been paid.
    6. Cancellation of Instruments <&wkey;50— Waiver of Right to Rescind — Question of Fact.
    In a suit against heirs to rescind a contract for purchase of land on the ground that purchase-money note had not been paid in full, where, under the law, plaintiff owned the superior title until the purchase money was paid in accordance with the contract in evidence, whether he waived the right to rescind was a question of fact to be determined from all the evidence.
    7. Appeal and Error <&wkey;931 (7) — Failure to Submit Issue — Presumption.
    Where failure of court to submit question whether plaintiff had waived his right to rescind was not complained of, it will be presumed on appeal that the court resolved such issue in favor of plaintiff, who procured judgment.
    8. Cancellation of Instruments <&wkey;59 — Rescission by Vendor — Right of Purchaser.
    In a suit against heirs to rescind a contract for the purchase of land for failure to pay all of purchase-money note, where defendants averred no equitable relief further than that permanent and valuable improvements were put on the land and prayed for the value of such improvements only, the judgment was not erroneous for failure to award to defendants the portion of the purchase money paid and the value of the improvements.
    9. Trial <®=194(1) — Instructions—Invading Province of Jury.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, providing that the judge shall not charge or comment on the weight of the evidence, the court properly refused to instruct upon the relative importance of surrounding circumstances and inferences, or to call attention to the evidence thereof.
    10. Cancellation' of IInstruments <&wkey;50— Improvements Made in G-ood Faith.
    In suit by vendor to rescind contract for sale of land for failure to pay all of purchase-money note, where plaintiffs answered that note had been fully paid, and that they had in good faith made valuable improvements, whether defendants believed the purchase money had been fully paid was properly submitted.
    11. Appeal and Error <&wkey;230 — Grounds for Review — Timely Objections and Exceptions.
    Error as to court’s charge upon burden of proof, not being presented as required by Vernon’s Sayles’ Ann. Civ. St. art. 1971, requiring objections before charge is read to jury, the court on appeal is without authority to review the question.

      On Motion for Rehearing.
    12. Cancellation of Instruments <&wkey;43— Issues Raised by Answer of Not Guilty.
    In suit by vendor to rescind contract for sale of land for failure to pay all of purchase-money note, defendants’ answer, alleging not guilty, raised issues of waiver and laches.
    13. Cancellation of Instruments <&wkey;47— Right to Rescind — Waiver—Evidence.
    In suit by vendor to rescind contract. for sale of land defended on the ground of waiver, evidence held to warrant finding for plaintiff on issue of waiver.
    14. Trespass to Try Title <&wkey;25 — Defense of Laches — Availability.
    In trespass to try title founded upon legal and not equitable title, laches was no defense; defense of laches being applicable only to suits in equity.
    15. Payment <&wkey;66(5) — Presumption — Evidence.
    The presumption of payment of note created by long lapse of time is only prima facie, and other evidence relating to issue of payment, together with the long lapse of time, is to be considered by the jury in determining such issue.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by W. H. Maverick against Alejo E. Perez and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    W. W. King, of San Antonio, for appellants. Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee.
   SWEARINGEN, J.

W. H. Maverick, appel-lee, brought this suit to rescind an executory contract of sale of 140 acres of land made by him in 1880. The rescission was sought because the purchase-money note secured by vendor’s lien reserved in the deed had not been fully paid. The defendants were Alejo E. Perez, Henry Perez, Edmund Perez, Mary M. Perez, Gertrudes Perez, Arturo Perez, Rudolph Perez, and the unknown heirs of Alfredo S. Perez, deceased, and also the unknown heirs of Juana Navarro y Alsbury, deceased. A jury answered special issues submitted to it, upon which judgment was rendered for the appellee.

The petition alleges that on February 23, 1880, appellee made, executed, and delivered to Juana Navarro y Alsbury, deceased, a deed to the described 140 acres of land, which deed expressly retained the superior title in appellee until a purchase-money note for $700 was paid. The note was dated February 23, 1880, and by its terms became diie one year from its date, and bore 12 per cent, interest per annum from its date. Failure to fully pay the note was alleged, as was the fact that appellee had exercised his option to rescind the sale because of failure to pay the note. It was further alleged that because appellee had exercised his option to rescind, he owned the superior title, and was entitled to the possession of the land which was wrongfully withheld from him by the appellants. The prayer was for judgment canceling the deed, and for title, for possession of the land, for writ of restitution, and judgment for damages of $5,000, and costs of suit, and for such other relief, both special and general at law and in equity, to which he may be justly entitled. Appellants answered by a general demurrer, a special exception that the petition showed the cause was barred and a general denial. Appellants specially answered that the note was fully paid, and that in good faith they had made permanent and valuable improvements on the land, which were itemized and averred to be of the value of $2,465, for which sum judgment was asked in the event of judgment in favor of appellee for the land.

The evidence discloses that appellee executed a deed for 140 acres of land to Juana Navarro y Alsbury, February 23, 1880, in consideration of a note for $700 of same date, payable one year thereafter. A vendor’s lien was retained in the deed to secure the payment of the note. The note bore 12 per cent, interest per annum from its date. On the same day the note was dated, viz. February 23, 1880, a payment of $575 was made and credited on the note, leaving a balance due February 23, 1880, of $125. On May 9, 1882, a payment of $15 was made and accepted on the note, and on the same day $33.75 was paid as interest on the $125 balance due on the note for the period from February 25, 1880, to May 9, 1882, and on the $110 from May 9 to May 23, 1882. This interest was in excess of the contract and lawful rate, which was 12 per cent. Thereafter, on November 11, 1886, a third payment of $40 was made and accepted, and on the same day $61 was paid as interest on the balance of the note, which was. in excess of the contract and legal rate. After this' last payment of November 11, 1886, there was less than $6S, balance due on the note. When the deed was executed and the $575 paid on the note, appellants went into possession of the land, used it for their homestead, and placed on it improvements to the value of $2,540. Since that time appellants have been using and cultivating the land and paying taxes on it as their own.

After the last payment of November 11, •1886, appellee notified one of the appellants by letter dated May 27, 1887, to pay the taxes on the land, and to pay the balance due him on the note. It will be presumed that the tax was paid. On April 23, 1888,'Albert Maverick, agent for appellee, notified by letter one of the appellants that the land was advertised for sale for taxes, and requested him to pay $70, claimed to be due on the original $700 note. No further demand for payment was made by appellee until 1913, when Lewis Maverick, a son of appellee, a child of 3 years when the sale was made, had matured into ■ a man and a lawyer, demanded payment of the balance due on the note, which he claimed to be $70, together with interest at the rate of 12 per cent, per annum from November 11, 1886, nip to the date of the demand in 1913. During a quarter of a century, from April, 1888, appellee and his agent frequently met the appellant to whom he seemed to have looked for his payments, but never requested further payment of the note.

The only proposition submitted under the first three assignments is that the general demurrer to the petition should have been sustained because it failed to allege an offer to return the portion of the purchase money received, and because it failed to allege notice of intent to rescind. The petition does not disclose that any portion of the purchase money had been received by appellee; the petition clearly alleges that the superior title was in appellee, and that appellants unlawfully entered the premises and ejected appel-lee, and were withholding from appellee the land, thereby stating a cause of action. The general demurrer was properly overruled. The first three assignments are overruled.

By the fourth assignment it is contended that the right to rescind the contract expired before this suit was filed. The right to rescind for failure to pay the balance of the purchase-money note matured February 23, 1881. By act of the Thirty-Third Legislature (chapter 123), the holder of the superior title was given until July, 1914, in which to bring suit to establish his right. In August, 1913, the Thirty-Third Legislature at its first called session (chapter 27) extended the time to November 19, 1914. The petition in this suit was filed November 16, 1914, which was within the time expressly given by the statute. V. S. R. O. St. art. 5695. The fourth assignment is overruled.

The fifth assignment complains of the admission, over objection, of the testimony of W. H. Maverick, the appellee, to the effect that the balance on the note had never been paid. The objection was that the evidence related to transactions between appellee and a deceased party in an action by appellee against the heirs of the deceased. This assignment must be sustained, because the facts of this case bring it within the prohibition of V. S. R. C. St. art. 3690.

From the testimony introduced by ap-pellee it appears that in 1901 Alfred S. Perez became the owner by warranty deed of the land involved here. In 1908 he conveyed the life estate to Alejo E. Perez, retaining the fee subject only to the life estate. Appellee’s petition alleges the death of Alfred S. Perez, and makes the unknown heirs of Alfred S. Perez parties defendants, as provided by V. S. R. O. St. art. 1875. It must be presmned that these unknown heirs appeared and answered as the attorney signed the answer as the answer of all the defendants, and for the further reason that the court did not appoint an attorney ad litem to represent the unknown heirs, as required where no appearance is made by the unknown heirs cited by publication. Vernon’s Sayles’ Rev. Civ. St. art. 1941.

