text:
    HARRIS et al. v. KIBER et al.
    (No. 6726.)

    (Court of Civil Appeals of Texas. Galveston.
    Feb. 18, 1915.
    On Motion for Rehearing, May 13, 1915.
    Appellees’ Motion for Rehearing Denied June 10, 1915.)
    1. Trespass to Try Title <&wkey;38 — Pleading —Admissions—Effect.
    Though the action was in the form of trespass to try title, yet where the pleadings showed that it involved only an issue of boundary, and the answer of defendants expressly averred that the issue was one of boundary between the lands of plaintiffs and defendants, the answer was an admission, relieving plaintiffs' of the necessity of proving' title to their land, notwithstanding defendants’ plea of not guilty.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. &wkey;>38.]
    2. Trespass to Try Title <&wkey;ll — Actions— Proof.
    In an action of boundary, where both de-raigned title from the same source, plaintiff need not prove his title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 14; Dec. Dig. <&wkey;ll.]
    On Motion for Rehearing.
    3. Boundaries &wkey;>48 — Agreed Boundaries— Effect.
    Grantees of part of a tract of land are not bound by any line, other than that fixed in their deed, unless they consent to the establishment of a line, or have acquiesced in the establishment of a boundary by the grantees of the other part.
    [Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 232-242; Dec. Dig. <i&wkey;48.]
    4. Boundaries <&wkey;37 — Actions—Evidence-Sufficiency.
    In a suit involving disputed boundary, evidence held insufficient to show that the line was as claimed by plaintiffs.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. <@=>37.]
    5. Adverse Possession <S&wkey;100 — What Constitutes.
    Where defendants held continuous adverse possession of land for the statutory period, claiming it under tbeir deeds, their holding ripened into adverse title, even if the dividing line had previously been located at a place other than that called for in defendants’ deeds.
    [Ed. Note. — For' other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. <&wkey;> 100.]
    Appeal from District Court, Wharton County ; Samuel J. Styles, Judge.
    Action by Emma D. Kiber and others against John W. Harris and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and rendered.
    G. G. Kelley, of Wharton, and Williams & Neetbe, of Galveston, for appellants. W. B. Hall, of Wharton, and Masterson & Rucks, of Angleton, for appellees.

       writ o£ error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellee Emma D. Kiber, joined pro for-ma by her husband, F. Kiber, against tbe appellants, in tbe form of trespass to try title to a tract of 88.13 acres of land on tbe R. Kuy-kendall league, in Wharton county. The de fendants answered by general demurrer, spe cial exceptions, and general and special denials of tbe allegations of the petition. Tbe answer also contained pleas of limitation of three, five, and ten years, and tbe following special plea:

“And for further answer herein defendant» say that the issue in this case is one of boundary between the lands of plaintiffs and defendants ; that plaintiffs and those under whom they claim have acquiesced in the boundary of the land claimed by these defendants, and in the quantity of said land, for more than 50 years before this suit was brought; and that the defendants had their land run out by careful and competent surveyors a number of years ago, one of whom was the county surveyor of Wharton county, and defendants placed their fence on the line so established by them, and plaintiffs acquiesced therein, and said fence has remained on said line ever since, until the institution of this suit, without complaint from plaintiffs, although they have known of its location. Wherefore defendants say that plaintiffs are estopped from claiming said line to be elsewhere.”

Tbe trial in tbe court below without a jury resulted in a judgment in favor of plaintiffs for tbe 88.13 acres of land described in tbeir petition, and establisbing tbe boundary line of said land as claimed by them. At the request of appellants tbe trial judge filed conclusions of fact and law. After stating that the suit was brought in the form of an action of trespass to try title, and giving the description of tbe land contained -in the petition, tbe conclusions of fact and law contain the following:

“While plaintiff’s suit was instituted as one of trespass to try title to the 88.13 acres of land above described, plaintiff during the trial of said cause stated and treated the same as a boundary suit, and defendants during the trial of said cause treated the same as a boundary suit; the following allegations appearing in defendants’ pleadings: [Here follows defendants’ special plea before set out.]
“Finding of Facts.
“(1) The court finds that this is a suit for the purpose of establishing the boundary line between the lands owned by plaintiff and the defendants in the Kuykendall league of land, in Wharton county, Texas.
“(2) That the Kuydendall league of land was granted to Robert Kuykendall July 16, 1824, and in 1878 Kuykendall sold the upper or west half of said league to Stephen F. Austin; that thereafter the said Stephen F. Austin died, leaving a one-half of his property to his sister, Emily M. Perry, and the other one-half to his nephew. S. E. Austin, Jr.; that before his will was probated the said S. E. Austin, Jr., died, leaving his mother, Eliza M. Hill, as his only surviving heir, and who inherited his portion of the estate of the said S. E. Austin.
“(3) That in 1846 a partition deed was executed by Emily M. Perry and her husband on the ■ one part, and Eliza M. Hill on the other part, by the terms of which Eliza M. Hill received and obtained one-fourth of the estate of the said S. E. Austin, Sr., and ¡Mrs. Emily M. Perry received and obtained three-fourths of the estate of the said S. F. Austin, Sr., and in this partition the said Eliza M. Hill was awarded the upper or west one-fourth of the upper or west one-half of the said Kuykendall league of land, said tract being- described in said partition deed as follows: ‘Beginning at the upper corner of said league on the river and running westwardly along the line thereof to corner, thence southeasterly along the line of said league to a point from where a line drawn parallel with the upper line of said league to the river, and thence up the river to the place of beginning, will include one-fourth of said one-half league of land’ — said partition deed awarding to Emily M. Perry the remaining or lower three-fourths of the upper one-half of said league of land.
“(4) That at the time said partition was made of said upper one-half league of land between the said Emily M. Perry and Eliza M. Hill, said upper one-half of said league of land was supposed to contain one-half of a full league, or 2,214 acres of land, and that the upper or west line of said league was supposed to be 4,500 varas in length, when in truth and in fact said upper one-half of said league contained 1,921 acres of land, and the upper or west line of said league was 3,967 varas in length, instead of 4,500 varas, as called for in the original grant.
“(5) In 1851, after the death of Emily M. Perry, her husband, Jas. F. Perry, and her children, W. J. Bryan, M. A. Bryan, Guy M. Bryan, S. S. Perry, Henry Perry, and Eliza M. Perry (Plill), executed a partition deed, partitioning among themselves the estate of said Emily M. Perry, deceased, in which partition the children of said Emily M. Perry were awarded said upper three-fourths of said one-half of said Kuykendall league, less the upper one-eighth heretofore allotted to Eliza M. Hill; and in 1854 W. J. Bryan, Moses Austin Bryan, Guy M. Bryan, S. S. Perry, and Eliza M. Hill made a partial partition of the property inherited from their mother, by the terms of which partition deed, among other lands, Moses Austin Bryan was allotted a tract of land described as follows: ‘Also a tract of land situated on the Colorado river on the west side and is known as a part of the Robert Kuykendall league. This tract allotted to said Moses Austin Bryan is the upper one-half of a tract which was allotted to said Emily M. Perry in the deed of partition with Eliza M. Hill, and lies below and adjoining the tract allotted to the said Eliza M. Hill in said deed of partition. The tract thus allotted to Mosesi Austin Bryan is supposed to contain 830 acres.’
“(6) That on November 16, 1872, Moses Austin Bryan conveyed the land awarded to him in, said above-described partition deed, made in 1854 between the heirs of Emily M. Perry and Thos. Dyer, and that the plaintiffs inherited said land from the said Thos. Dyer, who died on or about the - day of -, 189 — . That said Eliza M. Hill, and her legal representatives after her death, owned and possessed the upper or west one-fourth of the upper or west one-half of said Kuykendall league, awarded to her in 1846 in said partition deed executed by her and Mrs. Emily M. Perry and her husband, until the 10th day of January, 1851, when Wm. G. Hill, administrator of the estate of Eliza M. Hill, deceased, conveyed said tract of land to John W. Harris and E. M. Pease, in which conveyance said tract of land was described as follows: ‘One-eighth league of land situated on the west bank of the Colorado river, being the upper one-fourth part of the upper one-half of the league granted by the government to Robert Kuykendall and bounded as follows: Beginning at the upper comer of said league on the west bank of said Colorado river, from thence a line to run westwardly along the upper line of said league to the upper back corner; thence southwestwardly along the back line of said league to a point on said line from which a line drawn parallel with the upper line of said league to the river Colorado, and thence up the river with its meanders to the place of beginning, so as to include one-fourth part of said upper one-half of said league.’ That thereafter said E. M. Pease, through his administrator, conveyed his interest in said land to the heirs of John W. Harris, who are the defendants in this suit, and who through said deed, and as the heirs of the said John W. Harris, are the owners of said tract of land in the upper or western portion of said league formerly awarded to Eliza M. Hill.
“(7) That on or about the 16th day of November, 1872, Moses Austin Bryan conveyed to Thos. Dyer the tract of land awarded to him in the partition deed above mentioned between the heirs of Emily M. Perry, in which deed said tract of land (which is now known as the Kiber tract) is described as follows: ‘The tract of land hereby conveyed contains 830 acres, more or less, and is known as a part of the Robert Kuykendall league on the west side of the Colorado river in Wharton county, that was allotted to me in the division of the estate of Stephen F. Austin, and the estate of Emily M. Perry, my mother, in the division of property among the heirs of said estate. The said tract of 830 acres is more fully described by the map and field notes made by Collingsworth, surveyor, hereto attached. That the field notes described in the map and plat attached to said deed give the field notes to said tract as follows: Beginning at the lower corner of the Hill tract, a stake from which a pecan 8 in. bears south 35 deg. east 1 vr., and an elm 6 in. bears 67 deg. west 4 vrs.; thence south 20 deg. west with said Hill line 4,725 vrs. to his corner; thence south 70 deg. east with the league line 952 vrs. to a stake; thence north 20 deg. east to a stake on the bank of the Colorado river, from which an ash 12 in. bears north 47 deg. west 3 vrs., a cottonwood 36 in. bears north 72 deg. east 4 vrs.; thence up the river with its meanders to the place of beginning.’
“(8) That the plat and field notes made by said surveyor, Collingsworth, attached to said deed from M. A. Bryan to Thos. Dyer, above mentioned, show that said survey and plat was made by said surveyor on March 16, 1860. Said survey shows that on said date a reasonably accurate survey of what was then known as the Hill tract of land (now the Harris tract) and the M. A. Bryan tract (and now known as the Kiber tract) was made by said surveyor, Collingsworth, and the dividing line between the two tracts of land was then located and marked by said surveyor, and I find that same is as claimed by plaintiff and as marked on Donaldson’s map.
“(9) I further find that what is known as the Collingsworth line above mentioned between the Hill and Bryan tracts (now the Harris and Kiber tracts) of land in said Kuykendall league was many years ago marked and defined by old line marks on trees through the timber and by a ditch and levee thrown up through the prairies from a continuation of a marked line through the timber to the south line of said Kuykendall league, and that there has never been any dispute as to that being the true boundary line until the latter part of the year 1903, when the defendants had a survey - of their lands made by Surveyor Lackey and placed a fence 121 varas south or below what is known as the Collingsworth line, and what is here found to be the true dividing line between the lands of plaintiff and defendant, at which time, in December, 1903, defendants leased said land and a fence placed on the line now claimed by defendants, and have had same inclosed ever since.
“(10) I further find that when Surveyor Lackey surveyed this land in 1903, and established the fence line claimed by defendants as the dividing line, he' established the line where he did solely because he considered that he had to give to that line in order to give defendants what he considered to be their quota of the entire league. And I further find that the plaintiffs in this suit never acquiesced in said line established by surveyor Lackey in 1903.
“Upon the foregoing findings of fact I find the following:
“Conclusions of Law.
“This being confessedly, by the pleadings of both plaintiffs and defendants, a boundary suit, I find as a matter of law that the plaintiff was not required to prove a superior title to the land on her side of the alleged boundary. This conclusion is sustained further by the fact that plaintiffs and defendants claim through a common source. Wardlow v. Harmon, 45 S. W. 828.
“I further find as a matter of law that the defendants cannot be supported by their pleas of three and five years’ limitation, because the possession held by defendants was through a lease to tenants, and not under deeds, and the possession of Bond (the tenant) was the possession of defendants, and emanated from defendants only, and not from any other source. White et al. v. Rosser, 27 S. W. 1062; Hill et al. v. Harris et al., 26 Tex. Civ. App. 408, 64 S. W. 820.
“I further find that the true boundary line between plaintiff’s and defendants’ lands begins at a point on the south line of the Kuykendall league 647 varas south 70 deg. east from the southwest corner of said Kuykendall league, and runs thence north 20 degrees east to the Colorado river. I therefore find for the plaintiffs for the land sued for.”

It would, serve no useful purpose to set out and discuss in detail the various assignments of error presented in appellants’ brief. Under appropriate assignments appellants assail the judgment on the ground that the court erred in holding that the suit was one of boundary, and appellees were therefore not required to show title to the land claimed and recovered by them.

We think the record supports the court’s finding that the suit, though in the form of an action of trespass to try title, involved only an issue of boundary, and both parties during the trial regarded the suit as one for the establishment of the boundary line between the lands of plaintiffs and defendants. The answer of defendants before quoted expressly avers “that the issue in this case is one of boundary between the lands of plaintiffs and defendants,” and claimed that the line upon which defendants’ fence had been placed was located a number of years ago, and plaintiffs had acquiesced in the line so established. These averments are in effect an admission that plaintiffs own the land on one side of the line, the location of which is in dispute, the land on the opposite side being owned by the defendants, and this admission relieved the plaintiffs of the necessity of proving title to their land, notwithstanding defendants’ plea of not guilty. When defendants averred that the issue in the case was one of boundary between their land and plaintiffs, and asked that the boundary between their land and plaintiffs be fixed at a designated location, they as effectually disclaimed title to the land not included in the boundaries claimed by them as if they had so stated in express words.

In the case of Wardlow v. Harmon, 45 S. W. 828, plaintiff brought suit in the form of an action of trespass to try title. The defendant, after pleading not guilty, filed a special plea alleging that some years before the filing of the suit “plaintiff and defendant, each owning tracts of land adjoining each other, agreed upon and established the boundary line between their respective tracts, which has been acquiesced in and recognized as the true division line between them; that defendants claim no land north of saiu line, but claim the land south of same.” It was held in that case that the trial court correctly treated the suit as one to establish a boundary line, and that, defendant’s plea above set out being equivalent to a disclaimer, the court did not err in refusing to instruct the jury that plaintiff could only recover upon the strength of his title. We do not think the instant case can upon this point be distinguished from the case cited.

The mere fact that a defendant, in answer to a suit of trespass to try title, in addition to a plea of not guilty, pleads special defenses, would not destroy the effect of the plea of not guilty and relieve plaintiff of the necessity of proving his title. This is the holding in the case of Koenigheim v. Miles, 67 Tex. 117, 2 S. W. 81. But when, as in this case, the defendant by his special plea admits that the only issue in the case is one of boundary, and that the plaintiff owns the land adjoining the boundary line of defendant’s land, there can be no reason for requiring plaintiff to prove his title.

After careful consideration of the evidence upon the question of the location of the line between the lands of plaintiffs and defendants, we cannot say the finding of the trial court that the line is located as claimed by plaintiffs is without evidence to support it, or that such finding is against the great weight and preponderance of the evidence. The line found by the court to be the true line is shown to have been marked 60 years or more ago. If the distance from the river out to the south line of the league had been as great as that called for by the field notes of the grant for the length of the west line of the league, the location of the east line of the one-eighth of the league set apart to Mrs. Hill and now owned by the defendants, as claimed by the plaintiffs and found by the court, would have given the Hill tract approximately its proportionate number of acres. There is no evidence of any other line which, could have been the boundary line between the Hill tract and the tract now owned by plaintiff. The evidence further shows that plaintiffs’ predecessor in title had a survey of their land made in 1861. and established the line where plaintiffs now claim it to be. The court having found from this evidence that the old marked line now shown upon the land is the original boundary line between the lands of plaintiffs and defendants, we do not feel authorized to reverse such finding.

The evidence being sufficient to sustain the finding of the court that the boundary of defendants’ land is located as claimed by plaintiffs, it follows that none of plaintiffs’ land is included within the boundaries described in defendants’ deed, and therefore defendants’ pleas of limitation of three and five years cannot be sustained. The evidence failed to show continuous possession by defendants of any portion of the land for a period of ten years.

We have considered each and all of appellants’ assignments of error. If any error is shown by any of them, it is not such as could have probably affected the result of the trial, and none of the assignments can be sustained.

It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.

On Motion for Rehearing.

In our opinion in this case filed on February 18, 1915, in which the judgment of the court below was affirmed, we held that the evidence was sufficient to sustain the finding of the trial court that the line between the lands of plaintiffs and defendants is located as claimed by plaintiffs.

A further investigation of the record has convinced us that we erred in this holding. The evidence is sufficient to sustain the finding that many years ago plaintiffs’ predecessors in title located the line as now claimed by plaintiffs, but there is no evidence that defendants, or any of their predecessors in title, agreed to or acquiesced in such location, or that any of them ever knew that such location of the line had been made.

The record shows that in 1846 Mrs. Emily M. Perry and Mrs. Eliza M. Hill, who were then the joint owners of the upper or northwestern one-half of the Robert Kuykendall league of land in Wharton county, executed a deed of partition by which there was conveyed to Mrs. Hill the upper one-fourth of said one-half of the league. The land so conveyed to Mrs. Hill is described in said deed as follows:

“Beginning at the upper corner of said league on the river and running westwardly along the line thereof to corner; thence southeasterly along the line of said league to a point from where a line drawn parallel with the upper line of said league to the river, and thence up the river to the place of beginning, will in-elude one-fourth of said one-half league of land. * * *”

By this partition deed the remainder of said one-half of the league was conveyed to Mrs. Perry. On January 10, 1851, the administrator of Mrs. Hill conveyed to John W. Harris and E. M. Pease the land conveyed to Mrs. Hill by the deed of partition before referred to. In the administrator’s deed the land is described as follows:

“One-eighth of a league of land situated on the west bank of the Colorado river, in Wharton county, being the upper one-fourth of the upper half of the league granted by the government to Robert Kuykendall, and bounded as . follows: Beginning at the upper corner of said league on the west bank of the Colorado river, from thence a line to be run westwardly along the upper line of said league to the upper back corner, thence southwardly along the back line of said league to a point on said line from whence a line drawn parallel with the upper line of the league to River Colorado, and thence up the river with its meanders to the place of beginning, so as to include one-fourth part of said upper half of said league.”

The executrix and trustee under the will . of E. M. Pease, by deed of date September 22, 1898, conveyed to the widow and children of John W. Harris the one-half interest owned by E. M. Pease in the land described in the deed next above mentioned. Defendants in this suit hold under this deed and by inheritance from John W. Harris and his wife, Annie P. Harris. The grantees in the above deeds unquestionably acquired title to one-fourth of the upper one-half of the Kuyken-dall league located in accordance with the description contained in said deeds. If by agreement of defendants, or those under whom they claim, with the owners of the adjoining portion of the one-half of the league, the division line between the upper one-fourth and the remaining portion of the half of the league had been fixed and marked on the ground at a place other than called for in the deeds to the upper one-fourth, defendants would be bound by such boundary or division line, and they might be so bound by acquiescence in a division line fixed by the owners of the adjoining land, but in the absence of any evidence of agreement or acquiescence they cannot be held to any line other than one located in accordance with the calls in their deeds. Lagow v. Glover, 77 Tex. 450, 14 S. W. 141; Horst v. Herring (Sup.) 8 S. W. 307; Kampmann v. Heintz (Civ. App.) 24 S. W. 329; Donaldson v. Hall, 14 Tex. Civ. App. 336, 37 S. W. 16.

The deed from Robert Kuykendall to Stephen F. Austin, under which Mrs. Perry and Mrs. Hill held title to the upper half of the Kuykendall league, describes said half league as follows:

“From the upper comer on the W. margin of the Colorado river the surveyor come’d; thence S. 20° W. 4500 vrs., fol’g- the upper bound of the aforesaid sitio to the S. W. corner; thence S. 70° E. to a point from which a line thrown N. 20° E. to the said Colorado river; thence following the turns of the river up to the place of beg. at the upper comer of the said sitio, to comprehend the upper or northern half of the aforesaid sitio, hounded on the E. by the said Colorado river, on the S. by the lower half of my said sitio, and on the other side by vacant lands.”

It is clear from this description that the dividing line between the upper and lower half of the league was not fixed and marked on the ground prior to or at the time this deed was executed, and there is no evidence in the record showing when or by whom said line was actually located and marked upon the ground. The evidence does show the existence of an old line dividing the upper and lower portions of the league, located near where a line run in accordance with the calls in this deed would place it; but there is no evidence that defendants, or any of their predecessors in title, agreed to or acquiesced in the location of this line, or ever recognized it as the dividing line of the league. Such being the state of the evidence, defendants are no more bound by this line than by the old line which plaintiffs claim is the division line between defendants’ one-fourth of the upper half of the league and the remainder of said half of the league. The evidence shows that up to 1903, when the defendants established the line now claimed by them and took actual possession of their land, claiming and holding it up to said line, this half league of land was unoccupied. None of the defendants lived in that neighborhood, and there is no evidence of any intercourse between them and the owners of the adjoining land, or that they had any knowledge of the doings or claims of plaintiffs or any of their predecessors in title. The undisputed evidence further shows that the location of the line as claimed by defendants does not give them more than one-eighth of the league, the quantity to which they are clearly entitled under their deed, in the absence of any evidence that they or their predecessors in title had agreed to or acquiesced in the location of the division line at some other place than that called for in the deeds. The undisputed evidence further shows that defendants had held continuous adverse possession of a portion of tlie land in controversy for more than 6 years before this suit was brought, claiming to the boundaries called for in the deeds under which they hold, and paying all taxes thereon as they accrued.

These facts alone would give defendants title to all of the land embraced within the boundaries of the deeds under which they claim, even if the evidence was sufficient to show that the line had been actually located at a place other than that called for in defendants’ deeds, under circumstances binding upon defendants. A line located by agreement or acquiescence of the parties in interest would upon the issue of boundary be held binding upon the parties and their privies; but such location of a line would not change the boundaries of the land as defined in the deed, nor prevent one holding and claiming under the deed from acquiring title by limitation to all of the land included in its boundaries, if the other requirements of the statute of limitation are shown. Jones v. Andrews, 62 Tex. 668; Bean v. Whitney, 25 Tex. Civ. App. 72, 60 S. W. 782.

It follows, from the conclusions above expressed, that appellants’ motion for rehearing should be granted, our judgment of affirmance set aside, the judgment of the court below reversed, and judgment here rendered for appellants; and it has been so ordered.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    OSWALD v. GILES et al.
    (No. 6942.)
    (Court of Civil Appeals of Texas. Galveston.
    June 17, 1915.)
    1. Chattel Mortgages @=225 — Transfer by Mortgagor — Liability op Purchaser.
    Under Vernon’s Sajyles’ Ann. Civ. St. 1914, art. 5660, providing that mortgaged property shall not be removed from the county nor otherwise disposed of without the consent of the mortgagee, and that, if removed or disposed of, the mortgagee shall be entitled to possession and. to. sale for the payment of his debt, whether it is due or not, defendants, demurring' to the allegation of the petition that they bought the property upon which plaintiff held a chattel mortgage to secure an indebtedness with full knowledge of its existence, and thereafter, without plaintiff’s consent, removed the property from the county, contrary to a provision of the mortgage, were liable for a conversion of the property, for which plaintiff, as assignee of the mortgage, was entitled to sue.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. @=225.]
    2. Chattel Mortgages <&wkey;213 — Transfer by Mortgagor — Action by Purchaser.
    In such case, plaintiff was not required, in order to establish his lien upon the property, to prosecute a suit against the nonresident mortgagor.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-465'; Dee. Dig. &wkey;>
    3. Pleading <&wkey;246 — General Demurrer-Amendment.
    Where the court sustained a general demurrer to a petition, in a suit to recover damages for the alleged wrongful conversion of property upon which plaintiff claimed the lien of a chattel mortgage, it would not have availed plaintiif to have amended his petition to meet an objection presented by defendants’ special exception.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 676-683; Dec. Dig. &wkey;246.J
    4. Limitation of Actions @=182 — Pleading — Transfer by Mortgagor — Action against Purchaser.
    Under Vernon's Sayles^ Ann. Civ. St. 1914, art. 5706, providing that the defense of limitation cannot be available, unless it is specifically set forth as a defense in the answer, where the petition did not affirmatively show that the cause of action was barred, the defense of limitation could not be raised by exception, but only by specially pleading and proving facts showing that the cause of action was barred.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. <&wkey;182J

      Appeal from Galveston County Court; George E. Mann, Judge.
    Suit by E. E. Oswald against R. E. L. Giles and others. Judgment for defendants and plaintiff appeals.
    Reversed and remanded.

      King & Hughes, of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellant to recover damages for the alleged wrongful conversion by appellees of property upon which appellant claims a lien to secure an indebtedness due him by R. E. L. Giles and the American Type Founders Company, who, together with appellees Marsene Johnson and W. C. Lessing, were defendants in the suit as originally brought. Plaintiff’s third amended petition, to which the court below sustained a general demurrer and special exceptions presented thereto by defendants Johnson and Lessing, is as follows:

“Tour petitioner, E. E. Oswald, a resident citizen of Dallas county, Tex., hereinafter styled plaintiff, complains of the defendants Marsene Johnson, of Galveston county, Tex., and W. C. Lessing, of Harris county, Tex., this cause having heretofore been dismissed as the American Type Founders Company, a corporation, and R. E. L. Giles, who is now, and has been since the institution of this suit, a nonresident of the state of Texas, and files this his third amended original petition in lieu of and as a substitute for his second amended original petition filed in this cause on June 26, 1914, and for such amendment says:
“(1) That heretofore, to wit, on or about the 4th day of June, A. D. 1909, R. E. L. Giles, for the valuable consideration paid to him by the American Type Founders Company, executed and delivered to the American Type Founders Company his two certain promissory notes of that date, wherein said R. E. L. Giles promised to pay to the order of the American Type Founders Company, at Dallas, Tex., on January 1, 1910, the sum of $200, and on June 10, 1910, the sum of $148, with interest on each sum from date of said notes until maturity at the rate of 6 per cent, per annum, and 10 per cent, additional on all the said sums as attorneys’ fees, if these notes were placed in the hands of an attorney for collection after maturity.
“(2) That for a valuable consideration, and for the purpose of better securing the payment of said notes at maturity, according to their tenor and effect, R. E. L. Giles, on or about the 10th day of June, 1909, made, executed, and delivered to the American Type Founders Company (a corporation) a chattel mortgage on certain printing machinery, printing presses, printers’ supplies and materials; the same being fully described in the true copy of said chattel mortgage which is thereto attached and marked ‘Exhibit A,’ and made a part hereof. The original of said chattel mortgage being duly recorded in the chattel mortgage records of Galveston county, Tex., and of said chattel mortgage the defendants herein had both actual and constructive notice. That, by the terms of said chattel mortgage, the property therein described was to be .answerable for the debt secured by same, and, in case of default in the payment of the notes herein described when due, said property was to immediately become subject to foreclosure for the satisfaction thereof, and further by the terms of said chattel mortgage it was agreed and covenanted that the mortgagor would not sell, assign, or dispose of the aforesaid property, or any part thereof, or attempt to do so, or remove, or attempt to remove, or permit the removal of, the same, or any part of said property, from Galveston county, Tex., without the written consent of the mortgagee.
“(8) That after the making and recording of the said chattel mortgage, hereinabove described, and of which the said defendants had due notice, as aforesaid, the said defendants Mar-sene Johnson and W. C. Lessing, on or about March 20, 1911, bought and removed the property described in said chattel mortgage out of the county of Galveston, Tex., without the written consent of the mortgagee, as provided in said chattel mortgage, and thereby converted said property to their own use and benefit.
“(4) That on or about the 1st day of November, 1911, for a valuable consideration, and in the due course of business the American Type Founders Company sold .and transferred and assigned unto the above plaintiff, E. E. Oswald, the above-mentioned notes, chattel mortgage, and all rights accruing thereunder, together with all claims and demands of every kind whatsoever, existing in favor of said! corporation against R. E. L. Giles, Marsene Johnson, and W. C. Lessing, guaranteeing the payment thereof to the said E. E. Oswald.
“(5) That the notes hereinabove described in paragraph 1 of this petition were at the time of the conversion hereinabove alleged, and are now, long past due and unpaid, and the chattel mortgage hereinabove described to secure said notes was, at the time of said conversion, wholly unsatisfied and has never been satisfied.
“(6) That, by reason of said transfer, this plaintiff became and now is the leg'al and equitable owner and holder of said notes hereinabove described, and said chattel mortgage and all claims and demands arising therefrom, and defendants are therefore liable to the plaintiff for the conversion of said property, as hereinabove described, and have damaged him to the extent of the amount of his claim against said property described in said chattel mortgage, principal, interest, and attorneys’ fees, and that the property so converted by the defendants is and was at the time of its conversion of the reasonable value of $750, and plaintiff alleges that he has been damaged in the sum of $600.
“Wherefore plaintiff prays for judgment for the amount of his damage and costs of suit, and for such other relief, both general and special, in law and in equity, as the plaintiff may show himself justly entitled to.”

This petition, was filed October 1, 19X4. The special exception interposed by the defendants was as follows:

“And said defendants come and especially except to paragraphs 1, 2, 3, 4, and 5 of plaintiff’s said petition, and says the allegations in said paragraphs contained are wholly insufficient for this: Plaintiff alleges in said five paragraphs of his petition that, at the time the personal property mentioned was bought by the defendant Johnson on March 20, 1911, the American Type Founders Company had a mortgage lien upon said personal property to secure the payment of two notes aggregating the sum of $348, said notes being one for $200, and due January 1, 1910, and the last note being for $148, and due on June 10, 1910, which said notes had been theretofore executed by one R. E. L. Giles; and defendants especially except to said paragraph of said petition for this: That the plaintiff does not allege that the notes and the mortgage lien securing the same, if any he ever had, had been sued upon and foreclosed by due process of law within the four years next after said last one of said notes had become due and payable, and prior to the time said notes and mortgage became void, and suit to recover thereon became barred by the statutes of four years’ limitation of the state of Tesas, and of this the judgment of the court is pray ed.”

The first assignment of error complains of the judgment of the trial court sustaining defendants’ general demurrer to plaintiff’s petition. The assignment must be sustained.

The petition alleges that defendants bought the property upon which plaintiff held a mortgage to secure the indebtedness due him, with full knowledge of the existence of the mortgage, and thereafter, without the consent of plaintiff, removed the property from the county of Galveston, where it was situated at the time the mortgage was executed. The mortgage, which was attached to the petition as an exhibit, provides that the property should not be removed from Galveston county without the consent of the mortgagee. Article 56CO, Vernon’s Sayles’ Civil Statutes, provides, in substance, that mortgaged property shall not be removed from the county nor otherwise disposed of without the consent of the mortgagee, and that, in case of a violation of this provision, “the mortgagee shall be entitled to the possession of the property, and have the same sold for the payment of his debt, whether the same is due or not.”

The purchase of the property by the defendants with notice of the mortgage and its removal from the county of Galveston, without the consent of the holder of the mortgage, was a conversion of the property, and plaintiff, as the assignee of the mortgage, was entitled to sue therefor. Western Mortgage & Investment Co. v. Shelton, 8 Tex. Civ. App. 550, 29 S. W. 494; Fouts v. Ayres, 11 Tex. Civ. App. 338, 32 S. W. 435; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715; Buffalo Pitts Co. v. Hardware Co., 129 S. W. 1161; Focke v. Blum, 82 Tex. 436, 17 S. W. 770.

Giles, the maker of the note, being a nonresident of the state, plaintiff was not required, in older to establish his lien upon the property, to prosecute the suit against him.

The general demurrer having been improperly sustained, the judgment must be reversed, regardless of whether the special exception raising the defense of limitation was properly sustained.

The court having sustained the general demurrer, it would not have availed appellant anything to have amended his petition to meet the objection presented by the special exception.

It appears from the petition that the notes evidencing appellant’s indebtedness were due more than four years before the third amended petition, to which the special exception was addressed, was filed. This petition refers to a second amended petition and the date of its filing, which date was also four years after the maturity of the notes. The date of the filing of the original petition and the first amended petition is not stated in the third amended petition, and therefore it does not affirmatively appear from said petition that this suit was not filed within four years from the maturity of the notes. The defense of limitation can only be raised by exception when it affirmatively appears from the face of the petition that the cause of action asserted is barred. The statute provides that the defense of limitation cannot be available, unless it is specifically set forth as a defense in the answer of the defendant. Vernon’s Sayles’ Civil Statutes, art. 5706. When the facts pleaded by the plaintiff show that the cause of action is barred, all that is required of the defendant in order to avail himself of the defense of limitation is to specially except to the petition on the ground that it shows that cause of action is barred; but, unless the facts stated in the petition show this, the defendant can only invoke the defense of limitation by specially pleading and proving facts showing that the cause of action accrued a sufficient length of time before the institution of the suit to complete the bar of limitation. Hudson v. Wheeler, 34 Tex. 356; Alston v. Richardson, 51 Tex. 1.

As before stated, we do not think the petition before set out shows that plaintiff’s cause of action was barred, and therefore the trial court erred in sustaining the special exception.

It follows from these conclusions that the judgment of the court below should be reversed, and the cause remanded; and it has been so ordered.

Reversed and remanded.
      <&wkey;For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    CRAIN v. YATES.
    (No. 6967.)
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1915.)
    CONTRACTS &wkey;28 — Building Conteacts — Existence.
    A contractor constructed for an owner two houses, each for a fixed sum. When the second house was nearing completion, the owner asked the contractor to figure on erecting a third house, to be transferred to a third person, and told the contractor that he must know what it would cost before he could tell whether he would be able to make a deal with the third person. The contractor customarily permitted his carpenter foreman to figure the cost of labor and lumber on jobs, and the foreman, knowing of the negotiations, figured on the cost of construction of the third building, and he estimated the cost at a specified sum. The foreman told the contractor that he had made his estimate to the owner, and without further negotiations the contractor, during the owner’s absence, began work on the third building and completed it according to the plans. Held, that there was a contract binding the contractor to complete it for the specified sum.
    [Ed.. Note. — For other eases, see Contracts, Cent. Dig. §§ 133-140, 1755, 1782-1784, 1785i/2, 1820, 1821; Dec. Dig. &wkey;2S.]
    Appeal from Harris County Court; Clark C. Wren, Judge.

      Action by Henry H. Tates against E. If. Crain. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Townes & Vinson, of Houston, for appellant. Cooper & Merrill, of Houston, for appel-lee.
   McMEANS, J.

Henry H. Tates sued E. L. Crain in tbe county court at law of Harris county, alleging substantially that at the special instance and request of the defendant he agreed to build on certain premises of the defendant in Montrose addition to the city of Houston, a frame-stucco one-story, six room dwelling house, complete, and ready for’occupancy, with water and light connections, and that the defendant agreed to pay him the reasonable value of the work and material to be furnished by the plaintiff in the construction of the house; that in pursuance of the terms of his agreement, he erected and completed the house, and that defendant accepted it as in compliance with the contract; that the reasonable value of the work and material used in the construction of the house was §2,500 ; that defendant paid him on said job $2,140, but failed and refused to pay the balance of $360, for which the- suit was brought. Defendant admitted that the plaintiff agreed to erect for him the kind of house referred to in the petition, but denied that he ever agreed or promised to pay the plaintiff the reasonable value of the work and material furnished on the job, but that, on the contrary, the plaintiff contracted and agreed to erect and complete the house, with water and light connections, for a fixed sum, to wit, $2,140 cash, upon the completion of the work. Defendant alleged he had paid the $2,140 as agreed, and admitted that he had refused to pay the balance of $360, or any other amount claimed by the plaintiff. By supplemental petition plaintiff traversed the affirmative allegations of the answer, and additionally alleged that defendant, if he did not expressly agree to pay the reasonable value of the work and material furnished, was impliedly bound to do so by his acceptance of the work after completion. Other allegations were made, but the court made no findings of fact thereon, and it will be unnecessary to make further reference to them. The case was tried before the court without a jury and resulted in a judgment for plaintiff for $278, from which the defendant has appealed.

By his first assignment of error appellant contends that the judgment is contrary to the law and to the facts found by the court, and by his second assignment he urges that:

“The court erred in its conclusion of law in holding that under the facts found no contract for the erection of the proposed house existed between Crain and Tates concerning the price to be paid therefor, and that in the absence of a contract, fixing the price, the price to be paid was the reasonable value of the work and the materials furnished and the labor done, when combined in a completed house.”

The court upon proper request reduced to writing and filed its findings of fact, which we here copy in full:

“Crain was a real estate man, engaged in the business of furnishing to purchasers completed properties, including houses and lots. Tates was a contractor, engaged in the business of building houses. Those two parties had a conversation or conversations which led up to the business transactions subsequently between them, wherein Tates in order to get the business of Crain, agreed to figure his prices for building operations contemplated on the basis of actual cost and 1^2 per cent, thereon as profits to the contractor. Subsequently, Crain and Tates entered into a written contract, whereby Tates was to build a house, referred to between the parties in this case as Crain No. 1 job. After No. 1 was completed by Tates, and paid for by Crain, another house was built by Tates for Crain, and paid for by the latter. During the erection of these two houses, one Lindsay was carpenter foreman for Tates, and had been working in that capacity for Tates for a couple of years. It was customary for Tates to permit him to figure on the cost of lumber and of labor on jobs, which figures would be taken by Tates and used in his estimates in arriving at contracts. ’ ,
“While the second house above referred to was under way, and almost completed, Crain told Tates that he was figuring on erecting a house for McMurray, and showed Tates a sketch of floor plans for the contemplated house, and discussed with Tates the general nature of the house, and asked Tates to figure on a price for building the house. Tates had blueprints made, and discussed with Lindsay the estimate of the cost of the supposed house. In this discussion between Tates and Lindsay, as well as between Tates and Crain, concerning the proposed house, it was considered as a house of very nearly the same sort and character as the Crain job No. 1, above referred to. Tates never individually quoted any figures on this supposed house to Crain, hut Lindsay, being Tates’ carpenter foreman, and knowing that the matter of the proposed house was under discussion and consideration between Tates and Crain, met with Grain and told Crain that he, for Tates, had figured on the probable cost of the proposed house, and submitted his estimate to Crain thereon, as follows: $2,055 being the actual cost to the contractor of Crain No. 1 job, plus $50 for water heater not included in Crain job No. 1, less $115, being cost of barn included in Crain job' No. 1, no barn being included in the job figured on, plus $150 as profits to the contractor, totaling $2,140. This amount of this estimate Crain says Lindsay quoted him as what the total cost would be, and at which Tates would build the house, while Lindsay says he merely submitted it as an estimated cost, and had no instructions from Tates to enter into a contract with Crain, and that he did not do so, and that he told Crain it was merely his estimate of the cost, supposing that Tates and Crain would make their own contract with reference to the erection of the building. With reference to this conflict between the testimony of the two gentlemen, I am compelled to resolve the doubt in favor of the testimony of Lindsay, who seems to be entirely disinterested. After seeing Crain and making him this estimate of $2,140, Lindsay went to Tates and told him that he had made the estimate at $2,140 to Crain. On the day following that on which Lindsay so told Tates, the erection of the house in question, and concerning which the above matter transpired, was begun by Tates, and prosecuted to completion, without any further understanding or agreement between Tates and Crain or any one for him. The total cost of the house, including materials, money actually paid for labor, was $2,249.30, 7Y¡¡ per cent, of which is $168.70. The reasonable value of the house as erected was between $2,400 and $2,500. I find as a definite amount, for the purpose of arriving at a conclusion, the sum of $2,418 which I find to be the actual cost, plus 7% per cent, thereof, which I think is a fair valuation. Crain has paid $2,140 to the plaintiff, it being agreed between the parties at the time of such payment that it should be made without prejudice to either party. The balance thus left remaining is $278.”

At the reguest of the defendant, the court found the following additional and supplemental findings of fact:

“First. That Crain told Yates, when he requested him to figure on the job, that he would have to know what it would cost before he could tell whether he would be able to make a deal with McMurray, the contemplated purchaser, or not.
“Second. That on the only two jobs Yates did' for Crain before the one in controversy, there was a definite price fixed on each job, which included Yates’ compensation, to wit, $2,250 on job No. 1, the contract for which was in writing, and $3,250 on job No. 2, the contract resting in parol.
“Third. That when Lindsay quoted to Crain the estimate of $2,140 on the job in controversy, Crain told Lindsay that the price quoted was satisfactory to him, and that Yates could have the job at that price. I further find that after Lindsay quoted Crain the estimate of $2,140, that Crain loft Houston for St. Louis, and was gone for several days, and when he returned Yates was at work on the job in controversy.”

Upon the foregoing facts the court concluded as a matter of law that no contract between Crain and Yates concerning the price to be paid for the house existed, and that in the absence of such a contract, the price to be paid was the reasonable value of the work, labor, and materials that entered into the cost of construction.

We think that the facts as found by the court did not justify the conclusions of law based upon them. The facts show that prior to the transaction in question, Yates had constructed two houses for Crain, each for fixed, definite amounts, job No. 1 being for $2,250, and job No. 2 for $3,250. When job No. 2 was nearly completed Crain told Yates that he was figuring on erecting a house for Mc-Murray (the house in question), and asked Yates to figure on a price for building it. He also told him he would have to know what it would cost before he could tell whether he would be able to make a deal with Mc-Murray, the contemplated purchaser. Yates had blueprints made and discussed with his carpenter foreman, Lindsay, the estimated cost of completion. It was customary for Yates to permit Lindsay to figure the cost of labor and lumber on jobs, and his figures would be taken by Yates and used in his estimate in bidding for contracts. Lindsay, the foreman, knowing of the negotiations between his principal and Crain, told Crain that he, for Yates, had figured on the cost of construction, and that he had estimated the cost at $2,140. Lindsay also told Yates that he had made this estimate to Crain. When Lindsay gave Crain this estimate Crain told him that the price was satisfactory, and that Yates could have the job at that price. Without further negotiations, and during Crain’s absence from the city, Yates began the work of construction, and thereafter completed the same according to the plans. We think that under these facts Yates must be held to have contracted to build and complete the house for $2,140, and that when Crain paid him that sum he discharged his indebtedness to him therefor, and that he was not liable for a greater sum, although the construction of the house might have cost Yates more than $2,140. It follows therefore that tire judgment of the court below must be reversed, and judgment be here rendered that Yates take nothing by his suit; and it has been so ordered.

Reversed and rendered.

       — vFnr other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    SIMON v. TEMPLE LUMBER CO.
    (No. 6820.)
    (Court of Civil Appeals of Texas. Galveston.
    June 3, 1915.)
    1. Principal and Agent <@=25 — Agency by Estoppel — Knowledge of Principal — Necessity.
    Where it was sought to hold defendant on a draft drawn by the manager of his store, on the ground that such manager had previously, before entering defendant’s employ, issued two checks in defendant’s name, defendant never having known of the issuance of such checks, and never having authorized them, there could be no agency by estoppel.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 42-45; Dec. Dig. <&wkey;25.]
    2. Principal and Agent <&wkey;25 — Agency by Estoppel — Reliance upon Appearances— Necessity.
    Where the manager of defendant’s store drew a draft in defendant’s name to pay the debt of a lumber company, in which he had been interested, to another such company, and the latter parted with nothing on receipt of the draft, but merely deposited it for collection, there could be no recovery against defendant oh such draft on the ground of estoppel, since there was no reliance upon any appearance of authority that would result in the payee lumber company’s damage were defendant allowed to deny the defendant’s manager’s authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 42 — 45; Dec. Dig. <§=25.j
    3. Principal and Agent <&wkey;109 — Authority of Agent — Store Manages.
    Where H., the manager of defendant’s store, which had fuirnislied supplies to a lumber company in which II. had once been interested, directed the store bookkeeper, who had formerly, when H. was in financial difficulties, purchased his interest in the lumber company, to draw a draft in the name of defendant, which was given to • plaintiff in payment of the debt to it of the lumber company, the defendant having no interest in the lumber concern, and knowing nothing about it, the transaction was neither within the real or apparent authority of the store -manager.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 318-322, 360, 361, 365; Dec. Dig. <§=109.]

      4. PRINCIPAL AND AGENT (&wkey;123-AUTHORITY —Issuance oe Drapt — Suppicienoy op Evidence.-
    In an action against defendant on a draft drawn by Ms store manager evidence held insufficient to show that defendant authorized such draft.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. <&wkey;> 123.]
    Appeal from District Court, Sabine County; John M. Conley, Special Judge.
    Action by the Temple Lumber Company against Phil Simon. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Hamilton & Hamilton and J. W. Minton, all of Hemphill, for appellant. A. E. & S. M. Davis, of San Augustine, and W. F. Goodrich, of Hemphill, for appellee.
   McMEANS, J.

This is a second appeal of tMs case. The opinion of the court disposing of the first appeal is reported in 146 S. W. 592.

The Temple Lumber Company sued Phil Simon on a draft for $564.82, alleged to have been drawn by the defendant in favor of plaintiff on the Brookland State Bank. On presentation, payment was refused. A trial before the court without a jury resulted in a judgment for plaintiff for the amount sued for, and defendant has appealed.

At the time of the institution of the suit the plaintiff sued out a writ of attachment, which was levied upon the property of defendant, which was afterwards replevied by him, the sureties on his replevy bond being G. W. Nerrin, W. J. Baker, J. H. Letney, Jr., and D. T. Meigs, who were afterwards made party defendants to the suit, and against whom as such sureties a judgment was also rendered for the amount of plaintiff’s demand. No appeal from the judgment has been prosecuted by them.

The defendant, Phil Simon, was a resident of the state of Louisiana. I-Ie appeared and filed an answer, in which he pleaded that the draft sued on was not executed by him or by any one authorized by him; and this plea was duly sworn to.

From the evidence in the record we make the following findings of fact: Prior to June, 1910, H. Simon and C. M. Cummings formed a partnership for the manufacture of hardwood lumber, under the firm name of Texas Hardwood Company. On May 21, 1910, they made a contract with the Garrison-Norton Lumber Company, by which they acquired the right to the hardwood timber on the land of said company, agreeing to pay $6 per thousand feet therefor. At the same time they made a contract with Frank Bell to log their sawmill, and agreed to pay him $6 per thousand feet for all logs placed upon their skid-way. The Temple Lumber Company succeeded to all of the rights of the Garrison-Norton Lumber Company under said contract. H. Simon was also engaged In the mercantile business. The Texas Hardwood Company lost money in its venture, and in June, 1910, H. Simon sold his interest in the Hardwood Company to M. B. (Maurice) Simon. Shortly after this H. Simon was adjudged a bankrupt, and his stock of merchandise was sold by the trustee in bankruptcy and bought in by the appellant, Phil Simon, who at once employed H. Simon as his agent and manager to conduct the mercantile business, and also employed M. B. Simon as bookkeeper. The business of the Hardwood Company was continued by M. B. Simon and Cummings. Phil Simon had no interest in the lumber concern, and knew nothing about it, but his store, conducted by H. Simon, furnished the Hardwood Company with goods on credit and when lumber was sold by the company the proceeds were paid to Phil Simon to cover the account.

The arrangement between the Hardwood Company and the Temple Lumber Company in regard to the payment for the timber, and with Bell for logging the mill, was this: Bell scaled the logs to ascertain the number of feet cut and put on the skidway, and kept a record of this in a book called the “scale book.” At the end of each month Cummings would “O. K.” the scale book, and Bell would take the book to H. Simon and collect the amounts due both himself and the Temple Lumber Company. On October 14, 1910, the amount due the Temple Lumber Company for timber cut during the previous month was $564.82, and a like sum was due Bell for logging. On that date Bell took to H. Simon the scale book, showing that these amounts were due, whereupon H. Simon directed M. B. Simon to issue a check on the Brookland State Bank in favor of Bell for the amount due him, which was done, and Bell presented the check to the bank, and it was cashed. H. Simon told Bell that he would mail a check to the Temple Lumber Company for the amount due it, and a draft was so mailed, and was received by the Lumber Company the next day. The draft is as follows:

“No. 68. Phil Simon, General Merchandise. Brookland, Texas, October 14, 1910. Pay to the order of the Temple Lumber Company, $564.82, five hundred and sixty-four and 82/100 dollars. To the Brookland State Bank, Brook-land, Texas. [Signed] Phil Simon, per M. B. Simon.”

The draft was made on a printed blank in which the name of Phil Simon was printed, with a blank after the word “per” for the name of the person issuing it as agent. Before the draft was presented to the bank for payment the sawmill of the Hardwood Company was destroyed by fire, and thereupon H. Simon stopped the payment of the draft. The evidence justifies the finding that the draft in question was issued by M. B. Simon on the authority of H. Simon, but there is no evidence in the record to justify a finding that H. Simon had authority to issue, or to authorize the issuance, of drafts in the name of his principal, Phil Simon, to pay the debts of the Hardwood Company. The evidence relied upon by appellee to show H. Simon’s authority in this regard is the following: After the suit was filed A. E. Davis, attorney for the Temple Lumber Company, went to De Ridder, La., to see Phil Simon about it, taking the draft. His testimony as to this is as follows:

“I pulled the draft from my pocket and handed it to Phil Simon, and the first question I asked him was, was this his draft, and he said it was, but that he had stopped payment of it. I will state further that at the time I presented this draft to Phil Simon for payment he examined the draft carefully before he said it was his draft.”

Phil Simon admitted this conversation between himself and Davis, but explained that what he meant by saying that it was his draft was that his name was signed to it.

Another circumstance relied upon by appellee to establish the authority of H. Simon to issue the draft was the fact that during the time H. Simon was interested in the Hardwood Company he issued two checks in the name of Phil Simon, one for $47.15 to the Temple Lumber Company in payment for timber, and the other in a like amount to Bell for logging the mill. It was shown, however, that Phil Simon never knew of the issuance of these checks,- and that he never authorized their issuance. There was no evidence to authorize the conclusion that there was any apparent authority in either H. Simon or M. B. Simon to draw the draft upon which appellee relied. Appellee parted with nothing upon receipt of the draft, but simply deposited it in the bank for collection, and, payment being refused, it brought this suit. Neither the pleadings nor the evidence raises the issue of estoppel.

Under the facts stated the evidence falls short of proof that in issuing or causing to be issued the draft in question H. Simon was acting within the scope or apparent scope of his agency, and that Phil Simon was bound thereby. This being true, appellee was not entitled to a recovery against Phil Simon on the draft or for the amount thereof, and appellant’s first assignment of error, complaining of the action of the court in rendering judgment against him, must be sustained.

The court upon the request of the appellant reduced to writing and filed its findings of fact and conclusions of law. Among the other findings is this:

“I therefore find as a fact that the draft herein sued on was authorized by Phil Simon, and that the same is the draft of Phil Simon, and that the said Phil Simon became liable to pay the same.”

This finding is attacked by appellant by an appropriate assignment of error. We have carefully read all the oral testimony contained in the statement of facts and find that there is no evidence in the record to justify this finding^ The assignment is sustained.

It follows that the judgment of the court below should be reversed, and judgment be here rendered that appellee take nothing against appellant and the sureties on his replevy bond; and it has been so ordered.

Reversed and rendered.
      ig^oFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <S^»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    ORANGE IRON WORKS v. STAFFORD.
    (No. 6811.)
    (Court of Civil Appeals of Texas. Galveston.
    April 28, 1915.
    Rehearing Denied May 27, 1915.)
    1. Bills and Noses <&wkey;429 — Liability 01? Maker — Payment.
    The receiver of an exchange, which, without consideration, had received defendant’s note for $150 and had given him credit therefor on its books, and had transferred it to a bank which had loaned it money, and paid the amount of the note to the bank at a time when indebted to defendant for a greater amount, and thereupon charg-ed defendant the amount of the note, but which had failed to return it to defendant on the ground that it had been lost, could not recover on the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1245-1250, 1262, 1263; Dec. Dig. <&wkey;>429.]
    2. Sales <&wkey;202 — Title and Right or Pos- • SESSION.
    Plaintiff ordered goods to be manufactured by defendant and shipped to a named consignee, for which defendant was to receive a certain amount, which he charged to plaintiff, and after the goods had been shipped and refused by the consignee defendant, without consulting plaintiff, paid the freight charges, resold some of the goods, and reshipped the remainder to his factory, crediting plaintiff with the amount which he was to receive therefor. Held, that the title to the goods had not passed to plaintiff, that defendant was authorized to take possession and dispose of them, and that plaintiff was not entitled to recover their value without paying defendant the contract price, found to be the amount the goods were worth.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 542-551; Dec. Dig. <@^202 J
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by R. R. Stafford, receiver, against the Orange Iron Works. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Bisland & Bruce, of Orange, for appellant. Jas. A. Harrison, of Beaumont, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee, as receiver for the Lumbermen’s Machinery & Equipment Exchange, against C. W. McFarlane, sole owner of the Orange Iron Works, under which name and style he conducted a manufacturing business in the city of Orange. The cause of the action is alleged in the petition as follows:

“That heretofore, to wit, on or about December 12, 1911, the defendant made, executed, and delivered for a valuable consideration to the Lumbermen’s Machinery & Equipment Exchange his certain promissory note of said date, in the sum of $150, due 30 days after date, payable to the order of Lumbermen’s Machinery & Equipment Company, at First National Bank of Beaumont, Tex., with interest from date at the rate of 8 per cent, per annum and 10 per cent, additional as attorney’s fees if not paid at maturity and collected by an attorney or by legal procedure. That there is no such concern as Lumbermen’s Machinery & Equipment Company, but said note was intended to be payablc-to the Lumbermen's Machinery & Equipment Exchange, and was so written by mistake. That the Lumbermen’s Machinery & Equipment Exchange famished the consideration for said note for the owner thereof, and same was delivered to the Lumbermen’s Machinery & Equipment Exchange, whereby the defendant bound itself and became liable to pay to said Lumbermen’s Machinery & Equipment Exchange, and to this plaintiff, as receiver thereof, the said note according to its legal tenor and effect, and, though ofttimes demanded, the defendant has failed and refused to pay the same or any part thereof, to plaintiff’s damage $200.
“The plaintiff shows further that Lumbermen’s Machinery & Equipment Exchange had shipped to the Industrial Lumber Company, in the state of Louisiana, certain • goods, wares, and merchandise of the value of $897.00; that the Industrial Lumber Company refused to accept or receive said goods, wares, and merchandise, and the defendant, without legal right or authority, took'possession of all of same, and converted and appropriated same to its own use and benefit during the month of September, A. D. 1912; that though ofttimes requested and demanded, the defendant has failed to deliver said goods, wares, and merchandise to the plaintiff, and has failed to account to plaintiff for the value thereof, to plaintiff’s damage $400; that said goods, wares,- and merchandise, when received and converted by the defendant, were of the reasonable market value of $400.
“Premises considered plaintiff prays for citation to the defendant, and, on hearing, for judgment for its debt and damages aggregating the sum of $600, and for all costs and for general relief.”

The defendant pleaded, in substance; that the note sued on was executed for the purpose of enabling the Lumbermen’s Machinery & Equipment Exchange to borrow money thereon for its own use and benefit, and defendant received no consideration therefor; that when said note was executed said Exchange was indebted to defendant and has been so indebted to him ever since said date; that immediately after the execution of the note it was transferred to the First National Bank of Beaumont, and upon its maturity was paid by said Exchange; that when said note was executed the Exchange gave defendant credit upon its books for the amount of the note, and when it was paid by the Exchange defendant was charged with said amount, and said note should have been then delivered to defendant, but the officers of said Exchange informed defendant that the note had been lost or misplaced and for that reason it was not delivered to him.

In answer to the second count in the petition the defendant pleaded:

“That on the - day of December, 1911, said Exchange directed this defendant to manufacture and ship to the Industrial Lumber Company at Oakdale, La., certain goods, wares, and merchandise, amounting to the value of $311.24, the items of which are set out and fully described in Exhibit A, hereto attached and made a part hereof. That this defendant, in pursuance of said instructions, manufactured and shipped to the said Industrial Lumber Company, at Oakdale, La., on the-day of--, 1912, the goods described in said exhibit; that on the -- day of -, 1912, he was notified by the Gulf, Colorado & Santa Fé Railway Company that said goods were in their freight depot at Oakdale, and that the same would be sold to pay the freight charges thereon, and the Industrial Lumber Company, to whom said goods were consigned by this defendant by order of said Exchange, refused to receive said goods, and the defendant, for the purpose of protecting the rights of all parties herein, paid the freight thereon and had the goods reshipped to Orange, the initial point of shipment, and defendant says that he is ready, willing, and able to deliver said goods to the said Exchange at such time and whenever said Exchange will pay to him the value of said goods. That he is not indebted to the said Exchange, and neither was he indebted to said Exchange at the time of the said shipment to the Industrial Lumber Company of said goods, but that since said shipment of said goods this defendant, to preserve the same, has not only been re-quix-ed to pay the freight on said shipment to Oakdale, but to prepay the freight on said shipment back from Oakdale, which freight charges amounted to the sum of $53.93, and that plaintiff, among other things, is justly indebted to him in said sum, and of all the foregoing the defendant puts himself upon the country, and asks judgment of the court.”

The trial in the court below without a jury resulted in a judgment in favor of plaintiff for the sum of $331.75.

We have read the entire statement of facts and our conclusion is that all of the material allegations of defendant’s answer are sustained by the undisputed evidence.

W. B. Greeves, who was manager for the Exchange before it went in the hands of the receiver, testified that the $150 note has never been paid by defendant, but he further testified that when the note was executed defendant was given credit for the amount upon the books of the Exchange, and when the Exchange paid the amount of the note to the bank and received the note defendant was charged with said sum. The evidence further shows, without contradiction, that at the time the amount due on this note was paid to the bank by the Exchange, on January 12, 1912, said Exchange owed the defendant, according to its books, the sum of $241. On February 1, 1912, the amount due the defendant by the Exchange was $292.32, and on May 1, 1912, $362.47. The testimony of the defendant that Greeves and other officers of the Exchange informed him that the note was lost and for that reason hf.d not been returned to him, and that when found it would be sent to him, is not denied.

The evidence in regard to the articles which the defendant is charged to have converted is also uncontradicted. These articles, which consisted of dolly wheels, dry kiln trucks, and other sawmill supplies, were manufactured by defendant upon order of the Exchange and shipped to the Industrial Lumber Company at Oakdale, La. The defendant was to receive for these goods $311.24, which amount he charged to the Exchange. Some time after the goods were shipped defendant learned, that they had been refused by the Lumber Company and were about to he sold by the railroad for freight and demurrage charges. He thereupon without, it seems, consulting the Exchange, paid the freight charges, resold some of the goods, and reshipped the remainder to his factory at Orange. When he took these goods back he credited the Exchange with the $311.24 due him therefor.

We do not think that upon these facts it can be held that the title to the goods passed to the Exchange, and defendant was not authorized to take possession and dispose of them. The Exchange would not be entitled to recover the value of the goods from defendant without paying him the contract price therefor, and the trial court finds that the goods were only worth the amount the Exchange agreed to pay defendant therefor.

We think the judgment in favor of the plaintiff is without any evidence to support it. It follows that the judgment should be reversed, and judgment here rendered for the appellant; and it has been so ordered.

Reversed and rendered.
      &wkey;»Eor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BRYANT.
    (No. 1479.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1915.
    Rehearing Denied May 27, 1915.)
    CORPORATIONS <&wkey;308 — MANAGER OE RAILROAD — Right to Salary — Leave op Absence.
    The general manager of defendant railroad, authorized thereto, appointed an assistant general manager to hold the position at his discretion at a fixed salary per month, and, on the ground of his ill health from application to his duties, granted him a leave of absence from October 13, 1911, until January 8, 1912, on salary and subject to orders and directions, the defendant’s by-laws then containing no provisions as to leave of absence or deduction of salary, and the assistant general manager, who dui’ing his absence had written daily letters with reference to the business of his office on his return on January 8th and on his request, was relieved of his position and appointed to another. Held, that the relation of employer and employe continued, and that the assistant general manager could recover his fixed salary for the period of his absence, and that payment thereof was not prohibited by Rev. St. 1911, art. 1164, providing that no corporation shall employ or use its means except in the legitimate objects of its creation.
    [Ed. Note. — Pbr other eases, see Corporations, Cent. Dig. §§ 1334-1349; Dee. Dig. &wkey;308.] .
    Appeal from District Court, Hunt County; A. P. Dononey, Judge.
    Action by C. M. Bryant against tbe Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Action by appellee against appellant company for a balance of salary as its assistant general manager. In a trial before the court without a jury judgment was given for the plaintiff. The findings of fact made by the trial court are adopted. The ultimate facts are that in 1910 the vice president and general manager of appellant appointed and employed the appellee to fill the position of assistant general manager, which was theretofore created for the efficient operation of the railway. Appellee was to hold the position at the discretion of the officer appointing him, and receive $500 per month. The vice president and general manager had authority to appoint and employ the assistant general manager, and to direct and control such assistant manager in the performance of the duties of the office. The salary for the office of assistant general manager was established under the provisions of the by-laws at $500 per month. On October 13, 1911, appel-lee applied to the vice president and general manager for a temporary leave of absence, on account of temporary illness due to excessive work in his position, which was granted by the vice president and general manager. The vice president and general manager in granting the temporary leave of absence stated to appellee that he had merited by his work a rest from the excessive labors, and that during his leave of absence his salary would continue payable to him and without deduction for absence. At the time of granting the leave of absence it was further understood and agreed between the vice president and general manager and the ap-pellee that during his absence the appellee was to be subject to orders and directions. The by-laws of the company make no provision for the deduction of salary in case of absence, and make no provisions either granting or refusing leave of absence, nor was there any agreement in the employment of appellee for deduction of salary during the period of absence. Appellee’s leave began October 13, 1911, and he went to Kentucky to recuperate, remaining several weeks, and while there wrote one to two letters daily with reference to the business of his office. After returning'to his home in Dallas appel-lee performed some service of his office. On January 8, 1912, the leave expired, and ap-pellee voluntarily asked to be relieved of his position, and was, on January 9, 1912, relieved of that position and appointed division superintendent, which place he filled. The record admits the leave of absence was on account of sickness, and that the act of ap-pellee and that of the general manager were both in good faith. Appellant company declined to pay the appellee thé salary of assistant general manager during his leave of absence, which -was granted from October 13, 1911, to January'S, 1912, and the suit is to recover this amount. It appears that Mr. Walton was placed in active charge as acting assistant general manager during the period of appellee’s leave of absence, but it does not appear from the findings whether or not he received the compensation of the office for such service. As the portions of the by-laws of appellant offered in evidence and involved in the findings above were admitted to be correct, it is unnecessary to copy them here, and they may he referred to.
    Dinsmore, McMahon & Dinsmore, of Green-ville, for appellant. Bowman & Kemp and Yates, Sherrill & Starnes, all of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above). The question presented by the assignments of error is that of whether the appellee is legally entitled to have paid him the salary of assistant general manager during the time he was on a temporary leave of absence, effective October 13, 1911, to January 8, 1912. And it is concluded that the ruling of the trial court awarding him the salary should be sustained, for it is believed that any legal ground to deny such recovery does not appear in the facts. The period of temporary absence was authorized and granted in good faith by the vice president and general manager of appellant, who had authority to employ the assistant general manager and to exercise control over the performance of the work. And the authorization of the leave of absence expressly provided that the salary should be drawn by appellee during the period of leave. And neither the by-laws of appellant nor the resolution of the board of directors fixing the salary of assistant general manager makes provision for deductions of salary in case of absence or failure to perform duties. The authority of the general manager to control the performance of the work of the assistant may fie, it is thought, to the extent of prescribing the manner and period of work. The period of work, as to number of days in the week or weeks in the month, or months in the year, lay in the exercise of discretion on the part of the general manager and according to terms of employment. And having the authority of prescribing the manner and period of work by the assistant, the general manager may fairly contract and make agreement, as within the authority conferred upon him by the company, in respect to a temporary leave of absence. Therefore the general manager in granting the leave of absence did not act in violation of any by-law of the company nor contrary to his authority. The leave of absence being expressly authorized, the relation of employé and employer did not terminate either in point of fact or by operation of law, but continued, during the period of absence. And, appellee being an employs, the element of temporary absence from work, being expressly authorized, would not operate to deny the right to the salary as provided in the employment, because the contract or agreement of the general manager and ap-pellee expressly provided that the salary should continue to be paid without deduction during the period of the leave granted. An authorized leave of absence without deduction of pay may, it is believed, be the proper subject-matter of valid and enforceable agreement between employer and employs. The health and a continued state of efficiency of the employs to continuously work for a fixed period, involved in the temporary absence from work, may be valuable enough to the employer to furnish a sufficient consideration for making such agreement, and it is not perceived that a different rule would be applicable to a railway company. Article 1164, R. S., does not at all, it is thought, in letter or spirit, prohibit railway companies from fairly authorizing reasonable leave of absence without deduction of pay to either its corporate officers or employés. And such character of agreement is not in contravention of that article, as insisted by appellant, as diversion of means or funds of the company. And it is further concluded that the authorization of pay to an officer or employé on reasonable temporary leave of absence, occasioned by illness or need of recuperation from the effect of continuous work, is not such diversion or misuse of the means of the company as to make void.such character of agreement or authorization, because a railway company, upon the ground of public policy. In the case of Brown v. Wharf Co., 92 Tex. 520, 50 S. W. 126, the president of the wharf company was granted a leave of absence, and his right to the salary of the office during absence was allowed upon the ground that the by-laws made no provision for deductions for absence or failure to perform the duties, and the salary was an incident to the office he was holding. And in legal principle an employ® is not more bound to devote his whole time to the stipulated work than a salaried corporate officer.

The assignments are overruled, and the judgment is affirmed.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes,