author: HIGGINS, J..

text:
    CITY OF SWEETWATER et al. v. BIARD DEVELOPMENT CO.
    (No. 860.)
    (Court of Civil Appeals of Texas. El Paso.
    May 9, 1918.)
    1. Municipal Corporations <@=»979 — Taxes —Enjoining Collection — Arbitrary Discrimination.
    A taxpayer is entitled to injunction against collection of tax illegal because of arbitrary discrimination against him.
    2. Municipal Corporations <&wkey;979 — Taxes —Arbitrary Discrimination — Evidence.
    Evidence, in suit to enjoin collection of tax, that the rule of the board of equalization was to value property at 75 per cent, of its market or intrinsic value, but that they placed on plaintiff’s property a value grossly in excess thereof is sufficient, at least, to raise an issue of arbitrary discrimination.
    3. Trial <&wkey;234(4) — Instructions—Special Issues.
    AVhere a case is submitted on special issues, general instructions to find for a party, if certain facts be found, are improper.
    4. Appeal and Error &wkey;>732 — Assignments op Error — Conformity to Motion for New Trial.
    Assignments of error not being true copies of paragraphs of the motion for new trial, as required by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612) will not be considered.
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    ; Suit by the Biard Development Company against the City of Sweetwater and others. Judgment for plaintiff, and defendants appeal.
    Affirmed. ,
    Geo. T. Wilson and A. S. Mauzey, both of Sweetwater, for appellants. Jno. J. Ford, of Sweetwater, for appellee.
   Statement of Case.

HIGGINS, J..

This suit was filed by appel-lee seeking an injunction to restrain the city of Sweetwater, and certain of its officers, from collecting certain taxes. It was alleged that the imposition of said taxes was an arbitrary and illegal discrimination against ap-pellee by said city, acting through its hoard of equalization.

Appellee averred that on January 1, 1916, it was the owner of certain lots in the Snell Park addition to the city of Sweetwater, and through its proper officer made a regular rendition of said lots for taxation for said year, and rendered same at their fair, reasonable, and intrinsic value; the same having no market value; that afterwards the board of equalization of the city arbitrarily discriminated against plaintiff and raised the valuation of said lots from $11,010 as rendered to $18,326.

It was further averred that the board of equalization equalized and assessed all property in Sweetwater on tbe basis of or less than its cash market value, where it had a market value, and where it had no such value, then it was assessed at or less than its reasonable intrinsic value; that the action of the board of equalization in fixing and placing the value of plaintiff’s property far in excess of its reasonable, fair, and intrinsic value was an illegal and arbitrary discrimi nation against plaintiff, and a legal fraud upon it, and was not in fact an equalization of plaintiff’s property with other property in the city, but was an intentional and arbitrary assessment of plaintiff’s property at a value of aoout two-fifths above the proportionate value fixed on other property, in the city, in violation of article 8, § 1, and article 1, § 19, of the Constitution of Texas and section 1 of the fourteenth Amendment to the federal Constitution.

The case was submitted to a jury upon special issues. The facts found are as follows: That the sum of $11,010 at which plaintiff rendered its lots was not the full, true cash value thereof on January 1, 1910; that the true, full cash value thereof at said time was $13,743.75; -that the valuation of $18,325 placed thereon for said year by the board of equalization was grossly excessive; that said board, in passing upon and raising the value of plaintiff's lots, placed a per cent, value thereon grossly in excess of 80 per cent, of their true cash value, and that the raise in the valuation of plaintiff’s lots was so grossly excessive as to work a fraud on plaintiff in its property rights.

In addition to the facts found by the jury it is shown by the undisputed evidence that the board of equalization in equalizing values assessed property upon the basis of 75 per cent, of its market value, where it had such value, and, if it had no such value, then upon the basis of 75 per cent, of its real and intrinsic value.

Opinion. •

The refusal of a peremptory instruction in defendant’s favor is assigned as error. The right to an injunction to restrain the collection of a tax illegal by virtue of an arbitrary discrimination against the taxpayer in property valuations is well settled. The question has been often before the courts of this state, and it will serve no purpose to review the authorities. The right has been recognized and enforced in the following cases: Lively v. Railway Co., 102 Tex. 545, 120 S. W. 852; Brown v. Bank, 175 S. W. 1122; Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71; Linz v. City of Sherman, 62 S. W. 71.

Appellant does not question the correctness of the rule announced, but contends there is no evidence of an arbitrary discrimination against appellee by the board of equalization in the value placed on appellee’s property by said board. In this view we cannot concur. It is admitted that in equalizing values, the board valued the real estate in the city upon the basis of 75 per cent, of its market or intrinsic value, as the case might be. But the jury has found, and the evidence supports the finding, that the board placed a valuation upon appellee’s property that was grossly in excess of its true cash value and grossly in excess of 80 per cent, of its value. This evidence alone is sufficient to support a finding that the valuation made by the board was an arbitrary discrimination against appellee rather than the exercise o£ an honest judgment as to such values. Linz v. City of Sherman, and Johnson v. Holland, supra. In any event; it was sufficient to raise an issue as to such a discrimination. There was therefore no error in refusing the peremptory instruction.

The refusal of the special charges complained of in the second and third assignments present no error. These are charges instructing the jury to find for defendants, if they found certain facts to be true. In cases submitted on special issues, it is obvious that general instructions to find for or against the parties are improper. It has been repeatedly so held. See Moore v. Coleman, 195 S. W. 212, and cases there cited in opinion on rehearing.

We decline to consider the remaining assignments for the reason that they are not true copies of any of the paragraphs of the motion for new trial. Notwithstanding the plain and simple provisions of chapter 136, Acts of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612),.the appellants filed assignments of error the same as if there were no such law as that mentioned. It is the assignments so subsequently filed that apipellants present in their brief. The first three we have considered because they are virtually the same in form and substance as the corresponding paragraphs of the motion for new trial. The remaining assignments constitute a reconstruction of the corresponding paragraphs of the motion, and it is the uniform rule of this court to decline to consider such assignments. Riggs v. Baleman, 198 S. W. 813; Edwards v. Youngblood, 160 S. W. 288; Dees v. Thompson, 166 S. W. 56; Watson v. Patrick, 174 S. W. 632.

We are at a loss to understand why counsel should persist in refusing to observe the plain provisions of the above quoted law which says that the assignments in the motion for new trial shall constitute the assignments on appeal. This court has never seen any. reason why it should permit counsel to evade this law. On the contrary, the reasons are obvious why it should be enforced. It is nevertheless a fact that briefs are constantly being filed in this court which take no notice whatever of the law. It is an unfortunate thing that litigants should lose important fights, because their lawyers refuse to observe plain statutory provisions, but it seems there is no way to prevent it unless the courts simply treat such provisions as dead letters. We do not think the courts are at liberty to do so, and that it is our duty to enforce legislative provisions.

It is always a matter of regret with this court to refuse consideration of assignments other than upon their merits. But when the statute mentioned is disregarded, we always do it, and we take this occasion to again express the hope that lawyers practising before this court will observe the statute, so that the rights of their clients may be considered upon their merits.

Affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      ©ssFor other cases see same topic and KEY-NUMBER in ail Key-NumJ>ered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    TURRENTINE et ux. v. DOERING.
    (No. 359.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 2, 1918.
    Rehearing Denied May 22, 1918. Additional Findings June 5, 1918.)
    1. Trial &wkey;>140(2) — Jury Question — Testimony oe Party. •
    Where defendants filed an admission of plaintiff’s cause of action, except as it might be defeated by facts proven by defendants, and where-such facts could not be proven without the testimony of defendants themselves, it was not error to refuse a peremptory instruction for defendants, since the court and jury had the right to disregard their testimony.
    2. Homestead <&wkey;lSl% — Abandonment—Intention — Question eob Jury.
    Intention of mortgagors, with reference to abandonment as a homestead of lot mortgaged, held a question for the jury.
    3. Homestead &wkey;> 177(2) — Estobbel to Claim —Rebeesentations.
    Where plaintiff, in reliance on written and verbal statements of defendants that lot No. 11 alone was their homestead, made a loan secured by a mortgage on lot No. 12, defendants cannot defeat the loan by setting up that lot No. 12 was in fact their homestead, although there was no building thereon, and defendants were living elsewhere when the loan was made.
    4. Homestead &wkey;>177(2) — Estobbel to Claim —Rebeesentations,
    Where defendants were not occupying lots Nos. 11 and 12, or in such physical possession thereof as would give notice of the homestead character, plaintiff could safely, in making a loan to defendants secured by a mortgage on lot No. 12, rely on their statements as to their intention to make lot No. 11 their solo homestead.
    5. Abbeal and Eeeoe &wkey;?994(2) — Review— Credibility of Witnesses — Verdict.
    Where defendants had to rely upon their own testimony to establish their defense, the jury was entitled to pass upon the weight and value of the testimony, and the court on appeal will not disturb their verdict.
    6. Abbeal and Error <&wkey;1068(2) — Instructions — Harmless Error.
    Where jury found that plaintiff in making loan believed and acted upon defendants’ statements in written designation that lot mortgaged to secure loan was not a homestead, instructing in response to request of jury that a designation of a homestead is a legal procedure, was without prejudice, it being immaterial whether designation was a subterfuge.
    Appeal from District Court, Harris County; Win. Masterson, Judge.
    Action by C. A. Doering against R. E. Tur-rentine and wife. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Cole & Cole, of Houston, for appellants. Stewarts, of Houston, for appellee.
   BROOKE, J.

Appellee’s cause of action was based on a promissory note for $1,000, secured by a mortgage on lot 12. Lots 11 and 12 were adjoining, and appellants had, about six weeks prior to the execution of the mortgage, lived on lot 11, and had a garden on lot No. 12. Their house burned, and they removed to another neighborhood. They decided to sell said lots, and went to Mr. Fuchs for that purpose, and on inquiry he was told by Fuchs that, while there was no sale for them, they might get a loan. Fuchs produced appellee, who made the loan on the representation in .writing by appellants that lot No. 12 was not their homestead. Appellee believed and relied on the truth of said statement and designation or would not have made the loan. There was no evidence that any improvements had been made on lot 12 after the fire and prior to the mortgage. All the evidence indicates that any improvements made on said lots after the first removal were made after the execution of the mortgage. Appellants were not living on either of lots 11 and 12 at the time the mortgage was given. The written statement relied on by appellee was as follows:

“The State of Texas, County of Harris.
“Know all men by these presents that we, R. ■E. Turrentine and Emma F. Turrentine, husband and wife, both of Harris county, Texas, being the owners of the hereinafter described tract or parcel of land, in Harris county, Texas, and b'eing desirous of establishing and setting aside certain property as and for a homestead, and as constituting all the property and premises which we can claim as exempt under the homestead laws of the state of Texas, do hereby designate the hereinafter described land and premises as and for such homestead, hereby signifying our intention to use such property as a homestead, and hereby renouncing all homestead rights in and to all other property owned by us, and not herein expressly designated as such homestead.
“The property herein designated as such homestead is described as follows, to wit: Lot No. eleven (11) in block two hundred and ninety-one (291), in that certain tract or parcel of land regularly .platted and recorded and known as Houston Heights, an addition near the city of Houston, on the north side of Buffalo bayou, in Harris county, Texas.
“In witness whereof we have hereunto subscribed our names at Houston, Texas, this 28th day of October, A. D. 1914.”

This instrument was duly signed and acknowledged by appellant and his wife.

On the trial of the cause appellee’s cause of action was admitted by appellants, except in so far as it might be defeated by matters pleaded by appellants. Appellants contended that the mortgage was void, because, notwithstanding the fact that they were living elsewhere, and had, for the purpose of inducing appellee to make the loan, designated lot No. 11 only as their homestead, and that ap-pellee believed and relied on same, that the law made lot No. 12 their homestead.

Appellee contended that after the fire appellants could claim both lots as their homestead if they desired to do so, or they could abandon both or one. It had then become simply a matter of their intention or. election, and the public must judge of such intention by the best evidence obtainable, to wit, their statements; that as long as they were not occupying it or in such physical possession as would notify a purchaser of the homestead character of their intentions, if any, the purchaser could safely rely on their statements as to their intentions to make the property their homestead or continue the same as their homestead or not; that at the time of the loan there was no such physical possession as would notify the lender of their intention to remove to same, or continue to claim same as their homestead, in view of the fact that they were trying to sell the whole, and made statements that lot No. 12 was not their homestead, and no improvements were made between the time of the fire and the making of the loan; that, under the physical conditions shown, the lender had the right to believe and rely on the state-meats oí the appellee to the effect that lot 12 was not their homestead, and he did believe and rely on same.

The cause was submitted to the jury on special issues as follows:

“Special Issue No. 1: At the time the plaintiff made the loan to the defendants herein, was lots 11 and 12, in block 291, Houston Heights, combined, the homestead of said defendants, or was lot 11 in said block the homestead of said défendants?
“You will let your answer be either ‘Lots 11 and 12, in block 291, Houston Heights, combined, was the homestead of defendants at said time,’ or ‘Lot No. 11, in block 291, Houston Heights, was the homestead at said time,’ as you may find the facts to be.
“If in answer to the foregoing issue you state that lot No. 11 only, in block 291, Houston Heights, was the homestead of the defendants at the time of the loan to them, then you need not answer the succeeding one; but if in answer to said issue you state that lots 11 and 12, in block 291, combined, Houston Heights, was the homestead of defendants at said time, then state in answer to said—
“Special Issue No. 2: Had defendants abandoned lot 12 as part of their said homestead at the time the loan was made to them by the plaintiff ?
“You will let your answer be either ‘They had’ or ‘They had not,’ as you may find the facts to be.
“Special Issue No. 3: Did the plaintiff herein believe the statements made by the defendants in their written designation of lot No. 11-, in block 291, Houston Heights, as their homestead, and rely on the truth of same in making the loan to the defendants?
“You will answer same either ‘He did’ or ‘He did not,’ as you may find the facts to be.
“Special Issue No. 4: Would plaintiff have made said loan to defendants had he not believed and relied upon the truth of said statement?
“You will let your answer be either ‘He would’ or ‘He would not,’ as you may find the facts to be.
“Special Issue No. 5: Would the plaintiff have made said loan to the defendants if the Stewart Title & Guaranty Company had not executed its guaranty with reference to this title?
“You will let your answer be ‘He would’ or ‘He would not,’ as you may find the facts to be.
“In connection with the foregoing issues, and especially the one' relating to abandonment, you are instructed that the going away from a homestead by the family does not of itself constitute an abandonment thereof, unless same be coupled with an intention upon their part not to return to live upon same or to use it in the future as a home.”

To special issue No. 1 the jury answered, “Lot 11.”

To special issue No. 3 they answered, “He didto No. 4, “He would notand to No. 5, “He would.”

The following special issue requested by defendants was submitted to the jury, to wit;

“At and prior to the time C. A. Doering accepted and received the notes and deed of trust sued on herein, had he used such diligence as an ordinarily careful and prudent person would have used, under the same or similar circumstances, to ascertain whether or not the prem.-ises described in said deed of trust were at the time of the execution of said notes and deed of trust, and at the time same were received and accepted by the said C. A. Doering, the homestead of the defendants (if .you should find that said premises at said times was the homestead, or a part of the homestead, of the defendants and claimed by them as such)? Answer ‘Yes’ or ‘No.’ ”

To this question the jury answered, “Yes.”

Plaintiff filed motion to enter judgment in its favor. Defendants filed motion to set aside the verdict and for new trial. Defendants obtained leave to file an amended motion to set aside the verdict and for new trial on April 20, 1917. Plaintiff’s motion to enter judgment was granted by the court. The motion to set aside the verdict and for new trial was overruled. The case is now before this court, by proper transfer, for review.

The first assignment of error assails the action of the trial court in overruling and in not granting their motion for a peremptory instruction, “because, under the law and the undisputed evidence, lot No. 12, on which foreclosure was sought herein, was the homestead of these defendants; the reasons for, said motion being more fully specified in defendants’ bill of exception No. 1.”

As appellants, in order to have the opening and closing of the case, filed an admission of appellee’s cause of action, except as it might be defeated by facts proven by appellants, and as such allegations could not be proven without testimony of the two appellants, and as the court and jury had the right to disregard their testimony, the court did not err in refusing a peremptory instruction for appellants based on appellants’ testimony. We have examined minutely the statement of facts in this case, and the evidence submitted on both sides, and we are of opinion that the question of abandonment is a matter to be submitted to the jury; that the question of their intention to occupy the premises as a homestead is also a question to be submitted to the jury; and, viewing the whole case, we are not able to say that the court was in error in refusing a peremptory instruction. The assignment is therefore overruled.

The second assignment of error is as follows:

“The appellants (defendants below) asserted in their motion for a new trial, as one of the reasons for setting aside the verdict of the jury and the judgment of the court rendered thereon, the following: ‘The jury’s answer to special issue No. 1, propounded by the court, is wholly unsupported by the evidence, which said issue reads as follows: “At the time the plaintiff made the loan to the defendants herein were lots 11 and 12, in block 291, Houston Heights, combined, the homestead of said defendants, or was lot 11, in said block, the homestead of said defendants?” ’ ”

The proposition is that where the undisputed evidence showed that the appellants executed a mechanic’s lien contract on lots 11 and 12, in block 291, Houston Heights, Tex., for the purpose of constructing a residence for family use in April, 1913, into which they moved in July, 1913, and where they lived until September 13,1914, when the house was burned by fire, and where during the interim they had been using lot 12 as a garden, and there had been no dividing fence between lots 11 and 12, and there was a garden fence around lot 12 and a chicken coop on said lot, and where the front of lot 12 formed a part of the front yard of said premises, said property was their homestead as a matter of law, and, there being no evidence to dispute ’the foregoing facts, the verdict of the jury, to the effect that lot 11 alone was the homestead of the appellants as of October 28, 1914, some six weeks after they left the property because of fire, was wholly unsupported by any evidence, and the court erred to the prejudice of appellants in not setting aside the verdict and the judgment rendered thereon.

On the contrary, it is contended that where two lots-.have been the homestead, and the owners have removed on account of the destruction of their house by fire, it is then optional with them whether or not they will continue to claim and hold same as their homestead and a matter of their intention, and the public dealing with them may rely on their statements as to their intentions.

As said in the case of Watson et al. v. City National Bank, 56 Tex. Civ. App. 140, 119 S. W. 916:

“The evidence being uncontroverted that, at the time the sale under the deed in trust to Penix was made, appellants were occupying the land as their homestead, on the authority of Stone v. Darnell, 20 Tex. 11, and Griffie v. Maxey, 58 Tex. 211, they insist that the trustee’s deed to appellee as the purchaser at such sale did not pass the title to the land. * * * The case cannot be regarded as supporting appellants’ contention, because the lien there asserted was a statutory one, while' here the lien asserted is predicated upon an express contract. * * * Booking, then, as we must, to the status of the property as it is shown by the record to have been at the time Watson borrowed the money and executed the trust deed, we think it must be held, in accordance with the finding of the trial court, that it was not then the homestead of the family, and therefore that the trust deed was not void. It was not pretended that the land was then, or. that it had ever been, occupied by Watson and his family, as their homestead. It was not pretended that he had made, or was then making, any preparation to use it as his homestead, or that he had ever by any overt act manifested an intention to so use it. His right and that of his wife to claim the land then to have been their homestead rests entirely upon evidence tending to show that Watson purchased it for a home, and intended when he secured possession of it to make it his home. Whether ne had such an intention or not was an issue in the case. The testimony on the issue was conflicting. The judgment of the trial court involved a finding that he had no such intention. The weight to be given the testimony was for that court to determine; and as we cannot say its finding was not supported by the testimony showing that Watson did not move onto and occupy the land until the latter part of November, 1907, and his declaration in his trust deed that the land was not his homestead, and his declarations to the same effect made to the witnesses Mahaffey and Shelton, as testified to by them, we must regard the finding as binding upon us. An affirmance of the judgment might be rested upon such a view of the record; but there is still another view to be ta'ken of it, which we think leads to the same result. If it should be assumed that Watson intended the land for use as a homestead, and if it should be conceded that such an intention on his part was sufficient to fix its status as such, * * *• we yet would feel ourselves constrained to hold that the evidence in the record was sufficient to support the further finding involved in the judgment that, at the time he executed the trust deed, he had abandoned such intention, and therefore that the judgment did not appear to be erroneous. ‘It is well settled,’ said the court in Davidson v. Jefferson (Tex. Civ. App.) 68 S. W. 824, ‘that where the homestead is not one in fact — that is, where the .homestead intention is not attended, by the occupancy of the property — the intention may be abandoned or renounced at any time, and the exemption thereby ended, and a mortgage upon the property induced by a disclaimer of such intention is valid.”

It seems in the instant case that there is no question about the whole of the premises being originally impressed as the homestead of the appellants ; that, owning the two lots, they made and executed a mechanic’s lien upon both lots, and with this they proceeded to erect on lot No. 11 a home, which was afterwards occupied by them; that on lot No. 12 was a chicken yard, and perhaps a chicken house, and part of a garden. When the fire occurred they removed from the premises and went into a rented house. They thereafter decided to try and have the mechanic’s lien rest alone upon lot No. 11— that is, the lot formerly occupied by them as a residence; that when that was accomplished, they proceeded to designate in writing, there being no lien at that time of any kind upon lot No. 12, that lot No. 12 was in truth and fact free from any homestead claims on their part, and that No. 11 was claimed to be their sole exemption for purposes of a homestead. Some time after the fire there was a cross fencé erected between the two lots. In order to obtain money they expressly designated their homestead to be on lot No. 11, and not only in writing did they do this, but it is shown that the husband said that No. 11 was in fact and in truth their home, and disclaimed the idea of claiming lot No. 12 as any part of their homestead. Acting upon this written declaration, and acting upon the verbal declaration that it was not their home, the loan was made, and the deed of trust was executed upon lot No. 12. The intention of the parties is the crux of the situation. What did they intend to do when they designated No. 11 as their homestead? It is true they testified that they did not have any intention of abandoning their claim to lot No. 12 as their homestead; nevertheless it is only from their statements, writteh and verbal, as to their intention as to what they intended to do, that we can pass on the present case. Therefore it was proper for the court to charge the jury, asking them what was the intention of appellants with reference to abandonment, taking into consideration all of the testimony, together with the written declaration of the parties, duly acknowledged. And in this connection it might be well to say that after the fire occurred, after the loan was made, after these people had the money of appellee, obtained through the faith and credit of their written and verbal statements, that’ no improvements were made nor any work done, nor anything that would tend to show a purpose on their part to improve or to use any part of No. 12 for homestead or any other purposes. Therefore, the appellants not residing on their home, their house being burned down, there being nothing on lot No.' 12 but perhaps a part or all of an old chicken house and the remains of what had been a garden, the appellee had nothing to put him on visible notice that appellants had any intention of again occupying lot No. 12 as a part of their homestead. Moreover, after the fire, there was, as we say, a partition fence between the two lots.

For the purpose of defeating the loan, and the debt made in reliance upon their written and verbal statements, it is too late to claim now that the mortgage was void, because, notwithstanding the fact that they were living elsewhere and had, for the purpose of inducing appellee to make the loan, designated lot No. 11 only as their homestead, for the reason that appellee believed and relied on the same, and was thereby caused to part with his money, as found by the jury. We believe the contention of apr pellee that after the fire appellants could claim both lots as their homestead, if they desired to do so, or they could abandon both or one; that it was a matter simply of their intention and election. How, therefore, are we to judge of such intention? In our opinion, such intention is best evinced by the best evidence obtainable — that is, by the solemn written declaration of what they intended to do — and that this evidence, together with their verbal statement, was the best evidence obtainable.

We are also of opinion that as long as they were not occupying it, or in such physical possession as would notify a purchaser of the homestead character, that the purchaser could safely rely on their statements as to their intention to make lot No. 11 their sole homestead, and that lot No. 12 was free from any intentions of that kind. At the time of the loan there was no such physical possession, in our opinion, as would notify the lender of their intention to remove to the same, or continue to claim lot No. 12 as any part of their homestead. They were trying to sell the whole of lot No. 11 and lot No. 12. They made the statement, however, that lot No. 11 was their homestead, and claimed such exemption solely to be on that lot. No improvements were made on lot No. 12 between the time of the fire, as before said, and the making of the loan, and, as found by the jury, we are of opinion that the physical conditions show that the lender had the right to believe and to rely upon the statements, written and verbal, of the appellants, to the effect that lot No. 12 was pot their homestead; and we are further of the opinion that he did so believe and rely upon the same. Derry v. Harty, 187 S. W. 343; Farmers’ National Bank v. Ivey, 1S2 S. W. 706; Randleman v. Cargile, 163 S. W. 350; Morris v. Simmons, 138 S. W. 800; Lynch v. McGown, 54 Tex. Civ. App. 390, 117 S. W. 884.

In addition to what has. been said, we are of opinion that the court and the jury had the right to disregard the testimony of appellants, if they saw fit, and, as we have before said, the -question of abandonment is a question of intention, and a fact for the jury to pass on, and the intention also to return to a vacated homestead is a question for the jury.

As the jury are the sole and exclusive judges of the weight and value of the testimony, and as the test of the evidence was alone that of appellants as to their previous written statements and previous verbal statements, which were contradicted by appellants upon the trial of this case, the jury, therefore, were entitled to pass, these being interested parties, upon what weight and value should be given to their evidence, and, they having decided against the contention of appellants, we do not think that this court is warranted ini disturbing their verdict. Therefore the assignment is overruled, together with the third, fourth, fifth, -and sixth assignments.

The seventh assignment calls in question the action of the lower court as being prejudicial to the defendants in a special instruction given to the jury in response to the question propounded by the jury while the jury were deliberating, in their retirement, which question propounded by the jury to*" the court was as follows:

“We would like to know whether or not the designation signed by Mr. and Mrs. Turrentine is a legal procedure;”

—to which the court instructed the jury as follows:

“Gentlemen of the Jury: In response to the question propounded to me through your foreman, you are instructed that while the' law of this state makes no provision for a designation of a homestead of the kind in question herein, yet it does not prohibit same, and therefore a designation of a homestead is a legal procedure.”

The proposition is that where the principal issue to be determined by the jury was whether or not lot No. 12 was the homestead of the appellants on October 28, 1914, and where the undisputed evidence shows that they had used this property as part of their homestead up to September 13, 1914, when they were forced out of it because of a fire, the character of the use of said lot No. 12 fully appearing from the foregoing divers and sundry propositions and statements, and where the jury had retired to consider of their verdict, propounded to the court through their foreman, the said question, and that the instruction of the court was affirmative error, seriously prejudicial to appellants’ rights, and should not have been given by the court over the timely objection of appellants’ counsel, and because it was erroneous, in that the ■very issue to be passed on by the jury, as made by the pleadings, in this particular case, was whether or not the designation of the homestead, pleaded and introduced by the appellee, was legal, or was a mere subterfuge to evade the homestead law, and the charge of the court ■ amounted in law to a peremptory instruction, to return a verdict on this issue in favor of the appellee.

It is contended, on the contrary, that, as the court answered the jury’s question by stating a correct abstract proposition of law, it was not prejudicial to the appellants.

In our opinion, while the court does not tell the jury that there was such designation by appellants, but in effect says that, if there was such, it would not be illegal, it was left to the jury to find out if there was one. The jury found that appellee believed the statements of appellants in the written designation, in answer to special issue No. 3, and that he would not have made the loan if he had not believed same, in answer to special issue No. 4, and, therefore, having found as stated, in our opinion it would be immaterial whether the designation was a subterfuge or not, as the jury found that appellee believed and acted on it in making the loan.

The remaining assignments will be overruled. We believe that no such substantial injustice has been done that we would feel authorized in reversing this cause. We are not unmindful of the many authorities produced by the appellants, but, as said many times in the decisions of the courts of this state, each individual case must rest upon its own merits. The facts in each one of them are different, but, in our opinion, there is always some fact or facts or indication in the record which shows to the diligent inquirer, seeking the real justice of the case, where it lies; and if substantial justice has been meted out, and no injustice such as would require a reversal of the case by the appellate courts, the verdict of the jury or the court below will be affirmed.

■Therefore this cause is in all things affirmed.

Additional Findings.

At the request of the appellants we herewith file the following additional findings of fact:

The lots were 50x150 feet each; lot 12 was the corner lot. We find that, the following spring after the fire and the execution of the mortgage, the garden fence was repaired, and that appellants planted a garden there, and we further find that they also planted a garden there each spring up to the date of the trial, and we further find that the board fence was about half way between the two lots. The front yard was a lawn,- not divided by any fence. We further find that appellee knew that the house on the premises had been destroyed by fire, and at least had been told that the appellants lived in the house. The date of the fire was September 13, 1914. We further find that appellants lived in the house until that time, and then moved off, and have not lived on the property since, and while they lived there they used the whole premises for homestead premises.
      itesEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@£toFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    SCHAFF v. PAGE.
    (No. 7969.)
    (Court of Civil Appeals of Texas. Dallas.
    May 11, 1918.
    Rehearing Denied June 1, 1918.)
    Railroads <&wkey;>446(6) — Injuries to Dive Stock — Cattle Guards — Absence oe Fence.
    In an action for damages to live stock injured in defendant’s railroad trestle because of absence of cattle guards at a public crossing, a verdict for defendant should have been directed ; the live stock not having .been hurt in a collision with a train, and the condition of the fence being such that it constituted no fence at all, since where a railroad company’s road is not fenced the company is not liable in damages for injuring live stock unless there-is an actual collision between one of its trains and the stock.
    Appeal from Hill County Court; R. T.. Burns, Judge.
    Action by W. N. Page against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Collino, Morrow & Morrow, of Hillsboro, for appellant. J. Webb Stollenwerck, of Hillsboro, for appellee.
   TALBOT, J.

