text:
    HOWELL v. CITY OF SWEETWATER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 15, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1.Appeal and Error (§ 518) — Record—Answer — Pleading Not Called to Attention of Trial Court.
    Where an appeal was taken from an order granting a preliminary injunction, and defendant’s answer was not filed until 10 days after the writ was granted, or shown ever to have been called to the court’s attention, and no motion was made to vacate the writ, the answer was not properly in the record on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2342-2355; Dec. Dig. § 518.]
    2. Municipal Corporations (§ 623) — Abatement of Nuisances — Dangerous Buildings — Rights of Cities.
    Rev. Civ. St. 1911, art. 844, authorizes cities to abate nuisances, and to define what shall be nuisances. Article 856 provides that whenever in the opinion of the city council a( building is liable to fall and endanger persons or property, the council may order the owner to remove it; that in addition the council shall' have power to remove the same at the expense of the city and assess the expense to the landowner. Article 965 also authorizes the removal of wooden buildings for prevention of fire, etc. Held, that where an old building in a city was so dilapidated that it was likely to fall and was composed of such combustible material as to render it dangerous to the public by reason of the probability of its burning and of its proximity to other buildings, the city could order its removal by resolution of the council.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1371-1374, 1383, 1384; Dec. Dig. § 623.]
    3. Municipal Corporations (§ 623) — Abatement of Nuisance — Equity Jurisdiction.
    Where the owner of a dilapidated wooden building was ordered by resolution of the city council to remove it, but refused, to do so,, and was proceeding to remodel and improve it for a stable, which rendered it more dangerous and more liable to take fire, within the city fire limits, the city was authorized to invoke the aid of equity to restrain the contemplated improvements and to require the removal of the building as a nuisance.
    TEd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1371-1374, ■ 1383, 1384; - Dec. Dig. § 623.]
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Suit by City of Sweetwater against G. B. Howell. Judgment for complainant, and defendant appeals.
    Affirmed.
    Ed. J. Hamner, of Sweetwater, for appellant. Beall & Spencer and Á. W. Christian, all of Sweetwater, for appellee.

      For other oases see same topic and section NUMBER in'Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

G. B. Howell has appealed from an order made by the judge of the district court in chambers, granting a temporary writ of injunction, which restrained the defendant from constructing certain improvements of a building owned by him, and also from using the same as a place to conduct a livery business.

The suit was instituted by the City of Sweetwater, and the building is situated in the City of Sweetwater. The writ was granted upon an ex parte hearing of the plaintiff’s petition, which was duly verified by the mayor of the city. Some 10 days subsequent to the issuance of the writ of injunction the defendant filed an answer to the petition, which appears in the record of this court. No proceeding was instituted by the defendant in the district court for a vacation of the writ, and it does not appear that the answer filed was ever brought to the attention of the judge who granted the writ. Nor has appellant filed any brief in this court. The answer has no proper place in the record and cannot be considered, as we must determine the merits of the appeal upon the allegations of the petition alone; hence appellee’s motion to strike the answer from the record is sustained. Wynn v. Edmonson Land & Cattle Co., 150 S. W. 310.

According to the allegations in the petition the building in question-is a wooden one known as the old opera house, which was built several years ago, and is constructed of very inflammable material. In recent years it has been used for no other purpose than an auditorium, and that, too, infrequently, and the flooring and timbers supporting the same, which constituted the most substantial part of the building, have been removed, thus rendering it unstable and liable to fall down and injure persons in its immediate vicinity. The post office building is situated on the adjoining lot, and on the opposite side of the street there are several buildings, one of them being the First Presbyterian Church, and the others stores of merchandise and dwellings.

The city is incorporated under the general laws of the state, and has by ordinance duly passed established certain fire limits within which wooden buildings are not allowed to be constructed or repaired, and the building in question is situated within those limits. On March 6, 1913, a short time after the building was found to be on fire and the fire extinguished, the city council, by resolution duly passed, ordered Barrow & Sons, who then owned the building, to remove the same. A copy of the resolution is made a part of the petition, but the reason given in this resolution for the removal of the building is that the building is “liable to fall down and endanger persons or property.” At the date the ordinance was passed defendant was the owner of the lot, but not the owner of the house; later he bought the house, and now owns it, as well as the lot upon which it is situated. By the terms of the resolution last referred to, Barrow & Sons were ordered to move the building within 10 days after service upon them of a copy of the resolution, with the further notice that in the event the order was not obeyed, the building would be removed at the expense of the city, which expense would thereafter be taxed against the owner of the building, in accordance with the provisions of the ordinance relating to unsafe and dangerous buildings, and which ordinance further provides that a failure of such owner to remove the house after notice given would be deemed a misdemeanor, punishable by fine; Barrow & Sons having failed to obey the order, and the defendant having purchased the building, tore up and removed the flooring and sills, leav-i ing the building vacant from roof to ground with no support other than the outside walls upon which rests a large, cumbersome, and dangerous roof of old and combustible material. This work by the defendant was, preparatory to his purpose, publicly announced of using the building as a livery stable, wherein would be kept horses, vehicles, and stock feed, thus increasing the dangers of a destruction of the building by fire. Upon information of such purpose on the part of the defendant, the duly authorized representatives of the city at once gave notice to the defendant that the building had been condemned by the city, and he would not be permitted to operate a livery stable therein. Thereafter the city council passed a resolution requiring the defendant to desist from so occupying the building, and ordering him to take down and remove the building within 10 days after service upon him of a copy of the resolution, and further notifying him that in the event of his failure to obey said order, then the city council would remove the building and assess the expense of such removal against the lot upon which the building was located, in accordance with the provisions of its ordinance relating to unsafe and dangerous buildings, and, according to which ordinance, defendant’s failure to obey the order would be a misdemeanor punishable by fine. This resolution was dated July 5, 1913, and a copy of it is made a part of the petition. The reason assigned in the resolution for the order to Howell to remove the building was that the building “is liable to fall down and endanger persons or property.” A copy of the resolution was immediately served upon the defendant, at which time the defendant stated that the order would not be obeyed, that the building would remain, and that he would proceed to occupy it and use it as a livery stable, as he had previously planned.

According to further allegations in the petition the city council of plaintiff has, by ordinances, declared buildings likely to-cause fire to be nuisances, and has by resolution condemned the defendant’s building as such nuisance. The petition contains this further allegation: “Plaintiff shows to the court that said old building has at all times past been exceedingly dangerous as a fire trap and firebrand, endangering not only the property in the immediate vicinity thereof, but the city at large, because of its dimensions, the very great amount of combustible material in it would make and constitute a fire and conflagration of such magnitude, intensity, and heat as under ordinary circumstances, and especially should the usual and ordinary winds of this country be blowing at such time that a fire might exist therein, to endanger the entire town, especially that portion thereof situated windward therefrom; that to place and operate a livery stable in said old building with the usual and ordinary forage, feed, implements, equipments, and supplies of a livery stable, would increase such danger possibly fourfold to the danger now existing of said vacant or unoccupied building.” Notwithstanding due notice to the defendant of the proceedings so taken by plaintiff condemning said building and ordering the same removed, the defendant at night removed from his barn, heretofore occupied by him as a livery stable, some of his horses and vehicles into the building in question, and has publicly announced his purpose to disobey the order of the city council, and to improve and repair the building as he saw fit and to operate a livery business therein, and that nothing would deter him from this purpose except that he be placed in jail and kept there.

By another paragraph in the petition it is alleged that the use of the building as a livery stable would create a public nuisance by reason of offensive odors and gases arising from the rubbish accumulating therein, attracting flies, and becoming offensive to the citizens of the town.

It was further alleged in the petition that at the time the suit was filed the plaintiff could not legally remove the building by reason of the fact that the 10 days’ notice given to the defendant to remove the same, in accordance with the resolution aforesaid and ordinances adopted by the city, had not expired, and that unless defendant was restrained from so doing, he would complete his proposed repairs of the building.

By Revised Civil Statutes 1911, the city council of a city incorporated under the general laws are invested with the following powers:

“To abate and remove nuisances and to-punish the authors thereof by penalties, fine and imprisonment, and to define and declare what shall be nuisances and authorize and direct the summary abatement thereof.” See article 844.
“To abate all nuisances which may injure or affect the public health or comfort in any manner they may deem expedient.” See article 845.
“Whenever, in the opinion of the city council, any building, fence, shed, awning or any erection of any hind or any part- thereof is liable to fall down and endanger persons or property, they may order any owner or agent of the same, or any owner or occupant of the premises on which such building, shed, awning, or other erection stands or to which it is attached, to tahe down and remove the same, or any part thereof, within such time as they may direct; and to punish by fine and imprisonment, or either, any neglect, failure or refusal to comply therewith. The city council shall, in addition, have the power to remove the same at the expense of the city, on account of the owner of the property or premises, and assess the expenses on the land on which it stood or to which it was attached, and shall, by ordinance, provide for such assessment, the mode and manner- of giving notice and the means of recovering any such expenses.” See article 856.
“The city council, for the purpose of guarding against the calamities of fire, may prohibit the erection, building, placing, moving or repairing of wooden buildings within such limits within said city as they may designate and prescribe; and may within said limits prohibit the moving or putting up of any wooden building from without said limits, and may also prohibit the removal of any wooden building from one place to another within said limits, and may direct, require and prescribe that all buildings within the limits so designated and prescribed, as aforesaid, shall be made or constructed of fireproof materials, and to prohibit the rebuilding or repairing of wooden buildings within the fire limits when the same shall have been damaged to the extent of fifty per cent, of the value thereof, and may prescribe the manner of ascertaining such damage; may declare all the dilapidated buildings to be nuisances and direct the same to be repaired, removed or abated in such manner as they shall prescribe and direct; to declare all wooden buildings in the fire limits which they deem dangerous to contiguous buildings, or in causing or promoting fires, to be nuisances, and require and cause the same to be removed in such manner as they shall prescribe.” See article 965.

We are of the opinion that the instability of the building rendering it likely to fall and thereby endanger human life, and the fact that it is a wooden building of such combustible material as to render it dangerous to the public by reason of the probability of its burning and of its proximity to other buildings, together with the further fact that the location of the building was within the first limits which had been duly established by the city council by ordinance, furnished a sufficient predicate under the statutes for the order passed by the council condemning the building and ordering its removal.

We are of opinion, further, that it was proper for the plaintiff to invoke the aid of a court of equity by injunction to enforce such right. See City of Belton v. Hotel Co., 33 S. W. 297; City of Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 108; 28 Cyc. 259.

The foregoing conclusion renders it unnecessary to determine the sufficiency, for the relief sought, of the further allegations that the use of'the property for purposes of a livery stable would necessarily create a public nuisance by reason of the congregation of flies around the premises and the odors which would arise, both of which results would inevitably follow from such use of the premises.

For the foregoing reasons, the judgment is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    COLLIN COUNTY NAT. BANK et al. v. McCALL HARDWARE CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 15, 1913.
    On Motion for Rehearing, Dec. 13, 1913.)
    Execution (§ 172) — Vacation—Sebvice—Eq-uitable Relief.
    In a suit to enjoin the execution of a judgment on the ground that there was no sufficient service on which to base it, complainant cannot recover in the absence of proof that it had a valid defense to the cause of action on which the judgment was based.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. § 172.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Suit by the McCall Hardware Company against the Collin County National Bank and others. Judgment for complainant, and defendants appeal.
    Reversed and remanded.
    Chambers & Cook, of Montague, for appellants. W. T. Russell, of Nocona, for ap-pellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

This is an appeal from a judgment of the district court of Montague county enjoining the execution of a judgment of the justice court of precinct No. 1, Collin county, in favor of appellant and against the McCall Hardware Company, doing business in Montague county, and against the Collin County Grain Company for the sum of $77.18.

The ground of attack is that there has never been any service of citation which would give the justice court referred to jurisdiction oyer the persons of W. A. McCall and C. McCall, who alone compose the partnership doing business under the firm name of McCall Hardware Company.

The appellee firm offered in evidence a citation and constable’s return of the justice court which is clearly insufficient to authorize the judgment, and C. McCall, one member of the firm, testified to the effect that he had never been served with a citation to answer the suit in the justice court, so far as he could remember. ■

We are of the opinion that the court erred as assigned in giving the peremptory instruction to the jury to find for appellees. It is true that, this being a direct attack, the judgment of the justice court may be shown to be void for want of any service of a sufficient citation, but in the case before us the justice court judgment recites that all parties defendant had been duly cited to answer the plaintiff’s demand without referring to the citation upon which the recital' rested. The judgment, therefore, is not void on its face, nor can it be said to be void on the face of the record as a whole, for it is only .when the judgment is silent as to the fact of service that the inference may be indulged that the judgment rests upon a defective citation found in the record. See Treadway v. Eastburn, 57 Tex. 209; Clark v. Thompson, 47 Ill. 25, 95 Am. Dec. 457; Earnest v. Glaser, 32 Tex. Civ. App. 378, 74 S. W. 605; Martin v. Burns Walker & Co., 80 Tex. 676, 16 S. W. 1072; Foust v. Warren, 72 S. W. 404. The burden of proof rested upon appellees to affirmatively show the alleged want of service of citation, and this in our opinion was not so conclusively shown as to authorize the court to take the issue away from the jury. As we have seen, the mere production from the record of the justice court of an insufficient citation did not conclusively prove the want of service alleged, and there was no evidence that the defective citations offered by appellees were the only ones issued from the justice court. The evidence is likewise wholly silent as to whether service of citation had been had upon W. A. McCall, the other member of the appellee firm and who did not testify. The court therefore erred in giving the peremptory instruction.

For yet another reason we think the judgment of the district court must be reversed as appellant urges. There is no evidence whatever that the appellee firm has a defense to the cause of action upon which the judgment of the- justice court was based. They so alleged in their petition for injunction, doubtless recognizing that this was a material allegation; and, if the allegations relating to their defense were material, evidence in support thereof was likewise material for reasons heretofore given and which need not be here repeated. See Foust v. Warren, supra; Chambers v. Gallup, 30 Tex. Civ. App. 424, 70 S. W. 1009; Rumfield v. Neal, 46 S. W. 262; Delaware Ins. Co. v. Hutto, 159 S. W. 73.

We conclude that the judgment should be reversed, and the cause remanded, and it is so ordered.

On Motion for Rehearing.

On the motion for rehearing our attention has been called to the fact that appellant in its original answer admitted that the judgment in controversy was based upon the defective citations offered in evidence. This fact had been noticed upon original consideration, but -we overlooked the fact that appellant’s general denial, part of the same answer, was a qualified one. In our original opinion we proceeded upon the theory that the service upon which the judgment rested had been put-in issue by the general denial, notwithstanding the admission in the special answer; but, as stated, we find the general denial qualified in such way as to give effect to the admission in appellant’s answer. We therefore were in error in reversing the judgment on the ground that the evidence of a want of service failed to justify the peremptory instruction. This, however, we think is immaterial in view of the second ground upon which the reversal of the judgment was predicated as to the necessity of appellee firm showing that they had a valid defense to the judgment, as announced in our original opinion. We see no reason to change the conclusion there announced.

The motion for rehearing is accordingly overruled.


author: DUNKLIN, J.

text:
    LATTIMORE et al. v. PUCKETT & WEAR.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 18, 1913.
    Rehearing Denied Dec. 6, 1913.)
    1. Oonteacts (§ 175) — Teems—Evidence.
    Evidence as to terms of a contract for construction of a dam across a creek, to form a fishpond, held sufficient to sustain a finding that it did not require the contractor to build a foundation of such depth and nature as to prevent the water escaping below it.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. § 175.]
    2. Triad (§ 260) — Request foi: Instructions —Instructions Already Given.
    Refusal of a requested instruction may not be complained of; the matter being substantially covered both in affirmative and negative form, by another requested instruction, which was given, and by the general charge.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Trial (§ 219) — Instructions—Defining Words.
    The court need not define to the jury the meaning of the words “would hold water” in a contract for construction of a dam; they being of common use and easily understood.
    [Ed. Nóte. — For other cases, see Trial, Cent. Dig. § 489; Dec. Dig. § 219.]

      4. Appeal and Error (§ 1033) — Harmless Eeeob—Instructions — Eeeor Favorable to Party Complaining.
    The burden of proof of the defense of failure of consideration, in an action on a note, being on defendants, failure to so instruct was not prejudicial to them.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dee. Dig. § 1033.]
    5. Trial (§ 75)—Objections to Evidence-Waiver.
    Plaintiff, in an action involving the question whether he had constructed a dam according to contract, having testified, without objection, that the soil in the bottom of the basin of the proposed pond would not hold water, and that by reason thereof, and not through any defect in the dam, the water escaped, and this being pertinent to the issue, it was .not error to permit another witness to testify to the same condition of the soil, and that by reason of the lack of rain other lakes and tanks were dry.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 171-182, 252; . Dec. Dig. § 75.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by Puckett & Wear against O. S. Lattimore and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellants. McCart & Bowlin, of Ft. Worth, for appellees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

In the trial court judgment was rendered in favor of Puckett & Wear, plaintiffs, against • O. S. Lattimore, A. J. Lawrence, and J. E. Cummings, defendants, upon a promissory note executed by the defendants in plaintiffs’ favor, and the defendants have appealed.

The consideration for the note was plaintiffs’ contract to construct a dam of concrete across a ravine, which dam was designed by the defendants to impound water from rainfall for the purpose of forming a fishpond. The dam was constructed, but the water which accumulated after each rain in the basin above the dam escaped through the bottom of the basin and ran out below the dam. The evidence shows without controversy that the water did not percolate through the dam. Plaintiffs’ contract to construct the dam was in parol, but the evidence shows without controversy that they agreed to build a dam that would hold water. The principal controverted issue upon the trial was whether plaintiffs agreed, as contended by defendants, to build a dam upon a foundation of such depth and construction that the water collecting in the basin above the dam would be held there and not permitted to escape below the dam, or whether the extent of plaintiffs’ obligation was, as contended by them, that they would construct a dam through which water would not percolate and which would not be carried away by the pressure of water accumulating in the basin above. •

By different assignments appellants insist that the evidence conclusively established their contention upon the issue above stated, and for that reason the trial court erred in failing to set aside the verdict of the jury upon their motion for a new trial. Notwithstanding the evidence of appellants tended strongly to support their construction of appellees’ contract, the testimony of appellee Puckett was in accord with plaintiffs’ contention as above stated. In addition to that testimony of Puckett, it was further shown that, after the dam had been'finished and it had been demonstrated that the water collecting in the basin above the dam would seep out, appellants paid $75 of the agreed consideration for the construction of the dam, and executed a note for the balance and later renewed that note, which renewal is the note in controversy herein. This evidence of appellees was sufficient to support the verdict, and hence the assignments of error now under discussion are overruled.

By another assignment of error the contention is made that the judgment was excessive. This is based upon the statement in appellants’ brief that the note stipulated for interest at the rate of 10 per cent, per annum from maturity. But the note found ip the-statement of facts expressly stipulates for interest from date, and with this stipulation in the note the judgment was not excessive.

By the fourth assignment of error-complaint is made of the refusal of a special instruction requested by appellants. This assignment is overruled because another special instruction requested by the appellants was given which presented substantially appellants’ defense to the note in an affirmative form, in addition to the same defense presented in a negative form in the-court’s general charge. '

We know of no rule which would require the court to define to the jury the-meaning of the words used in plaintiffs’ contract to construct a dam that “would hold water,” as contended by another assignment, as those terms are words of common use and easily understood by the jury.

Nor do we think that the instruction given in the court’s main charge was subject to the criticism made by appellants that it was on the weight of the evidence. The only defense to the note was that of failure of consideration. Clearly the burden was upon the defendants to establish that defense, and, if the court erred in failing to charge the jury upon the burden of proof, it was an error in favor of appellants- and not against them, as contended in the tenth assignment of error.

As plaintiffs testified without objection that the soil which constituted the bottom of the basin of the proposed lake would not hold water, and that the water escaped by reason of this condition of the soil and not through any defect in the dam, and as this was pertinent to tlie very issue in controversy, there was no error in permitting the witness G. B. Leake to testify to the same condition of the soil and that by reason of the lack of rainfall other lakes and tanks were dry.

We have found no error in the record, and the judgment is affirmed.


text:
    PUGH v. WHITSITT & GUERRY et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 8, 1913.)
    1. Maeshaling -Assets and Secueities (§ 3) —Exempt Peopeety.
    As a rule the doctrine of marshaling securities will not be applied so as to deprive a debtor, who has not waived his rights thereto, of his homestead or exempt property.
    [Ed. Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.]
    2. Homestead (§ 168) — Liabilities—Exhaustion op Otheb Peopeety.
    A debtor has the equitable right to have a chattel mortgage debt satisfied by a sale of the unexempt property mortgaged before resorting to the sale of the debtor’s exempt property.
    [Ed. Note. — For other eases, see Homestead, Cent. Dig. § 167; Dec. Dig. § 108.]
    3. Maeshaling Assets and Secueities (§ 3) —Exempt Peopeety.
    The doctrine of marshaling assets will not be enforced so as to require a creditor, whose mortgage covers exempt and nonexempt property, to first resort to a sale of the exempt property, in order that other creditors not secured by such property may satisfy their claims out of the nonexempt residue, thus destroying the debtor’s right to protect the exempt property.
    [Ed. Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.]
    Appeal from Parker County Court; T. F. Temple, Judge.
    Action by Whitsitt & Guerry against C. F. Pugh and another. From a judgment for plaintiffs and an unnamed defendant, the defendant named appeals.
    Reversed and rendered in part, and affirmed in part.
    R. L. Stennis, of Weatherford, for appellant. Hood & Shadle and Preston Martin, all of Weatherford, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

Whitsitt & Guerry instituted this suit against C. F. Pugh for debt and foreclosure of a mortgage lien in plaintiffs’ favor on certain cotton raised by the defendant during the year 1912. Plaintiffs alleged that the Farmers’ Bank of Peaster had a prior mortgage on said cotton, and also on two mules, one wagon, and a cow, to secure a debt owing to it by Pugh, and the bank was made a defendant. Upon the equitable doctrine of marshaling securities plaintiffs prayed that the bank be required to disclose the amount of indebtedness due it by Pugh and secured by the mortgage in its favor, and that that indebtedness be satisfied first out of the proceeds of the sale of the mules, wagon, and cow, and that the balance of said bank debt, if any, be satisfied out of the sale of the cotton, leaving the remainder of the proceeds of the cotton subject to plaintiffs’ debt.

The bank filed an answer, in which it alleged the execution and delivery to it by Pugh of a promissory note and the mortgage as alleged in plaintiffs’ petition, and prayed judgment against Pugh for the amount of the debt, together with foreclosure of the mortgage lien upon the property.

Pugh also filed an answer, alleging that he was the head of a family, and claiming the mules, wagon, and cow as exempt from forced sale to pay plaintiffs’ debt. He prayed for judgment requiring the satisfaction of the bank’s debt first out of the cotton before resort should be had to the mules, wagon, and cow, and that only such balance of the proceeds of the sale of the cotton as might remain after the satisfaction of the bank’s debt should be subjected to the payment of the debt he owed the plaintiffs.

In obedience to a peremptory instruction by the trial judge, the jury returned a verdict in favor of the plaintiffs and also in favor of the bank against the defendant for their respective debts and for foreclosure of their respective liens, with direction that for the satisfaction of the judgment in favor of the bank the mules, wagon, and cow should be first sold, and the proceeds applied to the payment of that judgment, that the cotton should then be sold for the purpose of paying any balance that might remain unpaid on the bank’s judgment, and that the proceeds of the sale of the cotton should be applied to the payment of the plaintiffs’ debt to the exclusion only of such amount as might be required to satisfy the bank’s debt after the application thereto of the proceeds of the sale of the mules, wagon, and cow. From a judgment rendered in accordance with this verdict, the defendant Pugh has appealed.

Substantially all the facts alleged in the pleadings, including those upon which defendant Pugh based his plea that the mules, wagon, and cow were exempt from forced sale, were established by the evidence, and the only question presented for our determination is, Did the court err in marshaling the securities as was done by the judgment? Evidently it is immaterial to the bank if the relief prayed for by Pugh is granted, and neither in the trial court nor here has the bank offered any resistance to that relief, thus leaving the question to be solved from the standpoint of the rights of the plaintiffs and defendant Pugh alone.

In 26 Cyc. 933, it is stated in the text that it is held by the great weight of authority that marshaling securities can never be invoked so as to deprive the debtor of his homestead, or other exempt property, by a creditor with respect to whose lien there has been no waiver of such homestead or exempt property, but that a number of authorities announce a contrary doctrine. This statement in the text seems to be correct. Eor an extensive collation of authorities upon the subject, in addition to the ones cited in Cyc., see 34 Gent. Dig. title “Marshaling Securities,”-col. 357; 12 Dec. Dig. title “Marshaling Securities,” § 3. The only decision which we have found in our Texas courts bearing upon that question is the case of Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645, in which it was held that, as the practical effect in that .case of enforcing the rule for marshaling securities would be to subject the homestead of the debtor to the satisfaction of a debt contrary to the exemption established by our Constitution and statutes, the equitable rule noted would not apply. We concur in the reasoning and conclusion there announced.

Prior to the execution of the mortgage to plaintiffs in this case, as between Pugh and the bank, the former had the equitable light to have the bank debt satisfied first out of the proceeds of the sale of the cotton before resort to the sale of his exempt property for the satisfaction of the bank’s debt. King v. Hapgood Shoe Co., 21 Tex. Civ. App. 217, 51 S. W. 532; Pridgen v. Warn, 79 Tex. 588, 15 S. W. 559. Also, see decisions collated in 25 Cent. Dig. under title “Homestead,” § 167, beginning in column 2300; and 10 Dec. Dig. title “Homestead,” § 108. We are unable to perceive any reason for holding that the equity claimed by plaintiffs under the general rule governing marshaling securities is of superior dignity to the equity in favor of Pugh noted above. If the two equities are of equal dignity, then the one which arose first should prevail over the other, and, as Pugh’s equitable right as against the bank to have its demand satisfied first out of the cotton before resort to the other security arose prior to the execution of plaintiff’s mortgage, the equity claimed by plaintiffs was subordinate to such equity in favor of Pugh. 1 Pomeroy, Eq. Juris. §§ 413-417; 2 Pomeroy, Eq. Juris. §§ 678, 682, 718.

Accordingly that portion of the trial court’s judgment requiring the satisfaction of the bank’s debt first out of the proceeds of the sale of the mules, wagon, and cow, and that the balance, if any, remaining unpaid be satisfied out of the sale of the cotton, and applying the balance of the proceeds of the sale of the cotton, if any remaining, to the satisfaction of the plaintiffs’ debt, is reversed, and it is here decreed that the cotton be first sold for the purpose of satisfying the bank’s debt, and, if the proceeds of such sale be more than sufficient to satisfy that debt, the balance remaining shall be applied to the payment of the plaintiffs’ debt, and that the mules, wagon, and cow be sold under the bank’s foreclosure in the event only that the proceeds of the sale of the cotton be insufficient to pay the bank’s judgment, and, if sold, the balance of the proceeds remaining after the satisfaction of such unpaid portion of the bank’s judgment shall be paid over to the defendant Pugh. In all other respects the judgment is affirmed.


author: HUFF, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. FLOYD.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.)
    1. ALTERATION OF INSTRUMENTS (§ 8) — Freight — Alteration of Bill of Lading.
    If a bill of lading, when signed by the consignor, was not indorsed “charges guaranteed” but was afterwards altered by adding such words, it would not bind the consignor.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 40-46; Dec. Dig. § 8.]
    2. Carriers (§ 194) — Freight—Liability of Consignor.
    As a rule a consignor with whom a contract of shipment is made is impliedly liable for the freight charges, irrespective of whether he is owner.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.)
    3. Carriers (f 194) — Freight—Liability for Charges — Consignor as Agent.
    While a consignor is ordinarily liable for the freight charges, if the owner is the real consignor, and the person making the shipment, to the carrier’s knowledge, only acts as the consignor’s agent, the owner, and not his agent, is liable for the freight charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.]
    4. Principal and Agent (§ 136) — Liability of Agent — Known Principal.
    An agent is not personally responsible upon a contract made for a known principal.
    [Ed. Note. — For other cases, see Principal and . Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. § 136.]
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by the Chicago, Rock Island & Gulf Railway Company against L. O. Floyd and others. From a judgment in favor of defendant named, plaintiff appeals.
    Affirmed.
    Gustavus & Jackson, of Amarillo, and N. H. Lassiter, of Ft. Worth, for appellant. Synnott & Underwood, of Amarillo, for ap-pellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellant railway company brought suit against L. O. Floyd, the appellee, and D. W. Thomas and S. F. Big-gers, in a justice court in Gray county, to recover $165.58 freight charges on three . cars of watermelons alleged to have been shipped by said parties over appellant’s line of road from McLean, Tex., to Ft. Worth, Tex. A default judgment was rendered against Biggers and Thomas, and a judgment in favor of L. O. Floyd. The railway company appealed to the county court of Gray county, where a like judgment was rendered, from which appellant prosecutes an appeal to this court. It is alleged in substance that L. O. Floyd in'October, 1911, delivered to appellant three ears of watermelons to be shipped from McLean, Tex., to Ft. Worth, Tex., consigned to D. W. Thomas, giving the dates when the cars were to be shipped and the freight rate; that Floyd signed the contracts or bills of lading for the transportation of the melons, on which was indorsed, “Charges guaranteed.” The freight charges were not prepaid by him. It is alleged the defendants therein, Thomas, Biggers and Floyd, were jointly interested in making the shipment, and that L. O. Floyd, in signing the contracts and bills of lading for the shipment thereof, was acting for and on behalf of D. W. Thomas and S. F. Biggers and was the agent for said parties and of each of them. And all of said defendants were partners in making the shipment and each was liable for the freight and demurrage, and, if appellant was mistaken as to the joint and several liability, then that L. O. Floyd is liable for the freight and demurrage charge. It is further alleged' that three cars were transported to Ft. Worth, Tex., and tendered to the consignee .and freight charges demanded, which were not paid but refused and the melons left in charge of appellant. It is alleged that they were sold to the best advantage possible, and, after doing so and crediting the amount received, there was left due appellant on the freight and demurrage the sum of $165.58, the amount sued for. The appellee Floyd pleaded non est factum and denied partnership under oath, setting up specifically that, if the bills have indorsed thereon that Floyd guaranteed the freight charges, then that they had been altered or changed since he signed his name, and further pleads general denial.

There are three bills of lading to three separate cars, dated October 5, 1911, and upon appellant’s form introduced in evidence. The bills of lading each show that the cars of melons were received from L. O. Floyd at McLean, Tex., consigned to D. W. Thomas, destination, Ft. Worth, Tex.; and there is indorsed on the face of each bill of lading in the handwriting of appellant’s station agent at McLean, T. II. Salmon, “Charges guaranteed.” The instruments recite that it is mutually agreed as to each party at any time interested in all or any of said property and of every service to be performed shall be subject to the conditions contained in the contract. L. O. Floyd signed each of the instruments as shipper and T. IJ. Salmon as authorized agent of the Chicago, Rock Island & Gulf Railway Company. The facts show the freight was not paid, and appellant called upon the consignee, D. W. Thomas, at Ft. Worth, Tex., the destination of the melons, and that he did not pay the same and assigned as a reason for not doing so that he did not have the money. Appellant then carried the cars of melons over to Dallas and disposed of them and received therefor $90, and then sued D. W. Thomas, S. F. Biggers, and the* appellee Floyd for the sum of $165.58, the balance due on the freight bills, after crediting the same with the amount obtained from the sale of the melons.

The testimony is practically uncontrovert-ed that L. O. Floyd and Frank Cook raised on appellee’s farm part of the melons shipped in the three cars; that previous to loading the cars they sold their melons to Big-gers and delivered them to him by hauling them in wagons to the railroad, loading them in the cars; that Biggers also purchased melons from two other parties in the neighborhood and employed Cook to haul and load them into the cars with the melons purchased from Floyd and Cook, which made up the three cars. The testimony further shows that Cook and Floyd were paid for their melons by Biggers, through the bank in the town, and also for their services in hauling and loading the. other melons purchased by Biggers. Floyd admitted signing the bills of lading but says that the words “charges guaranteed” were not on the bill when he signed them but were added thereafter. Salmon, the station agent, swears that he wrote the words before Floyd signed the bills and that he1 (Floyd) stood by and saw him do it. Floyd’s testimony is to the effect that he asked Biggers, the purchaser of the melons, to whom he wanted them shipped, and Biggers told him that T. U. Salmon, the station agent, was a partner with him in the melons, and that he would understand to whom and where they should be shipped; that he told Salmon what Biggers had said. This statement was made to Salmon when they were shipping two cars previous to the three in question; that the three cars, for the freight of. which suit is brought, were shipped in the same way, and that the station agent, Salmon, knew that they were Biggers’ melons. The bills of lading were left with Salmon-and no duplicate was given to Floyd, and that he did not know to whom they were shipped and did not know Thomas and had never heard of him previous to that time. He testifies that Salmon directed the loading, and it was done under his direction. He further testified that Salmon told him that he would see that Biggers got the bills of lading, and that he (Floyd) never sent Biggers the bills. There is no testimony in the record showing that Salmon denied the statements made by Floyd on this point, and Floyd’s evidence is all there is in the record on the question. The witness had made arrangements with the bank to pay the freight on the melons before he sold to Biggers; after selling nothing more was done by him about any money to pay the freight.

Appellant assigns error on the third paragraph of the court’s charge to the jury, which is as follows: “If you find that-said bills of lading were changed without the knowledge and consent of defendant L. O. Floyd, after he executed the same in a material manner, yet the said Floyd would be liable for the payment of the freight and other charges claimed by plaintiff unless plaintiff or its agent at the time of shipment knew that the melons shipped belonged to S. F. Biggers or S. F. Biggers and others; but if at the time of shipment said melons did not belong to defendant Floyd, and he had no interest in the same other than to make delivery thereof on the cars, and plaintiff or its agent knew such fact, then the said Floyd would not be liable merely on account of having delivered such melons for shipment, and as to such issue you will find, if you so believe, for defendant Floyd, unless you find for plaintiff under the preceding paragraph of this charge.” In, the preceding charge the court had instructed the jury that they would find for the plaintiff for the freight charges on three cars if they believed from the evidence that the words “charges guaranteed” were written in said contract at .the time Floyd signed the same. Appellant presents the proposition under this assignment that the charge was erroneous because it in effect instructed the jury that Floyd would not be liable for the freight charges on these melons if the plaintiff’s agent knew at the time of the shipment that the melons did not belong to Floyd and that he had no interest in them. Because if he delivered the melons to the railroad company as a shipper of them or agent of the shipper, an implied promise arose that he would pay the charges for their transportation, even though the agent of the railway company knew that he did not own them.

If the bills of lading were not drawn “charges guaranteed” by Floyd when he executed them, and they were afterwards altered, then it would be, in our opinion, a material alteration and would be of no binding effect as to Floyd.

There would be no express agreement to pay the freight, but the liability, if any, would arise upon an implied contract. The rule, as stated in 6 Cyc. p. 500, is: “In general the consignor with whom the contract of shipment is made is liable under the contract for the charges provided for therein. And this liability exists regardless of whether the consignor is the owner and irrespective of the failure of the carrier to collect from the consignee.” The case of Keeling & Field v. Walter Connerly Co., 157 S. W. 232, cites this clause in Cyc., and also Baltimore, Ohio & S. W. Ry. Co. v. New Albany Box & Basket Co., 48 Ind. App. 64, 94 N. E. 906, 96 N. E. 28, and Railway Co. v. Lumber Co., 75 N. J. Law, 878, 69 Atl. 168. All the courts, federal and state, in so far as we know, have recognized this as the general rule, and in no court has the above rule been more clearly announced than by the Massachusetts courts. Wooster v. Tarr, 8 Allen (Mass.) 270, 85 Am. Dec. 707. Yet that court, in the case of Union Freight Ry. Co. v. Winkley, 159 Mass. 133, 34 N. E. 91, 38 Am. St. Rep. 398, held substantially that the consignor, who is acting as the agent of the owner of the property, is not liable for the freight charges when the railway company knew, at thp time of the shipment, the capacity in which he was acting. In discussing the question that court said: “A consignor of merchandise delivered to a railroad for transportation may be the owner and act for himself or may be an agent for the owner and act for him, and this may or may not be known to the railroad company. In the present case the railroad company knew the name and residence of the consignee.” In discussing the question further, that court quoted from the case of Finn v. Western R. R. Co., 112 Mass. 524, 17 Am. Rep. 128, the following: “When carrying goods from seller to purchaser, if there is nothing in ,the relation of the several parties except what arises from the fact that the seller commits the goods to the carrier as the ordinary and convenient mode of transmission and delivery, in execution of the order or agreement of sale, the employment is by the seller; the contract of service is with him; and actions based upon that contract may, if they must not necessarily, be in the name of the consignor. If, however, the purchaser designates the carrier, making him his agent to deliver and transfer the goods, or if the sale is complete before delivery to the carrier, and- the seller is made the agent of the purchaser in respect to the forwarding of them, a different implication would arise, and the contract of service might be held to be with the purchaser.”

The court, in the Winkley Case, supra, commenting upon the above quotation, held that, while that was not a suit for the recovery of freight, yet the principles announced therein would apply, and held that in that state the vendor is presumed to make the contract in his own behalf for the transportation, but that such a presumption was a rebuttable one and may be disproved by evidence, and that the vendee may be held liable as the real principal in the contract. “But, whether the presumption be one way or the other, it is a matter of inference from the particular circumstance of the case, and the question which is always to be considered is the understanding of the parties.” It was announced in that case that the court could not hold, as a matter of law, that the consignor made a contract on his own behalf, but there was some evidence that the understanding of all parties was that the consignee should pay the freight. In Wayland v. Moseley, 5 Ala. 430, 39 Am. Dec. 335, it is held that the shipper of goods, who is impliedly bound by the bill of lading to pay the freight, may show by parol an agreement of the owner of the vessel to look to another for payment.

Without the words “charges guaranteed” written on the bill of lading, there is no express agreement on the part of Floyd to pay the freight. His liability at most would be a legal deduction from the fact of the shipment.

While it is the rule in this state that the consignor is liable for the freight charges and that he may sue for injury to the property in his own name, should the title to the property be in another, we yet believe when the owner himself is the consignor, and the shipper is only his agent in the transaction, and that fact is known to the railway, that the owner, as the consign- or, is liable for the freight charges, and that his agent should .not be held therefor. The facts and circumstances in this ease show that the delivery of the melons on board the cars completed the title thereto in Biggers, who bought and paid for them; that he had left instructions with the station agent to whom and where they should be shipped and instructed Floyd to the effect that the agent would understand to whom the shipment should be made, and the agent consigned them to a man appellee had never heard of and did not know. Appellee signed the bills of lading, and without any question the station agent knew he was acting only for Biggers in billing the cars. The appellant alleges in its petition that the appellee acted as the agent for Thomas and Biggers and for each of them.

Ordinarily an agent is not personally responsible upon a contract made for his principal when the principal is known and the contract is for the principal. The consignor is presumed to be liable for the freight and a party at interest, but that presumption may be rebutted like any other. In this case Biggers was known by the station agent to be the owner, and evidently he had instructed him to consign the melons to Thomas at Ft. Worth, which was done. Appellant tried to collect the freight from the consignee, who under the law was the presumed owner of the melons, but could not. Floyd was merely on employs of Biggers and had parted with the title • to the melons when they were placed on board the cars. These were all facts from which the jury could infer he in fact was not the consignor. The only thing which would make him liable would be “charges guaranteed” written on the bills of lading. Floyd swore he did not sign the bills with that indorsement thereon, and that it was placed there after he signed it. The jury found his statement true. The effect of this was to make him liable as a guarantor when under the facts he was not liable as a consignor, and therefore it was a material alteration and in effect, so far as he was concerned, no contract. We believe the charge of the court, under the facts of this case, was correct.

The second and third assignments complain of the action of the court in refusing special charges to the effect, if Floyd executed the bills of lading, he would be liable for the freight charges and the demurrage, whether the phrase “charges guaranteed” was written in the bills of lading before or after their execution. We believe what has been said heretofore will dispose of these assignments, and they will therefore be overruled.

The case, we believe, was correctly submitted to the jury and will therefore be affirmed.


text:
    FIRST STATE BANK OF PARADISE et al. v. WALLACE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 25, 1913.
    Rehearing Denied Nov. 22, 1913.)
    1. Indemnity (§ 9) — Extent — Attorney's Fee — Action on Contract.
    Plaintiff, in an action upon a contract of indemnity whereby defendant had agreed to pay or discharge his debts, was not entitled to be indemnified for an attorney’s fee paid by him in defending one of thé creditors’ suits pending the transaction.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 16, 17; Dec. Dig. § 9.]
    2. Indemnity (§ 15) — Action foe Beeach— Condition Peecedent — Payment of Debt IN CONTROVERSY.
    Plaintiff, while insolvent, transferred his stock of goods, his accounts, and other property to defendant bank in order to discharge and satisfy certain debts included in a list furnished to the bank, and the bank satisfied such creditors and brought about plaintiff’s discharge for a less sum than the face value of his debts, so that he was not required to pay anything further to such debtors. Held, that the contract to pay plaintiff’s debt was a contract of indemnity only, and that plaintiff, to maintain an action for breach thereof, and to recover the difference between the face of the debts and the amounts paid for their discharge, must show that he paid such debts.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.J
    Appeal from District Court, Wise County; J. W. Patterson, Judge.
    Action by J. W. Wallace against the First State Bank of Paradise and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered for defendants.
    McMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, .for appel-lee.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

Appellee instituted this suit, alleging, in substance, that in March, 1912, he conveyed to the First State Bank of Paradise certain merchandise and other property of the aggregate value of $2,160.30, in consideration for which said bank, acting through its agent, L. W. Clarke, agreed to pay specified debts due wholesale creditors of. plaintiff, aggregating $1,638.79. It was alleged that, in addition to the indebtedness due the wholesale dealers named, the plaintiff owed the defendant bank $1,000, upon which was to be credited the difference between the aggregate amount of the property conveyed to the bank and the aggregate amount of the plaintiff’s indebtedness (viz., $450), and that for the balance of said bank debt plaintiff gave a secured note. It was further alleged that Clarke, acting for the defendant bank, specifically agreed to pay the plaintiff’s said debts, dollar for dollar, but that, contrary to said agreement, Clarke later secured from said wholesale men ac-quittances or discharges from said debts against the plaintiff for 33% cents upon the dollar, and the plaintiff sought to recover the difference between the total amount of his indebtedness and the amount that had in fact been paid as alleged in discharge thereof.

The defendant bank and Clarke answered by general and special exceptions, the general denial, and specially that at the time of the transaction detailed by the ,plaintiff he was insolvent and indebted in a total amount of some $3,027.04, including a debt to' the bank of $1,377.20; that the property conveyed to the bank was in fact worth much less than had been estimated in the agreement, and that “said defendant bank, through its said agent, only agreed to take plaintiff’s stock of goods and his accounts and satisfy the wholesale men to whom the plaintiff was indebted” ; that the plaintiff’s assets and liabilities were at the time fully known to and understood by all of the plaintiff’s creditors, and that the same were insufficient to pay more than about 50 cents on the dollar; that the purpose of the transaction on the part of all concerned was to settle the plaintiff’s debts with such assets as he could produce or give for that purpose, and that their settlement was to be made by Clarke so as to extinguish and relieve plaintiff from the debts; that the transaction was undertaken and carried out with no other intention on the part of the defendants, and that they had in fact fully satisfied all of plaintiff’s said wholesale creditors and extinguishes, the debts owing to them by the plaintiff by the payment of 33% cents on the dollar.

The trial resulted in a verdict and judgment for plaintiff in the sum of $783.53, with interest thereon from March 12, 1912, and defendants have appealed.

We think it quite clear that in no event was the plaintiff entitled to recover the $25 attorney’s fees paid by him in defending one of the creditors’ suits pending the transaction, as was authorized by the court’s charge to which error has been assigned. See Clark v. Mumford, 62 Tex. 535; Turner v. Miller, 42. Tex. 418, 19 Am. Rep. 47. But, as this error might be cured by requiring a remittitur, we will without its particular discussion at once go to the controlling question.

That appellee was indebted in the several amounts specified in the answer of the defendants seems not to be disputed. Nor is it disputed that at the date named he conveyed to the defendant bank a stock of merchandise invoicing $1,560.30 and his equity in the building in which he had been doing business at an agreed value of $500. The evidence, however, was in conflict on the question of the real value of the property so conveyed and as to the terms of the agreement. Appellee testified that the stock of goods was new and fairly worth the invoice prices at which they had been conveyed, as was also his equity in his store building; that Clarke for the bank had agreed to pay the specified debts in full, dollar for dollar. Clarke, on the contrary, testified to a considerable less value for the property conveyed, and that the agreement was merely that he was “to satisfy” the specified creditors. It is also undisputed that at the time of the transaction under consideration appellee furnished Clarke a list of his creditors, upon which Clarke made the following indorsement: “I am to satisfy the wholesale men. L. W. Clarke, Cashier First State Bank.” The court instructed the jury to the effect that, if they found the plaintiff had conveyed the property as he alleged, and that the bank, through its said agent, agreed in consideration therefor that it “would pay off the debts of plaintiff mentioned and set out in his petition, and if you further believe that said defendant bank had failed to fully pay off and discharge all of said debts, then you will find for the plaintiff, and the measure of his damages for such failure to fully pay off and discharge all of said debts (if there was such failure) is the difference between the aggregate amount of plaintiff’s said debts and the aggregate amount paid by said defendant thereon,” with 6 per cent, interest from the 12th day of March, 1912. The court further charged, in answer to a question on the part of the jury, “that by the term ‘pay off and discharge’ as used in the main charge given you is meant to pay in full; that is to say, 100 cents on the dollar.”

Without reference to several other questions presented by the assignments of error and otherwise suggested by the record, we conclude that the plaintiff’s petition is subject to demurrer, and that the court’s charges are erroneous as assigned, for the reason that the basis, of appellee’s recovery as alleged and as submitted in the court’s charge is without support under the law of this state. Appellee seems to have based his suit upon the distinction which has been made in numerous decisions between contracts of indemnity against a liability, or for the performance of some specific thing, and contracts to indemnify or save harmless from the consequences of such liability or failure to perform. It is insisted in behalf of appellee that the obligation of the appellant bank was to pay the specified debts fully, and that, not having done so, the measure of his damages for the breach of the contract was as submitted by the court regardless of the absence of allegation and proof that he had been or would be required to pay anything more or other than had in fact been paid by the defendant in discharge of the debts in controversy. We have examined numerous cases that would seem to support appellee’s contention. See Ham v. Hill, 29 Mo. 275; Israel v. Reynolds, 11 Ill. 218; Risk et ux. v. Hoffman, 69 Ind. 137; Lappen v. Gill, 129 Mass. 349; Bolles v. Beach, 22 N. J. Law, 680, 53 Am. Dec. 263; Wilson v. Stilwell, 9 Ohio St. 467, 75 Am. Dec. 477; Crofoot v. Moore, 4 Vt. 204; Malott v. Goff, 96 Ind. 496; Stuart v. Worden, 42 Mich. 154, 3 N. W. 876; Smart v. Smart, 24 Hun (N. Y.) 127; Ross v. Welch, 77 Mass. (11 Gray) 235; Clark v. Gamwell, 125 Mass. 428.

In our state, however, contracts to pay the debt of another are treated as contracts of indemnity only, and it is held that one complaining of the breach of such a contract must, in order to show himself entitled to recover, show that he has paid the debt in controversy. In the case of Gunst v. Pelham, 74 Tex. 586, 12 S. W. 233, Pelham sold a certain tract of land to one Johnson, who in consideration therefor promised, among other things, to pay a note executed by Pelham to Murchison & Coleman for the sum of $1,052, which was secured by a mortgage upon' the land. Later Johnson sold the same property to Gunst upon the same terms, and, the note of Murchison & Coleman not having been paid, the holders brought suit thereon against the maker, making Johnson and Gunst parties, to foreclose the mortgage. A decree of foreclosure was rendered, pursuant to which the land was sold and brought but a few dollars more than was necessary to satisfy the judgment. Suit was thereupon instituted by Pelham against Johnson and Gunst for the amount of the Murchison & Coleman note, but our Supreme Court held that exceptions to the petition so stating the facts should have been sustained; the court, in an opinion by Associate Justice Gaines, stating: “Upon the conveyance of the property to Johnson, and Johnson assuming to pay the note secured by the mortgage, the plaintiff acquired no immediate right of action against Johnson upon the promise. The promise was to pay the holders of the note, and not him. As between plaintiff and Johnson, by the agreement Johnson became primarily liable to pay the note; but plaintiff could only acquire a right of action against him upon the promise by paying the note himself.” We have not found where the authority of this decision has been disturbed. On the contrary, it has been cited and followed in a later case by the Court of Civil Appeals for the Fourth District. See Gregory v, Green, 133 S. W. 481. Adopting the construction of appellee’s allegations and testimony most favorable to him, it in legal effect but amounts to an agreement on the part of the bank to fully discharge the debts specified in the appellee’s petition. This was the substance of the agreement if not literally its terms. Appellee’s complete discharge was brought about without dispute, and he thereafter was neither required to pay anything nor did there exist any further legal liability on his part with reference to the debts discharged. It would, therefore, so far as shown in the proof before us, seem to be immaterial that the bank brought about the discharge for a less sum than the face value of appellee’s debts which the bank promised to pay. Facts of like legal import do' not appear in any of the eases hereinabove cited as supporting the court’s charge on ap-pellee’s measure of damages. As we read them, they merely proceed upon the assumption that a breach of a contract to pay the debt of another prima facie or presumptively left in full force the liability of the original debtor. But none of them seem to go so far as to give a right of recovery where, as here, it affirmatively appears there remains neither debt nor liability. The case of Ham v. Hill, 29 Mo. 275, supra, indicates otherwise. There it was said by the Supreme Court of Missouri, in reference to the measure of damages for the alleged breach of a bond to pay the debt of another: “If the plaintiff is entitled to recover, we see no reason why he should not recover the sum due by the bond. Of course, if the bond has been paid in part, or otherwise satisfied, the defendant will be entitled to the benefit of such payment or satisfaction. The presumption is that the plaintiff gave full consideration for the bond, and, if it is not discharged, the defendant should pay the amount of it” — thus indicating that it was at least open to the defendant to show an actual discharge of the debts specified in the bond, and thus, also, perhaps, indicating that there is no necessary conflict between the cases first cited and that of Gunst v. Pelham, supra. See, also, 22 Cyc. p. 92.

We conclude that appellee failed to show a right of recovery, and, inasmuch as no other ground of recovery is insisted upon or seems probable, it is ordered that the judgment be reversed and here rendered in favor of appellants.


text:
    LANDERS v. McCUTCHAN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 11, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Appeal and Ereoe (§ 265) — Reservation op Grounds op Review.
    Under Rev. Civ. St. 1911, art. 1990, providing that where a special verdict is rendered, or the conclusions of fact filed by the judge are separately stated, the court shall render judgment thereon unless the same be set aside and a new trial granted, where the trial court’s conclusions of fact were separately stated, there was no exception to any conclusion of fact, no request for any additional finding, and no finding was attacked on appeal for want of evidence sufficient to support it, and the facts found as a whole sustained the judgment, the judgment should be affirmed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. § 265.]
    2. Fraudulent Conveyances (§ 301) — Setting Aside.
    In an execution purchaser’s action to recover the title and possession of land which the execution debtor conveyed to defendant prior to the execution sale, a judgment for the purchaser was not erroneous because of the insufficiency of the evidence to show defendant’s knowledge of the debtor’s indebtedness, or of his intention to defraud his creditors, where the trial court found that the deed to defendant was without consideration and had never been delivered.
    [Ed. Note. — Eor other cases, see Fraudulent Conveyances, Cent. Dig. §§ 904-907; Dec. Dig. § 301.]
    3. Appeal and Erkoe (§ 265) — Reservation op Grounds op Review.
    In an execution purchaser’s action to recover the title and possession of land which the execution debtor had conveyed to defendant prior to the execution sale, a judgment for the purchaser, on the ground that the conveyance to defendant was fraudulent as to creditors, was not erroneous, though the evidence showed an equitable title to the property in defendant at all times by reason of his having furnished the consideration for the purchase of the land by the execution debtor, where there was no finding made or requested on the issue of his equitable ownership, and no exception taken to the failure to find.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. § 265.]
    4. Trial (§ 397) — Findings — Failure to Find — Eppect.
    In an execution purchaser’s action to recover the title and possession of land which the execution debtor conveyed to defendant prior to the execution sale, a finding against defendant on his claim of equitable ownership, based on the claim that he furnished the consideration for the debtor’s purchase of the land, would be implied from the judgment against him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 940-945; Dec. Dig. § 397.]
    5. Fraudulent Conveyances (§ 295) — Suits to Set Aside— Suppiciency op Evidence.
    In an execution purchaser’s action to recover the title and possession of land which the execution debtor conveyed to defendant prior to the execution sale, where though defendant testified to a state of facts showing his equitable ownership of the property prior to the judgment and levy, there was evidence tending to show that the' debtor at all times improved, offered to sell, and treated the property as his own, that soon after making the deed he absconded, and that when defendant was asked to transfer the property to the creditors he made no claim of equitable ownership, but indicated a willingness to make such retransfer #if the debtor was willing that it should be done", a finding against his claim of equitable ownership was supported by the evidence, as he was an interested witness and the court was not bound to believe him.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 727; Dec. Dig. § 295.]
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    Action by J. D. McCutchan against Everett Landers. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Clendenen, Simmons & Cameron, of Ft. Worth, for appellant. C. M. Templeton, of Ft. Worth, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   CONNER, C. J.

This suit was instituted by the appellee, J. D. McCutchan, against appellant, Everett Landers, to recover the title and possession of lots Nos. 16 and 17, block 143 of -North Ft. Worth, Tarrant county. Both parties claimed under O. D. Lan-ders as common source of title. Appellee claimed title by virtue of a sheriff’s deed dated August 6, 1912, made by virtue of an order of sale, issued upon a judgment of a district court of Tarrant county against O. D. Landers, for the sum of $876.80. The appellant claimed under a deed from O. D. Landers to himself, dated November 28, 1911, and also claimed as the equitable owner, arising from the fact, as he alleged, that he furnished the consideration upon which the conveyance to O. D. Landers had been made. Appellee replied with a general denial, and, further, that the deed from O. D. Landers to appellant had been made without consideration, that it in fact had never been delivered to appellant, and that it had been executed by O. D. Landers for the purpose of defrauding his creditors. The trial resulted in a judgment for appellee, and the court filed his conclusions of fact and law.

Appellant insists: First, that the court erred in rendering judgment for the plaintiff, because the evidence is wholly insufficient to show that O. D. Landers was indebted, at the time of the judgment, by virtue of which the sale to appellee was made; second, because the evidence is wholly insufficient to show that the defendant, E. Landers, knew of such indebtedness, if any, at the time that he received the deed to the property; and, third, because “the evidence, and all of the evidence,” shows that the superior equitable title to the property in controversy had been at all times in the defendant E. Landers.

In harmony with previous expressions in the opinions of this court we think we would be justified in entirely disregarding the assignments presented. Article 1990 of the Revised Statutes of 1911 provides that: “In all eases where a- special verdict of the jury is rendered, or the conclusions of fact filed by the judge are separately stated, the court shall, unless the same be set aside and a new trial granted, render judgment thereon.” As already stated, in this case we have the trial court’s conclusions of fact separately stated from his conclusions of law; and, under the statute quoted, it is our duty to render judgment upon the facts so found if in law they are sufficient to authorize the judgment, unless, as stated by the statute, they be set aside. The transcript presents no exception below in behalf of Everett Landers to any conclusion of fact filed by the court, nor does it appear that appellant made a request for any additional finding, nor is any one or more of such findings directly attacked before us for want of evidence sufficient to support it; and, the facts found as a whole being such as in our opinion are amply sufficient to sustain the judgment, it follows that the judgment should be affirmed by force of the terms of the article of the statute quoted.

However, we need not rest our final conclusion upon the view just expressed, for we have examined the evidence, and think it sufficient to sustain the trial court’s conclusions to the effect that not only was O. D. Landers indebted, as evidenced by the judgment against him, at the time of and prior to the time he made the deed to appellant, E. Landers, but also that said deed was made without consideration, for the purpose of defrauding O. D. Landers’ creditors, and had in fact never been delivered to appellant. The findings that the deed from O. D. Landers, under which appellant claims, had been made without consideration and never delivered fully answers appellant’s contention herein that the proof fails to show that he knew of O. D. Landers’ indebtedness, or of his intent to defraud his creditors.

Appellant’s final contention must be overruled for the reasons that there is no finding by the trial court on the issue of appellant’s equitable ownership of the property in question, no request for a finding upon this issue was made, nor any exception taken to the conclusion because of a failure to find upon the issue. Moreover, a finding adverse to this contention must be implied from the judgment against appellant, and we cannot.say that the evidence is wholly insufficient to support such implied conclusion. It is true that appellant testified to a state of facts which would have vested in him the equitable ownership of the property prior to the time of the judgment and levy under which appellee claims, but, he being an interested witness, the court was not compelled to credit him, and there is evidence tending to show that O. D. Landers at all times improved, offered to sell, and otherwise treated the property as his own, that very soon after O. D. Landers made the deed under which appellant claims, he absconded, and that when soon thereafter appellant was approached in behalf of appellee in an effort, to induce a retransfer of the property in question to O. D. Landers’ creditors, appellant made no claim of the equitable ownership now asserted, but on the contrary indicated a willingness to make a retransfer in event, after eommunciation, O. D. Landers was willing that it should be done.

We conclude that the trial court’s conclusions of law and fact should be adopted and the judgment affirmed.


author: FLY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. WALKER.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 17, 1913.)
    1. Appeal and Eerob (§ 882) — Invited Er-boe.
    In an action against a railroad company, where it set up contributory negligence, and the court charged generally on that issue, its request of a special charge on that issue will not, upon the theory of invited error, preclude it from attacking on appeal the sufficiency of the evidence to warrant any verdict in favor of plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    2. Raileoads (§ 350) — Crossing Accidents —Look and Listen.
    The failure of a person to stop, look, and listen before going upon a railroad crossing will not render him guilty of negligence as a matter of law.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    3. RailRoads (§ 348) — Crossing Accidents —Evidence—Sufficiency.
    In an action against a railroad company for personal injuries received at a crossing, evidence held sufficient to support a judgment for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Ganahl Walker against the International and Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & Cobbs and Texas Schramm, all of San Antonio, for appellant Reagan Houston, Perry J. Lewis, and H. C. Carter, all of San Antonio, for appellee.

      P«r other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This suit was instituted by appellee to recover damages alleged to have been sustained by him from personal injuries inflicted through the negligence of appellant. It was alleged that appellee was crossing appellant’s railroad, in an automobile, in San Antonio, at a public crossing on Woodlawn avenue, a much used highway, and that appellant failed to give any signals of the approach of the train, and negligently ran into the automobile and injured ap-pellee. Appellant charged contributory negligence upon the part of appellee. A trial by jury resulted in a verdict and judgment in favor of appellee for $5,000.

There are but three assignments of error, all - of them assailing the sufficiency of the evidence to sustain any verdict in favor of appellee, and consequently necessitates a review of the whole testimony, unless appellant has lost the right, as insisted by appellee, to have the testimony reviewed by this court, by reason of having requested charges grouping the facts as to contributory negligence. We do not think that the rule of invited error can be applied to a case like this, where ' the court had submitted the question of contributory negligence in the general charge, and appellant merely followed it up with a special charge on the same subject. How appellant, who insisted in the lower court that appellee should not recover, because of his contributory negligence, is precluded’ from raising that question in this court on account of asking a charge on the subject on the trial below does not appear to this court. That seems to be the theory advanced in Railway v. Smith, 155 S. W. 361, but it will not be applied in this case. The doctrine of invited error has always been upheld by this court, but none of the opinions of this court cited by appellee goes to the extent of the case above cited. If appellant had contended in the lower court that there was no evidence of contributory negligence, and then had asked a charge embodying that theory, it might be said that the right to raise that question in this court had been lost, but appellant insisted in the trial court that there was contributory negligence on the part of appellee, and can so insist in this court, no matter how many special charges it requested.

The evidence of appellee shows that he was driving an automobile, occupied by him and Mrs. Mamie Turley, eastward on Woodlawn avenue, San Antonio, and as appellee endeavored to cross the track in front of a swiftly moving train, the automobile was struck by the locomotive and injured. It was about 11 a. m. that the accident occurred. Appellee testified that he did not see nor hear the train until he was 10 or 12 feet from the track; that the bushes were so thick near the track that they obstructed his vision so that he could not see the train until sharp, rapid blasts of the whistle were given, when it was so close that he could not stop his automobile. The train was, at the time the blasts were given, 50 or 75 feet from the crossing. No signals had been given before those mentioned. The train was going south; that is, going into the city of San. Antonio. The train was moving rapidly. After trying to stop his car appellee put on speed in an attempt to cross over, finding that he could not stop before reaching the crossing. 1-Ie testified: “I say when I first saw,the train it was 50 or 75 feet away from me, coming towards me very rapidly, and that was when I was abqut 10 or 12 feet distant from the track, and I chose the course that I thought was safest; if I had continued to try to stop, I knew it was a certainty of getting hit, because I would have been right in the middle of the track, and I was afraid that my ear would stop right on the track, and I thought the safer course in the emergency was to try to get out of the way.” Appellee did not stop, look, or listen as he approached the crossing. Appellant seems to have been exceeding the rate of speed prescribed by the ordinances of the city of San Antonio, and’ if the testimony of appellee is to be credited, the statutory signals'were not given by appellant on approaching the street crossing.

The jury has found that appellant was guilty of negligence, and that appellee was not guilty of contributory negligence. Whatever may be the rule in the states from which the numerous cases cited by appellant have been selected, it is not the rule in Texas that it is negligence per se for a person not to stop, look, and listen before going upon a railroad crossing. A failure to use such’ precautions is a matter of fact to be considered by a jury. The overwhelming weight of authority in Texas is to the effect that, in the absence of a statute, the failure of a person approaching a railroad crossing to stop, look, and listen does not render him guilty of contributory negligence as a matter of law. The authorities on the subject are collated in volume 5, Encyclopedic Dig. Tex. Rep., Tiñe, Crossings, pp. 731, 732.

The judgment is affirmed.


author: HARPER, J.

text:
    MURGATROYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    Appeal and Erkor (§ 509) — Record—Notice op Appeal.
    An appeal will be dismissed where the record contains no notice of appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2317; Dec. Dig. § 509.]
    Appeal from Bexar County Court; J. R. Davis, Judge.
    Mrs. Nellie Murgatroyd was convicted of an offense, and she appeals.
    Dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

The record before us contains no motion for new trial and no notice of appeal. Neither does it contain any statement of facts nor any bill of exception.

As the record contains no notice of appeal, the case must be dismissed.


text:
    SHAW v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.
    Rehearing Denied Dec. 23, 1913.)
    1. Homicide (§ 309) — Sudden Anoer — Feab —Adequate Cause — Manslaughter—Evidence.
    In a prosecution for homicide, accused’s testimony held insufficient to raise the issue of sudden anger or fear aroused by adequate cause, and, the state’s evidence indicating a plain case of murder, the court did not err in omitting to charge on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dee. Dig. § 309.]
    2. Homicide (§ 300) — Instructions—Issues.
    Where accused, on returning from a hunting expedition armed with a gun, met decedent on a railroad right of way and there engaged in an altercation with decedent and shot him, the court did not err in omitting to charge that, when accused saw decedent on the railroad right of way, he had the right under the law to arm himself and go and demand an explanation of decedent’s prior threats, etc.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    3. Homicide (§ 188) — Evidence—Pkiob INCARCERATION OF DECEDENT.
    Where, in a prosecution for homicide, there was no offer to prove that, prior to the killing, decedent’s wife had informed accused that her husband had served a two-year term in the penitentiary, accused was not entitled to prove such fact by decedent’s wife.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    Appeal from District Court, Kaufman County; F. L. Ha whins, Judge.
    Fred Shaw was convicted of murder, and he appeals.
    Affirmed.
    Fred S. Rogers, of Kaufman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was' prosecuted and convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life.

Appellant earnestly insists that the court erred in failing to submit manslaughter in his charge, and of course this in every ease depends upon the evidence adduced. If the evidence presents no “adequate cause,” then manslaughter does not arise. The state’s evidence would show that deceased lived in a four-room house on Mr. Crittenden’s place; he and his wife occupying two rooms of the house, and Nathan (¿hartley and his wife, Susana, occupied the other two rooms. About one week before appellant killed the deceased, one night Susana Chartley left her home and went to the house occupied by appellant. He returned home with her, when Nathan Chartley had some words with his wife and appellant. The next morning Mr. Crittenden was informed of the matter, and he went to appellant, so he says, and informed him that he must keep off of his place. Annie McCullough says at the request of Susana Chartley she told appellant “that Susana told me to tell him not to come on Mr. Crittenden’s place any more; that Nathan Hicks (deceased) had told Mr. Crittenden that he (appellant) had disturbed the peace.” Joe Cleavey testified: That he and deceased worked at the oil mill in Forney. That deceased worked in the daytime and he worked at night. That he had requested deceased to loan him a dollar, and deceased had promised to do so that evening. That when he went to work that evening he saw deceased going down the railroad track towards his home. That appellant was a short distance behind deceased. He (Joe) called to deceased, and requested deceased to meet him at the fence. Deceased turned and started back towards him, and, when he got even with appellant, he heard appellant say, “Nath, you told Mr. Crittenden that I disturbed the peace out on that place and I am going to kill you;” and as deceased turned around appellant fired and killed him. That deceased said nothing and attempted to do nothing. That deceased had his dinner bucket on one arm and his pipe in his right hand.

Appellant testified that Mr. Crittenden had said nothing to him about not coming on the place again, but that Annie McCullough told him that- deceased had said he had instructed his (deceased’s) wife to leave the house when he (appellant) came out there; that appellant was out there running after Susana Chart-ley; that if he (appellant) came out there again he (deceased) was going to do him up; and that Mr. Crittenden had said for him to stay away as he was disturbing the peace. He further testified that on the day of the killing he had been hunting, and on his way home came up with deceased on the railroad track, and, to use his own language, the killing occurred under the following circumstances: “Me and Nathan wé met up there and when we met up there I spoke to him, says, ‘Howdy, Nath.’ He says, ‘Howdy.’ I says: ‘Say, Nath, I heard about some remarks you made about what you are going to do to me, and I heard that you went and told Mr. Crittenden that I came out there and disturbed peace. I don’t know whether it is so or not Don’t think hard of me. I don’t mean no fuss or nothing like that. I don’t want to disturb no peace with you,’ which I didn’t do it. I didn’t aim to start no fuss with him or nothing like that. To tell the truth about it, I was half afraid of him because he had already told me himself that he had been to the pen, and he would sooner go again. That is the reason I was a long time about going having a talk with him. I says, ‘If that is so, Nath, I wish you would tell me.’ He says, ‘Aw, nigger, go ahead.’ I started to walk off from him.. I says, ‘No, I will ask him and see for certain whether he did do this talk.’ I says, ‘Nath, did you tell Mr, Crittenden that I came out there and disturbed peace?’ He said to me, said, ‘Let’s see.’ He says, ‘Tes, I want you to stay away from my house.’ I says; ‘Well, can I not come out there for nothing? That is my own cousin I come out there to see. I ain’t bothered you in any way. I don’t think you are treating me right talking around and talking about what you are going to do to me, anything that way. I don’t think you are treating me right.’ Joe Cleavey called him. He turned and started towards Joe. I says: ‘Did you tell him that? Did you tell Mr. Crittenden that I came out there and disturbed peace?’ He turned around and started back towards me. He says, ‘Cod damn you, don’t you like it?’ I told him no, and he commenced feeling for his knife or something and started towards me. I backed off from him. He kept coming. I backed out of the track, outside in the dreen we had been cutting there. I backed out of the track. He kept coming. I says, ‘Nath, you had better get back.’ I told him the second time. I says, ‘Get back.’ He would not do it. He had his hands in his pocket this way. He was coming out with it and I shot then. „ He fell with both hands in his pockets. That is the way I left him with his hands in his pocket. I told him the second time to get back.”

To take the state’s evidence, it is a plain case of murder, and we do not think the defendant’s own testimony raises the issue of sudden anger or fear aroused by an adequate cause, and under such circumstances the court committed no error in failing to charge on manslaughter. The court presented the issue of self-defense from apparent danger, as it appeared to defendant, in a clear and lucid manner and in a way not complained of by appellant.

The only other complaint of the charge is that the court erred in failing to tell the jury ‘‘that, when defendant saw deceased on the right of way of the railroad, then he had the right under the law to arm himself and go and demand an explanation.” This issue was not raised by the testimony. Appellant himself testified that he had been hunting and explained the possession of the gun in that way.

The only ground in the motion for a new trial complains of the action of the court in refusing to permit him to prove by deceased’s wife that deceased had served a two-year term in the penitentiary; that he had been sent from Smith county. Appellant does not state that he expected to prove by the witness that she had informed him of that fact prior to the killing. If he had stated that he had expected to prove by the witness that she had informed him (appellant) of this fact before the killing, it would have been admissible. ) But it was not an issue in the case whether or not deceased had served a term in the penitentiary. The court permitted appellant to testify that he had been told by deceased' himself that he had served a term in the penitentiary, and the state in no way questioned this testimony. Appellant also testified that he had been informed that deceased was a dangerous man, but the witnesses whom he questioned on this point testified that they had never heard of deceased’s reputation being that of a dangerous and violent man. The testimony of thb wife of deceased that he had been in the penitentiary might tend slightly to support the testimony of appellant that he had been informed by deceased that he had served a term in the penitentiary; but, as the state did not question that fact, it is not such a matter as will call for a reversal of the case.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    CHAPPELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    1. Criminal Law (§ 1159) — Appeal — Verdict — Evidence.
    A conviction supported by evidence will not be disturbed pn appeal, though other evidence introduced would have authorized an acquittal.
    [Ed. Note. — Eor other cases, ‘see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    2. Criminal Law (§ 598) — Continuance-Absence op Witnesses.
    An application for a continuance for absence of witnesses was properly denied for lack of diligence in attemptiing to procure their attendance, where the first process issued for the only two witnesses who failed to appear was not served upon them because they were not in the county, and the second was issued on the day of trial, though defendant knew that such witnesses had left the county and resided at certain other places in the state.
    [Ed. Note. — For other cases, see Criminal Law, Cent..Dig. §§ 1335-1341; Dec. Dig. § 598.]
    3. Criminal Law (§ 942) — New Trial — Newly Discovered iavidenoe.
    A motion for new trial on the ground of newly discovered evidence was properly denied in a criminal case¡ where it appeared that not only was such evidence impeaching, but that proper diligence had not been exercised to procure it at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Sid Chappell was convicted of carrying a pistol, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   PRENDERGAST, P. J.

Appellant was indicted, tried, and convicted for unlawfully carrying a pistol, and the jury assessed his punishment at the lowest prescribed by law— a fine of $100.

The evidence by the state was amply sufficient to sustain the conviction. Two witnesses testified positively that appellant had on his person, at the time charged, a pistol. He denied this, and introduced several witnesses, tending to show, and who testified, that he did not have a pistol oh this occasion, which was amply sufficient to authorize the jury to acquit him, but this matter was for the lower court and the jury; and, they believing the state’s witnesses and not his, this court cannot reverse on that account.

Appellant contends that the court erred in overruling his motion for a continuance. The record shows this state of facts: The indictment against appellant was filed May 7, 1913, in the district court. On the same day the district court entered a proper order transferring the case to the county court. The proper transcript was made out and filed in the county court on May 10th. On the same day the clerk issued the proper capias, which was executed on the 12th by the sheriff arresting the appellant, and his then giving bond to appear on July 7th following—the first day of the next term of court. Appellant had no process for any witness issued until June 16th. Then he had it issued for six witnesses. All of these witnesses appeared and testified in the case, except two. When the case was called on July 7th for trial, he then made a motion for a continuance on account of the absence of four of said witnesses, two of them, as the record shows, afterwards appeared and testified in the case, but two did not. The record further, without contradiction, shows that appellant and these two absent witnesses were residents of the same little town in that county, and had been for a long time prior thereto and afterwards. He knew that they were the most important witnesses he had. His motion for continuance shows that their testimony was material. One of these witnesses, Yester Hagler, a married man with a wife and two children, who lived in the same little town that appellant lived in, and appellant knew it, left the town for Ft. Worth, and went to Ft. Worth to his uncle’s to obtain employment on June 14th, two days before appellant had his first process for this witness issued, and at the time of the trial he was still in Ft. Worth, and had not returned to his home; that his other witness, Eugene Weeks, who also lived in the said same little town, and had for many years, left there and went to Sanger in Denton county on May 30th, and remained there and was there until after this trial. Appellant had no other process issued for these witnesses, or either of them, to the county of their residence, or to Denton or Tarrant county, where they had respectively gone, until the very day that his case was called for trial and was tried. These facts affirmatively show such a clear lack of diligence on the part of appellant to in no way entitle him to a continuance on account of these witnesses, or either of them. Giles v. State, 148 S. W. 321.

Appellant has but two complaints. One is to the overruling of the motion for continuance above discussed. The other is his claimed newly discovered evidence. He presents the affidavit of a witness by whom he expected to prove newly discovered evidence. The proposed testimony would go solely to impeach one of the state’s witnesses. The record also shows no sufficient diligence to discover this testimony, and does not show such diligence as is necessary to entitle him to a new trial on that account, even if the testimony had not been solely for impeachment purposes. No error is shown by the court’s overruling the motion for new trial on that account. Gray v. State, 144 S. W. 283.

There being no errof shown, the judgment is affirmed.