author: SPEER, J.

text:
    WHITEHEAD et al. v. RHEA et al.
    (No. 7982.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 30, 1914.)
    1. Partition (§ 25) — Allowance of Claim against Decedent — Jurisdiction.
    In a suit to partition decedent’s estate, plaintiffs could not insist that the court had no jurisdiction to provide for the payment of a debt against deceased in favor of defendants without showing that there was no administration pending, since, by the institution of the partition suit, plaintiffs virtually asserted that there were no debts against the estate, and hence no necessity for administration.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 77-79; Dec. Dig. § 25.]
    '2. Limitation of Actions (§ 50) — Accrual of Right of Action — Continuing Contract.
    A cause of action by a- daughter for compensation for personal services rendered her deceased father during his life was upon a continuing promise and did not arise until his death, and hence limitations would only run from the death of the father.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 273-279; Dec. Dig. § 50.]
    3. Contracts (§ 245) — Parent and Child.
    A contract between an aged father and his daughter, who was caring for him, made just prior to his death recited the fact that many years previously he had agreed that the daughter, in consideration of her services, should have all hjs property at his death, and provided that, as she had never received any compensation for her services, etc., she should receive all money on hand at his death. Held, that such contract did not supplant the prior agreement, but the compensation provided for therein was meant to be additional to that contemplated in the prior agreement.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1129, 1130; Dec. Dig. § 245.]
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    Action by B. E. Whitehead and others against R. K. Rhea and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    John J. Hiner, of Granbury, for appellants. Estes & Estes and W. L. Dean, all of Gran-bury, and J. L. Lockett, Jr., of Ft. Worth, for appellees.

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

   SPEER, J.

Mrs. B. E. Whitehead, joined by her husband, R. S. Whitehead, and G. J. Moore instituted this suit against R. K. Rhea and her husband, C. W. Rhea, in the district court of Hood county, for the partition, of certain lands and personal property situated in that county, constituting the community estate of A. E. Moore and his wife, Nancy Moore, deceased, and said B. E. Whitehead, G. J. Moore, and R. K. Rhea being the children and only heirs of the said A. E. and Nancy Moore, deceased. The real estate sought to be partitioned was of the alleged value of $7,500 and the personal property $5,-000.

It was insisted in the petition that R. K. Rhea was entitled to an undivided one half interest in all of said property through a devise by the father of his interest, and it was alleged that B. E. Whitehead, G. J. Moore, and R. K. Rhea were each entitled to an undivided one third interest in the other half as heirs of their mother, Nancy Moore, deceased. The defendants answered specially that said Nancy Moore had been an invalid for about 35 years prior to her death and required constant care and attention of some female person to look after her and care for her; that she was insane for many years prior to her death; that she was about 82 years old when she died, and the said A. E. Moore was about 90 years old when he died; that he too required the care and attention of a nurse to look after him during his latter years, and that the defendant R. K. Rhea was the only person to care for them during this time; and that the other two children had never contributed anything towards the care and comfort of their parents. It was further alleged that about the year 1878, and during the time that said Nancy Moore was an invalid and insane, the said A. E. Moore entered into an oral agreement with the defendant R. K. Rhea, in which he promised, in consideration of her undertaking to remain with and care for and nurse him and her mother, that she should be compensated for her services, and have such property as they might possess at the time of their death as compensation for said services; that in pursuance of this agreement the said R. K. Rhea remained with her parents from the year 1878 up to the time of their death in the year 1911, and cared for and nursed them during said time under said agreement, and further alleged the value of her services during all these years. The answer concluded with a prayer for judgment decreeing to the defendants the title and possession of all the property involved in the suit, and, in the alternative, for a judgment for the compensation claimed; and that the same be decreed a charge against the property sought to be partitioned.

The case was submitted on special issues upon which judgment was rendered in favor of the defendant R. K. Rhea for 40 acres of land sought to be partitioned, and decreeing that 100 acres of the remaining 200 acres be partitioned as prayed for by the plaintiffs, but that it be charged with $7,314.80, with interest from February 18, 1911, in favor of Mrs. R. K. Rhea, less $365.70, rents received by her. The plaintiffs have appealed.

Appellants submit under their first, second, and third assignments of error that appellees were not entitled to maintain a cause of action against them to establish a claim against the estate of Nancy Moore, deceased, in the district court without showing that there was no administration pending on said estate, or that there was no other debt against said estate, or without alleging some other facts showing that there was no necessity for administration. When appellants instituted their suit asking that the property of Nancy Moore be partitioned, they virtually said to the court that there were no debts against the estate and no necessity for an administration thereof, for otherwise they would not have been entitled to the partition sought. They ought not, therefore, to be heard to say that any fact existed which would defeat the very suit they were prosecuting without allegation and proof of such fact. Moore v. Moore, 89 Tex. 29, 33 S. W. 217. There is nothing in the pleading of either party that would indicate any necessity for an administration on the estate of Nancy Moore.

The fourth assignment of error is predicated on the court’s action in refusing to sustain a special- exception interposing the plea of the statute of limitations of two years. There is no judgment overruling such exception, but the matter is sought to be presented by a bill of exception, but, waiving this irregularity, we find no error in respect to the ruling, since the cause of action for compensation for personal services rendered during the lifetime of A. E. and Nancy Moore was upon a continuing promise to pay and did not arise until the death of A. E. Moore; there having been no previous breach of the agreement. This suit was instituted within less than two years after his death.

Next the point is made that, by a contract of November 8, 1909, conveying to ap-pellee R. K. Rhea moneys owned by A. E. Moore, deceased, the prior oral agreement for compensation had been fully satisfied, and no recovery, therefore, could be allowed her. An examination, however, of the terms of the latter agreement, the same being in writing, will disclose that its purpose was not to supplant the former agreement, but the compensation there provided for was meant to be additional to that contemplated in the prior oral agreement. The contract provides:

“That, whereas, the said A. E. Moore is in declining years and in feeble health and will in the future as in the past, require the care and attention of some one to look after his physical wants and to nurse and care for him and, whereas, the wife of the said A. E. Moore, and mother of the said Kindness Rhea, has been, for many years, and now is in feeble health, and is incapacitated both mentally and physically, and has been in such condition for many years, to look after her wants and necessities but on the contrary requires the constant care and attention of some person to look after her wants and necessities and is, at all times, a charge on her husband and daughter, the said Kindness Rhea, and will, as long as she lives, require the care and attention of some one to constantly look after her as in the past and to prevent her from doing herself or others personal violence and to provide for her the necessaries of life, to nurse and care for her and I, the said A. E. Moore, have heretofore, many years ago, made a contract with the said .Kindness Rhea, then Kindness Moore, if she would remain at home and care for her said mother and myself, so long as we might live, that she, the said Kindness Rhea, should have reasonable compensation for her said services in so doing, it being at that time and now is incumbent on me, as the head of the family, to provide for and nurse and care for my said wife, and being unable to do so with other duties and on account of my declining years and not able to at all times care for my said wife as she should be cared for and I having many years ago agreed with the said Kindness Rhea that at the death of myself and wife, she the said Kindness Rhea should have such property as we might possess at that time, and the said Kindness Rhea having never received any compensation for her said services and having remained with us and having carried out her part of the contract, up to this time, and has, alone, had the care, attention and nursing of her said mother and myself, none of the other members of my family having contributed to our wants or necessities. I, the said A. B. Moore, for the purpose of in part making compensation and in addition to what the said Kindness Rhea will be entitled to receive under the contract with her, as herein stated, sell and deliver to the said Kindness Rhea all money I may have at my death and I, the said A. E. Moore, hereby, to make compensation to the said Kindness Rhea for the services she has already performed, as hereinbefore shown, and for such services as she may hereafter perform under the stipulations and agreement hereinafter made by her and her said husband and it being the intention by this transfer to convey to the said Kindness Rhea all of said monies now in my name whether the same be my own property or1 the community property of myself and my said wife.”

This we believe disposes of every question adversely to appellant, and the judgment of the district court is therefore affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    HARDY v. WRIGHT.
    (No. 7969.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 9, 1914.
    Rehearing Denied June 7, 1914.)
    It Vendor and Purchaser (§ 278) — Vendors’ Liens — Enforcement — Limitations. The right of a vendor who sold land in 1893 to enforce his vendor’s lien for the price is not destroyed by lapse of time, wherd the ven-dee, who held possession of the land and paid taxes, did not repudiate the vendor’s title j Rev. St. 1911, art. 5694, prescribing a limitation to the enforcement of vendors’ liens, not applying to conveyances made before 1905.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §'§ 776, 777; Dec. Dig. § 278.]
    2. Vendor and Purchaser (§ 281) — Vendors’ Liens — Enforcement — Evidence — Sufficiency.
    In an action to foreclose vendor’s lien notes upon land, evidence held insufficient to show that the vendee or his grantee had repudiated the vendor’s title.
    [Ed. Note; — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. § 281.]
    Appeal from District Court, Throckmorton County; Jno. B. Thomas, Judge.
    Trespass to try title by L. H. Hardy against T. J. Wright. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Thorpe & Reynolds, of Throckmorton, for appellant. T. J. Wright, of Throckmorton, and Theodore Mack, of Ft. Worth, for ap-pellee.

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

   CONNER, C. J.

This is an action of trespass to try title instituted on the 8th day of October, 1912, by appellant, Hardy, against appellee, Wright, to recover the title and possession of 11% acres of .land situated in Throckmorton county. The material question presented is whether the evidence is sufficient to sustain the verdict of the jury in appellee’s favor on the issue of title by limitation, as pleaded by him.

Briefly stated, the facts are substantially as follows: In July, 1893, appellant conveyed the land in controversy to one Petti-grew, in consideration for which, among other things, Pettigrew gave two promissory notes for the sum of $36.10 each, bearing interest at the rate of 10 per cent, per annum, and payable on or before the 1st day of January, 1895 and 1896, respectively, and reserving a vendor’s lien upon the land in question. The notes mentioned have never been paid, but on the 8th day of January, 1896, the land was sold by virtue of an execution against Pettigrew in favor of other parties, at which execution sale B. F. Reynolds and appellee, T. J. Wright, became the purchasers for the sum of $6. Later, Reynolds conveyed his interest in the land to appellee, who soon thereafter went into possession, and who has continuously so remained, claiming and using the land as his own. As explaining appellant’s long delay in the effort to enforce his notes, there was evidence tending to show that appellant agreed not to enforce payment against Petti-grew until after he (appellant) had secured a release from a lien against the land in favor of one B. H. Wisdom, and that this lien had not been released until in 1912, and further that the notes had been placed in the hands of Judge Andrews of Throckmor-ton for collection, and that it was supposed for some time that the notes had been lost during a fire which destroyed Judge Andrews’ office. It further appears that appellant and appellee were neighbors, and that appellant during all of the time of ap-pellee’s possession knew of the same, and knew that he claimed the land, but appellant denied that Pettigrew or Wright had repudiated the notes in question, or that Wright ever came to him and told him that he was going to claim the land as against the unpaid notes of Pettigrew until sometime in October, 1911. Appellant testified:

“I thought, Judge Wright, that you owned the land, and I thought that you would settle it [the notes] whenever you could or wanted to, and I did not give myself much concern about it; I just thought that you would pay it whenever you got in condition that you could do it. I understood that you were claiming the land, and I had no doubt in the world but what you would pay the note when you got Beady, or I would not have waited this long, of course; until after I had talked to you several times, and then, of course, I had to resort to other process. Yes; the first time; though that I ever mentioned the matter to you according to my recollection and as far as I can remember was some time in 1911.”

Appellee testified on this subject:

“It was my intention after I found out that there were vendor’s lien notes against that place that if payment of them was not demanded by the time that limitation would operate, that I would not pay them; in other words, that I would do exactly what I am doing to-day— plead limitation against the payment of these notes. At the same time it was my intention to pay those two notes whenever Dr. Hardy was willing to accept what I believed to be his rightful dues; and that is, namely, interest on them up to their due date in 1S95 and 1896, and then interest on them after the time that he was ready, willing, and able to give a clear release against the Wisdom vendor’s lien. As I understand it from the record, the release was made on the 17th day of August, 1912, and as I stated it was my intention to pay interest on them up to the time they were due, and then interest on them after the time he could make a release, which I understand from the record he was able to do only since the 17th day of August, 1912. * * * I was ready to do that then, and I am ready to do that now.”

Cross-examined, he said among other things;

“As to whether I ever told Dr. Hardy that I was holding the land against him and against these notes, will say, gentlemen of the jury, that the first time that I ever talked to Dr. Hardy about the matter and the first time that Dr. Hardy ever mentioned to me that he had any claim in any way in the world against this property over here was in February or March, 1912; I recall it was just before the May term of the district court; and, as I recall it, the next time that he said anything to me about it was either in September or the early part of October of the same year, 1912, and that is the first time and the only time that I in words told Dr. Hardy that I was going to hold that land against him. I do not remember that I ever discussed the matter at all with anybody else at any time and told them in words that I was holding; that land against the vendor’s lien and against Pettigrew and against the world. I never told Dr. Hardy that I was holding the land against the world only. I and Dr. Hardy discussed this matter at the two times I told you about. But I was in possession — actual possession — of the land under recorded deeds, and Dr. Hardy was in my house on numerous and divers times, and he knew that I was in actual possession of the land and that I was claiming it, and he knew that I was payin°- the taxes on it. No, sir; I did not go to Dr. Hardy and tell him that I would pay him as I stated I would do. As to whether I knew that the notes were out against the land, will say that I knew that the record showed them, but I did not know that they were actually unpaid. I just knew what the record showed. It did not show that they were paid.”

We think the evidence wholly insufficient to support appellee’s claim as against the superior title which remained, in appellant by virtue of the reserved vendor’s lien. In Gilbough v. Runge, 99 Tex. 539, 91 S. W. 566, 122 Am. St. Rep. 659, our Supreme Court held, in effect, that the vendee in a deed containing a reservation of the vendor’s lien holds in subordination to the right of the vendor; that the vendee’s possession, or that of any subvendee, is not inconsistent with the right of the vendor, and that a vendee who merely takes possession of land and improves it and pays taxes on it without repudiating the title which remained in the vendor by virtue of the lien cannot resist the right of the vendor. So, in the case of Buckley v. Runge, 136 S. W. 533, by the Court of Civil Appeals for the First District, and in which a writ of error was denied by our Supreme Court, it was held not only that the reservation of a vendor’s lien to secure unpaid purchase money upon a conveyance of land had the effect of preserving for the vendor the superior title to the land until the notes were paid, but also that the right of the vendor, or of those legally holding under him, to assert such superior title had not been lost, though nearly 30 years had elapsed since the creation of the lien. The case now before us is not affected by the amendment to our laws found in article 5694 of the Revised Statutes, to the effect that the vendor’s right to recover real estate sold by him by virtue of the superior title arising from the reservation of the vendor’s lien shall be barred after the expiration of ten years from the maturity of the debt, and we therefore conclude that the cases cited have application here, and that, as already stated, the evidence fails to show such adverse possession of the land in controversy as defeats appellant’s right to recover by virtue of the superior title undoubtedly existing in him. Appellee’s own testimony shows that, while he claimed the land, used and cultivated it, yet his possession was not inconsistent with the right of appellant, under whom he claimed, and in order to have started limitation he should have openly and continuously manifested the purpose, if any he had, to repudiate the right existing by virtue of the unpaid notes. The mere secret purpose on his part to assert limitation in event legal demand was not earlier made is insufficient. Indeed, appellee’s testimony indicates that he, in fact, never had any fixed purpose to repudiate the payment of the notes held by appellant. It certainly cannot be said to have been that open hostile repudiation of appellant’s superior right that was necessary to sustain his claim of limitation.

It is ordered that the judgment be reversed, and the cause remanded.


text:
    KOLP et al. v. SHRADER.
    (No. 8028.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 23, 1914.
    Rehearing Denied June 27, 1914.)
    1. Appeal and Error (§§ 387, 397) — Proceedings for Appeal.
    Appeals must be prosecuted by giving the necessary notice of appeal in open court, and by filing the necessary bond within 20 days after the expiration of the term, or within 20 days after giving notice of appeal, as required by Rev. St. 1931, art. 20S4.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070, 2101; Dec. Dig. §§ 3S7, 397.]
    '2. Appeal and Error (§ 338) — Writ of Error.
    Where no appeal has been taken, a writ of error may be prosecuted under Rev. St. 1911, •art. 2086, at any time within 12 months after final judgment, provided at the time of the filing of the petition a bond or affidavit in lieu thereof is filed, as required by article 20S9.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1879-1882, 3057; Dec. Dig. § 338.]
    3. Appeal and Error (§ 391) — Writ of Error — Bond—Sufficiency.
    A cost bond on appeal becomes inoperative on the dismissal of the appeal, and on payment of the costs, and cannot be treated as a bond on writ of error though the sureties present affidavits reciting that they intend the bond to be operative in the prosecution of the writ of error.
    [Ed. Note. — For other cases, .see Appeal and Error, Cent. Dig. §§ 2077-2084, 2087-2088; Dec. Dig. § 391.]
    4. Appeal and Error (§ 391) — Writ of Error — Bond—Sufiuciency.
    Rev. St. 1911, art. 2104, authorizing the appellate court to allow appellant to amend the appeal bond by filing a new bond, does not permit the filing of an appeal or writ of error bond in the appellate court for the first time, and there must be at least an attempt to comply with the statute regulating appeals and writs of error, when a defective bond may be remedied by leave of court.
    [Ed. Note. — For other oases, see Appeal and Error, Cent. Dig. §§ 2077-2084, 20S7-208S; Dec. Dig. § 391.]
    Error to Tarrant County Court; Chas. T. Prewitt, Judge.
    Action between E. R. & D. C. Kolp and F. P. Shrader. There was a judgment for the latter, and the former bring error.
    Dismissed.
    See, also, 131 S. W. 860.
    Flournoy, Smith & Storer, of Ft. Worth, for plaintiffs in error. W. W. Wilkinson, of Ft. Worth, for defendant in error.

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

   CONNER, C. J.

On February 28, 1913, plaintiffs in error suffered an adverse judgment in the county court of Tarrant county, and on March 14th thereafter perfected an appeal to this court by filing a bond with sureties and conditioned for the payment of costs of suit, etc., as provided in article 2097, Revised Statutes. The record was duly filed in this court on June 4, 1913, and thereafter on the same day plaintiffs in error filed their motion to have their said appeal dismissed on the ground that the judgment was not a final one. On June 14, 1913, the motion to dismiss the appeal was granted. The motion, however, was granted without a consideration or determination of the question of the finality of the judgment; the dismissal being placed upon the ground merely of appellants’ request therefor. On the 17th day of February, 1914, the former appellants filed in said county court their petition for the writ of error before us, and caused the issuance and service of citation in error, but gave no other or further bond than as hereinbefore stated. The transcript in error was filed in this court on the 11th1 day of April, 1914, and defendant in error has moved to dismiss the writ.

We think the motion should be sustained and the writ of error dismissed. Appeals are prosecuted by giving the necessary notice of appeal in open court, and by filing the necessary bond within 20 days after the expiration of the term, or within 20 days after notice of appeal is given as the case may be, as required by article 2084, Revised Statutes.

In cases where no appeal has been taken, writs of error may be prosecuted at any time “within twelve months after the final judgment is rendered and not thereafter.” See article 2086, Revised Statutes. Article 2089, however, provides that in cases where a writ of error is taken “the plaintiff shall also, at the time of filing such petition, file with the clerk a writ of error bond, or affidavit in lieu thereof.”

The bond relied upon as supporting the writ of error now before us is the bond formerly given by plaintiffs in error in an effort to prosecute ap appeal, and the question is, Will such bond give this court jurisdiction to review the merits of the ease? The cost bond on appeal or writ of error in terms is the same, so that no objection can be made to the mere form of the bond under consideration, but the record shows that on the dismissal of the appeal, as hereinbefore stated, all the costs of this court were duly paid, and in our opinion the obligation of the sureties then ceased. The bond was no longer operative, and its appearance in the record below cannot be made to supply the requirement of the statute that the plaintiff at the time of the filing of his petition for writ of error shall also file a bond. Plaintiffs in error present affidavits on the part of the sureties that they intend the bond under consideration to also be operative in the prosecution of this writ of error, but no argument will be needed, we feel sure, for the conclusion that neither the affidavits nor expressed intention of the sureties can revive the legal effect of a bond that has become functus officio, or made to supply a necessary requirement of the statute.

Plaintiffs in error request, however, that they now be permitted to file sufficient writ of error bond. Article 2104 of the Revised Statutes provides that:

“When an appeal has been or shall be taken from the judgment of any of the courts of this state by filing a bond or entering into a recognizance within the time prescribed by law in such cases, and it shall be determined by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as the court may prescribe.”

In Hugo v. Seffel, 92 Tex. 414, 49 S. W. 369, it was expressly held that since the enactment of the law above quoted a defective appeal bond was sufficient to give the appellate court jurisdiction. To the same effect is the case of Williams v. Wiley, 96 Tex. 148, 71 S. W. 12, wherein a writ of error had been prosecuted. While in the latter casé' the court suggests a doubt of whether or not with the statute quoted in force it should be longer held that the jurisdiction of an appellate court depends at all upon the giving of a bond, the question was not in fact decided, and we cannot bring our minds to the conclusion that the statute permitting an amendment of an appeal bond should be so extended as to permit the filing of an appeal or writ of error bond in this court for the first time. To do so is evidently to entirely nullify the article of the statute which requires the party prosecuting an appeal to file an appeal bond within 20 days after the rendition of a judgment, or to file his bond, in cases of writs of error, at the same time that he files his petition therefor. There should at least be an attempt to comply with the statute regulating appeals and writs of error. When this is done, though the bond may prove to be defective in form or substance, the jurisdiction of the appellate court attaches, and we then, but not otherwise, may permit the appealing party to remedy the defect.

We conclude that the motion to dismiss the writ of error should be sustained; and it will be so ordered.


author: TADBOT, J.

text:
    COOPER & JONES v. HALL.
    (No. 7172.)
    (Court of Civil Appeals of Texas. Dallas.
    June 6, 1914.
    Rehearing Denied June 27, 1914.)
    1. Master and Servant (§ 278) — Injuries to Servant — Jury Question.
    In an action by a carpenter injured by the fall of the scaffold upon which he was working, evidence held to sustain a finding that defendants failed to furnish proper material for the construction of the scaffold.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dee. Dig. § 278.]
    2. Master and Servant (§ 116) — Injuries to Servant — Duty of Master.
    Where a master causes a scaffold to be built under his direction, he must exercise ordinary care to see that it is reasonably safe, but he need not supervise the building, where it is erected by the servants without any directions, though he is bound to use ordinary care to furnish suitable material where he directs what material shall be used.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.]
    3. Master and Servant (§ 288) — Injuries to Servant — Jury Question.
    In a personal injury action by a servant, the servant’s assumption of the risk from an insufficient scaffold which fell with him held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    4. Trial (§ 260) — Instructions—Refusal.
    The refusal of special charges which are covered by the charge given is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    5. Trial (§ 253) — Instructions—Issues.
    Where the court limited the right of recovery by a servant, injured by the fall of a scaffold, solely to the master’s failure to furnish proper material with which to erect it, a charge that if the scaffold could have been made safe by the workmen, and could have been maintained in a safe condition by them, verdict should be for the master is properly refused, because disregarding the issue of the master’s failure to furnish suitable material.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    6. Master and Servant (§ 116) — Injuries to Servant — Defenses.
    Where a master furnished defective lumber for a scaffold, it cannot escape liability for injuries to a servant by the fall of the scaffold because the use of the scaffold had weakened it, unless the weakened condition of the scaffold was due solely to use.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.]
    7. Trial (§ 260) — Instructions Otherwise Given.
    In an action by a servant injured by the fall of a scaffold, where the court’s general charge required the jury, in order to return a verdict for plaintiff, to find that the proximate cause of the fall of the scaffold was the failure of the master to furnish suitable materials, the refusal of special charges that the master was not liable if the fall of the scaffold was caused through the fault of other servants was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    8. Trial (§ 284) — Instructions—Objections —Waiver.
    Errors in instructions other than fundamental errors are waived, unless objection is made and exception taken as required by Acts 33d Leg. c. 59.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. § 284.]
    9. Appeal and Error (§ 263) — Presentation of Grounds of Review in Court Below — Necessity.
    The giving of an instruction on an issue not raised by the pleadings is fundamental error which can be reviewed, though the appellant did not reserve his exceptions in the trial court as required by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523,’ 1525-1532; Dec. Dig. § 263.]_

      10. MASTER AND SERVANT (§§ 264, 291

      ) — INJURIES to Servant — Instructions—Applicability to Pleadings.
    The petition of a servant injured by the falling of a scaffold alleging that the master failed to furnish the servant a safe place in which to work, in that the scaffold was weak and-insufficient, warrants the admission of evidence that the scaffold was insufficient because the material furnished was wet and spongy and would not hold nails; hence the giving of an instruction submitting the issue of the insufficiency of the material was proper.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 861-876, 1133, 1134, 1136-1146; Dec. Dig. §§ 264, 291.]
    11. Trial (§ 108%) — Selection oe Jurors— Voir Dire Examination.
    In a personal injury action by a servant, it was not error to ask the jurors on their voir dire examination whether they had any stock in an employers’ liability insurance company or were in any way connected with any such company which was insuring employers.
    [Ed. Note. — Eor other cases, see Trial, Dec. Dig. § 108%.]
    12: Appeal and Error (§ 1045) — Review-Harmless Error.
    The allowance of improper questions upon the voir dire examination of jurors is not, under rule 62a (149 S. W. x), reversible error, where it did not appear that defendant was prejudiced.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4124r-4127; Dec. Dig. § 1045.]
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Action by J. T. Hall against Cooper & Jones. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Thomas & Rhea, of Dallas, for appellants. J. C. Patton, of Dallas, and R. C. Merritt and W. R. Abernathy, both of McKinney, for ap-pellee.

      For other cases see same topic and section NUMBER in Deo. 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

   TADBOT, J.

This suit was brought by the appellee against the appellants to recover damages for personal injuries received by him while in the employment of appellants as a carpenter, and assisting in the construction of a building in the city of McKinney, Collin county, Tex. It appears that while the plaintiff was engaged in removing part of a girder in said building a scaffold on which he was working gave way and fell, causing the injuries of which he complains, which were serious and permanent. The grounds of negligence alleged are;

(1) “That the defendants failed to exercise proper care as required by law to furnish plaintiff a safe place in which to work, in this that the scaffold upon which plaintiff was placed to work, and upon which he had to work, was weak and insufficient for the purpose for which it was used, and not sufficiently nailed or braced to hold the weight of the workman required to work thereon, and by reason thereof the same gave way and plaintiff was caused to fall.”
(2) That defendants “failed to ¿roperly maintain said scaffold upon which plaintiff and his colaborers had to work, and by reason thereof the same gave way and he fell and was injured.”

The defenses alleged are a general denial, assumed risk, contributory negligence, and that the scaffold on which the plaintiff was working, and by the fall of which he was injured, was a temporary structure which had been erected by plaintiff and his fellow servants, and that said scaffold fell by reason of the failure of the plaintiff and his fellow servants to make the same safe in accordance with the express instructions of the defendants. The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $4,500, and the defendants appeal.

Appellants’ first, second, and third assignments of error, as numbered in the brief, are presented together. The first is, in substance and effect, that the verdict of the jury is without evidence to support it. The third that the court erred in pot giving in charge to the jury the first special charge of defendants directing that a verdict be returned in their favor. The second is as follows:

“The verdict is against the great preponderance of the evidence to such an extent as to show that the jury were influenced by bias in favor of the plaintiff, in that the great preponderance of the evidence shows that plaintiff knew and realized the condition of the timber out of which the scaffold was constructed, and the danger, if any, that existed in the use of such material, and therefore assumed the risk, if any, from using the material in the construction of said scaffold, and the court erred in overruling this defendant’s motion for a new trial presenting such error to the court as is shown in paragraph 2 of the defendant’s first amended motion for a new trial.”

The propositions contended for by appellants, in substance are:

(1) That, as the uncontradicted evidence showed that appellants were not legally liable to the appellee for any injuries received by him, they were entitled to a verdict.
(2) That “when a temporary structure, such as a scaffold, is erected by a servant and his fellow servants, for their use in erecting a building, out of material furnished by the master, such workmen assume the risk of its being safe, and the master is not liable for injuries caused to one of them by the fall of such scaffold.”
(3) That, as the evidence showed that there was plenty of suitable material out of which to build the scaffold, and the appellee having selected the material himself, and having with his fellow servants constructed the scaffold as they saw fit, the appellant is not liable for injuries received by the appellee by reason of the fall of such scaffold.
(4) That “appellee having worked at the carpenters’ trade for 25 years, and having selected the material himself out of which to build the scaffold, knowing the kind of material used, and knowing that some of it was wet when he put it in the scaffold, he assumed the risk of using the scaffold as erected, and the appellants are not liable, even though such scaffold fell on account of such material being used in constructing it.
(5) The hazards arising as the work proceeds are regarded as being the ordinary dangers of the employment, and by his acceptance of the employment the servant necessarily assumes them. If, therefore, the scaffold fell by reason of its being loosened by the use to which it was put by appellee and his fellow workmen, the appellants are not liable to him for the injuries caused thereby.
(6) A master is not liable to a servant for injuries caused by the act of a fellow servant. Andy Martin being a fellow servant of appel-lee, and the scaffold having fallen by reason of the failure of the said Martin to properly nail the brace to the horizontal piece, the appellants are not liable to appellee.”

We shall not undertake to discuss the foregoing propositions in detail. The facts upon which they are predicated are in no instance undisputed. On the contrary, the evidence bearing upon the controlling question involved is so conflicting that we would not be warranted in reversing the case because of either contention made. The theory, as we understand, of the plaintiff was and is that because of the softness and unsuitableness of some of the material furnished by appellants with which to construct the scaffold in question the nails holding the brace, which gave way and caused the scaffold to fall, pulled out, while that of the appellant was and is, in substance, that this brace was negligently and insecurely nailed to a horizontal piece of the scaffold by the plaintiff himself or his fellow servants, and that this was what alone caused the scaffold to fall. By the court’s charge the plaintiff’s right to recover was made to depend solely upon the correctness of his theory as above outlined. The charge of the court submitting the issue is as follows:

“Now, bearing in mind the above and foregoing instructions: If you should find and believe from the evidence that in the necessary discharge of their duties it became necessary for plaintiff and other employés of defendants to construct a scaffold upon which to work, and you further find and believe that the material used in erecting said scaffold was not proper and suitable, and that by reason thereof said scaffold was not a reasonably safe place to work, and you further believe that the defendant Jim Cooper directed plaintiff to get certain material for use in erecting said scaffold, and you further find and believe that, in selecting said material, defendants were guilty of negligence, and that such negligence, if any, was the direct and proximate cause of plaintiff’s injuries, then you should return a verdict in favor of plaintiff, unless you should find for defendants under instructions hereinafter given you.”

While the evidence upon this issue, or the cause of the scaffold’s falling, was conflicting, yet it was amply sufficient to authorize a finding by the jury that appellants failed to furnish proper and suitable material, at least in part, with which to construct the scaffold, and that, as a proximate result of such failure, the scaffold fell, and plaintiff was thereby injured. The following testimony given upon the trial sustained, we think, this conclusion:

Andy Martin testified:

“I saw the scaffold after it had fallen, and helped to put it back the next day. The nails had pulled out where the brace was nailed to the end of the horizontal júece, which let the horizontal piece drop down, and the plank that we were standing on shot off. The horizontal piece was wet. I have had about four or five years’ experience at carpenter work. There were two nails in the brace where the crosspiece pulled out. If the lumber had been dry and seasoned, it is my opinion that the two nails would have been sufficient to have held. Jim Cooper [one of the appellants] told us to use the secondhand lumber that was up there. This lumber had been used before. These 2x4% were very good, only they were wet and soggy, as it had been raining quite a lot. When lumber becomes wet and soggy it makes it spongy, and the nails will pull out easier. There was no dry lumber at the building that we could have used. Mr. Cooper instructed us to use that lumber.”

Jim Cooper, one of the appellants, testified:

“A platform, constructed as this one was, with only one or two nails in it, was not dangerous for two men to work on. We woi'k lots of times on one nail. I saw that there was just one nail where they had nailed the braces to the end of the horizontal pieces, and I told them to put more nails in it. I have worked on the scaffold with just one nail in it lots of times, _ especially a 16 spike. Under ordinary conditions one nail is sufficient. I cannot say what caused these nails to pull out. It was either from the jar of putting the timbers upon it or from the wet lumber. I instructed them to put more nails in the braces, because we were using heavy lumber. In putting up this girder they had to have this lumber on both sides of the column and would work on both sides. The nails had pulled out from the plank, and had not split or broken the wood, and had not pulled out of the diagonal brace. I could not say how this crosspiece was with reference to being wet and spongy. I do not know. It had only - one or two nails in it. I do not know whether the particular piece of wood out of which the brace that fell had been made had been used in making the forms for the concrete on the building. I know it had been rained on and wet, and I know that any wood that is rained on will get more or less soggy and spongy, and will not hold nails as well as a piece that has not been rained on. Mr. Hall [appellee] was not a regular carpenter. He did not tell me when I hired him that he was a regular carpenter. He said he was handy with tools. I agreed to give him $1.75 a day. He was just hired as, a work hand. The forms that the lumber had been used in was forms, for making the concrete foundation of a builcling. These forms had been used on the cotton, mill, and not on this Elks’ building. We made these forms by taking 2x4’s every two feet, and nailing ship-lap on one side of them putting one nail in, then put the forms in the trenches, which trenches were 6 to 10 feet deep, and poured the wet concrete in these forms, and let it set there three or four days. The 2x4’s did not touch the wet concrete at all. The ship-lap was next to the wet concrete. The 2x4’s would be exposed to the weather; if there were any rains the lower end of the 2x4’s at the bottom of the ditch would rest on dry concrete. This dry concrete was 15 or 18 inches, had been poured into the ditch and thoroughly dry before the forms were put in. Of course a 2x4 will absorb some moisture. These 2x4’s had been brought from over at the cotton mill two or three weeks before they were -used in this scaffold. They had been lying, and it had been raining but very little. We might have quit work on Tuesday on account of rain; I don’t remember. I couldn’t say for sure whether we began this work right after the big rain or not. They were not under any roof, but were exposed to the rain. I suppose a piece of dry lumber will hold a nail better than one that is wet and sappy. The mistake of putting four pieces in the girder instead of three was my mistake.”

J. T. Hall, appellee, testified:

“I asked Mr. Cooper where the stuff was, and he said just to pick it up around the building; that there was plenty of it. We picked it up around the building there wherever we could get it. I knew that the lumber was wet at the time I was using it; I knew it was secondhand lumber; but did not know what it had been used for. I could not say that I have over had any experience showing the effect of nails holding or not holding in wet lumber. I did not know the scaffold was dangerous when I went up on it to work. I did not know how many nails it had in it, and did not know the condition of the fiber of the wood or whether the nails would hold or not. I did not have anything to do with superintending or directing how the scaffold should be built. The only suggestion that I made in the whole thing was that Mr. Cooper and I were standing about the front and I was hunting for more braces and was fixing to have some for both sides, and Mr. Cooper remarked that one was sufficient, and that is all the suggestion I made about the scaffolding.”

Walker Cooper testified:

“My father had charge of the building. He instructed us to build the scaffold, told us where to get the lumber, inspected it, and told us to renail it. He was in charge, looking after it, and was supposed to give instructions regarding it. He pointed out the material to build it with, and looked after the details of the building, and told us to get up on it and fix the girder. After the platform fell I examined it. There were two nails in the end, and one of them had been clinched. Both of them had pulled out. The lumber was damp. It was not very soft. The nails never split them, but pulled through them. The lumber was not very spongy. The lumber had been used before. I had seen it before, out at the cotton mills, where it had been used to make forms. It had been out at the cotton' mills about ten days before it was brought over to this building, and had not been over at this building but two or three days. It had been rained on one day.”

The law seems to be well settled that, where a master causes to be built under his direction and control a platform, scaffold, or like structure for the use of his servants in the prosecution of their work, it is his duty to exercise ordinary care to see that it is reasonably safe for the purpose designed or contemplated. But where the structure is erected by the servants from material furnished by the master, and the master has no direction or control of the construction, he is not liable for injuries sustained by one of the servants or workmen by reason of defects in the structure, provided he has used reasonable core in the selection of proper and suitable material. 26 Cyc. p. 1115. The evidence in this ease is probably sufficient to show that the scaffold in question was caused to be built under the direction and control of appellants, but if, in fact, it was erected by appellee and his colaborers without direction or control of appellants, yet the material with which it was constructed was furnished by appellants, and, under the rule of law above stated, it was their duty to use ordinary care to select and furnish proper and suitable material therefor. This the jury has found appellants did not do. Whether appellee, at the time the scaffold was erected, knew, or ought to have known, that the defective material which caused the scaffold to fall was defective, and hence assumed the risk of using the.scaffold as erected were issues of fact for the determination of the jury. Upon this issue the court charged the jury thus:

“If you should find and believe from the evidence that the material or any of it selected and furnished by defendant was unsuitable, but you further find that the condition of said material was obvious and apparent or known to plaintiff at the time, or must necessarily have been known to him in the exercise of ordinary care in the discharge of his own duties, and you further find that the danger and the attending risk of using such material in said scaffold was apparent or known to plaintiff, or, in the exercise of ordinary care in the discharge of his duties, would have been known to him, then you are instructed that plaintiff assumed the risk of being injured in working on said scaffold, and you will find for defendants.”

The issue, then, of assumed risk being one of fact, and the jury, guided by a full and fair charge, having decided the issue favorable to appellee, it should not be disturbed on appeal. It may also be said that whether appellee’s injuries were caused by the act of a fellow servant in failing to properly nail the brace which gave way to the horizontal piece of the scaffold was an issue of fact for the jury, and, the court having properly submitted said issue, and the jury having resolved it in favor of appellee, we would not be warranted in setting their finding aside.

There was no error in refusing the special charges made the basis of appellants’ fourth, fifth, and sixth assignments of error. The charges to which the fourth and sixth assignments relate were sufficiently covered by the court’s main charge, and the special charge to which the fifth assignment of error relates was not a proper application of the law to the facts. The charge reads:

“If you find and believe from the evidence that the scaffold could have been made safe by the workmen, and could have been maintained in a safe condition by them, and that by reason of their failure or the failure of any one of them so to do, the scaffold fell, you will return a verdict for the defendants.”

The court limited plaintiff’s right of recovery solely to the issue of appellants’ failure to furnish proper material with which to erect the scaffold, and this charge ignored that issue, and authorized a verdict in favor of the appellants, even though the proximate cause of the accident and appellee’s injuries was the negligence of appellants in furnishing improper and unsuitable material to build the scaffold.

The seventh assignment of error complains of the court’s refusal, to give in charge to the jury the following special charge:

“If you find and believe from the evidence that the scaffold became weakened by reason of the use made of it by the workmen in erecting the girder, and that such weakening, if any, was the proximate cause of the failure of such scaffold, then you will return a verdict for the defendants.”

We think there was no error in refusing this charge. Appellants could not escape liability because of the weakened condition of the scaffold from use, unless such condition was the sole proximate cause of the accident and injury. In other words, if the scaffold became weals from use and wet and spongy lumber combined, then appellants, the other facts concurring, would be liable. Again, this charge ignored the only issue upon which appellee’s right to recover was made to depend by the general charge, and would have justified a verdict for appellants, notwithstanding appellants may have been guilty of negligence in furnishing defective lumber to be used in building the scaffold. The charge does not tell the jury that, if they should find that the material furnished by appellants was proper and suitable for the purpose contemplated, and should further find that the scaffold had become at the time it collapsed weakened by use, etc., and that such weakened condition was the proximate cause of its falling, to find for defendants. Had such a charge, or its equivalent, been requested and refused, a different question would probably be presented.

Again, under the court’s general charge, the jury, in order to return a verdict in favor of the appellee, were compelled to find that the proximate cause of the accident and injury to appellee was the failure of the appellants to furnish proper and suitable material with which to erect the scaffold, and it cannot reasonably be said that the refusal of the court to allow the special charges referred to resulted in injury to appellants.

The tenth assignment of error complains of the following paragraph of the court’s charge, namely:

“Now, bearing in mind the above and foregoing instructions: If you should find and believe from the evidence that in the necessary discharge of their duties it became necessary for plaintiff and other employes of defendants to construct a scaffold upon which to work, and you further find and believe that the material used in erecting said scaffold was not proper and suitable, and that by reason thereof said scaffold was not a reasonably safe place to work, and you further believe that the defendant Jim Cooper directed plaintiff to get certain material for use in erecting said scaffold, and you further find and believe that in selecting said material defendants were guilty of negligence, and that such negligence, if any, was the direct and proximate cause of plaintiff’s injuries, then you should return a verdict in favor of plaintiff, unless you find for defendants under instructions hereinafter given you.”

It is contended that this charge submitted an issue not made by the pleadings, and not raised by the evidence. The evidence was abundantly sufficient to raise the issue, and, unless the giving of the charge was fundamental error because it submitted an issue not made by the pleadings, the error has been waived, and cannot be urged in this court as a ground for reversal. This is so for the reason that the charge was not objected to in the trial court as required by chapter 59 of the Acts of the Thirty-Third Legislature, and the point reserved by proper bill of exceptions. Johnson v. Hoover & Lyons, 165 S. W. 900. It is stated in the brief that the charge was “duly excepted to,” but an examination of the bill of exceptions referred to in verification of this statement discloses that, while the charge was objected to on the ground that the issue therein submitted was not raised by the evidence, it was not objected to on the ground- that it submitted an issue not made by the pleadings.

We are inclined to the opinion, however, that, if the giving of the charge was error because the issue thereby submitted was not raised or made by the pleadings, such error was fundamental, and could be urged in this court without objection having been made to the charge in the trial court. Railway Co. v. Vieno, 26 S. W. 230, and cases cited; Railway Co. v. Lackey, 12 Tex. Civ. App. 229, 33 S. W. 768.

But did the charge submit an issue not made by the pleadings? The only allegations of the petition upon which the charge could be predicated are as follows:

“The defendants failed to exercise proper care as required by law to furnish plaintiff a safe place in which to work, in this that the scaffold upon which plaintiff was placed to work and upon which he had to work was weak and insufficient for the purpose for which it was used, and not sufficiently nailed or braced to hold the weight of the workmen required to work thereon, and by reason thereof the same gave way, and plaintiff was caused to fall.”

Here it is alleged that the appellants failed to furnish appellee a safe place in which to work, in that the scaffold upon which plaintiff was placed to work was weak and insufficient for the purpose for which it was used, and we conclude the allegations were sufficient to raise the issue and authorize the admission of evidence showing that appellants negligently failed to furnish appellee and his colaborers proper and suitable material with which to construct the scaffold. The pleading was doubtless imperfect, tested by a special demurrer charging that it was not sufficiently specific, in that it did not state wherein or in what respect the'scaffold was weak, but was not, we think, obnoxious to a general demurrer. The record does not show that either a general or special demurrer was urged to the pleading, nor does it show that any objection was interposed to the introduction of the evidence offered in support thereof. A fair interpretation of the pleading forbids the construction that the language “that appellants failed to furnish appellee a safe place in which to work, in that the scaffold was weak and insufficient for the purpose for which it was used,” referred to and meant that it was weak and insufficient for that purpose, because insufficiently or insecurely nailed. On the contrary, we think it is manifest that the pleader intended to charge that the scaffold was insufficiently nailed to hold the weight of the workmen, and also that it was “weak and insufficient” in other respects. We think the pleading, in the absence of a'special exception thereto, and the overruling of such an exception, sufficient to admit proof of the issue submitted thereunder in the court’s charge; that is, proof that the scaffold was “weak and insufficient,” for the reason that the material furnished by appellants and used in its construction was wet and spongy, and hence did not afford appellee a reasonably safe place in which to perform the work required of him, and the assignment will be overruled. This also disposed of appellants’ eighth, ninth, eleventh, twelfth, and thirteenth assignments of error against them.

The other assignments show no reversible error. The fourteenth, complaining that the court erred in permitting “plaintiff’s counsel in examining the jury on their voir dire to ask each of them whether they had any stock in an employers’ liability insurance company or were in any way interested in or connected with any employers’ liability company insuring contractors against loss or injury in the process of their work, and erred in overruling exceptions of these appellatíts reasonably interposed to such questions and the answers of the jurors thereto,” does not present the same question that was presented in the case of Harry Bros. v. Brady, 86 S. W. 615, decided by this court, and like cases, and is therefore distinguishable from those cases in the facts, and not ruled thereby. The ease at bar is more like the case of Dow & Co. v. Morgan (Ky.) 96 S. W. 533, in which it was held that it was not error to permit a juror to answer a question very similar to the one asked and answered here. Besides, it does not appear that appellants were in any wise injured by the testimony. Rule 62a (149 S. W. x).

The verdict of the jury is sustained by the evidence, and, no reversible error appearing, the judgment is affirmed.


text:
    FT. WORTH GRAIN & ELEVATOR CO. v. WALKER GRAIN CO. et al.
    (No. 7976.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 23, 1914.
    Rehearing Denied June 27, 1914.)
    1. Sales (§ 427) — Contracts—Warranty— Right of Action.
    Where a seller of a car of wheat warranted grade and quality, but did not have a car of that grade and quality, but learned that a third person had a car in transit and bought the same from him under a like warranty to fill the contract, and the car was transported' to the buyer, who found that the wheat did not come up to the grade and quality, the transactions were independent, and the .buyer could recover from the seller for breach of warranty, and the seller could recover from the third person for breach of warranty, though both rights depended on the same facts.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1210-1213; Dec. Dig. § 427.]
    2. Sales (§ 442) — Breach of Warranty— Measure of Damages.
    In the absence of special circumstances, the measure of damages for breach of warranty in a contract of sale is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.]
    3. Sales (§ 442) — Breach of Warranty-Measure of Damages.
    The rule that, in the absence of special circumstances, the measure of damages for breach of warranty in the sale of goods is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty is not changed by the fact that the buyer has resold for even a higher price than he paid for the goods.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284^1301; Dec. Dig. § 442.]
    4. Sales (§ 248) — Breach of Warranty-Liability.
    A seller of wheat, with a warranty of grade and quality, purchased wheat from a third person under a similar warranty to fill the contract. The buyer sued the seller for breach of warranty, and the seller made the third person a party. The buyer obtained a judgment against the seller and the seller a judgment over against the third person. Thereafter the seller settled with the buyer by paying a less sum than the amount of the judgment. The third person declined to participate in the settlement, but elected to prosecute an appeal from the judgment. Held, that the third person, on the affirmance of the judgment, was liable to the seller for the amount thereof, for the contract of the third person was one of warranty and not of indemnity, though the seller at one time indicated a willingness to treat the judgment in his favor against the third person as one for indemnity.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 707; Dec. Dig. §• 248.]
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    Action by the Walker Grain Company against the Ft. Worth Grain & Elevator Company. From a judgment granting relief, defendant appeals.
    Reversed.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. Harris & Young, of Ft. Worth, for appellee.

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

   CONNER, C. J.

This is an appeal from a . judgment perpetuating an injunction against the Ft. Worth Grain & Elevator Company from the collection of a balance due upon a judgment in favor of4 that company for the sum of $606.52, with interest and costs. The trial court filed conclusions of fact and law, from which, briefly stated, the following facts appear:

About July 30, 1909, the Ft. Worth Grain & Elevator Company sold to the Hood County Mill & Elevator Company one car of wheat, with warranty of grade and quality. At the time of said sale the Ft. Worth Grain & Elevator Company did not have a car of wheat of the warranted grade on hand, but, finding that the Walker Grain Company owned a car of such wheat then in transit between Oklahoma and Texas, bought the same for the purpose of filling its contract with the Hood County Mill & Elevator Company. The sale of the wheat by the Walker Grain Company to the Ft. Worth Grain & Elevator Company was made upon a warranty like that of the Ft. Worth Grain & Elevator Company. The car was caused to continue in transit until its arrival and delivery to the Hood County Mill & Elevator Company in Hood county. After such delivery it was found that the wheat was in a decaying condition and not up to the grade and quality as guaranteed by both the vendors hereinbefore named. Notice of this condition of the wheat was given to the Ft. Worth Grain & Elevator Company, which in turn notified the Walker Grain Company, but, no satisfactory adjustment of the loss having been made, the Hood County Mill & Elevator Company instituted its suit for damages, declaring upon the warranty given by the Ft. Worth Grain & Elevator Company. The latter company answered, pleading a general denial, and, among other things, set' up the warranty given by the Walker Grain Company, and prayed that it should be cited and recovery had against it for whatever sum, if any, should be adjudged in favor of the Hood County Mill & Elevator Company. Thereupon the Walker Grain Company was duly made a party and filed an answer which it is unnecessary at this time to notice. The case so outlined was tried on the 19th day of October, 1911, and resulted in a judgment:

“That the plaintiff the Hood County Mill & Elevator Company do have and recover judgment of and from the defendant the Ft. Worth Grain & Elevator Company in the sum of $606.52, together with interest thereon at the rate of 6 per cent, per annum from August 24, 1909, and for all costs in this behalf expended, for all of which the said plaintiff shall have its execution; and the said defendant the Ft. Worth Grain & Elevator Company do have and recover judgment of and from the defendant the Walker Grain Company and the said J. L. Walker (alleged to have been doing business under the name of Walker Grain Company) in the sum of $606.52, together with interest thereon at 6 per cent, per annum from August 24, 1909, and for all costs of court, for all of which said defendant shall have its execution.”

Both the Ft. Worth Grain & Elevator Company and the Walker Grain Company duly appealed from the judgment so rendered. During the pendency of the appeal, and upon inducements not necessary to here recite, the Ft. Worth Grain & Elevator Company compromised the judgment against it in favor of the Hood County Mill & Elevator Company by the payment of $450, and abandoned its appeal. During the negotiations leading up to this settlement, the Ft. Worth Grain & Elevator Company sought to have the Walker Grain Company join in the compromise, but this the latter company declined to do, insisting that it would prosecute its appeal and be able ultimately to show that its warranty had not been breached. The judgment entire, however, was later duly affirmed by this court. See Walker Grain Co. v. Hood County Mill & Elevator Co., 157 S. W. 444.

Thereafter the Walker Grain Company deposited in the registry of the court in Hood county the sum of $450, together with lawful interest thereon from the date of the settlement on the part of the Ft. Worth Grain & Elevator Company and all costs of the litigation. Thereafter' the present action began by the filing of a petition for an injunction by the Walker Grain Company seeking to restrain a further collection of the judgment in favor of the Ft. Worth Grain & Elevator Company. A writ of injunction was duly issued as prayed for, and upon a hearing by the court the writ was made perpetual, as stated in the beginning. The court found the facts we have stated, and concluded in effect that the judgment in favor of the Ft. Worth Grain & Elevator Company was one of indemnity only, and that the Walker Grain Company having discharged the full sum, with interest and costs, paid by the Ft. Worth Grain & Elevator Company in discharge of the judgment against it in favor of the Hood County Mill & Elevator Company, was entitled to be relieved, and hence perpetuated the injunction, as stated.

The question of whether the court correctly perpetuated the injunction is dependent, we think, upon the character of the original obligation on the part of the Walker Grain Company and of the judgment rendered against it. To our minds the contract of the Walker Grain Company, when it sold the ear of wheat referred to, was not one of indemnity, but was a warranty of the grade and quality of the wheat sold. This contract of warranty was entirely independent of the contract and sale to the Hood County Mill & Elevator Company. Upon showing a breach of the warranty, the Ft. Worth Grain & Elevator Company had a right of recovery against the Walker Grain Company, regardless of the transaction with the Hood County Mill & Elevator Company. The two transactions were in no sense interdependent. True, the right of the Hood County Mill & Elevator Company to recover against the Ft. Worth Grain & Elevator Company, and the right of the latter company to recover against the Walker Grain Company, both depended upon the establishment of the same fact, to wit, the fact that the wheat was not as warranted, and whether the two canses of action were tried together or separately was wholly immaterial.

In either case the measure of damage was the same; that is, in the absence of special circumstances, the measure in both cases was the difference between the value of the goods at the time of delivery and the value they would have had if they had answered to the warranty. See 5 Elliott on Contracts, § 5113, and the great number of authorities cited in note to the case of Cary v. Gruman, 40 Am. Dec. 303.

In the section from Mr. Elliott above cited, it is stated, among other things, that:

“The rule is not changed by the fact that the buyer has resold the goods for even a higher price than he paid for them.”

And this statement is fortified by a number of authorities cited in a note, among which are the following: Wheelock v. Berkeley, by the Supreme Court of Illinois, 138 Ill. 153, 27 N. E. 942; Denton v. Fisher, by the Maryland Court of Appeals, published in 102 Md. 386, 62 Atl. 627, 3 L. R. A. (N. S.) 465.

In Wheelock v. Berkeley, it is said inter alia that:

“The measure of damages for a breach of war'ranty is the difference between the value of the property as warranted and its actual value, at the date of the breach. McClure v. Williams, 65 Ill. 390; 2 Sutherland on Damages, p. 425 et seq. It is therefore of no consequence what the purchaser may have realized from the property.”

In the Maryland case it was said, quoting from the headnote:

“That a purchaser of grain has resold it and not refunded the purchase price on discovering a shortage does not defeat his right to maintain an action against his vendor for the shortage.”

That was a case in substance in which Denton Bros, sued their vendors for a deficiency in grain resold by Denton Bros. The original vendors resisted the suit on the ground that Denton Bros, had not paid to their vendees the amount for which Denton Bros, were liable to their vendees on resale. The court said:

“The right of the vendee to recover from the vendor for a failure of consideration is founded on the simple fact that the former has not received from the latter what the vendor sold and agreed to deliver, and what the vendee paid for and contracted to get. The breach consists in the failure of the vendor to live up to his contract, and no consequent sale of the grain by the vendee can obliterate or condone that breach. If a sale of the same commodity by the vendee to a subvendee extinguishes the responsibility of the vendor to make good a shortage to his vendee, then a payment to the sub-vendee by his vendor of the damages caused by the shortage would revive the first vendor’s responsibility to his vendee; and thus the obligation of the first vendor to make good a deficiency to his vendee would depend, not upon his own breach of contract of sale, but upon a collateral and independent transaction between the vendee and a third party, who is a total stranger to the original contract of sale.”

"Numerous cases are cited in support of the principle embodied in the quotation we have made. Some of them seem to have apt application to the case before ns. In one of them (Muller v. Eno, 14 N. Y. 597) it was said:

“ ‘The purchaser may recover for the breach (of a warranty), although he has sold the goods and no claim has been made upon him, and he is liable to none on account of the alleged defect. Nor in such an action is he required to prove the price at which he resold the goods. * * * The price * * * may be evidence of the amount of damages, but it does not furnish the rule.’ * * * The vendor ‘is required simply to make good his own contract, and I do not see how he can discharge that obligation by inquiring into relations between other parties. * * * The promise is not one of indemnity against loss on a resale.’ ”

We also invite consideration of other cases cited in the opinion referred to.

In the case before us, as alleged in the pleadings of the original suit, the present appellees sold to the appellant company a car of wheat with a warranty of its grade. It was later established in a judicial proceeding, in which the present appellees were parties, that this warranty was breached and the amount of the deficiency or damage was fixed by a verdict of the jury and the judgment of the court. Not only were the causes of action set up by the Hood County Mill & Elevator Company and the Ft. Worth Grain & Elevator Company distinct and noninterdependent, but so also were the judgments against the Ft. Worth Grain & Elevator Company and against, the Walker Grain Company. How, then, can it be material to the Walker Grain Company that the Ft. Worth Grain & Elevator Company succeeded in satisfying its judgment upon favorable terms? The Walker Grain Company was, as found by the court, offered an opportunity to participate in this settlement, and, had it done so, could thus have satisfied the judgment against it upon the same terms as did the Ft. Worth Grain & Elevator Company, but the Walker Grain Company declined to join in this compromise and elected to prosecute its appeal. Having failed in this, it would seem that it was not thereafter in position to be relieved from the legal effect of the judgment so affirmed, on,the ground that the appellant company had succeeded in extricating itself by the payment of a sum less than called for by the judgment enjoined. It can make no difference, we think, that the two defendants joined in resisting the complaint of the Hood County Mill & Elevator Company, or later joined in prosecuting an. appeal. It was to their mutual interest to defeat the allegation that the wheat was not as warranted, but beyond this their interests were conflicting both in the pleadings and in, the proof. For the Ft. Worth Grain & Elevator Company distinctly set up the warranty of the present appellees, and the present appellees as distinctly denied it True, there seems to have been no material controversy over this issue, doubtless because-the fact that appellees had given warranty as alleged was undisputed. Nor can it make any difference, we think, that the present appellant at one time indicated a willingness to in effect treat the judgment in its favor against appellees as one for indemnity. The offer of appellant to permit appellees to join in the compromise was a matter of grace which was declined, and appellees cannot now complain when called upon to satisfy in full the judgment against it.

We conclude that the court’s findings of fact as stated by us should be adopted, but that the judgment should be reversed and: here entered dissolving the injunction.


text:
    WHITE v. GAIDA.
    (No. 7979.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 30, 1914.
    Rehearing Denied July 4, 1914.)
    Brokers (§ 48) — Commissions — When Earned.
    Where an owner, employing a broker to procure a purchaser of real estate at a compensation in excess of the specified sum received on a sale of the property, did not interfere with the broker in his efforts to procure a purchaser, nor collude with any other person'to defraud the broker by pricing the property to a purchaser procured by the broker at the specified sum, he was not liable to the broker, though a sale was made to the purchaser procured by the broker at the specified sum.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 65; Dec. Dig. § 48.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by John Gaida against L. White. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered for defendant.
    Bryan, Bartholomew &' Stone, of Ft. Worth, for appellant. Mercer & Wilcher, of Ft. Worth, for appellee.

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

   SPEER, J.

This suit was instituted by John Gaida in the justice court of precinct No. 1, Tarrant county, to recover commissions as a real estate broker from L. White, the owner of certain real estate situated in Ennis. For cause of action the plaintiff alleged that he was to receive as compensation for his services such amount in excess of $2,500 as he should be able to sell the property for, and that the defendant agreed not to interfere with him in the sale of the property. 1-Ie alleged a breach of this agreement, resulting in a loss to him of $200, inasmuch as he would, but for the interference of defendant, have sold the property for $2,700. There was a verdict and judgment in the plaintiff’s favor for $125, and the defendant appeals.

We sustain appellant’s first assignment of error, to the effect that the court erred in overruling his motion for a peremptory instruction. The undisputed facts show that one Putz purchased the property from appellant at a price of $2,500. Putz was procured as a 'purchaser through the agency of appellee, but he never at any time agreed with appellee, or any one else, to pay $2,700, for the property, or any other sum above that which he did pay, to wit, $2,500. A Mrs. Shebesta and another informed Putz, upon his inquiry, that the property could be purchased for $2,500, and Putz testified that after he had received this information he, of course, would not pay more than that sum for it, although he further testified after the consummation of the deal that he would have' paid $2,700 for the property. There is absolutely nothing in the evidence to indicate that appellant in any manner interfered with appellee in his efforts to sell the property to-Putz for an amount exceeding $2,500, or that he was in any manner colluding with Mrs. Shebesta, or any other person, to defraud', appellee by pricing the property to Putz at $2,500. This evidence fails wholly to show any breach of appellant’s agreement with appellee as declared upon, and the trial court erred in not instructing a verdict for the defendant. Since all of the parties to the transaction have testified and the case appears to have been fully developed, there is no necessity for remanding it for another trial. The judgment is accordingly here rendered in favor of appellant.

Reversed and rendered.


text:
    GULF, C. & S. F. RY. CO. v. SULLIVAN.
    (No. 7974.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 30, 1914.)
    1. Railroads (§ 398*) — Injuries to Person-on Track — Negligence—Evidence.
    Evidence held not to sustain a recovery for Injuries to a pedestrian on a track struck by a train, on the theory of the failure of the trainmen to exercise proper care after the discovery of the pedestrian’s peril.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]
    2. Damages (§ 165*) — Personal Injuries— Evidence — Admissibility.
    In an action for personal injuries negligently inflicted the testimony of witnesses as to the number of operations made necessary by the accident and the details thereof, and that plaintiff suffered from an attack of gangrene following the operation, was admissible as a part of the history of the case, the nature and extent of the injury and the probable suffering of plaintiff.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 460; Dec. Dig. § 165.*]
    Appeal from District Court, Denton County; Charles F. Spencer, Judge.
    Action by Lloyd Sullivan, by next friend, against the Gulf, Colorado & Santa Fe Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Lee & Lomax, of Ft. Worth, Robb H. Hopkins, of Denton, and Terry, Cavin & Mills, of Galveston, for appellant. Owsley & Ows-ley, of Denton, for appellee.
   SPEER, J.

This is a personal injury suit brought by Lloyd Sullivan, through his next friend, against the Gulf, Colorado & Santa-Fé Railway Company, to recover damages-for injuries sustained by him at Sangfer on May 19, 1913, as a result of being run over-by a car attached to one of defendant’s engines engaged in switching at that place. There was a trial before a jury, resulting: in a verdict and judgment for the plaintiff in the sum of $5,000, and the defendant appeals.

Numerous grounds of negligence were alleged in appellee’s petition, but the trial court stripped the case of every issue save one, and submitted it alone upon the theory of discovered peril.

Appellant complains that the verdict returned is not supported by the evidence upon this issue, and we think the complaint is well taken. Appellee is a minor, being about 19 years of age and has been mentally and physically afflicted since his early childhood, and this fact was known to the station agent of appellant, as well also as to some of the brakemen operating the switching train at the time of the accident. Other material facts will sufficiently appear from the following excerpts from the testimony of the witnesses:

Lloyd Sullivan himself testified:

“I got hurt on the railroad in May of this year. I went down to the depot that'morning with Ed and Tom Carrico to watch them unload a thresher. When X got down to the depot, I went in the colored waiting room. I saw Mr. Hurd, the agent, and he ordered me out three times. When he ordered me out, I went to the pumphouse and got a drink of water-, and from the pumphouse I started to go home, which was on the west side of the track, the pumphouse being on the east side. When Mr. Hurd ordered me out, there was a train along there on the track, switching. When I went to the pumphouse and got a drink, the engine was way down south of the depot, and there was a ear standing there by the pump-house, and I started around the north side of it, and the train backed back. Before I started around the north end of the car, I had seen the train down south of the depot [here indicating on a plat made by the witness], and X had not seen the train coming back and had not heard it; they did not ring any bell and did not blow any whistle, and did not notify me in any way that they were coming back; I did not know they were coming back on that track. When I started across the. track there, and after I got on the track and just before I was hit, June Teakle hollered at me and told me to go back, and I tried to'go back; I turned to go back, and the train caught me. The wheels ran over me and cut my leg off.”

J. C. McGuire, one of appellant’s brakemen, the only employé who saw and was in a position to see appellee at the time of the accident, testified:

“After we started to the house track after this other car, I noticed a party leaning against the coal bin, near the north end, but 1 did not know who the party was until he started to move away, and when he started to move away, I gave a stop signal and hollered at him and tried to catch him; he started angling sorter north, towards the track; when he made the first move I saw it was that crippled Sullivan boy — I knew him. I was ’bout a car length from him; I.gave the stop signal and hollered at him and tried to catch him, but he just kept going, and when I reached out to get him he fell face forward across the track. If he had stopped when I first hollered, he would not have been hurt. He fell just as I reached out to get him, and I was not able to touch him; he was something like a foot and a half from my hand when I reached him. The car moved over him about half its length. When the boy fell, his right leg was lying across the rail, just across the knee, and I made an effort to get that off; X kicked at it and scraped his pants leg; about the time I kicked at his leg, the wheel hit it. I made an effort to get the boy out from under the car, but it made me sick, and I had to get away. Maniss and somebody else took him out. The distance between the side of the car and the coal bin was something like six feet — that is, the distance from the rail to the coal bin, but from the side of the car to the coal bin would have been about four feet. At the time the accident occurred the train was moving about three or four miles an hour, and I do not think it could have stopped any quicker than it did. I gave the signal to the fireman, and he repeated it to the engineer. I did not know where Mr. Maniss, the other brakeman, and Mr. Bickham were at that time, but they were north of me. I gave the signal to the fireman because I was on his side of the engine, and there were no trainmen on the other side; the stock pens would have interfered with giving signals from that side.”

Joe Warren, witness for appellee, testified:

“The train at that time [just before the accident] was on the other side of the crossing, and it backed up, and as it backed up, I was standing right on the stock pens platform. I saw Lloyd Sullivan as they were backing up and as the train was gradually moving off; he was between the coal bin and the car, and the next time I saw him he was under the car, when the car got to him. He was trying to cross the track, and I hollered at him once, and Mr. Teakle hollered at him twice, I think it was when he was trying to cross the track, but he never hesitated any at all, but kept coming that way. I don’t know whether he heard Mr. Tea-kle or not. When X saw Lloyd Sullivan first, he was between the coal bin and the railroad track, kinder angling northwest across the track. When I saw him coming and the train starting, too, I told him to go back, and Mr. Teakle told him to go back. I said to him: ‘The tz-ain is going to back up there; you had better look out.’ I did not say it to him in a distressing way, because I thought that he could get out of the way. The brakeman was on the same side that Lloyd Sullivan was on, and after the train had very near caught Lloyd, the bz-akeman ran towards him, he said, ‘You are going to get hurt,’ or something like that; he told him he was going to get hurt if he didn’t look out. Lloyd Sullivan was under the train when the brakeman gave the stop signal. I could see the brakeman standing out close to the coal bin just when Lloyd Sullivan started, but I did not see the brakeman give the stop signal then; I was not watching the brakeman, but was watching Lloyd. The only stop signal I saw the brakeman give was just before the train struck Lloyd. When the brakeman gave the stop signal, the train was about to get Lloyd; he was just fixing to make the next step, and if he had made the next step, it would have put him about the center of the track; he would not have gotten across; the car was right at him, and he could not hardly move — that is, when I saw it — I don’t know whether the signal was given before that or not.”

These excerpts, though taken from the statement contained in appellant’s brief, which, under rule 41 for the Courts of Civil Appeals (142 S. W. xiv), we are authorized to do, since appellee in no manner controverts them, are fairly indicative of the entire record. We think the evidence is entirely insufficient to support the verdict and judgment 'upon the theory that appellant negligently failed to do all in its power after its employés discovered appellee’s perilous situation. There is nothing to indicate that all was not done which could have been done to save appellee from harm after it was seen he intended to cross the track behind appellant’s moving car. It cannot be said that he was in a place of peril while standing near the track leaning against the coal bin. It was only after he started to cross the track that he could possibly have been considered in a place of danger, and after this time the evidence is clear that appellant’s employés did all that was possible to avert the accident. See F. W. & D. C. Ry. Co. v. Shetter, 58 S. W. 179.

Appellant also complains that the issue of discovered peril should not have been submitted because such issue was not made by appellee’s pleadings. It is by no means clear that this complaint also should not be sustained; but, in view of our conclusion on the facts above stated, it becomes an immaterial consideration. In view of what we have said it is unnecessary to discuss the court’s action in giving or refusing other charges affecting the issue of discovered peril, since under the evidence it was error to submit this issue at all.

In view of the fact we are remanding the case, it is proper to state we find no error in the court’s ruling in permitting the witnesses 6. W. Sullivan and Dr. J. C. Rice to testify concerning the number of operations made necessary by the accident and to the details of it, and the' further fact that appellee suffered from an attack of gangrene following the operation. If these things, or any of them, were the result of appellee’s negligence, that fact should have been pleaded. The testimony was proper as showing a part of the history of the case, the nature and extent of the injury, and the probable suffering of appellee.

For the insufficiency of the evidence to support the verdict and judgment upon the only issue submitted, the judgment is reversed and the cause remanded for another trial.