author: HIGGINS, J.

text:
    KALMANS v. BAUMBUSH et al.
    (No. 598.)
    (Court of Civil Appeals of Texas. El Paso.
    June 29, 1916.)
    I. Judgment <&wkey;423 — Oonolusiveness—Er-roneous Judgment — Character oe Belief.
    Although judgment under Bev. St. § 1999, in suit to recover a cow, erroneously required delivery of the cow, instead of payment of her value, which was under $50, so that the ease was not appealable from the county court, it was not void and subject to direct attack in a proceeding to enjoin its enforcement.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 797-801; Dee. Dig. <i&wkey;423.]

      2: Judgment <&wkey;423 — C'ONOLUfiivENESs—Er-roneous Judgment — Character of Belief.
    If judgment is rendered by a court of competent jurisdiction, error therein does not render it void, or subject to be set aside, except for fraud, accident, or mistake, though the amount in controversy is so small as to prevent appeal.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 797-S01; Dec. Dig. <&wkey;>423.]
    Appeal from Harris County Court; Clark 0. Wren, Judge.
    Suit for injunction by L. Kalmans against Gus Baumbush and another. From an order refusing temporary injunction, plaintiff appeals.
    Affirmed.
    Sam, Bradley & Fogle, of Houston, for appellant. Atkinson, Graham & Atkinson and J. E. Garrett, all of Houston, for appellees.
   HIGGINS, J.

Baumbush filed suit in a justice court of Harris county against Kal-mans to recover a cow, of the alleged value of $50. Judgment was there rendered in favor of Baumbush, and Kalmans appealed to the county court. Upon trial in the latter court a verdict was returned in favor of Baumbush, and judgment rendered in his favor for the cow and costs of suit. The judgment directed that a writ of possession for the cow be issued. Motion for new trial was filed by Kalmans, which was overruled by the court, and the judgment became final. A writ of sequestration was issued in the cause at its commencement, and the cow was taken into the possession of the sheriff thereunder. Kalmans replevied the same.

The present suit was filed by Kalmans against Baumbush and M. F. Hammond, sheriff of Harris county, alleging that a writ of possession for the cow and execution for costs had been issued in the cause and placed in the hands of Hammond, who was about to execute the same, and a temporary injunction was asked, restraining the enforcement of such writs, and that upon final hearing the injunction be made final. This appeal is prosecuted from an order refusing the temporary injunction.

It is contended that the judgment entered in the original suit was unauthorized and improper for various reasons, which may be briefly summarized as follows: (1) Because it was a suit for personal property, and in such case under article 1999, Revised Statutes, a judgment for restitution of the specific property was improper and unauthorized, because the pleadings, evidence, and verdict did not show that the cow had an especial value to plaintiff. (2) That the judgment should have been for the value of the cow under the provisions of article 7106, Revised Statutes.

From the statement made, it is manifest that in effect this is a proceeding to set aside the judgment entered in the original suit and to stay the process which was therein ordered issued. It may be conceded that the judgment which was entered in the cause was erroneous, in view of the provisions of the statutes quoted. But such error could be reviewed and corrected upon appeal or writ of error only. The failure to observe such provisions did not render the judgment void, nor was it sufficient ground to set the same aside in a direct proceeding such as this. Its status in this respect is not altered by the fact that the amount in controversy was so small that an appeal did not lie from the judgment of the county court. Railway Co. v. Flow, 149 S. W. 1081.

It frequently happens that erroneous judgments are rendered, from which an appeal will not lie; but if they are rendered by courts of competent jurisdiction, such error does not render the same void, nor can they be set aside in a direct proceeding, except for fraud, accident, or mistake. In the instant case, the court had jurisdiction, and there is no allegation that the judgment was founded upon fraud, accident, or mistake. The injunction, therefore, was properly refused.

Affirmed.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    TYLER v. SMITH.
    (No. 916.)
    (Court of Civil Appeals of Texas. El Paso.
    June 15, 1916.)
    Appeal and Error &wkey;>627(3) — Transcript of Becord — Failure to File in Time.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1608, providing for filing of transcript in Court of Civil Appeals within 90 days from the performance of appeal, providing for filing thereafter for good cause shown, and article 1610, providing that on failure to file transcript, upon the filing by the appellee of a certificate of affirmance, the Court of Appeals shall affirm judgment, unless good cause be shown why such transcript is not filed, where judgment was entered for appellee on December 16, 1915, motion for new trial was overruled on December 28th, and notice of appeal and appeal bond were filed January 18, 1916, but the transcript was not filed in the Court of Civil Appeals within 90 days, the judgment will be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744r-2747, 2749; Dec. Dig. <@=j627(3).]
    Appeal from District Court, Beeves County; S. J. Isaacks, Judge.
    Action between J. L. Tyler and Brooke Smith. From the judgment, J. L. Tyler appeals. On motion to affirm on certificate. Motion granted, and cause
    affirmed.
    Culp & Culp, of Gainesville, and Jno. B. Howard, of Pecos, for appellant. Wilkinson & McGaugli, of Brownwood, for appellee.
   HARPER, C. J.

This is a motion to affirm on certificate. It shows that the term of the district court of Reeves county convened on the 19th day of November, 1915, and adjourned on the 29th day of December, 1915; that a judgment was entered in the cause in favor of appellee on the 16th day of December, 1915, for $2,572.41, and motion for new trial was overruled December 28, 1915, and appellant gave notice of appeal; that the appeal bond was filed January 18, 1916. The transcript was not filed in this court within 90 days, as provided by article 1608, Vernon's Sayles’ Statutes of Texas, and, in accordance with article 1610 of said statutes, appellee moves this court to affirm.

The motion is granted, and cause affirmed.
      <§uwFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. HENDRICKS.
    (No. 7598.)
    (Court of Civil Appeals of Texas. Dallas.
    June 17, 1916.)
    1. Appeal and Error <&wkey;756 — Briefs—Sufficiency.
    Where appellant’s brief contains no statement of the nature and result of the suit, nor any assignment of error, proposition of law, or statement of fact, no issue is presented for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. <&wkey;756.]
    2. Trial &wkey;>350(4) — Special Interrogatories — Applicability.
    In action on policy insuring against death “from the effect of bodily injury sustained solely through external, violent and accidental means,” where the sole issue of fact was whether insured’s death resulted from the effects of sticking a nail in his foot, it was proper to refuse to submit an issue whether insured died because “he stuck a nail in His foot and was said injury the sole cause of his death,” in lieu of an issue actually submitted whether it was “caused solely through external, violent and accidental means,” since the jury may have believed that his death did not result from sticking the nail in his foot, but from the “effects” therefrom ; and the evidence being undisputed that insured stuck the nail in his foot by external, violent, and accidental means, the use of the exact words of the policy, instead of the term employed in the refused charge, was immaterial, since both conveyed the same meaning.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 829; Dec. Dig. <&wkey;>850(4).]
    3. Costs <&wkey;260(4) — Damages for Delay-Grounds.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1629, allowing appellee 10 per cent, additional on the amount in dispute as damages upon affirmance, where appeal is taken for delay by defendant, damages will not be allowed unless it appears that the grounds of alleged error are so frivolous that there could have been no reasonable expectation that the judgment would be reversed.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 986-991, 996; Dec. Dig. &wkey;260(4)J
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by Pallie L. Hendricks against the Commonwealth Bonding & Casualty Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 168 S. W. 1007.
    W. W. Nelms and El J. Gibson, both of Dallas, for appellant. John W. Pope and M. L. Morris, both of Dallas, for appellee.
   RASBURY, J.

