text:
    H. J. MURRELL & CO. v. EDWARDS et al.
    (No. 823.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1915.)
    I. Assignments <&wkey;100— Orders — Refusal to Pay — Subsisting Equities.
    Where the drawer of an order to pay from funds collected by the drawee was indebted to the drawee and to the payee, but the debt to the drawee was prior to that to the payee, the order was subject to the debt to the drawee and to the drawee’s equities against the drawer.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 177, ISO; Dec. Dig. &wkey;>100.]
    2. Bills and Notes <&wkey;08 — Orders—Acceptance.
    The drawee of an order held not to have accepted the order by the words “the order shall have our attention” at an uncertain time.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 110-115; Dec. Dig. &wkey;> 68.1
    3. Appeal and Error @=>927 — Presumptions —Dismissal—Grounds.
    Although a plea that an action is prematurely brought is one in abatement and not in bar, and the suit, if dismissed on that ground, is erroneously dismissed, where there are other grounds for dismissal, in the absence of a record showing to the contrary it will be presumed that the dismissal was upon the valid grounds.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. &wkey;927.]
    Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.
    Action by H. J. Murrell & Company against S. B. Edwards and another. From a judgment for defendants, the plaintiffs appeal.
    Affirmed.
    Hoover & Dial, of Canadian, and Knight & Slayton, of Hereford, for appellants. W. H. Russell, of Hereford, for ,appellees.
   HALL, J.

Appellants instituted this suit to recover of S. B. Edwards and Geo. F. Cay-lor the sum of $157.46. Appellants alleged that about the 20th day of October, 1913, defendant Caylor executed and delivered to it A certain order on S. B. Edwards, in the above amount, which the said Edwards agreed and became liable to pay, but which he had subsequently refused to pay. By consent of parties the cause of action was dismissed as to all defendants except Edwards. 1-Ie answered by general and special denial of appellants’ allegations and pleaded specially that prior to October 20, 1913, Caylor was indebted to him in the sum of several thousand dollars, and for the purpose of securing the payment of such sum had signed . and delivered to defendant a number of promissory notes and land contracts with the understanding and agreement that the defendant would collect the notes and close up the land deals and out of the proceeds arising therefrom pay himself the amount due from Caylor. It is further alleged that appellant was aware of these conditions at the time the order sued on was presented and at the time of the alleged acceptance, that there had not been a sufficient .amount of said collateral collected to pay defendant, and that the suit was prematurely brought Appellant filed a supplemental petition, denying the affirmative matters pleaded by defendant, and upon a trial before the court without a jury judgment was rendered in favor of Edwards that plaintiff take nothing by its suit.

The order from Caylor to Edwards is as follows:

“Hereford, Texas, 10/20/13.
“Edwards-McDonald Investment Co.; You will please pay to H. J. Murrell & Co., out of commissions due me when collected, one hundred fifty-seven and forty-six one-hundreths ($157.46) dollars. George F. Caylor.”

The following day, appellants’ attorneys notified Edwards-McDonald Investment Company of the execution of the above order and that it was given in settlement of a suit against Caylor in which garnishment proceedings had been served upon the Edwards-McDonald Investment Company. In said letter the following questions are asked:

“(1) Is the sum from you to Mr. Caylor due upon commissions owed by you to Mm? (2) Do you owe him sufficient to insure our payment after he has paid Dr. Caylor $300.00? If you do not, will you pay our order before that of Dr. Caylor?”

The letter also states that the garnishment proceedings were filed before the execution of Dr. Caylor’s order and that appellants would not be willing for Dr. Caylor’s debt to have precedence.

On the 24th of October another letter was written by appellants’ attorneys, notifying Edwards that they desired an answer to their former letter before court convened on the following Monday, in which this language is used:

“If you can accept the order given by George Caylor and it secures us sufficiently, then there wifi be no need for you to file an answer in the garnishment proceedings and we are willing to pass the matter for one week in order to get fixed.”

On the following day Edwards replied as follows:

“We have your favor of the 21st, in which you state that George F. Caylor had given you an order on us for $157.46. I am sure that Mr. Caylor will have sufficient funds coming to him when the deals are closed up to pay you this amount. Dr. Caylor’s order was dated ahead of yours and we would not feel like paying this before his without his consent. If you can get his consent to let your order precede his it will be entirely satisfactory with us.”

Appellants’ attorneys immediately secured Dr. Caylor’s consent that his order might be postponed to the one given by George Caylor to appellants. On November 7th appellants’ attorneys again wrote Edwards, using this language:

“In order that we may keep our record straight in this matter, we are asking you to favor us with a statement of your acceptance of this order and a statement as to the probable date when the commissions to George Caylor will be due.”

To this letter Edwards replied as follows:

“Replying to your kind favor of the 7th will say that we have received your order on George F. Caylor and also your order from II. C. Cay-lor, permitting your order to take prestige oyer his. These orders will have our attention immediately upon the sale of notes which Mr. Cay-lor is interested in.”

Following this letter, appellants’ attorneys wrote Edwards several times with reference to the matter, urging a settlement and a reply to former letters, and nothing was heard from Edwards until July 14th, when he wrote as follows:

“I have your several letters and ask you to ardon my delay in answering. The fact is that have had nothing definite to write. Since last fall we have had three of the deals which Caylor was interested in to fall down, and which will very materially affect the amount of his commission. We have been unable so far to sell any of our vendor’s lien notes.”

Later, on November 17, 1914, Edwards wrote appellants’ attorneys that three of the trades in which Mr. Caylor was interested had not been consummated and that he would lose, on the securities taken from Cay-lor, several hundred dollars, regretting his inability to save appellants anything out of the commissions. This suit was then instituted, the above orders and correspondence introduced in evidence, together with the oral testimony of appellee Edwards, in substance as follows:

“About the time the order in question was given, George F. Caylor owed me about $3,000. Since I received the order I have collected about $1,000 on these notes. The notes were in our name, but George F. Caylor was interested in some commissions included in the notes. The $1,000 collected represents the amount of the commissions from the notes, which would have belonged to George F. Caylor if he had not been indebted to us. He still owes us about $2,000. $1,000 was collected after the alleged acceptance of the order in question. There has been enough collected from the commission notes belonging to George F. Caylor to have paid the order in question if George F. Caylor had not owed anything. These collections of George F. Caylor’s commission were made by me in September, 1914. I have never paid any part of the order sued on.”

The effect of the order dated 10/20/13 was to assign to appellants $157.46 out of any commissions which, might be subsequently collected by Edwards for Geo. F. Caylor. This assignment, however, was subject to all the equities existing against the fund in favor of Edwards, and without a subsequent unconditional acceptance by him he had the right to reimburse himself for any amount due him from Caylor before he could be held to pay appellants anything. It appears from their letter of November 7, 1913, that no acceptance of the order had yet been made by Edwards, because in this letter they expressly ask for a statement of Edwards’ acceptance. Edwards’ reply is that the orders should have his attention immediately upon the sale of the notes. The rule is that when an acceptance is evidenced by separate writing its terms must be so clear as not to admit of doubt.

“Thus, where the drawer advised the drawee of the bill by letter, and the drawee replies that ‘the bill shall have attention,’ it was held that these words, taken by themselves, were not sufficiently positive and unequivocal to amount to actual acceptance, but that if it could be shown that such words were used for that purpose, and with that effect in dealings between the parties, then they might be regarded as an acceptance.” 1 Parsons on Notes and Bills (2d Ed.) 2S6; 7 Cye. 765 (2).

The record fails to show the dismissal of the garnishment proceedings against Edwards, neither is the issue of estoppel raised by the pleadings.

Appellant insists that the court should have sustained its exceptions to appellee’s plea, alleging that the suit had been prematurely filed. That the action has been prematurely brought is matter which should be pleaded in abatement rather than in bar; but if there was no acceptance of the order it is of no consequence whether the facts pleaded tending to show that the action was prematurely brought were or were not true. The trial judge filed no findings of fact or conclusions of law. In this state of the record, we do not know that he based his judgment upon the facts alleged by appellee showing that the suit had been prematurely brought, and in support of the judgment we must presume that the decree is based upon appellee’s contention that the order had never been accepted by Edwards. Walker v. Cole, 89 Tex. 323, 34 S. W. 713; O’Fiel v. King, 23 S. W. 696.

The judgment must be affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    INTERNATIONAL FIRE INSURANCE CO. v. BLACK.
    (No. 1492.)

