author: HUFF, C. J.

text:
    YOUNG et al. v. BUNDY.
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1913.)
    1. Courts (§ 121) — Jurisdiction—Amount in Controversy.
    Where plaintiff sued to recover for the conversion of a bank deposit amounting to $200, with interest thereon amounting to $11.80, the amount in controversy was sufficient to confer jurisdiction on the district court, since, where a suit is for conversion of money damages, if allowed, must be in the form of interest.
    [Ed. Note. — For othér cases, see Courts, Cent. Dig. §§ 413-426, 428, 450, 452, 458, 459, 466; Dec. Dig. § 121.] •
    2. Banks and Banking (§ 148) — Collections — Deposits.
    Where plaintiff deposited a deed with a banker to be sent to a purchaser, and the price collected and deposited to plaintiff’s credit, such deposit was a general one, for which the bank was liable on paying out the amount on a forged check.
    ■ [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 438-446, 451, 452; Dec. Dig. § 148.]

      3. Banks and Banking (§ 153) — “Special Deposit” — “General Deposit.”
    A “special deposit” is the placing of something in. the charge of a bank of which specific thing restitution must be made. A special deposit is no part of the bank’s available assets, nor does it enter into its general funds nor form a part of its disposable capital, but is to be specifically returned. A deposit is general, unless expressly made special or specific. In the absence of an agreement to the contrary, a deposit of funds in a bank is to be treated as a “general deposit.”
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 356, 483-501; Dec. Dig. § 153.

    For other definitions, see Words and Phrases, vol. 4, pp. 3061, 3062; vol. 7, pp. 6574, 6575; vol. S, p. 7802.]
    Appeal from District Court, Hemphill County; H. D. Adkins, Special Judge.
    Action by I. A. Bundy against D. J. Young and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    H. E. Hoover, of Canadian, for appellants. Baker & Sanders and G. O. MeOrohan, Jr., all of Canadian, for appellee.

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

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

   HUFF, C. J.

The appellee, I. A. Bundy, brought suit in the district court of Hemphill county, Tex., against the appellants, D. J. Young, Robert Moody, Thomas F. Moody, R. A. Moody, and Jim Moody, who it is alleged were a partnership and owned and operated a private banking institution, known as the Bank of Glazier; that on the 28th day of November, 1910, there was deposited to ap-•pellee’s credit subject to check, in said bank, the sum of $200 by the Farmers’ National Bank of Marshal, Okl.; that at various times after the deposit, and before the 1st of November, 1911, the appellee called at said bank upon B. B. Seeger and L. C. Freeman, officers of said bank, and inquired about said deposit, and each time he was informed that the deposit was not received. On November 1, 1911, appellee made demand on the said bank for the money deposited, but the bank refused to pay the same or honor his check; that subsequent to repeated demands by appellee appellants sold the bank and are enjoying the fruits and profits of the same, and yet still fail and refuse to pay ' appellee his debt of $200 or any part thereof, and are bound and liable to pay appellee the said sum of $200, together with damages for the use of same at the rate of 6 per cent, per annum, and prays for judgment for said amount and damages.

The appellants plead general denial, and that the $200 was not received as a deposit. Prior to the 28th day of November, 1910, appellee delivered to the bank of Glazier a certain deed to property in Marshal, Okl., to be delivered to the purchaser thereof, upon the payment of $200, with the understanding and agreement that the $200 was to be returned to said bank gratuitously and without compensation, received said deed, and forwarded the same and collected the said $200 in the due course of business and without compensation, acting in law only as a gratuitous bailee of the said $200; that after receiving the money the .bank in good faith paid out such sum on a check signed by I. A. Bundy December 5, 1910, and that according to custom the bank mailed the same out to Bundy by due course of mail; that Bundy was not at the time of receiving the money a regular customer of the bank, and that the bank had used reasonable care and diligence, and was not therefore liable to appellee. Trial was had before the court without a jury, and judgment rendered for appellee against appellants for the sum of $200, with interest thereon as damages from the 1st day of February, 1912, in the sum of $11.80. The civil jurisdiction of the county court of Hemphill county had been transferred to the district court of said county, and hence suit was filed in the district court. Where a suit is for the conversion of money if damages are allowed, it must be in the form of interest. Commercial Bank v. Jones, 18 Tex. 830. This is such a suit in some of its features as presented by the petition and damages in addition to the amount withheld is prayed for in the form of interest. The court therefore upon the face of the pleadings had jurisdiction of the amount in controversy. Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031. This matter is not presented by either party; but lest we be misunderstood in retaining jurisdiction to dispose of the case we feel it proper to state our grounds for doing so.

The material facts as established by the judgment of the trial court are: The appellee, I. A. Bundy, owned a lot in the town of Marshal, Okl. The Christian Church of that place contracted to purchase the property from Bundy for the sum of $200. At that time appellee was living with E. Y. Ogilby, a director in the bank of Glazier, who had appellee employed as a common laborer on his farm, and whose place was in Beaver county, Okl., near La Hemp, about’45 miles from Glazier. Some time in the summer or fall of 1910, appellee made a deed to the property and left it with the bank of Glazier, with instructions to -hold the deed until the money was paid, and instructed the bank when the money came to place it on deposit to his credit. It appears the first deed drawn was defective, which was returned to the bank of Glazier, to have corrected. The bank notified appellee to that effect by writing him at La Kemp, and in response to the notice appellee went into the town of Glazier a few days later and corrected the deed, but in response to a demand for the abstract declined to furnish it. The court found, and there is evidence-upon which-the ^finding can be supported; that appellee never received notice that the deed had been accepted and the money received for the lot by the bank of Glazier, and placed on deposit to appellee’s credit in appellants’ bank. The money was remitted to the bank of Glazier about November 28, 1910, by a cashier’s check by a bank at Marshal, Okl. Two hundred dollars was paid by the Glazier bank on a check for $200, purporting to be signed by appellee, I. A. Bundy, payable to one Z. O. Bain, December 5, 1910. This party could not be found or located. There is no testimony showing where the check was given, but it is the impression of the witnesses that it originated somewhere in Oklahoma, and passed through the First National Bank of Houston, the First National Bank of Amarillo, and the First National Bank of Canadian. This check could not be traced further than the Houston bank for the reason that, in accordance with its custom, it destroyed the records of the transit papers of cash items, such as the item in question. The court below found that the cheek for $200, payable to Z. O. Bain and purporting to have been signed by I. A. Bundy, was a forgery. There is evidence in the record supporting this finding. The facts show that appellee called upon the bank of Glazier some time in April, 1911, and asked the assistant cashier, Mr. Seeger, if they had heard from the collection. Seeger told him he knew nothing about it, and that he would have to see Mr. Freeman, the cashier, who at that time was out of the bank. He went back in May, at which time Freeman told him he had never heard from it, and he guessed the deal had fallen through. Appellee says he first learned the money had been sent to the bank when he went to Marshal, Okl., nearly a year after the money had been sent to the bank, and after he had paid the taxes on the lots. The bank at that place exhibited to him the returned cashier’s check remitting the money and the indorsements thereon, showing its payment, and then gave to ap-pellee a letter showing he had been to see about the matter. In February or March, 1911, E. X. Ogilby, at whose place appellee was then living, at the request of appellee, called on Freeman, the cashier, for the papers turned over to him by appellee to the property in Marshall. At that time Freeman told the witness the papers were there, and that he would get them and turn them over to the witness before he left town. Again at La Kemp, before Freeman went out of the bank, on a trip up to that place by Freeman, he again told Ogilby the papers were in the bank, and he would get them for him. In January, 1912, Ogilby examined the books, and found the records of the bank in 1910 showing the receipt of the money on the 28th of November, and the books then showed, as they do now, such fact. It appears from the testimony that the money was sent to the bank by cashier’s check on November 28,1910, and entered on the books as a deposit credit in favor of appellee, and was checked out December 5,1910. At that time Freeman was on a vacation and the cashier’s position was filled by a Mr. Harris, who was then assisted by Seeger. Afterwards, some time in July or August, 1911, Freeman’s connection was severed with the bank, and Harris soon thereafter succeeded him. Ogilby nor appellee either examined the bank books at either of the times they asked about the papers, or requested that they be permitted to do so. Ogilby states he could have done so for at the time he was a director in the bank. The court finds that there was no notice given appellee of the receipt of the money by the bank, nor that it mailed to appellee the check purporting to have been given by ap-pellee. Harris and Seeger both testified that they duly mailed same out to appellee, but upon cross-examination they show they only testified to the usual course of their business methods, and had no independent recollection of mailing out the statements or the deposit slip, and were not certain which one actually attended to it. The appellee Bundy testifies positively he received no such notice, and did not receive the check on which the money was paid out. We think there are facts warranting the finding of the court to the above effect. Prior to this transaction, appellee had no account with the bank, and this is the only transaction with the bank by appellee. The signature of the appellant was not taken at the bank except on the deed executed by him to the lots. He did not offer to leave his signature with the bank, nor did the bank request him to do so.

Appellants contend that the deposit in the bank was a special deposit, and therefore a bailment, and did not establish the relation of debtor and creditor or banker and customer, and therefore appellants were not liable except for negligence in paying out the money upon the forged check, if it was such. If the deposit was only a special deposit, and did not establish the relation of banker and customer, the care required of appellants in such case was only' ordinary care. A special deposit is the placing of something in the charge or custody of the bank of which specific thing restitution must be made. Morse on Banks and Banking (4th Ed.) §§ 183 and 190; Duncan v. Magetee, 25 Tex. 245. A special deposit is no part of the bank’s available assets. It does not enter into the general funds of the bank, and form a part of its disposable capital. It is to be kept by itself and specifically returned. Morse on Banks and Banking, § 205. A deposit is general unless expressly made special or specific. “In the absence of evidence to show that it is the bank’s duty by agreement express or clearly implied to keep the funds and their investment separate, it must be treated as a general deposit.” Id. 186. Where money is received on deposit, it is a well recognized principle of law that the deposit is a debt owing by the bank to the depositor. Van Winkle Gin Co. v. Citizens’ Bank, 89 Tex. 163, 33 S. W. 862; Baker v. Kennedy, 53 Tex. 200. It is not contemplated that the identical money shall be returned, but the relation of debtor and creditor arises between the parties. Templeton v. Hutchens, 57 S. W. 831; Hoskins v. Velasco National Bank, 48 Tex. Civ. App. 246, 107 S. W. 598. So it appears when a bank undertakes to collect money and actually collects the same, thereby receiving the money or receiving credit from another bank, the collecting bank becomes liable to the owner for so much money deposited. Zane on Banks and Banking, §§ 133, 176, and 178; Commercial National Bank v. Armstrong, 148 U. S. 50, 13 Sup. Ct. 533, 37 L. Ed. 363. After the' collection, the bank becomes a simple contract debtor for the amount, and, if the party has no deposit account, the bank simply owes to him the amount on demand. Morse on Banks and Banking, § 248. “But, if it chooses, the bank may credit him with it as if it were an ordinary payment on deposit, and thus initiate and establish the relation of banker and depositor between itself and Mm.” Id.; Jockusch v. Towsey, 51 Tex. 129. Appellee testified it was the agreement that, when the deed was delivered and the money paid for the lots, the bank should deposit the sum in the bank to his credit. The undisputed evidence is that, when the cashier’s check was received, the bank placed the amount in the bank as a deposit to the credit of appellee, subject to cheek, in the usual and ordinary course of business. The bank’s agreement and the exercise of its choice “initiated and established” the relation of banker and depositor between it and appellee. We do not think because the ap-pellee was a common laborer or because he had not theretofore been a customer, that for that reason the relation of banker and depositor could not be “initiated” or “established.” It would be a strange doctrine to say that because a man had never before had a bank deposit that he could not initiate one, and that, when he did so, the laws governing banks should not apply to him. It is urged that the collection of the money was without consideration, and therefore for the accommodation of the appellee, and for that reason a bailment. Banks collect “without charge, trusting to the indirect profits and advantages which may be expected to accrue by reason of the chance of the money being left uncalled for during a few days following its actual receipt and their consequent use of it for that time. * * * These motives of self-interest must always be supposed to influence the bank when it consents to collect without direct compensation, are to be regarded as constituting a sufficient and valuable inducement for the undertaking to collect” Morse on Banks and Banking (4th Ed.) § 215; 3 Am. & Eng. Enc. of Law (2d Ed.) p. 802. Appellants cite us to the case of People’s National Bank v. Wheeler, 21 Okl. 387, 96 Pac. 619, 21 L. R. A. (N. S.) 816, as supporting their contention. That ease we think easily distinguishable. There the bank agreed with the money lender and the borrower for their accommodation to transmit a sum of money from Kingfisher to Oaddo county, Okl. The money was turned over to the bank, and thereafter the money was drawn out on a forged check sent in the manner agreed upon. We think the facts in that case brought it under the rule of a bailment, and the relation of banker and depositor did not exist. In this case it was a deed the bank agreed to deliver and to collect the purchase money for the land, and, when it did so, to deposit the money so collected to the credit of the appellee. The relation of banker and depositor arose upon placing the money so collected upon deposit to the credit of appellee. We do not think the court in error in holding against appellants’ plea of estoppel. The court finds: “I find that the defendant bank failed to prove by a preponderance of the testimony that after said check was paid it at any time mailed same to the plaintiff by depositing it in the post office at Glazier, Tex., in an envelope, with postage prepaid thereon, with its return card thereon, addressed to the plaintiff at La Kemp, Okl., his post office address.” There is testimony in the record supporting this finding of the trial court. The appellee also testified in addition to such testimony positively he did not get notice of the collection of the money or the statement of the payment of the check or the check itself; that he never saw the check or heard of it until after he learned the bank had delivered the deed. The facts show he called several times about the trade and sent his employer after the papers, and the delivery of them to him was postponed or excused on various grounds. He was in fact informed the trade had fallen through, and was so led to believe by the cashier, the man who had undertaken to deliver the deed for him and collect the money. We do not think the facts show an estoppel. It is urged that he himself was negligent in failing to examine the books or in having them examined. We do not think his failure to do so was such an act of negligence as to defeat his right to recover the debt due him by the bank. Certainly not when the men who had the matter in charge led him to believe that the deed had not been delivered, and that the trade had fallen through. If that statement was true, there was no reason to examine the books for a deposit. The thing which would create it he was led to believe had not occurred; that is, no money collected to be deposited. We tMnk the evidence sufficient to support the judgment of the court below and his findings of fact.

The judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    WICHITA FALLS & W. RY. CO. OF TEXAS v. WYRICK.
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1913.)
    1. Eminent Domain (§ 195) — Condemnation Proceedings — Railroad Right of Way-Petition.
    Where petitioner, in proceedings to condemn land for a railroad right of way, alleged all the prerequisites to the right of condemnation,_ the particular land sought to be condemned, its ownership, and that petitioner and the landowner had failed to agree on the amount of damages to a quarter section by reason of the right of way being located thereon, and the court appointed commissioners, who assessed the damages which would be sustained by the landowner because of the condemnation at $100, the pleadings were sufficient to authorize the allowance, not only of compensation for the land taken, but also damages resulting to the land not taken by reason of the construction of the railway.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 524; ■ Dec. Dig. § 195.]
    2.- Eminent Domain (§ 192) — Condemnation of Land — Railroad Right of Way — Specific Damages — Pleading.
    In a proceeding to condemn land for a railroad right of way, it was not necessary that the landowner should allege the specific damages sustained; the elements of hjs damages being fixed by law at the value of the land taken, and the injury to the remaining portion by the construction of the road.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 519-521; Dec. Dig. § 192.]
    3. Eminent Domain (§ 200) — Condemnation of Land — Railroad Right of Way — Damages — Burden of Proof.
    In proceedings to condemn land for a railroad right of way, the burden of proof of damages sustained by the landowner is on him, and not on the railroad company.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 540; Dec. Dig. § 200.]
    Appeal from Collingsworth County Court; Marion Reynolds, Special Judge.
    Condemnation proceedings by the Wichita Falls & Wellington Railway Company of Texas against Jim Wyrick. From a decree awarding damages, petitioner appeals.
    Re-, versed and remanded.
    R. H. Templeton and C. C. Small, both of Wellington, for appellant. J. L. Lackey, of Wellington, for appellee.

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

   HUFF, C. J.

This is an appeal by the Wichita Falls & Wellington Railway Company from a judgment rendered against it in favor of the appellee, Jim Wyrick, for the sum of $700, from the county court of Col-lingsworth county. Appellant filed its application for commissioners before the county judge of Collingsworth county, to condemn a. 100-foot strip of land out of the Sr W. ¼ of section 65, block 10, H. & G. N. Ry. Co. survey, in said county, particularly describing said strip by metes and bounds and alleged the same as belonging to Wyrick. The county judge, on such application, appointed com/ missioners, who assessed damages 'against, appellant in the sum of $400. The appellee made protest, and filed the same as required by law. The issue as to damages was tried in the county court, and resulted in a judgment against appellant. This is a second appeal; the former appeal is reported in 147 S. W. 730.' There are several assignments of error raising the question as to the sufficiency of appellee’s allegations for damages. In the protest filed by appellee he referred to the report of the commissioners, and alleged that the amount allowed “is grossly inadequate for his damages, and ought not, and should not, be made the judgment of this court; and, if it should be made the judgment of this court, it would be a great injustice to this petitioner, and not half as much as he is actually damaged by reason of said railroad running across his land, owing to the peculiar way it runs through the land, making him two fields and two pastures, and running so close to his residence and barn lot.” He prays for judgment upon final hearing for the sum of $1,000.

The appellant, in its demand for commissioners, alleged all the necessary prerequisites to the.right of condemnation, the ownership of the land, the particular land sought to be condemned out of the quarter section, and stated that it and Wyrick failed to agree “upon the amount of damages to said quarter section of land by reason of said right of way being located on said land,” and prays for the appointment of three disinterested freeholders, “who shall assess the amount of said damages.” The court appointed the commissioners to assess the damages. The jury of commissioners assessed the damages, “which will be sustained by Jim Wyrick, because of such condemnation,” at $400. If we correctly, understand appellant, it is contended that the damages to the remainder of the quarter section, other than that, actually occupied by the right of way, is special damages, and therefore must be specifically alleged. The statute does not so treat the damages to the remaining portion of the land, but such damages are treated as the direct and proximate result of placing a railroad across the land, and further prescribes what can and what cannot be recovered as damages. The statutes fix the measure of damages; and, when appellant alleged the failure to agree with Wyrick on the damages to his quarter section, and requested the appointment of commissioners to assess the same, it in effect alleged the damages which the law would' give.

It was not necessary for appellee to allege the specific damages sustained; the law fixed his damages, rather the measure of his damages, and the things for which he could recover. Railway Co. v. Day, 3 Tex. Civ. App. 353, 22 S. W. 538; Railway Co. v. True, 35 Tex. Civ. App. 309, 80 S. W. 120. When the protest was filed and the issue was-made, the statement of the railroad, and the award had, asked and fixed the damages as to the amount which was asserted thereby as a just compensation. The objection by Wyrick put that in issue. The damages to be fixed was the value of the land actually taken, and the injury to. the remaining portion of the lands by the construction of the road. Railway Co. v. Cave, 80 Tex. 137, 15 S. W. 786; Railway Co. v. Ruby, 80 Tex. 172, 15 S. W. 1040. “The general allegation of damages will suffice to let in proof, and to warrant recovery of all such damages as naturally and necessarily result from the wrongful act complained of; the law implies such damages. * ⅜ ⅜ But where damages actually sustained do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state in his declaration the particular damages which he has sustained.” 3 Sutherland on Damages, 426. “The rule, however, is satisfied when from the facts stated the law infers other fact or facts; for whatsoever the law infers from a given state of facts the adverse party is presumed to know and must take notice of, whether it is specially pleaded or not.” Railway Co. v. Curry, 64 Tex. 85-87. The statute provides when land is taken for the right of way, the owner shall receive compensation for the land so taken, and the damage to the other land not taken. When appellant alleged it took the strip across appellee’s quarter section and then sought the tribunal to fix the damages, he thereby alleged facts from which the fact of damage to the other land can be inferred. It is not necessary for a party to allege facts which his adversary pleads. The allegations, finding, and the evidence show the damages as assessed were not allowed alone for the land actually occupied, but were for damages to the remaining portion of the land. Appellee objected to this finding, alleging it was not sufficient; that was the issue. We think the appellee’s pleadings, taken together with that of appellant, were sufficient under the law, and the various -assignments presenting this issue are overruled.

We have concluded this case must be reversed on account of the court’s charge, placing the burden of proof on the railway company to prove all of the material allegations in its petition and refusing the sixth special charge of appellant, or in failing to give one in the language of the court, to the effect that the burden was on Wyrick to show the damages he sustained by reason of the appropriation of the land, and damages to the rest of the tract. This appears to be the rule recognized by the majority of the courts (15 Cyc. 898; Elliott on Railroads, vol. 2, § 1035a [2d Ed.]), and is recognized by our courts in Railway Co. v. Moore, 51 Tex. Civ. App. 205, 111 S. W. 758; Railway Co. v. Benitos, 59 Tex. 326. Judge Hurt, in the case of Railway Co. v. Chenault, 16 S. W. 173, held a charge so placing the burden as a correct statement of law. We cannot treat the giving of the charge by the court, which it did, and the refusal of the appellant’s requested special charge, as an immaterial error. The evidence as to damages was sharply conflicting, and hence the question upon whom was the burden of proof became an important one in the case.

We think, also, the verdict and judgment should condemn the land taken for the right of way. This perhaps is not reversible error, but in view of another trial we call the court’s attention to this omission.

For the reason above stated, the cause is reversed and remanded.


author: REESE, J.

text:
    HOLMAN, County Judge, v. COWDEN & SUTHERLAND.
    (Court of Civil Appeals of Texas. Galveston.
    May 29, 1913.
    Rehearing Denied June 19, 1913.)
    1. Injunction (§ 28) — Putting .Stock Law Into Operation.
    Parties, showing that they had under lease a large tract of land in a certain county and large numbers of cattle pastured thereon, and that their interests would Be seriously affected, and that they would suffer serious loss and damage without adequate remedy at law if a stock law was put in operation in such territory, with allegations which, if true, showed that the county was not included in the stock law, were entitled to enjoin the county judge from issuing a proclamation putting such law into operation. ,
    [Ed. Note. — -For other cases, see Injunction, Cent. Dig. §§ 62-65; Dec. Dig. § 28.]
    2. Statutes (§ 105) — Subject and Title-Purpose oe Constitutional Provision.
    Const, art. 3, § 35, providing tha,t no bill (except appropriation bills) shall contain more than one subject, which shall be expressed in its title, and that if any subject shall be embraced in an act that is not expressed in the title the act shall be void only as to so much thereof as shall not be so expressed, was intended to remedy a practice by which clauses were inserted in bills of which the title gave no intimation, and to reasonably apprise the Legislature of the contents of bills, so that surprise and fraud might be prevented.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 117, 118; Dec. Dig. § 105.]
    3. Statutes (§ 120) — Subjects and Title-Stock Running at Large.
    The original stock law (Acts 26th Leg. c. 128) was amended by several acts, including Acts 30th Leg. cc. 11, 57, so as to include or exclude certain counties, and by Act 31st Leg. c. 69, was amended to include Matagorda county; and Acts 32d Leg. e. 94, entitled “An act to amend” Acts Twenty-Sixth' Leg. c. 128, §§ 1, 2, as amended, set out. all the amendments, including that of the Thirty-First Legislature, including Matagorda county, recited as the. subject of the act, “so as to exclude Wharton and Fort Bend counties,” and to include-others, and enacted that section- 1 of chapter 57 of the Acts of the Thirtieth Legislature be amended following it by section 1, enumerating by name the counties included in the acts, and not including Matagorda county. Const, art. 3, § 35, provides that no • bill . except general appropriation bills shall contain more than one subject, which shall be expressed in its title, and that if any subject shall be embraced in an act which is not expressed in the title, such act shall be void as to that part. JHeld, that the title of Acts 32d Leg. c. 94, gave no intimation of the purpose to exclude Matagorda county from its terms, and that so much of it as did exclude it from the operation of the stock law was inoperative and void leaving the county where the act of the Thirty-First Legislature placed it.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 168-172; Dec. Dig. § 120.]
    4. Injunction (§ 143) — Temporary Restraining Order — Notice.
    While the district judge may grant an injunction without notice to the other party, yet in all but the rarest cases a temporary order, as distinguished from a temporary injunction, restraining defendant and preserving the status until the application for temporary injunction can be heard after notice, is all that is necessary, and such course should be adopted by trial judges.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315; Dec. Dig. § 143.]
    Appeal from District Court, Matagorda County; Samuel J. Styles,' Judge.
    Action for injunction by Cowden & Sutherland against W. S. Holman, County Judge. From an order of the district court granting a1 temporary writ of injunction, defendant appeals.
    Reversed, order set aside, and injunction refused.
    Gaines & Corbett, of Bay City, for appellant. Krause & Wilson, of Bay City, for appellees.

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

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

   REESE, J.

This is an appeal from an order of the district judge granting a temporary writ of injunction. An election had been held in a certain subdivision of Mata-gorda county, under the provisions of the statute, to determine whether or not horses, mules, jacks, jennets, and cattle should be allowed to run at large in said territory, and at such election, regularly held, a majority of the voters had voted in favor of the prohibition of said running at large. The election was regularly held and returns properly made. Appellees thereupon filed their suit in the district court against appellant, the county judge of said county, to enjoin the said county judge from issuing his proclamation necessary to put such law in operation, on the ground, as alleged in the petition, that Matagorda was not included among the counties in which said stock law could be put in operation. Appellees allege such facts as to entitle them to sue out such injunction if the ground therefor, as aforesaid, is true. The petition was presented to the honorable district judge in vacation, and he, without notice, granted the temporary writ as prayed for. From this order this appeal is prosecuted.

The sole question presented by the appeal is whether under the law as it now exists Matagorda county is included among the counties to which the said stock law applies. Appellant does make some objection to the right of appellees to seek such injunction, but as the allegations of the petition show that they have under lease a large body of land in said territory, and large numbers of cattle pastured thereon, and that for various reasons set out their interests will be seriously affected, and they will suffer very serious loss and damage, for which they will have no other adequate and sufficient remedy if said law is put in operation in said territory, the objections of appellant to the injunction on this ground are without merit.

Coming now to the real question involved, an examination of the statutes discloses the following facts: The original stock law statute is chapter 128, General Laws of the Twenty-Sixth Legislature. This act was amended by chapter 24 of Acts of the Twenty-Seventh Legislature, chapter 71, General Laws of the Twenty-Eighth Legislature, chapters 23 and 94, General Laws of the Twenty-Ninth Legislature, and chapters 11 and 57, General Laws of the Thirtieth Legislature. These several amendments or most of them, were for the purpose of including or excluding certain counties from the operation of the act. Matagorda county, up to and including this last act, had not been so included. The Thirty-First Legislature passed an act (chapter 69, p. 121, Acts 1909) entitled “An act.to amend” the said act of the Twenty-Sixth Legislature as amended as aforesaid, so as to include a number of counties, among which was Matagorda county. The Thirty-Second Legislature passed an act (chapter 94, p. 172, Acts 1911) entitled “An act to amend sections 1 and 2 of chapter 128, General Laws of the Twenty-Sixth Legislature” as amended, setting out all of the amendments heretofore referred to, including that by the Thirty-First Legislature aforesaid, which was the first amendment to include Matagorda county, and reciting, as the subject of the act, “so as to exclude Wharton and Fort Bend counties, and to include” several counties not necessary to mention. The enacting clause is as follows: “Be it enacted by the Legislature of the state of Texas, section 1. That section 1 of chapter 57 of the Acts of the 30th Legislature be, and the same is hereby amended so as to read as follows.” Then follows section 1, enumerating by name the counties to be included in the act. Matagorda county is not named in the list. Here is where the trouble begins. If the provision of this act not including, and therefore excluding, Mata-gorda county, which was included by the preceding act of the Thirty-First Legislature, is valid, then there was no authority for the election referred to, and the injunction was properly granted, otherwise not.

The act of the Thirty-First Legislature, including Matagorda county, is carried forward in the Revision of the Statutes of 1911. Article 7235, R. S. 1911. But the general repealing clause of that Revision (section 4, Final title) does not apply to this act of the Thirty-Second Legislature. Section 17, Final Title. Section 35, article 3, of the 'Constitution, provides that no hill (except general appropriation bills) shall contain more than one subject, which shall be expressed in its title, but further, that if any subject shall be embraced in an act that is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. What is the “subject” of the act of the Thirty-Second Legislature as expressed in the title? Not merely to amend the act of the Thirty-First Legislature referred to, but to amend it so as to exclude Fort Bend and Warton counties. and to include Brewster and certain other counties. In Day Land & Cattle Company v. State, 68 Tex. 527, 4 S. W. 865, the court says that the word “subject,” is “that which is dominated or controlled by the * * * law.” It was held that decisions under the former Constitution, which use the word, “object” instead of “subject,” are conclusive in determining whether there has been a violation of the provision of this Constitution. Under those decisions the word “object” was held to mean “end” or “purpose.” There has never been any difference of opinion as to the purpose of this provision of the Constitution. As was said in Breen v. T. & P. R. R. Co., 44 Tex. 306: “It was * * * intended to remedy another practice ‘by which, through dextrous management, clauses were inserted in bills of which the titles gave no intimation,’ and thereby pass bills through the Legislature while many members were unaware of their real scope.” In Doeppenschmidt v. I. & G. N. R. R. Co., 100 Tex. 536, 101 S. W. 1081, the Supreme Court says, referring to this provision of the Constitution: “The purpose of the constitutional provision is merely to reasonably apprise the legislator of 'the contents of the bill, to the end that surprise and fraud in legislation may be prevented.” Applying these general principles to the act in question, it seems clear to us that a case could hardly be conceived where the title to the act would be more likely to deceive legislators as to the effect of the enactment. Who would possibly suppose, upon reading the title “⅜ * ⅜ so as to exclude Fort Bend and Wharton counties,” that the purpose and effect of the act was also to exclude Matagorda county? How can it be said, under any permissible liberality of construction, that the title gave any inkling of the purpose to exclude Matagorda county from the terms of the act? The body of the act contains the names of a number of counties arranged without order. Only the most careful reading of the entire act would disclose the fact that the name of Matagorda county was dropped. The caption would have been less likely to deceive or mislead if it had simply stated that its subject was to amend the former laws, and stopped at that. We are constrained to hold that so much of the act of the Thirty-Second Legislature as excludes Matagorda county from the operation of the stock law referred to is inoperative and void, for the reasons indicated, and that therefore Matagorda county remains where the act of the Thirty-First Legislature places it.

Although the title of the act states as one of the purposes “to repeal all other laws in conflict therewith,” there is no repealing clause. We do not consider it necessary to determine, as to how it affects the validity of the act, that while the title states that the purpose is to amend the act of the Thirty-First Legislature, which, being the last amendment, is the only act then in force, by the enacting clause the act of the Thirtieth Legislature is amended. This act was superseded and repealed by the act of the Thirty-First Legislature, and seemingly this latter act, which includes Matagorda county, is left untouched. The entire act seems a series of blunders, not commendable to the body by which it was passed.

Appellant also makes objection to the order granting the injunction, on the ground that it was granted without notice. As we have taken occasion to say several times, while the district judge had the power to grant an injunction without notice to the other party, it is only in the rarest cases that it is proper to do so. In every conceivable case, no matter how pressing the emergency, a temporary restraining order (well known in our practice as distinguished from a' temporary injunction), restraining the defendant and preserving the status until such time as the application for temporary injunction can be heard after notice to the defendant, is all that is necessary. In this way both parties can be heard before passing upon the application, and many times a serious mistake avoided. In addition, in ease of an appeal, the appellate court will have something more before it than the naked ex parte allegations of the petition. There can be no possible objection to the course here suggested; and, in the interest of justice, it is earnestly to be desired that trial judges would adopt this course.

For the error indicated above the order of the district judge granting the temporary injunction is reversed and set aside, and an order here made by this court refusing the injunction.


author: TALIAFERRO, J.

text:
    HOWELL v. BANK OP SNYDER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.
    Rehearing Denied June 28, 1913.)
    1. Limitation ox Actions (§ 100) — Relief ON THE GROUND OX FRAUD.
    A cause of action for fraud accrues at the time of the discovery of the fraud, or when it should have been discovered by the use of ordinary diligence, and limitations begin to run at that time.
    [Ed. Note. — Por other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.]
    2. Limitation ox Actions (§ 28) — Relief on the Ground ox Fraud.
    An action for deceit is an action for debt within the two-year statute of limitations (Rev. St. 1895, art. 3354, subd. 4).
    [Ed. Note. — Por other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. § 28.]
    3. Banks and Banking (§ 142) — Special Deposits — Fraud—Remedy ox Banker.
    A bank received from a depositor a. check of a third person for $1,000 as a special deposit under an agreement that, if the depositor should deliver to the bank a release of a lien, the bank should transmit the release to the maker of the check, and turn over the check to the depositor. The depositor, who was indebted to the bank on a note for $1,000, falsely represented that he had procured the release, and the bank, relying thereon, applied the special deposit in payment of the note, and delivered to the depositor the note marked paid, and was then compelled to pay a judgment in favor of the third person for failing to return to him the deposit. Held, that the bank on the discovery of the fraud could sue the depositor on the note or for damages for deceit.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 410-413; Dec. Dig. § 142.]
    4. Limitation ox Actions (§§ 25, 48) — Notes.
    An action on a note is barred by the four-year statute of limitations, and an action not brought until after the expiration of four years from the maturity of the note is barred.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 113, 118-131; Dec. Dig. §§ 25, 48.]
    Appeal from District Court, Bexar County; J. L. Camp, Judge.
    Action by the Bank of Snyder against Eli Howell and another. From a judgment for plaintiff, defendant named appeals.
    Affirmed in part and reversed in part.
    Mangum & Townsend, of San Antonio, for appellant. Douglas Cater, of San Antonio, for appellee.

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

   TALIAFERRO, J.

About February 21, 1907, Eli Howell and Chas. O. McCue, partners operating as Howell & McCue in the town of Snyder, Okl., deposited with the Bank of Snyder, appellee herein, a check of E. A. Patterson for $1,000 as a special deposit. Attached to the check was an agreement, in substance, that if Howell & McCue should within 30 days, or as soon thereafter as possible, obtain and deliver to the bank the release of a certain lien named in the agreement, the bank should transmit the release to Patterson, and turn over the $1,000 to Howell & McCue. The bank knew the contents of the agreement; its president having read it. At the same time Howell & Mc-Cue were indebted to the bank in the sum of $1,000, for which the bank held their note. This note was past due, having matured March 21, 1907. In August, 1907, 6. J. Helena, the president of the bank, asked Howell if the release named in the agreement between him and Patterson had been obtained. Howell replied that it had, and that it was in the possession of his firm. Helena then asked Howell if there was any reason why the special deposit of $1,000 should not be applied in payment of the $1,000 due by Howell & McCue to the bank, and Howell replied that there was not, and requested that the application be made or at least acquiesced in its being made. The transaction, however, was not at once consummated. Later Helena spoke to McCue, the other partner, who also assured him that the release had been obtained, and that the money belonged to his firm. The release was not delivered to the bank as provided in the agreement, but Helena, president of the bank, placing full faith and credit in the representations of Howell and McCue, transferred the money to their credit in satisfaction of the debt and delivered the note, marked “Paid,” to Howell & McCue, who accepted it without revealing the fact that the release had not been obtained by them. Soon thereafter, and prior to April 15, 1908, Patterson demanded of the bank the return of the $1,000 deposit, advising it that the release required in the escrow agreement had not been obtained by Howell & Mc-Cue. Why the bank did not return the money to Patterson and sue Howell & McCue on their debt is not revealed by the evidence, but it did not do so, and about April 15, 1908, Patterson sued the bank for the $1,000, with interest. On January 1, 1911, he obtained final judgment against the tiank for $1,273, which was paid. In the meantime the de-fefidants had removed from Oklahoma to San Antonio, Tex. On September 12, 1911, this suit was filed by the appellee Bank of Snyder against Howell & McCue to recover the amount paid to Patterson by it upon his judgment, with interest. Defendant McCue did not answer. Howell, after general and special exceptions, answered by general denial, and specially pleaded the statutes of two and four years limitation, and alleged that, if wrong had been done by him, appel-lee was party thereto, and that they were joint tort-feasors, and therefore appellee could not recover against him. ' Trial was had without a jury, and the court rendered judgment in favor of appellee against Howell & McCue for $1,273 with interest and costs. The case is in this court upon appeal by Howell alone; McCue not complaining of the judgment.

There is but one question for us to determine in this case — that of limitation. Appellant, by specious sophistry, has labored to assume the pose of the injured party. But no aspect of the case presents him in an equitable light. He and his partner deliberately misled the appellee, to its injury, and he now pleads- the statute of limitation against its just demand, and his plea must prevail. This suit was brought upon the theory that appellee’s cause of action accrued at the time it actually paid the judgment of Patterson, and that its action was one for indemnity, and not of debt. But that is not the law.

It is well settled in this state that in cases where one has been 'caused to suffer loss by reason of the deceit or fraud of another the cause of action thereon accrues at the time the deceit or fraud is discovered, or when it should have been. discovered by the use of ordinary diligence on the part of the one damaged, and limitation begins to run against such cause of action at that time. Western Piano & Organ Co. v. Griffin, 90 S. W. 884; Ingram v. Abbott, 14 Tex. Civ. App. 583, 38 S. W. 626; Oldham v. Medearis, 90 Tex. 806, 39 S. W. 919; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48; Mortgage Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 377; Cetti v. Dunman, 26 Tex. Civ. App. 433, 64 S. W. 787; Standford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Williams v. Durst, 25 Tex. 667, 78 Am. Dec. 548.

It has, by a recent decision of our Supreme Court—Gordon v. Rhodes, 102 Tex. 300, 116 S. W. 40 —been decided that an action for deceit is an action for debt and that such action is, under subdivision 4, art. 3354, Rev. Stat. 1895, subject to the bar of the two-year statute of limitation.

Therefore, when appellee on April 15, 1908, discovered that the representations made by Howell and McCue, upon which it surrendered their note, were false, and that the release provided for in the escrow agreement had not been procured by them, two recourses were open to them: They had the right to sue Howell & McCue upon the original note, or to bring an action against them for damages for deceit. In the former alternative, the statute of limitation would have been four years from the maturity of the note, and in the latter it would have been two years from the date of the discovery of the fraud. The bank elected to pursue neither of these courses, but defended the action of Patterson until final judgment, and after paying the judgment against it sued Howell & McCue for indemnity of their loss. When it finally filed its suit on September 12, 1911, the bar of the four-year statute of limitation was perfected against the note, and that of the two-year statute against its action for deceit. That appellant and his partner were bound by every moral obligation to pay the bank its debt the evidence leaves no room for question, but it has slept upon its rights until they are dead, and the courts cannot revive them. The statutes of limitation are wise provisions made necessary for the establishment of stable business relations. One who has so neglected his rights that the evidence which should establish or disprove them has become stale or has been lost should be the one to suffer, if any must, and the law which fixes the time after which he may not speak is a wise and beneficent one, though it may, and often does, enable the dishonest or the crafty person to prevail against right. The law must be universal, and, when a litigant has forfeited his equities by-neglect, he cannot complain that the law prevails.

The judgment of the lower court against appellant Eli Howell is reversed, and judgment here rendered that appellee take nothing by its suit against this appellant and pay all costs by reason of its suit against him. The judgment of the lower court in favor of appellee against Chas. O. McCue is affirmed.


text:
    BEE CANDY MFG. CO. v. MAIBAUM.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    Rehearing
    Denied June 28, 1913.)
    1. New Trial (§ 10) — Grounds—Necessitv of Objection at Trial — Submission oe Case to Jury.
    In an action for personal injuries, where the defendant made no request for a peremptory instruction, but instead requested the court to give an instruction on negligence substantially the same as that given, it cannot, on motion for new trial, complain that the evidence was not sufficient to warrant the submission of the issue of negligence to the jury.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 13, 115, 131; Dec. Dig. § 10.]
    2. Trial (§ 255) — Requests for Charges— Necessity.
    In an action for personal injuries by a fall from a ladder, where the charge of the court was correct and fairly submitted the issue, so far as it went, the defendant cannot complain, in the absence of a specific request, that the court did not charge the jury as to the plaintiff’s presumed knowledge of obvious defects.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    Appeal from District Court, Bexar County; J. L. Camp, Judge.
    Action by Henry Maibaum against the Bee Candy Manufacturing Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Deo Tarleton and Geo. C. Altgelt, both of San Antonio, for appellant. C. A. Davies and Ernest Fellbaum, both of San Antonio, for appellee.

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

   TALIAFERRO, J.

This whs an action for damages for personal injuries. The case was in this court upon a former appeal, and in that opinion, reported in 145 S. W. 313, will be found a full statement of the ease. Upon the last trial, as in the former, the plaintiff alleged but two acts of negligence: The first that the ladder, as maintained by the defendant, was unsafe, insecure, and in a dangerous condition, and that the same was not securely placed or fastened so as to prevent it from slipping and falling while being used by plaintiff; and, second, that the ladder was improperly constructed, weak, flimsy, and decayed. The latter allegation was abandoned upon the trial, and the court submitted in his charge only the theory set up in the former. Verdict and judgment were for the plaintiff for $1,500, from which this appeal is prosecuted.

Appellant’s first and second assignments of error assail the verdict and judgment as unsupported by the evidence. The first assignment contends that it was error to submit the case to the jury upon the evidence as presented, and the second asserts that the court erred in giving the general charge to the jury. The whole charge is copied into the assignment, and the error specified is that the testimony fails to disclose any want of care on the part of appellant. The only proposition under these assignments is as follows: ‘.‘The plaintiff having failed to offer any testimony of negligence on the part of defendant proving or tending to prove legal liability on the part of defendant for his injuries, it was error on the part of the court to submit such issue to the jury.”

No peremptory charge was reguested by the defendant, and the insufficiency of the evidence to support the verdict is raised for the first time in the motion for a new trial. On the contrary, appellant presented to the court a special charge upon the issue of ngg-ligence, and reguested that it be given to the jury. The special charge was properly refused by the court because the matters contained therein, so far as they were proper, were fully covered by the general charge.

Appellee objects to the consideration of the first and second assignments aforesaid, because not presented in accordance with the rules and established practice. The objection must be sustained. Both the assignments are too general and indefinite in their form to meet the reguirements of Court of Civil Appeals Rules 24 and 25. Not having moved for a peremptory instruction, but having reguested the court instead to give to the jury an instruction which presented the issue of the negligence substantially the same as it was presented in the court’s general charge, the only difference being that the charge as so reguested submitted the issues in a somewhat different aspect, it will be presumed that the charge as given by the court was in compliance with appellant’s reguest, in so far as the general charge is in conformity with the reguested charge, and appellant is estopped to complain of the issues so submitted. A party will not be permitted to reguest the court to adopt a course of procedure in the trial of a case and then, because the result of such course has not proven to his satisfaction, to complain that the action of the court in so proceeding was error. The principle of estoppel intervenes and will prevent him from taking advantage of his own wrong. Railway v. Sein, 89 Tex. 63, 33 S. W. 215, 558; Railway v. Eyer, 96 Tex. 72; Cornwell v. State, 61 Tex. Cr. R. 122, 134 S. W. 224, Ann. Cas. 1913B, 71; Railway v. Murray, 132 S. W. 496; Oil Company v. Gathings, 154 S. W. 668.

Appellant’s only other assignment, numbered 4, complains that the court did not instruct the jury that if, under all the evidence, it was apparent that the ladder was plainly visible and its manner of use obvious, and that no concealment was practiced by defendant, plaintiff would be charged with knowledge of the ordinary laws of physics, and could not recover. But no such charge was reguested by appellant. When the charge of the court is correct and fairly submits the issue, so far as it goes, and one of the parties desires to have other aspects of the case presented to the jury for determination, special charges must be asked covering such points; and in the absence of such special reguest, it must be assumed that the general charge was satisfactory. It is too late to raise the question on motion for new trial. Railway Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510; Mitchell v. Boyce, 120 S. W. 1016; San Antonio Traction Co. v. Settle (Sup.) 135 S. W. 116, and cases there cited. The assignment will be overruled.

No error appearing in the judgment of the lower court, it is affirmed.


author: MOTJRSTJND, J.

text:
    F. A. PIPER CO. v. OPPENHEIMER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    Rehearing Denied June 28, 1913.)
    1. Sales (§ 411) — Actions tor Breach — Petition — Construction.-
    Where the petition, in an action for damages suffered by the buyer on a car load of corn chops because of inferior condition, alleged that it was understood between the buyer and seller that the chops should and would be used as food for live stock, such averment, in the absence of a special exception, sufficiently alleges an implied contract that the chops should he fit for stock food.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1161-1164; Dec. Dig. § 411.]
    2. Appeal and Error (§ 719) — Assignments oe Error — Necessity.
    In an action by a buyer of corn chops for damages for their defective condition, he cannot complain on appeal that the court erred in holding the petition insufficient to charge an implied warranty of fitness for stock food, where the only assignment of error was' that the court erred in not holding' the petition sufficient to charge on implied contract of merchantability and soundness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    3. Sales (§ 437) — Actions by Buyer — Petition — Sueeiciency.
    In an action by a buyer of grain for damages for the inferior quality of a car of corn chops, a petition, merely alleging a known purpose to use the chops as stock food, is insufficient to set up an implied warranty of soundness or merchantability.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1248-1257; Dec. Dig. § 437.]
    4. Sales (§ 274) — Implied Warranty.
    Where one dealer sells stock food to another merely as an article of merchandise, there is no implied warranty that it is fit for use as stock food.
    [Ed. Note. — For other ca^es, see Sales, Cent. Dig. §§ 777-779; Dec. Dig. § 274.]
    Appeal from Bexar County Court for Civil Cases; Ira P. Hildebrand, Special Judge.
    Action by the F. A. Piper Company against M. L. Oppenheimer and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Davis & Williams, of San Antonio, for appellant. Hertzberg, Barrett & Kercheville, of San Antonio, for appellees.

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

   MOTJRSTJND, J.

Appellant sued appellees to recover damages, alleged to have been suffered by appellant on a car load of corn chops purchased from appellees; the portion of the petition describing the cause of action being as follows: “That heretofore, to wit, on or about the 31st day of January, 1910, plaintiff agreed to purchase from defendants, and the defendants agreed to sell and deliver to plaintiff at Uvalde,'Tex., in Uvalde county, one ear load of 30,000 pounds of pure corn chops, at a price of $1.55 per cwt., said defendants contracting and warranting that the chops to be so delivered would be sound, pure, not spoiled, and in a merchantable condition,- and fit food for live stock, it being understood between plaintiff and defendants that said chops should and would be used as food for live stock when delivered to plaintiff; that, in violation of the agreements and warranties aforesaid, the defendants shipped to plaintiff at Uvalde, Tex., one car containing 300 sacks of corn chops, each sack weighing 100 pounds, which were impure, spoiled, and not in a merchantable condition when they arrived at Uvalde, á large part of said chops being spoiled and wholly unfit for food for live stock, and all of said chops being so impure and spoiled, at the time of their arrival at Uvalde and at all times thereafter, as to render then unmer-chantable, and that their reasonable market value at Uvalde, Tex., was $300 less than their market value would have been had the defendants complied with their contract and delivered to plaintiff at Uvalde, Tex., pure corn chops in a good condition, as agreed.” The defendants answered by general denial and spepial pleas not necessary to be stated. Upon a trial before the court judgment was first rendered for plaintiff, but the same was set aside and judgment rendered for defendants, from which plaintiff appealed.

The trial court’s findings of fact read as follows:

“(1) That on January 31, 1910, plaintiff agreed to purchase from the defendants, and the defendants agreed to sell and deliver to plaintiff at Uvalde, Tex., one car. load of 30,000 pounds of pure corn chops'at a price of $1.55 per cwt., and that the defendants expressly contracted and expressly warranted that the chops to be so delivered would be pure corn chops, and that this was the only express warranty agreed to by the parties. That the defendants shipped to plaintiff at Uvalde, Tex., one car containing 300 sacks of pure corn chops, each sack weighing 100 pounds, and that said chops were pure corn chops, and did comply with the express warranty as to being ‘pure corn chops. That said chops were not adulterated with any foreign substance such as Kaffir corn, etc., and were made purely from corn and nothing else, and were pure corn chops.
“(2) That when said car of chops arrived at Uvalde on the 14th day of Februáry, 1910, the chops were moist, but not heated, which moist condition was a condition that could have been discovered by plaintiff upon a reasonable examination or inspection.
“(3) That said chops were delivered to plaintiff, and plaintiff accepted same, and were forthwith unloaded Into the warehouse of plaintiff without objection or complaint on the part of plaintiff until February 26, 1910, when plaintiff notified the defendants by letter that the chops were then hot, which were afterwards sold for the best price obtainable.
“(4) That said chops were handled and stored after being unloaded by plaintiff from tbe car, and because of not being properly aired, but closely stacked, by plaintiff after unloading same from tbe car, partly caused tbe chops afterwards to beat.
“(5) That at tbe time said chops arrived in Uvalde the moisture contained in them could have been removed if it bad been discovered at such time at an expense of $50, and that tbe reasonable market value of said ch'ops at tbe time and place of delivery, and in tbe condition they were at that time, was $415. That tbe reasonable market value of same at said time and place, if free from moisture and perfectly dry, and as ordered by plaintiff, would have been $465. That plaintiff was not negligent in failing to sooner discover tbe heated condition of such chops.
“(6) That said chops were afterwards sold by plaintiff, but tbe sfiles were made after tbe chops bad become heated and bad deteriorated in value since tbe time of delivery to plaintiff, but that plaintiff sold them within a reasonable time after discovering tbe heated condition.
“(7) There was no direct evidence showing tbe condition of tbe chops upon day of arrival at Uvalde, and plaintiff offered no evidence showing tbe chops were heated on arrival at Uvalde.
“(8) That tbe plaintiff had opportunities of inspecting tbe car of chops after it was opened, and that a reasonable inspection would have disclosed tbe moisture in tbe chops.
“(9) That tbe defendants never saw tbe chops until after they were unloaded into tbe warehouse of plaintiff at Uvalde.
“(10) That tbe car was shipped draft with bill of lading attached, and no inspection was allowed before payment of draft, and that plaintiff paid such draft and freight charges on the car of chops before the same were delivered to it.
“(11) That both plaintiff and defendants were dealers at the time of this transaction.”

His conclusion of law was: “That plaintiff is not entitled to recover of defendants on the express warranty as to pure corn chops because pure corn chops were delivered to plaintiff. That plaintiff is not entitled to recover of defendants on any implied warranty as to soundness, merchantability, or fitness for live stock food, because no implied warranties are pleaded by plaintiff on which to base a judgment, and a judgment based on an implied warranty in this cause would be a variance from the plaintiff’s pleadings. Therefore X conclude that judgment should be rendered for the defendants.”

Appellant contends that his petition was sufficient to support proof of an implied warranty of the soundness and merchantability of the corn chops, and that the court erred in holding that it declared only upon an express contract.

The petition cannot be construed as alleging an implied warranty of merchantability, as there are no allegations that plaintiff is a merchant and bought the chops for resale, and that defendant knew they were being bought by plaintiff for such purpose. In fact, there is only one allegation contained in the pleadings from which a warranty by implication arises, and that is the allegation that it was understood between plaintiff and defendant that said chops should and would be used as food for live stock when delivered to plaintiff. The word “understood,” as used in this connection, should not be construed to mean “agreed,” because it would be very unreasonable that parties should make the future use of goods by the buyer a subject for specific agreement. The word was evidently used to convey the idea that the seller understood or knew that the chops were to be used as food for live stock when delivered to plaintiff. This allegation, in the absence of a special exception, must be given the benefit of every reasonable intendment, and when so construed sufficiently alleges an implied contract that the chops should be fit food for live stock.

However, the assignments of error make no point that the court erred in holding that no implied warranty of fitness for stock food had been alleged, but merely that the court erred in not holding the petition sufficient to charge on implied contract of merchantability and soundness.

An allegation of known purpose to use chops for stock food only raises the implication that the chops shall be reasonably fit and appropriate fQr the purpose of feeding stock, and does not include any other or further warranties. We conclude that the court did not err in holding that no implied warranty of soundness or merchantability was alleged.

We are also of the opinion that no implied warranty of fitness for stock food can be asserted in this case, because the transaction was between a grain broker who had never seen the corn and a grain dealer who bought, not for the purpose of using the same as food for live stock, but for the purpose of selling the same at retail. Battaglia v. Thomas, 5 Tex. Civ. App. 565, 23 S. W. 385, 1118; Houck v. Berg, 105 S. W. 1176.

It appears there was no evidence that the chops were heated, when delivered to plaintiff, but were merely moist, and there is no evidence that they were unfit for stock food at that time, but became so by reason of being closely stacked by plaintiff in their moist condition. It further appears from uncon-tradicted testimony . that the trade term “pure chops” meant chops which had not been kiln dried, and that moisture was inherent in such chops.

We are of the opinion that the judgment of the trial court was correct. The evidence failed to sustain express warranties of merchantability, soundness, and suitableness for stock food having been made, and there was no allegation of any implied warranty except that of suitableness for stock food, which was not proven to have existed or to have been breached had it existed.

The judgment is therefore affirmed.


author: FLY, C. J.

text:
    BLUM v. KUSENBERGER.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.)
    1. Pleading (§ 34) — Petition—General DEMURRER.
    The court on testing a petition attacked by general demurrer must indulge in support of the petition every reasonable intendment, and the mere fact that special exceptions are sustained does not change the rule.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5½, 66-74; Dec. Dig. § 34.]
    2. Pleading (§ 218) — Petition — General and Special Demurrers — Rulings.
    Where the court decides that a petition states no cause of action, it is unnecessary to consider the petition with reference to special demurrers.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. § 218.]
    3. Libel and Slander (§ 16) — Libelous Publication — 1 ‘Libel. ’ ’
    A newspaper article, which refers to a signed communication in a former issue relating to the condition of a highway, and which refers to the county judge of the county as a “Czar,” and which states that the newspaper will not submit to the tyranny and bulldozing methods of a self-constituted “Czar” without raising an objection, and that it could cite other instances equally unjust, and that the public has a right to demand courteous treatment from its public servants, is libelous within Rev. Civ. St. art. 5595, defining a “libel” as a defamation in printing or writing tending to injure the reputation of one and thereby exposing him to public hatred or ridicule.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 1-9; Dec. Dig. § 16.'
    For other definitions, see Words and Phrases, vol. 5, pp. 4116-½125.]
    Appeal from District Court, Gillespie County ; Clarence Martin, Judge.
    Action by Max Blum against H. W. Kusen-berger. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    A. W. Moursund, of Fredericksburg, for appellant.

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

   FLY, C. J.

Appellant, who is the county judge of Gillespie county, sued appellee for damages alleged to have accrued from the publication of the following article in the Fredericksburg Standard, a newspaper published in Fredericksburg, in Gillespie county, state of Texas:

“Ignorance or Arrogance.
“It is generally understood by the reading public when an article appears in print with the author’s name signed to it, that the responsibility of the publisher, then and there ceases. A newspaper is nothing more or less than what the general opinion of its patrons make it, and is a medium by which the news is disseminated among such readers and the public generally.
“In our last issue an article appeared signed by Mr. Thomas J. Martin, concerning the condition of the road at the point where an automobile accident occurred a week previous. In order to make our position perfectly clear, we will state that we do not know anything particularly about the condition of the road at the place in question, and furthermore, we are in no way responsible for the article published over Mr. Martin’s signature.
’ “Notwithstanding the facts above stated, which are unquestionably understood as true by the public, generally, this office was called up by ’phone on Monday of this week by Max Blum, who proceeded, without cause or provocation, to deliver a message over the wire to the proprietor, that would not look well in print and would sound still worse in plain English. Threats of personal violence were freely made by Czar Blum, and the proprietor of the Standard was given warning that his presence would not be tolerated around the official throne of the County Czar, under the penalty of having his countenance treated to a massage by the mighty hand of the Czar. Whether these threats were made through ignorance or arrogance, we are unable to say. Nor do we know the reason why they were made, much less, little do we care.
“For the past several years, the Standard has stood openly for the building of good roads, and for every other advancement that would benefit the citizens of Gillespie county, and never before have we been called upon to criticise the action of any officer, publicly or privately. We, as other citizens of the county, have contributed our share of revenue in taxes towards the retaining in office for the past eight years, this man who now threatens with violence the citizen who does not quiver with fear at the bidding of his command, right or wrong.
“It is unnecessary for us at this time to further discuss this unpleasant occurrence. In giving the above facts, we simply wish to make the position of this paper clear. We do not in any way mean to east a reflection upon any other member of the commissioners’ court and we state here, that in our opinion the county’s affairs will continue to be administered in the best interest of the public. But we cannot, as a private citizen, submit to the tyranny and ‘bulldozing’ methods of a self-constituted Czar without raising an objection.
“We could cite other instances that are equally as unjust, but we do not deem it necessary at this time. The public has a right to demand courteous treatment from its public servants,' and never before' in the history of this county has it become necessary for an officer, that was elected by the honest, conscientious citizens of Gillespie county, to assume the role of a ‘bully’ or a rule?. How long will the people submit to these tyrannical methods?”

In testing a pleading attacked by general demurrer every reasonable intendment must be indulged in support of it. The fact that the special exceptions were sustained also does not give the case a different status than if the general demurrer alone had been sustained. It was utterly unnecessary to consider the petition with reference to special demurrers, when the court had already held that no cause of action was stated. Everett v. Henry, 67 Tex. 405, 3 S. W. 566; Bigham v. Port Arthur Channel Co., 100 Tex. 192, 97 S. W. 686, 13 L. R. A. (N. S.) 656.

The statute in this state thus defines “libel”: “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.” Article 5595, R. S. 1911.

The law of libel, as expressed in the quoted statute, must govern in this state, and under that law the petition shows that the publication complained of tended to injure the reputation of appellant by exposing him to contempt and ridicule. Walker v. Light Pub. Co., 30 Tex. Civ. App. 165, 70 S. W. 555; Morrison v. Dean, 104 S. W. 505. As said in Culmer v. Canby, 101 Fed. 195, 41 C. C. A. 302: “Before a demurrer can be sustained to a petition counting on an alleged libelous publication, it must appear that the publication is not reasonably capable of a defamatory meaning, and cannot reasonably be understood in a defamatory sense. If an inspection of the publication convinces the court that no such reasonable construction of the language used could give to it a defamatory sense and meaning, a demurrer should be sustained; otherwise, its meaning and interpretation must be left to the jury, under proper instructions as to what constitutes libel.”

Clearly, if the case of Guisti v. Galveston Tribune (Sup.) 150 S. W. 874, properly construes the statute on the subject of libel, the court erred in sustaining the general demurrer. '

.The judgment is reversed, and the cause remanded.


author: McMEANS, J.

text:
    COTTEN et al. v. FRIEDMAN.
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1913.)
    1. Husband and Wife (§ 251) — Sepabate oe Community Peopebty.
    Property acquired by a husband by descent was his separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 894; Dec. Dig. § 251.]
    2. Homestead (§ 57½) — Actions — Sufficiency of Evidence.
    In trespass .to try title by a wife against the purchaser upon the foreclosure of a mortgage given by the husband, where the homestead character of the land depended on whether the husband and wife were living in the country or in a town, city or village, evidence as to the character uf the unincorporated place in which they lived held to make a question for the jury as to whether such land was a part of the rural homestead of the husband and wife.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 401; Dec. Dig. § 57½.]
    3. Homestead (§ 70) — Peopebty Constituting — Sepabate Tbacts ob Lots.
    Where the 10-acre tract on which a husband and wife lived was situated in no town, city, or village, and they were therefore entitled to a rural as distinguished from an urban homestead, a 100-acre tract 4½ miles distant from the 10-acre tract cultivated by the husband and the products of which were used to support the family was a part of the rural homestead. •
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 100-103; Dec. Dig. § 70.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by Mazilda Cotten and husband against Max Friedman. Judgment for defendant, and plaintiffs appeal.
    Reversed and remanded.
    Y. A. Collins, of Beaumont, for appellants. Singleton & Nall, of Kountze, for appellee.

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

   McMEANS, J.

This is a suit of trespass to try title brought by appellant Mazilda Cotten, joined by her husband, W. F. Cotten, against the appellee, Max Friedman, to recover 100 acres of land, part of the Mary Smith survey in Hardin county. Under instructions from the court the jury returned a verdict in favor of appellee, upon which a judgment in his favor was duly entered, and from this judgment the Cottens have appealed. ■

The land in controversy was acquired by W. F. Cotten by descent and was therefore his separate property. On February 19, 1908, he, to secure a debt owing by him to the appellee, mortgaged the land to appel-lee. The mortgage was afterwards foreclosed in the district court of Hardin county, and on December 6, 1910, the land was duly sold at sheriff’s sale and purchased by appellee Friedman. Afterwards Mazilda Cot-ten, wife of W. F. Cotten, claiming that the land in question was a párt of the rural homestead of herself and husband at the time of the execution of the mortgage and at the time of the sale, and that the mortgage and sale were therefore void, brought this suit for its recovery, being joined herein by her husband pro forma.

Prior to 1903 W. F. Cotten owned 100 acres of the Mary Hopkins survey and also 100 acres of the Mary Smith survey, and in addition to these owned two tracts of about 15 acres each. His residence was on the Hopkins, and he had lived on this survey for perhaps 25 years before the trial. In 1903 Cotten sold 80 of his. 100 acres on the Hopkins to W. H. Brice and disposed of 10 acres to some one else, leaving him 10 acres, upon which he and his family resided and continued to reside down to the time of the trial. Up to 1903 his residence was in the country; the nearest house to him being a half mile distant. The town of Saratoga then consisted of only a few houses, scattered around the springs at that place. In 1903 oil was discovered in that locality, and Brice, who had purchased 80 acres from Cotten, laid his tract off into a town site, with lots, blocks, streets, and alleys, and a plat or map thereof was duly filed and recorded in the county clerk’s office of Hardin county. The town site as thus surveyed lay to the north, east, and west of Cotten’s 10-acre tract but did not extend south of it. Immediately north of Cotten’s tract, and running east and west, was Third street, according to the plat, and next north and running parallel with it is Main street. All the business houses in ¡Saratoga, of which there are quite a number, are built on Main street. People began building houses in the town site, and in 1908 the population of Saratoga was about 1,000. The testimony seems clear that the town-site survey west of Cotten is occupied by the Texas Company, and it has it inclosed, and there are two or three residences in the inclosure belonging to that company. To the east there are quite a number of houses which were built without regard to the location of lots, blocks, streets, or alleys; in fact, no streets or alleys are laid out on the ground in this part of the town site, although they appear on the recorded plat. These houses are small, unstable, paper roofed and generally occupied by “squatters.” The testimony is in conflict in regard to whether there are any houses south of Cotten’s place; two or three witnesses testifying there were and two or three that there were not.

The attorney who drew the mortgage which was afterwards foreclosed, and under which the land was sold, testified that Cot-ten then told him that the land in controversy was not his homestead. “My home is here in Saratoga and I have never claimed the 100 acres as my homsestead.” He further testified that the town at that time had a population of over 1,000 people. “There were a number of stores, dry goods, grocery stores, saloons, millinery store, two drug stores, several hotels and boarding houses, a machine shop, bank, and post office.” Cotten cut into lots about two acres of his 10-acre tract lying immediately south of Third street, and sold these, and houses have been built on all or some of these lots. The town of Saratoga has never been incorporated.

The 100 acres in controversy is situated some 4½ miles from Cotten’s residence. He began cultivating it or a part of it about 9 years before the trial and continued to do so every year, using the products to support his family. The character of its use has been such as to make it a part of his rural homestead, if he is entitled under the facts to an exemption of a rural homestead, and this depends on whether his residence is situated in a town, city, or village, or in the country.

Under substantially these facts the court, regarding the proof as insufficient to raise the issue of the land in controversy being the rural homestead of appellants, instructed the jury to return a verdict for appellee, and this charge is assailed by appellants’ first assignment of error. We think the assignment must be sustained.

Whether the land in controversy was exempt from forced sale depends on whether or not it was a part of appellants’ rural homestead, and this depends on whether appellants’ residence on the 10-acre tract was an urban or rural homestead. We think the facts, when viewed in the light of the following authorities, were sufficient to take the case to the jury: Bank v. Hulen, 21 Tex. Civ. App. 285, 52 S. W. 278; Wilder v. McConnell, 91 Tex. 600, 45 S. W. 145; Posey v. Bass, 77 Tex. 512, 14 S. W. 156; Watkins v. Abbott, 14 Tex. Civ. App. 447, 37 S. W. 252; Taylor v. Boulware, 17 Tex. 74, 67 Am. Dec. 642; Laucheimer v. Saunders, 97 Tex. 137, 76 S. W. 750.

The testimony was not sufficient to compel a finding that the land at the time of the execution of the mortgage and the foreclosure sale was the rural homestead of appellants, and their second assignment of error, in which they contend that it was, is overruled.

For the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


text:
    RIPS v. HERMAN.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.
    Rehearing Denied June 26, 1913.)
    1. Appeal amd Error (§ 742) — Assignments of Error — Sufficiency.
    An assignment of error in refusing to permit appellant to argue his general demurrer and special exceptions cannot be considered, where it is not followed by any statement except a reference to the record where the assignment of error is copied, and there is no reference to a bill of exceptions, or to any action by the court on the matters of which complaint is made.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 741) — Assignments op Error — General Assignments.
    An assignment of error in refusing to grant a new trial, the grounds of the motion for which are appended to and made a part of the assignment of error without any statement, is too general and multifarious to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3037, 3038; Dec. Dig. § 741.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by A- J. Herman against Henry C. Rips. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. B. Cowen, of San Antonio, for appellant.

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

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

   FLY, C. J.

Appellee, an architect, sued appellant to recover $2,000, alleged to be due him for plans and specifications for a house, prepared at the instance and request of appellant and accepted by him. A trial by the court resulted in a judgment for appellee in the sum of $1,881.20.

The first assignment of error complains of a refusal upon the part of the court to permit him to argue his general demurrer and special exceptions. It is not followed by any statement except a reference to the record where the assignment of error is copied. There is no reference to a bill of exceptions, or to any action of the court on the matter of which complaint is made. There are no bills of exception found in the record. The assignment cannot be considered.

The second assignment of error is too general to be considered, and is not followed by a statement of the evidence pertinent to it.

The third assignment of error is that the court erred in refusing to grant him a new trial; the grounds of the motion for new trial being appended to and made a part of the assignment of error. It is not followed by any statement, and is too general and multifarious for consideration.

While not demanded by the brief, we have examined the facts, and find that they are ample to sustain the judgment of the court.

The judgment is affirmed.


text:
    BULLITT v. JESSE FRENCH PIANO & ORGAN CO.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.
    Rehearing Denied June 26, 1913.)
    1. Courts (§ 480*) — Injunction Against Execution on Judgment in Court or Other County.
    .Under Rev. Civ. St. 1911, art. 4653, providing that writs of injunction granted to stay execution shall be returnable to the court where suit is pending or judgment was rendered, the county court of one county cannot enjoin the issuance of execution upon a judgment had in the court of another county.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. § 480.*]
    2. Injunction (§ 172*) — Time.
    Under Rev. Civ. St. 1911, art. 4648, providing that no injunction to stay execution upon any valid judgment shall be granted after the expiration of one year from rendition, unless application has been delayed through fraud or false promises by defendant, a judgment rendered in 1905 cannot be enjoined in 1912; there being no showing of fraud.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 374-384; -Dec. Dig. § 172.*]
    3. Execution (§ 171*) — Restraining Issuance or Execution — Set-Oer—Insolvency.
    Where defendant executed a note and mortgage for the purchase price of a piano, and upon nonpayment thereof the mortgage was foreclosed, defendant is not entitled to an injunction to restrain execution upon the foreclosure judgment because the plaintiff is indebted to defendant, it not appearing that plaintiff was insolvent; for a judgment debtor is not entitled to enjoin the collection of a judgment and offset it with a debt due to him by the judgment creditor, unless the creditor be insolvent. .
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.*]
    Appeal from Bexar County Court; John H. Claris, Judge.
    Action by Gordon Bullitt against the Jesse French Piano & Organ Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Alex C. Bullitt and Joe L. Hill, both of San Antonio, for appellant. W. R. Camp, of San Antonio, for appellee.
   FLY, C. J.

Afepellant instituted a suit against appellee and John W. Tobin, sheriff of Bexar county, in the county court for civil cases of Bexar county, wherein it was alleged that appellee was, prior to September 28, 1904, in the business of selling pianos and organs in Bexar county, and represented to appellant that it needed the services of an attorney in its business, and that it would employ and retain appellant if he would purchase a piano from it; that he purchased one and gave his note for $600 for the balance of the purchase money, and that thereby the relation of attorney and client was established between him and appellee; that thereafter and up to December 30, 1905, he performed the duties of attorney for appel-lee, but on October 18, 1905, appellee sued him on the note given for the piano, and recovered judgment thereon in the sum of $624; and that the fees for his services should be applied as payments on said judgment. It was alleged that the judgment was valid and subsisting, and that an “execution in the nature of an order of sale” had been issued, and appellant prayed for a writ of injunction restraining the sheriff from levying the execution, and that the equities existing between appellant and appellee be adjusted, and appellant recover the amount due him after satisfying the judgment Appellee excepted to the petition on the ground that it showed that the county court of Dallas county had jurisdiction of the matters in controversy, and that appellant had a complete legal remedy. The exceptions were sustained, the temporary injunction dissolved, and the cause dismissed.

The petition does not disclose where the judgment under which the execution was issued was obtained, and nowhere in the record is there anything that indicates where the judgment was rendered. Appellant in his brief, however, states that the judgment was rendered in the county court of Dallas county, Tex.; and, if it be assumed that such is the fact, the cause should have been returned to and tried in the court where the judgment was rendered. Article 4653, R. S. 1911.

It is admitted by appellant in his petition that the judgment against him on the note is valid and subsisting, and the petition also shows that the judgment was rendered prior to December 30, 1905, and this suit was instituted on February 6, 1912, and the allegations are not sufficient to relieve the suit of the bar stated in article 4648, R. S. 1911.

Appellant does not allege the insolvency of appellee, and he clearly had an adequate legal remedy, and it was not shown that irreparable injury to personal property was threatened by appellee in having his order of sale levied on a piano on which a mortgage lien had been duly foreclosed. Appellant admitted that he had executed the note for a piano; that he at the same time executed a mortgage on the piano to secure the note; that judgment had been rendered on the note and the mortgage duly foreclosed, and the sole object of the suit was to offset against a judgment a claim based on legal services, which he alleged were rendered after the judgment was obtained against him. A judgment debtor is not entitled to enjoin the collection of the judgment and offset it with a debt owing to him by the judgment creditor, unless he shows that the creditor is insolvent, and that he could not plead it at the time the judgment was obtained. Beach on Injunctions, § 619; Sayre v. Harpold, 33 W. Va. 553, 11 S. E. 16; McDonald v. MacKenzie, 24 Or. 573, 14 Pac. 866; Ellis v. Kerr (Tex. Civ. App.) 23 S. W. 1050; Coonan v. Loewenthal, 147 Cal. 218, 81 Pac. 527, 109 Am. St. Rep. 128.

The judgment is affirmed.