The bill of exception by which the objection to the evidence was brought before us recites that the objection was made by all the parties defendant. When urged by the heirs of Alfred S. Perez, the objection should have been sustained. Swan v. Price, 162 S. W. 998, par. 5; Johnson v. Lockhart, 16 Tex. Civ. App. 32, 40 S. W. 640; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am, St. Rep. 816; Abbott v. Stiff, 81 S. W. 562; Wootters v. Hale, 83 Tex. 563, 19 S. W. 134; Newton v. Newton, 77 Tex. 510, 14 S. W. 157; Chamberlain v. Boon, 74 Tex. 660, 12 S. W. 727; Kohlberg v. Awbrey, 167 S. W. 828; Pennybacker v. Hazelwood, 26 Tex. Civ. App. 183, 61 S. W. 153; Baugh v. Geiselman, 23 Tex. Civ. App. 143, 55 S. W. 615. This is reversible error because the note pleaded and introduced in evidence appears upon its face to be more than 30 years past due, which fact creates the legal presumption that the note has been paid in full. Rogers v. Pettus, 80 Tex. 425, 15 S. W. 1093; Fessenden v. Barrett, 9 Tex. 475; Mills v. Alexander, 21 Tex. 154. Appellee’s cause of action depends upon the fact that the note has not been paid in full. The presumption of 'payment, therefore, would defeat the cause of action. To meet this contingency the testimony of appel-lee was offered. Its exclusion leaves appellee without testimony to support the judgment. However, it may be that the admission of this testimony, erroneous though it was, prevented appellee from availing himself of other testimony not prohibited by the statute by which the nonpayment could be proved, for which reason the cause will be remanded for another trial, instead of being here rendered.

The sixth assignment urges that the court erred in rendering the judgment herein, because it appears from the undisputed evidence that appellee demanded payment of the note over 30 years after the maturity, which evidence conclusively shows a waiver of the right to rescind. Under the law appellee owned the superior title to the land until the purchase money was paid in accordance with the terms of the executory contract in evidence here. Whether that right was lost by waiver was a question of fact to be determined from all the evidence. That this fact was not submitted to the jury was not complained of by appellants, and it would be presumed that the trial court determined the issue upon the evidence against appellants if the issue had been pleaded by appellants, but no such issue was made by the answer of appellants. The sixth assignment is overruled.

The seventh assignment contends that the evidence shows appellee’s cause of action had become a stale demand by reason of his laches. Neither laches nor limitation was pleaded; but bad they been tbe assignment could not be sustained, because tbe statutes expressly prolonged tbe time for sucb a suit as this until November 19, 1914, and this suit was filed November 16,1914. Tbe assignment is overruled.

Tbe judgment is asserted to be erroneous in the eighth assignment, for tbe reason stated that it should have awarded to appellants the portion of the purchase money paid, with interest and the value of the improvements. The issues made by appellants’ answer, it will be recalled, are those raised by the general denial, the plea of payment, and the plea that valuable improvements were made on the land. No affirmative, equitable relief was averred or prayed for .except tbe "bare statement thait permanent and valuable improvements were put on the land, and prayer for their value. The pleadings limit the issue before us to the question solely of the value of the improvements. And the question of improvements is, by the pleading, narrowed to the contention that as a matter of equity the owner of a superior title cannot assert his right and demand its enforcement without reimbursing the defaulting contracting party for improvements built on the land by him for his own personal use and convenience. Such is not the law. Appellants could have pleaded facts that would extenuate his default that may have entitled him to an adjustment of equities; but none such were pleaded. Patrick v. Roach, 21 Tex. 251; Browning v. Estes, 3 Tex. 462, 49 Am. Dec. 760; Lanier v. Foust & Douglas, 81 Tex. 186, 16 S. W. 994; Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238; Dunlap v. Wright, 11 Tex. 597, 62 Am. Dec. 506; Allen v. Mitchell, 13 Tex. 373; Atterberry v. Burnett, 102 Tex. 118, 113 S. W. 526; Atterberry v. Burnett, 52 Tex. Civ. App. 617, 114 S. W. 159; Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290 (in this last a number of cases are reviewed); Hamblen v. Folts, 70 Tex. 134, 7 S. W. 834; White v. Cole, 87 Tex. 500, 29 S. W. 759; Thompson v. Robinson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Rep. 843; Walls v. Cruse, 185 S. W. 1033; Key v. Jones, 191 S. W. 736. Tbe eighth assignment is overruled.

The court properly refused to instruct the jury upon the relative importance of surrounding circumstances and inferences relied upon by appellants, and direct testimony relied upon by appellee, or to call attention to tbe evidence of surrounding circumstances and inferences. Such an instruction as requested is prohibited by the statute. V. S. R. C. St. art. 1971; Noblett v. Harper, 136 S. W. 519; Heldt v. Webster, 60 Tex. 207; Beaumont Pasture Co. v. Preston, 65 Tex. 449. The ninth and tenth assignments present the questions above disposed of, and are both overruled.

The eleventh assignment is presented upon the theory that the third special issue was erroneous because it required the jury to find whether the defendants believed the purchase money had been paid in full when they made the improvements on the land. Under the issues made by the pleadings this issue was properly submitted. The assignment is overruled.

The twelfth assignment complains of the alleged error in the court’s charge upon burden of proof; but error, if any, is not presented to us in accordance with the statutory rules, and we are therefore without authority to review the question. V. S. R. C. St. art. 1971.

The court properly refused the peremptory instruction, which is complained of in the thirteenth assignment. It is true that article 5694 establishes the rule that purchase money will be conclusively presented to have been paid 4 years after the maturity of the indebtedness, and it is probably correctly contended that the words, “conclusively presumed,” mean that evidence will not be heard to contradict a conclusive presumption. However, in this instance tbe succeeding article of the statute, viz. 5695, extends the period, within which the presumption of payment shall become conclusive, until November 19, 1914, whereas this suit was filed November 16,1914. The assignment is overruled.

Because of the error set out in the fifth assignment, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Counsel for appellants, in his motion for rehearing, calls our attention to several errors in our opinion rendered in this cause.

In stating the answer of appellants, we omitted to say that “not guilty” was alleged. This omission led us to make two other erroneous statements : In our consideration of the sixth assignment, we stated that appellants had not pleaded the defense that appellee had waived his legal right to recover his land. This was error, for we are persuaded that this issue was raised by the statutory plea of “not guilty.” However, as we held in the opinion, the court resolved this issue of fact in favor of appellee,' and we must leave it undisturbed under the evidence in this case.

Again, in our disdussion of the seventh assignment, we stated that laches was not pleaded by appellants. This was error, for the issue of laches was raised by the plea of “not guilty.” However, as admitted by counsel for appellants, the defense of laches or stale demand is applicable only to suits in equity. In the present case, appellee’s suit in trespass to try title was founded upon a legal title, and not on equitable title. The judgment will be construed as adjudicating that legal right in favor of appellee. Laches, even though pleaded, was no defense to this legal right adjudicated in favor of appellee. Prior to the statutes of 1913, there was no limitation barring the right to assert such a superior title as is herein involved.

Our opinion does not take from appellants the presumption of payment of the note created by the long lapse of time. This presumption is only prima facie evidence of payment, and can be rebutted by evidence. The presumption of payment created by long lapse of time, together with other evidence relating to the issue of payment, is to be considered by the jury in determining the issue.

Appellants’ motion for rehearing is overruled.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    ELLEDGE v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 7717.)
    (Court of Civil Appeals of Texas. Dallas.
    March 24, 1917.
    On Motion for Rehearing, April 6, 1918.)
    1. Exceptions, Bill of &wkey;>41(l) — Late Filing.
    Bills of exceptions, not filed within the time allowed therefor, cannot be considered on appeal.
    2. Appeal and Eeeoe &wkey;>511(2) — Record — Resebvation and Filing of Bills of Exceptions.
    The record must show the reservation and seasonable filing of necessary bills of exceptions.
    3. Appeal and Eeeoe <&wkey;544(l) — Bills of Exceptions — Necessity—Rulings on Evidence and Special Charges.
    Reservation and seasonable filing of bills of exceptions is necessary under Acts 33d Leg. c. 59, for review of rulings in giving special requested charges and admitting evidence.
    On Motion for Rehearing.
    4. Appeal and Eeeoe &wkey;>715(2) — Bills of Exceptions — Excuse foe Late Filing — Determination on Appeal.
    The issue of fact whether appellant’s failure to seasonably file bills of exceptions was due to fault of appellee’s counsel in detaining them for examination, presented for the first time in the appellate court by affidavits, cannot be entertained and determined.
    5. Appeal and Error <&wkey;>544(l) — Reservation of Grounds of Review — Objections to Charge — Bills of Exception.
    Did the record show that objections to paragraphs of the court’s general charge were presented to the trial court before the charge was read to the jury, they, without reservation of formal bills of exception, would entitle appellant to review of those paragraphs.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by Roland Elledge against the St. Louis Southwestern Railway Company of Texas. From an adverse judgment, plaintiff appeals.
    Affirmed.
    Miller & Miller, of Athens, and Simldns & Simkins, of Corsicana, for appellant. E. B. Perkins, of Dallas, R. S. Neblett, of Corsi-cana, and W. N. Bishop, of Athens, for ap-pellee.
   TALBOT, J.

This suit was instituted by the appellant against the appellee, to recover damages for personal injuries alleged to have been sustained by him as the result of the negligence of appellee’s servants in control of and operating one of its freight trains. The petition alleges, in substance, that appellant contracted with appellee to have it ship a car of hogs over its line of road from Ash Spur, Henderson county, Tex., to Ft. Worth, Tex.; that he got on the train transporting the hogs at Ash Spur, and went to Athens, Tex.; that while at Athens he paid the freight charges and received a bill of lading for the shipment, and also got from appellee a “drover’s pass”; that by virtue of said pass he became and was a passenger on said train; that when the train reached Mala-koff, a station on appellee’s road, he was advised that it would remain there 15 minutes; that while the train was standing at Mala-koff he alighted therefrom and went to look after his hogs and “other affairs”; that the train, after standing at Malakoff about 5 minutes, began to move off as if leaving that station, and some one of the crew in charge thereof told appellant to get aboard; that he attempted to get aboard, and for that purpose caught hold of the handholds on the caboose car attached to said train; that while he was thus attempting to get on the caboose the train, through the negligence of appellee’s servants operating the same, was “caused to give a sudden jerk, unusual and violent jolt or jostle, whereby the plaintiff was thrown to the ground and under said train, and permanently injured by having his left foot and ankle crushed, requiring amputation. Appellant prayed for actual damages in the sum of $15,000, and exemplary damages in the sum of $5,000. The appellee pleaded, among other things, a general and special demurrer, contributory negligence, and specially that appellant’s right to be upon the train was by virtue of a written contract known as a drover’s pass, and that under the terms and provisions of the same he agreed not to get on the train while it was in motion, but to get on only while the train was standing still; that he further agreed that he would not get on or off the train while switching was being done; that after the train was put in motion at Malakoff, and while moving appellant of his own volition undertook to get upon the same, and in so doing he slipped and fell, and thereby received the injuries of which he complains The case was tried by the court and a jury, and the trial resulted in a verdict and judgment in favor of the appellee.

The appellant presents seven assignments of error, but appellee objects to a consideration of all of them, and the objections are well taken. The term of the court at which the case was tried and the judgment appealed from rendered adjourned on the 10th day of October, 1915. Ninety days after adjournment was given appellant within which, to file a statement of facts and bills of exception. The time granted for the filing of these bills, as will be observed, expired on the 9th day of January, 1916. Six of said bills, as shown by the record, were not filed until the 14th day of January, 1916, and the other (the séventh) was not filed until the 23d day of February, 1916. The first, third, and fourth assignments of error challenge the correctness of certain paragraphs of the court’s general charge. The second, fifth, and sixth assert that the court erred in giving certain special, charges requested by the appellee, and the seventh complains of the admission in evidence of the contract entered into between appellant and appellee for the shipment of the former’s hogs, and by the terms of which he had the right, under certain conditions, to ride on the train carrying said hogs. There is in the record what purports to be objections made to the paragraphs of the court’s general charge complained of, but it does not appear that these objections were presented to the court before he read said charge to the jury, as required by article 1971 of Vernon’s Sayles’ Texas Civil Statutes. In fact it does not appear that the document containing these objections was ever presented to the court. There is also in the record what purports to be bills of exception, asserting that over the objections of the appellant the several paragraphs of the charge assigned as error were read -to the jury, but, as indicated above, these bills were filed after the time allowed for the filing of them had expired, and they cannot be considered in support of the assignments.

The record also contains what purport to be bills of exception reserved to the action of the court in giving the special charges requested by appellee and in admitting ' in evidence the contract entered into between appellant and appellee for the ship■mentof the hogs, but these bills, like the ones taken to the action of the court in giving the general instructions complained of, were filed after the expiration of the time allowed for the filing of them, and likewise they cannot be considered. In order to have the court review the action of the trial court in giving the paragraphs of the general charge in question, it devolved upon appellant to show by the record that the objections made by him were presented to the court before he read his charge to the jury, and. that such objections were overruled. And in order to nave this court review the rulings of the court in giving the special charges in question and admitting in evidence the contract referred to, it was necessary for appellant to have the record disclose that proper bills of exception had been reserved to such rulings and filed in the trial court within the time prescribed by law. That such was the duty of the appellant in order to take advantage of the errors, if errors, coinplained of under chapter 59, Acts 33d Leg., is so well settled that it is unnecessary to cite authorities, but the following are some of the cases upon the subject: Railway Co. v. Culver, 168 S. W. 514; Railway Co. v. Brown, 168 S. W. 866; Johnson v. Hoover, 165 S. W. 900; Roberds v. Laney, 165 S. W. 114; Saunders v. Thut, 165 S. W. 553.

The judgment is affirmed.

On Motion for Rehearing.

The appellant, in his motion for rehearing, insists that we erred in refusing to consider his assignments of error “because the failure of appellant to file his seven bills of exceptions within the statutory time was due to the inexcusable negligence of both counsel for the appellee, inasmuch as appellant had prepared his seven bills of exceptions within ample time, and inasmuch as counsel for appellee had negligently detained said bills of exceptions for examination until the statutory time had expired.” Affidavits alleging facts which tend to support this insistence have been filed in this court, and our consideration of them requested. A thorough investigation has convinced us that we are not authorized to comply with this request, however much we might be disposed to do so. The appellee has filed an answer to appellant’s motion, and an issue of fact, as to who is responsible for the failure to have the bills of exception .filed within the time allowed, is sharply drawn. Such an issue of fact presented for decision for the first time in this court by affidavits, cannot be entertained and determined. This court has no such jurisdiction. This is affirmed in disposing of similar questions by decisions of appellate courts of this state. Brown v. Torrey, 22 Tex. 54; Chrisman v. Graham, 51 Tex. 454; Von Boeckmann v. Loepp, 73 S. W. 849. A statement of facts or bills of exception cannot be supplied by affidavits. Live Oak County v. Heaton, 39 Tex. 499. Except for ascertaining matters of fact necessary to the proper exercise of their jurisdiction, Courts of Civil Appeals are confined to the record as made by the trial court. W. B. Walker & Son v. Allen, 95 S. W. 585; Willis & Bro. v. Smith et al., 90 Tex. 635, 40 S. W. 401; Telegraph Co. v. Christenson, 78 S. W. 744; Holliday v. Sampson, 42 Tex. Civ. App. 364, 95 S. W. 643; Bank v. Milling Co., 152 S. W. 663.

The objections to paragraphs of the court’s genera] charge would, it seexns, have been sufficient to have entitled aupellant to invoke the judgment of this court as to the correctness of those paragraphs, had the. record shown that the objections had been presented to the trial judge before his charge was read to the jury, without formal bills of exception reserved to the giving of them, but this the record does not show, as pointed out in our original opinion. In order, however, to have the court’s action in giving the special charges requested by appellee reviewed on appeal, it was necessary, under numerous decisions oí this state, ior appellant to present the matter in this court by proper bill of exception filed in the lower court within the time required by law. Railway Co. v. Dickey (Tex.) 187 S. W. 184.

The appeal upon the record sent to this court has been properly disposed of, and the motion for rehearing must be overruled; and it is so ordered.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    PEYTON v. STURGIS.
    (No. 7880.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1918.
    Rehearing Denied April 6, 1918.)
    1. CORPORATIONS &wkey;>415 — POWER OE OEEI-cers to Execute Mortgage.
    While, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1159, providing that the directors or trustees shall have the general management of the affairs of the corporation, and article 11G2, providing that corporations shall have power to borrow money on credit, a corporation may mortgage its property to secure payment of its debts when solvent, authority to do so does not inherently exist in any officer, but must be conferred by board of directors.
    2. Corporations <&wkey;>432(l) — Mortgages—Authority to Execute — Presumption.
    Tho execution of mortgages by the president or vice president of a corporation to secure payment of corporate debts will be presumed to be a corporate act, since such officers are the appropriate ones to exercise such functions.
    8. Corporations <&wkey;399(8) — Chattel Mortgages — Authority to Execute.
    The signing of a chattel mortgage by the secretary-treasurer of a corporation is not with apparent authority, since such officer is not ordinarily the appropriate officer to perform such acts.
    4. Corporations <&wkey;425(4) — Authority oe Oeeicer — Estoppel.
    Although, after the inception of a corporate existence, there was no corporate organization, such as the adoption of by-laws, etc., where the secretary-treasurer was in active and exclusive management of the corporation’s affairs until its assets were disposed of, the corporation would be estopped to deny the authority of such officer to execute a chattel mortgage to secure a note representing a pre-existing corporate debt; especially where the corporation received the money.
    5. Chattel Mortgages &wkey;>225(l) — Purchase oe Mortgaged Property — Estoppel.
    The corporation being estopped to deny the authority of the secretary-treasurer to execute a chattel mortgage to secure a note, representing a pre-existing corporate debt, defendant, purchaser of mortgaged property, would be es-topped in suit to foreclose mortgage, since the defense he urges is that of the corporation.
    6. Chattel Mortgages &wkey;>150(l) — Recording — Constructive Notice,.
    Where, under the undisputed evidence, the secretary-treasurer by the course adopted by the corporation for transacting its business was authorized to execute a chattel mortgage, constructive notice from recording the same will be imported to defendant, purchaser of mortgaged property, where his right to deny such notice rests solely on the claim that the officer’s acts were ultra vires.
    7. Appeal and Error <&wkey;1039(13) — Immaterial Variance — Reversal.
    The dimensions of the mortgaged property not being a material issue that the pleading gave them as 24x26 feet, while the mortgage introduced in evidence stated them to be 24x36, would not warrant a reversal.
    Appeal from District Court, Hill County; Norton B. Porter, Judge.
    Suit by George F. Sturgis against E. O. Hughes and another, in which E. H. Peyton was made a party. Judgment for plaintiff, and Peyton appeals.
    Affirmed.
    J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellant. N. J. Smith and F. E. McKee, both of Hillsboro, for appellee.
   RASBURY, J.

Appellee sued E. O. Hughes and A. >E. Wallace in the court below on their joint promissory note for $600, accumulated interest and attorney’s fees. Appellant was made a party to the suit, and. a foreclosure of a chattel mortgage lien on property securing payment of said debt and owned by appellant at time of the suit was sought against him. Jury was demanded and impaneled, but at conclusion of the introduction of the testimony the court instructed verdict against Hughes and Wallace upon the note and for foreclosure of the chattel lien against appellant, which was returned by the jury and followed by similar judgment, from which this appeal is prosecuted.

All issues presented in the briefs are raised by tbe pleadings, which render a statement thereof unnecessary. The issues presented challenge in one or another form the right of appellee under the evidence to foreclose the chattel mortgage lien against appellant. The controlling facts in that respect disclosed by the evidence are substantially without dispute, and those essential to an intelligent consideration of the issues are in substance these: Prior to the transactions hereafter detailed the Marvel Mill Company, a private corporation, was enfranchised with authority to construct a “mill and grain elevator, to buy and sell grain, and to manufacture same into food products:” After the articles of incorporation were approved by the proper state official there was no corporate organization whatever by the directors named therein, who were E. O. Hughes, A. E. Wallace, and F. L. Vanderburgh, all owning and having subscribed to an equal amount of tbe capital stock, save that it appears inferentially from oral testimony that E. O. Hughes was president and A. E. Wallace was secretary and treasurer. Wallace was in “active” management of the affairs of the corporation, while Hughes was employed by Thompson and Campbell in the office of the Hillsboro Mirror. It does not appear from tbe record that Vanderburgh served the corporation in any capacity, or that he was interested therein at the time' of the controversy involved in the present litigation. Approximately eight months after the Marvel Mill Company was enfranchised the note sued upon was executed. The note was dated August 27, 1914, payable to Sturgis Bank, unincorporated, October 1, 1914, for $600, with 10 per cent, per annum interest from date, and providing for the usual attorney’s fees if not paid at maturity, and was signed by Hughes and Wallace. At the foot of the note was the notation “mtg. on Marvel Mill.” The note represented a pre-existing debt due by Marvel Mill Company to the bank, and was in renewal thereof. As security for payment of the note chattel mortgage was executed upon a three-story frame building with concrete foundation 24x36 feet, situated on north Waco street, Hillsboro, Tex., on a lot leased from the St. Louis Southwestern Railway Company. The mortgage was signed “The Marvel Mill Co., by E. A. Wallace, Sec. & Treas.,” and filed for registration September 12, 1914, at 4:30 o’clock p. m. On November 18, 1914, Peyton, on one part, and Hughes and Wallace who denominated themselves as sole proprietors of the Marvel Mill, on the other, entered into a preliminary agreement for the sale and purchase of the Marvel Mill. In enumerating the indebtedness against the mill Hughes and Wallace failed to disclose that the debt sued on was secured by the mortgage detailed. On December 2, 1914, in consummation of the preliminary agreement Hughes and Wallace, in consideration of $8,000 paid in various ways, formally conveyed the mill and other property of the corporation to appellant. The conveyance was filed for registration December 17, 1914. Appellant had no actual knowledge of the fact that the $600 note was the debt of the Marvel Mill Company. It was claimed that appellant had actual knowledge of the mortgage before acquiring the Marvel Mill property, but the most that can be deduced from the evidence is that the facts on that issue were in conflict. The corporation was not a party to the suit. Hughes and Wallace were, but they only appeared for the purpose of defending the cross-action of appellant.

The first contention is, in substance, that the mortgage is void because it appears that the person executing it was at most an officer or stockholder, and not authorized by the corporation to do that which he assumed to do. Confining our remarks and the application thereof to the precise facts of the present case, it must be conceded that while a corporation may mortgage its property to secure payment of its debts when solvent (article 1162, Vernon’s Sayles’ Stats.), ordinarily that authority does not inherently exist in any officer of the corporation as such, but must in all cases be conferred by the board of directors. Article 1159, Vernon’s Sayles’ Stats.; Henderson Merc. Co. v. Bank, 100 Tex. 344, 99 S. W. 850. However, it is the rule that when such acts are done by the president or vice president of the corporation, they are apparently authorized by the corporation, since such officers are the appropriate ones to exercise such functions, and their acts will be presumed to be corporate acts in the absence of a. showing that such officers were not so authorized. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Brownwood Ice Co. v. York Mfg. Co., 37 S. W. 339.

But it can hardly be said that a chattel mortgage is signed with apparent authority when done by the secretary and treasurer, since that officer is not ordinarily the appropriate officer to perform such acts. It is, however, urged that in the light of the facts in the present case a different rule prevails, and that the corporation is estopped to deny the act of its secretary for the reason that it placed the sole management of its affairs in his hands, and for the reason that it accepted the benefits of his acts. As we have said, there is in the record an agreement that there was never any corporate organization, such as the adoption of by-laws defining the duties and authority of any officer. In fact the record fails to show, save by inference, that officers were selected, hut does show that from the inception of the corporate existence Wallace was in active, and inferentially exclusive, management of the corporation’s affairs until its assets were disposed of. Such a course of -management or conduct, it occurs to us, is sufficient to estop the corporation to deny the authority of Wallace to act for it, particularly when it is not disputed that the corporation received the money. It has been decided that when the president of a corporation, with the full knowledge and consent of the directors and stockholders, transferred its realty without resolution directing it, the conveyance was binding, and those assenting were estopped to deny its validity. Aransas Pass Harbor Co. v. Manning et al., 94 Tex. 558, 63 S. W. 627. The reasons are just as cogent that assent by the directors and stockholders to the act of borrowing and securing payment of money with which to conduct the business of the corporation will estop them to deny the, authority of the one assuming such authority. It is also held, despite the general rule, that the authority exercised by Wallace in the present case may arise from assumption of the authority or an acceptance of the benefits of the act. Eastern Ry. Co. v. Ellis, 153 S. W. 699. It is not disputed that Wallace assumed the authority, or that the corporation accepted the benefit of his act, which was the extension of a debt then due.

Under such condition and in the light of the cases cited, it will hardly be denied in a suit between appellee and the corporation that the latter would be estopped to deny the authority of its secretary. If, then, the corporation is estopped, appellant is similarly so, since the defense he urges is that of the corporation and he in that respect possesses no greater rights than would the corporation.

The next contention is that Wallace being without authority to execute the chattel mortgage, its registration was not constructive notice to appellant in the absence oí actual notice. While we think the evidence on the issue of actual notice is conflicting, and hence would not authorize a peremptory instruction by the court, yet having found that under the undisputed evidence Wallace under the course adopted by the company for transacting its business was authorized to execute the mortgage, constructive notice will be imported to appellant, since his right to deny such notice rests solely on the claim that Wlallace’s acts were ultra vires.

It is further contended that the judgment is erroneous because of a variation in the description of the mortgaged property as contained in the pleading from that contained in the mortgage introduced in evidence. In connection with the issue thus raised the record discloses that the description of the building, which was situated upon leased land, contained in the pleading and the mortgage admitted in evidence was identical, save that in the pleading the size of the building was given as 24x26 feet, while in the mortgage it was given as 24x36 feet. The point does not, in our opinion, warrant a reversal of the case. Brown Cracker & Candy Co. v. Johnson, 154 S. W. 684, and cases cited. Under authority of the cases cited the dimensions of the mortgaged property were not a material issue in the ease, the material issue being the validity of the mortgage, and as a consequence the misdescription could not mislead or surprise appellant as to any fact bearing on that issue. Further, the cases referred to hold, in effect, that when testimony at variance with the pleading is offered, it is the duty of the complaining party to then object, and a failure to do sp is a waiver of the variance.

Believing that no reversible error is disclosed by the record, the judgment is affirmed.
      tgr^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ADAMS v. OVERLAND AUTOMOBILE CO.
    (No. 7900.)
    (Court of Civil Appeals of Texas. Dallas.
    March 16, 1918.)
    1. Appeal and Error <&wkey;966(2) — Continuance <®=»19 — Discretion of Court —Review.
    Where the parties had agreed to try the case the last jury week in December, defendant’s attorneys’ application for continuance on the ground that defendant was absent from the city, but had intended to return in time for the trial and would return iu a few days, was not a statutory application, and its disposition rested largely in the discretion of the court, not reviewable in the absence of abuse.
    2. Continuance &wkey;>19 — Discretion of Court.
    It is the legal duty of a party to an action to keep himself posted as to the setting of the case for trial, and to be present to testify and aid his counsel.
    3. Bills and Notes &wkey;>140 — Fraud—Ratification.
    Where defendant gave his note for an automobile represented to be new, and later discovered that it was not, his giving a renewal note and payment of part of the note after discovering the misrepresentation prevented his pleading failure of consideration in an action on the note.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by the Overland Automobile Company against H. H-. Adams. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Adams & Stennis, of Dallas, for appellant. Bird & Bird, of Dallas, for appellee.
   TALBOT, J.

The appellee sued the appellant April 14, 1915, on a promissory note for the sum of $299, hearing interest at the rate of 10 per cent, per annum, and providing to pay an additional 10 per cent, of the full amount of the note as attorney’s fees, if same was placed in the hands of an attorney for collection. The appellant answered May 4, 1915, admitting the execution of the note, that it was past due and unpaid, and that appellant had refused to pay it or any part thereof. The appellant alleged that the note was given in part payment for an automobile sold to him by ap-pellee as a new car, of good material, of first-class workmanship, and one that would operate well; that the purchase price of the automobile, $1,000, less the amount of the note sued on, had been paid; that said automobile, when sold, was not a new car, but was an old one, and had been used to such an extent as to materially wear and damage same, and was not really worth more than $500, and that the consideration for said note had wholly failed; that a portion of the purchase price was paid after defects were discovered in the automobile, but upon the promise of the appellee to make good such defects; that appellant relied upon the said representations made to him with reference to said automobile and upon the later promise of the appellee to make good the defects therein; that said representations were untrue, and that appellee has failed to remedy the defects in said automobile ; that by reason of the premises the appellant has been damaged in the sum of $500; and for this amount appellant prayed judgment. The case was tried December 22, 1916, before the court and a jury, and verdict and judgment rendered in favor of the appellee for the amount sued for. From this judgment appellant perfected an appeal.

The single assignment of error presented to this court is as follows:

“The court erred in overruling the application of the defendant for a continuance of this cause because of the absence of the defendant, whose presence was necessary to enable his counsel to present his defense, and whose testimony would have been material to his pleas of failure of consideration and cross-bill for damages, and who was not absent through any fault of defendant nor with any intention of absenting himself from the trial of this cause, as more fully appears from the defendant’s bill of exceptions No. 1.”

The record discloses that on May 27, 1914, appellant purchased from appellee two Overland automobiles, a five-passenger and a roadster, and in consideration therefor paid part cash and gave to appellee his certain promissory note for the sum of $625. due and payable on September 1, 1914, and two second hand cars, a Stevens-Duray, for which appellant was allowed $650, and an “R. O. H.,” for which he was allowed $500. Thereafter, on September 1, 1914, at the maturity of said note, appellee presented it to appellant for payment, and being unable to collect the note appellee placed same in the hands of its attorney, J. O. Bird, of the firm of Bird & Bird, for collection. Thereupon J. O. Bird, as attorney for appellee, presented said $625 note to appellant for payment, and appellant ashed for an extension of time, and did not pay the note. On the 20th day of November, 1914, appellant went to the office of appellee, the Overland Automobile Company, in • the city of Dallas to get an extension of the $625 note, and Mr. Bird was called there, and after negotiations appellant paid a part of the principal of said $625 note and all of the interest due, and the 10 per cent, attorney’s fees due on the note, and executed for the balance of said note his two certain promissory notes, one note for $250 and the other for $290. The $250 note was paid by appellant at its maturity, and the- $290 note, when it -became due on February 20, 1915, was not paid by appellant, though duly presented by appellee, and appellee placed it in the hands o-f its attorney, J. C. Bird, for collection or suit, and Mr. Bird called to see Mr. Adams and tried to collect the note, but failed to do so, and filed this suit on April 14, 1915, for the collection thereof.

When the case was called for trial December 21, 1916, the appellant announced not ready for trial, and, as shown by bill of exceptions, presented a written application for a continuance or postponement of the trial of the cause, which was by the court overruled. In this application, which was verified by one of appellant’s attorneys, it is stated, in substance, that since the filing of the suit the trial thereof had been continued for “various good and sufficient reasons’’ ; that on numerous occasions the appellant, having been advised that the cause was set for trial, had prepared to try the same; that at the November term, 1916, of the court (the term during which the case was tried), the cause was first set for trial on November 20, 1916, and by agreement was passed to a later date, and would have been reached on the 11th day of December, 1916, prior to which time appellant, together with his witnesses, had been present for several days and ready for trial, and appellant’s counsel were informed by counsel for the appellee that they would be unable to try the case at that time, but that the case might be taken up for trial during the last jury week of the November term, 1916, of the court; that on the 15th day of December, 1916, one of the counsel for the appellee informed Jed O. Adams, attorney for appellant, that the cause would be taken up on Monday morning, the 18th day of December, 1916, to which the said Adams agreed, believing at the time that H. H. Adams, the appellant, was in the city of Dallas and could be had to testify on the trial of the cause; that he immediately made inquiry and was unable to locate appellant, and on Monday morning was advised that appellant was out of the city of Dallas, and would be until Thursday, December 21, 1916; that acting upon such advise the said Jed O. Adams requested the court to reset this cause for said date of December 21, 1916, which was accordingly done by agreement made in open court; that for some reason unknown to- the attorneys for appellant the appellant, I-I. H. Adams, had not returned and was then, December 21, 1916, out of the city at some point in South Texas; that his exact address appellant’s attorneys were unable to learn, and therefore have not been able to communicate with appellant either by letter or telegram; that appellant left Dallas with the expressed purpose of returning the 21st day of December, 1916, and that his counsel believe and so aver that he will be in the city of Dallas ready to testify in the case at a date not later than Tuesday, the 26th day of December, 1916; that the cause of appellant’s absence, further than stated, is unknown to his counsel. It is further stated in appellant’s application for a continuance that if present he would testify to the material facts set up in appellant’s answer as a defense to appellees’ cause of action and the alleged facts constituting his cross-action, alleging specifically those facts; that there was no other witness by whom appellant could prove the facts which he would testify to; and that the application was not made for delay, but that justice may be done.

The appellee contends that, appellant being bound by the agreement to try the case “during the last jury week in December,” it was his duty to have him present when the case was called for trial- during that week both on December 18 and December 21, 1916; that appellant’s application- was insufficient because it did not excuse his negligence in failing to attend the trial the last jury week in December, 1916; that it is not sufficient in a motion for a new trial, as was the case in appellant’s motion for a new trial, to make a case that might have obtained a continuance, but good cause must be shown why appellant was not present when the case was called for trial on December IS and on December 21, 1916; that, appellant seeking to get this court to interfere with the exercise of the trial court’s judicial discretion in the matter of refusing an application for a continuance of tlie character in question, and haying wholly failed to show an abuse of such discretion, the judgment should be affirmed.

We have reached the conclusion that for some, if not for all, of the reasons advanced by appellee the judgment of the county court ought to be affirmed. The application of appellant for a continuance was not a statutory application, and the disposition of it rested very largely in the discretion of the court, the exercise of which will not be reviewed on appeal in the absence of abuse thereof. The application shows that the trial court had been very indulgent in continuing the ease from time to time to suit the convenience and wishes of one or the other of the parties, from the time a trial might have been forced, after the filing of the suit in the early part of the year 1915, down to the trial on the 22d day of December, 1916, during the November term of that year. The parties were not then required to go to trial until after the cause had been postponed during that .term of the court from November 20 to December 11, and from December 11 to December 18, and from the latter date to December 21, 1916.

The legal duty of appellant was to keep himself posted as to the setting of the case for trial and to be present for the purpose of testifying in the trial and to aid his counsel in the management thereof. This record clearly indicates he did not do so. On. the contrary, it appears that he absented himself from the court, going somewhere in South Texas, without informing his counsel where he could be communicated with by letter or telegram. This the trial judge evidently regarded as inexcusable thoughtlessness or negligence on appellant’s part, and, in the exercise of that judicial discretion vested in him by law, refused to further postpone the trial of the ease. Clearly, this court, however much inclined it might be to do so, would not be warranted in declaring that such action of - the court, under all the circumstances shown, was an abuse of his discretion.

But appellee further says, in support of the court’s ruling refusing to continue the ease, that the renewal by appellant' of the $625 note by giving the note of $290 sued on and the $250 mentioned, after discovering the alleged misrepresentations of appellee with respect to the automobile being a new automobile, of good material, of first-class workmanship, and one that -would operate well, etc., defeated appellant’s plea of failure of consideration, and hence he was not prejudiced' by being refused a continuance or postponement of the trial. This proposition of appellee embodies, it seems, a well-established principle of law, which, it occurs to us, is applicable here. In Hunter, Evans & Co. v. Lanius, 82 Tex. 677, 18 S. W. 201, the rule is stated in the following language:

“When one executes an obligation in renewal of a note claimed by the holder to be valid, but known to the maker to be fraudulent without consideration, the latter will be deemed to have freed the transaction of the fraud, and to have waived the want of consideration, and will not be permitted to plead it.”

The principle was announced and applied by this court in the case of National Bank v. Carper, 28 Tex. Civ. App. 334, 67 S. W. 188. Other authorities to the same effect might be cited, but we deem it unnecessary. The questions of whether the note sued on was a renewal of the balance of the $625 note theretofore given for the automobile, and was executed by appellant with knowledge at that time of the alleged fraudulent representations that the automobile sold appellant was a new automobile, of good material, etc., were submitted by the court to the jury, and their verdict embraces affirmative findings upon them. The appellant alleged in his answer that a portion of the $1,000 paid by him on the automobile was paid after defects were discovered in the automobile upon the promise of appellee to “make good said defects,” but there is no allegation that at tha time of the execution of the renewal note of $290 sued on any such promise was made, and in the application for a continuance it is not stated that appellant would testify that any such promise was made at that time, or indeed at any other time, and no assignment of error is presented in appellant’s brief asserting that the trial court erred in any respect in submitting said questions. The evidence offered by appellee tends to show that the renewal note of $250 was paid some time after the $290 note sued on was executed.

Believing that we would not be warranted in holding that the trial court abused its discretion in overruling appellant’s application for a continuance, the judgment of that court is affirmed.

Affirmed.
      i§^>For other cases see same tppic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: KING, .1.

text:
    ZEMURRAY v. HOUSTON FRUIT & PRODUCE CO. et al.
    (No. 337.)
    (Court of Civil Appeals of Texas. Beaumont,
    March 18, 1918.)
    Appeal and Ebror @=>1011(1) — Review — Findings op Fact.
    The issues of fact having been decided by the trial court, for one party upon conflicting evidence, the verdict will not be disturbed on appeal.
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by S. Zemurray against the Houston Fruit & Produce Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Rodman S. Cosby, of Houston, for appellant. Roberts & Sears, of Houston, for ap-pellees.
   KING, .1.

This appeal is from the county court at law No. 2, Harris county. Appellant’s cause of action was based upon a written contract of sale to appellees of a car of bananas, the contract having been made by telegram; appellees agreeing to accept the car of bananas at a stipulated price, on condition that they arrive in Houston in good condition, they defending upon the ground that the bananas were not in good condition when they arrived in Houston. The case was tried before the court without a jury.

Appellant contends, by assignments of error, that the great weight of the evidence was with appellant, and that the trial court was in error in rendering judgment for ap-pellees. An examination of the record discloses that there was a mass of testimony introduced in behalf of both sides; appellant and a number of his employés testifying that the bananas were in good condition. Appel-lees and some of their employés, and others, testified that the bananas were chilled when they arrived in Houston, and that when bananas were chilled they were not in good condition, and would not properly ripen. The bananas were sold, and the purchaser testified that they were not in good condition and had been chilled.

It is unnecessary to set out the testimony. 'The same was conflicting, and the trial court decided the issues against appellant. We therefore will not disturb the verdict, and the case is ordered affirmed.
      <g=3Por other cases see same topic and KEY-Nt'MBEB. in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    McLANE et al. v. SAN ANTONIO SEWER PIPE CO.
    (No. 5987.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 6, 1918.
    Rehearing Denied April 3, 1918.)
    Appeal and Error <&wkey;997(3) — Review — Question of Fact — Directed Verdict.
    In a trial for personal injuries, where defendant interposed a plea of res adjudicata, to which plaintiffs excepted, and the court directed a verdict'for defendant, judgment will not he reversed where it does not appear whether such verdict was directed on the plea of res adjudicata or on the evidence as to the accident, such evidence justifying direction of verdict.
    Appeal from District Court,- Bexar County ; J. T. Sluder, Judge.
    Action by John McLane and others against the San Antonio Sewer Pipe Company. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    J. D. Childs, of San Antonio, for appellants. Boyle, Ezell, Houston & Grover and Terrell & Terrell, all of San Antonio, for ap-pellee.
   PLY, C. J.

This is a suit for damages alleged to have accrued from the death of the father of appellants, through the negligence of appellee. Appellee filed a general denial and general demurrer, and pleaded assumed risk and contributory negligence, and that deceased was killed through the acts of fellow servants. Appellee also pleaded res ad-judicata. The court overruled exceptions to the plea of res adjudicata filed by appellants, and struck out all allegations as to fraud in the supplemental petitions and sustained exceptions filed by appellee, after hearing the evidence. The cause was then tried on its merits, and a verdict instructed for appellee. From that judgment this appeal has been perfected.

The ruling of the court was not on the plea of res adjudicata directly, but on exceptions to the plea presented by appellants, and we are not informed on what ground the court overruled the exceptions. It may have been because he thought the plea was not one in abatement, and therefore not subject to attack as coming too late or out of due order. This court cannot know the reason, because not given in the judgment of the court. However, if, as appellants contend, the plea of res adjudicata was sustained, it would have no importance in the determination of the issues in this case, because the cause was tried on its merits, and appellants had the same opportunity to present their case as though the plea of res adjudicata had been overruled.

There is but one assignment of error copied into the brief which assails the judgment of the court because it “erred in not sustaining said exceptions of plaintiff, and in permitting the said defendant to go into the merits of said pleas and introduce evidence thereon, and from the fact thereby adduced in instructing the jury to return a verdict for defendant, and in receiving said verdict and rendering judgment for defendant herein.” The decree recites the exceptions of appellants and appellee, and that the exceptions of appellants were overruled, and the exceptions of appellee sustained, and then follows the judgment:

“And thereupon the cause came on for trial on its merits, and all parties, plaintiffs and defendant, appearing and announced ready for trial on the merits and a jury of 12 good and lawful men, to wit, Charles Ehrhardt and 11 others, who, being duly tried, impaneled, and sworn and having heard the pleadings, evidence, and charge of the court in which charge they were instructed by the court to return a verdict as follows: ‘Gentlemen of the Jury: In this case you are instructed to return a verdict for the defendant. J. T. Sluder, Judge.’ And in pursuance of said charge the said jury returned into open court their verdict, as follows: ‘We, the jury, find for the defendant. Charles Ehr-hardt, Foreman’ — which said verdict was received by the court in open court as the verdict of said jury and approved.
“It is therefore considered, ordered, adjudged, and decreed by the court that the plaintiffs, Eduardo (Edward) McLane and John McLane, minors, who sue through their mother, Josefa McLane, as next friend, do have and recover nothing of the defendant, but that the defendant go hence without day and recover of said plaintiffs all costs in this behalf incurred or expended, for which let execution issue.”

No complaint is made in the assignment of error of the action of the court in instructing a verdict for appellee on tibe merits after hearing the evidence. All the complaint is that a verdict was instructed on the evidence heard as to the plea of res adjudicata. The third proposition, which seeks to assail the action of the court in trying the cause after overruling appellants’ exceptions to plea of res adjudicata, is not supported by, and is not germane to, the assignment of error. Nothing is assailed in the assignment except the judgment on the exceptions, and the record fails to indicate that the plea of res ad-judicata was sustained by the judgment on the exceptions. If it had been sustained, still appellants were not damaged, but got a trial on the merits before the jury, and appellants express no dissatisfaction with the result. It is not claimed that the court invaded the province of the jury in instructing the verdict for appellee.

This court is unable to determine whether the verdict was instructed on the plea of res adjudicata or on the evidence as to the accident, and even if it be thought the charge should not be justified on the plea, still it must be justified on the evidence in the absence of an assignment attacking the verdict on that ground.

In the motion for new trial appellants assailed the charge on the ground that the evidence showed that the death of the father of appellants was caused by the negligence, and that there was no lawful defense to the cause of action, but that assignment of error was abandoned in this court and cannot be considered. There is no assignment copied in the brief in which the evidence is claimed to be sufficient to sustain a verdict for appellants. The only assignment justifies no attack on anything except the action of the court in sustaining the plea of res adjudicata and deciding the case on its merits on the ground of res adjudicata. The record fails to show that the verdict was instructed upon the ground of res adjudicata, and as there is no objection to the charge as being on the weight of the evidence and an invasion of the province of the jury, this court will be compelled to sustain the verdict.

The judgment is affirmed.

       — nUnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SHIELD v. LONE STAR LIFE INS. CO.
    (No. 7889.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1918.
    Rehearing Denied March 30, 1918.)
    1. Corporations &wkey;>99(l) — Stock Subscription — Payment—N ote.
    Under Const, art. 12, § 6, providing that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received, there could be no recovery by a corporation on a note given for stock issued, though collateral security was deposited, since the transaction was illegal.
    2. Corporations &wkey;*198 — 'Voting Stock.
    In corporation’s action to recover on note given for stock issued, where defendant set up abandonment of business by sale of the assets, he could testify that one holding his general proxy was instructed to vote against the sale.
    3. Corporations <&wkey;>198 — Stock—Proxy.
    A general proxy does not authorize the holder to vote for sale of the entire assets.

      4. Corporations <&wkey;92 — Notes por Stock-Failure op Consideration.
    Where a corporation for stock in which defendant gave his note sold its entire assets and abandoned business, the note was not collectable, since the consideration failed.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by the Lone Star Life Insurance Company against L. L. Shield. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. Coke & Coke, of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued appellant to recover on a note for $2,000, with interest and attorney’s fees executed by appellant November 30, 1910.

Appellant L. L. Shield filed his first amended original answer December 4, 1916, in which he urges general exceptions and general denials and special defenses, setting up: First, that the note was void because taken in payment of stock issued and delivered by appellee to appellant; second, that appellant subscribed to stock in plaintiff company in consideration of the note upon certain conditions which had not been complied with; third, that appellee had dissolved its corporate existence without the consent of appellant, and abandoned the corporate enterprise, thereby releasing appellant from liability; and, fourth, that the note sued upon was secured by reason of certain false and fraudulent representations on the part of appellee and its agents. On 'December 8, 1916, appel-lee filed its supplemental petition in reply to appellant’s amended answer; setting up general and special demurrers, general denial and estoppel against urging false representations, and the statute of limitation of four-years. Appellants filed first supplemental answer December 8, 1916, in reply to appellee's supplemental petition, consisting of general denial, and alleging that, if the agents of ap-pellee exceeded their authority, the acts and representations were adopted and ratified by appellee with full knowledge thereof. The case was tried before a jury December 11, 1916. Judgment was rendered upon said note sued on in favor of appellee against appellant in the sum of $2,532.95, principal and interest,- attorney fees, and all costs. Appellant requested in writing the submission of said cause upon special issues, and presented with said written request 25 special issues, separately requesting that each be presented to the jury. The request was overruled, and the court refused to submit either of said special issues, and appellant duly excepted to the action of the court in refusing to submit the cause upon special issues, and to the action of the court in refusing to submit each of the special issues. The court gave the jury peremptory instruction to find for appellee for the full amount sued for, principal, interest, and attorney fees, from which judgment an appeal was duly perfected.

Appellee is a Texas corporation, legally organized in March, 1910. Prior thereto, on February S, 1910, L. H. Morgan & Co., acting for appellee, entered into a contract with appellant, whereby appellant subscribed to 10 shares of the capital stock of appellee in consideration of which stock appellant executed his note for $500, payable to L. H. Morgan & Co., and appellant’s note for $1,500, payable to appellee. The last note was payable in money or in securities satisfactory to the insurance department of Texas. “The contract further provided that no condition, representations, or agreements other than those printed in it should be binding on Morgan & Co. or the Lone Star Life Insurance Company. Under date of February 2, 1910, one Harkrider, an agent of Morgan & Co. in the making of aforesaid contract, wrote appellant: ‘Confirming my conversation with you this day in reference to the purchase of 10 shares in the Lone Star Life Ins. Co. I wish to say that your bank shall be made depository for all sales of insurance made in your section and condition[ed] on your becoming a director of said company. In payment of said stock I agree to accept your note payable Oct. 1st, 1910, for $500.00 as first payment and balance $1,500.00 to be secured satisfactory to Ins. Dept, of Texas for five years at 5 per cent, interest.’ ” Other promises and representations were testified to by appellant.

A controversy between appellant and ap-pellee arose about the terms of the contract to regard to the issuance of stock, and much correspondence was indulged in between the parties, lasting from February 2, 1910, to September 28, 1910, when appellee made appellant the following proposition through letter, viz.:

“September 28, 1910.
“Mr. L. Shield, Santa Anna, Texas — Dear Sir: Since you were here we have tried to get enough of the executive committee together to act upon your proposition, but have been unable to get a quorum. The company will, however, be willing to take your personal note for $2,000.00 to run for five years at five per cent, interest per annum, payable annually, same to be secured by vendor lien notes in accordance with the requirements of the insurance department, and issue you ten full shares of the capital stock of the company and pay off the $500.00 note, provided there is no past due interest or protest fees or attorneys fees due on same. The writer believes you will never regret taking up our offer to assist you in closing up your subscription in the manner outlined above and is of the opinion that as a director and stockholder in the company, our relations could and would be made mutually pleasant and profitable. With kind personal regards, I am,
“Tours very truly,
“S. W. Johnson, President.”

On October 1, 1910, appellant replied to this letter of September 28th, accepting the proposition in the following terms:

will accept the terms offered by you in yours of Sept. 28th. * * * You will please send me a note for signature as per terms of settlement set forth in yours of Sept. 28, 1910. You will please see the Commonwealth National Bank and say to them that their matter will be adjusted promptly.”

On October 5, 1910, appellant wrote as follows:

“Oct.. 5, 1910.
“Lone Star Life Ins. Co., Dallas, Texas— Dear Sirs: Inclosed herewith please find note and collateral as per our agreement. Also, certificate of the valuation of the land. This land is located about 3% miles from Santa Anna and about five miles from Coleman City. It is reasonably well improved and is absolutely worth the amount mentioned by the appraisers. I will collect the interest on these notes when due and ask you to credit them with same. I will be glad to have you go at once and take up the five hundred dollar note at the Commonwealth National Bank. You need not delay any matters in this for if the collateral is not satisfactory I will make it satisfactory. In regard to the abstract, I had this pasture cut up and platted and recorded the plat in my own name. Hence there could be no abstract of title, this being the original G. W. Mahoney pasture. There was at one time over twenty thousand acres. Colonel Mahoney had it all abstracted and the abstract is on record. Hoping this information is satisfactory, I beg to remain,
“Yours truly, L. L. Shield.
“P. S. Please advise date of next directors’ meeting and I will try to be present.
“Received above described notes from Lone Star Life Insurance Company, this 30th day of November, 1910. L. L. Shield.”

On October 7, 1910, appellee acknowledged the receipt of the $2,000 note, and three vendor’s lien notes of $695 each, requesting an abstract of title. Thereafter, on November 30, 1910, appellant appeared in Dallas, and the old note thus executed, and the vendor’s lien notes accompanying same were surrendered, and appellant executed a new note bearing said date, and delivered to ap-pellee as collateral security other vendor’s lien notes more acceptable to appellee, and a't the time of the execution and delivery of this note and collateral vendor’s lien notes appellee Issued and delivered to appellant 10 shares of the'capital stock of the company, Lone Star Life Insurance Company, as a consideration for said $2,000 note, and paid off the previous note executed by appellant for $500. Appellant testifies with reference to this transaction:

“When I executed this note, he (referring to Dr. S. W. Johnson, president of the company) agreed to turn over to me stock paid up, and when I executed the note he issued the stock and delivered it to me. I think this is the stock that he issued original stock certificate No. 117, dated November 30, 1910, to L. L. Shield for 10 shares. This is all the stock that I ever . received. * * * All the consideration that I received for the note I executed (referring to the note sued upon) was 10 shares of stock in the company, and they were going to take up the $500 note I had already executed.”

The original certificate of these 10 shares was in open court tendered to appellee, and acceptance of same refused. The note sued on and executed by appellant on November 30, 1910, was for $2,000 payable five years after date thereof to the order of appellee in Dallas, Tex., with interest at the rate of 5 per cent, per annum from October 1, 1910, until paid, payable annually on November 30th of each year. At the time said note was given to appellee it issued its certificate of 10 shares of stock No. 117, and delivered, same to appellant. No money or property was paid therefor by appellee. Appellant was elected a director in said company, and attended several meetings of the board of directors until March 11, 1913, when he was not re-elected. Appellee was and is a solvent corporation, and owes no debts. On March 31, 1914, the stockholders of said company, without the consent of appellant, sold all the assets of the company, and permanently abandoned the corporate enterprise. Appel-lee never deposited any money in either bank of appellant.

We are of the opinion that the trial court erred in instructing a verdict for appellee, for the evidence adduced by both parties shows that the note executed by appellant to appellee was in payment for shares of the capital stock in appellee company, which made the transaction illegal. Article 12, § 6, Const.; Irr. Co. v. Deutschmann, 102 Tex. 207, 105 S. W. 486, 114 S. W. 1174; McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96; Rep. Trust Co. v. Taylor, 184 S. W. 772; Mason v. Bank, 156 S. W. 366; Sturdevant v. Falvey, 176 S. W. 908; Kanaman v. Gahagan, 185 S. W. 619.

Appellee insists, in effect, that the stock delivered to appellant by appellee did not belong to it, but was the property of E. M. Reardon, and such sale was not within the prohibition of article 12, § 6, of Texas Constitution.

The evidence shows that the officers of the company on checking up on September 28, 1910, found that all the stock had been paid for except 433 shares, and in order to get a permit to do business they paid in $64,955 for said stock to the company, and it issued certificates of stock numbered from 105 to 115 to E. M. Reardon, trustee. Part of this stock had been subscribed for, but not paid for, and a permit to do business was obtained. When appellant executed the note sued on the company delivered him certificate for 10 shares of stock No. 117. Certificate No. 113 for 10 shares was canceled and reissued to appellant as No. 117. The original stub book of certificates had on it—

“the number of the original certificate lie, number of original shares 10, number of shares transferred 10. Received certificate No. 117 for ten shares of stock, this, the 30th day of November 1910. [Signed] L. L. Shield.”

Certificate No. 117 issued to appellant is a direct certificate to L. L. Shield. There is nothing on its face showing that Reardon ever had connection therewith. No transfer is shown to have been made by Reardon, and appellant testifiedThat when delivered to him he knew nothing about Reardon’s connection therewith; that he never had any contract to buy from him, or authorized any one to do so, but that said note was executed with reference to the negotiations thereto had with the company. Reardon was subsequently paid the value of his stock, No. 113, by the appellee in March, 1917. The appellee sold its stock to appellant on time as its own, and we cannot now say under the testimony that it was acting for another in making the sale.

Appellant also claims that the appellee sold all the assets of the concern and stopped business altogether, without his consent, while it was solvent and owed no liabilities. Appellee claims that Henry Hamilton held appellant’s proxy, and at the stockholders’ meeting at which it was decided to sell the business of the concern his proxy was voted for the sale.

While appellant offered to testify that Hamilton was his general proxy, he also testified that he had given him instructions to vote against a sale. This testimony was objected to and excluded. This was error. However, appellant did testify that he was opposed to the sale, and we are of the opinion that under the authorities a general, proxy will not authorize the holder to vote for the sale and disposition of the entire assets of the corporation and for the abandonment of the business enterprise. Cook on Corporations, vol. 2 (6th Ed.) §§ 610, 670; Cyc. vol. 10, 408.

It being shown that said corporation was never insolvent and owed no liabilities, but had sold its entire assets and abandoned business, the consideration for said note has failed;, therefore it is not collectable. Thompson on Corporations (2d Ed.) vol. 1, says:

“It may be asserted, as the first rule generally, that where the corporate enterprise is completely abandoned without any effort to execute or carry out corporate purposes and no rights of creditors are involved, the subscriber will be released. Thus, the Supreme Court of Kentucky, say: ‘The defendant should only be ab> solved from liability for the payment of his stock by alleging and proving a final abandonment of the work by the company, and also that its payment was not necessary for the purpose of satisfying any existing demand against the corporation.’ ”

For the reason that the said note was given for stock delivered and no money or property paid, the judgment is reversed, and here rendered for appellant.

Reversed and rendered
      <g^»For other cases see same topic and KEY -NUMBER in all Key-Nnmfcered Digests and Indexes


author: BOYCE, J.

text:
    CHASE-HACKLEY PIANO CO. v. CLYMER et al.
    (No. 1301.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 20, 1918.)
    1. Sales &wkey;>8 — Nature of Contract—Recording.
    Where owner shipped pianos to a factor on consignment, the contract did not fall within the provisions of Rev. St. 1911, arts. 5654, 5655, requiring reservation of title to be recorded.
    2. Factors <&wkey;52 — Mortgage by Factor — Rights.
    Where a factor mortgaged goods belonging to his principal without the knowledge of principal or act of estoppel on principal’s part, the principal’s right to the goods is superior to that of mortgagee.
    3. Appeal and Erbor <&wkey;670(l) — Record — Correction.
    If a record of a trial court does not speak the truth, the proper place for correction is in that court, and not by affidavits filed in the appellate court.
    Appeal frorq Grayson County Court; Dayton B. Steed, Judge.
    Action by the Chase-Haekley Piano Company. against W. E. Clymer and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    R. W. Stoddard and Jno. T. Suggs, both of Denison, for appellant. J. S. Kone, of Deni-son, for appellees.
   BOYCE, J.

Chase-Haekley Piano Company delivered to L. W. Wiley two pianos on contract, which we construe to evidence a consignment for sale. Wiley mortgaged these pianos to appellee Clymer to secure the payment of the individual indebtedness of Wiley to Clymer for money borrowed and represented hy two notes, delivering possession of the pianos to Clymer, to be held until the notes were paid. Wiley represented to Clymer that he was the owner of the pianos, and Clymer made the loan and took the mortgages on the faith of this representation without knowledge that the Chase-Haekley Piano Company had any interest in them. The said company brought suit against Clymer to recover the pianos, and Clymer set up in his answer the mortgage executed by Wiley as stated, and asked for judgment on his notes and foreclosure of his mortgage lien on the pianos. This appeal is from a judgment for defendant, rendered on verdict by the jury under a peremptory instruction.

We construe the contract under which the pianos were delivered to Wiley as creating the relation between the parties of owner and factor. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Stein Double Cushion Tire Co. v. Fulton, 159 S. W. 1013. The contract is very similar to that construed by the Supreme Court in the case of Milburn Mfg. Co. v. Peak, supra. The contract, therefore, did not fall within the provisions of. articles 5654 and 5655, R. S., in regard to chattel mortgages.

It was the rule at common law that a pledge or mortgage of property held by the factor for sale, made by the factor to secure his individual indebtedness, could not be enforced against the owner of the goods, though the pledgee or mortgagee had no notice of the fact that the factor did not in fact own the goods, and took the mortgage or pledge oh the faith of his belief that the factor was the owner, unless the owner of the goods, by some acts other than the mere delivery of possession of the property to the factor, had estopped himself from denying the right of the factor to treat the goods as his own. McCreary v. Gaines, 55 Tex. 488, 492, 40 Am. Rep. 818; Renfroe v. Hall, 202 S. W. 218, a decision by this court not yet officially reported; Warner v. Martin, 11 How. 209, 13 L. Ed. 673; Mechem on Agency (2d Ed.) §§ 2509, 2511, 897; R. C. L. vol. 11, p. 761; C. J. vol. 2, Agency, § 68. As shown by these authorities, including the Texas authority referred to, this rule has been modified in England and many of the states of the United States by the adoption of the Factor Acts. No such legislation has been adopted in this state, and we regard the case of McCreary v. Gaines, supra, as controlling authority. No facts of estoppel against the Chase-ITack-ley Piano Company, other than the mere delivery of the pianos to Wiley under the contract, were shown. Under these circumstances the peremptory instruction in favor of the defendant was error, and if the facts upon another trial are the same as shown by the present record, a peremptory instruction should be given for the plaintiff.

We cannot consider the affidavits filed by appellees in this court, to the effect that certain proceedings, as shown by the transcript as being had in the lower court, did not in fact take place. If the records of the trial court do not speak the truth, the proper place to take action to correct them is in that court. Boggess v. Harris, 90 Tex. 476, 39 S. W. 565; Willis v. Smith, 90 Tex. 635, 40 S. W. 401; Neville v. Miller, 171 S. W. 1111; Kimbell v. Powell, 57 Tex. Civ. App. 57, 121 S. W. 542.

Reversed and remanded.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    COOK v. TRINITY COUNTY LUMBER CO. et al.
    (No. 338.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 16, 1918.)
    Appeal and Error &wkey;>555 — Matters Reviewable.
    Where the statement of facts and bills of exception have been stricken, and the assignments of error are such as cannot be considered without a statement of facts, a cause must be affirmed, where the trial court had jurisdiction of the parties and subject-matter and rendered a judgment authorized by the pleadings.

      Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Suit by W. A. Cook against the Trinity County Lumber Company and others for the recovery of land. Judgment for defendants, and plaintiff appealed to th'e Court of Civil Appeals for the First Supreme Judicial District at Galveston, where the statement of facts and bills of exception were stricken on motion. Transferred to this court under order of the Supreme Court.
    Affirmed.
    W. A. Cook, of Groveton, in pro. per. R. E. Minton, of Groveton, for appellees.
   HIGHTOWER, C. J.

Appellant, W. A. Cook, brought suit against the Trinity County Lumber Company and others in the district court of Trinity county for the recovery of certain land, and from an adverse judgment rendered on February 9, 1917, appellant appealed this cause to the Court of Civil Appeals for the First Supreme Judicial District of this state, at Galveston. Thereafter, and in due time, appellees filed their motion in the Court of Civil Appeals at Galveston, praying that court to strike from the record appellant’s statement of facts and bills of exception, which motion was based upon valid and legal grounds, and which motion was, by said Court of Civil Appeals, granted, and the statement of facts and bills of exception were ordered stricken from the record. Afterwards, on December 3, 1917, the Court of Civil Appeals at Galveston, acting under order of the Supreme Court transferred the record in this cause to this court, and same was duly submitted for this court’s consideration.

We have examined appellant’s assignments of error in his brief, and find that they are of such character as cannot be considered in the absence of a statement of facts, and it appearing that the cause of action was one over which the trial court had jurisdiction, both as to parties and subject-matter, and that the judgment rendered by that court was one authorized by the pleadings in the case, this court has no alternative but to affirm the judgment of the trial court It is therefore accordingly ordered that the judgment of the trial court be affirmed, and all costs of this appeal are adjudged against the appellant.