author: PLY, C. J.

text:
    WEST TEXAS BANK & TRUST CO. v. RICE.
    (No. 5672.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.)
    1. Judgment €==>549 — Res Judicata.
    Identity of parties and of causes of action are essentials to creating res judicata.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1979; Dec. Dig. <®=549.]

      '2. Judgment <®=>725(1) — Conclusiveness.
    A judgment is not technically conclusive of any matter, if the matter is not such that it had of necessity to be determined before judgment could be given.
    . [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1255-1257; Dec. Dig. ⅞=^725(1).]
    3. Judgment <S=>6S3 — Res Judicata — Pabties.
    AVhere judgment was obtained by the remote assignee of a claim against the debtor and the immediate assignee, the principle of res judicata does not apply in an action by one of the original assignors against such remote as-signee for misappropriating the proceeds of the claim.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1296; Dec. Dig. <§=>683.]
    4. Estoppel <§=>99(1) — Estoppel in Pais.
    Where the part owner of a claim, which he and the other owners assigned to one of their number for collection, the assignee transferring to his bank the whole of the claim in consideration of its extension of his indebtedness, upon learning that the bank was suing the debtor and the assignee, went to the bank and was told that the cause was being prosecuted in his interest, such part owner was not estopped to claim his portion of the proceeds because he did not protest or ask to be made a party to the suit brought by the bank.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 242, 243, 249, 251-255; Dee. Dig. <®=>90(1).]

      Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Suit by Robert H. Rice against the West Texas Bank & Trust Company. Prom a judgment for- plaintiff, defendant appeals.
    Judgment affirmed.
    Boyle & Storey, of San Antonio, for appellant. L. H. Browne, of San Antonio, for appellee.
   PLY, C. J.

This suit originated in the justice’s court, where appellee sought to recover of appellant the sum of $145.74, which it was alleged had been appropriated by appellant to its own use and benefit. In the justice’s court appellee recovered a judgment for $145, and appellant perfected an appeal to the county court of Bexar county for civil cases. In the latter court the cause was tried without a jury, and judgment rendered in favor of appellee for $162.49.

This case must be determined upon the facts, which show that on October 20, 1911, I. M. Moore, Delcambre & Jones, Woods & Paschal, and W. 0. Lott held a claim against J. M. Ramsey for certain commissions for the sale of real estate; that, desiring to put the claim in the hands of one man, all the parties transferred their parts of the claim to W. O. Lott, with the understanding that he should collect his part and theirs also, and then settle with them. Lott paid no consideration for the transfer. On November 21, 1911, Lott, in consideration of an extension of his indebtedness to appellant, sold and transferred to it the whole of the claim against Ramsey. Appellant knew that Lott owned only a part of the debt against Ramsey, for the matter was fully explained to appellant by A. M. Delcambre before he signed the transfer to Lott, and the bank president informed him that his interest would be protected by appellant. Afterwards appellant sued Ramsey and Lott on the claim, and obtained judgment. During the trial I. M. Moore, an owner of an interest in the claim, learned that the claim had been transferred by Lott to appellant, and he went immediately to the bank and was assured that his rights would be protected. Moore got his part of the judgment by a sale to Lott. Woods & Paschal were also paid their part of it. On October 25, 1913, A. M. Delcambre assigned his part of the judgment to appel-lee.

The question of res judicata as to Delcambre could not arise in this case, for the suit was instituted and prosecuted for his benefit, as well as the other owners of portions of the claim. If it was not prosecuted in his behalf, the principle of res judicata could have no application whatever. Delcambre was not a party to the suit, there was no identity of the cause of action, no identity of parties, nor any other essential to creating res judicata. The same vital point was not at issue in the two cases.. In the first caso the issue was as to the indebtedness of Ramsey and Lott to appellant; in this case the issue was as to the indebtedness of appellant to appellee. “The rule, as sometimes stated, is that a judgment is not technically conclusive of any matter, if the-matter is not such that it had of necessity to be determined before judgment could have been given.” Philipowski v. Spencer, 63 Tex. 604. None of the essentials of res judi-cata is found in this case.

Appellee is not estopped on the ground-of res judicata, nor on any ground indicated' by the facts, which fail to show any act or conduct upon the part of Delcambre that raise the issue of estoppel. As soon as lie-learned that appellant was suing for the-whole debt, he went to appellant and learned that the cause was being prosecuted in his interest. Delcambre was not called upon to protest or ask to be made a party to the suit brought by appellant against Lott and Ramsey, because he had been assured that appellant would protect his interest. The attorney of appellant in that suit thought the-ditterent parties to the transfer to Lott had an interest in the judgment, and when he collected it he placed it to the credit of his firm in appellant’s bank, with a view to the-distribution to each party as his interest might appear. The amount, without the-knowledge or consent of the attorneys, was-transferred from that account into the funds-of the bank. Still appellant recognized its-trusteeship of the fund after that, and settled with some of the claimants, and did not repudiate the trust until Delcambre demanded his part. He was entitled to it, and when, he transferred his claim to appellee the latter was entitled to it, and the justice and county courts properly awarded it to him.

' The judgment is affirmed.

       other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    MINEAR et al. v. McVEA et al.
    (No. 5669.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.)
    1. Schools and School Districts @=*27 — Public Schools — Establishment oe District.
    Where an order establishing a school district described the boundaries, stating the acreage of each survey, the fact that territory was taken out of the district as originally constituted and allotted to other districts, without describing them by metes and bounds, does not render invalid the order creating the district.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. <§=>• 27.]
    2. Schools and School Districts <§=>27 — Establishment op District.
    While the district court, in the exercise-of the supervisory control over the commissioners’ court, may by mandamus compel a change in the boundaries of a school district which has been arbitrarily laid out for selfish purposes, instead of the convenience of the scholastic population, taxpayers within the district cannot, on ■the theory that the district was not laid out for the benefit of the scholastic population, enjoin •collection of taxes, where they did not seek relief by mandamus to compel a change in the district line, but waited until it was sought to collect the taxes, and then attempted to have the order creating the district declared void, for the order is not void, but at most only voidable, on appropriate quo warranto proceedings brought against the trustees in accord with Acts 34th Leg. c. 36, declaring the trustees to be a body corporate, which may sue and be sued.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. 27.1
    3. Schools and School Distbicts ⅜=>27 — Suits to Declare Distbict Void — Necessary Party
    As Rev. St. 1911, art. 2822, makes the ■trustees of a-school district a body corporate, such trustees are necessary parties to a suit to declare the organization of the district void, and failure to join them renders the petition demur-rable.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. <®=>27.]
    4. Pakties i$=>75(7) — Objections—Demurrer —Grounds of.
    The omission of necessary parties is a defect rendering a petition subject to general demurrer.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. § 115; Dec. Dig. ®=>75(7); Pleading, Cent. Dig. § 494.]
    Appeal from District Court, Gonzales County.
    Action by P. N. Minear and others against J. D. McVea and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    W. B. Green, of Gonzales, for appellants. Harwood & Miller, of Gonzales, for appellees.
   MOURSUND, J.

P. N. Minear, Thomas Pinn, and E. C. Colley sued J. W. Holmes, county judge of Gonzales county, and F. H. Kelso, J. C. Neighbors, John Bouldin, and G. P. McDonald, county commissioners of said county, who, together with said county judge, constitute the commissioners’ court of said county, and J. D. McVea, tax collector of said county, alleging in substance: That plaintiffs are resident property tax payers in common school district No. 43 in said county; that said commissioners’ court, at a special term in March, 1915, created a school district, known as No. 13, and on March 28, 1915, the county judge, upon a petition presented by 23 citizens of said district, ordered an election to determine whether bonds should be issued to the amount of $5,000 to provide funds for the erection of a brick schoolhouse, and a tax levied sufficient to pay interest and provide a sinking fund, and on the same day said county judge, upon another petition by citizens of said district, also ordered an election to be held for the purpose of determining whether a tax of 20 cents on the $100 valuation should be levied for the purpose of supplementing the state school funds apportioned to the district; that said elections were duly held on April 24, 1915, both resulting in the defeat of the propositions voted on, the vote with regard to the bond issue being 22 for the issuance thereof and 25 against the issuance thereof; that on May 10, 1915, a petition was filed with the clerk of the commissioners’ court, signed by 16 citizens, asking the court to-abolish district No. 13 and to create a new district, which was to embrace practically the same territory as was contained in No, 13, whereupon the court entered an order abolishing district No. 13 and creating district No. 43. Copies of the two orders were attached to the petition.

Plaintiffs further alleged that on May 10, 1915, the required number of qualified property tax paying voters of said new district No. 43 presented to the county judge their petition to determine whether bonds in the sum of $4,000 should be issued for the purpose of erecting a brick schoolhouse, and presented another petition praying for an election to determine whether a tax of 20 cents' on the $100 valuation of taxable property should be levied for the purpose of supplementing the state school fund; that on the same day the county judge ordered elections to be held as prayed for, fixing the time at June 3, 1915, and said elections were duly held, and resulted in a majority for the issuance of the bonds, as well as the maintenance tax; that thereafter, at the June term, 1915, and at the August term, 1915, of the said commissioners’ court a tax of 20 cents on the $100 was levied for the year 1915, for the purpose of paying the interest on the $4,000 bond issue and creating a sinking fund, and a similar tax for the purpose of supplementing the state school fund; that said tax was placed upon the assessment rolls delivered to the tax collector, and it being his duty to collect all taxes upon said rolls, he is threatening to collect such school taxes from plaintiff's. The amount of the tax so assessed against each of plaintiffs was stated, and it was alleged that they would suffer irreparable injury to their real property if the collector compelled them to pay such taxes.

Plaintiffs alleged that the elections held in district 43 and the taxes levied pursuant thereto were illegal and void on the following grounds: That in making the change the court failed to give the metes and bounds of each district and to designate the same carefully by giving the whole surveys and parts of surveys in each district, as required by law; that the orders failed to show that district 43 contains nine square miles of territory within its boundaries; that such elections were in contravention of the statute, which provides that not more than one such election shall be held in one scholastic year in the same district for the same purpose; that the order creating district No. 43 undertakes to change districts Nos. 51, 12, and 11, without giving the metes and bounds thereof, and to state the whole surveys and parts of surveys in each district. They further alleged that the act of the commissioners’ court in creating district 43 was not for the convenience of the scholastic population, as required by law, but was fraudulently done for the purpose of excluding from its bounds voters who were opposed to the bond issue and tax levies; that 5 persons, whose names are stated, were on April 24, 1915, qualified resident property tax paying voters in district 13, and voted against the bond issue and maintenance tax, and that it became known to the commissioners’ court that they had so voted, and the court, in creating district No. 43, changed the boundaries of No. 13, by excluding said parties, in order to prevent their participation in tax elections. Plaintiffs prayed that the order. abolishing district No. 13 and creating district No. 43 be declared void; also the orders levying the taxes for bond issue and maintenance, and that an injunction be granted restraining the tax collector from collecting the taxes.

A general demurrer urged by all of the defendants was sustained, and, plaintiffs having failed to amend, the cause was dismissed. After the appeal was perfected, the plaintiffs paid the taxes which they sought to enjoin the collection of, as is shown by a written agreement to that effect filed in this court, with a motion on the part of appellees to dismiss the appeal on the ground that there is nothing further to adjudicate. If the matter of taxes was the entire subject-matter in controversy, such motion would be well taken; but, as plaintiff seeks to annul the order creating district ao. 43, it becomes necessary to consider that phase of the case.

An examination of the copies of the orders made exhibits to the petition discloses that the boundaries of district No. 43 are set out, that it contains more than, nine square miles of territory, and that the acreage out of each survey is stated. It is true that the territory taken out of it is allotted to other districts, without describing such other districts by metes and bounds; but the same may be said of the order creating district 13, which appellants contend should be made effective by setting aside the order abolishing it The failure to describe by metes and bounds the other districts furnishes no ground for declaring invalid the order creating district No. 43.

The principal contention of appellants is based upon the allegation to the effect that the act of the commissioners’ court in abolishing district No. 13 and creating district No. 43 was not for the convenience of the scholastic population, but ,was fraudulently done for the purpose of excluding voters opposed to tax levies. Appellants rely upon the case of McLaughlin v. Smith, 140 S. W. 249, and 105 Tex. 330, 148 S. W. 288. In that case it was held that the district court, in the exercise of the supervisory control over the commissioners’ court vested in it by the Constitution, had the power to compel, by mandamus, a change in boundaries of school districts which had been so arbitrarily laid out for selfish purposes, instead of the convenience of the scholastic population, as to show a flagrant abuse of the discretion conferred upon the commissioners’ court by law. This court has made similar rulings with reference to the subdivision of a county into, convenient districts under the law- creating such county. Dubose v. Woods, 162 S. W. 3; Williams v. Woods, 162 S. W. 1031.

It is clear that when the commissioners’ court flagrantly abuses its discretion, with the result that districts which áre not convenient to the scholastic population are created, the aid of the district court can be invoked to compel a redistricting. This, however, is not that kind of a case. If it had been, it should have been brought against the board of county trustees, for prior to the bringing of the suit the duties formerly resting upon the commissioners’ court with reference to laying out and changing school districts had been conferred upon such board of trustees. Chapter 36, Acts 34th Leg. The plaintiffs herein did not seek relief by asking for a writ of mandamus to compel a change in district lines. Although elections had been ordered to be held in district No. 43, no appeal was made by them to the courts to prevent the holding of such elections until the matter of creating convenient districts could be adjudicated. The elections were held, and, it is to be inferred from the petition, bonds were issued, and it is not alleged that such bonds had not been sold. Long after all this occurred, .when the time for paying taxes drew near, this suit was brought for the purpose of having the order creating district No. 43 declared void. If the district court, in the exercise of its supervisory control, could declare an order creating a school district void, because the district was not laid out for the convenience of the scholastic population thereof, it is clear that such power could only be exercised in a quo warranto proceeding instituted in the name of the state, or by some individual under the authority of the state who has a special interest which is affected by the existence of the school district. Such school districts under the statute are bodies corporate, with power to create bonded indebtedness, and we see no reason why different rules should be recognized with reference thereto than those applicable to other quasi municipal corporations.

In the case of Crabb v. Celeste Ind. School Dist., 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146, our Supreme Court held that the rule above stated applied to an independent school district, to which territory had been annexed, and which annexation was claimed to be invalid on account of certain irregularities. See, also. Parker v. Harris County Drainage Dist. No. 2, 148 S. W. 351; Davis v. Parks, 157 S. W. 449; Cochran v. Kennon, 161 S. W. 67; Cohen v. City of Houston, 176 S. W. 809; Wilson v. Brown, 145 S. W. 641. In the instant case the constitutionality of the law under which the district was established is not questioned. The only question is whether, in cutting out of district No. 13 about 1,000 acres of land, the court abused its discretion by creating a district or districts not convenient for the scholastic population. The order is not void, and plaintiffs, in the capacity in which they sued, could not maintain a cause of action for the purpose of annulling the school district.

It appears, also, that if plaintiffs could maintain the suit, the trustees of district 43, who are constituted a body corporate by article 2822, R. S. 1911, are necessary parties, for it is proposed to destroy the existence of such body corporate. Renshaw v. Arnett, 158 S. W. 1197. The omission of necessary parties is a defect rendering a petition subject to general demurrer. Towne’s Texas Pleading, p. 2S8; Ship Canal Co. v. Bruly, 45 Tex. 6; Buie v. Cunningham, 29 S. W. 801-804; Melde v. Melde, 132 S. W. 980.

We deem it unnecessary to discuss the question whether the petition, when measured by a general demurrer, alleges sufficient facts to show an abuse of discretion by the commissioners’ court, for the conclusions above stated require the affirmance of the judgment.

. Judgment affirmed.
      <g^>For other oases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes

      @=»For other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MISSOURI, K. & T. RY. CO. et al. v. PACHECO.
    (No. 5668.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.)
    1. Appeal and Error <©=>970(1) — Review— Discketion oe Lowee Court — Witnesses UNDER THE RULE.
    The discretion of the trial judge in permitting a witness to testify who has violated the rule of exclusion by hearing the testimony of other witnesses, will not be reversed, unless there is a clear abuse of discretion shown.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3849; Dec. Dig. <©=5970(1).]
    2. Trial <©=>41(5) — Exclusion oe Witnesses —Discretion oe Court.
    Permitting counsel to consult with a witness under the rule and tell him what another witness had testified, and to ask him if that evidence was true, and then allowing the witness to testify, is not an abuse of discretion where it does not appear to have influenced the testimony of the witness, and the case was tried by the judge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 105; Dec. Dig. <©=541(5).]
    3. Carriers <©=5218(5) — Live Stock Shipment —Limitation oe Liability — “Duress.”
    Where the only railroad at place of shipment refused to ship cattle unless it was written across bill of lading that some were in bad condition, and, although the statement was untrue, the shipper, under such pressure, signed such bill of lading, the carrier’s act constituted legal duress, and the shipper was not barred from recovering damages for their negligent transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674, 696; Dec. Dig. <©=>218(5).
    For other definitions, see Words and Phrases, First and Second Series, Duress.]
    Appeal from Cameron County Court; H. L. Yates, Judge.
    Action by Andres Pacheco against the Missouri, Kansas & Texas Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Graham, Jones & George, of Brownsville, for appellants. Canales & Dancy, of Brownsville, for appellee.
   FLY, C. J.

This is a suit for damages to cattle, instituted by appellee against the Missouri, Kansas & Texas Railway Company, the St. Louis, Brownsville & Mexico Railway Company, and the San Antonio, Uvalde & Gulf Railroad Company, in which it was alleged that appellee had, on or about December 31, 1914, delivered to the St. Louis, Brownsville & Mexico Railroad Company, at Brownsville, Tex., 204 head of cattle to be transported from Brownsville, Tex., to Ft. Worth, Tex., over the lines of the initial carrier, the San Antonio, Uvalde & Gulf Railway Company and the Missouri, Kansas & Texas Railway Company; that the cattle were not transported with reasonable care, diligence and speed, and 2 of them were killed in the pens at Brownsville, 10 crippled in the cars, and the balance delivered in bad condition at Ft. Worth. The cause was submitted to the court without a jury, and judgment was rendered in favor of appellee, as against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico' Railway Company, A. R. Ponder, and Duval West, receivers of the San Antonio, Uvalde & Gulf Railroad Company, jointly for $266.50, and against the first-named company for $52, and that appellee take nothing as to the Missouri, Kansas & Texas Railway Company.

The first and second assignments of error raise the point that counsel for appel-lee was permitted to consult with a witness under the rule and tell him what another witness had testified, and ask him if that evidence was true, and then the witness was allowed to testify. It is well settled that it is within the sound discretion of the trial court to permit a witness, who has violated the rule of exclusion, from hearing the testimony of other witnesses either directly or through another, to testify, and the action of such trial judge will not be reversed, unless there is a clear abuse of such discretion. That rule prevails not only in civil, but criminal, cases. Crawleigh v. Railway, 28 Tex. Civ. App. 260, 67 S. W. 140; Railway v. Hugen, 45 Tex. Civ. App. 326, 100 S. W. 1000; Powell v. State, 13 Tex. App. 244; Creswell v. State, 14 Tex. App. 1; Pierson v. State, 18 Tex. App. 524; Sherwood v. State, 42 Tex. 498. The rule is of greater force when tried by the judge as in this case.

There was no abuse of discretion in admitting the evidence complained of in this instance, nor does it seem to have been of any damage to appellants. The probabilities are that the witness would have sworn exactly as he did had no communication been held with him. No attempt seems to have been made by the attorney, who communicated with the witness, to influence his testimony or to lead him to make a certain answer. The two assignments of error are overruled.

There is evidence to sustain a finding that the initial carrier refused to ship the cattle unless it was written across the bill of lading that the cattle were in bad condition, and that appellee was compelled to permit such writing on the bill of lading in order to have them shipped. The alternative was presented of shipping the cattle with the bill of lading indorsed as desired by the carrier, or having them on his hands in the city of Brownsville. The act of'the carrier constituted legal duress. Any agreement made under improper pressure is voidable. Hutchinson, Carriers, § 805; Page, Contracts, § 255; Railway v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; Railway v. Meadors, 104 Tex. 469, 140 S. W. 427; Railway v. Vasbinder, 172 S. W. 763; Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417.

In the case last cited the Supreme Court of Wisconsin elaborately discussed the question of duress and arrived at the following conclusion:

“The making of a contract requires the free exercise of the will power of the contracting parties, and the free meeting and blending of their minds. In the absence of that, the essential of a contract is wanting; and if such absence be produced by the wrongful conduct of one party to the transaction, or conduct for which he is responsible, whereby the other party for the time being, through fear, is bereft of his free will power, for the purpose of obtaining the contract and it is thereby obtained, such contract may be avoided on the ground of duress. There is no legal standard of resistance which a party must exercise at his peril to protect himself. The question in each is: Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, and was such advantage thereby obtained? If the proposition be determined in the affirmative, no matter what the nature of the threatened injury to such person, or his property, or the person or liberty of his wife or child, the advantage thereby obtained cannot be retained.”

The facts in this case show that the cattle in «question were brought from Mexico to Brownsville, Tex., on December 31, 1914, and presented at once for shipment to the initial carrier, that the cattle were not received, and appellee was compelled to keep them overnight in- the muddy pen of appellant, which was injurious to them, that when the cattle were tendered on the following day to the carrier for shipment to Ft. Worth the agent refused to ship them unless it was written in the contract that 50 of the cattle were in bad condition, although they were in good condition. Only 3 head of the cattle were in bad condition, and that was caused by the muddy state of the pens, and they were left in the pens. Two of them were in such condition that they had to be killed. Appellee could not speak English and negotiated with the railroad company through an interpreter. Appellee was compelled to agree that 50 of the cattle were in bad condition, in order to have them shipped. Neither appellee nor Trevino, his agent, who signed the contract, could speak or read English, but the contract was in English. There was only one railroad leading out of Brownsville. It was clearly shown that the statement placed by the agent of the railway company in the contract of shipment was untrue.

The authorities cited in support of the third assignment of error have no applicability to the facts of this case. Appellee expected to sign a written contract, but he did not expect to sign one making false representations as to the condition of his cattle. 1-Ie only signed the contract with the false representations because he could get his cattle shipped in no other way. It is no defense for the carrier to say that he should have carried his cattle to a pasture and fattened them before he shipped them. He had the right to ship his cattle and the carrier had no right to place false representations in the contract, to endeavor to anticipate the effects of its possible negligence in handling the cattle.

As said in the case of Joannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 16 L. R. A. 376, 32 Am. St. Rep. 581, by the Supreme Court of Minnesota, in discussing the question of duress:

“And the modem authorities generally hold that such pressure or constraint as compels a man to go against his will, and virtually takes away his free agency, and destroys the power of refusing to comply with the unlawful demand of another, will constitute duress, irrespective, of the manifestation or apprehension of physical force. * * * The real and ultimate fact to be determined in every case is whether or not the party really had a choice — whether ‘he had his freedom of exercising his will.’ ”

To the same effect is the case of Howe v. Spalding, 50 Minn. 157, 52 N. W. 527, by the same court.

The carrier could not, lawfully, arbitrarily demand of appellee that he state that his cattle were in bad condition for shipment, and when by a refusal to ship the cattle he was compelled to sign a contract to the effect that they were unfit for shipment, it is no defense to contend that he might have done something else with his cattle. He might have hired a pasture and kept them in it ; he might have carried them back to Mexico; he might have killed or sold them; but he was not called upon to do either of these things. He had the right to ship them to Ft. Worth, and in order to ship them he could sign a contract demanded of him, without losing the right to recover damages for the negligent transportation of his cattle. The fourth assignment of error is overruled.

The judgment is affirmed.
      <gcs>For otter cases see same topic and KEY-NUMBER in, all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    TEXAS & N. O. R. CO. v. COLEMAN.
    (No. 91.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 2, 1916.)
    1.- Justices oe the Peace <§=>43(2) — Jurisdiction — Amount Involved — Pleading.
    Plaintiff’s only pleading in a justice court being the citation, stating items of damages aggregating over $200, it was without jurisdiction.
    TBd. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 75, 151; Dec. Dig. <®=>
    2. Justices oe the Peace <§==>174(18) — Appeal — Jurisdiction.
    The justice court being without jurisdiction, because of the aggregate amount of damages there pleaded as sustained exceeding $200, the county court was without jurisdiction on appeal, though an amendment was there filed, reducing the claim.
    [Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. §§ 683, 684; Dec. Dig. <©=> 174(18).]
    Appeal from Tyler County Court; W. A. Johnson, Special Judge.
    Action by J. T. Coleman against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, on appeal from a justice, defendant appeals.
    Reversed and dismissed.
    Thomas & Wheat, of W.oodville, Baker, Botts, Parker & Garwood, of Houston, and Hightower, Orgain & Butler, of Beaumont, for appellant. Mooney & Shivers and S. W. Sholars, Jr., all of Woodville, for appellee.
   BROOKE, J.

There being no brief filed for the appellee in this case, we adopt the statement of the nature and result of the suit set out in appellant’s brief, as follows:

This suit originated in a justice court in Tyler county, Tex., the citation issued by the justice of peace being the only pleading of plaintiff in the suit. The citation alleged that on January 16, 1914, plaintiff delivered to the defendant company in good condition 128 sacks or 364 bushels of sweet potatoes, that were reasonably worth 75 cents per bushel; and that because of the carelessness of the defendant in failing to ventilate the car after the potatoes were delivered to it, plaintiff sustained a loss on said potatoes of $130, and that by reason of the carelessness and negligence alleged, plaintiff was forced to go to Houston, the destination of said carload of potatoes, and incurred the following expenses, viz.: $33 freight, $1 demurrage, train fare to Houston, and return, $8.50, resacking potatoes in Houston, $9.00, delivering the potatoes in Houston $10.00, five days’ labor at $2.50 per day, $12.50, which amounts were paid out by plaintiff; and that he was caused to incur said expenses by reason of the negligence of the defendant in failing to ventilate said car; and that but for said carelessness apd negligence, plaintiff would not have been put to said expense, as said potatoes were sold subject to inspection, and would have been received at the destination of said car, which was Houston, and paid for at the, above price (evidently referring to 75 cents per bushel for 364 bushels, which would have amounted to $273). It will be noted that the aggregate amount of the damages which plaintiff alleges he sustained by reason of the negligence of defendant was the sum of $204. Defendant filed written answer in the justice court, setting up the insufficiency of the citation, and other dilatory matters, which will not be referred to here; also demurred generally to plaintiff’s cause of action, and pleaded the general denial. Judgment was rendered in the justice court in favor of plaintiff in the sum of $125 and costs. Defendant, after its motion for new trial was overruled, appealed the case to the county court of Tyler county. When the case reached that tribunal, plaintiff filed what is called his first amended petition, to take the place of the citation. In this petition it was alleged that plaintiff sustained damages in the sum of $126.40, on account of the negligence of defendant in failing to properly ventilate said car, and, further, that plaintiff was put to various other items of expense mentioned in the original citation, the total damages amounting to $197.90. Defendant filed its answer in the county court, setting up certain matters which will not be referred to here, and also pleaded the general demurrer and general denial. The case was tried before a jury in the county court, and was submitted to them on special issues, eight in number. The jury having answered all the special issues, judgment was rendered in the county court on the verdict of the jury, in favor of plaintiff, and against defendant, in the sum of $124.30. Defendant filed motion for new trial, which was promptly overruled, and, having reserved certain bills of exception, defendant filed its appeal bond, and the case is now regularly before this court for review.

There is a question 'of jurisdiction that decides the fate of this case. The citation issued from the justice court, upon which this suit was founded, and which was served on the defendant, stated a cause of action for and asked the recovery of a sum of money which was in excess of the jurisdiction conferred by law upon a justice court. In other words, there is nothing in the record, beside the said citation, to show the amount sued for, and in the citation the items are set out amounting in the aggregate to $204. In the county court, it is true, a petition was filed asking for $200, and stating that as the amount of damages. However, this is unimportant, as the amount set out in the citation in the justice c'ourt is the test by which the apparent jurisdiction of the county court is determined. The identical question has been passed on by decisions of this state. Texas & Pac. Ry. Co. v. Hood, 59 Tex. Civ. App. 363, 125 S. W. 982; Pecos & N. T. Ry. Co. et al. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294.

The justice court having no jurisdiction, the county court acquired no jurisdiction.

The cause is therefore reversed and dismissed. It is so ordered.
      <§=5For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    BEAN v. HALL.
    (No. 982.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1916.)
    1. Trial <s=203(2) — Instruction — Refusal of Request Presenting Defense.
    An affirmative defense, especially if pleaded, presented by a requested instruction, and not presented in tlie main charge of the court, constitutes error, if refused, provided the facts raised the issue.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 478, 479; Dee. Dig. @=>203(2).]
    •2. Corporations <®=>81 —< Subscription to Stock- — Contract—Option—Waiver.
    The subscriber to corporate stock, who gave ■a note therefor, by executing renewals to a bank, the holder, paying interest thereon, and treating the notes as his individual debt, did not waive his option, under a collateral contract with the party who induced him to subscribe for the stock, to reject it, where, before each successive •renewal, the subscriber had the same agreement .in substance with the party who induced him to subscribe.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 266-284; Dec. Dig. <@=>81.1
    3. Corporations <®=>90(6) — Subscription to Stock — Option—Waiver—Evidence.
    In an action by a bank, on a note given for -corporate stock, against the subscriber and the corporation, indorser, the facts that the subscriber executed renewals and paid interest to the bank, treating the note as his personal debt, could be viewed by the' jury as circumstances, though not conclusive, on the question of waiver by the subscriber of his option, under collateral contract with the party who induced him to subscribe, to reject-the stock at the end of the year.
    [Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 411-416; Dec. Dig. <S=>90(6).]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Suit by the Farmers’ National Bank of Howe against J. D. Hall and the Paul Bean Grain Company, to which P. W. Bean was made a party. From a judgment for Hall against Bean on the issues between them, Bean appeals.
    Judgment affirmed.
    Wolfe & Wood, of Sherman, for appellant. Cox & Cox and McReynolds & Hay, all of Sherman, for appellee.
   HENDRICKS, J.

The appellee, J. D. Hall, as maker, in 1905, executed to the Paul Bean Grain Company, as payee, a promissory note, in the sum of $500. At the maturity of the note Hall renewed the same, and thereafter ■the grain company, by indorsement, transferred and sold the paper to the Farmers’ National Bank of Howe, Tex. This note was renewed successively, and upon September 30, 1913, the Farmers’ National Rank of Howe, Tex., originated this suit in the county court of Grayson county, to recover against 1-Iall, as maker, and the Haul Bean Grain Company, as indorser, on the last renewal, dated June 1, 1911, for the principal sum of $625.75.

Hall pleaded in said suit that he was merely an accommodation maker of the original note, and that the same was executed by him upon a subscription for five shares of ■ the capital stock of the Paul Bean Grain Company; that at the time he subscribed to the stock he had a contract with P. W. Bean that if he (Hall) would subscribe for said stock, and execute his note to the grain company for the sum of $500, if at the end of one year he did not wish to keep the stock, Bean would take the same off his hands and payoff and satisfy the note executed by him (1-Iall) for said stock; that he had exercised his option not to take the stock and had notified Bean thereof, and that at the request of Bean had executed the renewal notes from time to time upon substantially the same agreement, that Bean would take the stock off his hands and pay the renewal notes executed in lieu of the original note.

Bean was made a party to the suit, and the jury upon the issues, between Bean and Hall, found in favor of Hall against Bean, on the indemnity contract — a judgment being rendered against 1-Iall as maker, but in favor of the Paul Bean Grain Company as indorser of -said renewal note.

The appellant Bean requested the following special instruction, which was refused by the trial court:

“If you should believe from the evidence that the defendant P. W. Bean contracted or agreed with the defendant Hall that if he would subscribe to five shares of stock in the Paul Bean Grain Company, and that if he, the said Hall, did not want the same at the end of the year that he, the said Bean, would take said stock off his hands and take up the note executed thereof; but if you believe from the evidence that thereafter for a number of years the said Hall executed notes in renewal of said original note and paid interest on said notes, treating the same as his individual and personal debt, then you are instructed that he would be bound for the payment of said note, and would not be entitled to d judgment over against the defendant Bean.”

Of course we recognize the rule, elementary in this state, that an affirmative defense, especially if pleaded, presented by a requested instruction, and not presented in the main charge of the court, constitutes error if refused, provided the facts raise the issue. The special charge, as framed and requested, upon analysis of the record, we think would have been error against Hall if the same had been submitted. The litigation between Hall and Paul Bean was upon an alleged collateral contract in the nature of indemnity. The note was executed to the Paul Bean Grain Company, a corporation, and transferred to the bank.

There is no defense against the corporation as the owner of the note, in so far as this record shows, and when sold to the bank, Hall’s liability to the bank was primary and the liability of the corporation was secondary.

The proposition under this assignment is in effect that there being evidence from which the jury might 'nave concluded that the original contract (if made between Hall and Bean) was waived by Hall and that he had ratified his subscription to the stock and made the debt his personal debt, “it was the duty of the court to submit the same for the determination of the jury.” The charge, however, is that notwithstanding the contract of indemnity was made, if the jury believed that thereafter for a number of years Hall executed notes in renewal of the original note, and paid interest on the same, treating the debt as his personal debt, Bean was entitled to a verdict. Hall’s liability to the bank was an individual and personal one. He testified, though, that before each successive renewal he had the same agreement in substance with Bean as the original contract.

Under such successive contracts he had the right to execute the renewal notes, and because to the bank he might have paid interest on the notes, and the bank treated the same as his individual and personal debt (which it was in law), do not afford a conclusive proposition that, as between Hall and Bean, the former had waived his option to reject the stock and had ratified his subscription, making the note his personal debt. The element of facts embodied in the special charge would be weighed by the jury as circumstances on the question of waiver as between Hall and Bean, but not conclusive by any means. The charge excludes from the consideration of the jury the alleged additional successive contracts made with Bean testified to by Hall when the renewal notes were executed; at least, it is very suggestive in presenting the thought that in executing for the bank the renewal notes while it was the owner, and paying interest to the bank on the same, treating the same to the bank as his individual and personal debt, constitutes a peremptory reason for a verdict against him. If the jury believed that Bean continued the agreement with Hall before each renewal, the latter could manifest everything the charge suggests, and Bean would continue liable to Hall.

The above assignment is the only one we think necessary to discuss. The judgment is affirmed.
      @=>For other oases see same topic and KEY-NUMB ER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    McPHERSON v. CAMDEN FIRE INS. CO.

    (No. 974.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1916.
    On Motion for Rehearing, May 17, 1916.)
    1. Statutes @=311<>½(1) — Titi.e — Constitu TIONALITY — “SUBJECT”—“OBJECT.”
    Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b), entitled, “To prevent fire insurance companies from avoiding liability from loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance when the act breaching such provision has not contributed to bring about_ such loss,” is not violative of the constitutional provision that, “No * * * bill shall contain more than one subject, which shall be expressed in its title,” in that section 1 of the act provides that the breach of material and nontechnical warranties and provisions not contributory to loss shall be no defense or avoid the policy, since the “title” gives reasonable notice of the subject-matter or “object” of the act, and the section referring to warranties and Constitution being-germane to the title dominates or controls it,, the effect of the act being to make any warranty not contributory to the breach an immaterial provision in the policy.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 139; Dec. Dig. @=110½(1).
    For other definitions, see Words and Phrases, First and Second Series, Object; Subject.]
    2. Insurance @=308 — Warranties—Breach.
    The breach of mere technical or immaterial provision in an insurance policy which does not contribute to the loss will not defeat or forfeit a right under the policy.
    [Ed. Note. — For other cases, see Insurance,. Cent. Dig. §§ 700, 701; Dec. Dig. @==>308.]
    3. Insurance @=250(1), 302 — Avoidance ox Policy — Statute—Constitutionality.
    Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4S74b), providing that any breach or violation by the insured of any of the warranties, conditions, or provisions of a policy of fire insurance shall not render the policy void or constitute a defense for loss unless such breach or violation contributed to bring about the destruction, is constitutional.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 539; Dec. Dig. @=250(1), 302.]
    4. Insurance @=335(3) — Warranties — Breach — Iron Saxe Clause.
    Acts 33d Leg. c. 105. § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), providing that no breach or violation by the insured of any of' the warranties, conditions, or provisions shall render void the policy or constitute a defense for loss unless such breach or violation contributed to bring about the destruction, refers to those warranties to be performed before the fire, and a breach of which might contribute to the-loss and did not, and does not apply to warranties requiring the insured to keep books and accounts and deliver them to the company for examination after the fire, which breach could not contribute to or occur until after th'e loss.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. @=335(3).]
    Appeal from District Court, Dallas County; Kenneth. Foree, Judge.
    Suit by Eleetra McPherson against the Camden Fire Insurance Company. Judgment for the defendant, and plaintiff appeals.
    Affirmed.
    Seay & Seay, of Dallas, for appellant. Thompson, Knight, Baker & Harris and Will O. Thompson, all of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

The appellant, Eleetra McPherson, instituted suit against appellee, the-Camden Fire Insurance Company, on a fire insurance policy covering a stock of millinery situated in Jacksonville, Cherokee county, Tex. The policy was for $3,000.

The insurance company answered in part, setting up what is termed the record warranty clause, with other provisions of the insurance contract, and the violation of that" clause as avoiding the policy. The appellant excepted to this answer because it did not show that the breach of the warranty clause contributed to bring about the destruction of the property. The court overruled these exceptions, and assignments of error are based on the rulings of the court thereto-. The case was tried to a jury, but by agreement the jury was withdrawn, and the ease submitted to the court, who rendered conclusions of fact and law.

The court finds that the appellee company issued and delivered to the appellant its fire insurance policy for $3,000, and that the premium, $76.50, was paid. The policy was upon the goods of appellant consisting of millinery goods in the town of Jacksonville. The policy was dated the 20th day of March, 1914, and on the 17th day of April, 1914, the entire stock of merchandise was totally destroyed by fire; and at the time of its destruction .the merchandise was the property of appellant, and was of the value of $1,593.40.

The court finds that on the 30th day of April, 1914, the company denied liability under and by virtue of the policy and waived all provisions or requirements of the policy in regard to furnishing proof of loss by the company. He finds also that the appellant did not collude or conspire with appellee’s agents in obtaining the policy, and that the fire was not caused or produced by appellant. He finds that she began the business in August, 1913, and at that date opened a set of books, which consisted of a ledger, cashbook, and journal. In the ledger was entered in the regular course of business her sales on credit and the wholesale bills or purchases made. She kept no books recording her invoices, but the invoices were kept together hung on a wire suspended on the wall. In her cashbook she made entries in the same in the regular course of business, showing sales made and cash received therefor, and cash paid out. In January, 1914, between the 1st and 5th of the month, she took an itemized inventory of her stock of goods on hand in the store, described in the policy, which showed the stock at that time to be of the value of $S90. After that time her bookkeeping, as above mentioned, was continued as before to the time of the fire. The invoices and books and inventory taken by her were on hand and in her possession on the 20th of March, 1914, and at the time the policy was issued, and the books were after the issuance of the policy continued to be kept in the same manner. The fire occurred at night and when the store was not open for business. The books and records and inventory of the plaintiff were in the storehouse described in the policy sued on, and out of any iron or fireproof safe, and the same were destroyed by the fire which destroyed the stock of merchandise. The plaintiff’s books of accounts, records, and inventory of the business named in the policy were in or on a wooden table in the store, being left there by appellant, and were burned and destroyed by the fire. He finds that the appellant did not keep on or about her premises any rubbish or anything else of that character which increased the hazard or risk in any way. He sets out in his findings the record warranty clause, which is as follows:

“Record Warranty Clause.
“The following covenant is hereby made a part of this policy and a warranty upon the part of the assured:
“Section 1. The assured will take a complete inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory if such has been taken. Unless such an inventory has been taken within twelve calendar months prior to the date of this policy, and, together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days after the date of this policy, or in each and either case this entire policy shall be null and void.
“Section 2. The assured will make and prepare in the regular course of business, from and after the date of this policy, a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales, and. shipments, both for cash and on credit, or this entire policy shall be null and void.
“The term ‘complete record of business transacted,’ as used above, is meant to include in said set of books a complete record of all property which shall go into the premises and be added to the stock and of all property taken from the stock, whether by the assured or by others, even though not technically purchases or technically _ sales.
_ “Section 3. The assured will keep and preserve all inventories of stock taken during the current year, and also all those taken during the preceding calender year which are on hand when this policy is issued, and will keep and preserve all books which are then on hand showing a record of business transacted during the current calender year and the preceding calendar year.
“The assured will also keep and preserve all inventories taken after ■ the issuance of this policy and all books made and prepared after the issuance hereof showing a record of business transacted.
“The books and inventories, and each of same as called for above, shall be by the assured securely locked in a fireproof safe at night, and at all other times when the building mentioned in the policy is not actually open for business; or, failing in this, the assured shall keep such books and inventories, and each of them, in some secure place not exposed to a fire which -would destroy said building; and, in the event of a loss or damage insured against to the personal property mentioned herein, said books and inventories and each of same must be delivered by the assured to this company for examination, or the entire policy shall be null and void, and no suit or action shall be maintained hereon for any such loss.
“It is understood and agreed that this clause and the requirements thereof is one of the inducing causes of the acceptance of the risk heroin assumed and the issuance of this policy, and that the terms and requirements hereof are material to the risk, and to this insurance, and to any loss or damage happening to the property described in this policy.
“It is further agreed that the receipt of such books and inventories, or the request from them or either of them and the examination of the same, shall not be an admission of any liability under this policy, nor a waiver of and provision or condition of this policy, or of any defense of the same.”

He finds that the record warranty clause was a reasonable provision and a material provision, and further:

“I find that after the loss by fire, and after receiving notice thereof, defendant demanded of plaintiff production and presentation to it of the books of the business which had been prepared in the regular course of business showing purchases made and sales made of the stock of merchandise described in the policy and the presentation of the inventory taken of the stock of merchandise in January, 1914.
“I further find that the plaintiff did not present to the defendant set of books showing complete record of business transacted which had been kept and prepared by her in the regular course of business, showing purchases made and sales made, and did not present to the defendant the complete itemized inventory of stock which had been taken by her in January, 1914, and that she failed to do so because said books, records, and inventory, and all of the same, had been destroyed in the fire which destroyed the stock of merchandise.
“Conclusion of Law.
“I find as a conclusion of law that the plaintiff neglected and failed to comply with the record warranty clause set out in the policy; attached and sued upon, and that said provisions, conditions, stipulations, and warranty were not immaterial and technical provisions, and that as a matter of law plaintiff is not entitled to recover any sum against .the defendant except for the sum of $76.50 premiums, which was tendered into court by the defendant.”

The appellant by assignments attacked the ruling of the court upon the demurrers and the judgment of the court in rendering judgment against the appellant because the warranty clause invoked is ineffective under Acts 33d Leg. c. 105, p. 194 (Vernon’s Say les’ Ann. Civ. St. 1914, arts. 4874a, 4874b). This act is attacked joy the appellee as being unconstitutional, in that the title of the act does not warrant the interpretation under the statute that a material or nontechnical provision in the fire insurance contract breached by the assured should be no defense or avoid the policy. The title of the bill in question gives the subject of the act, which is:

“To prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance when the act breaching such provision has not contributed to bring about such loss.”

Under this act what is technical or immaterial? Shall the courts define it, or shall the Legislature? If the Legislature has defined it in the body of the act, must the court disregard that definition and declare the same in contravention of the caption, if the court thinks the provision of the insurance contract substantive or material? If so, any clause in the warranty clauses, under the usual policy, may be shown to be a reasonable provision, and it is always substantive when it is a warranty, and must be substantially complied with in order to prevent a forfeiture. What is meant by “one subject” in the constitutional provision, “No * * * bill shall contain more than one subject, which shall be expressed in its title”? The word “subject” is used in the present Constitution where “object” was used in the former.

“As used in the Constitution, the word ‘subject’ is that which is to be dominated or controlled by the particular law. * * ■ * A title or act essentially single in subject, which does not thus conceal or disguise the real purpose, is not subject to constitutional objection, although the ends intended to be reached through the subject may be many. The decisions made under former Constitutions in which the word ‘object,’ which in its ordinary signification means more clearly or the same as rend’ or ‘purpose’ than does the word ‘subject,’ was used, are conclusive of this question.” Day Land & Cattle Co., etc., v. State, 68 Tex. 526, 4 S. W. 865, 872.

This subject named in the title of the bill is “dominated or controlled” by the law enacted. The subject of the act in question was to prevent fire insurance companies from avoiding liability on their policies when the act breaching the same did not bring about the loss. The object was to prevent a forfeiture on mere technical or immaterial matters that did not contribute to the loss. If the law passed was germane to the subject, it will dominate or control the title. The provision of the policy here breached was what is known as the iron safe clause. The act was the failure to preserve and produce the books on demand of the company. This act it is not pretended contributed to the loss sustained or brought about the loss. Section 1 of the act provides that no breach or violation by the insured of any of the warranties, conditions, or provisions shall render void the policy or constitute a defense for loss unless such breach or violation contributed to bring about the destruction. That this section precluded a forfeiture if the insured breached any warranty, condition, or provision in the policy does not appear to be denied by appellees, but, as we gather from appellee’s brief, it is either unconstitutional because it is not germane to the title, or that the title limits the warranties, conditions, etc., to technical provisions; that is, that the title of the bill dominates and controls the law, and not, as the Supreme Court has said, the law enacted dominates or controls the title. This contention on the part of appellee reverses the rule established by our Supreme Court. The question therefore remaining is: Is the law germane or relevant to the subject? If so, this constitutional requirement is met. Warranties and covenants are provisions of the policy or contract of insurance, and therefore germane to the subject of the bill. We do not see how there could be deception in this title. The members of the Legislature, or other persons, were necessarily put upon notice as to what the law declares immaterial or technical. Any provision breached which does not contribute to the loss will not defeat a recovery, and the act makes it therefore immaterial as a provision in the policy. We think the title of the act fairly gives reasonable notice of the subject-matter of the statute, and therefore meets the requirements of the Constitution. Stone v. Brown, 54 Tex. 330; Austin v. McCall, 95 Tex. 565, 68 S. W. 791; Doeppenschmidt v. Railway Co., 100 Tex. 532, 101 S. W. 1080; Railway Co. v. Stoker, 102 Tex. 60, 113 S. W. 3; Snyder v. Compton, 87 Tex. 374, 28 S. W. 1062. It appears to be the contention in this case that the expression avoiding liability “under technical ¿nd immaterial provisions” in the title limits the provision to only technical or immaterial provisions. Where, the provisions are warranties or the like, they are not immaterial and therefore not subject to the act. In the Doeppenschmidt Case, supra, the Supreme Court, we think, answered this contention:

“We are of the opinion that the rule that the expression of one thing excludes another should not be applied to the title of a statute. It would be burdensome, if not intolerable, to require that the title should be as full as the act itself. The word ‘title’ implies that no such requirement exists. The purpose of the constitutional provision is merely to reasonably apprise the legislators of the contents of the bill, to the end that surprise and fraud in legislation may be prevented.”

In that case the title of the act declares its purpose to be “from permitting Johnson grass and Russian thistles from going to seed on the right of way, and fixing a penalty.” The title did not state that the owner of abutting land should have a right of action for damages sustained as was given in the body of the law. The Supreme Court held the title did not limit the right of action to the penalty fixed, but that the owner could sue for his damages under the statute, and the statute giving such right was not unconstitutional because not embraced in the subject. A mere technical or immaterial provision would not defeat or forfeit a right under the policy with or without the law. Goddard v. East Texas Fire Insurance Company, 67 Tex. 69, 1 S. W. 906, 60 Am. Rep. 1. It will not be presumed that the Legislature intended a foolish thing. The iron safe clause is no more material or binding than any other provision which is not made a warranty. Goddard Case, supra. Our courts, however, hold when this clause is made part of the policy that it is a promissory warranty, and must be substantially complied with. Brown v. Insurance Co., 89 Tex. 590, 35 S. W. 1060. It appears, as held by our courts, that the object of the clause is to facilitate the ascertainment of the extent of the loss, and is therefore reasonable, valid, and binding upon the assured. Insurance Co. v. Cummings, 78 S. W. 378, 379. Reversed, however, on another ground, 98 Tex. 115, 81 S. W. 705.

It follows, we think, under the act, that all warranties, conditions, and provisions required to be performed before the loss the breach of which by the assured which did not contribute to or produce the loss become merely technical and immaterial provisions, and cannot defeat a recovery for the loss or forfeit the right thereof under the policy. Such provisions cannot be relied upon as a defense to the action on the policy by the assured.

We believe the law to be constitutional. However, this does not necessarily defeat all warranty clauses in the policy. In a recent case by the Galveston Court (Commonwealth Insurance Co. v. Finegold, 183 S. W. 833) that court held the act constitutional, but further held the statute refers only to those warranties and provisions in policies the breach of which might have contributed to bring about the loss, but which did not, and that the act did not refer to the iron safe clause. We are not prepared to go to quite the extent the language of the court may imply, but we believe, where there are provisions in the policy which constitute a promissory warranty that are to be performed after the loss or destruction of the property, the act possibly will not reach such provision. It should be noted that the language used is “unless such, breach or violation contributed to bring about the destruction of the property.” One of the clauses in this warranty is “that, in the event of the loss or damage insured against to the personal property mentioned herein, said books and inventories and each of same must be delivered by the assured to this company for examination, or the entire policy shall be null and void, and no suit or action shall be maintained hereon for any such loss.” Now, it would be impossible to breach the above provision or violate it until after the destruction of the property, and when the appellant was called upon after the fire for the books and inventory of the property, and which were not furnished. This was a breach of a provision of the contract of insurance which was to be performed after the destruction of the property. We therefore believe that it was not the purpose of the Legislature to deprive the insurance company of a defense on the breach of a warranty which under the contract was to be performed after the destruction of the property. The language of the statute we believe precludes such an intention.

In Iowa there is a statute in some particulars like our own, and in the case of Rundell v. Anchor Fire Insurance Co. (Iowa) 101 N. W. 517, the Supreme Court of that state quotes the statute, from which we take the following:

“It is contended, however, that such a stipulation is void under the provisions of Code, § 1743, the pertinent clause of which is in the following language: ‘Any condition or stipulation in an application, policy or contract of insurance, making the policy void before the loss occurs, shall not prevent recovery thereon by the insured, if it shall be shown by the plaintiff that the failure to observe such provision or the violation thereof did not contribute to the loss.’ ”

That court held:

“On the other hand, the agreement to so keep and preserve the books and inventories, and to produce them in case action is brought for a loss under the policy, may reasonably be construed together as constituting a binding stipulation with reference to the evidence to be produced in order to entitle plaintiff to recover. Such a construction does not have the effect of rendering the policy void before the loss occurs, and therefore does not bring the condition within the statutory prohibition. We reach the conclusion that, as affecting a recovery in this action, the condition in the policy was valid, and the inability of the plaintiffs to produce the required books and inventories by reason of their failure to keep and preserve them as required by the stipulation in the policy would defeat plaintiffs’ recovery unless the breach of the condition was waived.”

It will therefore be seen that the Supreme Court of that state held that a covenant or warranty requiring the production of the books after the fire did not fall under their statute. However, this construction is based upon the wording of the statute, which refers to breach of the covenants “before the loss occurs.” It occurs to us, however, that the effect and reading of our statute is substantially the same. Of course, there could be no breach of a clause that required of the assured to present the books to the company until after the fire, and the wording of the statute clearly implies and expressly states that the violation of the condition of the provision must have contributed to the loss, implying that it refers at least to a breach of those provisions to be performed before the fire which could have produced or contributed in some particular to the fire or the destruction.

On the clause requiring the books and accounts after the fire and the failure to produce them upon demand we are inclined to believe the judgment of the trial court to be correct, and, without discussing the other questions presented in the ease, it will be affirmed.

On Motion for Rehearing.

Appellant on motion for rehearing contends that the case of Johnson v. Farmers’ Insurance Company, 126 Iowa, 565, 102 N. W. 502, in effect qualifies or overrules Rundell v. Anchor Fire Insurance Company (Iowa) 101 N. W. 517, cited by this court. The appellant in her original brief cited the Johnson Case, which was examined by us upon the original hearing. The two cases cited were decided by the Supreme Court of that state, and the latter does not refer to the former. There are portions of the iron safe clause, such as keeping a set of books in a safe and the like, which, if breached and did not cause the fire, would be eliminated by the statute. This is substantially the holding in the latter case. In the former the policy had a warranty to the effect that after the fire the assured should produce the books for examination by the company. This last clause the court held was not affected by the statute. We therefore concluded there was no conflict in the two cases, and that the court did not intend to modify its former holding. We, of course, do not consider that we have written into the statute a provision not included in it. It is provided by the statute:

. “No breach * * ⅜ shall render void * * * unless such breach * * * contributed to bring about the destruction.”

A warranty which required the production of the books after the fire could not be breached before the fire. It seems to us the clear implication of the act is that it must be such a breach of a warranty before the fire which contributed to the loss, and which could have caused the loss that the Legislature had in mind. The very construction of the sentence implies when property is destroyed liability cannot be defeated unless a breach of the contract contributed to it. It occurs to us that to say that the act further intended to make all those warranties nugatory which were required to be performed after the fire, such as to prove up the loss, prevent false swearing, provisions for adjustment, and the like, is to interpret the act to mean that all the contract is permitted to stipulate was to pay the stated value in the policy without a right to demand proof or evidence of the real amount lost. We do not believe such purpose can be read into the act.

The motion will be overruled
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    NEAL v. BARBEE.
    (No. 560.)
    (Court of Civil Appeals of Texas. El Paso.
    May 4, 1916.)
    1. Justices of the Peace <&wkey;72 — Venue-Residence oe Defendant.
    Under Rev. St. art. 2308, providing that every suit in justice court shall be commenced in the county and precinct in which defendant or one of several defendants resides, the venue of an action on an itemized account for debt was properly changed to the county of defendant’s residence, notwithstanding fraud or swindle perpetrated by defendant in another county; the venue being fixed by the civil, and not by the criminal, statutes, and article 1880, subds. 7, 9, touching venue in cases of fraud, defalcation, crime, offense, or trespass having no application.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 56, 143-145, 235; Dec. Dig. @=o72.]
    2. Justices of the Peace <&wkey;72 — Venue-Suit on Account — Evidentiary Facts.
    In suit against a partnership . on an account, the alleged fraudulent giving of a check, or any fact or circumstance tending to show an alleged partner’s interest in the business, are merely evidentiary facts going to the question of liability on the account, and do not destroy the alleged partner’s right to be sued in the county of his residence, and are not competent evidence to meet his plea of privilege.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 56, 143-145, 235; Dec. Dig. t&wkey;72.]
    3. Venue &wkey;>17 — Suit on Contract — Waiver of Tort.
    Where a party elects to sue on a contract, rather than for his damages for fraud, trespass, or conversion in relation thereto, he waives the tort as a fact fixing the venue of his suit.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 28-31; Dec. Dig. <S=^17.]
    Appeal from Nolan County Court; A. B. Yantis, Judge.
    Suit by J. S. Grisham against F. J. Neal, the International Produce Company, a partnership, and others. From an order sustaining the plea of privilege of defendant Barbee, against whom defendant Neal pleaded over, and changing the venue, defendant Neal appeals.
    Judgment and order affirmed.
    Grisham & Grisham, of Sweetwater, for appellant. Beall & Douthit and Allen Wight, all of ISweetwater, for appellees.
   WALTHALL, J.

This suit was brought by J. S. Grisham in the justice of the peace court, precinct No. 1, Nolan county, upon an account purchased by him of E. J. Neal, who guaranteed its payment to Grisham. Neal was made a party defendant with the International Produce Company, alleged to be a partnership composed of W. W. Barbee and S. S. Eckston. It seems that no service of citation was had on Eckston and he was not a party to the suit. Barbee alone was served. Neal admitted his liability to Grisham and pleaded over against Barbee. Barbee filed a verified plea of privilege to be sued in the precinct of his residence in El Paso county. The plea was contested in the justice of the peace court both by Grisham and Neal. In the justice court Barbee’s plea was overruled,and judgment was rendered in favor of Grisham against Neal and Barbee on an itemized account for $186 and costs, and in favor of Neal on his cross-action against Barbee. Pending the appeal, Neal settled with Grish-am for tire amount of the judgment obtained in the justice court. Neal predicated his right to prosecute the suit in Nolan county as successor to all of the rights of Grisham, having purchased pendente lite, and on the further grounds of fraud, conversion, and a swindle perpetrated upon him in Nolan county by Barbee, acting through his agent Eek-ston, manager of the International Produce Company, by delivering through the mails a bogus or fraudulent check on the bank of which he was cashier, and an alleged conspiracy between Barbee and Eckston, alleged to be partners in the said company.

In the county court, Barbee’s plea of privilege to be siued in El Paso county was heard and sustained and the venue changed to El Paso county. Prom this order Neal alone appeals.

This case comes to this court alone on the order of the county court of Nolan county, sustaining Barbee’s plea of privilege to be sued in the precinct of his residence in El Paso county, and changing the venue of the same from Nolan to El Paso county. The plea of privilege was tried before the court. Findings of fact and conclusions of law by the court were made and filed. There is no controversy as to appellee’s residence being in El Paso county.

Appellant’s first assignment of error consists of a statement of what occurred, the issuance and service of citation, the filing of the plea of privilege, Neal’s cross-action, and the grounds for his cross-action, and a statement that the issues tendered in Neal’s cross-action were abundantly supported by the evidence, and not denied by Barbee, but the assignment does not specify any ground of error relied on. The two propositions under the first assignment are: First, that the venue of a criminal case of swindle lies in the county where the property was acquired, and not in the county in which the false’ representations were made; second, that the offense of conspiracy may be prosecuted either where the conspiracy was entered into or where it was executed.

The suit is on an itemized account for debt and not a prosecution for swindling or conspiracy, nor for damages growing out of either, nor for actionable fraud committed in Nolan county. Article 2308, Revised Statutes, provides:

“Every suit in the court of a justice of the peace shall be commenced in the county and precinct in which the defendant, or one or more of the several defendants, resides, except in the following cases and such other cases as are or may be provided by law.”

And neither swindling nor conspiracy are among the exceptions. And if they were among the exceptions to the article, it* would be a sufficient answer that the suit is on the account for the debt, and is not for damages for actionable fraud, trespass, conversion, nor a prosecution for the crime of swindling or a conspiracy to commit a crime.

The venue is fixed by the civil, and not by the criminal, statutes, as the cause of action is civil, and not criminal. Had the basis or foundation of the suit been for a damage or loss sustained by actionable fraud or conversion or trespass, the rule for venue sought to be invoked by appellant might find some application in a suit originally filed in the county court. But on a suit on an itemized account for debt, the subdivisions 7 and 9 of article 1839, Revised Statutes, have no such application. The assignment is overruled.

Appellant’s second assignment asserts that the testimony shows that Barbee and Eckston were partners under the firm name of International Produce Company, and that the allegation of partnership was not denied, that Eckston gave a check to plaintiff Neal for the sum of $125 in payment of plaintiff’s produce and delivered same in Nolan county, and that the check was not paid and thus perpetrated a fraud, and makes the proposition under the assignment that the giving of the check under the circumstances and refusal to pay same constitute a swindle in Nolan county on the part of the maker of the check. This assignment points out certain facts alleged to have been shown on the trial, but does not specify any ground of error relied on. The two propositions under the assignment are: First, that the delivery by the maker of a fraudulent cheek on faith of which a vendor parts with goods constitutes a swindle on the part of the maker of such check; second, venue lies where a fraud, swindle, trespass, or conversion is committed. But the suit was not on the cheek nor for actionable fraud, nor is it for tlie fraud, trespass, or conversion on tlie giving of the check. Under the issue that Barbee was a partner with Eckston and as such was- connected with the purchase of the produce going to make up the -items of the account constituting the basis of the suit and gave the check or committed acts of fraud, trespass, or conversion, or was guilty of the crime of swindling, it might be that the giving of the check or his acts constituting fraud, trespass, or conversion, like any other fact or circumstance tending to show his interest in the firm or partnership, or his liability on the account could be shown as an evidentiary fact, but in the suit on the account the giving of the check or any other fact or circumstance tending to show his interest in the business with Eckston would be but evidentiary facts going to the question of his liability on the account, but could not serve to destroy his right to be sued in the county of his residence, and would not be competent evidence on his plea.

Appellant relies on Ward v. Odem, 153 S. W. 634, as sustaining his petition. In stating that case, Judge Ely says:

“This is a suit instituted by appellee against appellant to recover damages for the conversion of certain parts of a gasoline traction engine.”

The suit was not for debt on an account for the value of the several parts of the engine. We have reviewed the cases referred to by appellant. They are invariably suits for damages for some fraud, trespass, or conversion, and for which the venue is made an exception by the statute to the rule that no person shall be sued out of the county of his residence. Where, however, a party elects to sue on his contract rather than for his damages for fraud, trespass, or conversion, he waives the fraud, trespass, or conversion as a fact fixing the venue of his suit.

We think we need not pass upon appellee’s cross-assignments, as the matters complained of may not occur upon another trial. The county court was not in error in sustaining appellee’s plea of privilege to be sued in the county of his residence.

The judgment and order are affirmed.
      <&xoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    LEE et al. v. CLAY ROBINSON & CO. et al.

    (No. 8356.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 8, 1916.
    On Motion for Rehearing, May 13, 1916.)
    1. Chattel Mortgages &wkey;>243 — Release— CONSIDERATION.
    Where the representative of the mortgagee of cattle agreed to a sale and resale of a portion of the cattle, and to a release of tlie mortgage if a stated portion of tlie proceeds of a sale in the market by the second buyer was turned over to the mortgagee, a payment of earnest money to the mortgagor by the first buyer, without the knowledge and not for the benefit of the mortgagee, was not consideration for the release, since to constitute consideration the money must have been paid to or for the mortgagee at or before the time of the agreement to release the mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 508; Dec. Dig. &wkey;i243.]
    2. Chattel Mortgages i&wkey;282 — Trial-Findings Inconsistent with Yerdict.
    In an action to foreclose a chattel mortgage, an erroneous finding that the consideration for an alleged release of the mortgage was a previous payment of earnest money to the mortgagor under an agreement of sale, necessarily excluded a conclusion that there was other consideration, and the specific finding limiting and controlling the general rendered the general finding that there was consideration a mere legal conclusion, which it was the duty of the court to reject.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 568; Dec. Dig. <&wkey;>282.]
    3. Appeal and Error <&wkey;719(7) — Review— Assignment of Error — Necessity.
    In an action to foreclose a chattel mortgage, there being no assignment of error preserving the defendants’ objection to the couit's action, in submitting an issue of a consideration for an alleged release of a mortgage, in soliciting the jury’s answer to the question, “What was the consideration?” it cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2975, 3490; Dec. Dig. <&wkey;> 719(7).]
    4. Appeal and Error <&wkey;173(12) — Review — Failure to Request Finding.
    In an action to foreclose a chattel mortgage, there being no plea presented or request for a finding that the defendants acted upon the agreement of the plaintiff’s agent to release the mortgage upon the payment of a portion of the proceeds of a sale in the market in such a way as to make it inequitable for the plaintiff to insist upon full payment of the mortgage, the question will not be considered on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1109, 1113; Dec. Dig. <@=3 173(12); Limitation of Actions, Cent. Dig. § 737.]
    5. Appeal and Error <@=3832(1) — Rehearing —Inaccuracy in Original Conclusion.
    Where a suit to foreclose a chattel mortgage on cattle was instituted before the cattle were paid for, though not until the day after the sale, an inaccuracy in the original conclusion on appeal stating that it was instituted shortly before the sale was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. &wkey; 832(1).]
    Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.
    Action by Clay Robinson & Co. and others against W. H. Lee and others. Judgment for the plaintiffs, and defendants appeal.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, and James C. Wilson, all of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short and A. B. Curtis, all of Ft. Worth, for appellees.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

So far as it is necessary to state, this suit was filed by Clay Robinson & Co., a Texas corporation, against W. E. Barrow, W. S. Barrow, Lee Brothers, a partnership composed of W. H. and John Lee, Geo. IT. Loving, and W. W. Barron. The suit was for recovery upon two promissory notes executed by W. E. Barrow for the sum of $16,-170.47 and $1,602.82, respectively, maturing June 1, 1914, and to foreclose a mortgage lien given to secure said notes, on certain cattle described in the mortgage and in the plaintiff’s petition. Plaintiff ;also prayed for an injunction and for the appointment of a receiver. The legal controversy arose out of the following state of facts:

The execution of the notes and mortgage as alleged is not controverted; the mortgage covered about 700 head of steer cattle located in Stonewall and Nolan counties, and there appears to be no dispute but that the mortgage was properly registered. It appears that of the mortgaged cattle some 160 head had been sold prior to the controversy in the present case, and the proceeds applied to the plaintiff’s indebtedness reducing it to the sum of $12,567.86. Therefore, in June, 1914, W. S. Barrow, a son of W. E. Barrow, and acting for him, sold 276 head of the mortgaged cattle to the defendants W. H. and John Lee, for the sum of $40 per head, with an agreed cut back of 10 per cent., for which the I.iees were to pay $37.50. At the time of this sale one of the Lees paid to W. S. Barrow the sum of' $150 as earnest money to be applied as part of the purchase money when the cattle were delivered. A little later and before delivery, said Lees in turn sold the cattle to Geo. F. Loving and W. W. Barron, who then and there paid to the Lees $500 as earnest money, which also was later to be applied as part of the purchase price. These parties agreed to give $42 per head for the cattle. Thereafter, W. S. Barrow, continuing to act for his father, W. E. Barrow, assisted by the Lees, gathered the 276 head of cattle involved in this controversy, and they were driven to the delivering point where W. S. Barrow delivered them to the Lees, and the Lees in turn delivered them to Loving and Barron, all consisting, substantially, but a single transaction in the way of delivery. It appears that some time after the sales to the Lees and to Loving and Barron mentioned, and before delivery of the cattle, it was discovered that the plaintiff in this suit, Olay Robinson & Co., held the mortgage here-inbefore mentioned, and about the time of the delivery one I)e Forrest, acting for and in the interest of the plaintiff company, appeared and at the times of the delivery, as shown by the jury’s findings, it was agreed that the cattle might be shipped by Loving and Barron and sold in the Ft. Worth market, and that if out of the proceeds of such sale at Ft. Worth, the $40 per head and the $37.-50 per head for the “cut back,” agreed by the Lees to be paid for the cattle, should be turned over to the plaintiff, that then the plaintiff company would release its mortgage. The shipment, accordingly, took place as contemplated, and the cattle were sold on the Ft.- Worth market.

It appears, however, that shortly before the sale of the cattle on the Ft. Worth market, the plaintiff company instituted its suit and secured the appointment of a receiver, to whom was paid the entire proceeds arising out of the final sale mentioned, and that of such proceeds the receiver paid to the plaintiff company the sum of $10,820, thus reducing the plaintiff’s debt at the time of the trial, principal, interest, arid attorney’s fees, to the sum of $3,422.55. There seems to be no question made of any of these proceedings. The real contest arises over the question of whether such payment by the receiver in accordance with the agreement made by De Forrest should, as between the parties, satisfy the plaintiff’s mortgage, thus leaving the balance of the proceeds in the Hands of the receiver available to the Lees and to Loving and Barron. The case was submitted upon special issues, and upon the jury’s answers thereto both plaintiff and the defendants moved the court for judgment. The court granted the prayer of plaintiff’s motion, entering an appropriation judgment in its favor, and the defendants have appealed.

We deem it unnecessary to set out at length the issues submitted and the jury’s findings thereon. We think it sufficient to say that the findings are such as to have required the judgment as prayed for by the defendants, unless the jury’s finding on the first issue justifies the action of the court in rendering judgment as it did. By said first issue the jury were requested to find “if there was any consideration to release the cattle described in the pleadings, and, if so, what was such consideration?” To which the jury answered, “Yes; $150 earnest money given by Lee to Barrow.” The pleadings presented the issue, and no attack is made thereon, save as to its legal effect. Appellees’ insistence is that the agreement to release the mortgage as pleaded by the defendants was without consideration, and hence inoperative, and that the payment of the $150 as earnest money by Lee to W. S. Barrow, as recited in the jury’s findings, was no such consideration as would support the release. Appellants insist, however, that the court should not have submitted the question of what constituted the consideration, if any, and that, hence, that part of the findings specifying that the consideration for the agreement to release was the $150 earnest money given by Lee to Barrow should be rejected or disregarded, and the whole finding construed merely as a finding that there was a consideration for the agreement to release.

We are of the opinion that appellees’ contention, as above stated, must be sustained, and that all assignments of error attacking the action of the court in rendering a judgment for Olay Robinson & Co. upon the verdict as returned must be overruled. That before the appellee company would be bound by the terms of De Forrest’s agreement to release the mortgage, it must appear that a good and sufficient consideration therefor was shown, cannot be disputed under the authorities. Indeed, appellants make no such contention, and it seems to us evident that the jury’s finding that there was a consideration amounts to no more under the circumstances than a mere finding or conclusion of law on the jury’s part. There is no finding that the $150 paid by Lee to W. S. Barrow was ever paid to or received by the plaintiff company. Indeed, it is undisputed in the evidence that it was not so received by the plaintiff company. The $150 so paid W. S. Barrow was paid before the Lees, or Loving, or Barron had knowledge of the mortgage in question, and we fail to see how it can be said that tins payment to W. S. Barrow could in any way operate as a consideration moving to Clay Robinson & Co. The finding of the jury of the specific consideration in its nature excludes an inference that there was any other consideration, and appellants have suggested no sufficient consideration that could have, or did exist. There was no plea on the part of the defendants in the action that by reason of the De Eorrest agreement to release, they did, or failed to do, anything that they otherwise would not have done, and that, therefore, Clay Robinson & Co. were es-topped from repudiating the agreement by De Forrest. Nor do we find any assignment of error to the action of the court in soliciting the jury’s answer to the question of “What was the consideration?” The action of the court in so submitting the issue must therefore be held under well-settled rules to have been approved. So that, on the whole, as stated, we think the court committed no error in rendering judgment for the plaintiff company upon the special findings of the jury considered as a whole.

What we have said we think sufficiently disposes of the ease, and it is accordingly ordered that all assignments of error be overruled, and the judgment affirmed.

On Motion for Rehearing.

Appellants with great insistence urge that we erred in our original conclusions. It is earnestly contended that we are in conflict with the cases holding to the effect that the verdict alone must constitute the basis of the judgment, to wit, with the following cases: Scott v. Farmers’ & Merchants’ National Bank, 66 S. W. 493; Crawford v. Wellington Railroad Committee, 174 S. W. 1008; Weinstein v. Acme Laundry, 166 S. W. 126; Fant v. Sullivan, 152 S. W. 515. But not so, as we think. We did not resort to the evidence for the purpose of determining that there was no consideration in fact for the agreement of ap-pellee’s agent to release its mortgage upon payment of a less sum'than was due. This was the conclusion we drew from the special finding itself. The finding was that there was consideration, but that it was the “$150 earnest money given by Lee to Barrow.” It thus appears that the verdict on its face shows that $150 was paid to Barrow, and not to or for appellee, and that it was paid as earnest money on a purchase of cattle, and not as a consideration for the agreement made by De Forrest. We considered the undisputed evidence that such payment was made before De Forrest appeared upon the scene of action as supporting, and not for the purpose of destroying or avoiding, the plain reading of the verdict. That there may have been some subsequent negotiations, as is now called to our attention, by another agent of appellee, to the effect that appellee in an indirect way should receive credit for this $150, cannot alter the effect of the verdict and the undisputed facts. To constitute a consideration the money must have been paid to or for appellee at or before the time of the agreement to release the mortgage. Otherwise the agreement was a nudum pactum. See 9 Oyc. 358, par. 14; 1 Elliott on Contracts, §§ 195, 204, 208. The specific finding of what the consideration was necessarily excluded a conclusion that there was some other consideration than that stated in the verdict, and rendered the general finding of the consideration as recited in the verdict a mere legal conclusion that it was our duty to reject; it being thought that the specific finding both limited and controlled the general. So, it is thus seen, in our original conclusion we endeavored to follow and not to depart from the rule announced in the cases hereinbefore referred to.

But it is further contended that the special finding of that which constituted the consideration should be wholly disregarded, and thus give effect to the general finding on that subject, but we know of no authority for our doing so. Appellant at the time of the return of the verdict made no exception to its form, or, if so, no assignment of error has been presented which calls upon us to review the action of the court in receiving it as written. On the contrary, appellant, apparently at least, accepted the verdict and moved the court below for a judgment upon it as it stood, and it is to the failure to do this that error was assigned before this court. It is true, as appellants now urgently contend, that they objected to the form of the issue when it was presented by the court to the jury, then contending, as now, that it was improper to call for a finding as to the nature of the consideration. But while the record shows that such objection was made, the objection was not preserved by an assignment of error so that we can review the action of the trial c’ourt in this particular.

Our attention has also been called to circumstances appearing in the evidence which might, under proper allegations, have constituted a sufficient basis for a finding that appellants, in the shipment of the cattle, acted upon De Forrest’s agreement to release the mortgage in such way and under such circumstances as to make it inequitable on appellee’s part to thereafter insist upon full payment of its mortgage. But, as pointed out in our original conclusions, no plea to this effect was presented, nor was there any request below for a finding on such issue, so that we fail to see how we can now give effect to the circumstances referred to.

Our attention has also been called to an inaccuracy of statement in our original conclusions. We there, among other things, said that this suit was instituted “shortly before the sale 'of the cattle in question on the Ft. Worth market.” This was a mistaken inference on our part, for that the record, as is now for the first time pointed out, shows that the suit was instituted on the day following the sale of the cattle ton the Ft. Worth market. The inaccuracy, however, we regard as wholly immaterial, for it is undisputed in the record that, while the suit was instituted after the sale of the cattle, it was so instituted before the cattle were paid for, and the proceeds of the sale were collected by the receiver appointed by the court and by the receiver paid over in the manner and amount as stated in our original conclusions.

On the whole we conclude, after a consideration of the very able and insistent argument by counsel for appellants, that the motion for rehearing must be overruled; and it is so ordered.
      <@ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes