author: MOURSUND, J.

text:
    SAN ANTONIO WATER SUPPLY CO. v. CASTLE et al.
    (No. 5906.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 28, 1917.)
    1. Waters and Water Courses <S=>195 — Municipal Water Company — Liability por Accident.
    In an_ actio-n against a waterworks company for injuries received when plaintiff stepped into a hole in the sidewalk where a cut-off box had been placed, evidence held, insufficient to show that defendant placed in the-sidewalk the cut-off box or left it in the condition it was in at the time of the accident.
    2. Evidence <⅜=568(1) — Conclusions — Effect.
    A conclusion by a property owner that defendant waterworks company or its predecessors in interest were bound to install service or cutoff boxes in such pipes, unsupported by any contract or ordinance requiring such installation, is of no probative weight.
    3. Evidence <§=>568(1) — Conclusions — Admission.
    The admission in evidence of a conclusion of a witness as to the duties of a waterworks company, which in itself was of no probative effect, gains no value by reason of its admission.
    4. Pleading <§=>36(7) — Admissions — What Constitutes.
    A statement in an abandoned pleading in conflict with other allegations in the same pleading does not constitute an admission.
    5. Depositions <®=110 — Motion to Strike.
    An entire deposition cannot be excluded on motion to strike merely because portions of it consisted of the conclusions of the deponents.
    6. Teial <§=>256(1) — Instructions—Duty to Request.
    Where the general charge was correct as far as it went, although defendant was entitled to additional instructions, defendant is bound to request such additional instructions, and cannot raise the point by objections to the general charge.
    7. Trial <§=>251(8) — Instructions—Refusal.
    In an action against a waterworks company for injuries claimed to.have been received when plaintiff stepped into a hole made by a cut-off box, the company was entitled to have given an instruction presenting the defense that the defect was brought about by the action of another.
    8. Appeal and Error <§=>1172(1) — Affirmance in Part.
    In an action against two defendants, where plaintiff, who recovered against only one of them, did not complain of that portion of the judgment denying recovery, it will on appeal by the unsuccessful defendant be affirmed, though the judgment in favor of plaintiff was reversed and remanded.
    Appeal from District Court, Bexar County; W. IP. Ezell, Judge.
    Action by Isabella Castle and another against the San Antonio Water Supply Company and Ed. Dreiss, in which each of the defendants pleaded (a cross-action against the other for any damages which might be found for plaintiffs. From a judgment for plaintiffs against the first-named defendant, it appeals.
    Reversed and remanded.
    Taliaferro, Cunningham & Birkhead and Augustus McCloskey, all of San Antonio, for appellant. C. C. Todd and Ernest Fellbaun, both of San Antonio, for appellees.
   MOURSUND, J.

Harry Castle and wife, Isabella, sued the San Antonio Water Supply Company, hereinafter styled Water Company, and Ed. Dreiss, the first being a public service corporation engaged in supplying water to the citizens of San Antonio, and the second being the owner of the property abutting on the sidewalk on which the injury claimed is alleged to have been sustained. It is first alleged that defendants placed and maintained a water pipe from the main of the Water Company to the property of defendant Dreiss. It is then alleged that “there was maintained” in front of said property a cut-off box depressed in the sidewalk leaving a hole in which plaintiff Isabella Castle stepped while walking along the sidewalk at night on April 19, 1913, causing her to fall and sustain serious and permanent injuries. The Water Company is then charged with three separate acts of negligence, as follows: (a) Placing said box in the sidewalk in a dangerous manner; (b) maintaining said box in the sidewalk in a dangerous condition; (c) permitting the hole to remain in the sidewalk where same was constantly crowded, thereby causing extreme danger. It is then charged that Mrs. Castle’s injuries were solely and directly caused and contributed to by said acts of negligence. Plaintiff next alleged that defendant Dreiss was guilty of the same acts- of negligence charged against the Water Company. Plaintiffs also Xileaded a criminal ordinance of the city providing a fine upon property owners who might fail to keep sidewalks in front of their property in repair, and the violation of said ordinance by Dreiss. It was then charged that the injuries complained of were caused •solely by the said wrongful and negligent acts of defendant Dreiss.

Defendant Dreiss answered by a general denial, and specially denied that he was the owner of the service pipe, and that he installed or maintained the pipe and box, or that he was under any legal obligations to do so. He alleged that the pipe and hox were placed in -the sidewalk without his knowledge or consent, and that the Water Company placed same in the sidewalk for its own sole use and benefit, and that, if the box was negligently installed, it was the negligence of the Water Company, for which he was not responsible. He denied that the box was negligently installed, and charged Mrs. Castle with negligence contributing to cause her fall.

The Water Company answered by general denial and special pleas as follows: (1) that plaintiff was injured, if at all, by reason of her own negligence, and that her negligence contributed to her injuries; (2) that it did not own or control the said supply pipe, cut-off, or stop box, and did not place or lay the same nor have them laid, and that they, were not laid, maintained, or controlled for its use or benefit, and that it was in no way responsible for ór interested in the same, but that they were installed and maintained by the owner of the premises for his benefit and were in his charge and control, and that it' was his duty to maintain the same.

Defendant Water Company further alleged that it operated its plant and furnished water to private consumers by virtue of a right granted it by a contract ordinance of the city of San Antonio, Bexar county, Tex., setting out the said contract in full, under the terms of which contract it was obliged to furnish water at its main to any consumers who installed, provided, and maintained in good order service pipes from their premises to the main pipe of the Water Company, such service pipes being owned by such consumer; and when a consumer had installed such service pipes and proffered them to the Water Company it became the duty of said company to connect the service pipe to the water main and turn the water into same, such act of connecting and turning on the water being the sole and only acts of the Water Company in reference to said supply pipes. It further alleged that its contract and obligations to defendant Dreiss at the time of the alleged injury were those above stated and based upon and limited by the terms of its contract with the city of San Antonio. The water Company further pleaded that it did not own the sidewalk nor exercise any control thereof, and pleaded Revised Criminal Ordinances, § 10, p. 324, of the City of San Antonio, charging abutting property owners with the duty of maintaining the sidewalk in front of their premises.

Defendant Water Company further pleaded that defendant Dreiss, by reason of the fact that he had continuously for many years received water from defendant company under the terms of said contract, enjoying the benefits and abiding the terms of same, was estop-ped from denying, so far as said Water Company was concerned, his liability to keep and maintain said service pipes, stop boxes,' etc., in good order and repair and safe condition.

The defendants each pleaded a cross-action against the other for any damages which might be found for plaintiffs.

The trial resulted in a verdict and judgment in favor of plaintiffs against the Water Company for $2,500, in favor of Dreiss against plaintiffs, and against the Water Company’s cross-action.

The Water Company appealed, and by its first six assignments of error presents questions relating to the sufficiency of the evidence. It complains of the refusal to give a peremptory instruction, and of the submission of the case to the jury, and finally contends that the evidence does not support the verdict and judgment. Under the charge of the court, in order to find against the Water Company, the jury was required to find that the “Waterworks Company” or the “San Antonio Water Supply Company,” acting through its agents or employés, placed in the sidewalk the identical cut-off box which was in the sidewalk at the time Mrs. Castle is alleged to have sustained the injuries, and left it in the condition in which it was at the time of the alleged accident. No other issue was submitted as against the Water Company. We will briefly review the evidence relating to the issues submitted. The records in the office of the Water Company show that in 1879 Adolph Dreiss made application for water for his drug store, 119 Alamo Plaza, and that from that time on water was supplied to such building. The evidence fails to show whether the first service pipe from the water main to the building was laid by the company or the owner, and fails to show what the respective duties of the parties were at that time. In 1902 the Waterworks Company, the predecessor of appellant, made a contract with the city for ten years. This contract only bound the company to furnish water at its mains to such consumers as furnish and lay suitable and durable pipes to its mains and pay the actual cost of connection therewith. The company was operating under this contract in 1913, after its expiration, for the reason that no new contract was made until 1&14. The records of the company did not show that the company or its predecessor ever had occasion to use the curb cut-off at the premises in question. The secretary of the Water Company testified that from 1902 to 1914 the company put in no service connections or boxes; that it did not put the cut-off box in front of the Dreiss property, and did not own it. However, his personal knowledge of the business and transactions of the company did not extend further back than 1902.

Defendant Dreiss testified by deposition that in 1877 a sidewalk composed of gravel and asphalt was laid in front of the premises in question, which lasted probably two or three years;' that then a concrete sidewalk was put down, which had a waterbox even with the sidewalk; that it was change afterwards by taking out the box and replacing it with a “shut-off” and that was taken out by the Water Company. He was shown a photograph of the building and sidewalk, which disclosed a streak in the sidewalk running from the building straight across to the cut-off box and surrounding such box which plainly showed that repairs had been made to the sidewalk along the lines covered by the streak. He said he could remember nothing of a repair similar to that disclosed by the picture. He was sure he did not make it, and could not remember when was made, so could not say whether it was made during the time his father and brother had the drug store. Afterwards he stated he could not remember if he made the repair above the water pipe, but was pretty sure that he did not. He then testified that he did not put in the cut-off box, and thought the Waterworks Company did it; he thought the cut-off box had been in. the sidewalk 12 or 15 years; that it was placed in the sidewalk before 1890. On cross-examination he admitted that he did not see the repairs made upon the sidewalk around the cut-off box and over the pipe; that his statement to the effect that the Waterworks Company did it was merely his conclusion based upon the fact that he did not do it and upon his understanding that no one had the right to do the work except the Waterworks Company. Upon the wit-, ness stand he testified that he acquired a half interest in the property in 1897 and the other half in 1S9S; that from 1S99 continuously until the trial the premises had been occupied by tenants, by his brother Adolph until 1906, and his nephew, Herman Dreiss, from then until the trial; that after Herman acquired the drug business it was still conducted in the name of A. Dreiss; that the drug business paid the water rent. He also testified that the streak in the sidewalk was . there prior to 1890, but admitted that in his deposition he stated that he did not know when it was put there, and said: “If I did say that in my deposition, well, I guessed at it then probably like I did now.”

Herman Dreiss testified there had always been a cut-off box in the sidewalk since he' first came there in 1885; that he had no recollection of employing Krakauer in 1907 to repair water pipes. He recollected the occasion when pipe was laid across the sidewalk which resulted in the streak shown in the photograph, and said the patch around the cut-off box might have been made at the same time. He said the workmen dug down in front of the sidewalk and connected the pipe. and brought it up, leaving the old pipe under the sidewalk and embedding the new pipe about four inches in the cement walk. He did not remember what year it was, but thought it was while he was working for his father. He did not know whether the hole complained of was made on that occasion or whether it. existed theretofore, but that it had been there ever since that repair was made. He testified there was a value in the basement which could be used to cut off the water.

The plaintiff introduced in evidence an abandoned answer of appellant which contained the statement that, if said pipe was not. owned and installed by defendant Dreiss, it was owned and installed by the Waterworks Company. This statement was contained in a special answer and followed a general denial, and also followed a direct charge that the pipe was and is owned and controlled by the owner of the premises, and was installed by him, and the further allegation that the service pipe, plugs, cut-off, and contrivances at the place stated by plaintiff were installed by the owner or under his authority and control in accordance with the terms and conditions of the ordinance and contract dated June 13, 1902. ' '

The appellant introduced in evidence an entry from the Permit Record of the city of San Antonio, showing that on December 30, 1907, permission was given to Krakauer & Piper to “repair water pipes, Adolph Dreiss, 119 North Alamo street, in sidewalk.” The permit shows that the inspector for the city inspected the work. Permits had to be secured for work involving street or sidewalk.

J. M. Krakauer testified that he was engaged in the plumbing business under the name of Krakauer & Piper in 1907 and 1908; that he did some work at 119 North Alamo pursuant to an order from the Dreiss Drug Store over the telephone, and collected for his work at the drug Store; that there was a leak in the cellar, and there was either no place to cut off the water inside the premises or else it would not work; that there was no curb box, so the sidewalk had to be taken up in- order to get to the curb cock and cut off the water; that he obtained a permit from the city because he would have been subjected to a fine for taking up the sidewalk had he not done so; that his employe dug into the sidewalk following the pipe through and filled up the cut with cement, and he thought the photograph correctly showed the condition of the sidewalk when his em-ployé completed the work; that the cut-off box was procured and installed by his employe; that he personally supervised the work; that the Waterworks, Company had nothing, to do with ordering the work or paying for it.

We conclude that the evidence wholly fails to show that the appellant placed in the sidewalk the cut-off box which caused Mrs; Castle’s fall and left it in the condition in which it was at the time-of her fall. An analysis of the testimony shows: • (1) That only Ed. Dreiss undertook to state that the Water Company, or rather its predecessor, had installed the box, and he admitted that he did not see it installed, and that his statement was a conclusion, based on the fact that he did not have it installed, and on his understanding of the rights and duties of the Waterworks Company. There is no proof that under any contract or ordinance prior to 1914 the duty was imposed upon the Water Company, or any of its predecessors in business, to install service pipes or cut-off boxes in such pipes. His conclusion is not entitled to any probative force, and its admission in evidence does not add weight to it, if intrinsically it had none. Sharp v. Baker, 22 Tex. 315; De Garca v. Galvan, 55 Tex. 53; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Webb v. Reynolds, 160 S. W. 152. (2) The statement in the abandoned pleading to the effect that the cut-off box was installed either by the owner or the Waterworks Company, appellant’s predecessor, being in conflict with other allegations made in the same pleading, does not constitute any admission, and therefore adds nothing to plaintiffs’ case. H. E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877; Hess v. Webb, 113 S. W. 618; Galveston & W. Ry. Co. v. City of Galveston, 186 S. W. 368. (3) The testimony of Krakauer to the effect that he and his employes were responsible for the condition of the sidewalk surrounding the cut-box and over the service pipe, is not contradicted by any one and the evidence with which it is sought to be destroyed is not of such character as to justify a reliable conclusion. Herman Dreiss did not recollect employing Krakauer, and he and Ed. Dreiss thought the streak in the sidewalk had been in existence before the time mentioned by Krakauer. Herman saw the work done, but did not remember in what year it occurred. Ed. Dreiss did not see it done, and practically admitted that he was guessing with regard to the time. Such testimony would not justify a reliable conclusion that the condition of the sidewalk with respect to the cut-off box was not caused by Krakauer’s employes at the time stated by him. The corroboration of Krakauer’s testimony furnished by the Permit Record cannot be explained away by saying that Ed. Dreiss owned the property, and not Adolph Dreiss. The business, was run in the name of A. Dreiss, the street number corresponds, and there is no evidence that the permit could have related to any other property. (4) If there had been evidence showing that the conditions complained of by plaintiff existed prior to the time testified to by Krakauer, still there is no evidence" that the Water Company or its predecessors created such conditions.

The assignments of error are sustained.

By the sev'enth assignment complaint is, made to the effect that the court erred in admitting the whole of the deposition of Ed. Dreiss and overruling the Water Company’s motion to strike out such deposition. The ground relied on is that the deposition, in so far as defendant Dreiss undertook to testify that the Waterworks Company made the hole in the sidewalk, consisted of conclusions. The court would not be warranted in excluding an entire deposition merely on the ground that portions of it consisted of conclusions, and as the objection to it, and the motion to exclude, rest upon that ground, the assignment must be overruled. Railway v. Galbreath, 185 S. W. 901.

The eighth and ninth assignments are overruled for the reason that they complain of the overruling of objections to the general charge, when they should have been directed at the refusal to give special -charges. It is not contended that the general charge was not correct as far as it went, but that the Water Company had the right to have the jury instructed to- find whether the evidence established the existence of a specified group of facts which, if true, would in law establish si defense, and instructing them, if they so found, then to find for the Water Company. This right had to be exercised by requesting a special charge under the practice existing prior to the enactment of the laV requiring objections to be presented to the charge of the court before it went to the jury, and we believe that is still the proper practice.

The tenth assignment is overruled for the reasons given in overruling the eighth and ninth assignments.

If the evidence had been of such a character as to go to the jury, that is, if there had been an admission that the Waterworks Company installed the cut-off box, or testimony to that effect, special charge No. 4 should have been given, as it affirmatively presented the Water Company’s defense that in 1907 the cut-off box was taken out and put back in, and if the condition complained of by plaintiffs was then brought about by some one other than the Water Company, it would not be liable. Railway v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway v. Rogers, 91 Tex. 58, 40 S. W. 956. The eleventh assignment is, therefore, well taken, and must be sustained.

No complaint is made by plaintiffs or the Water Company of the judgment in favor of defendant Dreiss, and the judgment of the trial court, in so far as it relates to plaintiffs’ suit against Dreiss and the Water Company’s cross-action against him, will be affirmed.

The judgment in favor of plaintiffs against the Water Company is reversed, and the cause remanded for another trial of the case pleaded by plaintiffs against said company.
      <§=>1!⅛ other cases see same topic and KBY-NUSlBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    McFARLANE et al. v. GREENAMEYER et al.
    (No. 7541.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 2, 1917.
    Rehearing Denied Dec. 20, 1917.)
    Appeal and Error ®=»101(1) — Appeal from “Order” Appointing Receiver,
    The order from which appeal is authorized by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2079, declaring that appeal shall lie from an interlocutory order appointing a receiver in a cause, provided it is taken within 20 days from entry of such order, is the order adjudging that the property be taken from the. possession of defendant and appointing a receiver; and the removal of such receiver for disqualification, and appointment of a successor, does not extend the time for appeal from the first order, or authorize appeal from the order appointing the second receiver.
    [Ed. Note. — For other definitions,. see Words and Phrases, First and Second Series, Order.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by A. G. Greenameyer and another against J. H. McFarlane and others. From an order, certain defendants appeal.
    Appeal dismissed.
    E. P. & Otis K. Hamblen, of Houston, for appellants. L. A. Carlton, Woods & King, and John B. Warren, all of Houston, for ap-pellees.
   PLEASANTS, C. J.

This appeal is from an interlocutory order of the district court of the Fifty-Fifth judicial district (Harris county) appointing T. H. Bass receiver of properties the title to which is in litigation in this suit. The record shows that the suit was filed on January 9, 1917, by appellees A. G. Greenameyer and Florence Robinson against J. H. McFarlane, C. F. Gydeson, and C. T. Rucker (who are appellants herein), and B. C. Armstrong. The purpose of the suit was to enforce specific performance of a written contract for the sale of an oil and mineral lease on a tract of land described therein and machinery and equipment situated on the land; a copy of the contract declared upon and inventory of the property being attached to the petition as an exhibit.

On January 9, 1917, the day the petition was filed, the judge of the court indorsed his order thereon that defendants be cited to appear before him at 8:30 a. m., January 11th, to show cause why the prayer for appointment of receiver made in plaintiff’s petition should not be granted. On January 11th, the court, upon plaintiffs’ application, contained in their petition, appointed S. H. Clarke as receiver in the cause, with the powers defined in the order of appointment, which order recited that Armstrong and Rucker had notice of the application, but that defendants McFarlane and Gy de-son were out of the jurisdiction of the court. This order appointing Clarke receiver contains the following recitals:

* * * Amj ⅛⅛ appearing from the petition and the evidence that the plaintiffs’ interest in the property involved in this suit is certain, and at least probable, and that the said interest is being jeopardized and injured, and that it is necessary and proper that an abstract of title to said lease be obtained as per the agreement of the defendants herein, and that it be ascertained the amount of the indebtedness of the defendants which is a lien or claim of any kind against the property sold by the plaintiffs to the defendants, and that it is nec-' essary that information be gathered as to the amount of oil run from said lease since the 20th day of April, 1916, and the amount for which it has been sold by the defendants, in order that a proper tender can be made by the plaintiffs herein, and the court is of the opinion, considering the nature and the character of the property involved herein, that there is an urgent necessity for the appointment of a receiver.”

Thereafter the appellants herein filed their motion and supplemental motion praying for the discharge of receiver, but the court, upon the hearing of the same March 1, 1917,. declined to discharge the receiver. No appeal was perfected from the judgment of date January 11, 1917, nor from the judgment, dated March 1, 1917. Thereafter, on June 7, 1917, the court sustained appellants’ contest of the application of Receiver Clarke for an order to fix his allowance and compensation as such receiver. The application of Clarke as such receiver for compensation was filed May 8, 1917. The contest of appellants to such application was filed June 7, 1917, and in said contest the appellants raised the question of Clarke’s qualification as such receiver. Upon such application and the contest filed by appellants thereto the court, on June 7th, entered its judgment and decree declining to allow its receiver compensation, and held that he was disqualified because he was not a qualified voter, and thereupon discharged Clarke as such receiver, and the hearing having been continued until June 9th the court thereupon appointed T. H. Bass as receiver of the properties. Among other things in said decree the court adjudicates:

“And it appearing to the court upon said date that the necessity ■ for a receiver of the properties involved in this litigation, as was formerly adjudicated by. an order of this court dated January 11, 1917,'as the same was modified by the subsequent order of this court on the 1st day of March, 1917, still exists, and that jurisdiction and control of the properties involved in this litigation assumed under such order should be continued.”

This appeal is prosecuted from the order appointing Bass receiver. The appeal was perfected by filing appeal bond on June 15, 1917.

Appellees have moved to dismiss the appeal on the ground that it is not based upon any complaint as to the qualification of Bass to act as such receiver, but is based solely upon the right of the court to appoint a receiver of the property upon the pleading and evidence, and since this question was adjudicated in the order of January 11, 1917, appointing Clarke receiver, and again in the order of March 1, 1917, refusing to discharge Clarke and vacate the receivership, and the time in which an appeal from such adjudication had expired long prior to the time this appeal was taken, this court is without jurisdiction to hear and determine the question presented by this appeal. The decision of the question presented by the motion depends upon the proper construction of article 2079, Vernon’s Sayles’ Civil Statutes, which provides:

“An appeal .shall lie from an interlocutory order of the district court appointing a receiver or trustee in any cause: Provided, such an appeal is taken within twenty days from the entry of such order.”

We do not think this statute should be construed to authorize an appeal from a judgment or order of a court adjudicating the question of whether property in litigation should be taken into the custody of the court and administered by a receiver appointed by the court pending adjudication of the rights of the parties to the suit in the property, unless such appeal is taken within twenty days from the entry of such order. The appointment of a receiver necessarily follows the adjudication that the property of the defendant be taken into the custody of the court and is the means by which the actual custody is taken, though the property was In the potential custody of the court when it received and began consideration of the petition for a receivership. Railway Co. v. Lewis. 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Riesner v. Railway Co., 89 Tex. 656, 36 S. W. 53, 33 L. R. A. 171, 59 Am. St. Rep. 84; Worden v. Pruter, 40 ’ Tex. Civ. App. 118, 88 S. W. 434. The first order adjudging that the property be taken from the possession of the defendant and appointing Clarke receiver is the order from which the appeal is taken.

Appellants did not appeal from the original order of the court taking their property into its custody by its receiver, Clarke. Their right to appeal from that order, if the appeal had been taken within 20 days after the entry of the order, is unquestioned: and if the trial court was correct in holding that Clarke was disqualified, a question which it is unnecessary for us to decide, that fact did not extend the time in which they could appeal from the receivership adjudication to 20 days after the entry of the order removing Clarke and appointing his successor. The purpose of the statute is to grant speedy relief to a person whose property is wrongfully taken from his possession by the summary process of a receivership, but this relief is conditioned upon the prompt exercise by the defendant of his right of appeal in order that the right of plaintiff to a receivership may not be suspended longer than is necessary to have an adjudication of such right by the appellate court. It seems to us that the purpose of the statute would be defeated by the strictly literal construction contended for by appellants. . We cannot bring ourselves to believe that it is the intention of the Legislature, in the enactment of this law, to give a right of appeal every time a receiver is appointed in the course of an administration of property by a court through a receivership. If, whenever a receiver dies, resigns, or is removed, or another is appointed to take his place, the parties can appeal from such appointment, the administration of the property by the court would be seriously embarrassed. Parties to suits -in which a receivership has been granted have ample protection against any injury which may be caused by the appointment of a receiver who is disqualified to act as such, and the necessity for immediate appeal from such appointment is not apparent.

We think the motion to dismiss the appeal should be granted, and it has been so ordered.
      <§==3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    BALLARD v. ELLERD et al.
    (No. 5911.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1917.
    Rehearing Denied Dec. 12, 1917.)
    1. Dismissal and Nonsuit <§=^54 — When Proeer.
    Where petition was brought as one in trespass to try title, but was insufficient therefor clearly showing that plaintiff had neither legal nor equitable title, yet if it alleged sufficient a¿ against general demurrer to sustain a suit for specific performance of a contract to convey land, the cause should not be dismissed, but should be retained as the suit for specific performance.
    2. Specific Performance <§==>104 — Venue op Action.
    Where a petition set up trespass to try title, but was insufficient therefor, and was sufficient as against general demurrer to sustain suit for specific performance of a contract to convey land, the question of venue of the suit must be determined as though its sole object was specific performance.
    3. Yenue <§=>22(1) — Specific Performance.
    In suit for specific performance of contract to convey land, the proper venue of the suit was the county of the residence of the defendants when they set up the plea of privilege to be sued therein.
    4. Judgment <§=^298 — Amendment—Powers of Court.
    The court has full authority during the term to set aside a judgment if erroneous and render proper judgment, and it may do so on its own motion.
    5. Pleading <®=72 — Disclaimer—Right to Judgment.
    Where certain defendants disclaimed before the petition was assailed, if the plaintiff desired judgment as to the disclaiming parties he must demand judgment.
    Appeal from District Court, Wilson County ; E. 6. Chambliss, Judge.
    Action by B. E. Ballard against R. M. El-lerd and others. From- a judgment of dismissal, plaintiff appeals.
    Affirmed in part, and in part reversed and remanded, with instructions.
    B. F. Ballard and King & West, all of Floresville, for appellant. O. A. McCracken, of Floresville, for appellees.
   FLY, C. J.

This is a suit instituted by appellant against R. M. Ellerd, W. B. Lewis, A. W. Strange, and the South Texas Oil Company, a private corporation, seeking to recover five acres of land. A general demurrer was sustained to the petition, and the cause dismissed.

The parts of the petition necessary to a consideration of its sufficiency as against a general demurrer are as follows:

“That plaintiff is the owner in fee simple of the following described land and premises situated in the state of Texas, county of Wilson, and described as follows, to wit: Five acres of land out of the S. & J. Arocha grant eight league, lying S. and adjoining the city of Flores-ville and a part of that certain 25 acres of 'land conveyed by A. G. Pickett to the defendants El-lerd and Lewis on February 17, 1906, and of record in volume 54, page 608, of the Deed Records of Wilson county, said premises being more particularly described as follows, to wit: Commencing at the S. W. corner of a lot of 2 acres conveyed to plaintiff by John McDaniel, guardian of Delphipa Delgado, said corner being on the line of a tract of land which formerly belonged to T. A. Watson, now owned by J. C. Houston. Thence S. 48¾ deg. W. along fence and line of the Houston tract 375.5 varas to the S. W. corner of this tract. Thence S. 41¾ deg. E. 75.10 vrs. to the S. E. corner of this land. Thence N. 48¾ deg. E. 375.5 vrs. to the N. E. corner of this land and corner of plaintiff’s aforesaid two-acre tract. Thence N. 41¾ W. 75.10 vrs. to the place of beginning, and being the same land described in a contract, dated February 17, 1906, between the defendants Ellerd and Lewis upon the one part and the plaintiff, B. F. Ballard, upon the other part, which said contract is of record in volume 54, page 607, of the Deed Records of Wilson county, Texas, and the aforesaid land is described in said contract as follows, to wit: ‘Said land shall lie next to two acres of land owned bv B. F. Ballard and be valley land. Said 5i acres is to be adjoining J. G. Houston’s tract and is to be 1 acre wide and 5 acres long, and is to lie along said Houston’s land east and west.’ Said contract further provides that said 5 acres is to be taken out of the 25 conveyed to them by A. G. Pickett as aforesaid, and is bounded by the field notes hereinbefore given and set' out. That on or about the 17th day of August, 1906, plaintiff was legally entitled to the possession of the aforesaid land and premises claiming the same in fee simple, and that on the 17th day of August, 1907, defendants unlawfully entered upon said land and premises and dispossessed the plaintiff, and unlawfully withholds from him the possession thereof, to his damage in the sum of $500. That the reasonable annual rental on said land and premises is $150.
“Plaintiff further represents to the court: That he is entitled to the fee-simple title to the land and premises above described, and is entitled to possession of the same, by virtue of the facts hereinafter set out. That at the time said A. G. Pickett deeded to Ellerd and Lewis the 25 acres hereinbefore referred to plaintiff oaid to said Pickett the purchase price, of 5 acres of land by deeding to said Pickett 10' acres of land of the value of $200, and said Ellerd and Lewis signed the agreement hereinafter set forth, and herein sued on in consideration of said payment, and for the reaSón that plaintiff had paid a full price for 5 acres out of said 25 acres; that plaintiff paid for said 5 acres of land as aforesaid at the request of defendants in consideration of defendant’s promise to deed said 5 acres to plaintiff as provided in the contract hereinafter set forth. That on, to wit, the 17th day of February, 1906, defendant® El-lerd and Lewis executed,, signed and delivered a contract ⅛ writing which was agreed to and signed by plaintiff, who was a party thereto, whereby said defendants Ellerd and Lewis bound and obligated themselves to plaintiff in the matters and things hereinafter set out, which said contract was on the 23d day of August, 1906, filed for record in the county clerk’s office of Wilson county, Tex., and duly recorded as aforesaid. That said defendants Ellerd ana Lewis obligated themselves, their heirs and assigns, to execute and deliver to plaintiff a warranty deed to the land and premises hereinbe-fore described on the happening of the following condition®, that is to say: (a) If a well for oil was not commenced to be bored in six months from the date of said contract herein-before mentioned on the land conveyed by A. G. Pickett to said defendants Ellerd and Lewis, and which they had agreed with said Pickett to bore, which said deed of conveyance is dated February 17, 1906, and recorded as hereinbe-fore set out. (b) After said well or wells had been completed, said well did not produce oil in paying quantities, (c) Or when said property (meaning said 25 acres conveyed by Pickett) had been abandoned-by said Ellerd and Lewis as an oil field, (d) Or when boring for oil ceased or when the machinery for boring was removed from said well or wells, or when the property or wells had been abandoned by said Ellerd and Lewis as an oil field, and plaintiff alleges that said contract a® aforesaid was breached by the said defendants by the violation of any one of its conditions as well as by the violations of all of them, and upon the happening of either one or all as set out in said contract plaintiff was entitled to his deed as aforesaid. ,
“Plaintiff further alleges: That on the 18th day of May, 1906, defendants Ellerd and Lewis conveyed to the defendant South Texas Oil Company all the land and premises hereinbe-fore mentioned without the knowledge or consent of plaintiff, and that said defendant corporation is now in possession of the land herein named and sued for. That said conveyance was not upon a valuable consideration, but for the purpose of development only, the real or equitable ownership of said land remaining in said Ellerd and Lewis, and that since said time said Ellerd has acquired the legal title to said land. That heretofore, to wit, on the 9th day of December, 1911, the defendant W. B. Lewis filed in this court his disclaimer of his interest in the matters and things involved in this suit after interlocutory default judgment had been rendered against him herein, thereby abrogating and repudiating his contract as hereinbefore set out.
“Plaintiff alleges that defendants did not commence, as bound by the terms of their contract, to bore a well upon the land hereinbefore described within six months from the date of the execution of said contract. Plaintiff alleges that the 'well so bored by defendants did not produce oil in paying quantities. Plaintiff further allege® that said property has been abandoned by defendants as an oil field, and defendants have long since ceased boring for oil, having removed part of the machinery therefrom, wherefore and whereby plaintiff is now and has long since been entitled to this deed, and that all the ’conditions which entitled plaintiff thereto have happened, and that said contract has been violated in every particular herein set out.
“All the defendants haying answered herein, upon final trial plaintiff prays that he have and recover judgment of and from defendants' for the aforesaid 5 acres of land, and for a writ of possession therefor, and also judgment for his said damages, costs of suit, and for general and special relief in the premises.”

While the petition fails to set up a case of trespass to try title, clearly showing that appellant had neither a legal or equitable title to the land in question, still it does allege sufficient, as against a general demurrer, to sustain a suit for specific performance of a contract to convey land. And the question of venue of the suit must be determined as though the sole object of the suit was for specific performance. Cavan v. Hill, 83 Tex. 73, 18 S. W. 323. The allegations of the petition, under attack from a general demurrer, could not sustain an action of trespass to try title, but having alleged sufficient to sustain an action for specific performance, the cause should not have been dismissed, but retained in court as to the last-named cause of action.

Ellerd and Lewis filed pleas of privilege to be sued in the county of their residence, and their pleas are good, no attack having been made upon them, but the facts alleged therein admitted to be true by appellant. The pleas should have been sustained and the cause transferred, as required by statute, to Hale county for trial. Strange and the South Texas Oil Company filed disclaimers, and were properly dismissed from the suit.

The court had full authority during the term to set aside the first judgment entered, and render the proper judgment of the court. The amendment or reformation of the judgment may be made by the court upon its own motion. Hooker v. Williamson, 60 Tex. 524; McPherson v. Johnson, 69 Tex. 484, 6 S. W. 798; Henderson v. Banks, 70 Tex. 398, 7 S. W. 815; Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Owens v. Vander Stucken, 133 S. W. 491; Moore v. Toyah Irr. Co., 179 S. W. 550.

We need not discuss the propriety of the special exceptions being sustained, because the fact that the sustaining of the general demurrer prevented an amendment in answer to the special exceptions. It may be that the special exceptions should be sustained, hut appellant may be able by amendment to overcome their attacks.

The judgment of the court shows that A. W. Strange and the South Texas Oil Company filed their disclaimers, and were dismissed from the suit before the general demurrer, and special exceptions were sustained. The disclaimer was made as to the full claim made in the petition before it was assailed. If appellant desired a judgment as to the parties disclaiming, he should have demanded it. Even in this court it is not claimed that such judgment should have been rendered.

The judgment is affirmed • as to Strange and South Texas Oil Company, but is reversed and the cause remanded as between appellant and appellees, and the trial court instructed to change the venue of the cause, as required by statute, to Hale county, to be tried on the demand for specific performance.
      <§c»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    CHERBONNIER v. CITIZENS’ NAT. BANK OF LUBBOCK.
    (No. 1266.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1917.)
    1. Pleading- <®=>214(1) — Demurrer — Admissions.
    A demurrer admits the truth of statements in the pleading against which it is directed.
    2. Bills and Notes <⅜=382 — Theft — Defense against Bona Eide Purchaser.
    A negotiable instrument stolen from the maker before it has become effective as an actual obligatibn by actual or constructive delivery cannot be enforced by any subsequent innocent holder.
    3. Banks and Banking <§=>146 — Payment of Stolen Paper — Recovery—Acquiescence.
    Plaintiff drew checks for a milling company of which he was manager, and in the regular course of business drew a check payable to B. or order. The check was never delivered to B. but was taken from plaintiff’s office without his fault and presented to defendant bank by an unknown person, which bank paid the check on a forged indorsement. Defendant bank then under an indorsement, ‘‘Pay to the order of any bank or banker all prior indorsements guaranteed,” transmitted the check to the bank on which it was drawn, which bank paid the same and charged it to the account of the milling company. Thereupon the milling company charged the amount of the cheek to plaintiff’s account, and. he acquiesced in the charge. J-Ield that, . as, if plaintiff had not acquiesced in the charge, the milling company would not have been liable, and the bank on which the chock was drawn could have had recourse against defendant, plaintiff cannot recover from defendant having voluntarily acquiesced in the charge, for such acquiescence must be deemed a ratification and a voluntary payment.
    Appeal from Lubbock County Court; J. H. Moore, Judge.
    Action by C. C. Cherbonnier against the Citizens’ National Bank of Lubbock. From, a judgment for defendant, plaintiff appeals.
    Affirmed.
    J. W. Burton, of Crosbyton, and Percy Spencer, of Lubbock, for appellant. Bean & Klett, of Lubbock, for appellee.
   HALL, J.

The appellant sued appellee bank to recover the sum of $229.90, evidenced by a check signed by appellant as agent for the Star Mill & Elevator Company and drawn on the First National Bank of Amarillo. The case is presented here upon one proposition, that the court erred in sustaining the general demurrer urged by appellant bank to the original petition. Omitting the formal parts, the petition is as follows:

“(3) That on or about October 30, 1914, the plaintiff was the agent at Crosbyton, Tex., for the Star Mill & Elevator Company of Amarillo' Tex., in the purchasing and selling of grain; that at said tim'e it was a part of his duty to purchase grain from farmers and execute in payment thereof checks of said Star Mill & Elevator Company, drawn on the First National Bank of Amarillo, Tex., and signed by plaintiff as manager.
“(4) That on or about said mentioned day and in the regular course of business, the plaintiff drew a check dated Crosbyton, Tex., October 30, 1914, payable to G. W. Baker, or order, for $229.90, a copy of which is hereto attached and marked ‘Exhibit A.'
“(5) Plaintiff says that said check was never delivered to said G. W. Baker but that same was taken from the office of plaintiff at Crosby-ton, Tex., without the fault of plaintiff and on November 2, 1914, was presented to the defendant bank at Lubbock, Tex., by a person unknown to plaintiff but plaintiff is informed and believes the fact to be that it was one Walter Reed, who had formerly been in the employ of plaintiff at Crosbyton, Tex.
“(6) That when said check was presented to the defendant bank at Lubbock, by said Walter Reed, or whoever it was that presented same, the said Walter Reed, or other party signing the name of Geo. W. Baker on the back thereof, and defendant bank paid to said party the sum of $229.90, and thereupon stamped upon the back of said check the following indorsement : ‘Pay to the order of any bank or banker. Nov. 2, 1914. (All prior indorsements guaranteed.) The Citizens’ National Bank, Lubbock, Texas.’
“(T) That said check was not presented by G. W. Baker, the payee, nor by any body of that name but that the name of Geo. W. Baker was written on the back without the consent of said Baker or any one acting for him and the plaintiff avers that the same is a forgery.
“(8) Plaintiff says that the defendant, by reason of paying the amount of money specified in said check as above set out, and making the indorsements on the back thereof, as above mentioned, all of which’ more than fully appear on said check, which will be produced at the trial hereof, became liable for the amount of money specified in said check and it was the duty of said bank to ascertain who it was paying the money to and that same was paid at its peril.
“(9) Plaintiff further says that said bank, disregarding its duty, carelessly paid said money to the said Walter Reed, or whoever it was that presented said check without inquiring or ascertaining whether he was the G. W. Baker mentioned in said check.
“(10) Plaintiff further says that the-defendant, in duo course of business, deposited said cheek with its correspondent and that same was finally paid by the First National Bank of Amarillo, Tex., who remitted the amount thereof to the defendant.
“(11) Plaintiff further says that he is now the owner and holder of said check, having paid to the Star Mill & Elevator Company the $229.90 mentioned herein, which had been charged to his account.
“(12) Walter Reed is not made a party hereto because he is insolvent and his -whereabouts are unknown to plaintiff.”

Attached to the petition, as an exhibit, is the check described above, showing the following notation on the face thereof: “First National Bank of Amarillo. Paid, Nov. '5, 1914. Amarillo, Texas” — and the following indorsements: “Geo. W. Baker.” “Pay to the order of'any bank or banker. Nov. 2, 1914. (All prior indorsements guaranteed.) The Citizens* National Bank, Lubbock, Texas.”

It is alleged that the check in question was taken from appellant’s office without his fault. The general demurrer admits the truth of this statement. Daniel on Negotiable Instruments (6th Ed.) vol. 1, § 63, citing Salley v. Terrill, 95 Me. 553, 50 Atl. 896, 55 L. R. A. 730, 85 Am. St. Rep. 433, declares that a negotiable instrument,- stolen from the maker before it has become effective as an obligation by actual or constructive delivery, cannot be enforced by any subsequent innocent holder. The pleading further shows that the check was cashed by the appellee bank and that such hank collected the amount thereof from the drawee bank guaranteeing the genuineness of the indorsement of the payee. Because the check had never been delivered by appellant, it was an absolute nullity as an obligation, and it is further settled that the Lubbock bank having paid it upon a forged indorsement could not have collected the amount thereof from either the drawee or the drawer. The rule is well established that one paying an illegal demand, with knowledge of the facts rendering the same illegal without any immediate necessity therefor, makes a voluntary payment which he cannot recover. Gaar, etc., Co. v. Shannon, 52 Tex. Civ. App. 634, 115 S. W. 361; Galveston City Go. v. Galveston, 56 Tex. 486, The pleading shows that the check was paid by the drawee bank, charged to the account of the mill and elevator company and by that company charged to appellant’s account, and that he acquiesced in such charge and took up the check, alleging that he is now the owner and holder of it. He alleges no facts showing duress, nor any apparent necessity for making the payment. He could have successfully resisted the effort of the mill and elevator company to collect the amount of the check from him by showing that it had never been delivered and was taken from his possession without his fault and without his knowledge or consent. If he had adopted this course the mill and elevator company could have collected the amount from the drawee bank and that bank in turn could have had recourse upon appellee on its indorsement, guaranteeing the genuineness of the indorsement of the payee. Having voluntarily paid the demand which could not have been collected from him he cannot now be permitted to recover against even the elevator company, and certainly not upon the guaranty made by appellant bank. By paying the amount of the check he had ratified the act of Walter Reed in issuing it and should not be permitted to assert that it was taken from his possession without his consent and is therefore illegal. The drawee bank having charged the.amount of the account to the elevator company, the act of appellee in reimbursing the elevator company precludes the drawee bank from recovering from appellee, and he is now estopped from asserting any claim whatever against either the drawee or the mill and elevator company.

We sustain the court’s ruling, and the judgment is affirmed.
      igu=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    BOLT v. BOLT.
    (No. 744.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 1, 1917.
    Rehearing Denied Dec. 13, 1917.)
    Divorce <®=>130 — 1“Cruel Treatment” — Sufficiency of Evidence.
    Evidence Jield insufficient to support a decree of divorce under R. S. 1911, art. 4631, subd. 1, requiring that “cruel treatment” be such as to render living together insupportable; there being no evidence that defendant’s conduct was such as to impair plaintiff’s health. ,
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Suit by Mrs. S. A. Bolt against T. A. Bolt. Prom the decree, defendant appeals.
    Reversed and rendered.
    Jas. A. Stephens, of Benjamin, for appellant. Brookreson & Howell, of Benjamin, for appellee.
   HARPER, C. J.

This suit was instituted by appellee, Mrs. ®. A. Bolt, against her husband, T. A. Bolt, appellant, for a divorce upon the ground of cruel treatment, and for a division of the community property, alleging that all the property held by them was community property, and asked for partition. Appellant answered by general demurrer, special exceptions, general denial, and specifically denied any cruel treatment. The cause was submitted to a jury upon special issues, and upon their answers a decree was entered for appellee, granting the divorce and for a division of the community property allowing appellant $1,600 as separate property, and decreed a partition of that found to be community property, and appointed appraisers, from which this appeal is prosecuted.

Three assignments of error are submitted for our consideration, urging: Eirst, that the evidence is insufficient to sustain the decree of divorce; and, second, that the uncon-troverted evidence is that the property was the separate estate of appellant.

The evidence discloses that the parties to this suit were married in 1876; several children were born to them — at the time of filing of this suit were all grown. Appellee testified to the following circumstances as having been the cause of the final separation:

“My husband and myself have had some trouble, but I do not remember how far back it was that I first began to complain about it, but it was about 1915. Mr. Bolt’s brother came to our house and stayed a few weeks, and then went off. He came back three or four times — the last time in the fall of 1915, just before I left him December 7, 1915. He wanted to keep his brother, as I had told him before I was not able to wait upon him, and didn’t want to keep him. My husband replied, ‘He is my brother; what must I do? I can’t run him off.’ I says, ‘The way he treated me 25 years ago he is not going to live with us.’ Then the day I left home we had all oaten dinner; they went out to the barn. We had a negro washing the dishes; I was standing by the stove putting up lard. * * * Mr. Bolt came in from the lot with a hammer in his hand; says, ‘Alice, there is something I want to tell you.’ I says, ‘What is it, pretty straight.’ He says, ‘You have been saying around that Marion is not going to live with us.’ He says, ‘I’m going to keep him.’ I says, ‘If you do you won’t keep me; he wasn’t fit to stay around us.’ He says, ‘I don’t give a damn if you leave. I hope you will leave,_ and stay left.’ I says, ‘If you want to keep him, put him in a house to himself or me one.’ He said he wouldn’t do anything such thing, and started to hit me over the head with a hammer. I stepped back of the stove, and he went to his room where his trunk was. I never seen the six-shooter, but I’m satisfied that he got it; he said if I didn’t shut my mouth he would shoot my brains out. He wouldn’t furnish me nothing to live on. I wasn’t able to work. After that him and his brother came to town in a buggy, and I had to walk about 3½ miles. My health was not good during the fall of 1914; I had worked so hard. I was weak, and had nervous spells. At times Mr. Bolt would get angry before that time; I would say a few words, but he would start it. He has mistreated me badly. It was so hard to think that he would rather keep his brother than me — as faithful as I had been-to him — I couldn’t bear it.”

On cross-examination:

“He started off with his brother before I left home, but he knew I was going because he passed the room and I was packing. He says, ‘You are fixing up his clothes.’ I said, ‘No, I am fixing up my clothes. I am going to leave, and stay left,’ and would have left regardless of whether his brother stayed or not, after he mistreated me and drawed the hammer on me the way he did,” and further stated that her'husband had always provided well for his family.

Defendant denied having attempted to strike.her, and no one corroborates her testimony, though, according to her testimony, several persons were there or close by; however, this would make no difference, for the jury found that her testimony is true. So the question to be determined by us is: Is this evidence sufficient, taken as true, to be the basis for a decree of divorce? To be so held, it must be sufficient to bring the plaintiff’s cause of action within the provisions of subdivision 1 of article 4631, R. S., which reads:

“Where either the husband or wife is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.”

According to all the testimony, there was no physical violence, in fact, nothing but a quarrel over whether the husband’s brother should remain upon the place, and this had been righted by the husband taking his brother away immediately and before the ap-pellee left the home. As is said in Eastman v. Eastman, 75 Tex. 475, 12 S. W. 1107:

“It has generally been held that when there is no physical violence, the cruel conduct, in order to warrant a divorce, must be such as to produce a degree of mental distress which threatens at least to impair the health of the injured party.”

But, of course, each case must stand or fall upon its own facts. There is no evidence that any thing done by the husband threatens to injure or impair her health, and she does not say that such is the case. We therefore hold that there is not that “full and satisfactory evidence” in the record as is required in rendering a decree of divorce. It appearing that the facts were fully developed, the cause will be reversed and here rendered for appellant.
      <5=iFor othsr eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    ULRICH v. GALVESTON-SEEBURG ELECTRIC PIANO CO.
    (No. 7460.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 12, 1917.)
    1. Appeal and Eeeoe <§=»758(3) — Assignments op Eeeoe — Sufficiency.
    Assignments of error contained in a brief should, under Rule 29 for Courts of Civil Appeals (142 S. W. xii), be separately numbered.
    2. Appeal and Eeeoe <®=3l039(4) — Review— PIaemless Eeeoe.
    In ah action for rescission of a contract of sale, a ruling that fraud on the part of the seller was not alleged is harmless, where the evidence disclosed that there was no fraud. ’
    3. Sales ¾=>120 — Rescission—Right.
    While there is an implied warranty of the fitness of an article sold for the purpose for which it was intended, yet, even where there is a warranty of fitness or quality and the article proves inferior, the purchaser cannot rescind and return the article, but is restricted to _ an action for damages unless the seller was guilty of fraud.
    4. Sales <§=3129 — Actions—Repudiation.
    The buyer cannot repudiate a contract of sale by asking rescission, and at the same time affirm it by seeking damages for breach of an alleged warranty, but must either rescind as a whole or accept the contract and rely on the breach of warranty as a basis for damages.
    5. Sales <⅜=>439 — Bbeach op Warranty — Damages — Allowance.
    Where there was no proof tending to show the difference between the value of an electric piano player delivered and that called for by the alleged contract or that the instrument delivered was without value, damages cannot be awarded the buyer on account of breach of warranty; there being no evidence showing any item of damage suffered by him.
    Error from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Matt Ulrich against the Galveston-Seeburg Electric Piano Company, which counterclaimed. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.
    Stewarts, of Galveston, for plaintiff in error. McDonald & Wayman and C. G. Dibrell, all of Galveston, for defendant in error.
   GRAVES, J.

This writ of error is prosecuted from an adverse judgment of the court below in a suit brought by plaintiff in error to rescind a contract for the purchase of an electric player piano, and for recovery of the partial payments made and the cancellation of his notes given for the balance of the agreed price. While his petition contained a general allegation of and prayer for $2,000 as damages, that claim was neither followed up nor substantiated by any proof, and the case was essentially -and concededly one for rescission of the contract of sale.

Of the total purchase price of $2,000, $200 had been paid in cash, and the remainder evidenced by 23 monthly notes of $85 each, of which 4 had been paid as they matured and 2 more had become past due before filing of the suit.

As ground for rescission and cancellation, plaintiff in error in substance alleged that he purchased the piano of defendant in error under a warranty by the latter that it would furnish satisfactory music for the period of one year and that he would keep it in first-class condition during that time; that, knowing nothing of electric pianos, and relying wholly upon the representations of defendant in error and his agents, plaintiff in error had purchased the piano; that it failed to give satisfaction from the outset, but defendant in error assured him that the trouble could and would be adjusted,' and the piano remained in service, and various attempts were made to adjust it to play properly, but unsuccessfully; that finally plaintiff in error procured an expert to adjust it and learned from him for the first time that the piano not only did not conform to the warranty upon which it was sold, but that it could not be adjusted to do so because of inherent defects therein; that thereupon, promptly, and without delay, the plaintiff in error demanded cancellation and rescission of the contract of sale and tendered back the piano.

In reply, defendant in error, after pleading the general issue, denied that it ever made any warranties in respect to the piano, but alleged that it agreed to furnish one of its workmen whenever called upon by plaintiff in error to make adjustments and repairs, and that it did, at all times, furnish such workman when demanded, who made all needed adjustments, and, having done that, it discharged its full duty in the premises. It further alleged that plaintiff in error, accepted the piano on or about November 23, 1915, and continuously and daily used it, and was still using it, and that it had no notice from him, until just prior to the institution of the suit, that the piano was not giving entire satisfaction; that it was a well-known make of instrument, ordered by him from a cata-logue from the factory, through defendant in error; and that it was ready, willing, and able whenever demanded to make any adjustments and repairs to the instrument that might be needed. It then set up its cross-bill on the unpaid notes and its mortgage lien on the piano to secure them.

The court, sitting without a jury, rendered judgment refusing rescission and cancellation, and giving defendant in error judgment for the amount of the unpaid notes with foreclosure of its lien on the instrument. Its findings were that there was no warranty and no fraudulent misrepresentations, but the piano company recognized an obligation to beep the instrument in repair for twelve months without charge; and that, although for a time shortly after its purchase repairs and readjustments were necessary and were made by the defendant company, as is usual in case of such delicate and intricate instruments, it was fitted for the purposes intended, and had in fact been used substantially as charged by the piano company in its answer.

The plaintiff in error’s brief contains six assignments, the last two being given the same number in violation of Rule 29 for the Courts of Civil Appeals (142 S. W. xii), and each of them • constituting an attack upon some different feature of the trial court’s fact findings. In response to them we have carefully examined the record, but are unable to say that they point out any reversible error.

The purchase-money notes above mentioned constituted the only written contract between the parties, and no agreement for the return of or to warrant the piano appeared therein; the only reference to the matter being the following provisions:

“Our warranties do not provide for tuning or varnish on eases, neither do warranties of manufacturers. All instruments leave the factory in good tune and there our responsibilities cease, only as shown in the warranty.”

The claim of plaintiff in error, therefore, that there was a specific warranty as pleaded by him, rested upon a verbal agreement; but, as already recited, the court found against that contention, and that there was no such warranty. Without detailing the evidence, we think it amply sufficient to support that finding, and are not at liberty to set it aside.

The court’s conclusion of law was as follows :

“There was an implied warranty in the sale of the photo piano player of fitness for the purpose for which it was intended, but the court has found as a matter of fact that the instrument was fitted for the purposes intended ; hence no action arises for breach of warranty. Moreover, this was an action for rescission and cancellation merely, and where, as in this case, there is no special provision for the return of the article sold, the law, in this state at least, is that in absence of fraud no such right accrues. There is no allegation of fraud in the etition, and no pretense of any in the evidence, ought to have sustained the general demurrer to the petition. Wright v. Davenport, 44 Tex. 164; Russell v. Walker, 1 White & W. Civ. Cas. Ct. App. § 889; Easterly v. Jones, Id. § 189; Jesse French Piano Co. v. Thomas, 36 Tex. Civ. App. 78, 8O S. W. 1063. Even where warranty of an article goes to its degree of fitness or quality, and it proves inferior, the article cannot be returned to the vendor; the vendee’s remedy is by an action for damages. Williams' Transp. Line v. Cole Transp. Co., 129 Mich. 216, 88 N. W. 475, 56 L. R. A. 939.”

This finding of the court, both of fact and law, that there was no fraud, is vigorously assailed, and we think successfully so to the extent of showing that it was sufficiently charged in the petition but that error becomes wholly immaterial, since we find the practically undisputed evidence supports the further finding that it was not proven.

There being, then, neither warranty that the instrument would furnish satisfactory music for one year, nor any fraudulent misrepresentations inducing defendant in error to purchase it, and the suit upon its allegations and developed facts being limited to the asserted right to rescission and cancellation, we agree with the court’s legal conclusion, under the authorities therein cited, that plaintiff in error did not show himself entitled to that relief. If he had by appropriate averments in the alternative further set up special damages resulting to him from the failure of the piano to do the work it was sold to do, coupled with a prayer for their recovery, in event rescission was for any reason denied him, and had substantiated the same by proof, a very different case would have been presented. Not having done that, he cannot repudiate the contract of sale by asking rescission, and at the same time affirm it by seeking damages for the breach of an alleged'warranty therein, but must either rescind as a whole, or treat the contract as binding and rely upon the warranty as a basis for damages. Kesler v. Robson, 16 Tex. 119; Brantley v. Thomas, 22 Tex. 271, 73 Am. Dec. 264; Blythe v. Speake, 23 Tex. 429; Scalf v. Tompkins, 61 Tex. 476.

But even if it could be said that there was evidence tending to show a warranty and the breach of it, then there was no evidence Upon which the trial court could have predicated a judgment allowing plaintiff in error damages, or by which they could have been measured, because there was no proof tending to show the difference between the value of the instrument delivered and that called for by the alleged contract, or that it was without any value, or tending to show any item of damage suffered by him.

From the conclusions stated, it necessarily follows that all assignments must be overruled and the trial court’s judgment affirmed, and it has been so ordered.

Affirmed.
      <®s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCHLUTER v. McLEOD.
    (No. 1256.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Damages <§=»89(1) — Exemplary Damages— Right to Recoveb.
    In an action for breach of a restrictive covenant requiring a seller of the insurance business not to re-engage in such business, exemplary damages cannot be recovered.
    2. Appeal and Eeeob <§=w781(l) — Jurisdiction — Moot Case.
    Plaintiff sought an injunction restraining defendant from violating a contract not to reengage in insurance business in the county after sale of his interest to plaintiff, as well as $500 actual damages. Recovery was denied, and plaintiff appealed, having failed to except to an order sustaining a special exception to his claim for exemplary damages. Pending the appeal, plaintiff sold his business. Held, that as-the jurisdiction of the appellate court is fixed by the status of the case at the time of the filing of the appeal bond, and as plaintiff at that time claimed an injunction as well as actual damages and his right to damages was not lost by reason of his conveyance of the business, the appeal cannot be dismissed on the theory that, having conveyed the business, the amount involved was less than the jurisdictional amount for the district court from whence the appeal was had, for the question of damages remained for decision.
    3. Good Will <s=?6(4) — Covenants — Construction.
    Plaintiff and defendant, who had been engaged as partners in writing insurance, re-engaged as partners in the business of writing hail insurance after defendant had sold to plaintiff his interest in the business, and entered into a covenant not to directly or indirectly enter into or engage in the business of writing fire, tornado, plate glass, burglary, or hail insurance in the county so long as plaintiff should remain in business therein. Held that, as the agreement by defendant not to re-engage in the insurance business gave plaintiff something more than the good will of the business, the fact that the parties reentered into partnership did not after dissolution of the second partnership authorize defendant to enter into competition with plaintiff contrary to the terms of his agreement.
    4. Evidence @^461(4) — Parol Evidence Rule — Admissibility.
    Where defendant entered into a written agreement, on the sale of his interest in an insurance business, not to engage in the business of writing fire, tornado, plate glass, burglary, or hail insurance in the county as long as plaintiff should remain in business, testimony of defendant that he did not sell the good will of the business is inadmissible, being in contradiction of the terms of the contract.
    Appeal from District Court, Childress County; J. A. Nabers, Judge.
    Action by H. A. Schluter against W. A. McLeod. Prom a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Jno. W. Davidson, of Childress, and Veale & Lumpkin, of Amarillo, for appellant. Pires & Diggs, of Childress, for appellee.
   HALL, J.

Appellant filed this suit to restrain appellee from engaging in the business of writing and soliciting hail insurance in Childress county, and to recover actual and exemplary damages. Pie alleges, in substance, that with appellee, on January 1, 1916, under the firm name of McLeod & Schlu-ter, they were engaged in writing insurance in Childress county, Tex.; that such business consisted of writing policies for various forms of insurance, and was on said date of the value of $3,000; that the value of the good will of appellee in and to the business was $1,000; that on said date appellant purchased appellee’s interest in the partnership business, paying him therefor the sum of $1,500, at which time appellee entered into a written contract with appellant, by the terms of which appellee obligated and bound himself that'he would not directly or indirectly enter into or engage in the business of writing fire, tornado, plate glass, burglary, or hail insurance in the city of Childress, or in Childress county, Tex., so long as appellant should remain in said business in Childress county; that appellant had been continuously engaged in said business since he purchased the interest of appellee, and, notwithstanding his contract and obligation to engage in the insurance business in said county, ap-pellee did, on the 15th day of April, 191YÍ write hail insurance in said county and held himself out as an insurance agent, soliciting hail insurance to be written by him; that he-will continue to do so unless restrained by the court, to the damage and injury of appellant; that the act of appellee in writing hail insurance in Childress county is a violation of his contract and agreement with appellant and has caused the business of appellant and the value thereof to decrease in the sum of $500; that, if appellee is permitted to continue to write said insurance in said territory in violation of his contract,, it will work great and irreparable damages, to appellant.

Appellant attached to his petition the contract of January 1, 1916, paragraph 2 of which is as follows:

“That for and in consideration of said sale and purchase and of the said sum of money aforesaid, the said W. A. McLeod does hereby bind and ob* ligate himself that he will not directly or indirectly, enter into nor engage in the business of writing fire, tornado, plate glass, burglary and hail insurance nor the writing of indemnity or other insurance other than life insurance in the-city of Childress and in the county of Childress, Texas; and for the faithful performance of this, obligation the said W. A. McLeod does hereby bind himself firmly and by these presents. This contract shall remain in force as long as the said H. A. Schluter remains in said above stated insurance business.”

The answer of appellee, in addition to exceptions and general denial, alleged that the agreement and contract made by and between him and appellant was abrogated, annulled, and dissolved by reason of the fact that appellant and appellee at said time again entered into a partnership, by the terms of which they were to engage in the business of writing hail insurance in Childress county, Tex., and divided the proceeds equally after paying the expense of said business, and that such partnership existed during the remainder of the season of the year 1916; that appellee and appellant did divide the earnings and profits of said partnership-equally; and that by reason of said subsequent contract of partnership appellee, was relieved from the obligations and conditions of his said contract of January 1, 1916. Ap-pellee further alleged by way of cross-action that the injunction was unlawfully and unjustly obtained, and that by reason thereof he suffered damages for which he prayed judgment. By supplemental petition appellant answered specially that he did not enter into a contract of partnership with appellee, but, on the contrary, he employed appellee to solicit and write hail insurance for him, and that the relation of employer and employé existed between them, and that they were not partners. Upon a trial of the case without a jury, judgment was entered dissolving the temporary injunction and decreeing that appellant take nothing by his suit and that appellee take nothing by reason of his cross-action.

Appellee has filed a motion to dismiss the case upon the ground, as shown by affidavit attached to the motion, that appellant has sold to one Biggs the insurance business purchased by him of appellee since the appeal was perfected. As heretofore stated, the suit was for an injunction and to recover $1,000 exemplary damages and $500 actual damages. The court correctly sustained a special exception to the claim for exemplary damages, and appellant did not except to such ruling. It is insisted in the motion that since the claim for $1,000 is not an issue, and since the sale of the business by the appellant has the effect of removing the issue of his right to an injunction from the case, the only question now before this court is the item of $500 damages, and, because the district court would have no jurisdiction of a suit for $500, this court should dismiss the case. The general rule is that the jurisdiction of this courUIs fixed by the status of the case at the time the appellant files his appeal bond. At that time appellant claimed the right to an injunction as well as the right to recover actual damages, which would give this court jurisdiction of the controversy. It is therefore our duty to entertain jurisdiction, unless by reason of something occurring since the appeal there is no longer any controverted issue, or the subject-matter of the suit has been destroyed, or the questions presented are moot. Hart v. Britton, 197 S. W. 592, and authorities cited.

It appears from the judgment of the court that the trial judge dissolved the temporary injunction and rendered judgment against the appellant upon the ground that the written contract of January 1, 1916, was abrogated and annulled as to hail insurance, by the “new contract entered into between plaintiff and defendant for jointly pursuing ¡•.aid. business of hail insurance.” A review of this ruling and the authorities bearing upon it has convinced us that the court erred. The question has never been adjudicated in this state, but we believe that the weight of authority and the better reason sustains the contention of appellant that the original contract was not abrogated, either by a subsequent partnership agreement between appellant and appellee, or by the creation of the relation of employer and em-ployé between them. The only cases where the question has been considered, so far as we have been able to find, are cited in the briefs of the parties. The first case is that of Norris & Cochran v. Howard, 41 Iowa, 508, in which it was held that the formation of a partnership under such circumstances was inconsistent with the prior contract binding one of the parties not to engage in the same business, and at the expiration of the partnership the party bound by the contract was absolved therefrom. In the case of Menefee v. Rankins, 158 Ky. 78, 164 S. W. 365, the Court of Appeals of Kentucky considered the same question arising in a case growing out of a contract where one physician had sold his office furniture and good will to another, agreeing in the contract to 'leave town and to turn over, so far as he was able, all of his practice to the purchaser. The question is discussed at some length, and the opinion of the court is based upon the Norris & Cochran v. Howard Case,' supra, which it cites with approval. We are not disposed to follow the holding in these cases. The Chancery Court of New Jersey, in a carefully considered opinion in the case of Scudder v. Kilfoil, 57 N. J. Eq. 171, 40 Atl. 602, arrives at a contrary conclusion. In that case, as in this, it was insisted that the waiver or abandonment of the previous contract arose from the fact that the contracting parties subsequently entered into a partnership to transact the identical business which was the subject of their prior agreement, and then dissolved their partnership relation. The court said:

“The negative covenant entered into by the petitioner, by which he bound himself not to engage in the same business within the borough, was of much more consequence than a mere sale of the good will of the business to Mr. Scudder. The sale of the good will would have only precluded the vendor from soliciting trade from the old customers of the firm, but would not have prevented him from setting up a rival business in Princeton, or anywhere else. * * * By virtue of the contract, Scudder therefore got much more than the ‘good will,’ namely, the right to prevent Kilfoil from soliciting the old customers of the business. He got a right to exclude Kilfoil from doing any business at all in the same line in the same place. If Scudder had entered into partnership with a third person, no right to enforce Kilfoil’s covenant would have passed to the partnership, 'but would have remained the sole right of Scudder, the covenantee. So, when Kilfoil became a partner, he obtained no interest in the covenant as such partner, which could annul his obligation as covenantor. The question then is reduced to this: Did the consent by Scudder that Kilfoil should engage in the same business in Princeton as his partner imply a waiver of his rights under the contract? I am clear that it did not. The two contracts were not incongruous or inconsistent. The covenant in the original contract provided against Kilfoil entering upon the same business in rivalry with Scudder. The permission implied by the partnership arangement was that he might engage in the same business in .copartnership with Scudder. If Scudder had hired Kilfoil to assist him in his business, I don’t see how this could be tortured into a consent that the latter could work for himself. Now, their relation as partners, both interested in the business of the firm, made the consent of Scudder that Kilfoil should" so work as partner of much the same quality as would have been his assumed consent that Kilfoil should work as his servant. His consent in the latter case would have been that he could work for Scudder; in the former, that he could work in the interest of Scudder. To this extent only was there a consent that Kil-foil should engage in business while Scudder was still in business. When Kilfoil ceased to be 'a partner, and even that consent was withdrawn by the cessation of the firm relationship, he had acquired no right to engage in business on his own account, in contravention of the terms of his original contract.”

In tlie case of Faust v. Rohr, 166 N. C. 187, 81 S. E. 1096, the Supreme Court of North Carolina also quotes the above language from Scudder v. Kilfoil, and disapproves the holding in Norris & Cochran v. Howard, in the following -language:

“But the learned counsel cite and rely mainly on Norris & Cochran v. Howard, 41 Iowa, 508, and the conclusion of the court, founded upon facts substantially the same as those in this case, supports the defendant’s contention; but we think the reasoning of the court is fallacious and the deduction therefrom is unsound. The eoui*t clearly loses sight of the precise nature of the stipulation forbidding the vendor from engaging in similar business, and of the object for which it was inserted in the contract, and therefore it was led into the error of assuming that ‘it formed an impediment to his becoming a partner’ with his vendor. If we admit the premise that it does, the conclusion may well be warranted ; but this is a false assumption, as we respectfully think, for the object was the prevention of competition, and he does not become a competitor by entering the copartnership. We are much better satisfied with the reasoning and statement of the law as contained in the case of Scudder v. Kilfoil, 57 N. J. Eq. 171, 40 Atl. 602, to which we have referred. We are not inadvertent, though, to the clear distinction drawn in Norris & Cochran v. Howard, supra, between the sale of the good will of a business and a restrictive covenant like the one found in this contract, which is as follows: ‘The agreement not to buy grain in Prairie City, nor thereafter to engage in such business at that place, is a thing distinct from the transfer of the mere good will. The legal meaning of ‘good will,’ as defined by Lord Eldon, ‘is nothing more than the probability that the old customers will resort to the old place.’ ‘It is nothing more than a hope, grounded upon a probability.’ Parsons on Partnership (2d Ed.) p. 273. ‘The sale of a good will, in the absence of any express stipulation, does not preclude the seller from setting up the same kind of business in the same neighborhood, if he does not describe himself as setting up the identical business that has been purchased.’ Smith’s Mercantile Law, p. 252, and cases cited. While this is a correct statement of the law so far as it goes, it was not carried by proper argument to its legitimate and logical sequence by keeping in mind the true nature and intended purpose of a stipulation against engaging in a similar occupation. This also disposes of the position taken in the brief of defendant’s counsel that there is a necessary repugnancy between the said expressed stipulation and the subsequent agreement of partnership, for which they rely on Redding v. Vogt, 140 N. C. 562, 53 S. E. 337, 6 Ann. Cas. 312, and Burns v. McFarland, 146 N. C. 384, 59 S. E. 1011, in the former of which cases it was said: ‘When the parties to a contract come to a fresh agreement of such a kind that the two cannot stand together, the (legal) effect of the second agreement is to rescind the first.’ And in Myers v. Carnahan, 61 W. Va. 414, 57 S. E. 134, also cited by them: A subsequent contract, which does not by express terms abrogate an earlier one, will operate as a discharge of it, in the absence of an express agreement to that effect when clearly inconsistent with the continued existence of the original contract. But here we come back to the original proposition that the two contracts are not inconsistent when properly considered and construed and the whole argument is based upon the false premise that they are. The quotation from 20 Cyc. 1281, is founded solely upon the authority of the Iowa decision, which we are unable to follow, as we consider it at variance with reason, a broad view of the contract, and the clear intention of the parties.”

We quote further from this case, as the statement is applicable to the instant case:

“The object of the plaintiff in making the contract was to prevent competition on the part of the defendant, either directly or indirectly, either as principal or servant, and this must have been well understood by the defendant. It was to suppress rivalry between' the two men as barbers, and this formed a material part of the consideration or inducement for making the agreement. If the intention and purpose of the parties, was the prevention of competition, and no other can he deduced from the plain terms of the agreement, then it cannot he that the formation of the second copartnership was an abrogation of this stipulation in the contract for the dissolution of the former copartnership, which contained the negative covenant, and for the simple reason that, by becoming the plaintiff’s partner, the defendant in no way was brought into competition with him; but the opposite result would necessarily follow. While the new copartnership lasted, they worked in harmony, the interest and advantage of one extending to both, and there was therefore no conflict of interests; but it would have been otherwise had the two been pitted against one another in a business rivalry, each of them striving for the mastery) and this was what the covenant was manifestly intended to prevent.”

A reasonable construction of the contract in this case, when construed in the light of the parol testimony, is that Schluter desired to acquire the business owned by the firm and at the same time avoid entering into competition with McLeod in the future. He frankly admitted while on the stand that McLeod was a good solicitor-, especially for hail insurance. What is here said disposes of the first four assignments.

We think the court should have sustained the plaintiff’s sixth special exception to the sixth paragraph of defendant’s original answer, which sets up an abrogation of the contract by the formation of the second partnership-.

McLeod should not have been permitted to testify that he did not sell plaintiff the good will of the business. It is clear fro-m the written contract that appellant purchased McLeod’s interest in the partnership business, except the right to sell life insurance, and this unquestionably included the good will. Over the objection of appellant, McLeod was permitted to testify that, at the time the written agreement was executed, the parties entered into a verbal agreement that McLeod would be permitted to wilte hail insurance in Childress county. The effect of this testimony is to contradict and vary the terms of the written contract and was not admissible under the pleading.

For the errors indicated, the judgment is reversed, and the cause remanded.
      <@=>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=s>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    HRANICKY v. SELL.
    (No. 7467.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1917.)
    1. Pleading <®=3403(2) — Jurisdiction.
    Where averments in an answer cover the want of jurisdictional averments in a petition, the pleadings of both parties may be looked to to ascertain the issues.
    2. Justices of the Peace <⅜^>137 — Jurisdis-
    TIONAL AMOUNI>-PLEADING.
    Where plaintiff sued on a note for $85 before a justice of the peace and for foreclosure of a mortgage securing the note, but failed to aver the value of the property covered by the mortgage, and defendant in his answer alleged the value to be such as to come within the jurisdiction of the justice, the want of a_ sufficient averment in the petition to give the justice jurisdiction was cured by the answer.
    Appeal from Austin County Court; G. S. Cumings, Judge.
    Action by Charles Hranicky against Albert Sell. Judgment for defendant in the justice court was affirmed by the county court, and plaintiff accepts.
    Keversed and remanded.
    Dewitt C. Bennett, of Wiallis, and C. Douglass Duncan, of Bellville, for appellant. C. C. Glenn, of Sealy, for appellee.
   LANE, J.

This suit was originally instituted in the justice court for precinct No. 8, Austin county, Tex., by plaintiff, Charles Hranicky, against defendant, Albert Sell, to recover upon a note executed by defendant, payable to plaintiff, for the sum' of $85, and for foreclosure of a mortgage given by defendant to plaintiff upon certain property, to secure the payment of said note, and also for attorney’s fees as stipulated in the note. The citation issued out of the justice court and served upon defendant did not describe the property mortgaged, nor give its value.

Defendant filed his answer in the justice court, in which he admits the execution, and delivery to plaintiff, of the note sued upon. He further in said answer made the following allegations:

Defendant further shows to the court that, as affirmatively shown by plaintiff’s citation- in this cause, he has and holds a chattel mortgage upon the following personal property belonging to defendant, securing the prompt payment of the same note herein declared upon by plaintiffs, viz.:

One wagon of the reasonable value of. . .$ 40.00 One cultivator of the reasonable value of 30.00 One riding planter of the reasonable value of .. 25.00

One iron harrow of the reasonable value of. 12.50

$107.50

As a defense to plaintiff’s recovery, the defendant alleged that the note sued upon was executed by him in payment for a horse sold and delivered by plaintiff to him which plaintiff represented to be in sound health and condition; that said horse was later discovered by him to be diseased and worthless, and therefore the execution and delivery of the note was without consideration. He further, by way of cross-bill, alleged that plaintiff is, for reasons therein set out, indebted to him in the sum of $180, for which he prays judgment.

On trial before the justice without a jury, judgment was rendered against plaintiff, denying a recovery upon the note and for costs of suit, and against defendant upon his cross-bill. From this judgment, plaintiff, Charles Hranicky, appealed to the county court.

When the cause was called in the county court, defendant, Albert Sell, filed the following motion:

“Now comes Albert Sell, defendant in the above styled and numbered cause, and moves the court to dismiss the appeal in this cause, appealed from justice court, precinct No. 8, Austin county, Tex., for the reason that plaintiff does not affirmatively show in his citation (petition) that the said justice court, precinct No. 8, Austin county, Tex., had original jurisdiction of the said cause, in this, that plaintiff therein prays a foreclosure of a mortgage on property, the value of which is not affirmatively shown in plaintiff’s citation (petition) to be within the original jurisdiction of the said justice court, and upon the value of which said mortgaged property the jurisdiction of the proper court must be determined; and hence no appellate jurisdiction on the part of the county court to hear and adjudicate the issues in the said cause.
“Wherefore defendant prays the court whether it will take further cognizance of this cause, and that defendant go hence without day and with his costs and he will ever pray.”

Upon the presentation of the motion on the. 8th day of February, 1917, the court, without hearing testimony as to the value of the mortgaged property, dismissed said cause at the cost of plaintiff. Plaintiff thereupon, and on the same day, by motion in writing duly filed, asked the court to reinstate the cause; insisting that if his pleadings in the justice court were defective and insufficient to show that that court had jurisdiction, in that they failed to describe the property mortgaged and to give its value, such defect was cured by the plea or answer of defendant wherein the items of the mortgaged property and their values are specifically set out.

Defendant in objecting, to a reinstatement urged the same objection to the plaintiff’s pleadings as in his motion to dismiss, and further says:

“That the said order of the court dismissing plaintiff’s appeal should not be set aside for the reason that defendant, in listing and valuing the property upon which said chattel mortgage is held by plaintiff and foreclosure thereof prayed, listed and valued by defendant from memory, and citation served upon him in this case on the 13th day of December, 1916, the -original of which is on file with the papers in this ease; that the said listing is not correct either as to the items or values placed thereon; that had defendant been able to recall from memory, assisted' by said citation, correct items and values of the chattels upon which plaintiff asks a foreclosure of his said chattel mortgage, the same would have exceeded the sum of $200; that the said mortgage included one -horse, one wagon, one cultivator and one riding plow, of the estimated aggregate original value of $205, and hence the said justice court is without original jurisdiction and the county court without appellate jurisdiction.”

On the same day February 8, 1917, the court refused to reinstate the cause.

To the action of the county court in dismissing said cause upon the motion of defendant, Albert Sell, and in refusing to reinstate the same upon the motion of plaintiff, the plaintiff excepted, and in his brief assigns the same as error for which the judgment of the trial court should be reversed.

While it is true that where the debt sued for in a justice’s court, as in this ease, is less than the minimum prescribed to give jurisdiction, and the value of the property upon which a chattel mortgage is sought to be foreclosed is not alleged, the petition fails to show that the court has jurisdiction. Marshall v. Stower’s Furniture Co., 167 S. W. 230; Walker Mercantile Co. v. Raney Co., 154 S. W. 317. It is equally true that averments in an answer will cover the want of averments in a petition, that the pleadings of both parties can be looked to to ascertain the issues presented, and that the facts alleged in the answer in connection with the averments of plaintiff’s pleadings can be looked to in aid of the cause of action sought to be alleged by plaintiff. Gaston v. Wright, 83 Tex. at page 252, 18 S. W. 576; Lyons & Gribble v. Logan, 68 Tex. at page 524, 5 S. W, 72, 2 Am. St. Rep. 511; Hill v. George, 5 Tex. at page 89; Thomas v. Bonnie Bros., 66 Tex. 637, 2 S. W. 724; Grimes v. Hagood, 19 Tex. 249.

Since the pleadings of both parties in this case when considered together show the value of the mortgaged property to be within the jurisdiction of the justice court, the county court, upon appeal to that court, had apparent jurisdiction. And therefore the county court erred in dismissing plaintiff’s suit for want of jurisdiction, upon the motion of defendant, without hearing evidence as to the value of the mortgaged property.

For the error pointed out, the judgment of the trial court is reversed, and the cause remanded.

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