author: RASBURY, J.

text:
    NEW JERSEY FIRE INS. CO. v. BAIRD et al.
    (No. 7550.)

    (Court of Civil Appeals of Texas. Dallas.
    May 13, 1916.
    Rehearing Denied June 24, 1916.)
    1. Continuance <©=>30 — Right to —Denial oe Application.
    In an action on a fire policy where the insurer sought to defeat liability on the ground of other insurance, and its attorneys made inquiry as to how the defense would be met, and plaintiff’s counsel stated that it would be traversed, the denial of a continuance requested, when, at trial, plaintiff filed an amended pleading setting up that the additional insurance was obtained with the knowledge and consent of the insurer, was not an abuse of discretion, where it did not appear that, had the continuance been granted, the insurer could have obtained evidence to rebut such defense.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. <@=>30.]
    2. Insurance <©=>376(3) — Fike Policies — Authority op Agent.
    A local agent of a fire company, authorized to solicit insurance, deliver policies, and collect premiums, may waive conditions and forfeitures in the policy regardless of the authority conferred by the insurer, unless the insured knows of such limitations on his authority.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 952, 955; Dec. Dig. <©=>376(3).]
    3. Insurance <@=>383 — Fire Insurance — Conditions — Waiver.
    A local insurance agent authorized to waive conditions and forfeitures contained in a fire policy may waive them by parol.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1018; Dec. Dig. <@=>383.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by. Emma C. Baird and others against the New Jersey Fire Insurance Company, in which W. T. Henry and another were made parties. From a judgment for plaintiffs, and W. T. Henry and another, defendant appeals.
    Affirmed.
    Senter & Synnott, of Dallas, for appellant. Short & Field and Leake & Henry, all of Dallas, for appellees.

      Application for writ of error pending in supreme Court.

   RASBURY, J.

Appellees sued appellant upon a policy of insurance issued hy the latter to W. R. Lynch, insuring him against all direct loss or damage hy fire to his two-story frame residence at 901 West Ninth street, Dallas, Tex., in an amount not exceeding $3,000. Appellees alleged that they were the owners of the insured premises as well as the beneficiaries in the policy of insurance. They also alleged that while the policy was in force the insured promises were totally destroyed by fire, subsequent to which they observed and performed all things required of them by the policy to be performed, and that appellant had investigated the loss and satisfied itself that it .was hound upon the policy, and offered to pay ap-pellees $2,700 thereon, which they refused. They made W. T. Henry, Esq., and S. J. McFarland, Esq., to whom the insurance was first payable as trustees for the Security National Bank, as security for an indebtedness of $2,500, parties to the suit, and prayed judgment for the full amount of the policy, according to its terms and the rights of the beneficiaries therein named.

For the purpose of this appeal appellant answered that the policy, save in reference to the amount of the bank debt for which it was liable in any event under its attached mortgage clause, was void and unenforceable for the reason that appellees had, without the consent of appellant, obtained additional insurance upon the insured premises. Appellant' offered in its answer to pay the amount of the hank’s claim, upon being sub-rogated to the bank’s security under the provision in its policy conferring that right. By subsequent appropriate pleading, appel-lees alleged that appellant was cognizant of the additional insurance and consented thereto, which appellant in turn denied. The defendant 'trustees by appropriate pleading sought judgment against appellant for the amount of the debt due the bank. A jury was demanded and impaneled. Upon conclusion of the testimony the jury, in compliance with peremptory instruction from the court, returned verdict for the bank for $2,723.28, its accumulated debt, and for appellees for $419.22, the balance of the policy. Judgment was in accordance .with the directed verdict and from which this appeal is prosecuted, save that no attack is made upon the verdict and judgment for the hank.

On November 25, 1912, W. R. Lynch was owner of the residence at 901 West Ninth street, Dallas, Tex., and the land upon which same was situated. On that date, appellant insured Lynch against loss on the building by fire to the extent of $3,000, with the loss payable to R. H. Clem, trustee, as his interest might appear. January 13, 1913, the appellant by indorsement upon its policy made any loss thereunder payable to Messrs. Henry and McFarland, who were trustees for the Security National Bant, owner of a mortgage debt thereon. On and prior to February 10, 1913, Martha C. Beaupre acquired the property from Lynch. Before purchasing the property, however, Mrs. Beau-pre called on Lynch, who represented himself to be the agent of appellant, and asked him if she could obtain additional insurance, on the premises. With her was O. H. Ver-schoyle, the agent of the company, .who proposed to write the additional insurance. After advising Lynch what she desired he, assuming to act for the appellant, told Mrs. Beaupre in effect that he consented to the additional insurance.- After this conversation Mrs. Beaupre acquired the premises, the other policy of insurance was issued, and Lynch assigned the existing policy to Mrs. Beaupre, to which assignment appellant consented in writing. Afterward Mrs. Beaupre sold and conveyed the premises to O. E. Roderick, assigning the appellant’s policy to him and to which appellant in writing consented. Roderick in turn sold and conveyed the premises to J. J. McClurg, assigning appellant’s policy, and to which appellant also in writing consented. McClurg sold and conveyed the premises to appellee, Mrs. Emma C. Baird; she also assigning appellant’s policy and to which appellant in writing consented. The other policy of insurance was in similar manner assigned to the successive purchasers of the land and premises. Subsequent to all of the foregoing, the insured premises were totally destroyed by fire. After the fire, agents of appellant attempted to adjust the loss with appellees, during which negotiations liability on the policy was not denied because of the additional insurance, although one of the agents knew of the additional insurance when he attempted an adjustment. Among other provisions of the policy was one declaring that the entire policy should be void, in the event the insured should procure other insurance on the premises without securing the consent of the insurer indorsed upon or added to the policy. There was no such indorsement upon the policy. The agency of Lynch was disputed by appellant, and we will state the facts on that issue at another place. Otherwise the foregoing is* in our language the substance of the essential facts adduced at trial.

The first assignment of error complains of the action of the court in overruling appellant’s application to continue the case. In the application it was shown, in substance, that the cáse was assigned for trial April 21, 1915, and that prior thereto appellant had filed answer denying liability on the policy on the grounds we have stated, and that from time to time thereafter inquiry was made of counsel for appellees in what manner they would meet such defense, and were told in effect that appellees would “merely traverse” appellant’s answer. Appellant, because of counsel’s statement, believed its plea would only be denied and the consequent issue accordingly cast; but when the case was called for trial appellees, by amended pleading, for the first time charged that the additional insurance was obtained with the knowledge and consent of appellant. It was further shown in the application that as result of the facts therein stated appellant was surprised and was not ready to go to trial. The foregoing fairly states the substance of the application; and, based thereon, we conclude the court did not err in overruling same. There was no claim made that there was evidence obtainable and necessary to meet the unexpected change in appellee’s pleading on the issue tendered. Or that appellant did not know what the facts were in reference to the consent to other insurance, and desired further time in which to ascertain them. In such cases, whether the application should be granted is matter largely in the discretion of the trial court, and, in the absence of any showing that real injury resulted in refusing the application, that discretion will not be disturbed. I. & G. N. R. R. Co. v. Howell, 101 Tex. 603, 111 S. W. 142.

Following the assignment just discussed aré a number of others challenging from various angles the action of the court in directing verdict for appellee. The first of the series of assignments, however, in our •opinion comprehends and controls*the others. Said assignment, in effect, asserts that Lynch was not an agent authorized in law to waive the provision of the policy precluding additional insurance on the premises unless appellant’s consent thereto was attached or indorsed upon the policy. The issue thus raised makes it necessary for us to review the evidence in order to determine Lynch’s relation to the company and his consequent right to waive the provision in the policy. The only evidence on that issue is that of Lynch. No officer, agent, or representative of appellant testified concerning Lynch’s relation to the company, or denied or affirmed his right to waive the provision of the policy under discussion. Lynch’s testimony on the precise question of agency, carefully analyzed, discloses the following facts: He was a builder, real estate and fire insurance agent and notary public. He was once the owner of the insured premises and sold them to Mrs. Beaupre. While she owned the premises Lynch was agent for appellant and had a “commission” as such, and during his agency issued policies for appellant. While he was such agent and while Mrs. Beaupre owned the property, he agreed as such agent that the additional insurance might be procured upon the premises. On cross-examination the witness stated that he did not pass upon risks, or issue the policies. The policies were, upon his report of applications therefor, written in the office of John R. Hancock & Co. What he did was to solicit the insurance, deliver the policies, collect the premiums,'and keep a set of hooks, wherein he charged John R. Hancock & Co. with his commission, on each policy secured, and credited them in like manner with all paid.

Of the foregoing facts there is no contradiction. Lynch was a commissioned agent with authority, according to his statement, to solicit insurance, issue policies, and collect premiums. However, he did, on cross-examination, admit that the policies were written in and issued from the office of John R. Hancock & Co., who, we assume, .were general agents, and that they passed on the risk. This admission is at most a limitation of 'his authority and does not at all disprove agency. Further, while the appellant, who commissioned Lynch as agent, was not compelled to deny or admit the agency, yet its failure to do so inferentially, at least, supports his claim that he was its agent. Then, under the uncontradicted facts of agency, with the admitted limitation, was he authorized to consent to the additional insurance? An accepted authority says that there “is a ‘veritable maze’ of conflict in regard to the authority of agents to waive forfeitures and conditions in insurance policies.” 3 Cooley’s Ins. Briefs, 2475. After pointing out that officers, general agents, and other agents with named powers may waive forfeitures and conditions, he adds that local agents likewise possess similar’ authority. We mention local agents for the reason that we conclude that Lynch was under the powers conferred upon him in contemplation of law a local agent. The authority just cited holds that while the term local agent is meaningless, so far as relates to such agent’s authority, yet such agent is, in law, one who represents his company in a particular place or locality. Id. 2481. Lynch was such an agent, since it appears without dispute that he was commissioned by appellant, his authority being that which we have detailed. Admitting that as between Lynch and the appellant he was without authority to waive the provision of the policy he did waive, yet, according to Mr. Cooley, “if he is (the local agent), he has general authority to act for the company and can waive conditions and forfeitures, unless his authority is specifically limited, to the knowledge of the insured.” Id. 2481-2, and cases cited. It does not appear from the evidence in this case that ap-pellee had knowledge of the fact that Lynch was without authority to waive any provision of the policy. Hence the rule stated controls the disposition of this appeal, since, if Lynch being a local agent could, in the absence of knowledge on part of appellee to the contrary, waive the forfeiture clause, the case will necessarily have to he affirmed; since it is further well settled in this state at least that when the right to waive exists it may be done verbally, notwithstanding the provision of the policy that it shall be in writing. Crescent Ins. Co. v. Griffin, 59 Tex. 510; New Orleans Ins. Co. v. Griffin, 66 Tex. 232, 18 S. W. 505; Wagner & Chabot v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S. W. 569.

The judgment is affirmed.
      <£x=For other cases see same topic and KEY-NUMBER iD all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    ST. LOUIS, I. M. & S. RY. CO. v. LANDA & STOREY et al.
    (No. 5684.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 14, 1916.
    Rehearing Denied June 30, 1916.)
    1. Appeal and Error <@=>758(3) — Assignments — Numbers—Court Rules.
    Giving numbers to assignments of error in the brief not corresponding to the numbers of the same assignments in the motion for new trial is expressly permitted by Court of Civil Appeals rule 29 (142 S. W. xiii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 758; Dec. Dig. <@=>758(3).]
    2. Pleading <@=>228 — Exceptions—Contract Violating Laws.
    An exception to the petition as seeking to enforce a contract illegal as violative of the United States laws relating to rates on interstate commerce need not name the particular laws.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584^-590; Dec. Dig. <@=>228.]
    3. Pleading <@=>85(1) — Objections—Time to Make.
    Objection that the suit is based on an illegal contract when the petition discloses it, may be made at any stage, as it goes to the substance of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 172, 173; Dec. Dig. <@=>85(1).]
    4. Carriers <@=>13 (2) — Rebates—Compromise op Claim.
    An agreement of a carrier to pay a certain amount in compromise of an unliquidated claim for damages for alleged negligence, in consideration of the claimant making all his subsequent interstate shipments over the carrier’s line, violates the law against rebating.
    [E'd. Note. — For other cases, see Carriers, Cent. Dig. §§ 22, 24; Dee. Dig. <@=>13(2).]
    5. Carriers <@=>13(1) — Agreement fob Rebate — Estoppel—Illegal Contracts.
    A carrier will not be required on the ground of estoppel to perform its part of a contract, illegal as giving a rebate, because of the shipper having performed his part.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 21, 24; Dec. Dig. <@=>13(1).]
    Error from District Court, Hays County; Frank S. Roberts, Judge.
    Action by Landa & Storey against' the St. Louis, Iron Mountain & Southern Railway Company and others. There was judgment against the named defendant, and it brings error.
    Reversed and dismissed.
    See, also, 149 S. W. 292.
    Guinn & McNeill, of San Antonio, for plaintiff in error. O. T. Brown and E. M. Cape, both of San Marcos, for defendants in error.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

Landa & Storey sued the St. Louis, Iron Mountain & Southern Railway Company, a foreign corporation, the Texas & Pacific Railway Company, the International & Great Northern Railway Company, and James A. Baker and Cecil A. Lyons, receivers of said last-named company, alleging that on or about August 14, 1909, plaintiffs instituted a suit in the district court of Hays county against the said St. Louis, Iron Mountain & Southern Railway Company, the Texas & Pacific Railway Company, the International & Great Northern Railroad Company, and T. J. Freeman, receiver of said last-named company, wherein plaintiffs sought to recover a sum as damages alleged to have been occasioned by the negligence of the defendants therein “in the course of the shipment of a lot of beef cattle shipped by the plaintiffs from New Braun-fels Tex., to the National Stockyards at East St. Louis, Ill.,” said cause being numbered No. 2147 on the docket of said court; that plaintiffs were exclusively engaged in shipping beef cattle from points in Western Texas to the National Stockyards at' East St. Louis, Ill.,' and at the time had the privilege of shipping the same over various routes to the entire exclusion of the route afforded by the defendants in said suit, which route is for convenience styled the Iron Mountain route, and plaintiffs were shipping the same over such other routes, all of which was well known to said defendants, and said defendants, desiring to share in the traffic thus promoted by plaintiffs, were willing to come to a “settlement of said suit by a compromise agreement to that end, and with a view to that purpose” said Receiver Freeman, said Texas & Pacific -Railway Company, and said St. Louis, Iron Mountain & Southern Railway Company on the one hand, acting through their authorized agents, and plaintiffs, on the other hand, on or about 'May 7, 1911, for a valuable consideration, agreed upon a compromise of said suit; that said agreement, in substance, was (1) that the defendants should and would pay plaintiffs in cash $700 of the $720 damages claimed in that suit and the accrued costs of suit; (2) that plaintiffs should and would accept the payment of same as full settlement and discharge of the damages claimed, in said suit; and (3) that from said date forward plaintiffs should and would route all the cattle shipped by them during the remainder of the cattle shipping season of that year so that the same would be carried over said Iron Mountain route; that said agreement was directly aft-erwards made known to said defendants in that suit and ratified by them before plaintiffs routed their subsequent shipments in conformity with that agreement; that the time within which plaintiffs were to be paid was not specified, but it was understood and agreed that payment was to be made within a reasonable time, and that 60 days was a reasonable time; that plaintiffs relied upon said agreement' and complied therewith-by routing all of their shipments of cattle during said shipping season so that they were received and carried by defendants from various points in West Texas to the National Stockyards at East St. Louis, Ill., there being about 60 cars, on all of which plaintiffs paid the entire freight, amounting in the aggregate to about $7,000 or $8,000, which was received by said defendants; that said defendants received said freight, although they intended all the while to refuse payment of the sums agreed to be paid by them to plaintiffs according to the terms of said agreement, which sums were alleged to be $700 and $42; that defendants have failed and refused to pay the sums due plaintiffs under said agreement, and are justly indebted to plaintiffs in said sums, with interest from July 7, 1911.

Plaintiffs alleged that the International & Great Northern Railway Company purchased the assets of and became liable for the debts of the International & Great Northern Railroad Company.

The St. Louis, Iron Mountain & Southern Railway Company filed a plea in abatement; a general demurrer; special exceptions; denials of the material allegations of the petition; a plea to the effect that, if any compromise agreement was made, it was abrogated by plaintiffs by their election to proceed with said cause No. 2147 and the prosecution thereof to final judgment; a plea to the effect that, if such a compromise agreement was made, and the consideration was as alleged by plaintiffs, then that such agreement was illegal and void, in that it is contrary to and forbidden by the laws of Texas, and of the United States, in that it granted a privilege and advantage to plaintiffs not open to other shippers of the same character of freight transported in the same manner and over the same lines, and was equivalent to a reduction in plaintiffs’ favor of the freight rates authorized and published by the Interstate Commerce Commission for that kind and character of freight over the lines of defendants, and was an undue and unlawful discrimination in plaintiffs’ favor. Said defendant also denied that it was indebted to plaintiffs as alleged in said cause No. 2147, and denied that it was negligent with reference to the shipment described in said suit.

Plaintiffs, by supplemental petition, denied the allegations above stated. Plaintiffs dismissed as to all defendants except the St. Louis, Iron Mountain & Southern Railway Company, and upon a trial before the court judgment was rendered against said company for $720, with interest thereon from July 7, 1911. Said railway company, by writ of error, seeks revision of the judgment against it.

The evidence shows that an agreement was made by D. C. Smith, live stock agent of plaintiff in error, with defendants in error, substantially as alleged in the petition. The amount to be paid was $720.70, the full amount claimed in cause No. 2147, exclusive of interest. The evidence was conflicting as to whether the agreement provided for the payment of costs incurred in cause No. 2147 and the payment of interest on the sum of $720.70 from May 16, 1908. The court found against plaintiffs on these items, and allowed $720, with interest thereon beginning 60 days after May 7, 1911, the date of the compromise agreement.

Landa & Storey had ceased shipping over the Iron Mountain route during the penden-cy of- cause No. 2147, and the compromise agreement was made for the purpose of getting them to ship all of their cattle over said route during the remainder of the cattle shipping season of 1911 at the usual and regular freight rates, and it was contemplated by both parties that the regular freight would be collected on each shipment when it should be made. Plaintiffs complied with the agreement to ship exclusively over the Iron Mountain route, shipping 74 cars in all during the remainder of the year 1911, on which they paid the usual freight, amounting in the aggregate to $7,978.71. Defendants failed to pay the sums agreed to be paid by them, whereupon plaintiffs proceeded with the trial of cause No. 2147, obtained a judgment against the St. Louis, Iron Mountain & Southern Railway Company for the full amount of the claim, with interest thereon, but not against the other defendants, and said judgment, in so far as it affected said St. Louis, Iron Mountain & Southern Railway Company, was reversed by the Court of Civil Appeals of the Third District, and the cause remanded, whereupon, prior to the trial of this case, said cause No. 2147 was dismissed.

Plaintiff in error, by its third assignment of error, complains of the overruling of an exception to the petition, wherein it was contended that the petition stated no cause of action, for the reason that the contract sought to be enforced therein was illegal, in that it violated the laws of the United States relating to rates upon interstate commerce. While this exception was styled a special exception, it goes to the foundation of the cause of action asserted.

By the fourth assignment plaintiff in error contends that the evidence shows the compromise agreement to have been an illegal one, because in violation of the laws of the United States relating to interstate commerce.

These assignments will be considered together. Defendants in error object to the consideration thereof on the ground that the numbers given said assignments in the brief do not correspond with the numbers of the same assignments in the motion for new trial, but such change of numbers is expressly permitted by rule 29 for the Courts of Civil Appeals (142 S. W. xiii). They also object on the ground that the so-called “special exception” failed to name the particular laws which were relied-upon. This was unneces- ' sary. In fact, when the petition discloses that the suit is based upon an illegal contract, the objection may be made at any stage of the proceedings, for it goes to the substance of the petition, and the error, if any exists, is fundamental. T. P. Coal Company v. Lawson, 89 Tex. 403, 32 S. W. 871, 34 . S. W. 919; Fuqua v. Brewing Company, 90 Tex. 301, 38 S. W. 29, 35 L. R. A. 241; Redland Fruit Company v. Sargent, 51 Tex. Civ. App. 022, 113 S. W. 330; Norris v. Logan, 100 Tex. 228, 97 S. W. 820.

The contract as alleged and proved is one by which plaintiff in error, for the purpose of obtaining the shipment over its road, and the roads of the other companies, of all cattle to be shipped by Landa & Storey during the cattle shipping season of 1911, at the usual and regular freight rates, b.ound itself to pay to Landa & Storey a certain sum of money in settlement of an unliquidated claim for damages alleged to have been sustained by Landa & Storey by reason of negligence on the part of plaintiff in error and the other railroad companies in the transportation of cattle. This claim had been sued upon and the suit contested by the defendants therein. The compromise agreement was one involving shipments of cattle to National Stockyards, and therefore related to interstate commerce, and such interstate shipments were in fact made, and are relied upon to show compliance by Landa & Storey with the terms of the compromise agreement. It follows that, if the agreement provides for a rebate or for discrimination, such rebate or discrimination will be with regard to interstate commerce. We will therefore consider this case in the light of the federal statutes and decisions, and not our statute and decisions.

An agreement to pay money or deliver property in consideration of receiving all the tonnage of a certain shipper at the regular rate is illegal; for its effect is to give a rebate and to discriminate against the shipper who will not bind himself to ship exclusively over such road. In the case of Vandalia R. v. United States, 226 Fed. 713, 141 C. C. A. 469, the court, in speaking of the Elkins Law, said:

“Every device that seeks to cover up either a rebate or a discrimination in interstate transportation is denounced by the statute, provided only, as to a rebate, that thereby the property is actually transported at less than the tariff rate. _ That the full tariff rate is collected at the time of transportation does not negative the possibility of a rebate in respect thereto. The rebate may be in a lump cash sum in advance (United States v. Union Stockyards, 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 220), or by later or earlier indirect payments (G. R. & I. Ry. Co. v. United States, 212 Fed. 577, 129 C. C. A. 113). * * * If, then, a direct cash payment for exclusive tonnage is a rebate in respect to property transported under such a contract, any device whereby a similar payment is made comes within the prohibition of the statute. A loan at less than the market rate of interest, like a lease at less than market rental (C., C., C. & St. L. Ry. Co. v. Hirsch, 204 Fed. 849, 863, 123 C. C. A. 146) is, in effect, a gift of the difference between the contract and the market rate, and is in every respect equivalent to a direct payment of that amount of money.”

In the instant case, instead of promising to pay money for exclusive shipments, appellant promised to pay an unliquidated claim for damages, which claim it was at that time contesting in the courts. It is obvious from the pleadings and the evidence that the agreement to pay such claim was not made on account of any recognition of the justice of the claim, but solely as a means to procure the large number of shipments to be made by Landa & Storey. It does not appear from the pleadings or evidence that plaintiffs were entitled to the amount sued for in cause No. 1247, nor that they were not entitled thereto. In the case of Union Pacific R. Co. v. Goodridge, 149 U. S. 680, 13 Sup. Ct. 970, 37 L. Ed. 896, the court had under considera-' tion a statute of Colorado, described by the court as of the same nature as the Interstate Commerce Act, and, like that, designed to prevent unjust discrimination and rebates. It was claimed that certain rebates were justified because given in consideration of the release of certain unliquidated claims for damages alleged to have been suffered on account of negligent acts of the company’s grantors; said claims being asserted to be a lien against the property. The court held that the rebate could not be allowed, and in discussing the matter said:

“To hold a defense thus pleaded to be valid would open the door to the grossest frauds upon the law, and practically enable the railroad company to avail itself of any consideration for a rebate, which it considers sufficient, and to agree with the favored customer upon some fabricated claim for damages, which it would be difficult, if not impossible, to disprove. For instance, under the defense made by this company, there is nothing to prevent a customer of the road, who has received a personal injury, from making a claim against the road for any amount he chooses, and in consideration thereof, and of shipping all his goods by that road, receiving a rebate for all goods he may ship over the road for an indefinite time in the future. It is almost needless to say that such a contract could not be supported.”

This statement was not necessary to the decision of the case, but it is by such eminent authority, and shows so clearly the evils which would follow if contracts such as the one sued on herein be permitted that we think it should be accepted as conclusive in this case. When one shipper is favored by agreeing to pay his unliquidated claim for damages, he is getting something which other shippers do not receive, and which is regarded and treated by both parties as valuable, and whatever the concession is worth amounts to a rebate just as the delivery of money or property would amount to a rebate. Appellees contend that, as the evidence showed that plaintiffs paid all the freight at regular rates, “it will surely be presumed that • the regular- rates mentioned as paid were the same provided by law.” We agree with them, and also construe their pleadings as alleging the agreement on their part to pay the freight provided by law on each shipment, but the fact remains that, in order to secure such agreement, the company promised them a concession deemed valuable by both parties; promised to pay a claim which it had denied and contested, and which was then being litigated in the courts. In support of our conclusion that the contract declared on and proved is illegal we cite also the following eases: Duplan Silk Co. v. American & Foreign Ins. Co., 205 Fed. 724, 124 C. C. A. 18; Cleveland, C., C. & St. L. Ry. Co. v. Kirsch, 204 Fed. 849, 123 C. C. A. 145; United States v. Union Stockyards, 226 U. S. 306, 308, 33 Sup. Ct. 83, 57 L. Ed. 226: Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; New Haven R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515.

Defendants in error contend that, as they performed their part of the contract, plaintiff in error should be required to comply with its agreement and made to pay the sums it agreed to pay. The principle of estoppel is sought to be invoked. There is no merit in this contention. To so hold would be to enforce an illegal contract; to require the discrimination prohibited by law to be actually made; to make a common carrier violate the law by paying a rebate. See Cleveland, C., C. & St. L. Ry. Co. v. Kirsch, supra; Southern Cotton Oil Co. v. Central of Georgia Ry. Co., 228 Fed. 335, 142 C. C. A. 627.

We conclude that plaintiffs’ petition discloses that the suit is based upon an illegal contract, and that the evidence even more clearly than the petition shows that the contract was illegal.

The judgment of the trial court must therefore be reversed, and, there being no reason for remanding the cause, the same will be dismissed.
      c@^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CRAWFORD v. SPRUILL et ux.
    (No. 5660.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 31, 1916.
    Rehearing Denied June 22, 1916.)
    1. Mortgages &wkey;>513 — Foreclosure Sale — Property to be Sold.
    Defendants, owning a tract of 413 acres, executed a deed of trust on the entire tract to secure the payment of a note, and thereafter executed to the plaintiff a deed of trust on the entire tract to secure a note, and thereafter conveyed 199 acres of the 413-acre tract, partly for vendor’s lien notes and the purchaser’s assumption of the first deed of trust, and thereafter sold to the plaintiff the purchaser’s lien notes, with the usual indorsements, and conveyed their equitable title to the plaintiff, warranting that the notes were the only lien on the land, except the first mortgage note, whereupon the plaintiff released his deed of trust covering the entire tract. The house was situated on the part sold, but thereafter the owner built a house and intended to claim 200 acres from the remainder of the tract as a homestead. On default on the first note and in the plaintiff’s suit to restrain the sale, the holder of such note on the court’s order transferred it to the plaintiff. Held, in plaintiff’s suit for judgment on the first mortgage note, that he was entitled, as against the defendants, to have the Í99 acres sold first and the proceeds applied to the payment of the purchaser’s notes, prior to the first mortgage note; the defendants being estopped to claim as against plaintiff that the 199 acres should be applied to the first mortgage note.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1516; Dec. Dig. <&wkey;>513.]
    2. Deeds <&wkey;90 — Oonsteuction.
    A construction least favorable to the grantor will be adopted when the intention is doubtful.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 234-237, 247, 248; Dec. Dig. &wkey; 90.]
    3. Homestead <&wkey;213 — Pleading—Stjfitcien-oy.
    In a suit to restrain a sale under a deed of trust, and for judgment on a first mortgage note, foreclosure of the deed of trust, and of vendor’s liens assigned to the plaintiff, where the issue was which part of a tract should be first sold, an answer that it had been the intention of defendants from the time of their execution of the first mortgage on the entire tract to sell off a part of the tract sufficient to pay such indebtedness and out of the remainder to create a homestead, and that they claimed 200 acres of the 213 acres remaining after a sale of 199 acres, subject to a first mortgage, was insufficient, as against a general demurrer, to show a homestead in 200 acres of the remaining 213 acres.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 394-396; Dec. Dig. &wkey;>213.]
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Suit by W. D. Crawford agaiiist A. J. Spruill and wife to restrain a sale of land under a deed of trust, in which the holder of the deed was required to transfer the rights , to the plaintiff, with amended original petition for judgment as assignee of a mortgage note, foreclosure of a deed of trust, and of vendor’s liens. Judgment for plaintiff on both causes of action and for the foreclosure of both liens, but ordering a sale and an application of the proceeds as prayed by defendants, and plaintiff appeals.
    Reversed and rendered.
    Scott & Dodson, of San Antonio, and S. T. Dowe, of Pearsall, for appellant. S. T. Phelps, of Pearsall, and John D. Dannelley, of Daredo, for appellees.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

On June 26, 1912, A. J. Spruill and wife owned a tract of land of 413 acres in Frio county, Tex., and on that date executed, in favor of Wm. Boon and I. I-I. Clemons, a deed of trust on the. entire tract to secure them in the payment of a $2,-300 note. On January 9, 1913, Spruill and wife executed to W. L. Crawford a deed of trust on said 413 acres of land to secure him in the payment of a note for $1,365. On May 7, 1913, Spruill and wife conveyed to H. Hurst 199.3 acres out of the 413-acre tract. The consideration was recited in said deed, as follows:

“One thousand dollars cash in hand paid, the receipt of which is hereby acknowledged, and one vendor’s lien note for the sum of $500 this day given, by said H. Hurst, due January 1, 1914, bearing 8% interest. Said note made payable to A. J. Spruill or order. And the assumption of one outstanding deed of trust against said land promising to pay same for the sum of $2,300 due June 26, 1915, bearing interest at the rate of 10'% interest. Also three vendor’s lion notes this day given by the said H. Hurst to A. J. Spruill against said land for the sum of $2,088, divided into three equal payments as follows: Note 1, due May 7, 1917, for $696; note No. 2, due May 7, 1918, for $696; note No. 3, due May 7, 1919, for $696, all notes bearing interest at the rate of 8% (eight per cent.) interest payable annually as it accrues, both notes and interest payable at Dilley, Texas.”

A vendor’s lien was expressly reserved to secure the payment of “the above-described notes.”

On July 1, 1913, Spruill and wife sold to W. L. Crawford the four vendor’s lien notes executed by Hurst, and conveyed to said Crawford, by a written and properly executed conveyance, the equitable title of Spruill and wife, existing by reason of the lien expressly retained in the deed of trust to Hurst, warranting “that said notes are the first and only lien on said land except the $2,300 in said deed assumed.” In consideration of this transfer, Crawford released the deed of trust held by him covering the entire 413 acres, making up the difference in amount by payment of money or its equivalent.

At the time Spruill acquired title to the 413-acre tract of land it had a house and other improvements on it, and about 65 acres in cultivation. The house was situated upon, and the cultivated land was a part of, the 199.3-acre tract sold to Hurst, and said tract was all under fence. The remainder of the 413-acre tract was not under fence, but was inclosed in a larger pasture and was used by Spruill and wife for pasturing their stock, and otherwise in connection with their home. No part of said 413 acres was set apart or designated for homestead purposes, but it was all used for said purposes continuously up to May 7, 1913, when Spruill and wife executed the deed to Hurst for the 199.3-aere tract. At the time Spruill and wife executed the deed, “they were using, and intended to claim and use, for homestead purposes, 200 acres out of the remainder of the 413-acre tract, and shortly after making the deed to Hurst — three weeks or a month afterwards— the defendant Spruill fenced the remainder of the tract amounting to about 213 acres, and about December 1, 1914, constructed a small house on said tract and used it for pasturing stock and otherwise for homestead purposes and lived there a part of that time,' and continuously and uninterruptedly from the execution of the deed, from Hurst intended and have intended to claim and use this property for homestead purposes.” Spruill and wife have no other property than the 213 acres which they own or can claim as a homestead, and they have designated 200 acres of the 213 as their homestead.

Default was made in the payment of interest on the $2,300 Boon-Clemons note, and Boon, who had acquired the interest of Clemons, declared the note due, and requested the trustee, John L. Pranglin, to sell the land to satisfy the debt, instructing the trustee to first sell the 199.3 acres and apply the proceeds to the satisfaction of his debt; and, if such proceeds failed to satisfy his debt, then to sell the remaining 213 acres and apply the proceeds thereof to the satisfaction of the balance unpaid. The trustee advertised the land for sale in accordance with these instructions. Crawford instituted this suit to restrain the sale by the trustee of the land in the manner advertised, upon the ground that such sale would prejudice the sale of the four vendor’s lien notes held by him which were secured by a lien on the 199.3 acres, and prayed that Boon be required to transfer to him the $2,300 mortgage note and his rights under the deed of trust. On January 2, 1915, Hon. J. F. Mullally, judge of the Forty-Ninth judicial district, granted Crawford the relief prayed for to the extent of requiring Boon to accept from Crawford the amount of his debt and to transfer the note and rights under the deed of trust to Crawford, without recourse on him, Boon, with which order of the court Boon complied.

Crawford, thereafter, in the same suit filed his first amended original petition in which he sought to recover judgment on the $2,300 Boon-Clemons note, foreclosure of the deed of trust lien on the 413 acres, and also judgment on the four vendor’s lien notes, and foreclosure of his vendor’s lien on the 199.3 acres. He prayed that the 213.7-acre tract be first sold and the proceeds applied, first, to the payment of one-half of the costs of suit, second, to costs of sale, third, to the satisfaction of the Boon-Clemons note and lien, and the surplus, if any, to be paid to Spruill; that if such proceeds should prove insufficient to satisfy the three items named, then that the 199.3 acres be sold to satisfy the balance of the Boon-Clemons note, and the surplus, if any, from such sale be applied to the satisfaction of the debt evidenced by the vendor’s lien notes. He prayed, in the alternative, that if the court should hold that said 199.3 acres ought to be sold first, then that the proceeds of such sale be applied, first, to one-half of the costs of the suit, second, the costs of sale, third, to pay and satisfy all the debts evidenced by vendor’s lien notes and, fourth, to the payment pro tanto on the indebtedness represented by the Boon-Clemons note, and that plaintiff then have foreclosure and salé of said 213.7-aere tract for the payment of lien against the same represented by said Boon-Clemons note and deed of trust. He further prayed, in the alternative, that in either event he should have a foreclosure of both of his liens and that however said property might be sold that the proceeds thereof be applied, first, to the satisfaction of plaintiff’s lien on the 199.3-acre tract of land, and, second, to the satisfaction of his first lien on said 213.7-acre tract, and prayed for general relief.

Spruill and wife- admitted the execution of the Boon-Clemons note and the deed of trust given to secure the same; that appellant was the holder of the note and lien; that the note was due and unpaid, and that they were liable thereon. They also admitted all the facts relied upon by Crawford for recovery on the four vendor’s lien notes and foreclosure of his lien, and Spruill admitted his liability as an indorser on the four notes. They then plead the facts hereinbefore set out,, with the exception that the pleadings, with reference to homestead, do not show the facts as fully as the evidence hereinbefore detailed, and it will be necessary to state what was pleaded with reference to this matter, because objection thereto is presented by the first assignment of error. The allegation is as follows:

“That it has been the intention of these defendants, husband and wife, from the time of the execution of the mortgage in favor of Wm. Boon and I. H. Clemons, to sell off a portion of said 413-acre tract, sufficientTo pay off said indebtedness, and out of the remainder of said land create and have a homestead, which they are entitled under the law, and the same to be exempt from execution ; and they here and now claim and set up as their homestead 200 acres of said 213 acres remaining after the sale to Hurst, subject only to its secondary liability for the $2,300 indebtedness now held by the plaintiff, W. L. Crawford, as the assignee of the defendant, Wm. Boon.”

They prayed that the 199.3 acres be first sold and the proceeds applied, first, to the satisfaction of the Boon-Clemons note and lien, second, to the satisfaction of the four Hurst vendor’s lien notes, and if such proceeds should prove insufficient to satisfy the Boon-Clemons note, that the 213.7 acres be sold to satisfy the balance unpaid and the surplus, if any, be paid to Spruill arid wife.

The court rendered judgment for Crawford on both of his causes of action and for foreclosure of both liens, but ordered the land sold and the funds applied as prayed for by Spruill and wife.

By appropriate assignments, the appellant attacks the sufficiency of the pleadings and the evidence to sustain that part of the judgment whereby it was decreed that the proceeds of the sale of the 199.3-acre tract be' applied first to the satisfaction of the judgment on the Boon debt.

We think it is clear that the rights of the parties are not affected in any way by the fact that Boon as holder of the $2,300 debt had undertaken to sell the 199.3 acres first, and had caused the trustee to advertise that tile sale would be so made. The sale was not consummated, and no rights can be predicated upon the attempt to mate the same.

As between Hurst and the Spruills, the latter had the right to have the 100.3 acres sold for the payment of the Boon debt and also the Hurst notes. If the proceeds proved insufficient to pay both debts, the Spruills would lose part of the debt evidenced by the Hurst notes; for the Boon debt was their debt as well as Hurst’s debt. But they sold the Hurst notes to Crawford for $2,618.50, and such notes were indorsed to Crawford.

In addition, Spruill and wife conveyed to Crawford the notes ' and the superior title held by them in the 199.3 acres of land by virtue of the conveyance to Hurst, warranting that “said notes are the first and only lien on said land (except the $2,300 in said deed assumed).” Appellee contends that this instrument vested in Crawford only the right to subject the balance of the proceeds of the 199.3 acres to the payment of the notes purchased by him, after satisfying the Boon debt out of such proceeds. This contention appears to us to be founded on the theory that the Spruills should be construed to have, in the conveyance to Crawford, expressly contracted that Crawford should rely upon Spruills’ indorsement of the notes, and a lien on the 199.3 acres second to the lien for the Boon debt. This is a construction most favorable to the grantors, but the rule is that the construction most unfavorable to the grantor will be adopted when the intention is doubtful. As between Hurst and the Spruills, the Boon and Hurst debts were placed by the contract evidenced by the vendor’s lien deed upon terms of equality as both debts represented the consideration for the land. The Spruills, as long as they owned the Hurst debt, could subordinate the same to the payment of the Boon debt; but, when they sold the Hurst debt and received the proceeds, their right to subordinate such debt to the Boon debt ceased, unless it was expressly reserved by contract. The contract cannot be construed to contain any such reservation. A personal warranty was made that the Hurst debt constituted the only lien on the land, except the lien to secure the Boon debt. This warranty cannot be construed into a reservation of the right to demand that the Boon debt be first paid out of the proceeds of the 199.3 acres of land. Therefore, if the Hurst notes had been indorsed without recourse, it appears clear that the Boon debt and the Hurst debt, as between the Spruills and Crawford, would have been entitled to share ratably in the proceeds of the 199.3 acres. Martin v. Gray, 159 S. W. 118, and cases therein cited. But, in this case, the Hurst notes were indorsed by usual indorsement.

In addition, Spruill and wife conveyed to Crawford the superior title to the 199.3 acres retained In the deed to Hurst, authorizing him to release the same upon payment of the Hurst notes. It is contended by appellant that the retention of the vendor’s lien to secure the above-described notes, when considered in connection with the wording of the consideration clause, evidenced an express lien only to secure the Hurst notes, and that the Boon debt was secured only by an implied lien. Be this as it may, there is nothing in the transfer of the superior title which evidences an intention to limit the effect of the contract of guaranty evidenced by Spruill’s indorsement; on the contrary, the transfer shows an intention to expressly waive the vendor’s lien retained in the Hurst deed in so far as it had theretofore existed as security for the Boon debt. Thus, the waiver by Spruill of any existing lien in his favor, implied from the transfer by usual indorsement of the Hurst notes, is reinforced by the actual waiver evidenced by the transfer of the superior title.

We conclude, therefore, that Crawford was entitled, as against the Spruills, to have the 199.3 acres sold first and the proceeds applied to the payment of the Hurst notes prior to the Boon debt, unless the fact that the Spruills, before conveying to Crawford the Ilurst notes, acquired a homestead on the remaining 213 acres requires the application of a different rule.

We do not think the answer is sufficient, as against even a general demurrer, in so far as it attempts to set up the acquisition of homestead rights in 200 acres out of the 213-acre tract. No facts are pleaded which show that prior to the transfer of the Hurst notes any homestead right attached to said land. But had the pleading been sufficient, we think the decision would have been the same. After making the conveyance to Hurst, the Spruills made their home on the 213-acre tract. They had received $1,000 in cash from Hurst, his notes heretofore described, and his contract of assumption of the Boon debt, and had retained the superior title to the 199.3 acres of land. They sold, for a consideration of $2,018.50, the notes and with them conveyed to Crawford the superior title to the 199.3 acres. As a part of this consideration of $2,618.50 Crawford released his deed of trust lien, which, while it might have been invalid as to the 199.3 acres, on the ground that it was homestead at the time the deed of trust was executed, or may have been invalid as to 200 acres to be designated, which, however, would have had to include the house and improvements on the 199.3 acres, was valid as to all land not homestead, and undoubtedly a valid lien upon a large portion of the 200 acres now claimed as a homestead. By this contract they secured $2,618.50, and agreed, according to the legal effect of the indorsement of the notes and transfer of the superior title, that the proceeds of the 199.3 acres should, if Hurst failed to pay his notes, be used first to reimburse the person who paid the $2,618.50, or his assigns. They sold and conveyed the notes and superior title by an instrument executed with the formalities necessary in the’ case of a sale of the homestead itself. We think that the Spruills are in the same position, so far as Crawford is concerned, as if, instead of selling to Hurst, for a consideration largely to be paid, they had sold to Crawford the 199.3 acres for a cash consideration. In such a case, Crawford could have demanded that the 213 acres be first sold for the satisfaction of the Boon debt. Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645. The Spruills would have been estopped to assert as against Crawford an equity to have his land sold before the homestead. And in this case we think they are estopped to claim as against Crawford that the 199.3 acres should be applied first to the Boon debt.

The judgment of the trial court will be reversed and judgment here rendered in all respects the same as was rendered by the trial court, with the exception that the 199.3 acres will be ordered sold first, and the proceeds applied, first, to the payment of one-half of the costs herein incurred; second, to the payment of the debt evidenced by the Hurst notes; and, third, to the payment of the Boon debt and the other half of the costs, and the remainder, if any, is to be paid to defendant H. Hurst. If the proceeds of such sale be insufficient to pay the Boon debt and the other half of the costs, then the 213-acre tract, or so much thereof as may be necessary, shall be sold and the proceeds applied to the satisfaction of the remainder due on the Boon debt and one half of the costs. Any excess from the sale of the 213-acre tract shall be delivered >to Spruill and wife.

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

      <S=^For other oases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    A. HARRIS & CO., Inc., v. CAMPBELL.

    (No. 7563.)
    (Court of Civil Appeals of Texas. Dallas.
    May 27, 1916.
    Rehearing Denied June 24, 1916.)
    1. LANDLORD AND TENANT &wkey;>79(2) — PROVISION for Subletting — Breach-Parties.
    Where a partnership leased premises under a lease stipulating that the lessee might sublet the premises upon the lessor’s written consent, and the partnership subsequently incorporated under the same name, without notice of the change to the lessor or Ms consent to the assignment of the lease by the partnership to the corporation, there was no such privity to the lease contract as entitled the corporation to sue for damages from the lessor’s refusal to allow a subletting.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 249, 250; Dec. Dig. &wkey;> 79(2).]
    2. Landlord and Tenant <&wkey;76(4) — Provision for Subletting — Breach—Sufficiency of Evidence.
    In a lessee’s action for damages from the lessor’s refusal to consent to a subletting for an unexpired term, evidence held to sustain.a finding that the lessor did not wrongfully, arbitrarily, and without cause refuse to consent to the occupancy of the premises by the subtenant, either as assignee of the lease or as subtenant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 229; Dec. Dig, &wkey;376(4).]
    3. Witnesses <&wkey;410 — Examination — Impeachment.
    In a lessee’s action for damages from the lessor’s wrongful refusal to consent to a subletting, where the cross-examination of the defendant showed an attempt to discredit his testimony, testimony, corroborating the defendant’s statement that if the lessee would turn over the premises he would release him, was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. <®=>410.]
    4. Witnesses <&wkey;361(l) — Impeachment — Reputation.
    In such action, where the lessee attempted to impeach the lessor’s credibility and standing as a man of integrity, testimony that a witness had known the lessor for 35 years, that he had always promptly paid his debts and had a good reputation for truth and fair dealing, was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167, 1171-1175; Dec. Dig. &wkey; 361(1).]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by A. Harris & Co., Incorporated, against A. W. Campbell. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Cockrell, Gray & McBride and Henry P. Edwards, all of Dallas, for appellant. John L. Terrell, of Dallas, for appellee.

      Application for -writ of error pending in Supreme Court.

   RAINEY, C. J.

A. Harris & Co., Incorporated, brought this suit against A. W. Campbell to recover $4,900 for the period from November 17, 1913, to July 1, 1914, alleging that A. Harris & Co., a copartnership, and the predecessor of A. Harris & Co., Incorporated, had a five-year lease contract as lessee with said Campbell as lessor of a certain building in Dallas, Tex., which lease contained a stipulation that the “lessees shall have the right to sublet said premises, provided lessor has no objections to sublessees, which must be evidenced by the written consent of the said lessor’’; that said lessee on November 17, 1913, vacated said premises and sought to sublet same to one D. T. Dewell and others, but Campbell refused arbitrarily and without cause to allow subletting; that appellants could have gotten $700 per month for the unexpired term, the period mentioned.

Appellee answered by general demurrer and denial and specially that A. Harris & Co., the partnership, was succeeded in business by A. Harris & Co., a corporation, to which the lease was transferred, which transfer was not known to appellee, nor did he know of such corporation until after the expiration of said lease contract. That as soon as appellee knew of the lessees’ intention to vacate the premises he offered to take the premises off the lessees’ hands and release them from said contract for the remainder of the term, but said offer was declined and refused. That there was no privity of contract or estate between plaintiff and defendant that would entitle plaintiff to recover, and that appellant closed the doors but kept it occupied until ten days after the lease had expired, and not until then did appellant offer to surrender possession of said premises to appellee.

The case was submitted to the court without a jury and judgment rendered in favor of appellee, from which this appeal is taken.

We are met at the threshold of this case with a counterproposition of appellee which attacks the right of appellant to maintain its suit, said proposition being as follows:

“In this case, even though the original lessee in the lease contract, a partnership, has the right of action such as is here brought, the as-signee of such lessee, a corporation, has no such right of action growing- out of the lease contract to which it is not a party.”

The facts' are that appellee leased to A. Harris & Co., a copartnership, the premises in question for the term of five years. After entering into said contract said A. Harris & Co., a copartnership, entered into an incorporation which succeeded the partnership and continued to occupy the said premises, and conducted a similar business as the co-partnership did. Neither said corporation nor the copartnership ever notified Campbell of such change. Nor did he ever know of such incorporation until the expiration of said lease; nor did Campbell ever give his consent or agree to the assignment of said lease by the copartnership to the corporation, therefore there was no such privity to the lease contract as entitled the corporation to sue for the damages sought to be recovered by it. Boone v. Bank, 17 Tex. Civ. App. 365, 43 S. W. 594; Mayer v. Templeton, 53 S. W. 68; Menger v. Ward, 87 Tex. 622, 30 S. W. 853; Morrow & Allen v. Camp, 101 S. W. 819; Brown v. Pope, 27 Tex. Civ. App. 225, 65 S. W. 42; Rose v. Riddle, 3 Willson, Civ. Cas. Ct. App. 299; Bees v. Andrews, 169 Mo. 177, 69 & W. 4; 24 Cyc. 969.

Appellant urges that under the contract of lease it had the right to sublet the premises, provided the lessor had no objection to the sublessee. That it procured an unobjectionable tenant and offered him to Campbell, but Campell arbitrarily, and without just cause or reason, refused and declined to accept such subtenant, whereby appellant was damaged in the amount claimed.

The contract of lease between the lessor and A. Harris & Co., a copartnership, reads:

“The lessees shall have the right to sublet said premises, provided lessor have (has) no objection to sublessees, which must be evidenced by the written consent of the said lessor.”

When Kramer, the president of the corporation, approached Campbell and asked his consent for the subletting to one party, the lease lacked about six months of expiring. Campbell refused to sublet for a short term to any one. Campbell testified:

“In relation to the conversation with reference to one called Dewell, one of the firm came up to me * * * and told me they had a man they wanted to put in there with a stock of goods, and I asked him the character of goods that ho wanted to put in, and he said about the same as they had been carrying, and I asked him if he would make a permanent tenant, and the answer was, ‘No, I don’t think so.’ He said, ‘He is coming from Oklahoma,’ or would ship his goods down here from Oklahoma, and left the impression on me he was coming down here merely to put on a quick sale, or to occupy the building temporarily. I told him, so far as I am concerned, I will not give my written consent. We discussed it at more length, but that is the essence of it. They did not tell me the name of the man; his financial ability or responsibility wasn’t discussed; they didn’t offer to tell me. * * * He said they were shipping or bringing a stock of goods from Oklahoma here to Dallas to put on a sale. What is meant by putting on a sale, if I understand it, is to bring a stock of goods and put it on sale and sell as quick as you can dispose of it. * * * They did not tell me they had some written contract with Dewell. * * * I don’t know that I ever heard his (Dewell’s) name until after this suit was brought.”

Under all the testimony introduced, the trial court found that appellee did not “wrongfully, arbitrarily, or without cause refuse to consent to, or allow or permit, D. T. Dewell or any other person to occupy the leased premises, either as assignee of the lease or as subtenant of plaintiff.” The evidence fully warranted this finding and we hold in accordance therewith. Fisher v. Oil Co., 178 S. W. 905.

Appellant assigns as error the admission of the testimony of Harry Kahn “that he had had a conversation with the defendant, Campbell, in about April, 1913, in which the defendant Campbell had stated to him that he had asked Kramer, plaintiff’s president, to turn over to him (Campbell) the leased building, and that he would release the plaintiff from the lease, and that the said Kramer had refused such offer,” and submits this proposition:

“Where there is a sharp conflict between plaintiff’s witness (Kramer) and defendant (Campbell) on a given point, it is error for the court to permit the defendant to support his testimony by introducing his self-serving statement as made to a third person.”

Appellant reserved a bill of exceptions, which was approved by the court with the following qualification:

“The defendant, while testifying in his own behalf, was cross-examined by plaintiff’s counsel and, on such cross-examination, had been asked and had answered questions as follows, to wit:
“Q. You so told his honor; that happened back in 1913? A. Yes, sir; in 1913.- Q. Who else have you ever told that fact? To whom have you ever mentioned that you made any such proposition ? A. As to that I could not tell you. Q. That happened about two years ago or more, this last April, didn’t it? A. Yes, sir; April, 1913. Q. Can you name any person in that period of time to whom you have repeated or stated the fact that you made that proposition to Mr. Kramer? A. I believe I can. Q. Give his name? A. Harry Kahn. Q. Who is it? A. Harry Kahn. Q. When did you make that statement to Mm? A. I could not tell you, because he was very much interested, understand, in getting me a certain tenant. Q. About when did you make that statement to Mr. Harry Kahn? A. I think shortly after I made the proposition to take the building. Q. Shortly after you made the proposition to take the building, you told Harry Kahn that you made it? A. Yes, sir. Q. Do you recall any other person to whom you repeated that fact? A. Not at this time.”

■These questions Show an attempt on the part of appellant to discredit the testimony of Campbell; and we think the testimony of Kahn, corroborating the statement of Campbell, was legitimate under the circumstances.

We also think the testimony of W. J. Kain was legitimate, which testimony was to the effect “that he had known the defendant Campbell for 35 years, and knew that he had always promptly paid his debts during that time, and that the character or reputation of the defendant for honesty and fair dealing and truth and veracity was good.” The proposition by appellant is that it is “error for the court to permit such testimony as reflected in the assignment, to the good standing as indicated in the assignment of the defendant, who resides at the seat of the trial, and whose testimony has not been directly impeached.”

The trial court approved the bill of exception with the following explanation:

“The defendant, while testifying- in his own behalf, was erossjexamined by plaintiff’s counsel and on such cross-examination had been asked and had answered questions as follows, to wit.”

Without here quoting the questions and answers, we will state that we think the questions asked by the appellant were an attempt to impeach the credibility and standing of Campbell as a man for honesty, etc., which rendered the testimony of Kain admissible, and there was no error in its admission.

The court filed its conclusions of fact, to which there are several assignments presented; but we have fully considered the evidence adduced, and we find the court’s conclusions correct and here adopt them as the conclusions of this court.

About the time appellant was considering the subletting of the premises, Campbell proposed to take the building off of its hands and release it from the payment of rents for the unexpired term, as he had a man to whom he could rent it. Kramer inquired the name of the party. Campbell refused to tell and Kramer declined to surrender the lease for fear the party might engage in a competing business with A. Harris & Co., the corporation, and kept the premises occupied with fixtures, etc., until about ten days after the expiration of the lease contract.

Finding no error in the record and believing that justice has been reached, the judgment of the lower court is affirmed.
      ^zs>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes