author: RICE, J.

text:
    WACO CEMENT STONE WORKS v. SMITH.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 17, 1913.
    Rehearing Denied Jan. 28, 1914.)
    1. Trial (§ 329) — Verdict—Responsiveness to Issues. ■
    The verdict must be responsive to the issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. § 329.]
    2. Trial (§ 329) — Harmless Error.
    Failure to find a material issue is ground for reversal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. § 329.]
    '3. Trial (§ 339) — Insufficient Verdict — Procedure.
    Where the verdict, in an action for the balance due on a contract, was not responsive, in that it did not dispose of plaintiff’s cause of action, but only found for defendant on his counterclaim, the court should, under the direct provisions of Sayles’ Ann. Civ. St. 1897, art. 1327, send the jury back to correct it, or, not having done so, the verdict should be set aside on motion for new trial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 791-794; Dee. Dig. § 339.*].
    4. Judgment (§ 256) — Conformity to Verdict.
    The judgment should conform to the pleadings and case proved, and to the verdict, so that, where the jury merely found for defendant on his counterclaim, without disposing of plaintiff’s cause of action, it was error for the judgment to recite that plaintiff takes nothing.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    5. Trial (§ 343) — Verdict.
    The court cannot look to the evidence to aid the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. § 343.]
    6. Trial (§ 331) — Verdict—Construction — Certainty.
    In an action for a balance due on a contract to furnish stone, and for extra materials furnished, aggregating $792, in which defendant admitted owing plaintiff $546, but counterclaimed for damages for $2,250, a verdict for defendant of $1,000, without any finding as to plaintiff, was uncertain and indefinite, since it could not be determined whether that sum represented the difference between what plaintiff was entitled to recover and the damages suffered by defendant or defendant’s maximum damages.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 783; Dec. Dig. § 331.]
    7. Contracts (§ 324) — Breach—Remedy.
    An owner damaged by breach of a contract to construct a building may either recover such damages in an independent action, or as a set-off or counterclaim in an action by the contractor.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1549-1557; Dec. Dig. § 324.]
    8. Damages (§ 123) — Measure—Breach of Contract.
    The measure of damages for breach of a contract to construct a building by furnishing inferior material is usually the difference between the value of the work done and that contracted for; but recovery may be allowed only for the difference between the cost of replacing the inferior work and material with work and material conforming to the contract, if that could be done without injury to the building.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 320-325; Dec. Dig. § 123.]
    Error to District Court, McLennan County; Tom L. McCullough, Judge.
    Action by the Waco Cement Stone Works against N. K. Smith, in which defendant filed a counterclaim. Judgment for defendant on his counterclaim, and plaintiff brings error.
    Revfersed and remanded.
    Sleeper, Boynton & Kendall, of Waco, for plaintiff in error. Scott & Ross, of Waco, for defendant in error.

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

   RICE, J.

Plaintiff in error sued defendant in error for a balance of $150, alleged to be due it on a contract to furnish certain cement stone, to be used in finishing his residence and garage in Waco, in accordance with the plans and specifications of M. W. Scott, as well as for extra material furnished to him, and used thereon, but not specified in said contract, amounting to $642.15, aggregating the sum of $792.15.

Defendant, after admitting that he owed plaintiff on the contract and for extras a balance of $546.15, resisted payment thereof, on the ground that said stone was not in accordance with the contract, but was inferior in quality, grade, and finish, whereby he was damaged to the extent of $2,000; and likewise pleaded that certain of said material was not of the size and dimensions required, for which reason, he was compelled to do extra work and labor thereon to conform same to proper requirements, to his injury in the further sum of $250, both of which amounts, less his admitted indebtedness, he pleaded in set-off and as a counterclaim.

A jury trial resulted in a verdict for defendant in the sum of $1,000 damages, upon which judgment was entered, to the effect that plaintiff take nothing, and that defendant recover of plaintiff said amount. There was no disposition, however, by the verdict of plaintiff’s cause of action, and it was urged in the motion for new trial that the verdict was not responsive to the issues, and failed to dispose thereof. It is also insisted that the court failed to give in charge the correct measure of damages, and these form the basis of the first and second assignments of error.

The court, in its charge, did not submit any issue under which the jury could have found in favor of defendant against plaintiff for any sum whatever, but were merely directed to set off such damages as they might find defendant sustained by reason of inferior stone having been furnished to him by plaintiff against such sum as they might find for plaintiff under the first section of the charge. The verdict must be responsive to the issues. Marsalis v. Patton, 83 Tex. 521, 18 S. W. 1070; Michon v. Ayalla, 84 Tex. 6S5, 19 S. W. 878; Bailway Co. v. Mackney, 83 Tex. 410, 18 S. W. 949. Failure to find a material issue is ground for reversal. Bledsoe v. Wills, 22 Tex. 651; May v. Taylor, 22 Tex. 349; Dodd v. Gaines, 82 Tex. 429, 18 S. W.' 618; Moore .v. Moore, 67 Tex. 294, 3 S. W. 284. The verdict in this case being defective, the court should have declined to receive it, and sent the jury back, calling their attention thereto, directing them to correct it Article 1327, Sayles’ Bev. Civ. Stat.; Boche v. Dale, 43 Tex. Civ. App. 287, 95 S. W. 1101. And, having failed to do this, it should have set the verdict aside on motion for new trial when asked so to do. The necessity for making the judgment conform to the pleadings seems to have occurred to the court, because the judgment recites that the plaintiff take nothing, as though the jury hád found against it on the issue raised by its pleadings, when in fact the jury had not done so. This cannot be legally done, because there was in fact no verdict to sustain such recital. The judgment must not only conform to the pleadings (Hall v. Jackson, 3 Tex. 305; Pinchain v. Collard, 13 Tex. 333) but likewise to the nature of the case proved (Darden v. Matthews, 22 Tex. 321), and also to the verdict itself (Claiborne v. Tanner, 18 Tex. 68; Jackson v. State, 21 Tex. 668; Bledsoe v. Wills, supra; McConkey v. Henderson, 24 Tex. 212; Longcope v. Bruce, 44 Tex. 434; Handel v. Elliott, 60 Tex. 145). In Carter v. Bolin, 30 S. W. 1084, a judgment not conforming to the verdict was reversed on appeal. See, also, Bich v. Western Union Telegraph Co., 110 S. W. 93; City of Ft. Worth v. Williams, 55 Tex. Civ. App. 289, 119 S. W. 137. The court cannot look to the evidence to aid or supplement the verdict. Claiborne v. Tanner, supra. These rules apply with peculiar force where the defendant, as in the present case, pleads and insists upon a counterclaim. See Hedrick v. Smith, 146 S. W. 305; Bank v. Harris et al., 138 S. W. 1162; Sapp v. Anderson, 135 S. W. 1068, where the authorities on this subject are reviewed, and cases distinguished.

The verdict of the jury is indefinite and uncertain, because from it we are unable to determine whether they meant merely to find $1,000 in favor of defendant as the maximum damages, or intended to find that such amount represented the difference between what they thought plaintiff was entitled to recover and the amount of damages actually suffered by defendant. It is probable, if we are allowed to indulge in speculation, that they found that defendant was only entitled to the sum of $1,000, as damages, and that the court would be authorized to deduct from this amount the amount that he admitted •that he was due plaintiff under said contract and for extra work, which, however, the court was not authorized to do. But, be this as it may, the fact is the verdict is indefinite and uncertain, and does not pass upon the issues submitted in the charge, and should not, for this reason, be allowed to stand.

.We think, however, that the proper measure of damages was given. The rule seems to be that an owner who has sustained ■ injury by. reason of the breach of a contract by the builder may recover, either in an independent action, or as a set-off or counterclaim in an action by the builder for damages which are the proximate result of the breach. The amount of such damages is usually the difference between the value of the work done or building constructed and that contracted for. See 6 Oye. p. 113, subd. 2, note 71, and authorities there cited. This rule may be qualified, we think, so as to allow a recovery only for the difference between what it would actually cost to replace the inferior work and material with work and material conforming to contract, where this could be done without injury to the building. But no such qualification was requested by plaintiff in error, nor are we prepared to say that such limitation would be proper in the present ease, for the reason that it may be impossible to remove the stone, and put in such as called for by the contract, even if inferior stone had been furnished, as contended by defendant in error.

For the error indicated in failing to grant a new trial, the judgment of the court below is reversed, and the cause remanded.

Beversed and remanded.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    STATE v. MACKEN et al.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 24, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Trial (§ 365) — Verdict—Findings—Construction.
    In a suit by the state over land which it claimed as part of the bed of a navigable stream, held that findings of fact by the trial court, in view of the findings embodied in the judgment, constituted a finding that the locus in quo was not a part of the bed of the stream at the time a patent to it was granted by the state.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. § 365.]
    2. Navigable Waters (§ 37) — Patents—Interests Conveyed.
    A patent to public lands abutting on a navigable stream, the channel of which is reserved to the state, does not give the riparian owner any rights to the bed.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 201-226, 285; Dec. Dig. § 37.]
    3. Navigable Waters (§ 36) — Actions—Patents— Construction.
    In a suit over land' which the state claimed on the ground that its title had never been devested because it was an island in the bed of a navigable stream, evidence held sufficient to sustain a finding that the locus in quo at- the time it was patented merely abutted on the stream.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36.]
    Appeal from District Court, Travis County ; Geo. Calhoun, Judge.
    Suit by the State of Texas against J. J. Machen and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    B. F. Looney, Atty Gen., and G. B. Smed-ley, Asst. Atty. Gen., for the State. W. F. Ramsey and E. C. Gaines, both of Austin, for appellees.

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

   KEY, C. J.

We copy the following statement of the nature and result of this suit from appellant’s brief:

“The land in controversy in this ease is an island about 400 yards long and 250 yards wide, and "a sand bar about 300 yards long and 150 yards wide, both situated in the bed of the Colorado river, a navigable stream, and within the limits of the city of Austin. Appellant, the state of Texas, and its lessee, contend that the island and the sand bar belong to the state of Texas, for the reason that they are and have been islands situated in the bed of a navigable stream, while the ap-pellees contend that the island and sand bar are and were included within the bounds of a tract of land known as the Decker grant, lying along the south bank of the Colorado river; said grant being within the bounds of Milam’s colony and having been made March 17, 1835, to Isaac Decker by the commissioner of the state of Coahuila and Texas for Milam’s colony. Milam’s colony calls to run up the Colorado river with its right bank. 1 The Decker grant, which is a part of the land within the bounds of said colony, calls to be situated on the west side of the Colorado river and to run up the river with its meanders. Appellant contends that the stream of water flowing south of the land in controversy is a part of the Colorado river, and that therefore the bounds of the Decker grant are confined to the south bank of the said stream on the south of the land in controversy. Appellees contend that, at the time the Decker grant was made, the stream flowing along the south of the land in controversy was not a part of the Colorado river, but a mere channel or slough, and that therefore, when the Decker grant called to follow the bank of the Colorado river, it followed the bank of what appellees claim to have been at that time the main channel of the river, and therefore included within its bounds the land in controversy.
“The suit originated by the filing by plaintiffs, the state of Texas and its lessee, Blanks, of a petition in which it was alleged that the property sued for was an island and a sand bar located in the bed of the Colorado river, a public navigable stream; that the defendants, without lawful authority, had entered upon said property, and had built a fence around a part of it, and were about to remove from the property valuable deposits of sand and gravel, and prayed that the defendants be enjoined from trespassing upon said island and sand bar, and from inclosing the same and from taking sand or gravel therefrom.
“The defendants Walton, Allen, and Gracy in their answer admitted the entry on said island but claimed to own the property as a part of the Decker grant, and prayed that the temporary injunction which had been issued against them be dissolved, and in a crossbill against plaintiffs prayed for judgment against plaintiffs for the title and possession of the premises and for damages. The other defendants adopted the answer of the defendants Walton et al. On the trial of the ease the defendants abandoned their cross-action. The ease was tried before the court without a jury, and the court made the following findings of fact:
“ ‘That on March 17, 1835, Coahuila and Texas granted to Isaac Decker a league of land lying on the south and west of the Colorado river, and fronting on the same, known as the Decker league. That said grant fronts-on the Colorado liver from a distance of several hundred varas below and above the land in controversy, and the call in the original field notes of the Decker for the line fronting on the river is as follows: “Beginning at the northeast coroner of league No. 20 and the northwest corner of a concession of 10' leagues. Thence up the river with the meanders of same to the mouth of Spring Creek.” The land in controversy being a little below the center of the line meandering the river front opposite the city of Austin and just below where Congress avenue crosses the river.
“ ‘That the various official maps of the city of Austin that are archives of the General Land Office of 1839 and 1840 indicate a slough, drain, or channel of some character, leaving the main channel of the river just below where Congress avenue crosses the river, and, running to the south and west of a small body of land, again connects with the river about 500 or 600 yards below. That this slough or channel as shown by the maps is relatively very much smaller than the river, and the territory included within it and the river on the north and east occupies, on the maps, approximately the position of the land in controversy.
“ ‘That the earliest period to which the testimony of any living witness relates was in 1839, and that at that time there was a slough or channel leaving the river just below Congress avenue, running to the west and south of the land in controversy, and again connecting with the river about the mouth of Bouldin creek. That the bottom of this slough was above the level of the main or north river channel during those periods of the year when the river was in its lower stages, and that water ran through on that side at that time only during those periods of the year when the river was at its maximum place, and that, for a considerable part of the time at least, this slough then presented the appearance of a wet weather slough or wasteway for the river.
“ ‘That from the drawings on the official maps the land in controversy was covered with timber in 1839, and from the earliest recollection of living witnesses to about 1867 or 1869, both the land in controversy and the river valley or bottom to the south, which are now bare of timber, was covered with large timber, pecans, elms, hackberries, some of them two or three feet in diameter and more than a hundred years old, and that during this period, and before the Civil War, the land in controversy was covered with good soil, and that for a time a garden or truck patch was cultivated upon it.
“ ‘That from about 1S50 to 1867 or 1869, water from the Colorado river flowed at intervals through the channel to the southwest of the land in controversy. That the same would during this period, at some portions of the year, carry water its entire course, having its greatest depth about the center of the south of the land in controversy, and at other times it would be entirely dry in places and at other places standing in pools.
“ ‘That about the years 1867 and 1869 the Colorado river had two severe floods, the most severe in the memory of living witnesses, and that these floods swept away all the large timber from the land in controversy, and from the entire valley or bottom to the • south of it, and left it bare as it is now, and that these floods caused changes in the channel of the river, broadening and deepening the channel on the south to about what it has remained since, and to something near its present condition.
“ ‘That from the year 1896 measurements of the river flow at this point have been accurately taken, and that during the summer months there have been periods ranging from 30 to 79 days when the water did not flow in the south channel, and that the water is not now flowing through the south channel when the river is in its low stages. That at all times the north channel has been the main channel of the Colorado river.’
The court made the following conclusions of law:
“ ‘1. From these facts I conclude as a matter of law that at the time the Decker grant was made in 1835 the land in controversy was a physical part of the Decker league, which covered the territory to the south and west, above and below.
“ ‘2. That at the time of the Decker grant in 1835 the land in controversy was not in a legal sense surrounded by the waters of the Colorado river flowing on either side of and around the same, and was not an island or any part of the bed of the Colorado river.
“ ‘3. That at the time of the Decker grant and at all times since and now the main-channel of the Colorado river has flowed and flows to the north of the land in controversy, and that the call on the river front of the Decker for the meanders of the river under the facts in this case means the meanders of the main channel of the river, and would therefore include the land in controversy in the Decker league.
“ ‘On each of the above conclusions of law, based on my findings of fact, I conclude that the state of Texas has .parted with the title to the land in controversy, and can assert no claim to or control over the same itself or through its agents or lessees, and I have therefore held that the temporary restraining order heretofore granted should be dissolved, and that the prayer for perpetual injunction be in all respects denied.’
“On the request of appellant, the state of Texas, the court made the following additional findings of fact:
“ ‘Plaintiff has filed a motion requesting the court to file more explicit findings of fact in this case, the plaintiff taking exception to the use by the court of the word “slough” in its findings heretofore filed herein; and in response to said motion I hereby make the following additional findings:
“ ‘(1) I find that at the earliest period that the tract of land in controversy was known to living witnesses said tract was cut off from the main body of land by a depression or channel which left the main channel of the. river just below where Congress avenue crosses the river, and again connecting with the river 500 or 600 yards below. Said depression or channel was between 25 and SO feet in average width, had precipitous,, high banks, and water flowed through it at times, and it was dry in places at times, as set out in the main findings of fact filed herein.
“ ‘It was not intended by the designation of this depression as a “slough” to designate its character; but the court in its main and supplemental findings had described what is believed to have been the actual conditions existing on the ground at the time, and reference is made to this description, rather than to its designation by any particular word.
“ T further find that the Colorado river in 1835 was and at all times since has been more than 30 feet wide, and, in contemplation of law, a navigable stream.’
“On said findings and conclusions, and in accordance therewith, judgment was rendered against plaintiffs in favor of defendants, dissolving the temporary injunction theretofore issued, and that plaintiffs take nothing by their suit.”

In addition to the statement copied from appellant’s brief we deem it proper to add that in the judgment the trial court made specific findings, of fact to the effect that all of the land in controversy was at the date of the Decker league grant in 1835 included within the boundaries of the field notes of that grant, and was not at that time any part of the bed of the Colorado river.

Opinion.

In the able brief filed by the Attorney General’s department it is contended: First, that in as much as the state of Texas was the plaintiff in' the court below, the burden did not rest upon it to show that title to the land in controversy had not been granted to some one else, but that the burden rested upon the defendants to show, as they attempted to do, that the land in controversy was embraced within the boundaries of the Decker grant; second, that under the laws existing in 1835 the channel of all navigable streams was reserved to the government, and that it being shown that at the time of the trial the land in controversy was an island surrounded by the Colorado river, the burden of proof was upon the defendants to show that it was not so surrounded at the time the Decker grant was issued; third, that the trial court did not find as a fact that the land in controversy was not so surrounded by the river at the time the grant referred to was issued; and, fourth, if that court made such finding it is not supported by, but is contrary to, the testimony.

If it be conceded that the first and second contentions referred to embody sound propositions of law, and are therefore correct, it does not follow that the case should be reversed, unless one or both of the other contentions are sustained by the record. Construing all of the findings and conclusions of the trial court together, and especially the findings of fact embodied in the judgment, we think it is quite clear that it was the intention of that court to find as a fact that none of the land in controversy was within, or was any part of, the bed of the Colorado river in 1835, when the Decker grant was issued; and this conclusion narrows the case down to the fourth and last contention on behalf of the state, to the effect that the testimony does not sustain the finding of fact referred to. In other words, we think the court found as a fact that in 1835 the river had but one channel, and that the land in controversy bordered on that channel, and was therefore part of the Decker grant, and that finding is supported by testimony.

It is true that no witness testified as to conditions existing earlier than May, 1839, and it is also true that the oldest map that was produced tending to show those conditions appeared to have been made in 1839. The only witness who testified that he saw the land in controversy as far back as 1839 was Mr. John Darlington, who at the time he testified was 92 years of age; and it is not probable that any other witness could have been produced whose knowledge upon the subject extended further back than his. Mr. Darlington’s testimony, together with certain maps introduced by the defendants, and the testimony given by Maj. Walton and Mr. Von Rosenberg as to conditions existing as far back as 1853, and changes that were wrought by the floods of 1867 and 1869, support the findings of fact filed as such by the trial judge; and the facts there found justify the further finding of fact, which was incorporated in the judgment, to the effect that at the time the Decker grant was made the land in controversy was no part of the river, and therefore was embraced in the Decker grant, which extended to the river. The trial court did not hold, nor do we hold, that the Decker grant extended to the middle of the river. It may be conceded that the channel of the river was reserved to the government, and not embraced in the Decker grant, but the land in controversy was no part of the channel of the river as the court found such channel to be when the grant was made. We have already stated that from the facts recited in the court’s findings of fact it was permissible to infer that the same conditions existed four years prior to the time referred to in the findings. In other words, it is much more probable that the conditions which were shown to exist in 1839 existed in 1835, than to suppose that in 1835 the river was divided into two distinct channels, each of which was a part of the river, and that within four years” time the one on the south side had ceased to be a channel of the river and was in the condition described by the trial judge. The south channel of the river as it now exists was caused by the floods of 1867 and 1869, and it has so remained ever since that time; and the fact that it has so remained renders it improbable that it was a channel of the river in 1835, and ceased to be such channel in the short time which elapsed between that date and 1839.

As to the contention that a difference exists as to the sand bars and what is now known as the island, the answer is that the testimony citoes not indicate that any material difference existed in 1835. On the contrary, it indicates that at that time the so-called island and the sand bars were not separated by water, and comprised part of one body of land south of and adjacent to the river.

No error has been shown, and the judgment is affirmed. Affirmed.


author: TALBOT, J.

text:
    McCarthy v. Blackwell.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1914.)
    1. Appeal and Error (§ 216) —• Instructions — Dutt to Request.
    Where the charge is not affirmatively erroneous, the defeated party cannot complain, unless he offered and reguested a more ample charge.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 628.]
    2. Evidence (§ 113) — Value.
    In a suit to recover the value of household furniture converted by defendant, testimony by defendant and another witness as to the market value of such property will not preclude plaintiff from testifying as to the vahie of the furniture to her, where other witnesses testified that such furniture had no regular market value and would bring just whatever secondhand dealers were willing to pay for it.
    ■ [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*]
    3. Appeal and Eekob (§ 1170) — Review-Harmless Error.
    Under Rule 62a for the Court of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed on any error, unless it was calculated to injure the appellant, the judgment in a suit for the conversion of property will not be reversed because plaintiff was improperly allowed to testify as to the value of the property to her, where the verdict did not assess the damages at her estimate, but assessed them at the estimate given by other witnesses.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 409S, 4Í01, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from Grayson County Court; J. Q. Adamson, judge.
    Action by Mrs. Ruth Blackwell against C. C. McCarthy. From judgment for plaintiff, defendant appeals.
    Affirmed.
    H. H. Cummins, of Denison, for appellant. C. Huggins and McReynolds & Hay, all of Sherman, for appellee.

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

   TALBOT, J.

This suit was instituted by the appellee against appellant to recover the value of certain household and kitchen furniture alleged to have been converted by the appellant to his own use. Defendant answered by a general denial and specially pleaded that plaintiff was indebted to him in the sum of $125; that plaintiff was unable to pay said sum, and made defendant a proposition to turn over to him the property in controversy in payment of said debt, which he accepted and plaintiff made him a bill of sale therefor. Plaintiff, in reply to defendant’s answer, denied under oath that she ever executed a bill of sale to defendant for her furniture as alleged by him, and averred that if defendant had any such bill of sale the same was not executed by her or by her authority. A trial on the 4th day of April, 1913, resulted in a judgment in favor of plaintiff for the sum of $300, and defendant appealed.

Appellant’s first assignment complains of the first paragraph of the court’s charge, and asserts that the charge is erroneous in that it submitted only appellee’s contention to the jury. The charge has been examined with the conclusion reached that it is not affirmatively erroneous, and that, as appellant failed to ask a fuller charge, he is in no position to complain. Besides, looking to the entire charge of the court, we find that the whole controversy between appellant and appellee was submitted to the jury for their determination.

The second and fourth assignments of error are presented together in the brief, and complain of the court’s charge on the measure of damages and the admission of certain testimony as to the value of the furniture involved in the suit. The proposition under these assignments is that, “it being shown that there was a cash market value for the property in question, the court erred in permitting plaintiff to testify over defendant’s objection what the property was worth to her, and in not submitting that plaintiff’s recovery, if at all, should be the reasonable cash market value of the goods in question.” We do not think the evidence sustains the contention that the furniture in controversy had a cash market value. It is undisputed that the furniture was secondhand furniture, and the only testimony offered that tended to show that it had a “cash market value” is that of the appellant and the witness Andy Burch. The appellant said: “I am acquainted with the cash market value of secondhand furniture such as was turned over to me by plaintiff in satisfaction of my debt, and in my opinion the same was worth seventy-five ($75.00) dollars.” The witness Burch testified on direct examination as follows: “I live in Denison and am engaged in the secondhand furniture business. I knew the furniture in question and am acquainted with the reasonable cash market value of the same in Denison. I think it is reasonably worth $75.” On cross-examination, this witness stated: “There is no established market for secondhand furniture. When it is sold it just brings whatever the furniture dealer is willing to pay for it.” The witness D. K. Thompson and other witnesses merely testified, in substance, that they were acquainted with the reasonable cash value of the furniture in the city of Denison, stating such value. Appellant, as shown by his testimony, does not state the furniture had a cash market value, but simply assumes that it had such value and that he knew what it was. This we think was insufficient to justify, in the face of the other testimony upon the subject, the conclusion that the furniture had a cash market value. Unless such conclusion was warranted by the evidence, then the admission of the testimony complained of by the assignments under consideration, and the form of the court’s charge did not constitute material error.

At all events, we think this testimony was not reasonably calculated to cause and probably did cause the rendition of an improper verdict and judgment, and, unless it did, its admission furnishes no sufficient grounds for a reversal of the case. Rule 62a (149 S. W. x). That the jury did not accept as the amount of the damages suffered by ap-pellee what she said the furniture was worth to her is shown by their verdict. Appellee testified that the furniture was worth to her $500, whereas, the amount of damages awarded her is $300, which another witness testified was the value of the furniture, and it is not assigned that the verdict is excessive. The record, as corrected by the agreement of the parties filed, shows that the court did not charge the jury as asserted in the third and last assignment of error, and this assignment therefore presents no error and will be overruled.

The evidence sustaining the verdict, and no reversible error being shown, the judgment of the court below is affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    EDWARDS v. YOUNGBLOOD.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1914.
    Rehearing Denied Jan. 31, 1914.)
    1.Appeal and Error (§ 302) — Assignments op Error — Motion por New Trial.
    Under Rev. Civ. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, so as to provide that assignments of error on a motion for a new trial shall constitute the assignments of error, assignments of error filed separate from a motion for new trial, and not in the same form as the assignments contained therein, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dee. Dig. § 302.]
    2.Justices op the Peace (§ 174) — Plea op Privilege — Waiver.
    Under County and District Court Rule 24 (142 S. W. xix)_, providing that all dilatory pleas shall be tried at the first term to which the attention of the court shall be called thereto, unless passed by agreement of the parties-with the consent of the court, and that all such, pleas shall be called before the issue is tried, a plea of privilege, filed in justice’s court in a cause appealed to the county court in June, 1909, and there tried de novo, with judgment in 1913, not brought to the attention of the court, was waived.
    [Ed. Note. — For other cases, see Justices of' the Peace, Cent. Dig. §§ 665-693; Dec. Dig. '§, 174.]
    3.Appeal and Error (§ 302) — Assignments-op Error — Conformity to Motion por New Trial.
    An assignment of error on appeal that the judgment against defendant was contrary to and not supported by the testimony did not conform to an assignment of error in the motion for new trial that judgment was contrary to and not supported by the preponderance of the testimony, and hence would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. §. 302.]
    4.Appeal and Error (§ 1012) — Review-Questions op Fact.
    The Court of Civil Appeals is not authorized to set aside the judgment of a trial court merely because it is apparently against the-weight and preponderance of the testimony; but, in order to do this, the judgment must be so manifestly against the weight and preponderance of the evidence as to be clearly wrong.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. § 1012.]
    5. Appeal and Error (§ 742) — Assignments op Error— Sufficiency op Statement.
    Under Rule 31 (142 S. W. xiii), requiring the statement to be faithfully made in reference to the whole of that of which is in the record having a'bearing upon the proposition, a statement under the proposition that the declarations of defendant’s alleged agent were inadmissible to prove agency, they purporting to be all the evidence on the question of agency, and-referring to a purported telephone conversation, in which defendant authorized an agent to incur certain expenses, was insufficient, where it appeared from the statement of facts that the agent informed defendant by telephone that plaintiff would mail his account to him; that defendant had made two payments on plaintiff’s claim.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Appeal and Error (§ 742) — Assignments op Error — Rulings on Evidence — Statement.
    Rulings on evidence will not be reviewed on appeal, unless the statement under the assignments, or the brief elsewhere, discloses the ground of objection.
    [Ed. Note. — For other eases, see Appeal and-Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    7. Principal and Agent (§ 123) — Action against Principal — Sufficiency op Evidence.
    In an action by an undertaker against defendant for expenses incurred by direction of defendant for his agent in caring for the body of defendant’s salesman, evidence held sufficient to sustain a judgment for plaintiff.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. §■ 123.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    Action by T. J. Youngblood against C. H. Edwards. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 160 S. W. 288.
    Oecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee.

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

   HENDRICKS, J.

In this cause T. J. Youngblood sued J. A. Dearing and C. H. Edwards, in the justice court of precinct No. 1, Wilbarger county, Tex., and upon recovery ■of judgment in that court the cause was appealed by the defendants to the county court ■of said county, the county judge trying the cause without the assistance of a jury, and rendering judgment in favor of the plaintiff, the appellee in this court, for the full amount sued for. On October 18, 1913, this court, upon the motion of appellee, ordered appellant’s assignments of error stricken from his brief, on account of a noncompliance with the act of the Legislature of April 4, 1913 (Acts 33d Leg. c. 136), which provides that, when a motion for a new trial has been filed the assignments therein shall constitute the assignments of error, and also upon other grounds not necessary to mention. Thereafter this court, upon request, permitted appellant to rebrief his cause on the assignments contained in the motion for new trial, and the case is before us on the new brief filed by appellant and the original brief of the appellee and an additional brief by the latter in replication to the new brief of appellant, Edwards.

Appellant has reproduced several assignments of error in his new brief not based upon the assignments in his motion for a new trial, which this court, under its former ruling in this same case, are unable to consider, and wall only consider the assignments of error in the motion for new trial, brought forward in the brief for a review of the cause.

The first assignment of error challenges the action of the trial court in “overruling the defendant’s plea of privilege * ⅜ * because the evidence shows that the defendant, C. H. Edwards, was at the time of the institution of this suit * ⅜ * a resident citizen of precinct No. 1, Dallas county, Tex.,” said specification of error followed in said assignment by an argumentative presentation, based upon the testimony why the defendant’s plea of privilege should have been sustained. The mandatory feature of the statute is such that we were impelled to eliminate assignments of error not a part of the motion for a new trial in this cause, and the request was granted for a rebriefing and a representation of appellant’s theory of the case, based upon his assignments in said motion for new trial, on the ground that at the time of the trial of the case the law declaring that the assignments of error in the motion should constitute the assignments in the cause had not then been published; and we will be prone to overlook the deficiencies in the particular assignments which could have been cured by new assignments, if the statute had not held appellant to the assignments in the motion. The assignments are multifarious, argumentative, intermixed with conclusions of fact, presenting distinct and different specifications of error; but the objections of appellee based upon such deficiencies are all overruled. The appellant, Edwards, however, does not exhibit any statement whether the plea of privilege was properly framed for the purpose of meeting the issue. By going to the record we find a good plea.

It is also disclosed that this cause was appealed to the county court from the justice court some time in June, 1909, and that judgment was rendered in that court the 24th day of April, 1913, where, of course, the cause was to be tried de novo. We notice that the justice of the peace continues the cause without prejudice to the plea of privilege. When a cause is appealed to the county court it stands upon the docket of that court as any other appearance case, under the statute. Rule 24 (142 S. W. xix), prescribed by the Supreme Court for the government of county and district courts, says: “All dilatory pleas and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of the parties with the consent of the court; and all such pleas and motions shall be first called and disposed of before the main issue on the merits is tried.” The Supreme Court of this state, in the case of Aldridge v. Webb, 92 Tex. 124, 46 S. W. 225, held that: “Said rule 24 is based upon the assumption that the party will present the pleadings, etc., at the time the court is thus required to act, and requires that they shall then be tried, ‘unless passed by agreement of the parties with consent of the court,’ and further that they shall be ‘disposed of before the main issue on the merits is tried.’ ” The Supreme Court of this state used rather broad language in connection with the plea of privilege, and further said: “We think as indicated above, that the law imposes upon the party relying upon such a plea the duty of demanding the action of the court thereon at the time the statutes and rule above quoted required it to act in the particular case, and that his failure to do so is a waiver thereof.” Justice Tarleton said, in the case of Spencer v. James, 10 Tex. Civ. App. 332, 31 S. W. 542, the court did not “err in failing to sustain appellant’s personal plea to the jurisdiction of the court in cause No. 466. It appears that this plea had been filed on July 29, 1892; that two terms of the district court had passed without any attempt by appellant to invoke the action of the court thereon. He must be deemed to have waived it had it been meritorious, if duly presented.” Under the rule it is the duty of the actor, in the plea of privilege, to call the same to the attention of the court; otherwise it is waived unless the right of presentation at a future term is preserved, which is not presented in this record. We think the plea of privilege, for this reason alone, should have been overruled.

It seems that one Midgett was killed in a hotel at Vernon, Wilbarger county, conducted by one J. A. Dearing. Youngblood, the appel-lee herein, through his agents, took charge of the body, claiming that they did so at the instance and request of Dearing, the proprietor of the hotel, representing one O. H. Edwards at Dallas, by whom Midgett had been employed as a drummer, selling pianos.

There is testimony in this record by the witnesses Underwood, Albright, and Clapp, employes of Youngblood, to the effect that the body of Midgett was prepared for burial on account of the statements and declarations of Dearing, and that the statements of Dear-ing were the result of a long-distance telephone communication with Edwards at Dallas. As an illustration, Underwood says: “I talked with J. A. Dearing about the matter before I took charge of the remains; he said that he had a call in for C. H. Edwards, and would know in a few minutes who would be responsible for the expense of preparing the body for burial. Mr. Edwards (defendant) called and talked with Dearing and he, J. A. Dearing, came out of the booth and came to the door and said that Mr. Edwards said have the body prepared and shipped to Dallas, and send the bill to him, and he would pay it.”

The appellant complains “that the court erred in rendering [judgment] against this defendant in favor of the plaintiff because said judgment is contrary to and not supported by the testimony in this case.” The corresponding portion of the assignment in the motion for new trial is as follows: “The court erred in rendering judgment against this defendant in favor of the plaintiff, because said judgment is contrary to and not supported by the preponderance of the testimony in this case.” A judgment without testimony, and one not supported by a preponderance of the testimony, present distinct and different specifications of error, well illustrated by the Supreme Court, in numerous cases upon applications of writ of error to that tribunal in its distinctions with reference to its own jurisdiction.

It is not necessary to cite authorities that a Court of Civil Appeals is not authorized to set aside the judgment of a trial court merely because such judgment is apparently against the weight and preponderance of the testimony, but that in order to do this, the judgment must be so manifestly against the weight and preponderance of the evidence as to be clearly wrong. Of course, our revisory power is to set aside a judgment where there is no evidence, and often to render such judgment as the court below should have rendered is a question of law, arising from an entire lack of evidence.

Contained in the second assignment of error is another specification of error, complaining of the admission of the testimony of the witnesses Underwood, Albright, and Clapp and his proposition under same is as follows: “The declarations and statements of an alleged agent are not admissible for the purpose of proving agency, until [it] is shown, neither are the declarations of an alleged agent admissible as against the principal to prove the fact of agency”—an abstract proposition of law, rather correctly stated. The statement which appellant purports to be all the evidence on the question of agency, sustaining the proposition and specification of error in the assignment last mentioned, is, with reference to the purported telephone conversation between Dear-ing and Edwards, claimed by Underwood, Al-bright, and Clapp to have been reproduced by Dearing after the latter left the telephone booth. Appellant says in his argument the court must have based his decision almost entirely upon the testimony of the three witnesses named, “for outside of the testimony of said witnesses, no witnesses testified to any fact or circumstance tending remotely to show that Edwards authorized Dear-ing to contract said debt, * * * or os his own part authorized the services to be performed and the burial material to be furnished.” The statement and argument of counsel does not properly reflect the record; it is in plain violation of rule 31 (142 S. W. xiii), which says that “this statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said proposition,” etc. The statement of facts specifically show that Dearing informed Edwards over the telephone to Dallas that the undertaker would mail the account for undertaking expenses to him ; that Edwards sent Dearing a check for $9.50 to pay the drug bill that Midgett owed Ferguson; that Dearing directed that the bill be sent to Edwards, and that it was so sent; that appellant received the bill and made two payments of $10 each upon the account; that Dearing directed Underwood, the agent of Youngblood, to take charge of the body immediately after he talked with Edwards. We presume, of course, that the appellant is so impressed with the strength of his position and the lack of evidence from any fact or circumstance in the record on this point, from his viewpoint, is the reason that he did not make the statement “in reference to the whole of that which is in the record having a bearing upon said proposition.” An ap-' propriate nonpartisan' and complete statement, however condensed it may be, is very often the meat of the case; there is no more important rule to be complied with by the brief maker.

The evidence of Edwards is that Dearing informed Mm that the bill for the undertaking expenses would be mailed to him; liability was not repudiated by Edwards for quite a while after the bill was mailed, and, on the other hand, two payments, as stated, were made at different times by Edwards upon this account, and it is not shown that they were made in a spirit of compromise, or with any reservation as to liability; and we have to presume, as an inference of fact, that the same was done before a repudiation of liability — we are unable to presume that Edwards denied liability and then paid part of the account — business men do not generally deny liability and make installments of payment without explanation. The two payments upon the account are in direct consonance with the theory that Dear-ing informed him, Edwards, that the bill for undertaking expenses would be mailed to him, for the reason that a statement that a bill is to be mailed to a party implies that the party who mails the bill regards the other party liable, and that a charge is made. Payment could be inferred as in recognition of this fact; men do not generally pay accounts gratuitously, and without recognition of an obligation. Appellant may say that the testimony shows that Dearing informed Edwards that the bill was to be mailed after burial expenses had already accrued and the body was in preparation of sMpment to Dallas; however, it is just as susceptible of the construction as an inference upon plaintiff’s theory of the case that Dealing’s statement to Edwards as to the mailing of the account was made the evening before, and the fact that Edwards says he delivered the account to Mrs. Midgett on receipt does not destroy the other inference. We are inclined to think that there is other testimony supporting the doctrine of liability and agency in the case.

The eases of Dee v. Simmons, 151 S. W. 868, Ry. Co. v. Miller, 88 S. W. 499, Ry. Co. v. Matlock, 44 Tex. Civ. App. 565, 99 S. W. 1052, and Roibal v. Giron, 158 S. W. 798, lay down the rule that: “Rulings on evidence will not be reviewed on appeal unless the statement under the assignments, or the brief elsewhere, indicates and discloses the grounds of objection” — the grounds are not stated by appellant under the second and third assignments of error, even in Ms new brief.

The tMrd assignment of error has a subjoined proposition that where the record shows that the trial judge based his decision upon incompetent testimony, and where there is not sufficient legal testimony upon which to sustain the judgment, it should be reversed; tMs particular assignment recites that there is no testimony that defendant, Edwards, in any way authorized plaintiff to incur the undertaking expenses; “that the witness J. A. Dearing testified that this defendant never at any time authorized him to make any statement to the plaintiff, or any one else, to have the body prepared for burial and send him the bill, and he would pay it.” There is evidence of liability and also of the authorization of Dearing as agent, aside from declarations. While Edwards testified that he did not authorize Dearing to make any statement to the undertaker for the preparation of the body, however, he did say, as before stated, that Dearing informed him that the bill would be sent to Edwards for the undertaking expenses. Appellant argues in this assignment that the two payments could not bear on the liability of the defendant Edwards, for the reason that the evidence shows that they were sent to plaintiff by Mrs. Midgett, wife of the deceased; the statement of facts does not show it. The statement under this assignment, with reference to other evidence showing liability, does not contain salient testimony on the question of liability and agency — the same inadequacy as to tMs statement as the statements under the second proposition. Neither does the statement disclose in any manner that the trial judge based his decision upon incompetent testimony, and used it for an incompetent purpose, and the partisanship and inadequacy of the statements are such as to preclude us from reaching into the record and making a statement for that purpose. We think that a close consideration of all the testimony and inferences deducible therefrom warranted the trial court in rendering the judgment which he did. The Supreme Court of Wisconsin, in the case of Roebke v. Andrews, 26 Wis. 821, in commenting upon testimony, the declarations of agents in negotiating the purchase of some oxen, said: “Such statements by them were not proof of the fact of agency. It would be necessary to prove that fact in some other way, or to connect the defendant with the consummation of the bargain. But it is still true that whatever bargain was made, if any, was negotiated by those parties. What that bargain was, with whom and by whom it was made, could only be proved by showing what was done and said in its actual negotiation. If they professed to act for the defendant, that fact entered into and formed a part of the negotiation itself, and gave it character. It was a part of the res geste, and was admissible as such, though without something further it would have no binding effect upon the defendant.” The judgment of the trial court is affirmed.

HABL, J., not sitting.


author: WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. MARTINEZ.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1914.
    Rehearing Denied Jan. 22, 1914.)
    1. Master and Servant (§ 287) — Injury to Servant — Submission of Issues.
    In a section hand’s action for injuries due to a hand car, which he and others were lifting, being pushed upon him when his foot sank in a pile of cinders, plaintiff’s testimony that when he stepped on the cinders and sank down the others “turned the hand car and pushed it on” him authorized submitting to the jury whether the other men were negligent.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045, 1051, 1052, 1054-1067; Dec. Dig. § 287.]
    2. Master and Servant (§ 286) — Injury to Servant — Submission of Issues.
    In a section hand’s action for injuries due to a hand car, which he and others were lifting and turning pursuant to an order of a foreman, falling or being pushed against him when his foot sank in a pile of cinders over which he was crossing, evidence that the hand car weighed about 600 pounds, that there were only five men handling it, and that it was necessary to cross over a loosely packed pile of cinders in moving it, authorized submitting to the jury the question whether the foreman was negligent in giving such order.
    [Ed. Note. — For other cases, see Master and Servant. Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Cabino Martinez against the Texas & Pacific Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. Lane & Lane, of Marshall, for appel-lee.

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

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

   WILLSON, C. J.

Appellee was in appellant’s service as a section hand, and on December 7, 1912, with other section men, was engaged in repairing appellant’s track between Marshall and Hallville. On the ground near the track was a hand cs.r, weighing, witnesses testified, about 600 pounds, used by the men in going to and returning from the places where they worked. Appellee testified that eight men were needed to lift and move the car. The foreman testified that ordinarily six men .handled it. At one end of the car was a pile of cinders a yard wide and 18 inches high, which had been placed there for use in repairing the track. On the day mentioned, when the time to quit work arrived, the foreman ordered appellee and the men (five in number, according to his testimony, and four according to appel-lee’s testimony) working with him to turn the hand car around and place it on the track. To comply with the foreman’s order, it was necessary for appellee, while assisting the other men in lifting and turning the car, to cross over the pile of cinders. When he stepped upon the cinders his foot sank in same, causing him to give down or fall. Thereupon the hand car fell, or, as appellee testified was true, was pushed by the other men upon or against him, causing injury to his person. On the ground that the foreman, under the circumstances, was guilty of negligence in ordering him and the other men to turn the car around and place it on the track, and on the ground that the other men were guilty of negligence in pushing the car on or against him when he fell, appellee sued and recovered judgment against appellant for the sum of $187.50.

It is insisted that there was no testimony on which to base a finding in appellee’s favor on either of the grounds of negligence relied upon, and therefore that the court erred in submitting to the jury issues as to whether said foreman or said other men had been guilty of negligence as charged or not. As to the conduct of the men appellee was assisting, he testified that when he stepped on the cinders and sank down they “turned the hand car and pushed it on” him. If it was true, as we must assume the jury found it was, that the men did as appellee testified they did, we cannot say the jury was not warranted in concluding they were guilty of negligence.

As to the conduct of the foreman, we have doubted whether it should be said there was testimony making an issue as to whether he was guilty of negligence or not in giving the order as he did to turn and place the car. We have concluded, however, that reasonable minds might differ about the matter, in view of the weight of the car, that only five men, as the jury had a right to believe from the testimony was true, were present to turn it, and the fact that in lifting and placing it it was necessary for the men to cross over the pile of cinders 18 inches deep and so loosely packed as to permit appellee’s foot to sink in same when he stepped upon them. It may be that under those circumstances an ordinarily prudent person charged with the duty the foreman owed to appellee and the other men, before ordering them to move the car, would have seen to it that there were more men present to assist in the work than engaged in it, and that the cinders were so packed as to bear the weight of the men when they stepped on same. Therefore, in deference to the verdict of the jury, we find that the foreman and the men who assisted appellee in moving the car were guilty of negligence as charged against them, and that such negligence was the proximate cause of the injury appellee suffered.

It is insisted the verdict is excessive. But clearly it is not, if the consequences to ap-pellee of the injury inflicted on him were as serious as he testified they were. Evidently the jury, as they had a right to, believed he suffered as he testified he did.

The assignments not in effect disposed of by what has been said are believed to be without merit, and are overruled.

The judgment is affirmed.


author: JENKINS, J.

text:
    GAMESON v. GAMESON.

    (Court of Civil Appeals of Texas. Austin.
    Dec. 10, 1913.
    Rehearing Denied Jan. 28, 1914.)
    1. Husband and Wife (§ 249) — Community Property.
    Under Rev. Civ. St. 1911, art. 4622, providing that all property acquired by a husband or wife during marriage, except by gift, devise, or descent, is deemed community property, property acquired by deeds made after marriage is deemed community property; the date of the deed being prima facie evidence that the property was acquired at that time, placing the burden of proof on the one asserting the contrary.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig. § 249.]
    2. Husband and Wipe (§ 248½) — Sep abate Pbopeety op Husband — “Claimed.”
    The word “claimed,” as used in Rev. Civ. St. 1911, art. 4621, providing that all property of the husband owned or claimed by him before marriage shall be his separate property, means a legal claim, or an equitable claim which may ripen into a legal claim.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 888; Dec. Dig. § 248½

    For other definitions, see Words and Phrases, vol. 2, pp. 1202-1211; vol. 8, p. 7604.]
    3. Husband and Wipe (§ 262) — Community Property — Peoop op Character — Weight op Evidence.
    Under the statute providing that all of the effects which the husband and wife possess when the marriage is dissolved shall be regarded as common effects, unless the contrary be satisfactorily proven, the presumption that the property is community property must be overcome by evidence reasonably satisfactory to the jury; such presumption continuing until the contrary is “satisfactorily”' proved.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dee. Dig. § 262.]
    4. Evidence (§ 596) — Burden op Proof— Weight op Evidence.
    Ordinarily and in the absence of statute, the party having the burden of proof in a civil action need only make proof by a preponderance of the evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2446-2448; Dec. Dig. § 596.]
    6.Husband and Wipe (§ 262) — Community Property — ‘ ‘Possess . ”
    The word “possess,” as used in the statute providing that all of the effects which the husband and wife possess at the time the marriage is dissolved shall be regarded as common effects, unless the contrary be satisfactorily proved, implies ownership.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.

    For other definitions, see Words and Phrases, vol. 6, p. 5463; vol. 8, p. 7757.]
    6. Husband and Wipe (§ 272) — Community Property — Dissolution op Marriage — Dissolution by Divorce.
    The statute , providing that all of the effects which the husband and wife possess “at the time the marriage may be dissolved” shall be deemed common effects, unless the contrary be satisfactorily proven, includes a dissolution by divorce as well as by death.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 1003-1007; Dec. Dig. § 272.]
    7. Husband and Wipe (§ 263) — Community Property — Evidence.
    In a suit between a husband and wife for the partition of land claimed to be community property, evidence that the husband was in possession of certain lands before marriage was admissible, as tending to show that he had a legal or equitable claim thereto at that time, so that the property remained his separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 915; Dec. Dig. § 263.]
    8. Husband and Wipe (§ 262) — Community Property — Burden op Proop.
    The burden was on the wife to prove an allegation that certain land conveyed to the husband before marriage was paid for in part out of community funds, though one of the purchase-money notes was paid a year or more after marriage.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.]
    9. Husband and Wipe (§ 262) — Separate Property op Husband.
    A 14-acre tract of land was prima facie the separate property of the- husband, where the consideration therefor was a deed executed by him for his undivided half interest in another tract which was owned by him before marriage.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dee. Dig. § 262.]
    10. Husband and Wipe (§ 272) — Community Property — Actions to Partition — Jury Question.
    In a suit by a wife to partition land claimed as community property, evidence held to make it a jury question whether the husband intended that certain lands should remain his separate property or become community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1003-1007; Dec. Dig. § 272.]
    11. Husband and Wipe (§ 264) — Community Property — Suppiciency op Evidence.
    Evidence in a suit by a wife to partition land claimed as community property held to sustain a finding that certain land was paid for in part with community funds.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 916; Dec. Dig. § 264.]
    12. Evidence'(§ 590) — Uncontradicted Evidence — Weight.
    The jury need not believe the testimony of an interested witness, though it is not contradicted; especially where it might appear unreasonable.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. § 590.]
    13. Husband and Wipe (§ 248½) — Separate Property.
    If one in possession of land did not have a contract with the owner for its purchase which would constitute at least an equitable claim thereto, a husband by purchasing such claim before marriage did not acquire such a claim as would constitute the land his separate property, under Kev. S't. art. 4621, making all property of the husband owned or claimed before marriage his separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 888; Dec. Dig. § 248½.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Action by Clara Gameson against Harry Gameson. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.

      Spivey, Bartlett & Carter, of Marlin, for appellant. Page Collier and Nat Llewellyn, both of Marlin, for appellee.

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

       Second motion for rehearing denied, see 164 S. W.

   Findings of Fact

JENKINS, J.

Appellant and appellee were married December 5,1889, and were divorced Angust 19, 1911. No disposition was made of the community property in the divorce suit. Appellee brought this suit for the partition of eight tracts of land, alleging that they were community property, and also for the partition of certain personal property, consisting principally of household goods. Appellant, in addition to a general denial, alleged that the lands in controversy were his separate property, in that they were acquired by him before marriage, and were paid for out of his separate estate, except one-third undivided interest in the lll%-acre tract described in plaintiff’s petition, which he admitted was community property.

The land in controversy consisted of a 50-acre tract; three small tracts adjoining the 50-acre tract, aggregating 50½ acres; a 14-aere tract adjoining two of these small tracts; a 73%-acre tract; a 126½-acre tract, and a one-third undivided interest in a 111½-acre tract.

The court instructed the jury that the 50-acre tract and the 73%-acre tract were the separate property of appellant, and that the one-third undivided interest in the 111½-aere tract was community property.

The 50-acre tract was purchased by appellant on December 1, 1888, one year and five days before his marriage, he paying a cash consideration and also executing two notes for the sum of $100 each, one due in 12 months and the other in 2 years. The three small tracts adjoining the 50-acre tract were deeded to appellant June 1, 1894, 4 .years, 6 months and 26 days after the marriage. The 14-acre tract was deeded to appellant March 17, 1908, more than 18 years after the marriage. The 1261/4-acre tract was deeded to appellant September 28, 1891, nearly 2 years after the marriage.

The court submitted the case on special issues, instructing the jury as to what constituted community property, the presumptions of law and the burden of proof. The jury returned answers favorable to appellee as to all of these five tracts; and also as to when the two $100 purchase-money notes were paid, and out of what fund. These answers and the facts relating to these tracts will be more specifically dealt with in the opinion. The jury also answered questions submitted to them as to the personal property and the value thereof.

Opinion.

(1) The first assignment of error complains of the following portion of the charge of the court: “Where deeds to property are made to either husband or wife during their marriage, such property is presumed by law to be community property, which presumption has to be overcome by evidence reasonably satisfactory to the jury.” There was no error in this charge in so far as it instructs the jury that, where deeds are made after marriage, the property is presumed by law to be community property. Our statute declares that: “All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed to be the common property of the husband and wife.” R. Si art. 4622. The date of the deed to land is prima facie evidence that it was acquired at that time, and the burden of proof will be upon him who asserts the contrary. This disposes also of assignments Nos. 4, 5, 6, and 8, so far as the issues raised in said assignments are necessary to the decision of this case.

(2)Appellant relies upon article 4621, R. S., which declares that “all property, both real and personal, of the husband, owned' or claimed by him before marriage, * * * shall be his separate property”; and asserts the proposition that, inasmuch as appellant testified that he claimed all of the property in controversy and was in possession of the same before marriage, the presumption that it was separate property is equally as cogent as the presumption raised from the date of the deed that it was community property. As we have said, the deed is prima facie evidence of the time when the property was acquired, as that is the instrument which vests title. This prima facie case may be met and rebutted by proof that in fact the property was owned or claimed before marriage, but this does not relieve the party asserting such fact from the burden of proving the same.

(3) The expression “claimed,” as used in article 4621, supra, signifies a legal claim or an equitable claim which may ripen into a legal .claim. Sauvage v. Wauhop, 143 S. W. 260; Hawkins v. Stiles, 158 S. W. 1011. The nature of appellant’s claim to the several tracts of land involved in this appeal will be more particularly stated in a subsequent portion of this opinion.

(4) Appellant further contends that said charge was upon the weight of the evidence and erroneous, in that it required appellant to overcome the presumption of community property by evidence reasonably satisfactory to the jury. Many cases may be found in which it has been held error to charge the-jury, where a party has only the burden of proof, that he must prove the fact claimed by him to the satisfaction, or to the reasonable satisfaction, of the jury, or that he must establish such fact.

Where there is nothing more than the burden upon a party to prove a given fact, he is required to prove the same only by preponderance of evidence; and, in such case, it would be error to instruct the jury that such fact must be established or must be proven to the satisfaction, or to the reasonable satisfaction, of the jury.

But our statute declares that all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains,unless the contrary be satisfactorily proven. The word “possess,” as used in the above article, implies ownership; and this ownership, so far as reai estate is concerned, is presumed to have begun at the date of the deed by which title to the property appears to have been acquired. The charges above referred to as having been held erroneous were so because it is not the law, where a party is required to prove a fact by a mere preponderance of evidence, that he is required to prove the same to the satisfaction of the jury; for they may not be “satisfied” by a mere preponderance of the evidence; but it cannot be error in any case for the court to inform the jury as to what is the law of the case; and we hold, by virtue of our statute, the law is that, where property is deeded to either husband or wife during the existence of the marriage, such property is presumed to be community property, and that such presumption continues until the contrary is “satisfactorily” proved. Ervin v. Ervin, 128 S. W. 1139; Speer on Married Women, §§ 146, 181, 182, 183, 201, 232, 326; Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 997.

(5) The language “at the time the marriage may be dissolved,” as used in article 2623, supra, includes such dissolution by divorce as well as by death. Moor v. Moor, supra.

(6) Appellant insists that, inasmuch as he was in possession of the land in controversy prior to the marriage, appellee was thereby charged with notice of his claim to said lands. Appellee is not claiming as an innocent purchaser, but by virtue of the presumption raised by the statute on account of the date of the deeds. The fact, if such be the fact, that appellant was in possession of the lands prior to marriage was admissible in evidence as a circumstance to show that he had a legal or equitable claim to same at such time, and this evidence was admitted by the court. But such 'fact would not relieve appellant from the burden of proving such ownership prior to marriage by evidence reasonably satisfactory to the jury.

(7) As stated in the findings of fact herein, the 50-aere tract was purchased prior to marriage, but in part consideration therefor appellant executed two promissory notes, one due in 12 months, which would be 5 days before the marriage, and one due in 2 years. Appellee contends that these notes were paid out of the community property, and that the same was a charge against appellant’s separate estate in the 50-acre tract of land. The court submitted to the jury whether these notes were paid before or after marriage, and the jury found that they were both paid áfter marriage. The court also submitted to the jury whether the notes were paid out of the separate funds of appellant, or out of community funds; and in this connection charged the jury that the burden of proof was on the defendant to show that the notes were paid out of his separate funds, if paid after marriage. The jury found that they were paid out of community funds.

There is nothing in the statute as to marital rights which would place the burden of proof on the defendant in such case. The undisputed evidence showed that this 50-acre tract was deeded to appellant prior to marriage, and therefore it was his separate property, as charged by the court and found by the jury. Appellee alleged that this tract was paid for in part out of the community funds, and the burden of proof was upon her to establish such allegation. One of these notes was paid a year or more after marriage, and this was a circumstance to be considered upon the issue as to whether it was paid out of separate or community funds; but this did not relieve the appellee of the burden of proving her allegation that the payment was made out of community funds.

This disposes of the second, third, tenth, eleventh, and twelfth assignments of error,, in so far as is necessary for a proper disposition of this case.

' (8) As stated in the findings of fact, the evidence shows that the 14-acre tract was deeded to appellant and to appellee more than 18 years after marriage.

It also shows that the consideration for this 14-acre tract was a deed executed by appellant for his undivided half interest in a 28-acre tract, which was owned by him before marriage. In this manner he clearly traced his separate property into this 14-acre tract; and such fact, if nothing appeared to the contrary, would show that it was his separate property; but the deed was executed to appellant and to appellee. Ap-pellee testified that they had been living upon this 14-acre tract as their home, claiming the same for about 17 years, at the time the deed was executed, and that the same had been improved with community funds. The court propounded to the jury the following question: “As to the 14-acre tract described in the deed of William Gameson and wife to H. Gameson and Clara Gameson, dated March 17, 1908, the evidence shows that the consideration for said conveyance was an undivided half interest in a certain 28-acre tract claimed or owned by Harry Gameson prior to his marriage. Did H. Gameson intend in said transaction at the time thereof that his wife Clara Gameson should become the owner of an undivided interest with him in said 14 acres so conveyed by deed of William Gameson and wife, or that said 14 acres should become the community property of himself and wife, or did he intend that it should remain his separate property?" The jury found in answer to this question that: “He intended to make it community property.!’

The evidence was sufficient to raise the issue submitted to the jury in the above-stated question, for which reason there was no error in submitting the same.

(9) The court submitted the following question, relative to the 126%-acre tract: “Was the first payment, if any made on said land, made out of the separate funds or with the separate property of said H. Gameson, or with the community funds of himself and wife Clara Gameson?” To which the jury answered: “With community property of both.” Appellant in the ninth and fifteenth assignments of error complains of this charge, for that the uncontradicted evidence showed that the first payment on said tract was made out of his separate property. Appellant testified that this tract was in litigation, and * that one Johnson was claiming that he had a contract to purchase the same from the owners when the litigation was settled, and that he (appellant) prior to his marriage gave Johnson a horse valued at $126.50 for his claim on this land. The only testimony controverting this statement of appellant was that of appellee, who testified that appellant told her the day after their marriage that he had traded for this land on that day. Appellant had property of his own, but at that time there was no community property. She knew nothing as to the consideration, if any, paid by appellant to Johnson. This evidence would not be sufficient to overcome the testimony of appellant; and if the same was believed by the jury their verdict should have been that this payment was made out of the separate property of appellant; but a jury is not compelled to believe the testimony of an interested witness, notwithstanding the same is not contradicted, and especially so where the witness, as in this case, testifies to matters which might seem to the jury unreasonable. The deed to this tract was executed nearly two years after the marriage, and we think the court did not err in the question propounded.

(10) The deed to the 1261/4-acre tract, as above stated, was made nearly two years after the marriage. We doubt if appellant’s testimony with reference to his transaction with Johnson shows a purchase of such a claim as would constitute this land his separate property, if he paid Johnson therefor out of his separate funds. Appellant testified that Johnson was claiming to hold this land under a contract. He does not say with whom, nor that.said contract was in writing, and does not undertake to give the substance thereof.

If Johnson, though in possession of the land, had no such contract with the owner as would constitute an equitable claim to the land, the “purchase of Johnson’s claim” would not be the inception of title by appellant so as thereby to constitute the same his separate property. Hawkins v. Stiles, supra. This applies also to the alleged claim to the three small tracts adjoining the 50-acre tract.

(11) The remaining assignments of error are to the effect that the evidence is insufficient to support the findings of the jury. As this case is to be reversed, and we do not know what the evidence upon another trial will be, it is not necessary nor proper that we should comment on the weight of the evidence.

For the reason that the court erred in charging that the burden of proof was on appellant, as indicated in paragraph No. 7 of this opinion, the judgment in this case is reversed and the cause is remanded.

Reversed and remanded.


author: REESE, J.

text:
    CHILDRESS et al. v. ROBINSON. MITCHELL et al. v. SAME.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 24, 1913.)
    Appeal and Error (§ 518*) — Presentation poe Review — Bill op Exceptions.
    Under Rev. Civ. St. 1911, art. 2062, providing that, where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto, rulings on demurrers and exceptions are sufficiently presented for review where shown in the judgments; but this does not preclude their presentation by bills of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2342-2355; Dec. Dig. § 518.]
    For former opinion, see 162 S. W. 443.

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

   On Motion for Rehearing.

REESE, J.

Attention is called in the motions for rehearing in these two cases to a statement in the opinion, in each case, that the action taken by the court, on demurrers and exceptions of appellants, is not shown in the judgments. Such action was shown by bills of exceptions in eabh case. It was not intended by us to hold that the rulings of the court on demurrers and exceptions could not be shown by bills of exceptions, and the assignments referred to were not refused consideration on this ground. What was intended was to call attention to the fact that the only thing necessary to be done to preserve the point and present the question for review here was simply to have the judgment of the court to show the ruling made by the court in such exceptions, without the trouble and labor of the preparation and incorporation in the record of bills of exceptions. Article 2062, McEachin Digest, R. S. 1911.


text:
    GRAND LODGE, F. & A. M. OF TEXAS v. DILLARD.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Appeal and Eeeoe (§ 742) — Assignment oe Eeeoe — Peoposition and Statement.
    In an assignment of error to the admission of conversations with and statements made to plaintiff by her deceased husband as to the payment of his relief dues, with the proposition that the testimony was inadmissible under the statute forbidding an heir or representative to testify as to any transaction with or statements by a deceased, unless called by the opposite party, the statement: “St. P. P. 1 & 2. Also see Bill of Exceptions No. one, page 18”— did not comply with Courts of Civil Appeals rule 81 (142 S. W. xii), providing that the statement must be made faithfully in reference to the whole of that which is in the record having a bearing on the proposition, and hence would not be considered.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Witnesses (§ 159) — Teansaction with Decedent — Action on Benefit Oertifi-cate.
    In an action on a benefit certificate issued to plaintiff’s husband, in which she was named as beneficiary, so that she claimed nothing as his heir, but, upon his death in good standing, became at once in her own right and by contract entitled to the moneys due, she was a competent witness to testify as to conversations with him referring to the payment of his dues.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. 5§ 629, 664, 666-669, 671-682; Dec. Dig. § 159]
    3. Appeal and Eeeoe (§ 742) — Assignments of Eeeoe — Sufficiency—Rule of Couet.
    In an assignment of error in the exclusion of documentary evidence, a statement giving no information of the substance of the excluded evidence or as to what was contained therein was not a compliance with Courts of Civil Appeals rule 31 (142 S. W. xii), prescribing the requirements of a statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Eeeoe (§ 742) — Assignments of Eeeoe — Statutes and Rules of Couet.
    Courts of Civil Appeals rule 31 (142 S. W. xii), prescribing the requisites of the statement in an assignment of error, was not abrogated or affected by Acts 33d Leg. c. 136, amending Rev. Civ. St. 1911, art. 1612, providing that an assignment of error which directs the. attention of the court to the error complained of shall be sufficient.
    [Ed. Note. — For other case.s, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Insueance (§ 750) — Mutual Benefit Insurance — Construction—Forfeiture.
    A provision in the by-laws of a lodge that, on a member’s failure to pay his dues, the lodge “shall suspend him” rendered him subject to suspension, but did not, on his failure to pay, ipso facto suspend him, without any action of the lodge.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1895, 1896, 1903; Dec. Dig. § 750.]
    6. Insurance (§ 825) — Action on Certificate — Question foe Juey — Aeeeaes.
    Where the evidence in an action on a benefit certificate was conflicting as to whether deceased was in arrears or had been legally suspended at the time of his death, the issue was properly left to the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § 825.]
    7.Appeal and EhROR (§ 216) — Objection
    Below — Instructions — Request — Necessity.
    Where a party thinks it necessary that the jury be instructed more particularly, he should request a special charge to that effect, and cannot complain on appeal, if he does not.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 627.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by Emma Dillard against the Grand Lodge of Free and Accepted Masons of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Frank E. Anderson and J. E. Melton, both of Houston, for appellant. Woods & Harris, of Houston, for appellee.

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

   REESE, J.

Emma Dillard, surviving wife of J. R. Dillard, deceased, instituted this suit in the county court against a body designated in the pleadings as “Grand Lodge of Free and Accepted Masons of Texas,” to recover $249.23 alleged to be due her on a certain benefit certificate issued to the said J. R. Dillard as a member of a local lodge in said order, in which certificate plaintiff was named as beneficiary. Petition alleged the death of Dillard in good standing as a member of said local lodge and the necessary facts to entitle plaintiff to the money. Defendant relied as a defense upon the facts, as alleged in its answer, that Dillard had been suspended from the benefits of membership by the lodge in accordance with its constitution and by-laws for failure to pay the assessments made against him, and that he was in this condition at the date of death, and hence plaintiff was not entitled to the benefit referred to in the certificate. The case was tried with a jury, and resulted in á verdict and judgment for plaintiff for the amount sued for. From this judgment, its motion for a new trial being overruled, defendant appeals.

The first assignment of error complains of the admission of certain testimony over the objection of appellant. The assignment refers to the testimony as that of appellee “as to conversations with and statements made by her deceased husband during his last illness referring to the payment of his relief dues.” The only proposition stated is that the testimony was inadmissible under the statute (article 3690, Rev. Civ. St. 1911), which forbids an heir or legal representative to testify as to any transaction with or statements by the testator unless called upon to testify by the opposite party. The only statement under the proposition is, given literally: “St. F. P. 1 & 2. Also see Bill of Exceptions No. one, page 18.” The statement is not in compliance with rule 31, and the assignment will not be considered.

If the assignment were so presented as to be entitled to consideration, there is no merit in it. The objection to the testimony must be confined to that stated in the only proposition under the assignment. Appellee claimed nothing as heir of the deceased, Dillard. Upon his death in good standing, she became at once, in her own right, and by contract with the appellant, entitled to the money called for in the benefit certificate, which was in legal effect an insurance policy on his life for her benefit. The case of Royal Fraternal Union v. Stahl, 126 S. W.-920, has no application. In that case Mrs. Stahl sued as sole heir of the deceased Stahl to recover $310 which, it was alleged, the Fraternal Union owed Stahl as sick benefits due him prior to his death, which it had not paid. This money was owing to the deceased himself, and belonged to his estate like any other debt due him, and it was claimed by Mrs. Stahl in her right as sole heir. It is true that in connection with this $310 due Stahl for sick benefits unpaid, Mrs. Stahl also sued for $50 due to her as beneficiary under a benefit certificate similar to the one under which appellee claims, but this seems to have been lost sight of by the court and is not referred to in deciding the question of the admissibility of Mrs. Stahl’s testimony. The opinion rests upon the admissibility of her testimony under the statute in an action to recover the sick benefits as sole heir of Stahl.

The second, third, and fourth assignments of error complain of the exclusion of certain documentary evidence offered by appellant. The only statement under the assignments gives us not the slightest information of the substance of the excluded evidence. What the documents would have shown, or tended to show, is left to conjecture. We cannot tell from this statement, or anything in the brief, just what was contained in the several documents excluded. It is true we are referred to the bills of exceptions, but no reference is made to their contents, even in substance. This is not a compliance with rule 31. There can be no excuse for such total disregard of the plain provisions of this rule, especially in view of the decisions of the Supreme Court and Courts of Civil Appeals, too numerous and uniform to require citation, refusing to consider assignments of error presented as is done here.

This rule is not abrogated nor affected by the act of the 33d Legislature amending article 1612, c. 6, R. S. 1911, as to the sufficiency of assignments of error. Chapter 136, p. 276, Acts 33d Leg.; Conn v. Rosamond, 161 S. W. 73; Childress v. Robinson, 162 S. W. 1172, decided at the present term.

There was no error in that portion of the charge referred to in the fifth assignment of error. The substance and effect of the provision in the by-laws referred to that the lodge, upon failure of a member to pay his dues, “shall suspend him” was to render him subject to suspension and not that such failure to pay should ipso facto suspend him, without any action of the lodge. The evidence shows this very clearly.

The 'evidence was conflicting as to whether the deceased Dillard was in arrears or had been legally suspended at the time of his death, and the court did not err in leaving the issue to the jury.

If appellant thought it necessary that the jury be instructed more particularly as to what was necessary to constitute legal suspension of Dillard, a special charge should have been requested. This disposes substantially of all the assignments of error. There being no error presented requiring reversal, the judgment is affirmed.

Affirmed.