    (Court of Civil Appeals of Texas. Texarkana.
    July 1, 1915.
    Rehearing Denied Oct. 7, 1915.)
    1. Insurance <&wkey;76 — Actions on Policies— Suiu.ilj.enoy of Evidence.
    Though in an action on an insurance policy the circumstantial evidence strongly tended to show that the agency of the person issuing the policy had terminated before its issuance, where he testilied that his agency had not tuen terminated his testimony supported the trial court’s finding in favor of plaintiff.
    (Ed. Note. — For other cases, see Insurance, Cent. Dig. § 101; Dec. Dig. @=>7t>.]
    2. Appeal and E'rro'r >&wkey;1010 — Review-Questions of Fact.
    The question for an appellate court is not whether findings of the trial court complained of are supported by a preponderance of the evidence, but whether or not there is any evidence to support them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. &wkey;1010.]
    3. Insurance &wkey;>7S — Authority of Agent-Estoppel to Deny.
    Where a party dealing with an insurance agent authorized to issue policies and having policies in his possession did not know of any restriction on his authority with respect to the territory in which he might write insurance or the classes of property which he might insure, he had a right to assume that the agent was authorized to issue the policy actually issued, and the insurance company was estopped from asserting the contrary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 103; Dec. Dig. <&wkey;78.]
    4. Estoppel <&wkey;114r — Necessity of Pleading —Lack of Opportunity to Plead.
    Plaintiff sued on a fire insurance policy, alleging that it was issued by defendant through its agent L. The answer denied that L. was defendant’s agent and that he had authority to issue any such policy. Plaintiff showed that L. w.as defendant’s agent to issue policies and that he had no knowledge of a limitation on L.’s authority as to the classes of property on which he could write insurance. Held, that the es-toppel against defendant as to the agent’s authority was available to plaintiff, since, while the general rule is that facts relied upon to establish an estoppel must be pleaded, such rule does not apply where the party asserting the estoppel has not had an opportunity to plead it.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 304; Dee. Dig. @=>114.]
    5. Insurance <&wkey;78 — Authority of Agent-Extent of Authority.
    An insurance company’s agent at M. in 1-1. county, in applying for appointment, stated that the class of risks he would write would be among the best planters in H. county. The company replied that if he would take the agency they would endeavor to care for his country business if he would also give them some good city business. In an action on a policy issued by him covering farm property in another county about 18 miles from M„ the company’s secretary testified that the authority of agents was h'mi’-ed to their own town and its suburbs, that if the authority was greater than this special permission would have to be given, and that no authority was extended in any case to an agent to operate outside of his county. Held, that the court was not bound to find that this custom was observed when such agent was appointed, but had a right to determine the question from the correspondence, which correspondence did not limit his authority to H. county.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 103; Dec. Dig. @=>78.1
    Error from District Court, Panola County; W. C. Buford, Judge.
    Action by S. C. Black against the International Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Locke & Locke, of Dallas, and Brooke & Woolworth, of Carthage, for plaintiff in error. Jno. W. Scott, of Marshall, and Frank Lawson, of Carthage, for defendant in error.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

The suit was by defendant in error Black on a policy issued, he alleged, by plaintiff in error through its agent A. C. Littlejohn November 5, 1912, insuring his (Black’s) dwelling house, situated on a farm in Panola county about 18 miles southeast of Marshall, in Harrison county, in the sum of $2,000, and the contents thereof in the sum of $1,000, against loss by fire. The house and its contents were destroyed by fire March 12, 1914, while the policy was in force, it was alleged. Plaintiff in error denied that it had ever issued such a policy as the one sued on, and denied that said Little-john was its agent. The trial was by the court without a jury, and resulted in judgment in favor of defendant in error for $3,-000, -interest and costs.

That plaintiff in error on June 22, 1911, authorized Littlejohn to act as its agent at Marshall and furnished him the blank forms of policies, etc., it expected he would need in the transaction of its business, was not disputed. That the policy issued by him to defendant in error was one of plaintiff in error’s policies was disputed, but we do not) understand plaintiff in error to be in the attitude of questioning the sufficiency of the evidence relied upon to support the finding involved in the judgment, that the policy was issued on its behalf by Littlejohn as its agent. The contention of plaintiff in error is that the trial court erred in not rendering judgment in its favor, because, as it insists is true: (1) It appeared from “the great .preponderance of the evidence” that Littlejohn was not its agent at the time he issued the policy; and (2) that, if it did appear that he was then its agent, it further conclusively appeared that as such he was without authority to issue its policies on farm property, without respect to where same was situated, and was without authority to issue its policies on property of any kind in Panola county.

Notwithstanding circumstantial evidence strongly tending to show that Little-john’s agency for plaintiff in error had terminated at the time he issued the policy sued upon, the trial court had a right to believe Littlejohn when, as a witness, he testified that his agency had not then terminated. As his testimony was sufficient to support the finding involved in the judgment to the contrary of the insistence of plaintiff in error, it is not for this court to say that the finding was opposed by a preponderance of the evidence and therefore wrong. The question for an appellate court is not whether findings of a trial court complained of “are supported by a preponderance of the evidence, but it is whether or not there is evidence to support them.” Wells v. Yarbrough, 84 Tex. 660, 19 S. W. 865; Koehler v. Cochran, 19 Tex. Civ. App. 196, 47 S. W. S94.

In a letter dated January 12, 1912, plaintiff in error advised Littlejohn that “the International will not write farm property under the new management.” It is not doubted that the effect of this letter, as between plaintiff in error and Littlejohn, was to deprive the latter of the right he had before he received it to issue policies of the former on farm property. But the fact that Littlejohn, because of the restriction in the letter referred to, was without authority to issue the policy sued upon, is not a reason why it should be held that plaintiff in error was not liable thereon; for it appears that defendant in error at the time he dealt with Littlejohn was ignorant of the restriction on his authority. Defendant in error therefore had a right to assume that Littlejohn, being empowered by plaintiff in error to issue its policies, was authorized to issue the one in question; and plaintiff in error should be held to be estopped from asserting to the contrary. 1 Clark & Skyles on Law of Agency, §§ 196, 206, 207, 208, 4511 Cooley’s Briefs on Law or Ins. p. 347. Plaintiff in error, as we understand it, does not contend that the law is otherwise. Its contention is that the estoppel against it was not available to defendant in error because he did not plead it. Undoubtedly the general rule is that facts relied upon to establish an estoppel must be pleaded. Insurance Co. v. Bank, 17 Tex. Civ. App. 477, 43 S. W. 831; Swayne v. Insurance Co., 49 S. W. 518; Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865. But, it seems, the rule does not apply where the party asserting the estoppel has not had an opportunity to plead it. Abbott’s Trial Brief, pp. 1640, 1644; Schurtz v. Colvin, 55 Ohio St. 274, 45 N. E. 527. Here defendant in error alleged that the policy was issued by plaintiff in error “by and through its agent A. C. Littlejohn.” The answer of plaintiff in error to the allegation was as follows:

“Defendant * * * denies that A. C. Little-john was its agent, and denies that he had authority to issue any such policy of insurance.”

As we construe the answer, it was merely a denial by plaintiff in error that Little-john was its agent at all. Defendant in error overcame that defense by proof showing that Littlejohn was its agent to issue policies at the time he issued the one in question. Had plaintiff in error defended on the ground that Littlejohn exceeded his authority as its agent when, in violation of its instructions not to issue policies on farm property, he issued the one sued upon, defendant in error would have been called upon to plead the facts constituting the es-toppel, and doubtless he would have done so. We have found nothing in the record showing defendant in error to have had any knowledge of the limitation on Littlejohn’s authority prior to the time the letter advising him that plaintiff in error would not issue policies on farm property was offered in evidence at the trial. It seems to us it would be unreasonable to hold, under the circumstances, that the case is within the rule invoked. WTe think it should be held, instead, that it is within the exception to the rule, and that the failure of defendant in error to plead the facts showing the es-toppel proven is not a reason why the judgment should be reversed.

We do not think it should be said to have conclusively appeared that Littlejohn was without authority to issue policies of plaintiff on property in Panola county. It is true that it appeared that he was plaintiff in error’s agent “at Marshall,” but we do not think that meant he could not issue its policies on property elsewhere than in that city. Amd plaintiff in error does not contend it did, but insists his authority was restricted to the issuance of its policies on property in Harrison county. The contention is based on correspondence between plaintiff in error’s secretary at Ft. Worth and Littlejohn at Marshall, showing that Littlejohn in applying for appointment as agent of plaintiff in error to issue its policies on farm property assured it that the class of risks he would write would be “among the best planters in Harrison county;” that it replied as follows:

“At the present time we have no representative in your city. If you would take the agency of our company we would endeavor to care for such country business as would comply with our requirements, namely, owner, occupancy, brick Hues and unincumbered. We would also take small lines on barns and contents not to exceed 25 per cent, of our line on dwellings and contents. if you would like to have the agency of our company on this basis, and would also give us some good city business to offset this country business without making us a specialty farm-writing company, I would be glad to plant with you.”

That Littlejohn replied:

“I will be pleased to accept the agency for your company along the lines outlined by yourself. Please therefore furnish me with bond and contract, also register and policies, and any other supplies that you think I might need.”

And that plaintiff in error replied:

“Agreeable to your request, I am handing you herewith bond, agency appointment blank, and shall request that you kindly execute and return to me, and also sign the receipt for supplies which have been forwarded to you under separate cover. Trusting to receive these papers, and in the meantime you are hereby authorized to proceed as our .agent.”

And on testimony of one Pillet, the acting secretary of plaintiff in error, as follows:

“In all cases the authority of the agents of International Eire Insurance Company was limited to their own town and probably to suburbs adjoining'. If in any case the authority was greater than that, special permission would have to be given, in writing, by the company. No authority was extended in any case to an agent to operate outside of his county.”

Pillet, it will be noted, did not pretend to know anything about the authority conferred upon Littlejohn further than was shown by the correspondence set out above. His testimony in that respect had reference to the custom of his company in appointing agents and defining their authority. We do not think the trial court was bound to believe and find that the custom was observed when Littlejohn was appointed, but think he had a right to determine the question from the showing made by the correspondence. So determining it, we think the trial court might reasonably have found as he did. It will be noted that in the letter appointing Littlejohn agent no restriction was placed on his authority as to the location of property to be insured by policies he might issue. If the restriction as claimed existed by force of the contract of agency as evidenced by the correspondence, it must have been because of the assurance in the letter of Lit-tlejohn applying for the appointment that the class of risks he would write, if appointed, “would be among the best planters in Harrison ■ county.” It seems to us there would be as good reason for construing this assurance as operating to deny Littlejohn authority to issue plaintiff in error’s policies on farm property to others than the “best planters” in Harrison county, as for construing it as operating to deny him authority to issue such policies only on property in Harrison county. We think the trial court might reasonably have concluded that plaintiff in error in the letter appointing Littlejohn its agent did not intend that the general authority thereby conferred upon him to act for it in the issuance of its policies on farm property was to be construed as so limited as to locality, by Littlejohn’s letter applying for the agency, as to deny him authority to issue such policies on farm property outside of Harrison county. But if we are wrong about this, and if it should be said that it conclusively appeared that Littlejohn was without authority to issue the policy in question because the property covered by it was in Panola county, we do not think his lack of authority should be held to have defeated a right on the part of defendant in error to recover on the policy as he did. Por it appears from the record that defendant in error dealt with Littlejohn on the faith of his being what his possession of plaintiff in error’s policies indicated him to be, 'to wit, its agent with authority to issue its policies, and in complete ignorance of any restriction on his authority as such agent. The judgment is affirmed.
      ©=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    McLEMORE v. BICKERSTAFF et al.

    (No. 1410.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 8, 1915.
    Rehearing Denied Oct. 7, 1915.)
    1. Judgment <&wkey;256 — Conformity to Special Verdict.
    Under Rev. St. arts. 19S6, 1990, 1994, providing that a special verdict shall be conclusive as to the facts found, and that the court must conform his judgment thereto, the court must conform its judgment to the special findings of the jury.
    LEd. Note. — For other cases, see Judgment, Cent. Dig. §§ 44CL454; Dec. Dig. @=>256.]
    2. Deeds <&wkey;66 — Delivery—Evidence—Question eor Jury.
    Whether a deed was delivered, held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 127, 633; Dec. Dig. &wkey;66.]
    3. Mortgages <&wkey;139 — Absolute Deed as Mortgage.
    A mortgagee holds only a lien, which is merely a legal right to have recourse on the mortgaged property to satisfy his claim in case of default, and on condition broken he must foreclose, and the fact that the mortgage is evidenced by a deed, absolute on its face, does not change the rule.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 278; Dec. Dig. &wkey;139.]
    4. Mortgages @=>139 — Vendor and Purchaser @=3228 — Absolute Deed —Transfer of Property — Notice.
    One obtaining a conveyance from a grantee in a deed, absolute in form, but in fact a mortgage, acquires no title, unless he is a purchaser for value and without notice that the deed was a mortgage.
    [Ed. Note. — For other cases, see Mortgages, Gent. Dig. §§ 278, 728; Dec. Dig. &wkey;139; Vendor and Purchaser, Cent. Dig. §§ 495-501; £>ec. Dig. @=>228.]
    5. Estoppel @=>107 — Title by Estoppel — Pleading and Proof.
    One claiming title by estoppel must plead and prove the facts creating an estoppel.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. &wkey;107.]
    6. Estoppel @=>58 — Equitable Estoppel —• Elements.
    An equitable estoppel cannot be invoked except to protect the party claiming its benefit from damage or loss resulting if the true facts should control, and one invoking the estoppel must point to some injury he will sustain if the true facts control.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. &wkey;58.]
    7. Estoppel @=321 — Deeds—Acts Constituting.
    A grantor in a deed, absolute in form but in fact a mortgage, signed as a witness a deed by the grantee to a third person. The third person knew as muck about the legal status of the title as the grantor did. The grantor did not encourage or advise the conveyance to the third person. Held, that the grantor was not estopped from asserting, as against the third person, that the deed executed by him to the grantee was a mortgage, though all the parties believed that the grantee had the legal title and could convey it.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 26; Dee. Dig. &wkey;^21.]
    8. Mortgages <&wkey;34 — Absolute Deeds as MORTGAGES — PAROL AGREEMENT.
    Where a deed, absolute in form, was a mortgage at its inception, no subsequent parol agreement of the parties could change its legal character.
    [E-d. Note. — For other cases, see Mortgages, Cent. Dig. § 83; Dec. Dig. <&wkey;>34.]
    9. Vendor and Purchaser &wkey;>232 — Conveyance by Mortgagee out oe Possession-Title Acquired.
    A conveyance by a mortgagee out of possession passes no title to the grantee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. &wkey;>232.]
    Error from District Court, Franklin County; H. F. O’Neal, Judge.
    Trespass to try title by J. T. MeLemore against Savannah Bickerstaff and others. There was a judgment for defendants, and plaintiff brings error.
    Affirmed.
    A. L. Burford, of Texarkana, and R. T. Wilkinson, of Mt. Vemon, for plaintiff in error. Dinsmore, McMahon & Dinsmore, of Greenville, and R. E. Davenport, of Chick-asha, Okl., for defendants in error.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

This suit was instituted in the form of an action of trespass to try title by the plaintiff in error against the defendants in error, to recover a tract of land situated in Franklin county. J. B. Bickerstaff is the common source of title, and the defendants in error are his children and only heirs. The plaintiff in error deraigns title through a deed from Bickerstaff to D. F. MeLemore executed on January 29, 1889, and a conveyance from D. F. MeLemore to himself executed in 1896. Among other defenses interposed by the defendants in error was a plea of limitation, based upon 10 years’ adverse possession. J. B. Bickerstaff remained in possession of the property until his death, which occurred a short time before the institution of this suit, and after his death some of his children have continued to occupy the premises. The case was submitted to the jury upon special issues, and the following findings of fact made: (1) That the deed from Bickerstaff to D. F. MeLemore in 1889, though absolute in form and purporting to convey the land in fee simple, was intended by the parties to be only a mortgage to secure MeLemore in an indebtedness due him from Bickerstaff; (2) that a deed executed by D. F. MeLemore in April, 1891, reconveying the land in controversy to Bickerstaff, was delivered and became effective; (3) that Bickerstaff and his children have held peaceable and adverse possession of the land in controversy continuously since January 29, 1889. Upon those findings the court entered a judgment in favor of the defendants in error.

The first assignment presented is as follows:

“The court erred in rendering judgment for defendants and in overruling plaintiff’s motion for judgment in his favor, notwithstanding the findings of the jury.”

It is not denied that the findings of the jury justified, if they did not demand, a judgment in favor of the defendants in error. But it is argued that the state of the evidence was such that the court should have ignored those findings and entered up a judgment in favor of the plaintiff in error. It has long been the settled law in this state that when a jury has been impaneled to try the issues of fact, the court is required to conform his judgment to the jury’s findings. Rev. Civ. Stat. 1911, arts. 1986, 1990, 1994; Ablowich v. Bank, 95 Tex. 431, 67 S. W. 79; Clark & Loftus v. Pearce, 80 Tex. 151, 15 S. W. 787; Western Union Tel. Co. v. Mitchell, 89 Tex. 444, 35 S. W. 4; Scott v. Farmers’ & Merchants’ Nat’l Bank (Civ. App.) 66 S. W. 493; Fant v. Sullivan (Civ. App.) 152 S. W. 521.

We might rest the affirmance of this judgment upon the dispositiofi made of this assignment, for none of those remaining are presented in a manner which entitles them to consideration; but the plaintiff in error insists that the judgment is fundamentally erroneous because of the insufficiency of the evidence to support it. Conceding, for the sake of argument, that the absence of sufficient evidence to support a judgment is an error apparent upon the face of the record which may be considered without an assignment, we think the appeal is without merit. The evidence shows that in 1889 Bickerstaff was the owner of the land in controversy, together with two other tracts. He was in need of money, and procured a loan from D. F. MeLemore and made the deed of January 29, 1889, for the purpose of securing MeLemore in the loan advanced. In 1891 MeLemore executed a deed reconveying this tract, and other lands not here involved, to Bickerstaff. There was considerable dispute as to whether or not this deed was ever delivered. MeLemore admitted its execution, but says that it was the understanding that the deed was to be delivered when Bicker-staff paid the debt; that he failed to do this, and the deed never had been delivered. The deed was produced on the trial as coming from the custody of D. F. MeLemore. Savannah Bickerstaff, one of the defendants in error, testified: That her father at his death left a number of papers relating to his business, which she turned over to Mr. Davenport, his attorney. Before doing this she looked over them and found an instrument in the form of a deed, which related to the land in controversy, and to which J. B. Bickerstaff and D. P. McLemore were parties. She did not recollect the date, but did recall that it also had a certificate of acknowledgment from S. M. Speer. Davenport testified that Miss Bickerstaff brought to his office a number of her father’s deeds and papers, which were examined by him. One of them, according to his description, appeared to be the deed from D. F. McLemore tó J. B. Bickerstaff, reconveying the land in controversy. This deed mysteriously disappeared from his office the very day it was brought to him. That an issue of fact regarding the delivery of the deed of 1891 was presented and determined by the jury in favor of the defendants. This alone is sufficient to defeat the plaintiff’s right of recovery.

But if it should be assumed, as the plaintiff in error contends, that the deed from D. F. McLemore in 1891 was never in fact delivered, there is ample evidence in the record, about which there appears to be little or no dispute, which shows that the chain of title upon which the plaintiff in error relies is insufficient to support his claim of ownership. It was admitted in the argument before this court that the deed from Bickerstaff to McLemore executed in 1889 was only a mortgage, as found by the jury. Under a well-established rule in this state the mortgagee acquires no estate in or title to the mortgaged property which he may convey to another. He holds only a lien, which is merely a legal right to have recourse on the mortgaged property for the satisfaction of his debt in case of default. He cannot sue and recover the property in the event the condition is broken, but must seek a foreclosure of his lien and a sale of the property. The fact that the mortgage is evidenced by a deed absolute upon its face does not alter the rule. Mann v. Falcon, 25 Tex. 274; Edrington v. Newland, 57 Tex. 627; Wiggins v. Wiggins, 16 Tex. Civ. App. 335, 40 S. W. 645, and cases cited. It follows, then, that if D. F. McLemore had no title to convey, the plaintiff in error acquired none by the conveyance made to him in 1896, unless he occupied the position of a purchaser for value and without notice that the deed under which his grantor held was only a mortgage. Stafford v. Stafford, 29 Tex. Civ. App. 73, 71 S. W. 984; 1 Jones on Mort., § 808. One who claims title by estoppel must plead and prove the facts which create an estoppel. There is in the evidence no pretense that the plaintiff in error was ignorant of the true character of the deed from Bickerstaff to D. F. Mc-Lemore ; and, according to his own testimony, he paid no consideration for his conveyance. His deed recited a consideration of $3,500 to be paid in two installments, but he admits that it was never the intention of the parties that those notes were to be paid; they were given merely to prevent plaintiff in error from disposing of the land. The notes were afterwards returned to him, and D. F. McLemore afterwards made a will, devising the land to all of his children in equal portions. We then have the situation of a grantee who paid no consideration, and who had notice that his grantor had no right to convey, insisting upon a title by estoppel.

The evidence shows that the deed from D. F. McLemore to the plaintiff in error was signed by Bickerstaff as a witness, but was acknowledged before a notary public by the grantor. There was also evidence tending to show that Bickerstaff received a credit on his debt due to D. F. McLemore equal to the sum recited in the deed.. It is insisted that these facts are sufficient to create an estop-pel against the heirs of Bickerstaff, notwithstanding the notice to the plaintiff in error and his failure to pay a valuable consideration for the transfer.

There are at least two satisfactory reasons why these facts do constitute an estoppel. First, because an equitable estoppel cannot be invoked except for the purpose of protecting the party claiming its benefit from some damage or loss which might result if the true state of the facts should control the determination of the controversy. The party who invokes estoppel must be able to point to some injury he will sustain, if the truth is told. Here the plaintiff in error parted with no consideration, and can lose nothing if it be shown that he got no title. The only injury of which he can complain is the failure to obtain something for nothing. The fact that in the transaction Bickerstaff may have secured a benefit, in the nature of a credit on his debt, does not alter the situation. An estoppel is interposed, not because one party has received a benefit from the transaction, but because another may be injured. The rules governing estoppel are not to be confused with those which govern ratification.

The second reason is, because the plaintiff in error apparently knew as much about the legal status of the title to the land as did Bickerstaff. Wortham v. Thompson, 81 Tex. 348, 16 S. W. 1059. The fact that Bickerstaff signed the deed to the plaintiff in error as a witness, standing unexplained, tends merely to show that he consented to the transaction. It does not imply that he encouraged or advised it. We may assume as true that all of the parties believed that D. F. McLemore had the legal title to the land and could convey it to another, and that they desired to accomplish that particular end; it would still be nothing more than a mistake of law. It would not follow that Bick-erstaff would be guilty of a wrong such as to preclude him or his heirs from thereafter stating the truth about the transaction.

If the deed under which D. F. McLemore claimed was a mortgage at its inception it remained a mortgage, and no subsequent parol agreement of the parties could alter its legal character. Keller v. Kirby, 34 Tex. Civ. App. 404, 79 S. W. 82; Ullman v. Devereux, 46 Tex. Civ. App. 459, 102 S. W. 1163; Hart v. Eppstein, 71 Tex. 752, 10 S. W. 85.

A conveyance by a mortgagee out of possession passes nothing. Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; 1 Jones on Mort. § 808. The law will impute a knowledge of these rules as much to the plaintiff in error as to any other party to the transaction. There is nothing in the record to indicate that he was ignorant of them. The evidence also shows that Bickerstaff remained in the undisturbed possession of the land from a period antedating the deed of 1889 till his death, and that he appropriated the rents and revenues to his own use; that afterward his children continued to occupy the premises and to make the same use of them. While the evidence shows that Bickerstaff paid the taxes, he seems to have rendered the property for taxation in the name of McLemore. During the time he remained in possession he sold and conveyed portions of the land included in McLemore’s deed. The finding of the jury that the defendants in error had completed the bar of limitation is not without support.

For reasons not necessary to state we have passed over several tenable objections urged by the defendants in error against the consideration of this case on its merits.

There is no error in the judgment, and it is affirmed.
      <¡&wkey;For other cases see same topic ana KEY-NUMBER in. all Key-Numbered Digests and Indexes

      (§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WIDLSON, O. J.

text:
    WHITAKER et al. v. HILL et al.
    (No. 1511.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 7, 1915.
    Rehearing Denied Oct. 7, 1915.)
    1. Judgment <&wkey;788 — Lien—Recording.
    A judgment creditor may, notwithstanding an unrecorded deed by the debtor to a third person, acquire a lien on the land by complying with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5614-5616, relating to judgment liens, or by levy of execution without knowing and without being chargeable with notice of the third person’s title under articles 6827, 6S28, and may, under article 6824, subject the land to his judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1368, 1369; Dec. Dig. <&wkey;>788J
    2. Judgment <S=»7G9 — Lien—Recording and Docketing Judgment — Index.
    The indexing of the abstract of a judgment duly recorded is, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5614-5616, indispensable to the creation of a lien.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1327; Dec. Dig. <&wkey;>769.]
    3. Injunction <&wkey;13G, 163 — Temporary Injunction-Granting or Dissolving.
    Tbe court, in granting a temporary injunction or refusing to dissolve it, should require a ease of probable right and probable danger to the right without the injunction, and its discretion should then be regulated by the balance of inconvenience or injury to the one party or the other.
    [Ed. Note. — For other cases, see Injunction, Cent Dig. §§ 305, 306, 357-371; Dec. Dig. &wkey; loo, 163.]
    4. Execution &wkey;172 — Temporary Injunction-Granting or Dissolving.
    In a suit to restrain an execution sale and to remove an abstract of a judgment as cloud on title, evidence held, to show that execution creditor had notice of the rights of a purchaser under an unrecorded deed sufficient to justify granting of a temporary injunction and refusal to dissolve it.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. &wkey;>172.j
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by O. H. Hill and others against H. M. Whitaker and another. From an order refusing to dissolve a temporary injunction, defendants appeal.
    Affirmed.
    Mrs. Rosa R. Osburn, one of the appellees, owned 254.8 acres of the Jose Maria Procella survey, situated partly in Cherokeetand partly in Smith county. In consideration of $1,008.40 paid to her by C. II. Hill, another one of the appellees, and the execution and delivery to her by him of his four promissory notes for $250 each, payable February-13, 1914, 1915, 1916, and 1917, respectively, Mrs. Osburn conveyed the land to said Hill by a general warranty deed dated February 13, 1913. The deed was not filed for record in Cherokee county until April 7, 1915. The notes made by Hill were secured by the vendor’s lien retained on the land. Before any of them had matured Mrs. Osburn assigned the notes and her claim on the land to secure the payment thereof to D. F. Wilkinson, another one of the appellees. The note due February 13, 1914, was paid by Hill at its maturity. The others, except interest which had accrued thereon, had not been paid at the time the order appealed from was made. March 29, 1915, appellant H. M. Whitaker, having on February 11, 1915, obtained judgment against Mrs. Osburn for the sum of $1,500, filed an abstract thereof in the office of the county clerk of Cherokee county, where 200 acres of the land was situated, and had same recorded. April 7, 1915, an alias execution previously issued on the judgment was levied on the 200 acres in Cherokee county by Forest Reagan, sheriff, who is the other appellee. Thereupon Mrs. Osburn, Hill, and Wilkinson commenced this suit against Whitaker and the sheriff to restrain the latter from advertising and selling the land and to have the cloud cast on the title of 1-Iill thereto by the recording of the abstract and levy of the execution removed. The appeal is from an order made by the judge in vacation May 18, 1915, refusing to dissolve a temporary injunction he had granted May 1, 1915, restraining the sheriff from proceeding further under the execution pending a trial of the cause on its merits.

      H. IT. Whitaker, of Beaumont, and Norman, Shook & Gibson, of Rusk, for appellants. W. H. Clark, of Dallas, and Perkins & Perkins and Guinn & Guinn, all of Rusk, for appellees.
   WIDLSON, O. J.

(after stating the facts as above). That Hill owned the land at the time the abstract was recorded and at the time the execution was levied, and that Mrs. Osbum did not then or afterwards own it, is conceded to be true. But notwithstanding the fact that Hill owned it, Whitaker might have acquired a lien on the land by complying with the requirements of the statute with reference to judgment liens (articles 5614-5616, Vernon’s Statutes), or by the levy of an execution, at a time when he did not have, and was not chargeable with, notice of the fact that Hill owned it (articles 6827, 6828, Vernon’s Statutes), and be entitled by force of article 6824, Vernon’s Statutes, to have it subjected to his judgment against Mrs. Osburn. Grace v. Wade, 45 Tex. 522.

It appears that the abstract was duly recorded, but it does not appear from anything we have found in the record sent to this court that it was indexed as was required by the statute. Articles 5614-5616, Vernon’s Statutes. As indexing the abstract was indispensable to the creation of a lien (Nye v. Moody, 70 Tex. 434, 8 S. W. 606; Nye v. Gribble, 70 Tex. 458, 8 S. W. 608; Miller v. Koertge, 70 Tex. 162, 7 S. W. 691, 8 Am. St. Rep. 587), it cannot he said to have appeared that Whitaker had acquired a judgment lien against the land.

But it appeared that the deed to Hill had not been filed for record at the time the execution was levied. Therefore, unless it further appeared that, notwithstanding the deed had not been so filed, Whitaker may have had, or been chargeable with, notice of Hill’s claim, the judge erred when he overruled the motion to dissolve the injunction.

It was not pretended that Whitaker had actual notice of the fact that I-Iill claimed to own the land, but it was insisted that Hill had such possession thereof as charged Whitaker with notice of his rights.

In support of the contention testimony was offered showing that, during the fall of 1913, I-Iill and one O’Neal, who owned land adjoining the land in controversy, constructed a partition fence about 550 yards long, after clearing a space 10 to 12 feet wide for same, along the boundary line between them; that during the winter of 1913 and 1914 Hill opened up roads on the land in controversy and used timber thereon to make posts for fencing it; that in May, 1914, he deadened some of the timber thereon; that in August, 1914, he cleared up a site for a house he intended to build thereon, had a well dug on the site, cut timber on the land, and made logs to use in building a barn thereon, and cleared off the undergrowth on an old field on the land preparatory to cultivating it; that Hill joined other citizens of the county in petitioning the commissioners’ court to open up a public road along the north boundary line of the land, and gave a part thereof to the county as a right of way for the road; that he contracted with other parties to furnish them railroad ties, and from March 25 to April 17, 1915, had men on the land engaged in making the ties, and a man engaged in hauling same therefrom ; and that it was understood by people living in the neighborhood in which the land was situated that Hill owned it.

Whitaker insists that the testimony just referred to was wholly insufficient to support a finding that Hill had such possession of the land as charged him with notice of I-Iill’s claim of title to it. We will not discuss the testimony, nor undertake to determine whether, if the appeal was from a judgment based on such a finding on such evidence alone, after a trial of the cause on its merits, such a contention should be sustained or not. The appeal is not from that kind of a judgment, but, as before stated, is from an order of a judge made in vacation, refusing to dissolve a temporary injunction theretofore granted by him. It has been held that in granting such an injunction — ■

“all that the judge should, as a general rule, require, is a case of probable right and probable danger to that right without the interposition of the court; and his discretion should then be regulated by the balance of inconvenience or injury to the one party or the other.” Gas & Light Co. v. City of Memphis (C. C.) 72 Fed. 952; Improvement Co. v. Winsor, 8 Wash. 490, 36 Pac. 441; 2 High on Injunctions, § 1696.

In passing upon a motion to dissolve such an injunction the action of the judge should, we think, be controlled by like considerations. We are not prepared to say that in overruling the motion the judge abused the discretion he possessed. Therefore the judgment will be affirmed.
      <S=eFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. SCHAEFFER.
    (No. 5505.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 20, 1915.)
    1. Appeal and Error <&wkey;1177 — Reversal — Granting New Trial.
    Where the amended petition shows an amount beyond the jurisdiction of the trial court, but the record does not contain the original petition or show the amount originally sued for, the judgment will be reversed, and the cause remanded, instead of reversing and dismissing it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. &wkey;1177.] •
    2. Damages <&wkey;69 — Interest as Element oe Damage.
    In an action in tort, interest is a part of the damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 137-140; Dec. Dig. &wkey;69.]
    Appeal from Bee County Court; T. M. Cox, Judge.

      Action l>y A. R. Schaeffer against the San Antonio & Aransas Pass Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Proctor, Yandenberge, Crain & Mitchell, of Victoria, for appellant. John'Baker, B. D. Tarlton, Jr., and H. S. Bonham, all of Bee-ville, for appellee.
   CARL, J.

This is a suit in tort for damages to an automobile, which damage is laid at $975, together with legal interest thereon from July 3, 1912. The original petition does not appear in the transcript, but the petition upon which the cause was tried was filed subsequent to July 24, 1914. This petition does not disclose the amount sued for in the original petition.

It has been the practice of this court, where the amended petition would show an amount beyond the jurisdiction of the trial court, and yet the record did not contain the original petition or show what the amount originally sued for was, to reverse the judgment and remand the cause, instead of reversing and dismissing it.

It is well established that in an action in tort interest is a part of the damages. Baker v. Smelser, 88 Tex. 26, 29 S. W. 378, 33 L. R. A. 163; Dwyer v. Bassett, 29 S. W. 815; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1032; Railway Co. v. Faulkner, 118 S. W. 748; Ry. Co. v. Flory, 118 S. W. 1116; Ry. Co. v. Womble, 124 S. W. 111; Crowdus et al. v. Kahn Tailoring Co., 136 S. W. 1136.

The judgment of the trial court is reversed, and the cause remanded.
      <S=>For other eases see .same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    BANKERS’ TRUST CO. OF AMARILLO v. COOPER, MERRILL & LUMPKIN.
    (No. 820.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1915.)
    1. Corporations &wkey;>657 — -Foreign Corporations— Contracts — Permit to Do Business.
    A foreign corporation can incur liability on a contract of employment of an attorney made in the state, before it obtains a permit to do business in the state.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2356-2541, 2550, 2552-2554; Dec. Dig. &wkey;>657.]
    2. Corporations <&wkey;432 — Contract by Pres-ideni^Presumption oe Authority.
    It may be presumed that the president of a corporation, employing an attorney for it, was authorized to do so, its directors having thereafter met and conferred with the attorney in reference to legal matters, especially where the corporation, sued for the services, offers no evidence denying the president’s authority.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. &wkey;432.]
    3. Corporations <&wkey;425 — Contract by Officers — Authority—Estoppel.
    When officers of a corporation make a contract for it, which inures to its benefit, and the results are enjoyed by it, it is estopped to deny the officers’ authority to make the contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1697-1701, 1705; Dec. Dig. &wkey; 425.]
    4. Trial <&wkey;260 — Instructions Covered by Others.
    Requested instructions, covered by others given, need not be given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;200.]
    5. Appeal and Error <&wkey;1068 — Harmless Error — Refusal of Instruction.
    Refusal of an instruction that agreement was not binding was harmless; it being- clear that the jury did not consider the agreement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. &wkey;M068.]
    6. Trial @^251 — Instructions—Conformity to Issues — Estoppel.
    The question of estoppel not being raised by the pleadings, an instruction thereon is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251J
    7. Corporations <&wkey;426 — Employing Attorneys — Liability for Services — Finance Committee.
    After rights of attorneys to compensation for services performed for a corporation have accrued, it cannot avoid liability by placing the matter of disbursing funds and employing attorneys in the hands of a finance committee.
    [Ed. Note. — For other cases, sec Corporations, Cent. Dig. §§ 1596, 1702-1704,1707,1708,1710-1716; Dec. Dig. <&wkey;>426.]
    8. Trial &wkey;>252 — Instructions—Conformity to Evidence.
    An instruction, unauthorized by any evidence in the case, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    Appeal from District Court, Potter County ; J. N. Browning, Judge.
    Action by Cooper, Merrill & Lumpkin against the Bankers’ Trust Company of Amarillo, Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    R. E. Underwood, of Amarillo, and J. H. Synnott, of Dallas, for appellant. Jno. W. Veale, of Amarillo, and 'Del W. I-Iarrington, of El Paso, for appellee.
   HALL, J.

Appellees, a firm of lawyers, sued appellant for $2,632.65, alleging that appellant was a private corporation, chartered under the laws of the state of Arizona, July 16, 1912; that some time in the year 1912, acting through its duly authorized officers and agents, appellant employed appellees, as its attorneys, to generally advise said corporation in all legal matters pertaining to the conduct of its business, agreeing to pay appellees a reasonable sum for their services ; that said services were rendered at the request of the then president and secretary of said corporation. The appellant’s answer admits that it was chartered under the laws of Arizona, obtained a permit to transact business in Texas in January, 1913. There was a general verdict in favor of the appel-lees in the sum of $1,000.

The first two assignments of error challenge the sufficiency of the evidence to support the verdict and judgment. H. H. Cooper, a member of the firm, testified, in substance, as follows:

“Our firm was consulted in connection with our employment by the Bankers’ Trust Company, by Mark Logan. We were consulted with reference to some matters of the Bankers’ Trust Company, or rather X was consulted, and he sought my advice as secretary of that company, and I refused to advise him with reference to it because I understood that Mr. Penry was attorney for the company, and I told him that any advice given by me would have to come on request through their attorney, and I did not advise them because it was not asked by Mr. Penry. Later I was consulted by Mr. Le Master with reference to the same matter and made the same reply; then later Judge Penry, Le Master, and Logan all came to my office together. This was the latter part of September of the 1st of October, 1912. Le Master was president of the Bankers’ Trust Company. After Judge Penry came and explained the situation to me, that he was not their attorney, except nominally, and that he was not willing to advise the people, and sought my advice in conjunction with them with reference to this matter, I agreed to consult and advise with them about the matter then under discussion. There was nothing said at that time as to the amount of the fee. When we discussed the matters I arrived at the conclusion as to how they should be handled, and reported to Mr. Penry and discussed it with him and the other gentlemen. During the discussion they proposed to have our firm represent the company generally and advise with them, and we had a general discussion of the question of the fee. I told them I could not even estimate the fee because I did not know what the work would be. It was then suggested by Mr. Le Master and Mr. Logan — and I think Judge Penry was present — that we go ahead and help the company and help them out of the difficulty and help them get the property into the possession of the company, and they would pay a reasonable fee when the work was completed.”

That his firm examined abstracts of title and advised almost every day with the officers of the company, including some of the directors. That it had no permit to do business in Texas at that time, and one of the first things they discussed was the manner or method of securing the permit to do business in Texas so it could carry on its business and lend money on real estate. Upon investigation it was necessary to amend the Arizona charter, reducing the capital stock. That witness procured the amendment and assisted the officers in floating a loan of $100,000. That he made a trip to Dallas with reference to the loan, examined many abstracts, wrote many deeds and other instruments, took a large number of notes for collection, and filed suit on several. That in January, 1913, he told Logan and Le Master that their fee was $2,500 up to that time. They said the fee was entirely satisfactory and their services as counsel were continued.

Appellant insists under these assignments that the services rendered were at the instance of promoters and to assist promoters in perfecting the organization of the company. The record is clear, however, that the charter is dated July 16, 1912. While a permit to do business in Texas, might be a condition precedent to the right of the company to file suit in Texas, it was not necessary for appellant to have a permit before it could incur liabilities, make contracts for services and be sued in the state. Home Forum B. O. v. Jones, 29 Tex. Civ. App. 68, 48 S. W. 219, wilt of error denied by Supreme Court, 93 Tex. 686, 50 S. W. xvi; Southern Pacific Co. v. Allen, 48 Tex. Civ. App. 66, 106 S. W. 441; Western Union Telegraph Co. v. Clark, 14 Tex. Civ. App. 563, 38 S. W. 225, writ of error denied by Supreme Court 93 Tex. 676, 38 S. W. 225. It is insisted that neither Logan nor Le Master had the right to employ ap-pellees. During the time in which the services were rendered it appears that Logan and Le Master alternately filled the office of president, and it appears from the statement of facts that Logan was the originator and general manager of the affairs of the company. It is said in Catlett v. Starr, 70 Tex. 485, 7 S. W. 844:

“Corporations usually act through their president, or those representing him. When an act pertaining to the business of the company is performed by him, the presumption .will b^ indulged that the act is legally done.”

2 Purdy’s Beach on Private Corporations announces the rule to be:

“An officer of a corporation may, by the acts of its. directors or managers, be invested with capacity to. bind the company, even beyond the scope of those powers which are inherent in his office; as, where in the general course of the company’s business the directors or managers have permitted an officer to assume the control and direction of its affairs and have held him out to the public as its general agent.” Id. § 779. “If a person assuming to act as agent of a corporation but without legal authority or an agent in excess of Ms proper authority make a contract and the corporation knowingly receive and obtain the benefit of it, this will be a ratification of the contract, and render the corporation liable as a party to it. In this manner ratification may be presumed of the acts of promoters, of the president, of a director, or other officer.”

Section 203, Beach on Corporations, vol. 1, states the rule in this language:

“But a contract, regular on its face, executed on behalf of a corporation, and within the scope of its business by the president and secretary, is prima facie evidence of their authority to execute it, and in an action for its breach the burden of proof is on the party denying such authority.”

The record shows that the directors and the finance committee, composed of the directors, met and conferred with appellees with reference to certain legal matters, and is sufficient to warrant the jury in presuming that Logan and Le Master were authorized to employ appellees, especially since appellant did not offer any evidence denying the authority of Le Master or Logan, as president, to make the contract of employment.

It is said in 7 R. CO. L. §§ 437, 631, 635:

“It seems that the president has, by virtue of his office, authority to take charge of the litigation of the corporation, and power from the president of a corporation, authorizing an attorney to do certain acts on its behalf, will be presumed to have been authorized. * * * It seems that the president of a corporation will be presumed, in the absence of proof to the contrary, to have authority to direct the corporate litigation, and his power to employ an attorney to conduct the corporate litigation has frequently been sustained, in view of the nature of the authority vested in him. * * * The authority of officers or agents of a corporation to enter into contracts of employment and appoint agents on behalf of the corporation may be inferred from the manner in which they have been permitted to transact the business of the corporation. It is not necessary, in order to charge a corporation for services rendered, that the directors at a formal meeting should either have formally authorized or ratified the employment. Thus, while the president has no inherent authority to enter into contracts of employment on behalf of the corporation, still this authority usually will be inferred when he is intrusted with the general management of the business of the corporation; so, if an officer employs a person to perform services for the corporation and it is performed with the knowledge of the directors, and they receive the benefit of such services without objection, the corporation is liable upon an implied assumpsit.”

The power of a president of a corporation to employ attorneys is discussed at great length in 2 Thompson’s Corporation (2d Ed.) § 1433, in which the author cites Dallas Ice Factory, etc., Co. v. Crawford, 18 Tex. Civ. App. 176, 44 S. W. 875, and announces .the rule that it may be said generally that such an officer or manager has authority to employ counsel, and in general to do whatever is necessary in any litigation in which the corporation is directly interested, and which may be regarded as essential or necessary in advancing or protecting the corporate interests, including the power to employ attorneys to attend to the current legal business of the corporation. City of Austin v. Nuchols, 42 Tex. Civ. App. 5, 94 S. W. 336; Bank v. Eustis, 8 Tex. Civ. App. 350, 28 S. W. 227; Tex. Mfg. Co. v. Fitzgerald, 176 S. W. 891(6).

Appellees invoke another rule, which we think may be applicable here, and which is that when the officers of a corporation have made a contract which inures to the benefit of the company, and the results of which are enjoyed by it, the company is estopped from denying that the officer so contracting was duly authorized. First National Bank of Greenville v. Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 828; Waxahachie National Bank v. Vickery, 26 S. W. 876; Hayward Lumber Co. v. Cox, 104 S. W. 403; Canadian Long Distance Telephone Co. v. Seiber, 159 S. W. 897.

By its third assignment of error complaint is made of the action of the court in refusing to give special charge No. 3, to the effect that, if the jury believed from the evidence that at the time Logan, Le Master, and Penry had plaintiffs to perform services for appellant they were acting for the Amarillo Securities Investment Company or for themselves individually, and if the jury should further find that the agreement with plaintiffs that their fee should be $2,500, and they were acting for the Amarillo Securities Company or as individuals, the verdict should be for the defendants.

The fourth paragraph of the general charge is:

“If you find and believe from the evidence that the said Mark Logan, Mike C. Le Master, and J. L. Penry were not acting for the Bankers’ Trust Company, at the time they engaged the services of plaintiffs (if they did engage them as alleged by plaintiffs), but were acting for themselves or for the Amarillo Securities Company, as promoters of the defendant company, and you further believe that plaintiffs’ services were performed under such contract, then this defendant would not be liable for any services rendered for such promoters, and you will find for the defendants for all such services.”

This paragraph of the general charge submits the same issue which the requested instruction presents in the first part. It is true the requested instruction presents the issue of the agreement between Logan, Le Master, and Penry on the one part and plaintiffs .upon the other, that the fee of $2,500 was reasonable. We do not find this issue submitted in the general charge, but since the verdict of the jury was for $1,000 only, the omission, if error, is harmless, since it is clear that the jury did not consider the agreement as to the amount of the fee.

Appellant insists that the court erred in overruling its fourth objection to the general charge and in refusing special instruction No. 6, upon the question of estoppel. There is evidence in the record tending to show that just before appellees presented their account for attorney’s fees, Mark Logan had represented in an open meeting, at which appellees were present, that the company was not indebted to any one in any sum for attorney’s fees, or otherwise. The question of estoppel is not raised by the pleadings, and the court could not properly have submitted it. Howe v. O’Brien, 45 S. W. 813; Ford v. Warner, 176 S. W. 885.

The fifth assignment is based upon the refusal of the court to charge the jury that if they found that, before plaintiffs informed Logan and Le Master of the amount of their fee, a finance committee had been organized with full power to look after such things, the verdict should be for the defendant. The services of appellees, according to the record before us, were performed, in a large measure, before the appointment of a finance committee, and the liability of appellant had already attached. Appellant could not avoid liability by placing the matter of disbursing funds and employing attorneys in the hands of a finance committee after the rights of appellees had accrued. Besides, it is not clear from the record that the matter of employing attorneys rested with the finance committee.

Appellant requested the court to charge the jury that if they should find from the evidence that at the time Mark Logan, Mike O. Le Master and J. L. Penry, or any of them, employed the plaintiffs to perform the services sued for, and at the time they agreed that the amount charged was satisfactory, they, the said Logan, Le Master, and Penry were interested adversely to appellant, or if they were seeking to profit personally at the expense of appellant, and that the plaintiffs knew of such fact, to return a verdict for the defendants. We do not think this issue is raised by the pleadings. There is no testimony showing that appellees had any knowledge of any fraradulent designs on the part of Logan, Le Master, or Penry, if any such designs existed; nor does the evidence warrant the conclusion that in the employment of appellees, Logan, Le Master, or Penry were acting in their own interest and adversely to the interest of the company.

Finding no reversible error in the record, the judgment is affirmed.
      ©=oFor other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    RICHARDSON et al. v. PEDEN IRON & STEEL CO.
    (No. 477.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 21, 1915.)
    Appeal and Errori @=3773 — Bribes—Failure to File — Affirmance.
    Where appellants failed to file briefs in the Court of Civil Appeals within the time provided in a stipulation waiving the filing of such briefs in the trial court, and no error in law was apparent on the face of the record, the judgment would be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dee. Dig. &wkey;>77o.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge. v
    Action by the Peden Iron & Steel Company against C. A. Richardson, Jr., and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Herbert W. Reed and Minor & Minor, all of Beaumont, for appellants. Baker, Botts, Parker ■& Garwood, of Houston, for appellee.
   WALTHALL, J.

Appellee, Peden Iron & Steel Company, brought this suit against appellants, C. A. Richardson, Jr., and John F. Goodhue, seeking recovery on a certain joint and several promissory note, executed and delivered by appellants to appellee in the sum of $4,503.57, payable to the order of ap-pellee, bearing interest, and providing for the payment of attorney’s fees. The petition is in the usual form of suits on promissory notes.

Appellants appeared and filed separate answers and defenses. The case was tried to a jury. The court submitted the case to the jury on special issues, on each of which the jury made findings. On the return of the verdict the trial court rendered its judgment in favor of appellee and against appellants jointly and severally for the sum of $2,892.93, with interest thereon from August 24, 1914, at the rate of 8 per cent, per annum, and, as between appellants themselves, judgment in favor of John F. Goodhue against C. A. Richardson, by reason of his suretyship for said sum or such amount or such part thereof as he may have to pay in satisfaction of said judgment.

The appellants filed amended motion for a new trial, which being overruled, they gave notice and perfected an appeal to this court and gave a supersedeas bond, filed and approved by the clerk of the district court, with the Commonwealth Bonding & Casualty Insurance Company as surety. Attorneys for appellants and appellee filed in this court an agreement waiving the filing of briefs with the clerk of the trial court and the filing and giving notice of such filing by the clerk, and stipulating that it shall be sufficient if the attorneys for the appellants furnish a copy of their brief to appellee’s attorneys and file copies thereof in the Court of Civil Appeals before February 15, 1915. The appellants have filed no briefs in this court, and appellee files a motion asking this court to enter an order affirming the judgment rendered in the lower court, and enter a judgment herein against the appellants and the surety on its supersedeas bond because of the failure to file briefs in this court.

We have carefully reviewed the record filed in this court, and, finding no error in law apparent on the face of the record, the judgment rendered in the trial court is affirmed, and now here rendered against the appellants and the said surety on the super-sedeas bond.


text:
    ALLEN v. REED et al.
    (No. 469.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1915.)
    1. Appeal and Error <&wkey;>748 — Assignment of Error — Numbering—Omission—Effect.
    Where the brief on appeal presents assignments of error that do not conform to the Court of Civil Appeals rules for submission and briefing of cases, they cannot be considered by the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. <&wkey; 74S.]
    2. Appeal and Error <&wkey;080 — Assignment of Error — Record—Failure to Disclose— Effect.
    An assignment of error asserting error in the overruling of a special demurrer cannot be considered where the record fails to show that any such demurrer was presented to the trial court, or that any action was taken thereon, and there is no bill of exception to the failure of the court to pass upon the demurrer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2880-2882; Dec. Dig. <&wkey; 680.]
    3. Appeal and Error <&wkey;742 — Assignment of Error — Proposition—Motion for New Trial — Recital.
    The recital in the motion for a new trial that the court overruled a demurrer is not sufficient to raise error thereon, since rule 31 of the Courts of Civil Appeals (142 S. W. xiii) requires a brief statement subjoined to tbe proposition in explanation and support thereof, referring to the page of the record where the order complained of is set out.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=742.]
    4. Appeal and Eeeoe @=548 — Assignment op Eeeoe — Statement of Facts — Absence —Effect.
    An assignment of error questioning the validity of a verbal agreement as being without consideration cannot be considered, where it is not followed by propositions or any statement of fact from which the question can be determined.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <@= 548.]
    6.Appeal and Eeeoe &wkey;>548 — Issues—An-swebs — Recobd—Statement of Facts.
    An assignment of error that the answers of the jury to special issues are against the weight of the evidence cannot be considered, in the absence of a statement of facts in the record from which the question can be determined.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey;> 548.]
    6. Appeal and Eeeoe @=>548— Assignment of Eeeoe — Special Issues — Submission-Statement of Facts — Absence—Effect.
    An assignment of error attacking the action of the court in submitting special issues as irrelevant and immaterial is not in itself a proposition, and cannot be considered in the absence of a statement of facts in the record from which the question can be determined.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dee. Dig. <&wkey; 548.]
    7. Appeal and Eeeoe &wkey;>742 — Assignment of Eeeoe — Peoposition.
    An assignment of error attacking the court’s failure to submit an issue asserted to be “important and material” is not itself a proposition, and cannot be considered upon the mere statement, following the assignment, that “this issue was raised by the pleadings and was material.”
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742.]
    8. Appeal and Eeeoe @=>548 — Assignment of Eeeoe — Evidence—Admission—Bill of Exceptions — Statement of Facts.
    An assignment of error in the admission of evidence cannot be considered, in the absence of a bill of exceptions to the action of the -court in admitting the evidence or a statement of facts to show what the evidence admitted was.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey;
    9. Appeal and Eeeoe @=>548— Assignment of Eeeoe — Evidence—Statement of Facts.
    An assignment of error asserting that plaintiff should have judgment upon the undisputed evidence cannot be considered, in the absence of a statement of facts disclosing what the evidence was.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey;
    10. Appeal and Eeeoe @=>742 — Assignment of Eeeoe — Peoposition.
    An assignment of error attacking the judgment entered as a great wrong and injustice to the plaintiff in permitting defendant to retain plaintiff’s property, followed by a statement that, under the evidence, the plaintiff should have had judgment upon the verdict of the jury, and that all other issues were immaterial and irrelevant to defeat the plaintiff’s cause of action, is not a proposition presenting error for review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <¿=742.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by O. L. Allen against T. J. Keed and others for breach of contract. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Dowell & Dowell, of Houston, for plaintiff in error. J. A. Camp, of Houston, for defendants in error.
   WALTHALL, J.

, Plaintiff in error sued the defendants in error on an alleged breach of a written contract for the purchase of a sawmill, tools, fixtures, buildings and all paraphernalia located at the mill; the defendants agreeing to pay therefor by installments by delivering to plaintiff in error certain hinds and qualities of lumber at the times mentioned until the whole of the agreed amount of lumber, 175,000 feet, had been delivered. Plaintiff in error in his pleading admitted that defendants in error had made deliveries of 30,000 feet of lumber which he had received. There was a recognized indebtedness of the nature of a mortgage of $1,000 on the property, owed by the plaintiff in error, stated in the contract, and to secure defendants in error against the payment of said debt, it was stated in the contract that defendants in error reserved the right to hold back and not deliver out of the last deliveries 100,000 feet of the lumber to be delivered under the contract until the said lien indebtedness was satisfied and released. Plaintiff in error asked judgment for the restoration to him of the property on the breach of the contract being made to appear, and, in the alternative, for judgment for the amount of the purchase price in money then unpaid. The defendants in error answered by demurrers, general and special, general and special denial, and by special answer alleged that since the execution of the written contract the parties to it had by mutual parol agreement postponed some of the deliveries of lumber mentioned in the written contract until the last deliveries of the lumber should be made at the times stated in the contract, and pleaded that deliveries of certain amounts of lumber had been made, and that they were ready and willing to deliver the balance due. They further pleaded that plaintiff in error had failed to pay the said $1,000 indebtedness, and that parties at interest by suit had foreclosed said mortgage lien, and at foreclosure sale had bought in said property, and that defendants in error did not now own the property, and could not make title. They asked for damages resulting to them by reason of the failure of plaintiff in error to pay off the said $1,000 indebtedness and prevent a foreclosure of the said lien. Defendants in error made other defenses not necessary to further state.

Plaintiff in error filed a supplemental petition, in which appears demurrers, general and special,, general and special denials, denial of any agreement to postpone the time of delivery of any lumber, alleged that plaintiff was the owner of the said $1,000 indebtedness, denied responsibility of any damage to defendant's in error, and pleaded other special matters of defense, in answer to the several matters pleaded by defendants in error. The pleadings are lengthy, and in the view we take of the case we need not further state the pleadings.

The court submitted the case to the jury on 29 special issues. The jury found the facts in favor of the defendants in error, and the court thereupon entered judgment in their favor, and the case is before us on writ of error.

The plaintiff in error filed in the trial court a motion for a new trial, which the court overruled. Plaintiff in error in his brief presents 13 assignments of error, none of which can be considered by this court, because they do not conform to the rules for briefing and submitting cases. The assignments of error are not numbered as required by rule 29 (142 S. W. xii) for submission of cases in this court, so that we cannot refer to the assignments by number.

The first assignment of error presented is the second ground in the motion for a new trial, which is presented as a proposition. It is as follows:

“The court erred in overruling of special demurrer No. 1 contained in the first supplemental petition of plaintiff to that portion of the answer of defendants setting up a verbal agreement in contravention of the written one, the said demurrer being as follows: All that portion of said answer setting up a verbal contract in contravention of said written contact is null and void, as the same is not permissible in law, the said verbal agreement being the extension of the delivery of the February and March, 1913, deliveries until the last deliveries, and also the same is without consideration.”

The record filed in this court does not show that any demurrer contained in any pleading of the plaintiff in error was presented to the trial court, or that the court took any action thereon or made any order with reference thereto, nor is there any bill of exception to the failure or refusal of the court to pass upon any demurrer. If the court overruled the demurrer, as complained of iu the assignment, the order of the court in doing so should be shown: otherwise it is waived.

The recital of the action of the court in overruling a demurrer in the motion for a new trial is not sufficient. Rule 31 (142 S. W. xiii) requires that there shall be subjoined to the proposition a brief. statement of such proceeding contained in the record as will be necessary to explain and support the proposition, referring to the page of the record where this court .can find the action or order of the court complained of. This has not been done, and, finding no such order, we must conclude that the court made no order overruling the demurrer, and that the demurrer was not acted on by the court, but was, waived by the plaintiff.

In the latter part of the assignment complaint is inade that the verbal agreement complained of is without consideration. The assignment is not followed by propositions nor by any statement, except a copied extract, from the petition. In the absence of a statement of facts, we cannot say that the verbal agreement is without consideration. The assignment cannot be considered.

The next three assignments of error, which we designate as assignments 2, 3, and 4, complain of the action of the court in overruling special demurrers numbered respectively 7, 9, and 15. The same criticism applies to these assignments as noted to the one above, and for the same reasons the assignments cannot be considered.

The next four assignments of error complain of the answers the jury gave to special issues and say the answers are against the weight of the evidence. There is no statement of- facts in the record, and we cannot know what the evidence was. These assignments are overruled.

The next assignment of error complains of the action of the court in submitting to the jury 11 special issues, which the assignment asserts to be irrelevant and immaterial, and states what the evidence shows the facts to be. The assignment is not followed by any proposition singling out any issue involved in any of the matters submitted. We cannot, in the absence of a statement of facts, know what the evidence showed the facts to be. The assignment itself is not a proposition, and cannot be considered.

The next assignment asserts error in the failure of the court to submit to the jury an issue which the assignment asserts to be “important and material.” The assignment itself is not a proposition, and there is no proposition under the assignment disclosing the point claiming error. The only statement following this assignment is that “this issue was raised by the pleadings and was material.” The assignment cannot be considered.

The next assignment complains of error in admitting evidence, but there is no bill of exceptions in the record to the action of the court in admitting the evidence, and no statement of facts to show what the evidence admitted was. The assignment cannot be considered.

The next assignment of error asserts what “the undisputed evidence in the case shows,” and that because it does so show “the plaintiff should have judgment.” We cannot consider this assignment, because there is no statement of facts, and we do not know what the evidence does show.

The next and last assignment of error presented as a proposition is as follows:

“The judgment of the court as entered by the court on the verdict of the jury does plaintiff great wrong and injustice and permits the defendant to have and to hold his property and get the use and benefit of the same without paying therefor.”

The statement following this assignment is an assertion that “under the pleadings in this case the plaintiff in error should have had judgment on the verdict of the jury for the undisputed nonpayment of the purchase money,” and that “all issues other than this were immaterial and irrelevant to defeat the plaintiff’s cause of action.” Under this assignment is presented what plaintiff in error designated as “second proposition under twenty-sixth assignment of error,” and states that:

“Plaintiff in error tendered to the court a judgment to be entered by it on the verdict of the jury in his favor which was as follows: [Then copies the judgment tendered.]”

The assignment itself is not a proposition, and what is presented as a proposition is not germane to the assignment, nor is either a proposition, specifically designating an error.

The judgment entered by the court is such as the issues presented in the pleading and the issues of fact found by the jury would warrant and sustain.

The assignment is overruled.

The case is affirmed.
      ©cxoEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other rases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    J. W. CARTER MUSIC CO. v. BAILEY.
    (No. 481.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 21, 1915.)
    1. Trial <&wkey;25 — Argument—Right to Open and Close.
    Under Rev. St. 1911, art. 1953, providing that the party having, under tne pleadings, the burden of proof on the whole case, shall be entitled to open and conclude the argument, and rule 31 for district and county courts (142 S. W. xx), providing that plaintiff shall have the right to open and conclude both in adducing evidence and in the argument, unless the burden of proof of the whole ease under the pleadings rests upon defendant, or unless defendant shall admit that plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated by the facts of the answer constituting a good defense which may be established on the trial, where in an action on a note for the purchase price of a piano defendant answered by general denial and a special plea, setting up that the piano was purchased subject to his wife’s approval, and that she did not approve thereof, but no admission as to the justice of plaintiff’s cause of action was made, it was error to grant defendant the right to open and close the argument, though the court’s charge imposed upon defendant the burden of proving his special plea, and, in effect, withdrew from the jury, and resolved in plaintiff’s favor, the merits of its cause of action as set forth in the petition, and submitted only the issue raised by the special plea, as the question is not controlled by the charge, but by the state of the pleadings, or by the prescribed admission, and the general denial imposed the burden of proof on the whole case on plaintiff.
    [Ed. Note — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. &wkey;25.] '
    2. Appeal and Error <&wkey;1046 — Harmless Error — Denial op Right to Open and Close.
    Error in permitting defendant to open and conclude the argument was material and necessitated a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. <&wkey;1046.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by the J. W. Carter Music Company against N. Bailey. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue and R. I-I. Kelley, all of Houston, for appellant. Sam Schwartz, of Houston, for appellee.
   HIGGINS, J.

Appellant sued Bailey to recover upon the latter’s note in sum of $350, and to foreclose mortgage lien upon a piano, in part payment for which it was alleged the note was given.

Bailey answered by a general denial, special plea setting up that the piano was purchased subject to the approval of his wife, and by the terms of the agreement he was not required to accept and pay for the instrument unless his wife approved the same, that his wife did not approve of it, of which fact he notified appellant, and he was therefore not liable upon the instrument sued upon.

The jury was instructed that the burden of proof rested upon Bailey to prove by a preponderance of the evidence his contention that the sale of the piano was subject to his wife’s approval. The only issue submitted for the jury’s determination was whether it was agreed and understood by the parties, when the note sued upon was executed, that the sale of the piano was subject to the approval of defendant’s wife. Upon an affirmative answer thereto, judgment was rendered in defendant’s favor.

Upon trial, and after close of the evidence (which was opened and concluded by plaintiff), defendant requested and was granted the right to open and close the argument. No admission whatever was made by defendant as to the justice of plaintiff’s cause of action as provided by district and county court rule 31 (142 S. W. xx) and the right to open and conclude the argument was granted over plaintiff’s protest. The ease is here presented upon a single assignment complaining of the action of the court in this respect. The court erred. Its action was directly contrary to and in the face of article 1953, R. S., and the court rule above mentioned. Smith v. Eastham, 56 S. W. 218; Halsell v. Neal, 23 Tex. Civ. App. 26, 56 S. W. 137; Heath v. Bank, 19. Tex. Civ. App. 63, 46 S. W. 123; Caldwell v. Auto Sales Co., 158 S. W. 1030; Blume v. Haney, 128 S. W. 440.

Under the statute the party having under the pleadings the burden of proof on the whole case is entitled to open and conclude the argument. Defendant’s general denial imposed this burden upon plaintiff. Upon the face of the pleadings he was thus entitled to open and close the argument. Notwithstanding the state of the pleadings, the right might have been acquired by defendant, had he made the admission as provided by rule 31. This he wholly failed to do. It is argued that, inasmuch as the court’s charge imposed upon defendant the burden of proving his special plea and, in effect, withdrew from the jury and resolved in plaintiff’s favor the merits of its cause of action as set forth in its petition, and submitted only the issue raised by the special plea, that therefore the defendant was properly granted the right to open and close the argument, or, in any event, the error was harmless. But the court’s charge does not control the question. It is governed by the state of the pleadings as provided by statute, or an admission of the merits of plaintiff’s cause of action as set forth in the petition as provided by rule 31.

The error indicated is material, and necessitates a reversal. Meade v. Logan, 110 S. W. 188; Hillboldt v. Waugh, 47 S. W. 829; Fain v. Nelms, 113 S. W, 1002; Harris. v. Pinckney, 55 S. W. 38.

Reversed and remanded.
      <©=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes