author: HALL, J.

text:
    RELIABLE STEAM LAUNDRY v. SCHUSTER.
    (Court of Civil Appeals of Texas. Amarillo.
    July 5, 1913.)
    1. Teiai, (§ 242) — Instructions—Necessity os' Request.
    In an instruction that an act becomes the proximate cause of an injury whenever such “act” is the natural and probable consequence of the act in question, the inadvertent use of “act” instead of “injury” could not have misled the jury, and could not be complained of by a party who did not ask a special charge correcting the language used.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.]
    2. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    Under an assignment of error complaining of a charge that a vice principal was one having authority to hire, direct, and discharge employés, or to whom the employer delegated a duty owing to the employés, and that, where one employé was placed under the control of another by an employer, the orders of the employé so placed in control respecting the work coming within the scope of such authority were the employer’s or: ders, and his acts, directions, instruction, or conduct were the acts, instructions, and conduct of a vice principal, a proposition that it was reversible error to give an erroneous definition of who was a vice principal, when the Charge imposed a greater duty upon the master than was warranted by law, and in going further than to say that a vice principal must have authority to employ or discharge, did not make the error complained of specific and plain.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Master and Servant (§ 294) — Actions— Instructions — “Vice Principal.”
    In an employe’s action for injuries, it was proper to charge that a “vice principal” was one who had authority to hire, direct, and discharge employés, or to whom the employer delegated a duty owing to the employés, that, where one employé was placed under the control of another by an employer, the orders of the employé so placed in control respecting the work coming within the scope of such authority were the employer’s orders, and that his acts, directions, instruction, or conduct were the acts, instructions, and conduct of a vice principal.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1157, 1161, 1162-1167; Dec. Dig. § 294.

    For other definitions, see Words and Phrases, vol. S, pp. 7313-7316.]
    4.Master and Servant (§ 291) — Actions— Instructions — Burden oe Proof.
    In an employé’s action for injuries, where it is not clear that contributory negligence has been shown, as a matter of law, the court should charge that the burden is on the defendant to-prove contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]
    5.Master and Servant (§ 153) — Liability for Injuries — Doty to Instruct.
    It is the .primary obligation of an employer to instruct a minor employé as to the dangers of the employment; but, if the minor at the time of his employment knows the nature and extent of the danger, and his judgment is sufficiently mature to appreciate the risk, or if he subsequently becomes aware of the fact and extent of the danger, and has the discretion to properly weigh his liability to injury therefrom, the employer is relieved from liability for his failure to give such instruction.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314r-317; Dec. Dig. § 153.]
    6.Master and Servant (§ 286) — Actions-for Injuries — Questions for Jury.
    Whether a minor employe’s discretion was sufficiently developed at the time of an injury considering his knowledge and experience to appreciate the extent of the risk so as to relieve-the employer of liability for his failure to instruct as to dangers of the employment is a question of fact for the determination of the jury.
    [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.]
    7.Master and Servant (§ 139) — Liability for Injuries — “Proximate Cause.”
    The act of a vice principal in doing work in a negligent manner, although noticed and observed by a minor employé, who was thereby influenced to do such work in the same- negligent manner when subsequently directed to do such work, was not the proximate cause of the employe’s injuries sustained by doing the work in such negligent manner, since a party cannot be held responsible for the consequences of an act which ought not reasonably to have been foreseen, and the “proximate cause” of an event is that which, in a natural and continuous sequence unbroken by any new cause, produces the event, and without which the event would not have occurred.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 275, 282, 289, 296; Dec. Dig. § 139.

    For other definitions, see Words and Phrases,, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by Annie Schuster against the Reliable Steam Laundry. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Bryan, Bartholomew & Stone and W. R. Sawyers, all of Ft. Worth, for appellant. Slay, Simon & Wynn, of Ft. Worth, for ap-pellee.

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

   HALL, J.

Appellee filed this suit in the district court of Tarrant county to recover damages for personal injuries. The allegations in her petition, succinctly stated, are as follows:

On November 13, 1911, plaintiff was employed and had been employed by defendants for four months in working around the mangle in defendant’s steam laundry, receiving and folding the linen and laundered articles after they had been laundered by said mangle. That on said date she was directed by said defendant to assist in stringing said mangle, said operation being performed by winding the strings around the rollers of said mangle, said rollers revolving around a solid piece of iron, and in stringing the rollers it was customary to tie a piece of cloth on one of the strings and start it under the first roller, intending it to roll under all of them to the other end of the mangle, carrying the string with it, but that the cloth in this instance stopped after passing the first roller, and defendant directed the plaintiff to assist, and that plaintiff pushed said cloth under the second roller, then under the third' roller, at which time her hand was caught between the roller and a solid iron base, and her hand and arm injured so that amputation was necessary at the elbow- That defendant was guilty of negligence in failing to furnish plaintiff a reasonably safe place to work, and in failing to furnish her reasonably safe machinery with which to work, and in failing to furnish her any implement or tools to be used in putting the strings under said rollers and defendant, knowing her to be a minor, was negligent in directing her to assist in the dangerous and hazardous task of stringing the mangle, without warning her of the nature and danger of such task and how to avoid it. Further, that she had seen her forelady attempting to shove the rag through as she attempted to pass it through, and that the example of the fore-lady in so doing was negligence on the part of the defendant. Further, that it was the custom and habit and practice of the defendant’s forelady to remove the articles from between the rollers while the machine was in operation, and it was the custom of other employés, under the direction of the fore-lady, to likewise remove articles, and it was a further custom of defendant’s forelady to pin the clothes around the rollers when they became detached, which was negligence. That she did not know the danger and extent thereof, and that she followed the example of the forelady. ■ The defendant answered by general and special exceptions, general denial, plea of contributory negligence, assumed risk, that her injury was caused by the negligence of a fellow servant, that she was engaged in work not in the scope of her employment of her own free will, and was a volunteer. There was a trial before a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $7,500.

Appellant’s first assignment complains of this paragraph of the charge: “An act becomes the proximate cause of an injury whenever such act is the natural and probable consequence of the act in question.” The use of the word “act” the second time in the sentence instead of the word “injury” is clearly an inadvertence, and could not have misled the jury. Bell v. Beasley, 18 Tex. Civ. App. 639, 45 S. W. 401; Waxahachie Cotton Oil Co. v. Peters, 94 S. W. 431. Before appellant can be heard to complain of the inaccuracy, it was its duty to have asked a special charge, correcting the language used.

The second assignment of error complains of the following portion of the court’s main charge: “A vice principal is one who has authority to hire, direct, and discharge employés, or to whom the employer delegated a duty owing to the employés. Where one employe is placed under the control of another by an employer, the orders of said employe so placed in control respecting the work coming within the scope of such authority are the employer’s orders, and the acts, directions, instruction, or conduct of said employs so placed in authority with reference to said work, over which there has been given supervision and control by the employer, are the acts, instructions, and conduct of the vice principal.” The proposition following is: “It is reversible error to give an erroneous definition of who is a vice principal, when the charge of the court imposes a greater duty upon the master than is warranted by law, and in going further than to say that a vice principal must have authority to employ or discharge.” Appellant has not succeeded in making the error complained of under this assignment specific and plain. The definition of a vice principal seems to coincide substantially with that given by the Supreme Court in the case of Lantry-Sharpe Contracting Co. v. McCracken, 150 S. W. 1156, in which it is held that, in order to constitute an employe a vice principal of the master, he must be clothed with the power to hire and discharge, in addition to his authority to direct and command his employés in the work being performed, and the court uses this language: “It may be stated with equal accuracy that no ruling of this court, extending over the period of more than half a century, can be found sustaining a judgment for damages for personal injuries caused by the negligence of an agent of a person or corporation, where such agent was not authorized to employ and discharge his coemployés, except in instances where such negligence related to those duties of the master which are regarded as nonassignable and nondelegable, such as furnishing the servant a reasonably safe place to work, or reasonably safe instruments with which to perform the service, or the selection of careful and competent coemployés.” We think under all the evidence the court did not go too far in the definition given in the paragraph of the charge complained of under this assignment.

By its third assignment appellant complains that the court erred in placing the burden of proof on the defendant to establish contributory negligence on the part of plaintiff. The rule announced in G., H. & S. A. Ry. Co. v. Gordon, 54 S. W. 635, and in G., C. & S. F. Ry. Co. v. Cooper, 33 Tex. Civ. App. 319, 77 S. W. 263, is that unless it is clear that contributory negligence was not shown as a matter of law, the court should charge the jury that the burden of proof upon this issue is on the defendants. This rule was first announced by the Supreme Court in Railway Company v. Shieder, 88 Tex. 156, 30 S. W. 902, 28 L. R. A. 538. We think the court correctly placed the burden of proof in this case. What is here said also disposes of the fourth, fifth, sixth, and seventh assignments.

The appellee testified that no one had ever warned her of the dangers incident to the duties which she had been directed to perform, and it was not disputed that she was a minor. It is held in the case of T. & P. Ry. Co. v. Brick, 83 Tex. 603, 20 S. W. 513, that, .when the plaintiff is a minor, it is the duty of the defendant to have instructed him as to the dangers of the employment, but uses this language: “That was the primary obligation. But if the plaintiff at the time of his employment knew the nature and extent of the danger, and his judgment was sufficiently mature to appreciate the risk, or if subsequently he became aware of the fact and extent of the danger, and had the discretion to properly weigh his liability to injury from it, the receiver became absolved from the responsibility arising from the failure to give the instruction. That he knew that there was some danger is not disputed; but whether, under all the facts, his discretion was sufficiently developed at the time of the injury, considering his knowledge and experience, to appreciate the extent of the risk was not a question of law, but a question of fact which was properly left to the determination of the jury. * * * As to those under 21 years of age we have no rule of law, and as to them the question of sufficient discretion or not must, with the circumstances of the case, be left to the determination of the jury.”' In view of this language, we doubt if it would ever be proper for the trial judge to peremptorily instruct the jury to find for the defendant in a case of this character, where the plaintiff was shown to be a minor.

The eighth and ninth assignments of error are predicated upon the action of the court in giving the following special charge, requested by appellee: “You are instructed that if you find from the evidence that Mrs. Burgess was a vice principal, as that term is defined under other portions of this charge, then you are further instructed that, if you believe from the evidence that Mrs. Burgess directed the plaintiff to assist at stringing the mangle, and if you believe that prior thereto the said Mrs. Burgess had in the presence of plaintiff, while assisting at stringing said mangle, put her fingers between said rollers, and in close proximity to the iron, in endeavoring to pass the rag to which the stringer was attached, from one roller to another, and you further find and believe that such act was noticed and observed by plaintiff, and that such act and conduct on the part of Mrs. Burgess influenced the plaintiff at the time she was directed in stringing the mangle, if you believe she was so directed to do said work in the way and manner in which she had seen Mrs. Burgess do it, if you believe she had so seen her, then you are instructed that if you believe the said Mrs. Burgess, in doing as you believe she did with reference to this matter, failed to exercise that degree of care that a person of ordinary prudence would exercise under the same or similar circumstances, and that such act on her part was the direct and proximate cause of the injury sustained by plaintiff, that plaintiff would be entitled to recover.” Gaines, Chief Justice, in T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, in discussing the question of proximate cause, uses this language: “But it seems to us that as applied to the law of negligence, at least, a better ground for the rule is that a party should not be held responsible for the consequences of an act which ought not reasonably to have been foreseen. In other words, it ought not to be deemed negligent to do .or fail to do an act when it was not anticipated, and should not have been anticipated, that it would result in injury to any one. To require this is to demand of human nature a degree of care incompatible with the prosecutions of the ordinary avocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed. * * * It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” In the first place, there is not a syllable of testimony in this ease showing that Mrs. Burgess was negligent in stringing the rollers, but we must conclude, from the fact that the record fails to show she was ever injured in doing so, that she had not been guilty of negligence; but we think this charge was improper and prejudicial, even if the record disclosed by affirmative proof that Mrs. Burgess, in superintending the machine, had been guilty of negligence, for the reason that appellee’s injuries could not be held to be tbe natural and probable result of Mrs. Burgess’ act.

“Tbe term ‘natural,’ as applied to tbe consequences of an act, properly implies that they are such as might reasonably have been foreseen, or such as occur according to tbe ordinary course of events. A natural cause is sucb a cause as, having operated through a natural sequence of events, has produced the particular results. Natural consequences are such as follow according to the usual and ordinary course of things. Natural consequences do not necessarily include all such as, upon a calculation of issues, would be found likely to occur, or such as extreme prudence might anticipate, but only such as ensue from the original act, without any such extraordinary coincidence or conjunction of circumstances as that the usual course of nature should seem to have been departed from.” Eighth American & Eng. Enc. of Law (2d Ed.) pp. 568, 569. It is held that the proximate cause of an event must be understood to be that which is a natural and continuous sequence, unbroken by any new cause producing the event, and without which that event would not have occurred (Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221), and that the proximate cause is that cause producing the injury that was the natural and probable consequence of the negligence complained of and that ought to have been foreseen in the light of the attending circumstances (Texas Central Ry. Co. v. Bender, 32 Tex. Civ.. App. 568, 75 S. W. 561).

Measured by these rules, in our opinion, even if it had been shown that appellee endeavored to string the rollers in exactly the same manner as she bad seen tbe forelady do that part of the work, yet the act of Mrs. Burgess, if admitted to be negligent, is neither the natural nor proximate cause of ap-pellee’s injuries.

Because of the error of the court in giving this special charge, the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    BAKER v. McDONALD.
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1913.
    Rehearing Denied June 28, 1913.)
    1. Wills (§ 371) — Probate—Appeal—Assignments oír Error.
    An assignment of error that tbe court erred in overruling the general and special exceptions of proponent to the contest, in holding that the contest set up a sufficient ground for refusing probate of the will, as complained of-in the first ground of proponent’s motion for new trial, is too general to entitle it to consideration.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 837; Dec. Dig. § 371.]
    2. Wills (§ 52) — Probate—Contest—Proof of Mental Capacity.
    A general demurrer filed by contestant in proceedings for probate of a will has the effect of requiring proponent to prove the mental capacity of testator, even if, in the absence of a contest, such proof is not required by Rev. Civ. St. 1911, art. 3271, providing that, before admitting a will to probate, it must be proved to the satisfaction of the court that testator, at the time of executing it, was of sound mind.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.]
    3. Appeal and Error (§ 1052) — Harmless Error — Admission op Evidence.
    Error in admitting an opinion that testator was not of sound mind was harmless; the jury having specially found he was of sound mind, and the judgment sustaining the contest being on the finding that he was unduly influenced.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171 — 4177; Dec. Dig. § 1052.]
    4. Wills (§ 324) — Probate Contest — Undue Influence — Evidence.
    Evidence on a contest of a will held sufficient to warrant submission of the issue of undue influence.
    [Ed. Note. — For other cases, see Wills, Cent Dig. §§ 225, 767-770; Dec. Dig. § 324.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Proceedings by E. C. Baker for probate of tbe will of D. McDonald, deceased, in which Mrs. Mattie McDonald appeared as contestant. From a judgment denying probate, proponent appeals.
    Affirmed.
    H. C. Ferguson and Bean & Klett, all of Lubbock, for appellant. W. F. Schenek and •W. H. Bledsoe, both of Lubbock, for appellee.

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

   HALL, J.

On a former appeal in this case tbe judgment refusing to probate the will was reversed. 150 S. W. 593. This suit originated in the probate court of Lubbock county, from which it was appealed to the district court of said county, and upon trial before a jury judgment was again rendered refusing to probate the will. Appellee, being tbe widow of the testator, contested the application to probate tbe will upon two grounds: (1) That testator was not of sound mind at the time the will was executed; and (2) that be was unduly influenced to make the will.

Exceptions were filed to the answer which were overruled, and this is made tbe basis of tbe first assignment of error. Tbe assignment is; “The trial court erred in overruling tbe general and special exceptions of the proponent to the amended contest of the contestant, Mattie McDonald, in bolding that said amended contest set up a sufficient ground for refusing tbe probate of the will of tbe said McDonald, as complained of in the first ground of proponent’s motion for a new trial. This assignment is manifestly too general to entitle it to consideration. Jackson v. Cassidy, 68 Tex. 282, 4 S. W. 541; Cotton v. Coit, 30 S. W. 281; Delaney v. Campbell, 97 S. W. 519; Henry v. McNew, 29 Tex. Civ. App. 288, 69 S. W. 213; Munroe v. Munroe, 54 Tex. Civ. App. 320, 116 S. W. 878. Tbe record discloses that three special exceptions were urged, and we will not consider the assignments, except in so far as the sufficiency of the pleading as against the general demurrer may have been passed upon by the trial court. Revised Statutes 1911, art. 3271, provides that, before admitting the will to probate, it must he proved, to the satisfaction of the court that the testator, at the time of executing the will, was of sound mind. In the case of Green v. Hewett, 54 Tex. Civ. App. 534, 118 S., W. 170, Fisher, Chief Justice, said: “Owing to the fact that an application to probate a will is a proceeding in rem, and as the provisions of the statute mentioned require certain facts to he established, they cannot be waived in the court below.” In Warren v. Ellis, 137 S. W. 1182, it is said: “In our opinion, a jury having been impaneled to try the issues of fact, it was a question, not of law, but of fact, to be decided by the jury what weight and effect should be given to these alleged circumstances of suspicion unexplained, in determining the issues as to whether the testator was of sound min'd, whether the will was his free and voluntary act or otherwise.” There was a general demurrer filed by the contestant, which alone had the effect of requiring appellant to prove the mental capacity of the testator, and we think the statute required proof of this fact, even though there had been no contest filed. In so far as this assignment deserves consideration, it is overruled.

The second assignment of error complains of the action of the court in permitting the witness Dr. Murphy to testify by deposition that it was the witness’ opinion that testator “did not understand fully all that he was doing, and the effect that said instrument had or would have upon the disposition of all his property that he owned, and the effect that it would have upon the rights of his wife,” Mattie McDonald, “at the time testator executed the will.” Brown v. Mitchell, 88 Tex. 366, 31 S. W. 621, 36 L. R. A. 64, Williams v. Livingston, 52 Tex. Civ. App. 275, 113 S. W. 786, and Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606, are cited as authority by appellant in support of this assignment, and would require us to again reverse the judgment, but for the fact that the case was submitted to the jury upon two special issues, as follows: (1) “Was D. McDonald of sound mind at the time he signed the will in question?” This was answered by the jury: “No.” (2) “Was D. McDonald acting under undue influence at the time he signed the will in question?” This was answered by the jury affirmatively. The judgment, being supported by the finding of the jury upon the second special issue, renders the error in the ruling of the court, admitting this testimony, harmless.

The third assignment of error is based upon the action of the court in refusing to direct the jury to find a verdict in favor of proponent, establishing the will of D. McDonald. Dr. Stoops, witness for appellant, testified that he would not undertake to say that a man was mentally capable of transacting business who was suffering for a year or more with a cancer of the stomach, who came to his sanitarium in a depleted condition ' as McDonald was,- suffering intensely, who was not capable of retaining any nourishment, exhibited subnormal temperature on account of the poisoned condition of his system, and the witness declined to testify tfiat testator was mentally capable of understanding and transacting business affairs. He further testified that he told appellant’s nephew and Malcolm McDonald, the brother of testator, that D. McDonald would never get well, and they understood that he might die at any time. The testimony of Dr. Murphy shows that he, together with Dr. Stoops, asked testator if he had any papers he wished them to sign. He nodded assent; that one of them picked up a document with a blue cover, shown to be the will, and, after propping him up in bed, procured a pen and. ink, showed him the place to sign, and after-wards put the will out of sight in the dresser drawer. It is further shown that, after the arrival of Malcolm McDonald at the home of testator, he carried him to the hospital, and told appellee, who remained at home to look after the household affairs and farm, that he would let her know daily how her husband was getting along; that he utterly failed, to do this; that he failed to communicate to her the information received from the physicians that her husband could never recover and was then practically a dead man, but immediately wired appellant, who was in California, to come to Lubbock at once; that neither of them ever told appellee anything of the existence of the will or its contents prior to the death of testator, although they both knew that appellee had been deprived of her legal rights by its terms, and that the brothers, sisters, and other relatives of testator had been well and amply provided for therein, and that appellant, Baker, had been made full custodian of the property, entitled to collect the revenues, and handle the same. It further appears that the brother Malcolm McDonald is the first person who ever approached an attorney -with reference to testator making a will; that he was extremely active in carrying an attorney to the sanitarium, and in having the will prepared. It further appears that, about the time the will was being prepared, the quarter section of land which testator and his wife owned was conveyed by deed to appellant Baker, and that these facts were concealed from appel-lee. In our opinion, this testimony, with other facts which might be culled from the record, are not only sufficient to warrant the court in submitting the issue to the jury, but required it to be done."

Finding no error requiring a reversal of the judgment, it is affirmed.


author: HUFF, C. J.

text:
    GUTHERIDGE et al. v. GUTHERIDGE.
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1913.
    On Motion to Dismiss Appeal, May 24, 1913.)
    1. Appeal and Error (§ 612) — Transcript of Record — Sufficiency of Certificate.
    Under Rev. Civ. St. 1911, art. 2109, requiring a transcript to contain a full and correct copy of all proceedings in the case, and article 2114, requiring the clerk to certify the correctness of the transcript, and to state whether it was a transcript of all the proceedings, or a transcript under articles 2110, 2111, 2112, providing for partial transcripts under certain circumstances; a certificate of the clerk that the transcript is a correct copy of the proceedings, “as per order for papers filed,” which order was signed only hy the attorney for the appellant, is defective.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2694-2701; Dec. Dig. § 612.]
    2. Appeal and Error (§ 659) — Omission-Omissions in Transcript — Certiorari.
    Where the transcript of record does not contain the findings of fact and conclusions of law by the trial court, the appellee is entitled to a writ of certiorari to the clerk of the lower court to secure a supplemental transcript.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2834-2843; Dec. Dig. § 659.]
    On Motion to Dismiss Appeal.
    3. Appeal and Error (§ 760) — Dismissal— Grounds — Defective Briefs.
    A motion to dismiss the appeal and affirm the judgment is well taken where the brief for appellant does not refer to assignments of error in the motion for a new trial, as required by Court of Civil Appeals rules 24, 25, and 31 (142 S. W. xii and xiii), but where the case cannot he heard for some time on its merits, the appellant will be permitted to file a new brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dee. Dig. § 760.]
    4. Appeal and Eéror (§ 527) — Contents of Record — Findings of Fact and Conclusions of Law.
    Findings of fact and conclusions of law filed by the trial court at the request of a party are properly part of the record, and will not be stricken from the transcript, even though the judge had agreed with the other party not to file such conclusion, since that agreement was contrary to law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-2383; Dec. Dig. § 527.]
    Appeal from District Court, Collingsworth County; D. E. Decker, Judge.
    Action between R. W. Gutheridge and others and Alice Gutheridge. From a judgment for Alice Gutheridge, R. W. Gutheridge and others appeal. On motion of Alice Guth-eridge to dismiss the appeal on account of a defect in the certificate of the clerk of the district court and for a writ of certiorari to secure a supplemental transcript. Certiora-ri granted, and motion sustained, with leave to appellants to correct the certificate. On subsequent motion by the appellee to dismiss the appeal and affirm the case for defects in the brief and motion by the appellants to strike portions of the transcript.
    Motion of appellee sustained with leave to the appellants to file a new brief and motion of appellants overruled.
    R. H. Templeton, of Wellington, and Crudg-ington & Works, of Amarillo, for appellants. J. L. Lackey, of Wellington, and Presler & Thorne, of Memphis,' for appellee.

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

   HUFF, C. J.

The appellee moves to dismiss the appeal in this ease because the certificate of the clerk of the district court does not comply with the statutes and rules. The certificate is in the following form: “I, O. L. Couch, clerk of the district court in and for Collingsworth county, Texas, hereby certify that the foregoing transcript is a true and correct copy of the proceedings had in this cause, as per order for papers filed and that the above and foregoing contains a true and correct copy of the instruments set out, as per the originals now on file with the papers in this cause.”

Article 2X09, Revised Statutes' 1911, provides that the transcript shall “contain a full and correct copy of all the proceedings had in the cause.”

Article 2114 requires the clerk to certify to the correctness of the transcript. His “certificate shall state whether the same be a transcript of all the proceedings in the cause or the transcript provided for in articles 2110, 2111, and 2112.” The transcript does not show it was prepared under any of the exceptions named in the above articles. Rule 94 for district courts (142 S. W. xxiv) directs the clerk to make a certificate that the transcript contains all the proceedings. It will be seen from the certificate it does not comply with the statute or the rules. He certified it is a correct copy of the proceedings had in the cause “as per order for papers filed.” This order appears to be a request for the transcript by the attorney for the defendants (appellants herein). The other party, or her attorneys, do not sign it or agree thereto. Under the statute and rules and the decisions of the courts the certificate is defective. Freeman v. Collier Racket Co., 101 Tex. 60, 104 S. W. 1042; Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704; Railway Company v. West, 152 S. W. 181.

Being an irregularity, a motion having been timely made, the case could be dismissed, but we have concluded to permit the transcript to be withdrawn and the clerk directed to attach thereto a correct certificate in accordance with the statute and rules. We believe, however, that the appellant. should be taxed with the costs of the transcript and all costs necessary for correcting the certificate.

Appellee also sets up, by proper petition, a diminution of the record, in that the findings of fact and conclusions of law by the trial court are not in the transcript, and prays that she be granted a writ of certiorari, issued to the clerk of the district court of Collingsworth county, Tex., to prepare a supplemental transcript, containing a copy of the findings of fact and conclusions of law by the trial court, to be sent up to this court. We think the prayer should he granted and the writ prayed for issued, and we therefore order the issuance of the writ. Twenty days from this date is given in which to correct the certificate and complete the record as prayed for, and, if the certificate and record are not filed within that time, the case will be dismissed. •

On Motion to Dismiss Appeal.

The appellee presented her motion to dismiss the appeal and affirm the case, for the reason that appellants in briefing the case have not complied with rules 24, 25, and 31 (142 S. W. xii, xiii). We find that appellants have failed to refer in their assignments to the motion for new trial, upon which the several assignments are based, either in the assignment or statements, and the motion as to that point is well taken. We do not feel warranted in affirming the case upon the failure to consider such reference without an examination of the entire record for fundamental error. We think it would be improper for us at this time to say whether or not there was fundamental error, and the motion to dismiss the appeal will therefore be overruled, and the case will not be affirmed at this time, but we sustain the motion with reference to the briefing of the case and in the failure to refer to the motion for new trial. Rut appellants in this case also filed a motion, requesting us, in ease we find the brief defective, to permit them to amend or file new brief. It appearing to the court that this case has been heeled and not likely to be reached until the fall term of the court, and there are several months before the case will be submitted, we think no injustice will be donb appellee by permitting appellant to file new brief, and we therefore grant the motion to file new brief, in accordance with rules governing this court. We will require appellants to file their brief in this court within 30 days from the 24th of this month (May), and that they serve appellee’s attorneys with a copy thereof.

Appellants have filed motion with sworn affidavits, etc., with reference to the supplemental transcript containing the findings of fact and conclusions of law filed by the trial court, asking this court to strike out such findings of fact and conclusions of law. That motion will be overruled; it appearing, from the affidavits in this case and the statement by the trial judge, that said conclusions were filed by the trial court at the request of appellee, and was and is properly a part of the record of this case. The appellants claim that they had an agreement with the court not to file such conclusions. Such an agreement could not lawfully be\made, as the appellee had the right, to request and have filed such conclusions.

The case will stand upon the record for submission after the filing of proper brief, or upon consideration of the briefs on file.


text:
    J. M. RADFORD GROCERY CO. et al. v. OWENS et al.
    (Court of Civil Appeals of Texas. Amarillo.
    July 5, 1913.)
    1. Appeal and Error (§ 612) — Transcript of Record — Sufficiency of Certificate.
    Under Rev. Civ. St. 1911, art. 2109, providing that the transcript shall contain a “full and correct” copy of all the proceedings, and article 2114, requiring the certificate to state that the transcript contains all the proceedings, and district and county court rule 94 (142 S. W. xxiv), requiring the certificate to state that the transcript is a true copy of all the proceedings, a certificate that the transcript is a “true and correct” copy of the record is not defective for failing to state that it is a “full” copy.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2694-2701; Dec. Dig. § 612.]
    2. Appeal and Error (§ 612) — Contents of Transcript — Injunction Bond.
    Under Rev. Civ. St. 1911, art. 2109, requiring a transcript to contain a full and correct copy of all of the proceedings, a certificate which states that the transcript contains all the proceedings except the injunction bond is defective, and the court cannot say, on motion to strike the transcript, that the bond is an unnecessary or immaterial part of the' record.
    [Ed. Note. — For other .cases, see Appeal and Error, Cent. Dig. §§ 2694r-2701; Dec. Dig. § 612.]
    3. Appeal and Error (§ 642) — Defective Certificate — Correction.
    Under Court of Civil Appeals rules 1 and 8 (142 S. W. x, xi), providing for the amendment of a transcript, the court may, in such a case, permit the appellant to withdraw the transcript and correct the certificate.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 642.]
    4. Appeal and Error ’(§ 543) — Contents of Record — Supplying Lost Papers.
    Where it appears that the injunction bond has been lost from the files of the court below, it should be substituted in the record by proper proceedings in that court,' so as to be brought up to the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2409-2411; Dec. Dig. § 543.]
    5. Appeal and Error (§ 361) — Petition-Designation of Court.
    Under Rev. Civ. St. 1911, art. 2088, requiring a petition for a writ of error to state only that the petitioner desires to remove the case into the Court of Civil Appeals, a statement as to the particular district to which the case shall bé taken is surplusage, and, if incorrect, does not affect the validity of the writ.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1941-1959; Dec. Dig. § 361.]
    6. Appeal and Error (§ 361) — Petition for Citation — Clerical Error.
    Where a prayer for a citation incorrectly states the first initial of the defendant in error, but the initials are correct elsewhere in the petition, and the citation was issued in the correct name, the error is a clerical one which does not require a dismissal of the writ.
    [Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. §§ 1941-1959; Dec. Dig. § 361.]
    Error to Foard County Court; T. W. Sta-ton, Judge.
    Action between the J. M. Radford Grocery Company and others and R. T. Owens and others. From a judgment in favor of R. T. Owens and others, the J. M. Radford Grocery-Company and others bring error. On motion to strike the transcript and dismiss the writ of error.
    Motion to strike the transcript sustained, and motion to dismiss the writ overruled.
    A. H. Kirby, of Ft. Worth, and R. W. Hay-nie, of Abilene, for plaintiffs in error. R. S. Houssels and J. Shirley Cook, both of Vernon, for defendants in error.

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

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

   HUFF, C. J.

The appellees in this case present three motions. The first motion is made to 'strike out the transcript. This is based on the ground that the certificate to the transcript of the county clerk is defective. The clerk certifies “that the foregoing 49 pages contain a true and correct transcript of the record of all the proceedings had in the cause except the injunction bond.” The transcript was filed June 4, 1913, and the motions herein filed June 18, 1913. It is urged the certificate of the county clerk is defective in that the word “true” is used instead of “full.” While article 2109, Revised Statutes, uses the word “full,” it will be noted that article 2114 provides “the certificate shall state whether the same be a transcript of all the proceedings in the cause.” Rule 94 for the district and county courts (142 S. W. xxiv) requires the certificate to certify that the transcript contains “a true copy of all proceedings.” The certificate in this ease complies with the statute and rules quoted in the particular above mentioned. If this were not true, we nevertheless think it is a substantial compliance with article 2109.

The real objection to the certificate is in the statement, “except the injunction bond.” In answer to the motion, appellant urges that leaving out the injunction bond is immaterial. Upon this motion we cannot ascertain this to be true. The statute requires .all proceedings to be brought up except certain designated portions of the record. The injunction bond is .not one of them. Therefore we are not permitted to say on motion that it is unnecessary or immaterial in the transcript. The certificate being insufficient in the last particular mentioned,. the motion must be sustained. Railway Company v. Armstrong, 83 S. W. 29; Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704.

As we understand, however, we may permit the appellant to withdraw the transcript and correct the certificate thereto. Rules 1 and 8 for Court of Civil Appeals (142 S. W. x, xi); Freeman v. Collier, 101 Tex. 60, 104 S. W. 1042; Ry. Co. v. West, 152 S. W. 181; Gutheridge v. Gutheridge, 159 S. W. 452, not yet officially reported, decided by this court, April 5, 1913.

Appellant requested the county clerk to send up a certified copy of the injunction bond. The clerk, by his certificate filed in this court, declares that the injunction bond has been lost, and that it is not on file with the papers in the court below. This injunction bond should be substituted by proper proceedings instituted in that court for that purpose, and a motion made to bring up a certified copy to this court, or certified copy of the original. We will grant the appellant until the 1st day of October, 1913, in which to withdraw the transcript and correct the certificate thereto and to substitute and, bring up to this court as part of the record herein a duly certified copy of the injunction bond.

There is also a motion to dismiss the writ of error and a motion to strike out the writ of error bond. The petition for writ of error alleges, on account of the many errors, “petitioners desire to remove the said judgment and order to the Court of Civil Appeals in and for the Second judicial district.” The-writ of error bond is conditioned that “plaintiffs in error will prosecute their writ of error with effect, and shall pay all costs which have accrued in the court below and which may accrue in the Court of Civil Appeals and in the Supreme Court.” Article 20S8, Revised Statutes of 1911, prescribing the requisites of the petition for writ of error, does not require that the number of the Court of Civil Appeals should be given. All that is required to be stated is that: “He desires to remove the same to the Court of Civil Appeals for revision.” This is stated in the petition in question. Foard county, the county from which this appeal is taken, is by law within the Seventh supreme judicial district, and appeals or writs of error are made returnable to this court from that county. We think the statement “for the Second judicial district” may be treated as a mere matter of surplusage, and does not affect the validity of the petition for the writ of error.

It also appears that in the prayer for citation the petitioner prayed that citation issue to “W.” T. Owens, instead of R. T. Owens. But throughout the petition the initials “R. T.” are correctly given, and in quite a number of places. The citation was properly issued on the petition, commanding that R. T. Owens be served and the return thereon shows that R. T. Owens was properly served. R. T. Owens, by attorneys, is now in this court, urging a motion for the dismissal of this appeal. We think he was sufficiently notified of the court before which he was to answer for the alleged errors in the trial of the cause, and the initial as given in the prayer in the petition for writ of error shown to be a clerical error, and no injury can possibly result to the appellees in this case, and he is properly, so far as the petition for writ of error is concerned, before this court, and the motions will therefore be overruled.


author: McMEANS, J.

text:
    COTTON v. THOMPSON.
    (Court of Civil Appeals of Texas. Galveston.
    May 20, 1913.
    Rehearing Denied June 12, 1913.
    Second Motion for Rehearing Denied July 1, 1913.)
    1. Usury (§ 142) — Action yob Penalty — Sufficiency of Petition.
    A petition in an action to recover the statutory penalty for usury, which alleged that plaintiff borrowed $30 of defendant for 30 days, executing as security therefor his note and power of attorney, authorizing defendant in default of payment to draw his wages, and paid defendant $6 per month interest for 10 months, and borrowed other amounts upon similar terms, that the interest charged was usurious, and that the moneys were borrowed of defendant’s agent and the interest was paid to him, was good as against a general demurrer.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 428-433; Dec. Dig. §.142.]
    2. Debt, Action of (§ 11) — Pleading—Demand.
    In ordinary actions of debt a failure to allege a demand for and refusal of payment renders the petition bad on general demurrer.
    [Ed. Note.' — Eor other cases, see Debt, Action of, Cent. Dig. §§ 27, 28; Dec. Dig. § 11.

    3. Principal and Agent (§ 189) — Usury (§ 142*) — Recovery “by Action of Debt”— Pleading — Demand—Agency.
    Under Rev. Civ. St. 1911, art. 4982, providing that usurious interest received may “by action of debt” be recovered with an equal amount as penalty, the collection of such interest does not create the relation of debtor and creditor, and in a suit to recover it the allegations essential in a common-law action of debt need not be made, the term “by action of debt” not requiring that the action be technically the common-law action of debt; and an allegation that the payments were made to defendant’s agent, in the absence of any allegation that defendant had more than one agent, was sufficient to enable defendant to prepare his defense; and under the express terms of the statute the right of recovery is the same whether interest was exacted under a written or a verbal contract.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 713-717; Dee. Dig. § 189; Usury, Cent. Dig. §§ 428-433; Dee. Dig. § 142

    For other definitions, see Words and Phrases, vol. 2, pp. 1886-1887.]
    4. Pleading (§ 433) — Defects — Cure by Judgment.
    Error, if any, in overruling a special exception to a petition, alleging that usurious payments of interest were made to defendant’s • agent without showing that he had more than one agent, was cured by judgment for plaintiff upon evidence conclusively showing that defendant had but one agent.
    [Ed. Nóte. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.]
    5. Pleading- (§ 229) — “Trial Amendment.”
    The office of a “trial amendment” is to supply allegations in a pleading after exception thereto has been sustained.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 591; Dec. Dig. § 229.]
    6. Pleading (§ 279*) — Supplemental Petition-Discretion of Court.
    It was within the discretion of the'court to permit plaintiff to file a supplemental petition after the parties had announced ready for trial and after the exceptions to plaintiff’s petition had been overruled.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.]
    7. Appeal and Error (§ 1170) — Harmless Error — Allowing Supplemental Petition.
    Error, if any, in allowing plaintiff to file a supplemental petition after the parties had announced ready for trial and after the exceptions to his pleadings had been overruled was not such a denial of the rights of defendant as to probably cause an improper judgment, within rule 62a for Courts of Civil Appeals (149 S. W. x), and hence was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    8. Appeal and Error (§ 555) — Striking out Bills of Exception — Consideration of Assignment.
    Where bills of exception have been stricken out so that there are no exceptions in the record to support the assignments, the court is without power to consider such assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2955; Dec. Dig. § 555.]
    9. Usury (§ 142) — Action to Recover Penalty-Pleading and Issues.
    In an action to recover the statutory penalty for usury, where plaintiff alleged that he had borrowed money of defendant, who had charged and collected interest thereon in excess of the legal rate, but did not set out the contract, which, as pleaded by defendant, evidenced a sale by plaintiff to defendant of a part of his wages, and where plaintiff by a supplemental petition alleged that the contract did not truly represent the transaction, but was only a scheme of defendant for collecting usury, it was not necessary that plaintiff allege the execution of the contract as the result of fraud or mistake in order to prove that it was in fact other than the contract pleaded by defendant, but the allegations of his supplemental petition were , sufficient to let in proof of its true character.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 428-433; Dec. Dig. § 142.]
    10. Usury (§ 106) — Subject-Matter — Action for Usurious Interest.
    The right to sue for usurious interest paid may be the subject of compromise and adjustment, where such compromise is made in good faith, and the right to recover the usury is waived by the payer for a sufficient consideration.
    [Ed. Note. — For other cases, see Usury, Gent. Dig. § 263; Dec. Dig. § 106.]
    11. Usury (§ 104) — Defenses—Release as Estoppel.
    Plaintiff applied to defendant for a loan and signed a contract upon its face selling a certain part of his wages and containing a power of attorney to collect the same, but it was not intended that defendant should collect the wages, which were in fact collected by plaintiff and paid to defendant, and after several of such loans, illegal because of usurious interest, plaintiff at defendant’s request signed a so-called release or stated account; there being no valid consideration therefor. Held, that under the facts the release did not estop plaintiff to sue for a recovery of the usurious interest.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 260, 261; Dec. Dig. § 104.=]
    12. Usury (§ 104) — Action to Recover Penalty — Pleading — Fraud in Obtaining Release.
    Where plaintiff who had borrowed money of defendant at usurious rates of interest had signed a so-called release, procured by defendant as an estoppel against a suit to recover, it was not necessary for plaintiff to show that the release was signed by him as the result of fraud or mistake.
    [Ed. Note. — Eor other cases, see Usury, Cent. Dig. §§ 260, 261; Dec. Dig. § 104.]
    13. Usury (§ 142) — Action —Set-Off of Amount Owed Defendant.
    In a suit to recover the statutory penalty for usury the amount owed by plaintiff to defendant was allowable to defendant as an offset against the amount of plaintiff’s recovery.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 428-433; Dec. Dig. § 142.]
    14. Usury (§ 100) — Rights of Parties — Application op Payment.
    Each payment made upon a contract affected with usury is a payment upon the principal applied by law, notwithstanding it was paid and received as payment of interest.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 219-234; Dec. Dig. § 100.]
    Appeal from Galveston County Court; Geo. E. Mann, Judge.
    Action by William Thompson against Al-mon Cotton. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. Y. Meek, of Houston, for appellant. Geo. G. Clough, of Galveston, for appellee.

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

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

   McMEANS, J.

Plaintiff, William Thompson, appellee here, brought this suit to recover of the appellant, Almon Cotton, the penalty prescribed by the Revised Statutes for charging and collecting usury on money loaned.

Plaintiff alleged that on or about November 7, 1909, he borrowed of and from the defendant the sum of $30 for 30 days, and executed as security therefor his note and power of attorney, by the terms of which the defendant was authorized in the event of default in the payment of said sum to draw his said wages; that as interest upon said loan plaintiff paid the defendant the sum of $6 per month for 10 months, making the sum total of $60 paid to the defendant; that on or about December, 1909, plaintiff borrowed of and from the defendant the sum of $66 for 30 days, executed as security therefor his note and power of attorney, by the terms of which the defendant was authorized in the event of default in the payment of said sum to draw his said wages; that as interest on said loan the plaintiff paid defendant the sum of $7.65 per month for nine months, making the total amount paid equal $68.85; that on August, 1910, at the time the last payment of interest was made, plaintiff had paid the principal due upon said note, to wit, $66, also $30, borrowed of defendant on November 7, 1909; that on or about the 1st day of July, 1911, plaintiff borrowed of and from the defendant the sum of $30 for 30 days, and executed as security therefor his note and power of attorney, by the terms of which in the event of default in the payment of said sum defendant was authorized to draw his said salary, and plaintiff paid defendant upon same, as interest, $6 per month for four months, making the total $24 as interest paid .upon said loan. Plaintiff further alleges that in October, 1911, plaintiff borrowed of and from the defendant the sum of $20, at which time his note for $30 was merged into his note for $20, making a note for $50, which note and power of attorney provided in the event of default in the payment that defendant would draw his said wages; that upon said $50 plaintiff paid as interest to defendant on or about November 1, 1911, the sum of $7.50 interest. Plaintiff further alleges that said interest charged was usurious and above the legal rate allowed by law, for this, that the same was in excess of 20 per cent, upon said loan, and that by being charged in said usurious interest plaintiff has been damaged in the sum of $320.70, double the amount of interest so charged. Plaintiff further alleges that said moneys were borrowed by the plaintiff of the defendant’s agent at Galveston, Tex., and that said interest was paid to said defendant’s agent at Galveston, Tex., to his great damage, $500.

The defendant demurred generally to plaintiff’s petition, and also urged a special exception questioning the sufficiency of the petition, because it did not set out with particularity the contract alleged to have been made between himself and defendant, and because it did not give the name of defendant’s agent with whom the alleged contract was made, and failed to give the dates when the several alleged payments were made. He also, in connection with the special exception, asked the court to require plaintiff to allege with particularity in his petition the omissions which were the basis of the special exception. The general demurrer, special exception, and the request above mentioned were overruled by the court.' Defendant answered by general denial, and specially alleged that it was not true that he ever at any time, either in person or by his agent, loaned plaintiff any sum whatever; but that such transactions that he ever had with the plaintiff, acting through an agent, were that heretofore, prior to the bringing of this suit, on various days and dates, at plaintiff’s special instance and request, the defendant, acting through an agent, purchased from plaintiff at different times certain portions of his wages to be earned under an existing contract of employment with Fowler &.McVitie or other employer, -with whom plaintiff was engaged at that time; that tinder each and all of said assignments which had been executed prior to the 2d day of November, 1911, when the money assigned was earned it was delivered to defendant’s agent by the plaintiff, and each and all of said assignments, which were in writing, were either destroyed or the name torn therefrom and delivered to the plaintiff; that on the 2d day of November, 1911, at the special instance and request of plaintiff, this defendant, acting through his agent, purchased $57.50 of his salary to be earned while in the employ of Fowler & MeVitie, and took a written assignment thereof, which was identical with the other assignments which had been taken pri- or thereto which were paid by the plaintiff, and plaintiff was paid by this defendant, through his agent, the sum of $50 for the amount of wages so assigned, being in said written assignment of November 2, 1911, a copy of said assignment is hereto attached, marked Exhibit A and made a part hereof.

Defendant further alleged that “plaintiff has not in good faith brought this suit, and that he should not be permitted to maintain and prosecute it any further, for this, that on March 4,1911, the plaintiff, being desirous on that day of selling to this defendant the sum of $35 of his wages to be earned under a then existing contract for the sum of $30, and this defendant, acting through his agent, who had had prior transactions with plaintiff by purchasing his salary as alleged above, demanded that before he would have any further transactions or purchase any of plaintiff’s wages that a full settlement of all transactions should be had, and that on said day there was a full and complete settlement of all past dealings, and plaintiff and defendant executed a mutual receipt in writing one to the other by which both parties released all claims and demands of every kind or character that either had against the other, and after the execution of said full and complete release, a copy of which is attached and marked Exhibit B, that on several occasions thereafter the defendant purchased from plaintiff certain portions of his wages or salary, and that on November 2, 1911, the defendant, acting through his agent, purchased from plaintiff the sum of $57.50 of his wages, and paid him therefor the sum of $50 in cash, and not one dollar of said money has ever been paid to defendant, nor has this defendant ever filed said assignment or a copy thereof, or in any way given notice thereof to plaintiff’s employer; that there is now due this defendant on said assignment the sum of $57.50, and this defendant shows that after said release was executed by the plaintiff which induced him ■ to continue to buy his certain portions of his salary that on several purchases made since the execution of said ’ release all of the discounts that have been • received by this defendant only amount to the sum of $37.50; that by reason of the execution of said release if, as a matter of fact, the plaintiff ever had any cause of action against this defendant for usury, as alleged by him, on the 4th day of March, 1911, plaintiff would be estopped to recover therein, and is now estopped; and that since said date as to any and all transactions had between plaintiff and defendant the discounts received by defendant on the purchase of plaintiff’s salary only amounted to $37.50; and that by reason of said fact this court has no jurisdiction over said amount, or any amount that could be properly and legally litigated in this action, and defendant now here pleads said release in bar of the prosecution of this suit, or any claim prior to March 4, 1911, and he now here presents this plea also as a plea to the jurisdiction of this court, and prays that this cause be not further prosecuted.”

The contract alleged by defendant to have been made between himself, through his agent, and the plaintiff, and made an exhibit to his answer, is dated November 2, 1911, and is as follows: “Know all men that X, the undersigned, for and in consideration of fifty dollars, to me in hand paid by -Almon Cotton of Houston, Harris county, Texas, and for other valuable considerations, have sold and by this instrument do sell, alien, transfer, and set over to said Almon Cotton the sum of fifty-seven and 50/ioo dollars out of my salary or wages now due or to become due me for the month of November, 1911, from Fowler & MeVitie of the state of Texas, hereafter called party of the third part. In case the said sum of money so aliened and transferred is not fully satisfied out of said month’s salary or wages, then all money, claims, or demands accruing thereafter to me from said part . up to said sum are hereby sold, aliened, and transferred to the said Almon Cotton, who is hereby authorized and empowered to ask for or sue for same in my name or his own name as he may elect; and I hereby direct the said party of the third part to pay to said Almon Cotton, or to his order, the said sum of money so aliened and transferred • as aforesaid; in addition to the above, in case said amount is not paid by said part . of the third part, I further alien, assign, and transfer to the said Almon Cotton any sum of money due or which may become due me as salary or wages for any month subsequent to the month or months so assigned from any person, firm, or corporation by whom I may be engaged within a period of four years from date hereof, or so much of said salary or wages as may be required to satisfy the aforesaid sum of money aliened and transferred by this assignment as aforesaid; and the said Almon Cotton is hereby authorized to collect and receipt for the same, and said receipt shall be absolutely binding and conclusive upon me when issued to any person, firm, or corporation for whom I may work; and, further, I bind myself to defend the said Almon Cotton’s rights under this assignment, and in case the same is placed in the hands of an attorney or suit is brought to collect the same, then in either event I do assign, alien, and transfer to said Almon Cotton as aforesaid an additional sum of $5 as attorney’s fees, and the said $5 is hereby aliened and transferred and is collectible and ordered to be paid out of my said salary or wages, and is to be receipted for in all respects and in same manner as said original sum so assigned as aforesaid. I fully understand that the above is an absolute sale and transfer of my salary or wages for the price above stated, and that no loan of any money is being made to me or intended or understood by me to be made.”

The mutual receipt pleaded by defendant and attached as Exhibit B to his answer is as follows: “March 4, 1911. An account has this day been stated between Texas Loan Company, Almon Cotton, sole proprietor, and W. M. Thompson; all claims and demands of all kinds or character which each has against the other has been included in said statement of accounts, and a full and complete-settlement of same had, and the balance due the Texas Loan Company, Almon Cotton, sole proprietor, and W. M. Thompson is $35.00, Thirty-five and no/100- This mutual receipt has been executed by each of us in full settlement, accord, and satisfaction of all claims and demands which each has against the other to this date of whatever character. W. M. Thompson. Almon Cotton, Per Louis F. Cambeilk.”

Plaintiff filed a supplemental petition in reply to defendant’s answer, in which he denied that the transaction sued upon was an assignment or sale of wages due him, and alleged that the said contract was simulated and a device and scheme of defendant to evade the usury laws; that plaintiff did not in fact assign or sell his wages; but that the form of the transaction was in fact a security for the loan of money sought and obtained by plaintiff from defendant, as stated in his original petition; and that the same was but a colorable transaction, having for its object the collection of unlawful interest from plaintiff by defendant. He further averred that the alleged settlement pleaded by defendant was without consideration; and that the same did not contemplate and was not intended to contemplate any character of settlement in satisfaction of his claim or cause of action against the defendant for usurious interest charged and collected; that, having received nothing whatever of value by reason of the execution of the alleged mutual receipt, and the same not being contemplated as being any satisfaction of any claim arising out of the loan or the payment of usurious interest, the same was roid; and that the consideration therefor had failed. The pleading was duly sworn to.

Plaintiff filed a trial amendment in which he alleged that “no receipts were ever issued to him on payments or interest, and no record thereof kept of the particular dates of payment; but that each payment of usurious interest was made in the amounts here-inbefore stated, and for each month, and between the third and ninth days thereof of each successive month after receiving said loan; and that he is unable to give any better or more certain time or date of said payments of interest than as hereinbefore stated, but defendant has a complete record thereof in reports of his manager, and in books kept by him in duplicate, and in the possession of defendant, which he is hereby given notice to produce on the trial or secondary' evidence will be offered thereof.” A trial before the court without a jury resulted in a judgment for plaintiff for $320.-70. Defendant has appealed.

Appellant’s first and twelfth assignments complain of the action of the court in overruling his general demurrer to plaintiff’s petition. The substance of the petition is set out in our statement of the pleadings, and we think the petition is good as against a general demurrer. The omissions pointed out in the proposition under the first assignment are such as could not be reached by a general demurrer, but should have been made the subject of a special exception. The contention made in the proposition under the twelfth assignment is that the petition was demurrable because the statute provides that suits to recover usurious interest should be in the nature of an action for debt, and that the rule of pleading applicable to actions for debt apply, hence there should have been an allegation of a demand upon defendant for payment and of a refusal on his part to pay, and the petition, containing no such allegation, rendered it fatally defective.

The following authorities hold that in’ ordinary actions for debt a failure to allege a demand for and refusal of payment renders the petition bad on general demurrer-. Carter v. Olive, 128 S. W. 478; Grant v. Whittlesey, 42 Tex. 320; Brackett v. Devine, 25 Tex. Supp. 194; Whitaker v. Record, 5> Tex. Supp. 382. The ruling in these cases is based upon the principle that before a creditor can sue for the recovery of a debt there must have been a breach of the debtor’s contract to pay; hence a petition which alleges that the defendant owes the plaintiff, but fails to allege that he has refused to pay, is defective because it does not allege a breach of the contract. In Brackett v. Devine, supra, plaintiff alleged the execution of a note by defendant, his ownership of the same, and prayed for citation and for judgment, and it was held that “plaintiff has failed to state a cause of action, in that he does not aver a breach of the contract sued on.” Substantially the same reasons are given for similar rulings in Grant v. Whittlesey and Whitaker v. Record, supra, and Carter v. Olive, 128 S. W. 478, while bottomed on these decisions does not undertake to state the principle governing.

The statute provides that usurious interest may be recovered “by action of debt.” Revised Statutes 1911, art. 49S2. We do not understand from this that in a suit to recover such interest every essential allegation in a common-law action for debt must be made in the petition, nor do we understand therefrom that the collection of usurious interest creates the relation of debtor and creditor as between the parties, as such relation is generally understood. The creditor who collects usurious interest never contracts with the debtor to pay him the amount so collected, hence there would be no breach of his contract if he refused to repay the same on the debtor’s demand. The object of such suit is to recover double the amount of interest paid as a penalty, not as a debt. As said by our Supreme Court in Rosetti v. Lozano, 96 Tex. 60, 70 S. W. 205, in construing the statute in question: “By ‘action of debt’ the Legislature did not, we think, mean to require that the action be technically that action known as such at common law, for the reason that we have no such forms of action.” Again, in discussing the sufficiency of the pleading to sustain a judgment, the court says: “The facts upon which the right arises are stated in a general way with a prayer that the amount be allowed. This was, we think, sufficient to admit evidence and support the judgment.” In the instant case the substance of the allegations of plaintiff’s petition is that he borrowed certain sums of money from defendant, upon which defendant charged and collected from him as interest a much larger sum than the rate of interest allowed by law, and that plaintiff was therefore entitled to recover double the amount he so paid defendant. In such circumstances an allegation of demand upon defendant and refusal on his part to pay is unnecessary. The assignments are overruled.

We think the second assignment, which complains of the action of the court in overruling appellant’s special exception to plaintiff’s petition, does not point out reversible error. The petition sufficiently stated the facts constituting plaintiff’s cause of action. It was not essential that the petition should state whether the contract under which he claimed he paid usurious interest was verbal or written, for his rights were the same whether the usurious interest was exacted under the one or the other. R. S. art. 4982. The petition alleged that the transactions were had with defendant’s agent at Galveston, and we think that, in the absence of an allegation that there were more than one agent in Galveston, this was sufficient to put defendant on notice of what he would have to meet with proof and to enable him to prepare his defense in this regard.

The evidence conclusively shows that appellant had but one agent in Galveston who handled such business for him; and even if it were error to overrule the special exception the error was cured by the judgment and was harmless. The dates of the alleged payments of usurious interest were not given in the original petition; but this omission was cured in the plaintiff’s supplemental petition. The assignment is overruled.

It was within the discretion of the court to permit plaintiff to file a trial amendment after the parties had announced ready for trial and after the exceptions to the pleadings of plaintiff had been overruled. It is true that the office of a trial amendment is to supply allegations in a pleading after exceptions thereto have been sustained; but the pleading objected to, while styled “trial amendment,” was nothing more than a supplemental petition.

But whether this be true or not, and even if the court committed error in allowing the pleading to be filed at the time it was, we think such error did not amount to such a denial of the rights of the appellant as to be reasonably calculated to cause or probably cause the rendition of an improper judgment in the ease (rule 62a, 149 S. W. x), and appellant’s fifth assignment, raising the point, is overruled.

The sixth and seventh assignments are predicated upon the admission of certain testimony offered by plaintiff over appellant’s objection, and the eighth, ninth, tenth, and eleventh are based on the exclusion of evidence offered by him on the objection of appellee. Appellant duly excepted to the action of the court and took his bills of exception; but the bills of exception were by this court, on motion of appellee, stricken from record at a former day of this term for the reason that they were not filed in the trial court within the time required by law. There being, therefore, no bills of exceptions in the record to support the assignments, this court is without power to consider the same.

Under the thirteenth assignment of error appellant presents the proposition that, “when plaintiff sues for usury alleged to be due him. by reason of the fact that he had paid on various loans made to him interest in excess of the rate allowed by law, it is error for the trial court to render judgment for plaintiff on said allegations, when the proof shows that such transactions as the plaintiff had with the defendant were upon written contracts which showed upon their face to be sales by the plaintiff and purchases by the defendant of certain portions of his wages to be earned under a then existing contract, under which plaintiff was entitled to earn money, when there were no pleadings in the record attacking said instrument for fraud, or as having been signed by mistake or accident, and when there is no allegation that there was any contract other than the written contract.”

Plaintiff alleged that he had borrowed certain sums of money from defendant, and that defendant had charged and collected interest thereon at a rate in excess of the rate allowed by law. He did not undertake to more definitely set out the contract by which the transaction was evidenced. But defendant pleaded the contract, and by its express terms it appears that the contract evidenced a sale by plaintiff: to defendant of a portion of his wages for the consideration stated. The plaintiff in reply pleaded that the written contract did not truly represent the transaction between them, and that the contract was simulated and was a scheme and device of defendant for collecting usury and evading the usury laws, and the transaction took that form, which was colorable only, and had for its object the collection of unlawful interest from plaintiff.

We do not think there is any merit in the contention that, before plaintiff could prove that the contract was in fact other than the contract pleaded by defendant, he must have alleged that its execution was the result of fraud, accident, or mistake. Otherwise parties engaged in usurious transactions could always protect themselves in their unlawful acts of this character by requiring the execution of a contract specifically containing untrue recitals, and executed under the circumstances not amounting to fraud, accident, or mistake, and thus forever shut the mouth of the other parties from whom they had in this manner exacted unlawful tribute. We think that the allegations of plaintiff’s supplemental petition were sufficient to let in proof of the true character of the transaction. The assignment is overruled.

Appellant’s fourteenth assignment of error complains that the court erred in rendering judgment against him, because the mutual receipt and release sometimes called by him a “stated account” of date March 4, 1911, executed by plaintiff and defendant, was a full and complete settlement, and estopped plaintiff from the prosecution of this suit; and the release was not attacked by any pleading as having been signed by plaintiff through accident, fraud, or mistake. Appellant’s contention under this assignment is that, when a party voluntarily has an accounting with the party with whom he has been dealing, and they state their accounts or transactions, and they agree upon an amount due to one of them, and each recognizes said amount, and each releases the other from any cause of action or any right the one may have against the other, and they agree that said statement and agreement should be a’ complete settlement, neither party will be permitted to evade the legal effect of said release in the absence of fraud, accident, or mistake; and it would not be necessary to show that anything was paid at the time of the execution of said instrument; but the promise and release of the one to the other would be a sufficient consideration to support the contract.

The receipt or release referred to in the assignment is set out above in full. Plaintiff’s supplemental petition in reply to the answer of appellant pleading the release is also set out, from which it will be seen that plaintiff did not allege that his signature was procured by fraud or as the result of accident or mistake; but he did plead that the alleged settlement was without consideration, and that the same was not intended to be a settlement of any claim held by him against appellant for the recovery of usury. The release or receipt was introduced in evidence in the trial. Nothing in appellant’s brief indicates that any evidence was introduced to show what understanding, if any, was had between the parties at the time of its execution, or that the appellant paid anything, waived anything, or forgave anything as a consideration for- its execution. The testimony is silent as to any intention of appellant, or any attempt on his part, to purge the prior transaction of the taint of usury. On the other hand, plaintiff testified (and this is the only testimony referred to by appellant in his statement under the assignment now discussed): “At the time I signed this last instrument, this small one, * * * I was not paid anything to sign it; sure not. I guess I paid them. Mr. Cummings (appellant’s agent through whom the transactions were had) never did say anything to me in that transaction as to me releasing my claim against him that I had for usurious interest; that matter was never discussed between us at all; never was anything said about it.”

There is no question that a right to sue for usurious interest paid may be the subject of compromise and adjustment. Stout v. Bank, 69 Tex. 392, 8 S. W. 808. But such compromise and adjustment to be valid should be entered into in good faith, and the right to recover the usury waived by the payer for a sufficient consideration. And even in some jurisdictions it is held that settlement of usurious dealings are excepted from the general rule that the parties to a voluntary settlement fairly made cannot reopen it, since otherwise usurers might make a practice of giving their illegal claims the form of an account stated, and thus evade the usury laws. 39 Cyc. 1024. It has also been held that, where the right to recover usurious interest is given by statute, an account stated will not prevent a party thereto from claiming the benefit of usury included in any of the items. 39 Cyc. 1025.

We think the following brief statement of the facts is justified by the evidence in the record. Plaintiff applied to appellant for a loan of money, and the loan was made. A contract was signed by the plaintiff, which upon its face was a sale of certain portions of his wages to be earned in a specified employment, and it contained a power of attorney in defendant’s favor to collect the same. It was not intended or contemplated that appellant should collect the wages to become ■due, and he never in fact collected them; but plaintiff collected his own wages as he had always theretofore done, and with the proceeds paid interest upon the loan at an usurious rate. Sometimes he would pay the ■entire principal of the loan, and then borrow ■another sum, and again give as security a bill of sale of his salary to be thereafter earned, with a power of attorney to appellant to collect same. After plaintiff had had several such transactions with defendant and had paid him a large sum as interest, illegal because more than permitted by law to be ■collected as interest, defendant requested plaintiff to sign and plaintiff did sign the instrument variously called by appellant “mutual receipt,” “release,” and “stated account.” No consideration, valid in law, was paid plaintiff for its execution, and the usury in former transactions was not purged; and we think we are justified in saying that appellant’s only object in securing the execution of the instrument was to create an estoppel ■against plaintiff from ever suing to recover the money illegally collected from him as interest. We think that under the facts stated the release referred to did not estop plaintiff to sue for a recovery of the amount illegally •collected from him as interest, and that it was not necessary for plaintiff to allege and prove that the release was signed by him as the result of accident, fraud, or mistake. The assignment is overruled.

It is shown by the pleadings of both parties and by the evidence adduced on the trial that, of the various sums of money •borrowed by the plaintiff from the defendant, the plaintiff still owes $50. We think that this sum should have been allowed by the trial court as an offset to the amount plaintiff was entitled to recover. “The law is that each payment made upon a contract affected with usury is a payment upon the principal, applied by the law, notwithstanding it was paid and received as payment of interest.” Loan Association v. Biering, 86 Tex. 476, 25 S. W. 622, 26 S. W. 39. The judgment of the court below will be reformed by allowing appellant a credit of $50 upon the amount of the judgment rendered against him. and as so reformed is affirmed.

Affirmed.