At the time appellee filed her brief in this case, which was but one 'day prior to submission, appellant hud not filed brief, though the appeal in other respects had been perfected in accordance with law. As a consequence and in compliance with rule 42 of this court (142 S. W. xiv), appellee briefed the case so as to show the correctness of the judgment. In addition and by appropriate proposition, appellee suggested that the appeal was taken for delay and sought an affirmance of the judgment with 10 per cent, additional on the amount in dispute as damages under authority of article 1629, Vernon’s Sayles’ Civ. Stats. Preceding submission, but on submission day, appellant filed its brief. The brief so filed does not contain a statement of the nature and- result of the suit, any assignment of error, proposition of 'law, or statement of fact. The brief being thus defective, no issue is presented for consideration.

However, the suggestion by appellee that the appeal was taken for delay, and that as-a consequence she is entitled to the statutory 10 per cent, damages, requires this court,, even in the absence of briefs for appellant, to examine the record and ascertain that the substantial merits of the controversy have been attained. Rule 43 (142 S. W. xiv).

The suit was upon an accident insurance policy, which insured W. Price Hendricks, appellee’s husband, among other things, against death from the effect of bodily injury sustained, while the policy was in force, solely through external, violent, and’ accidental means. In case of death $1,200 was agreed to be paid to appellee, who, in event of death, was the beneficiary. While the policy was in force, Hendricks, who was employed in a grocery store, while lifting a box into a delivery wagon, stepped upon an exposed nail driven through a board. The nail entered the bottom of the foot and nearly penetrated it upwards. Later he died. Suit was commenced upon the policy and judgment recovered in the lower court, which, upon appeal, was reversed by this court. Commonwealth Bonding & Casualty Co. v. Hendricks, 168 S. W. 1007. After reversal the case was again tried, resulting also in verdict for appellee, from wMetn tlie present appeal is taken.

We have examined the record and conclude that the substantial merits of the controversy have been attained. It is contended by appellant as is disclosed by its motion for new trial in the lower court, in effect, that the verdict of the jury is not supported by the evidence, and, if there is supporting evidence, then that the verdict of the jury is against the great weight and preponderance thereof. The only issue of fact in the court below was whether Hendricks’ death resulted from sticking the nail in his foot or from other and independent causes. The evidence on that issue consisted largely of the opinions of physicians testifying as experts. Their opinions conflicted radically. It was the exclusive duty of the jury to reconcile that conflict, and, having done so, we are without authority to disturb it.

The case was submitted to the jury upon special issues, one of which inquired of the jury whether Hendricks’ death was “caused solely through external, violent, and accidental means.” In lieu of the issue so submitted, appellant requested the court to submit to the jury whether Hendricks died because’ “he stuck a nail "in his foot and was said injury the sole cause of his death?” The requested issue was refused, and such refusal was assigned as error in the motion for new trial. As we have said, the sole issue of fact was whether Hendricks’ death resulted from the effects of sticking the nail in his foot, or as provided by the policy from the effects of “external, violent or accidental means.” By the refused charge appellee could have recovered only if her husband’s death resulted from sticking the nail in his foot, while by the policy she was entitled to recover if death resulted from the “effects” of sticking the nail in his foot. We think the charge was properly refused as not correctly presenting the real issue, since the jury may have believed that his death did not result from sticking the nail in his foot, but from the “effects resulting” therefrom. All the evidence of the experts was in support of the latter theory.

We also conclude, the evidence being undisputed that appellee’s husband, stuck the nail in his foot by external, violent, and accidental means, that the use of the exact words of the policy in submitting the means by which the injury was received, instead of the term employed in the refused charge, was immaterial, since both conveyed the same meaning.

On the issue of statutory damages, we conclude, notwithstanding our examination of the record, including all the evidence adduced, shows that none of appellant’s issues presented in its motion for new trial should be sustained, that they are not so clearly without merit as to justify the conclusion that the appeal was not taken in good faith and that appellant had no reasonable ground to believe that the judgment would be reversed. The rule in such cases is that damages will not be allowed unless it appears ‘that the groimds of alleged error “are so frivolous that there could have been no reasonable expectation * * * that the judgment would be reversed.” Texas Furniture & Trading Co. v. Melott, 136 S. W. 541.

The judgment is affirmed.
      ig=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURT, J.

text:
    CAMDEN FIRE INS. ASS’N v. BAIRD et al.
    (No. 7556.)
    (Court of Civil Appeals of Texas. Dallas.
    May 20, 1916.
    Rehearing Denied July 1, 1916.)
    1. Acoobd and Satisfaction <&wkey;17 — Evidence — Sufficiency.
    Where the insurer offered to pay $385 on a policy loss of $500, and the insured agreed to accept it, but on tender of such sum refused it, there was at most an accord without satisfaction, and such facts were not a defense to the suit on the policy.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. § 123; Dec. Dig. &wkey;> 17.]
    2. AccoRD and Satisfaction <&wkey;17 — Evidence — Sufficiency.
    The general rule is that action on the orig-nal claim may be maintained, where it appears there was an accord, but no satisfaction, unless the agreement to execute the accord was accepted in lieu of performance.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. § 123; Dec. Dig. <S== 17.]
    3. Insurance <&wkey;582 — Liability—Claims.
    Where the trustee, to whom an insurance policy was payable as his interest might appear, in suit on the policy by the owner, answered, disclaiming interest, the owner’s right to recover the full amount due under the policy, was established, and not cut off by his disclaimer.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1448-1451, 1453, 1454, 1485; Dec. Dig. &wkey;?582.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by Emma C. Baird against the Camden Fire Insurance Association and another. Judgment on directed verdict for plaintiff, and for C. H. Versckoyle, defendant, for costs, and defendant Insurance Company appeals.
    Affirmed.
    Senter & Synnott, of Dallas, for appellant. Short & Feild, of Dallas, for appellees.
   RASBURT, J.

Appellees sued appellant upon a policy of insurance issued by appellant, insuring Martha Beaupre against all direct loss or damage by fire to the two-story frame building at 901 West Ninth street, Dallas, Tex., in an amount not to exceed $500. Appellees alleged that while the policy was in force the insured premises were totally destroyed by fire, and that at the time of the fire they were the owners of the insured premises and the beneficiaries in the policy, by assignment witb. appellant’s consent, and that after the fire they observed and performed all things required of them by the policy, and that appellant, after investigation, offered them a sum of money less than the face of the policy, which'they refused.' Appellees also alleged that, while any loss under the policy was payable to 0. I-I. Ver-schoyle, trustee, as his interest might appear, who was made a party defendant, he in fact had no interest in the loss.

Appellant did not deny the issuance of the policy, but pleaded accord and satisfaction thereunder, alleging in that connection that the parties, after investigating the loss, and after appellees had made formal proof thereof, adjusted same and agreed upon the sum of $385.71 as appellees’ damages, which amount was thereafter tendered appellees, which they refused, and which tender was repeated on trial. There were other defenses pleaded by appellant, which were, upon presentation of demurrers, held insufficient to constitute a defense to the suit. Exceptions to that action will be noted when considering appellant’s assignments bringing same into review.

O. H. Verschoyle, trustee, appeared and answered that he was interested in the loss only as trustee, hut in that respect made no claim to same, nor ashed any affirmative relief against either appellant or appellees.

At trial the following undisputed facts were proven: Appellees tendered in evidence the policy issued originally to Martha Beau-pre, but which by successive assignments, consented to by appellant and following the mutations of the insured premises, named appellees as beneficiaries, with the loss payable to O. I-I. ’Verschoyle, trustee, as his interest might appear. Mrs. Emma O. Baird testified that she was the owner of the premises described in the policy of insurance, that they were completely destroyed by fire prior to suit, and that nothing had been paid on the loss. On cross-examination she testified that at the time of the fire there was another policy of insurance on the premises in the sum of $3,000 in the New Jersey Fire Insurance Oompany. Counsel for appellant tendered her a proof of loss, the signature to which she identified as hers, and which was the proof of loss mentioned in that portion of appellant’s pleading held insufficient, and which will herein be referred to. Appellant, declining to amend its pleading, was not permitted to offer further testimony, whereupon the court instructed the jury to, and they did, return verdict for appellees for the amount of the policy, and in favor of Ver-schoyle, trustee, for costs. Judgment was in accordance with the verdict, from which entry this appeal is prosecuted.

The first assignment of error challenges the court’s action in sustaining what was in substance a general demurrer to the second paragraph of appellant’s answer. The proposition advanced is that the facts therein alleged, if true, presented the defense of accord and satisfaction, and hence should have been submitted to the jury for determination. The facts so alleged were in substance that after the fire appellant agreed to pay, and appellees agreed to accept, $385.71 in full of all claims under the policy; the consideration being that appellant had a good defense to appellees’ claim under the policy. Thereafter, and in accordance with said agreement, appellant tendered appellees the amount agreed upon, which was refused. By the pleading such tender was repeated.

The facts related do not in law constitute a defense to appellees’ right to recover upon the policy of insurance, since they at most show an accord without satisfaction. The general rule is that action on the original claim may be maintained, where it appears there was an accord, but no satisfaction, unless the agreement to execute the accord was accepted in lieu of performance. 1 C. J. 530, § 17; 1 R. C. L. 199, §§ 35, 36. The facts recited in that portion of appellant’s answer, to which we have referred show an unexecut-ed or unsatisfied accord, which is not enforceable, and fail to show that appellant’s promise to satisfy dr execute the accord was accepted in lieu of performance or satisfaction, which would have made the accord enforceable. The rule stated is long settled and uniformly applied in this state. McGehee v. Shafer, 15 Tex. 198; Overton v. Conner, 50 Tex. 113; Gulf, etc., Ry. Co. v. Gordon, 70 Tex. 80, 7 S. W. 695; Gulf, etc., Ry. Co. v. Harriett, 80 Tex. 73, 15 S. W. 556; Miller v. Consolidated Elec. St. Ry. Co., 104 Tex. 57, 133 S. W. 866. The rule is, in our opinion, conclusive of all other issues arising under said assignment, as well as appellant’s second assignment, and for that reason we pretermit further discussion of the same.

The third assignment of error complains of the court’s; action in sustaining what was also in -substance a general demurrer to the third paragraph of appellant’s answer. The contention is that the facts recited in said paragraph presented a good defense to the suit. Those facts, which are accepted as true on demurrer, were in substance that, while the policy was issued to appellees,-the loss was payable to C. I-I. Verschoyle, trustee, to secure the National Surety Company against loss on an indemnity bond written by it in favor of Mrs. Beaupre, to whom the policy was originally issued, and that neither Verschoyle nor the National Surety Company claimed or asserted any liability against appellant under the same.

Conceding the facts related to be true, yet they tend rather to establish than disprove appellees’ right to maintain the suit. The policy attached to appellees’ petition, the issuance and delivery of which was not denied by appellant in its answer, insured the building for the benefit of Mrs. Beaupre, with the loss payable to Verschoyle, trustee, as his interest might appear. Based upon transfers of the property, appellees by successive assignments of the policy, consented to by appellant, through its agent, C. H. Yerschoyle, became subrogated to the rights of Mrs. Beaupre, and entitled to recover thereon for the full amount, unless it was made to appear that Yerschoyle had some interest in same. Andrews v. Union Central Life Ins. Co., 92 Tex. 584, 50 S. W. 572. He was made a party to the suit and claimed no interest whatever in the proceeds.

The contention that appellees could not recover, because Yerschoyle, or the National Surety Company, had no interest in the policy, is without support in the contract (the policy) or in law. Appellant insured the property, and agreed to pay any damage thereto by fire to appellees, after having first satisfied any daim of Verschoyle, trustee. Yerschoyle might or might not have had an interest therein. Hence it was necessary for him, when made a party, to assert his interest. He in effect disclaimed any interest at all. Both appellant and appellees also denied that he had any interest in same. Thereupon the full amount was due appellees, in the absence of other available defenses. Such was the holding in Andrews v. Insurance Co., supra.

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


author: McMEANS, J.

text:
    HARRIS COUNTY v. SMITH.
    (No. 7172.)

    (Court of Civil Appeals of Texas. Galveston.
    May 23, 1916.
    Rehearing Denied June 8, 1916.)
    1. Sheriffs and Constables <®=28 — Condensation — “Next Preceding City Election” — Statutory Provisions.
    In Acts 25th Leg. Sp. Soss. c. 15 (10 Gam-mel’s Laws, pp. 1482-1484), amending 10 Gam-mel’s Laws, pp. 1445-1453, § 10, limiting fees to be retained as compensation by constables to $1,200 per annum in cities of more than 15,000 inhabitants, “to be determined by the next preceding city election on the basis of five inhabitants for each vote cast,” the words “next preceding city election” do not mean the election next preceding the passage of the law, but the election next preceding the date upon which the constable assumed the duties of his office; the purpose of the Legislature being to provide a flexible test from election to election following the changes in population of cities.
    [Ed. Note. — For other eases, see Sheriffs and Constables, Cent. Dig. §§ 45, 49, 51, 54^56, 58; Dec. Dig. <®=28.
    For other definitions, see Words and Phrases, Second Series, Next Preceding.]
    2. Sheriffs and Constables <$=28 — Compensation — “Next Preceding City Election” — Statutory Provisions.
    Such words refer to regular or general elections for the election of city officers, held at fixed intervals, and not to special elections.
    [Ed. Note. — For other eases, see Sheriffs and Constables, Cent. Dig. §§ 45, 49, 51, 54-56, 58; Dec. Dig. <S=28.j
    3. Sheriffs and Constables <s=28 — Compensation — Statutory Provisions.
    The power of the Legislature to fix fees or compensation of constables, or methods of ascertaining fees, is not limited by the Constitution.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 45, 49, 51, 54r-56, 58; Dec. Dig. <§=28.]
    4. Statutes <§=188.— Construction — Language Used.
    The intention of the Legislature as to a law is to be determined primarily from the plain and ordinary import of the language used.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 266,’ 267, 276; Dec. Dig. <S=.
    Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Action by the County of Harris against F. 5. Smith. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Sewall Myer and John H. Freeman, both of Houston, for appellant. John H. Crooker, B. T. Branch, and Gill, Jones & Tyler, all of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

The county of Harris brought this suit against F. S. Smith and the sureties on his official bond to recover alleged excess fees collected and retained by Smith from November 8,1908, to November 30, 1910, during which period he was constable of precinct No. 1 of Harris county.

The petition alleged that during the period mentioned there were two justices of the peace in precinct No. 1, Harris county, and that from 1907 through 1911, which included the time when said Smith was constable, the city of Houston, in Harris county, had a population in excess of 15,000; that at the election in 1896, which was the next preceding city election before the passage of chapter 15, General Laws, Special Session of the Twenty-Fifth Legislature 1897, there were cast more than 3,000 votes, but that at no time since the passage of the act had there been cast in any city election held in said city as many as 3,000 votes; that nevertheless during all said time the city of Houston actually contained' more than 15,000 inhabitants, which fact was shown by the United States census of 1890, 1900, and 1910; that during his tenure of office the said Smith had collected $7,013.48 as fees, and had failed and refused to account to the county for the same or any portion thereof.

A general demurrer urged by the defendant to the plaintiff’s petition was sustained, and, the plaintiff declining to amend, its suit was dismissed by the court, and from the judgment of the court sustaining the demurrer and dismissing its suit, the plaintiff has appealed.

Appellant’s only assignment of error is based upon the action of the court in sustaining the general demurrer to its petition. The real question presented is whether the facts alleged brought the constable’s office within the operation of the fee law. The law in question was passed at the Special Session of the Twenty-Fifth Legislature in 1897, being chapter 15 of the Acts of that Legislature, and may be found in volume 10 of Gammel’s Laws of Texas, pp. 1482 to 1484, and in the Session Acts on pages 42 to 44, which act is amendatory of section 10 of an act passed by the same Legislature found in volume 10, Gammel’s Laws of Texas, pp. 1445 to 1453.

Section 10 of the act as amended provides the maximum amount of fees that certain county officers may retain as compensation for their services, and further provides:

“Justices of the peace, an amount not exceeding $1,500 per annum; constables, an amount not exceeding $1,200 per annum: * * * Provided, that this act shall not apply to justices of the peace and constables, except those holding offices in cities of more than 15,000 inhabitants, to be determined by the next preceding city election on the basis of five inhabitants for each vote cast at such election.”

It is alleged in the petition that the city of Houston during the period in which appellee held the office of constable actually contained more than 15,000 inhabitants, and that this fact was shown by the United States census for 1890, 1900, and 1910. The effect of the demurrer was to admit the truth of these allegations. The contest therefore arises on whether the test prescribed by the Legislature by which the population of the city of Houston is to be determined shall stand as the only means of ascertaining the number of inhabitants of said city in fixing the compensation or fees of justice of the peace and constable, or whether resort may be had to other means to establish the number of its inhabitants for such purpose.

The first proposition advanced by appellant is that, where the petition disclosed on its face that at the city election in 1896 more than 3,000 votes were cast, and that such election was the election next preceding the passage of the law in question, a constable holding office in a precinct containing such city thereby became subject to the terms of such law, and his fees o'f office are governed thereby.

We cannot agree to this contention. Clearly, we think, the words “next preceding city election” do not mean the election next preceding the passage of the law, but the election next preceding the date upon which the constable assumed the duties and functions of his office; in other words, the election next preceding the occasion which gives rise to its application. State v. District Court, 84 Minn. 377, 87 N. W. 942. We think the purpose of the Legislature was to adopt a flexible test which would, from election to election, disclose approximately the population of the city as it might be affected by the growth and vicissitudes of cities in this state, and that this purpose is sufficiently reflected from the language employed.

The second contention is that the proviso in the act in question is indefinite and uncertain, and therefore void and inoperative, in that it does not provide what character of city election is meant, that is, whether an election to vote on bonds, or to vote on referendum and recall, or charter amendments, or for election of mayor and commissioners, or for special election, regular election, or general election, and, further, because it does not state .what event or thing the election referred to shall precede.

We think the language of the proviso admits only of the construction that the election referred to was the regular or general elections in the city for the election of city officers which are required to be held at fixed intervals, and not such other elections which, although the city might have the authority to order and hold them, might never be held, because the contingency upon which the holding of them depends might never arise. We think, as before stated, that the event or thing the election referred to shall next precede is the assumption of the officer of the duties of his office after he shall have been clothed with the authority to perform them.

The next contention is that the proviso in question is inoperative and void because the rule prescribed therein for determining population is unreasonable, arbitrary, fictitious, and faulty, and defeats the purpose of the act and the intent of the Legislature in passing the act.

The language of appellee’s counsel in combating this contention is so apt, and so well meets the views of this court, that we adopt the same as our reasons for ruling adversely upon this contention of appellant:

“In the first place, the body of the fee bill did not apply and was not intended to apply to justices of the peace and constables. Those justices of the peace and constables who came within the provisions of the body of the bill under the language used by the Legislature were only those who held an office in a city of more than 15,000 inhabitants, as determined by the next preceding city election on a basis of five inhabitants for each vote. Now, there can be no question that the Legislature had the power to either include or exclude justices of the peace or constables, taking into consideration the varying and changing populations of cities in this new and growing country. Th.ey had the right to adopt such a test of population as would change with the changing population of cities, and to refuse to adopt a test which was applied only every ten years, as is the federal census, and which, as a matter of common knowledge, was not only the source of much difference of opinion and discontent, but the result was not usually officially announced until a long time after the count was made. The Legislature knew what was then and is now a matter of common knowledge, that on account of the dominance of the Democratic party in Texas the real voting strength appeared in the primaries, and not in the general election for state officers, but they also knew what was a matter of common knowledge at that time, that in city affairs it was not usual for the vote to be divided along party lines. * * * It followed that in city elections the vote was more nearly a full vote than in state elections, and so as to state and county officers they prescribed a different test, to wit: In this case the national census and a vote at a fixed time, and after that fixed time as to counties containing cities having a population of 25,009 or more, the general blanket provision that the federal census should control was applicable, but it affected only county and state officers, inasmuch as it applied to a situation not in which the officer held his office in the confines of the city, but in which a county or state officer held office in a county having a city of 25,000 population or more. So it appears clearly that the Legislature purposely and deliberately chose its words and made its meaning very plain. It intentionally chose that as to the population of cities in which constables and justices of the peace resided and held office that there should be a test which should vary from time to time, but that in those cases in which the population of entire counties was involved the federal census, which is taken every ten years, should be the basis of calculation. That such was the legislative intent is further emphasized by the manner in which section 10 is separated into articles in the Revised Statutes of 1911 (article 3881 et seq.). The Legislature could not have made its meaning more clear, or its purpose more plain, if it had foreseen this lawsuit and this contention, and the brief of appellant concedes to the Legislature the power to choose this or any other test. Appellant seeks to present the question that the Legislature acted improvidently and without due consideration, and that the provision in this case defeats the general purpose of the law. It may in this case defeat the general purpose of the law as applied to the last city election. So also if they had adopted the state election, or an election conducted by the Democratic party, for the reason that it might so happen that the contest was of such small importance or involved so little feeling that a full vote would not be brought out. It will be borne in mind that the only census of population official in its nature that is taken is the federal census. States and cities take no such census. They do keep an official list of votes at elections prescribed by law. They do take a scholastic census of the school population of cities and counties, but the actual enumeration of inhabitants, as stated above, is taken only by the federal authorities, and that once every ten years, and the only other basis that we know of would be the private census taken by those who make city directories, and even in that case it is not an actual count of population, but furnished a mere basis for calculation, as the vote was intended to do in the law under consideration.”

The authorities cited by the appellant in this connection do not sustain its contention. In Brooke v. Dulaney, 100 Tex. 86, 93 S. W. 997, the law there under construction presented the question as to whether the statute did not impair the mandate of the Constitution. The Legislature undertook to say that in counties having more than a certain population the district clerk should perform the duties of the county clerk, and there should be no county clerk. The Legislature adopted as the test of population 5 inhabitants for every vote cast for Governor at the last preceding general election. It turned out under this test that Panola county appeared to have less than 8,000 population, when, as a matter of fact, and by the federal census, it had a much larger population. The Supreme Court, after holding that the Constitution, as to the population of counties, prescribed a federal census as a test, further held merely that the constitutional right depended on the actual population of the county; that the case showed that the actual population was much larger than the population as disclosed by the test prescribed by the Legislature; and that the Legislature had no power to deprive the county of a constitutional right by adopting a test which failed to disclose at least approximately the true population of the county. In the present case the rights and limitations created by the law and the test of population are strictly within the power of the Legislature, because the power of the Legislature to fix fees or compensation of constables is not limited by the Constitution; hence the inquiry is as to what the Legislature intended to say or do. The proviso appears in both the original act and in the amendment in the same language as quoted above, and we think that it is thus made clear that the language was intentionally employed by the Legislature. To put upon the language used a construction different from that warranted by its plain terms would be to construct and not to construe the law; and this the courts are not at liberty to do. Blythe v. Ayers, 96 Cal. 532, 31 Pac. 924, 19 L. R. A. 40.

The fourth contention is that the intent and purpose of the lawmakers in passing the act in question being to limit fees of office, and fees of constables holding office in counties containing cities having in fact more than 15,000 inhabitants, the courts will construe the act so as to effectuate such purpose and intent.

It is true that one of the fundamental canons of statutory construction is that:

“The courts will enforce the intent of the statute rather than to follow the strict letter of the act.” Forshey v. Railway, 16 Tex. 528; Weber v. Rogan, 94 Tex. 68, 54 S. W. 1016, 55 S. W. 559, 57 S. W. 940.

The effect of the general demurrer was to admit as true the allegation that at the time in question the city of Houston had more than 15,000 inhabitants. It was clearly the purpose of the Legislature to limit the fees of constables in cities of 15,000 inhabitants only when such population should be ascertained in a certain manner. But by whom, or by what manner was the question of population to be determined? The Legislature might have provided that the last preceding federal census should control, or that the question might be determined in some way other than by a vote at a city election. There existed no constitutional restrictions upon its power in this regard, and, if in its wisdom it believed, and so enacted, that the test prescribed should be upon the basis of 5 inhabitants for each vote cast, why should the courts say that this plainly declared intention should be made to yield to the equally clear intention to apply the law in counties having a city of a certain population? We think the intent of the Legislature that the law should apply in cities having more than a designated population is not more clearly expressed than is the intent that such population should be determined in a particular manner. The intention of the Legislature is to be determined primarily from the plain and ordinary import of the language used; and, if the language is plain and unambiguous, there is no room for construction. Fire Association v. Love, 101 Tex. 380, 108 S. W. 158, 810. Certainly the language of the proviso providing the method by which the population is to be determined is free from ambiguity. The adoption of the method of ascertainment was a matter of policy clearly within the constitutional power of the Legislature, with which the courts are not concerned. Clark v. Finley, 93 Tex. 179, 54 S. W. 343.

The fifth contention is that the courts, in construing statutes, should try out the right intendment of the law, and, in order to do this, they should ascertain the mischief the law was intended to remedy, and, after ascertaining this, to observe and follow the intent of the law, although it may conflict with the language actually used. This is a practical repetition of the fourth proposition, and what we have said in disposing of it sufficiently disposes of the fifth proposition.

The sixth and seventh propositions, even if abstractly correct, furnish no reason for giving the proviso a construction contrary to that we have above given it.

The eighth proposition is without merit, we think, and is overruled without further comment.

We find no error in the record, and the judgment of the trial court is affirmed.

Affirmed.
      @^>For other cases see same topic and KEY-NUMBEIR. in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    CHANNELL CHEMICAL CO. v. HALL.

    (No. 7555.)
    (Court of Civil Appeals of Texas. Dallas.
    June 10, 1916.
    Rehearing Denied July 1, 1916.)
    1. Principal and Agent <@=>89(5) — Commissions — Actions—Pleading.
    A petition setting out the contract between plaintiff and defendant for commission agency, the amount of goods sold, the amount of commissions due, defendant’s promise to pay, and that the sum is past due and unpaid, and had been demanded and refused, to which an exhibit of sales, amounts, purchases, etc., is attached, is sufficient as against demurrer.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 233, 234; Dec. Dig. <@=> 80(5).]
    2. Corporations <@=^308(11) — Commissions— Questions for Jury.
    Where the commission agent testified that the president of the corporation principal orally authorized departure from terms of written contract, that question was for the jury.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1347, 1348, 1349; Dec. Dig. <@=> 308(11).]
    3. Corporations <@=3432(12) — Powers of Agent — Evidence.
    A corporation president, who signed a written contract of employment of plaintiff, is sufficiently shown to be the agent of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762; Dec. Dig. <@=>432(12).]
    4. Damages <@=>228 — Excessive Verdict — Remittitur.
    Error in awarding an agent an excessive judgment for commissions is cured by requiring him to file a remittitur of the excess.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 576-579 ; Dec. Dig. <@=>228.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by J. W. Hall against the Channel Chemical Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Saner, Saner & Turner, of Dallas, for appellant. Cocke & Cocke, of Dallas, for ap-pellee.

      Writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellee brought this suit against the appellant to recover the sum of $2,659.75, commission earned in the sale of merchandise manufactured by the appellant as per contract. Appellant interposed a general demurrer, certain special exceptions to the sufficiency of the first amended original petition, a general denial, and further answered, admitting the execution of the contract, but denied that the appellee performed and carried out the contract according to its terms, and alleged, in making his pretended sales, or in taking his pretended orders, that appellee agreed and stipulated with the purchasers thereof that the goods should be shipped and held for a certain time, during which the appellee agreed to demonstrate and sell said merchandise and guaranteed the sale of same; that, claiming the benefit of such stipulation, many of the purchasers of said merchandise returned same for credit to the total value of $4,723, upon which amount the appellee was not entitled to any commission. Appellant further alleged that upon the request of the appellee it agreed to permit him to employ demonstrators, and that because of his financial inability to pay them it agreed to advance the money necessary therefor, which it did in the total sum of $3,293.84, and that after the allowance of all commissions to which appellee was entitled, and the deduction of commissions on goods returned, and of moneys paid to him and advanced for demonstrators, the appel-lee, plaintiff in the original suit was indebted to appellant in the sum of $132.05. Appellee thereupon filed his first supplemental petition, same being a general demurrer, a general denial, and a special denial to appellant’s original answer. The general demurrer and special exceptions of appellant having been overruled, to which action of the court the appellant in open court duly excepted, the case was submitted to the jury on special issues, which returned its verdict thereon. Upon appellee’s motion, judgment was rendered' for appellee for $2,556.46.

Conclusions of Fact.

The agreement entered into between appellant and appellee was as follows:

“Chicago, Ill., Dec. 12, 1911.
“This agreement, entered into by and between Channell Chemical Company and J. W. Hall: Whereas, J. W. Hall has agreed to cover and advertise the products of the above company in the states of 'Mississippi, Alabama, Georgia, Florida, the .eastern naif of Louisiana, and the western half of Tennessee, and the eastern half of Arkansas: In consideration of J. W. Hall devoting his time to same, the Channell Chemical Company agrees to sell him O-Cedar Polish King Mops at 65 cents each f. o. b. in the above territory, and O-Cedar Polish in 25c, 50c, $1.00, $1.50 and $2.50 sizes at 55% off the above list net, and also pay to him a commission of 35% on all orders he sells to the retail trade, the discount to the retail trade to be 33%% f. o. b. delivery, 2% 10 days net 30, the Channell Chemical Company to carry the accounts. This contract covers all towns in the above-stated territory for a period of six months, where the population is 25,000 or more, and four months where the population is less than 25,000, after he has started to advertise said towns. No orders to be accepted from retail dealers for less than $25. The Channell Chemical Company agrees to pay a commission to J. W. Hall after the above-stated period of 20% on all orders taken direct for new customers, 15% on all reorders taken direct, and 10% on all mail orders coming from above-stated territory. The above commission to be based on 33%% off the retail price. The Channell Chemical Company agrees to pay on all jobbing orders, at a discount of 33%% and 20, 2% ten net 30, f. o. b. delivery, 10% for all orders taken direct, and 5% on all mail orders coming from the above territory. This contract to continue in force as long as J. W. Hall devotes his entire time to the sales of the above products. Signed in duplicate, the day and date above written.
“[Signed] Channell Chemical Company,
“C. A. Channell, Pres.
“J. W. Hall.”

After this agreement was signed, the appellant, by its president, C. A. Channell, authorized the appellee to make sales of the goods or products and to guarantee in the name of appellant the sale thereof to the purchasers. In pursuance of said contract and said authorization by the president, ap-pellee sold goods and products for appellant and earned commissions which amounted to the sum of the judgment entered. Part of the goods sold by appellee were guaranteed as per the instructions of the president, which were returned to appellant.

Conclusions of Law.

The court did not err in overruling appellant’s general and special demurrers.

1. The appellee in his petition sets out the contract between him and the appellant, also the instruction given by the president, that he made sales in accordance therewith, the amount of goods sold, and the amount of commissions due him, the promise of appellant to pay same, that the account was past due and unpaid, that it had been demanded, but appellant had failed and refused, and still refuses, to pay same, except a credit, and prays for judgment, etc. An exhibit as to date of sales, amounts, purchases, etc., is made a part of the petition. The petition, we think, fully notified appellant of the nature and cause of action, and was sufficient as against the demurrers.

2. The trial court did not err in submitting to the jury the issue:

“Was there or not an oral agreement made between the plaintiff and defendant at Memphis, Tenn., subsequent to the written contract which is dated December 12, 1911, by which the defendant agreed to pay plaintiff a commission on all orders for goods shipped by the defendant, whether such goods were returned by the customer or not?”

This was answered in the affirmative. This issue was raised by the evidence. Channell was the president of the appellant company, and authorized appellee to sell the goods upon such terms. This was testified to by appellee. Whether or not the fact existed was a question for the jury.

3. It is complained that there was no evidence that Channell was an agent and authorized to make such an agreement. In this contention we do not concur. Channell, as agent of the company, signed the original contract. The appellee charged in his petition that feuch an authorization had been given to sell on such a guarantee. This allegation was not denied by appellant. Nor was there any denial by appellant that Channell was the president of it, or that he was not authorized to give instructions to so sell.

4. The other assignments attack the findings of the jury, in that they are not supported by the evidence. We think this complaint is without merit, as the evidence clearly warrants the findings of the jury, and there is no error in their finding.

5. The jury were authorized to find that appellee was entitled to commissions on the sale of goods sold on a guaranty and which were returned to appellant.

G. Complaint is made that the verdict is excessive. If the evidence shows that the judgment was excessive in any amount, the court required the appellee to make a remittitur of said amount, which was done, and such error, if any, was thereby cured.

7. Finding no material error of record, and the evidence supporting the judgment, it is affirmed.
      <@=>For other oases see same topic and KEY-NUM1SER in all Key-Numbered Digests and Indexes


author: BUCK,- ’J.

text:
    SMITH v. WISE COUNTY.
    (No. 8371.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 6, 1916.
    On Motion for Rehearing, June 17, 1916.)
    1. Counties @^74(3) — Oeetoeks—Estoppel.
    That plaintiff knew when he became a candidate for the office of county treasurer and when he qualified that the commissioners’ court did not intend to allow him the maximum compensation fixed by statute does not estop him from claiming such compensation, so long as the commissioners’ court failed to give legal effect to its intention by passing an order fixing his commissions, as directed by statute, and thus reducing compensation.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dec. Dig. ®=»74(3).]

      2. Counties <@^>74(3) — County Treasurer — Salary of — Orders.
    By an order of February 26, 1907, the commissioners’ court directed that the county treasurer should receive, for his services for the year ending November 28, 1907, such commissions on the amount of funds he might receive and disburse as when added to the commissions received on the school funds and the commissions already received would aggregate a total of $1,600. The same order likewise declared that from November 2Sth, until the commissioners’ court might change it, the treasurer should receive 1% per cent, for receiving and the same for disbursing county funds. By orders of 1909 and 1911, it was directed that the treasurer should receive the same compensation as he had the previous years, being $1,600, while by order of 1913, the commissioners’ court directed that the county treasurer should receive a salary not to exceed $1,400 per year. Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 3873, declares, that the county treasurer shall receive commissions on money received and paid out by him, said commissions to be fixed by orders of the commissioners’ court, and not to exceed 2% per cent., while article 3875 fixes the maximum compensation which a treasurer can receive at $2,000 per annum. Held, that as the commissioners’ court has no power to fix the compensation of the county treasurer at a designated salary, and as the orders subsequent to 1907, made no attempt to fix the rate of commission, the treasurer was entitled to commissions at the rate of 1% per cent, on moneys received and disbursed until they equaled the sum of $2,000 per annum.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dee. Dig. <©^74(3).]
    3. Limitation of Actions <@=566(3) — Running oir Statute — Period of Statute.
    While Rev. St. 1911, art. 1366, declares that no county shall be sued unless the claim upon which suit is founded shall have first been presented to the county commissioners’ court for allowance and such court shall have neglected or refused to allow it, a county treasurer can, after expiration of his term of office, recover commissions accruing and due only for a period of two years before institution of suit; for as, despite the statute, suit may be maintained against a county within a reasonable time after presentation of the claim, the county treasurer by delay in presenting his claim cannot stop the running of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 355, 356; Dee. Dig. <@=^ 66(3).]
    On Motion for Rehearing.
    4. Counties <@^74(3) — Officers — Treasurer-Salary.
    An order fixing the salary of the county treasurer at a stated sum per annum cannot be maintained under Rev. Civ. St. art. 3873, as one fixing a rate of commissions on moneys received and disbursed; for, until the expiration of the year, the rate of commissions could not be determined.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dec. Dig. <@=574(3).]
    5. Counties <@=574(3) — Treasurers — Salary.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3873-3S75, declaring 'that the county treasurer shall receive commissions on moneys received and disbursed, to be fixed by the commissioners’ court, not exceeding 2y2 per cent., and that ho shall not receive fees in excess of $2,000, the commissioners’ court cannot fix a county treasurer’s total compensation as such at a sum less than the $2,000 specified by statute, though it may fix any commission it desires.
    . [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 106-108; Dec. Dig. <@=574(3).]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Action by R. D. Smith against Wise County. From a judgment denying part of the relief sought, plaintiff appeals.
    Reformed and affirmed.
    McMurray & Gettys, of Decatur, for appellant. R. E. Carswell and M. W. Burch, both of Decatur, for appellee.

      Writ of error pending in Supreme Court.

   BUCK,- ’J.

On December 2, 1914, R. D. Smith sued Wise county for $1,950, alleged to be the balance due him as compensation as county treasurer for the four years beginning November 10, 1910, and ending November 16, 1914. He alleged that the commissioners’ court of Wise county had not fixed his compensation at any rate less than 2% per cent, on receipts and disbursements, fixed by statute as the maximum compensation, and that under the statute, in the absence of any legal action of the said commissioners’ court fixing the compensation at a lower rate, he was entitled to the maximum compensation provided by statute, to wit, $2,000 per annum; the receipts and disbursements for each of said four years being more than sufficient to entitle him to that amount. Defendant, in its answer, admitted the election of plaintiff and his four-year tenure of office as county treasurer, and admitted that for each of said four years his compensation, based on 2% per cent, commission, would have exceeded $2,000, but alleged that by certain orders of the commissioners’ court, hereinafter to be set out, the compensation of plaintiff had been legally fixed at a less sum than $2,000 per annum, to wit, at $1,600 for each of the first three years, and at $1,400 for the last year. The defendant further pleaded an estoppel, in that plaintiff had accepted and entered into the office of county treasurer, knowing that his compensation had been fixed at the sum mentioned. The orders of the commissioners’ court relied on were set out in defendant’s answer and were introduced in evidence, and are as follows:

(1) “2—16—07. It is ordered by the court that the following officers be allowed the amounts opposite their names as ex officio salaries for one year: Sheriff, $500; district clerk, $250; county clerk, -; county judge, $400. The county treasurer of Wise county shall receive, as compensation for his services for the year beginning November 28, 1906, and ending November 28, 1907, such commission on the amount of funds he may receive and disburse as when added to the commissions he receives on the school funds and the commissions he has already received on other funds as will aggregate him a total fee of $1,600, and in no event shall his commission from all sources amount to more than $1,600 for said year. And it is ordered that from November 28, 1907, until the commissioners’ court may change it, he shall receive 1% per cent, for receiving and 1% per cent, for disbursing county funds.”
(2) “2 — 12—1909. It is ordered by the court that all the county officers’ ex officio be same as the last two years, except the county judge, who is to receive $1,000 per annum, and the county treasurer is to receive the same compensation that he received for the last two years, being $1,600 per year.”
(3) “2 — 17—1911. It is ordered by the court that the treasurer’s salary be $1,600 per year, the same as last year.”
(4) “2 — 11—1913. It is ordered by the commissioners’ court of Wise county, Tex., that the following officers be allowed the following ex officio for the next two years: E. M. Allison, county judge, $1,000 per annum; J. P. Williams, county clerk, $400 per annum; Sam Faith, $500 per annum; Buck Smith, treasurer, salary not to exceed $1,400.”

Defendant further pleaded the two-year statute of limitation. The cause was tried before the court without the intervention of a jury, and judgment was entered for plaintiff in the sum of $50, from which judgment the plaintiff appealed.

The court filed his findings of fact and conclusions of law, which findings included matters hereinbefore stated, as to plaintiff’s election and tenure, the orders of the commissioners’ court, etc., and, further: (1) That the commissioners’ court placed the construction on said orders that plaintiff’s commission for the first three years of his tenure was to be 1% per cent, on receipts and disbursements, not to exceed $1,600 a year, and for the last year, at the same rate, not to exceed $1,400. The plaintiff acquiesced in such construction of said orders, in so far as the first three years were concerned, and settled with the county and made his quarterly reports to the court on that basis, and he did not claim any more compensation for such years. (2) That he made settlement for the last year, “withholding a commission of 1% per cent, of his receipts and disbursements until same amounted to $1,400, after which he withheld or received nothing more, and his final report as treasurer was aptproved and he was settled with by the court on that basis, and no protest or further claim was then made by plaintiff.” (3) “When the order of the court reducing the treasurer’s compensation was made February 11, 1913, the plaintiff protested against the same, his objection, as stated to the court at the time, being that when he was elected and qualified the salary was $1,600 a year, and that the court had no right to reduce the same, also urging his financial necessities. He made no complaint or objection to the form of the order, nor had he to that of any previous order, and if he had done so, the court would have taken counsel and made the order in proper form, it being the purpose and intent of the court by said orders to legally fix the maximum compensation of the county treasurer first at $1,600 and then at $1,400 a year, computed on a percentage of i%.” (4) “During each and every year of plaintiff’s four-year tenure the receipts and disbursements of county funds, upon which by law the county treasurer is entitled to commission, were more than sufficient in amount to produce a commission of over $2,000 each year, when computed at the rate of 1% per cent.” (5) “Prior to November 16, 1906, the county treasurer of said county received a straight commission of 2% per cent, on county funds (other than school funds) received and disbursed by him, but whether by order of the commissioners’ court or by virtue of the statute was not made to appear.”

Our state Constitution, article 16, § 44, provides for the election of a county treasurer, who “shall have such compensation as may be provided by law.” Article 3873, Vernon’s Sayles’ Texas Civil Statutes, reads as follows:

“The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners’ court as’ follows: For receiving all moneys, other than school funds, for the county, not exceeding 2% per cent., and not exceeding 2% per cent, for paying out the same; provided, however, he shall receive no commissions for receiving money from his predecessor nor for paying over money to his successor in office.”

Article 3874, Id., provides that the county treasurer shall be allowed 1% per cent, for disbursing the school funds of a county, and by article 3875 the maximum compensation allowed the county treasurer is limited to $2,000.

Since it is found by the trial court that the commission of 1% per- cent, on funds- received and disbursed by plaintiff during each year of his tenure of office would exceed the maximum allowed by statute, the questions before us for determination are: (1) Was plaintiff estopped from claiming the maximum compensation allowed by statute because of his acceptance of the office under the circumstances stated, i. e., with the knowledge that the commissioners’ court had entered the orders set out of date February 16, 1907, and February 12, 1909, prior to his entry into office in November, 1910, and the order of February 17, 1911, prior to the entry under his second term? (2) Did the commissioners’ court, in passing the orders aforementioned, legally exercise its authority given under article 3873, supra? (3) Was the plaintiff barred by the two-year statute of limitation from recovering any or all of the claim asserted in his petition?

We think the answer to the first question is determined by the authority of Montgomery County v. Talley, 169 S. W. 1141 (writ of error denied in 176 S. W. xv), in which the following language is used:

“The fact that appellee knew when he became a candidate for the office’ and at the time he qualified as county treasurer that the commissioners’ court did not intend to allow him the compensation fixed by the statute did not estop him from claiming and retaining such compensation so long as the commissioners’ court failed to give legal effect to its intention by passing an order fixing his commissions as directed - by the statute.”

See, also, 34 Cyc. 1051, and authorities under note 49; Woodall v. Insurance Co., 79 S. W. 1092; Insurance Co. v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84, 35 L. Ed. 860; Insurance Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1014; Harms v. Insurance Co., 172 Mo. App. 241, 157 S. W. 1046.

With reference to the second question presented, it is held in the Talley Case, cited above, that a commissioners’ court, acting under the authority delegated by article 3873, supra, would have no power to fix the compensation of the county treasurer at a designated salary, as in exercising its authority in this respect said court would be limited by the statute, which empowers it only to fix the rate of commission for moneys received and disbursed. See, also, Hill County v. Sauls, 134 S. W. 267; Slaughter v. Hardeman County, 139 S. W. 662.

In so far as it affected the compensation to be received by the county treasurer, the order of the commissioners’ court of February 16, 1907, provided: (a) That the salary for the year ending November 28, 1907, should not exceed $1,600. This attempted limitation is not involved in this suit, for it was specially made to apply only to that year, (b) But that portion of said order, reading, “That from November 28, 1907, until the commissioners’ court may change it, he (the treasurer) shall receive 1% per cent, for receiving and 1% per cent, for disbursing county funds,” did not purport to fix any maximum compensation, except as to the rate of commission, and under said order the compensation was only circumscribed by the statutory maximum of $2,000, as the court found that for each of the four years of the plaintiff’s tenure the commissions of 1% per cent, would have aggregated more than the $2,000. By the terms’ of the order of February 12, 1909, the compensation of the treasurer was not changed from that “received for the last two years.” In so far as such order purported to fix a salary or stated sum, to wit, $1,600 per annum, it must be held, under the authorities cited, to be invalid. The same may be said with reference to the order of February 17, 1911, and the order of February 11, 1913, fixing a “salary not to exceed $1,400.” Therefore, unless barred by the statute of limitation pleaded by defendant, plaintiff would be entitled to receive the full amount claimed, to wit, $1,950. The majority of us, at least doubt the authority of the commissioners’ court to fix a maximum compensation below that prescribed by statute, except as it may be limited by the rate of commission fixed, with which conclusion Associate Justice Dunklin does not agree, but we do not find it necessary to decide this question.

As to the last question presented, we are of the opinion that the statute of limitation would preclude a recovery for any amount further than for commissions accruing and due and payable under his second term of office, and for the two years preceding the date suit was filed, to wit, December 2, 1914. Appellant presented his claim to the commissioners’ court, in the sum sued for, on November 25, 1914, and on the 27th thereafter it was by said court rejected. Appellant urges that the statute of limitation did not begin to run until such disallowance by the court, and cites, in support of this contention, article 1366 of the Revised Civil Statutes, which provides that:

“No county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance, and such court shall have neglected or refused to audit and allow the same or any part thereof.”

He also cites the case of Leach v. Wilson County, 62 Tex. 331. This case held that, where the county court, in May, 1872, allowed and audited plaintiff’s claim, and a warrant was issued therefor, and subsequently, on June 28, 1881, said court directed the county treasurer not to pay said warrant, and thereafter, November, 1881, suit was brought thereon, the statute of limitation did not bar a recovery. The claim had been registered by the county treasurer in January, 1880, under a then existing statute, and it was held that limitation did not begin to run until the action of the county court of June 28, 1881, directing the treasurer not to pay the claim, evidenced the intention of the county to refuse the claim, which it had theretofore acknowledged as valid.’ To the same effect is the case of Caldwell County v. Harbert, 68 Tex. 321, 4 S. W. 607. In each of these cases the holding was based upon the fact that the county had acknowledged and recognized the validity of the claim until shortly prior to the suit. But in the instant case no such condition is presented. The statute was evidently enacted for the benefit of the county, that it might have the opportunity to have passed on by its representative managing body all claims against it before it could be subjected to the expense and vexation of suit. It certainly never was contemplated that one having a claim against a county could delay its presentation to the commissioners’ court indefinitely, and thereby preclude the running of limitation. As is well said in 25 Cyc. 1198:

“Where plaintiff’s right of action depends upon some act to be performed by him preliminary to commencing suit, and he is under no restraint or disability in the performance of such act, he cannot suspend indefinitely the running of the statute of limitations by delaying the performance of the preliminary act; if the time for such performance is not definitely fixed, a reasonable time, but that only, will be allowed therefor.”

In the same text, page 1198 (B), it is further stated:

“Where, although the cause of action itself has accrued, some preliminary step is required before a resort can be had to the remedy, the condition referring merely to the remedy and not to the right, the cause will be barred if not brought within the statutory period; therefore the preliminary step must be taken within that period.”

When the right of action is not under plaintiff’s control, but depends upon some act to be performed by another, in this event, it has been held that the cause of action does not accrue, and the statute does not begin to run until the performance of the act. Williams v. Bergin, 116 Cal. 56, 47 Pac. 877; Thompson v. Orena, 134 Cal. 26, 66 Pac. 24. Likewise it has been held that where until disaffirmance by a party he cannot be sued for money received under a contract which he subsequently avoids, the statute does not run until the time of such avoidance. Cowper v. Godmond, 9 Bing. 748, cited in 25 Cyc. 1198, 1199. But since, as was held in Williams v. Bowie County, 58 Tex. Civ. App. 116, 123 S. W. 199, the right to sue a county arises after a claim has been presented to the commissioners’ court, and a reasonable time has elapsed without an allowance of such claim by said court, it cannot be said that under this article of the statute, plaintiff’s right of action depended upon any act of dis-allowance of the commissioners’ court. The failure or “neglect” of the court to act on his claim after a reasonable time, would give the plaintiff the right to sue.

While we have not taken up and discussed seriatim appellant’s various assignments, yet we have carefully considered each of the same, and believe that in what we have said hereinabove we have properly disposed of every question presented.

For the reasons indicated, the judgment of the trial court will be reformed, so as to allow plaintiff judgment for compensation for the time he was in office subsequent to December 2, 1912, at the maximum fixed by article 3875, to wit, $2,000, less the amount already retained or received by him during said period. This sum to which appellant is so entitled is found by this court to be $982.-20. Upon this amount so found in appellant’s favor the appellee is to be credited with the sum of $581.70, held in the bank in the name of appellant, but the right to which is involved in this suit, which controversy is by this judgment decided in favor of appellant, and the said sum held in bank awarded to appellant. Interest at 6 per cent, on $400.50, balance allowed from date of judgment. As so reformed, the judgment will be affirmed, with costs of appeal taxed against appellee.

Beformed and affirmed.

On Motion for Rehearing.

Appellee urges error in the judgment of this court in two respects, to wit; (1) In holding that the several orders of the commissioners’ court from February 16, 1907, to February 11, 1913, could not reasonably be construed as orders fixing the compensation of the county treasurer on a percentage or commission basis not to exceed the maximum amount named. (2) In failing to hold that plaintiff was estopped by reason of his acceptance of and acquiescence in said orders, and especially those orders made by the commissioners’ court after plaintiff went into office.

1. It will be noted that in the order of February 16, 1907, the commissioners’ court failed to fix any rate of compensation on a commission or percentage basis for the year ending November 28, 1907, but merely stated that , the maximum should be “a total fee of $1,600.”’ The rate was not fixed by the court, but left to be determined by the amount of receipts and disbursements on the one hand, and the fixed maximum of $1,-600 on the other. The rate could not be determined by either court or officer until the close of the year, and was then of no controlling effect, but only an incident to and result of the two factors above mentioned. We do not think that such an order can reasonably be construed as one fixing the rate of compensation, or as one fixing the compensation of the treasurer on a commission basis. Upon no other basis has the commissioners’ court authority to fix the treasurer’s compensation. It is provided in the order of February 16th that:

“From November 28, 1907, until the commissioners’ court may change it, he [the treasurer] shall receive 1% per cent, for receiving and 1% per cent, for disbursing county funds.”

Therefore, from November 28, 1907, to February 12, 1909, there was no limitation upon the salary of the treasurer except as to the rate of compensation, to wit, 1% per cent. Hence, the order of February 12, 1909, which provides that “the county treasurer is to receive the same compensation that he received for the last two years, being sixteen hundred dollars per year,” cannot be held to be a legal exercise of the authority of the commissioners’ court to fix the treasurer’s compensation, because if the expression “for the last two years” be referable to the year preceding November 28, 1907, as shown herein, no rate was fixed at all. If the expression be referable to that portion of the order which provided for a compensation of 1% per cent., such order did not attempt to fix any maximum of fees at all. The subsequent orders set out in the original opinion do not purport to fix any rate of commission, unless they do so by reference to the first order. As the only rate fixed in this one, as we view it, is 1% per cent, commission, we hold that our conclusions reached in the original opinion must be adhered to. Moreover, the majority, at least, hold that the commissioners’ court had no power to fix the maximum compensation of the treasurer at a less amount than that fixed by statute, except as it might be reduced by lowering the rate of commission. Associate Justice Dunklin does not concur in this last conclusion, but does concur in the holding that the order of February 16, 1907, does not lawfully fix any other rate of compensation than 1% per cent. I-Ie is of the opinion that an order of the commissioners’ court, fixing a maximum of fees to be retained at a certain sum less than the maximum of $2,000 fixed by the statute, without fixing the rate of commissions, would be valid, for in that event the maximum rate of commissions provided by the statutes would govern, and the effect of such an order would be that the treasurer would be allowed to retain commissions at that rate until the maximum amount so fixed by the order should be collected, and thereafter the treasurer would receive nothing more for his services.

2. As to the second proposition urged, we think the holding in the Montgomery v. Talley Case is conclusive. If, as it is held, the treasurer would not be estopped from claiming the compensation allowed by statute because he had accepted the office, knowing that the commissioners’ court had attempted to fix a different basis of compensation, we cannot see how he would be estopped by reason of his continuance in office and his acceptance of the compensation allowed, and his alleged tacit acquiescence in the construction of an order which did not meet the requirements of the law.

The motion for rehearing is overruled.
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