This suit was brought by the appellee to recovijr of appellant as receiver of the Missouri, Kansas & Texas Railway Company of Texas, damages in the sum of $360, alleged to have been sustained by reason of injuries received by a mare and mule owned by him, through the negligence of appellant, within the limits of a precinct in which the stock law prohibiting horses, mules, and certain other animals from running at large' was in force. The mare and mule escaped from appellee’s lot, distant from the railroad about one mile, some time during the night of June 5, 1916. The appel-lee saw the animals in his lot in the early part of the night and the lot gate was then closed, but whether fastened or not he did' not know. The next morning the gate was closed, but it was then discovered that it was not latched or in any way fastened. It seems that the stock must have passed out at the gate, but just how the gate was opened and then closed after their exit does not appear. About 4 o’clock next morning after the animals escaped from appellee’s lot they were discovered by some men traveling in an automobile from Waco to Hillsboro. The mare was in a trestle or bridge forming a part of the Missouri, Kansas & Texas Railroad Company’s roadbed spanning Cobb’s creek, and tbe mule standing on tbe right of way nearby. This was westward and about a mile from appellee’s house. Tbe men traveling in tbe automobile stopped and succeeded in extricating the mare from tbe trestle, but in doing so she fell to the ground below, a distance of about 12'feet. Both of tbe animals were badly injured, and tbe appellee lost much time and was put to considerable expense in doctoring and caring for them. Tbe railroad right of way was fenced and about a mile from tbe trestle where tbe animals were injured there was a public dirt road crossing and cattle guards bad been put in there, but at tbe time the animals in question escaped from tbe appellee’s lot tbe cattle guards on either side of the railroad track had been removed, and with the exception of the guards between the iron rails of the track there were no guards, and their absence afforded easy access to appellant’s right of way and roadbed within the fence inclosure. There were also in the fence inclosing the railroad near this point gates, which seem to have been put in for tbe benefit of Orr, whose farm adjoined the railroad right of way, but which were used, pretty generally by persons living in the neighborhood. The morning after appellee’s stock escaped from his lot these gates were standing open, and the testimony shows they stood open practically all the time. The testimony, however, shows very conclusively, we -think, that appellee’s mare and mule passed along the public road mentioned, which ran near his premises, down to the public crossing over the railroad and then over the place where the cattle guards should have been placed onto appellant’s right of way a"facl roadbed. There is no evidence that either of tbe animals came in contact with or was struck by one of appellant’s trains, and the evidence adduced would not sustain a finding that the animals were frightened by one of appellant’s trains and thereby caused to run on or into the trestle. A jury trial of the case resulted in a verdict and judgment for the appellee in the sum of $360. From this judgment the appellant perfected an, appeal to this court, and presents several assignments of error.

The first is that the trial court erred in refusing to give an instruction requested by .appellant directing the jury to return a verdict in its favor, and since we have reached the conclusion that the evidence fails to show liability on the part of appellant and that this instruction should have been given, tbe other assignments need not be discussed. Our reasons for concluding that the appellant was not shown to be liable to appellee for the damages suffered on account of the injuries to his mare and mule are: ■ (1) That the undisputed evidence shows that appellant failed to have cattle guards at the public road crossing mentioned; (2) that neither of the animals in question was struck by a train of the appellant; (3) the Supreme Court of this state has held, in effect, that a railroad fence in such a condition as that in question near the place where the animals were injured “was, in law, no fence at all at that place” (Railway Co. v. Tolbert, 100 Tex. 483, 101 S. W. 206; Railway Co. v. Webb, 102 Tex. 210, 114 S. W. 1171); and (4) the rule of law that where the railway company’s road is not fenced the company is not liable in damages for killing or injuring stock upon its road unless there was an actual collision between one of its trains and the stock killed or injured. The fact that the stock law was in force.does not, we think, materially affect the question in view of the facts of this case.

In Railway Co. v. Webb, supra, the Supreme Court declares that it does not agree to the broad proposition contended for by the plaintiff in error therein, to the effect that without the amended statute of 1905, the stock law (Acts 29th Leg. c. 117) when put in force would supersede or displace the rule by article 4528 of the statute, so that railroad companies whose roads are unfenced or insufficiently fenced would not longer be under the absolute liability declared-by that article. It is further remarked in that case that there are inhibitions, the failure to observe which might constitute a violation which would prevent the guilty person from being heard in the courts to complain of injuries to which his own wrong has contributed, and that this might enable a railroad company whose tracks were unfenced or insufficiently fenced to defeat such a person; but that the court could not see how the stock law could so operate against one'guilty of no violation of it, and that the mere fact that an animal is at large is not necessarily, a violation; that .while a person who permits his stock to run at large in a district where the stock law is in- force violates the law, yet if the animals, as they may often do, escape without fault on the part of their owners, such owners will be guilty of po offense against the law. The evidence in the case at bar would not warrant a finding that the appellee permitted his stock to run at large, or indeed that their escape from the inclosure in which they were confined was due to any culpable negligence on his part. In construing the amendment of 1905 and in declaring the law on which the character of the judgment in that case depended, the oourt say that:

“The effect” of that statute “is to put the case in the same attitude as if the stock law had never been adopted. The liability of the company is therefore absolute unless it had complied with the requirements of the law as to fencing its track. The evidence shows that there was an opening in the fence through which the horse passed and does not show that it was one which the company was required by -law to make. The liability must be held to be the same as if the track had not been fenced at all at that place.”

Under the authorities cited the question of appellant’s liability must be considered and determined from the standpoint that its track had not been fenced at all. So considered, it would have been absolutely liable in damages to the appellee had one of its trains come in contact with appellee’s mare and mule, but as the evidence wholly fails to show any such contact, the appellee failed to make out a case against it, and the peremptory instruction requested by appellant should have been given. The case appears to have been fully developed, and it becomes the duty of this court to render such judgment as should have been rendered in the county court. It is therefore ordered that the judgment of that court be reversed, and that judgment be here rendered in favor of the appellant.

Reversed and rendered.
      iSzsjFor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J. LANE, j.

text:
    STEIN v. GREENEBAUM.
    (No. 7558.)
    (Court of Civil Appeals of Texas. Galveston.
    April 26, 1918.
    Dissenting Opinion, April 30, 1918.)
    1. Maliciojjs Prosecution <&wkey;71(2) — Probable Cause — Question for Jury.
    In an action for malicious prosecution by one partner against another, the charge against plaintiff having been that he was guilty of theft of partnership property by bailee, question of probable cause held for the jury.
    2. Malicious Prosecution &wkey;>22 — Acting on Le&al Advice.
    Where defendant, in suit for malicious prosecution, before signing the complaint against plaintiff, in good faith made a full, fair, and complete statement of the material facts known to him to the county attorney, and thereafter acted on such officiai’s advice, he had an adequate defense to the suit for malicious prosecution.
    3. Malicious Prosecution <@=»71(4) — Advice of Counsel — Good Faith — Question for Jury.
    In suit for malicious prosecution by one partner against another, the charge against plaintiff having been theft by bailee, the issue of defendant partner’s good faith in placing the facts before the county attorney before making complaint held for the jury.
    4. Malicious Prosecution &wkey;>64(l) — Damages — Sufficiency of Evidence.
    In suit for malicious prosecution by one partner against another, plaintiff having been charged' with theft by bailee, evidence on the question of damages held to furnish sufficient basis for recovery.
    5. Damages <&wkey;49 — Mental Suffering.
    As a general rule, mental suffering, unaccompanied by actual injury to person or property, affords no ground for an action, except where the wrong complained of is a willful one, intended by the wrongdoer to wound the feelings and produce mental suffering, or one from which that result should be reasonably anticipated as a natural consequence.
    Lane, J., dissenting.
    Appeal from District Court, Ft. Bend County ; Samuel J. Styles, Judge.
    Action by Max Stein against H. Greene-baum. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    i Clarence I. McFarlane and W. I. McFar-lane, both of Richmond, H. O. Schulz and F. X. Joerger, both of Rosenberg, and Mathis, Teague & Mathis, of Brenham, for appellant. W. T. Bagby, of Hallettsville, D. R. Peare-son, of Richmond, and Fly & Ragsdale, of Victoria, for appellee.
   GRAVES, J.

Laying the amounts thereof at $10,000 actual and $15,000 exemplary, Max Stein, appellant, sued H. Greenebaum, appellee in the court below for damages for malicious prosecution. In general substance, and effect his petition alleged that Greene-baum falsely, maliciously, and without reasonable or probable cause, made and swore to a complaint in writing before W. L. Davidson, county attorney of Ft. Bend county, Tex., charging Stein with the theft of three mules by bailee; that he was arrested under a warrant issued upon this complaint, and some days after giving bond for his appearance thereat was given an examining trial on such charge before the justice of the peace at Richmond, Tex. ;■ that this trial resulted in his being discharged; and that the grand jury of Ft. Bend county subsequently investigated the charge and failed to find a bill of indictment against him.

Appellee, Greenebaum, in reply, after demurrer and denial, alike general, specially pleaded that he had, prior to making and filing the complaint, consulted and made a full, complete, and fair statement of all the facts known to him in good faith to his own attorneys, who advised him that, under such statement, appellant was guilty of theft by-bailee ; that thereafter, and still before making and filing the complaint, he and his attorneys conferred with Hon. W. L. Davidson, county attorney of Ft. Bend county, and they together in good faith advised him of all the facts known to appellee concerning the charge, whereupon he was advised by the county attorney that appellant had committed the offense of theft by bailee, and he then, acting upon the advice at that time given him, made and signed the complaint against appellant so charging.

By supplemental pleadings of both parties, issues were joined upon the matters thus pleaded; appellant further alleging- that, if the county attorney did advise making of the complaint, he had been induced to do so by false and fraudulent representations and concealment of the true facts in the case by appellee. At the close of the evidence, upon motion of appellee, the court peremptorily instructed the jury to return a verdict for him, which was done, and judgment entered thereon accordingly, from which appellant prosecutes this appeal.

Such further statement as is deemed essential will be made in what follows:

With the pleadings as above outlined, the single question presented for this court’s determination is: Did the evidence disclose such controverted issues of fact as should have been submitted to the jury? Since all of appellant’s assignments merely present this same general issue from different angles, it will be unnecessary to discuss each separately. The evidence is voluminous, and for the purposes of this judgment no attempt need be made to comprehensively digest it, but only so much as is thought sufficient to indicate the basis upon which this court’s conclusions are grounded:

From 1911 to 1915 I. Rheinstrom,, H. Greene-baum and Max Stein, under the firm name of Rheinstrom, Greenebaum & Max Stein, were partners in the horse and mule business at Rosenburg, Tex., under an agreement that the two first named should furnish Stein the stock and money needed for carrying on the business, while he would do the work, manage and conduct it, and, after expenses were deducted, any profits realized would be divided, one half to him and the other half to them. During the four years of its existence the firm, under Stein’s management, did- a large amount of business, estimated by him at about $100,000; its dissolution taking place about February, 1915. There seems to have been no general settlement, adjustment, or accounting of its affairs between its members, either during continuance of the business, or at the time of the dissolution.

I. Rheinstrom and H. Greenebaum also composed a separate firm at Hallettsville, Tex., which independently did business from there under the firm name of Rheinstrom & Greenebaum, in which Stein was not a member. Stein lived at Rosenberg, Ft. Bend county, Greenebaum at El Campo, Wharton county, and Rheinstrom at Hallettsville, Lavaca county.

The firm at Hallettsville kept there the books and accounts and preserved the record of the business done by the Rosenberg firm, the general course of dealings back and forth between the partners being substantially this: Wlhenever Rheinstrom & Greenebaum, of Hal-lettsville, furnished money or stock to Stein for the business at Rosenberg, they charged the Rosenberg firm with them on the books so kept, and whenever Stein, for the latter firm, sold any stock and remitted to the former at Hallettsville the proceeds thereof in money and notes, they likewise credited the Rosenberg firm therewith upon these books.

Stein maintained, however, and so testified, that such money and notes were not delivered to Rheinstrom & Greenebaum in settlement for the stock sold, but only to enable them to keep a record of all the notes sent to them for the firm of Rheinstrom, Greene-baum & Max Stein, and if the notes were not paid, or should happen to be lost, they were charged back to the Rosenberg firm, and any losses’ thereon were to be borne one half by himself and the other half by his two partners. according to the general terms of their association; in other words, that an inherent part of the partnership agreement was that the notes would thus be credited to his firm, and so kept track of, but would in reality remain the property of that firm until finally settled by the makers. This feature of the case will be recurred to later on.

Upon the dissolution of the firm in February, 1915, there was considerable difference between the claims of the parties as to which was indebted to the other; Stein claiming that the firm was indebted to him, and Rhein-strom & Greenebaum claiming that Stein was indebted to them. There was also considerable joint property undisposed of, and shortly after the firm quit business appellee, Greenebaum, in order to get jurisdiction for that purpose in Lavaca county, where his other partner, I. Rheinstrom, lived sued him and Max Stein in the district court of that county for an accounting and settlement of the partnership affairs of Rhein-strom, Greenebaum & Max Stein. Auditors were appointed by the court to go over the partnership accounts, and filed their report in the fall of 1915, showing the firm to be indebted to Max Stein about $5,000.

The complaint against Stein was not filed until January 13, 1916; his examining trial and discharge following on February 1, 1916. Arising out of these general relationships recited, the particular transaction which formed the basis of the prosecution complained of was, as we understand it, in substance, as follows:

In the course of the partnership business Stein sold four mules to a Mr. West for $775, for which West gave his otherwise unsecured note with a Mr. Dvorak as indorser; Stein making the note payable to the firm of Rheinstrom, Greenebaum & Max Stein, and no lien upon the mules being retained therein. Stein sent this note to Rheinstrom & Greenebaum at Hallettsville, to keep a record of, and they, after indorsing the firm name of Rheinstrom, Greenebaum & Max Stein upon it, returned it to him with instructions to go sell it ahd get the cash for it. This he did by negotiating it to the Rosenberg State Bank; all the money therefor being received by Rheinstrom & Greenebaum. Appellee claimed, however, that the note had first been duly credited to the Rosenberg firm.

At or subsequent to maturity, Mr. Dvorak, the indorser, paid the bank $500 or $600 on the note, after which it brought suit against the maker and indorsers for the balance due. This balance was subsequently paid by Rheinstrom & Greenebaum, and amounted at the time they took it up to $298.55. The note thus 'came back again into their hands, and they then sent it to Rosenberg for settlement with West and Dvorak, through Mr. Joerger, according to the testimony for appellee, while Stein said it was through himself direct. At any rate, the note seems to have been turned over to Stein and lie effected the settlement by taking hack three of the mules it had been originally given for. These are the three mules he was charged with having stolen. Subsequently he sold two of them to Foss Bros, for $265, $135 cash, and $130 in a note made payable to the firm of Rhein-strom, Greenebaum & Max Stein, keeping the third one in his own possession.

At this point it may be stated that the undisputed evidence showed the filing of the complaint, Stein’s arrest and discharge upon an examining trial before the justice of the peace and the failure of the grand jury, after investigating the charge, to indict him.

We think the court erred in taking the case from the jury, and mainly upon these considerations:

If the testimony of Max Stein as to the terms of the • partnership agreement was true, and in its vital feature it seems to us to have been well-nigh corroborated by the bookkeeper of his two associates, then the mules he was charged with having stolen were the property of his firm, or assets of their -unsettled business, and as a member thereof he had the legal right either to sell or keep them in his possession. In such circumstances, it could not be said, nor do we understand appellee to so contend, that he would have had probable cause for making this complaint. His insistence is that, since Rheinstrom & Greenebaum paid the balance due on the West-Dvorak note to the Rosenberg State Bank, this note became their property, and that Stein had no interest therein, and for that reason the mules, having been taken in settlement of that note, or the balance due thereon, were the property of Rheinstrom & Greenebaum, and not the property of Rheinstrom, Greenebaum & Max Stein.

Upon the terms of the partnership and their conduct of the business under them, the general substance óf Stein’s version is given in these extracts from his testimony:

“The firm of Rheinstrom & Greenebaum charged me with stock that was by them delivered to the firm of Rheinstrom, Greenebaum & Max Stein, and whenever I sent him (Rhein-strom & Greenebaum) cash and notes they were supposed to give me credit for it. The cash and notes received by the firm of Rheinstrom, Greenebaum & Max Stein for stock sold were not delivered to the firm of Rheinstrom & Greenebaum in settlement of such stock. I did not say that it was delivered in settlement of it. It was done to keep a track of all the notes. It was just to keep every note, and whenever these notes were collected and paid up they were supposed to give me credit for them. Xes; they were supposed to give me credit whenever the notes were settled. If I sent in ■5500 or $1,000, they would give me credit for it. They were supposed to keep a record of aE the notes that were sent to them for Rhein-strom, Greenebaum & Max Stein, and, if the notes were not paid, they would be charged back to the firm. If a note was lost it was charged back, and each was to bear one-half of the loss.” “If I sold a pair of mules for $600, and took $100 in cash and a note for $500, and delivered the note and money to Rheinstrom & Greenebaum, they were supposed to give tho firm of Rheinstrom, Greenebaum & Max Stein credit. If the note would not have been paid, I would be charged back with it. I was a partner to the note until the note was settled by the maker.”

Concerning the same matter Mr. Tippett, tbe bookkeeper for Rheinstrom & Greenebaum at Hallettsville, testified':

“This stock was sent down here and sold to him, and he was charged with it; and when he sold it and sent the note back, he was credited with it. Every note, as soon as it was sent to our office, although payable to Rheinstrom, Greenebaum & Max Stein, became the property of Rheinstrom & Greenebaum, and the proceeds that were obtained from the sale of the notes belonged to Rheinstrom & Greenebaum. But if a note, after being dold, was not paid, it was returned to us, and loe had to take it up. We charged it back- to Mr. Stein. If Rheinstrom é Greenebaum had to take the note up, we charged it baek to the account of Rheinstrom, Greene-baum & Max Stein.”

As has been suggested from other parts of the record, these excerpts from the testimony of the two witnesses quoted disclose and emphasise the main difference in the positions of the parties to this litigation with reference to the ownership of the mules and the notes. Appellee himself does not seem to have testified upon the particular point, but has throughout the proceedings assumed the same attitude as this of his bookkeeper. Boiled down, the sum and substance of that contention is that, when the firm of Rhein-strom, Greenebaum & Max Stein sent the note in issue to Hallettsville and received credit for it upon the books of Rheinstrom & Greenebaum, according to the usual course of their mutual business in that regard, it was from that moment freed - from any interest of the Rosenberg firm in it, and became the absolute property of the Hallettsville firm to do with as the latter pleased. We think, if this were true at all, it could onl-y be so technically, or as a mere matter of bookkeeping, and that, whatever may have been the status of the note during the time it was held by the bank, when it came back again into the hands of Rheinstrom & Greene-baum, it was placed for the balance due thereon exactly as it had been before the sale to the bank, and as between them and Stein, or Stein’s firm, was subject to the actual terms of their partnership agreement. In that situation, those terms, even according to appellee’s own bookkeeper, were- that the note was then charged back to Stein and his firm; that is, necessarily was considered the latter’s property.

As we view the matter, conceding that, when first sent in to them, the full amount of the note had been credited by Rheinstrom & Greenebaum to Stein’s firm, such credit did not, as between the three partners, if Stein’s allegations and testimony be true, amount to an absolute sale of it to the former, and thus emancipate it from the agreed condition under which that credit was to be made; that is, that Stein’s interest in it should not be extinguished until final payment of the note by its maker. In other words, if the terms of the partnership were what Stein said they were, and, of course, with that this court has nothing to do, the leaven of the understanding that his interest in all notes delivered to and so credited by his associates to his firm was not to pass out of them until final payment thereof by the makers would leaven the whole lump of the dealings between’ the three concerning any particular note, no matter what was done with it in the meantime.

While in the hands of the bank, indorsed as it was by Stein’s firm, the note was undoubtedly a firm liability, notwithstanding the fact that the money for which it had been sold all went to Rheinstrom & Greenebaum; then, after the latter, in practical effect, took part of the same money, paid to the bank the balance due thereon, and, even under their own bookkeeper’s statement, were due to charge that balance back to the account of Rheinstrom, Greenebaum & Max Stein, how can it be said that the note was not an asset of that firm as to the balance so to be charged? And it need not be repeated that if the note, or the mules for which it stood, did belong to the partnership, there was a . consequent lack pf probable cause for the criminal prosecution; to say the least of it, the facts were in controversy, the evidence was conflicting, and the question of probable cause should have been submitted to the jury. Glascow v. Owen, 69 Tex. 169, 6 S. W. 527; Porter v. Martyn, 32 S. W. 732; Sebastian v. Cheney, 86 Tex. 497, 25 S. W. 691; Equitable Life Assurance Society v. Lester, 110 S. W. 499; Jacobs v. Crum, 62 Tex. 408 ; 25 Cyc. pp. 29 and 31; Ramsey v. Arrott, 64 Tex. 323.

Leaving the question of the ownership of the note, we recur to the main defense interposed by appellee — that he acted upon advice given him by the county attorney. It is conceded by appellant that this would have been an adequate defense, if appellee had in good faith first made a full, fair, and complete statement of all the material facts known -to him at the time to the county attorney, and thereafter had acted upon that official’s advice based thereon; indeed, such seems to be the well-settled law. Lenoir v. Marlin, 10 Tex. Civ. App. 376, 30 S. W. 566; Burgess v. Singer Mfg. Co., 30 S. W. 1110; Brady v. Georgia Home Ins. Co., 24 Tex. Civ. App. 464, 59 S. W. 914; Rogers v. Mullins, 26 Tex. Civ. App. 250, 63 S. W. 897.

The question then is: What was done in this instance? The appellee himself testified :

“I did not tell Maj. Davidson that I had lawyers here' to bring a civil suit to take the mules. I did not tell him anything about any partnership arrangements I had with Max Stein. I did not tell him that a suit had been brought for a partnership accounting.” “I didn’t tell him anything about the auditor’s report. I didn’t tell him that the auditor’s report showed that I was indebted to Max Stein. I did not tell him about that.” “The auditors made a report, and I heard Mr. Rheinstrom say that their auditor had said that we were indebted, to Max Stein in the sum of $2,000 or $2,500, possibly $3,500. I heard that before I filed the complaint ‘against him. * * * I didn’t go to Hallettsville and look over the auditor’s report, to see whether or not it was correct, or to see whether or not I owed Max Stein. I filed th’e complaint against him, because I was mad at him. I never talked to a living soul about it, except Mr. Ragsdale, before filing the complaint. I did not talk to anybody about it, but. Mr. Ragsdale, before I filed the complaint.” “I came to Rosenberg and Et. Bend county with the intention to file a complaint against him. My intention, before I came to Rosenberg, was to file a complaint if I didn’t get the mules, and I didn’t get them. I could not get them by suing for them.”

Mr. Bagby, appellee’s attorney, testified:

“I did not tell Maj. Davidson the details of the conversation I had with Max Stein in Houston. I told Maj. Davidson only that Max Stein had refused to tell what disposition he liad made of the mules — of the proceeds of the mules. 1-Ie would never tell me to whom he had sold. the mules. I did not tell Maj. Davidson that same detailed statement that I told this jury. I told Maj. Davidson' only that Max Stein had refused to disclose to whom he had sold the mules, and what disposition he had made of them; that is the only statement I made to him.” “I knew something about the audit. I did not tell him that this note had gone into the audit of the partnership matters of that firm of Rheinstrom, Greenebaum & Max Stein. I do know now that the note went into this audit. I don’t know that I knew it at that time, but I presume I did. I did not tell him that. I did not tell him that the audit showed that the firm owed Max Stein several thousand dollars, because if that note was in there, regardless of who put it in there, as a matter of law it did not belong there, in my judgment, and it did not concern this transaction, whether it was or was not in there. I did not tell Maj. Davidson about that. I told Mm that Max Stein refused to deliver the mules. Max told me in Houston that he did not have any interest in the mules. He claimed he was going to keep the exchange (meaning the proceeds for which Stein claimed to have sold the mules) until the settlement of the suit. I did not tell Major Davidson this. Max Stein claimed to me he was going to keep the exchange until the termination of the suit at Hallettsville between Rhein-strom & Greenebaum and himself, and in that connection I told him that they were liable for them, and, if the mules were not theirs, they were liable to him for whatever amount it was, and he said that that was the reason he was holding it. I did not tell Maj. Davidson about the pending suit. Max Stein did not claim the title. I did not tell Maj. Davidson that Max Stein said he was holding the property until the termination of the suit. I told him he had converted the mules and had declined to tell where the mules were or the proceeds thereof.”

So that, if there was an issue or could have been two ways of thinking by reasonable minds, over whether or not the West and Dvorak note was either the property or part of the unsettled assets of the Rosenberg firm, confessedly the county attorney was not given a full and fair statement of all the material facts, because both appellee and his attorney thus admitted that they told him nothing about any of the partnership arrangements with Stein, nor even that a civil suit had been brought for an accounting thereof, much less that the audit, already for some months on file therein showed his firm then owing Stein about $5,-000, and that, when the mules had been demanded of Stein, he said he was holding them until the termination and settlement of that- suit; indeed, although confessing their previous knowledge of all the facts mentioned, they further testified that the sum and substance of what they really told Maj. Davidson, the county attorney, was that Stein had no interest in the mules, but had converted them to his own use and benefit, and declined to tell where they or the proceeds were. Manifestly, in such circumstances as these, under the authorities cited, the advice of the county attorney would not afford immunity, and the issue of appellee’s good faith, under all the facts, should have gone to the jury.

Upon the question of damages, we think the evidence furnished sufficient basis for a recovery. While as a general rule mental suffering, unaccompanied by actual injury to person or property, affords no ground for an action, there are certain well-recognized exceptions; as where the wrong complained of is a willful one, intended by the wrongdoer to wound the feelings and produce mental suffering, or from which that result should be reasonably anticipated as a natural consequence. The authorities upon this question were reviewed and differentiated by this court in the recent case of Sisler v. Mistrot, 192 S. W. 665. See, also, Davidson v. Lee, 139 S. W. 907; Leach v. Leach, 11 Tex. Civ. App. 699, 33 S. W. 703; Carter v. Oster, 134 Mo. App. 146, 112 S. W. 995.

Erom the conclusions stated, it follows that the judgment must be reversed, and the cause remanded for another trial, and that •order has been entered. Mr. Associate Justice LANE dissents, and will himself write his views.

Reversed and

Justice DANE dissenting.

LANE, j.

(dissenting). I am unable to agree with the majority of the court in their statement of the case, their fact findings, or the final conclusions reached by them. I shall therefore make a statement of the case .as I understand it, and shall- also present my findings of fact, which I think are supported by the undisputed evidence, and my reasons generally for my conclusion 'that the judgment of the trial court should be affirmed.

I. Rheinstrom and H. Greenebaum are parties composing the firm of Rheinstrom & Greenebaum, long engaged in the business of selling and trading horses and mules, with their principal place of business at Halletts-ville, Lavaca county, Tex., hereinafter, for •convenience and identity, called the “Hall-ettsville firm.” This Hallettsville firm, some time in the year 1911, agreed to and did form a firm or copartnership with appellant, Max Stein, for the sale of horses and mules, with its place of business at Rosenberg, Ft. Bend county, Tex., said firm to be composed of the Hallettsville firm, as one party, and Max Stein, the other party, which is hereinafter called the “Rosenberg firm.” The agreement by which the Rosenberg firm was established was substantially as follows:

The Hallettsville firm agreed to furnish the horses and mules for the Rosenberg firm, and Max Stein was to dispose of the same at a profit; each of the partners, the Hal-lettsville firm representing one, and Max Stein the other, was to receive one-half of the profits of the business. It was further agreed that the Hallettsville firm should employ a bookkeeper jointly for both firms, which it did in the person of the witness Tippett. It was agreed that, whenever the Hallettsville firm furnished horses and mules to the Rosenberg firm, said firm was to be charged with the value agreed upon between the two firms; that when said stock was sold by the Rosenberg firm the proceeds of such sale was to be sent to the Hallettsville firm, and the Rosenberg firm was to be credited for the amount of such proceeds, and the same became the property of the Hal-lettsville firm. If any portion of such proceeds were notes of the purchasers of said stock, the .iRosenberg firm guaranteed the payment thereof, and if said notes or any part of them were not paid, and a loss was thereby sustained, such loss was to be charged back against the Rosenberg firm. During the existence of the Rosenberg, firm, Max Stein, for said firm, received from the Hal-lettsville firm certain mules, for which the Rosenberg firm was charged on its books their agreed value. Thereafter he sold four of these mules to a Mr. West for a note of $775, with Mr. Dvorak as surety for West. This note, indorsed by the Rosenberg firm, was sent to the Hallettsville firm, and the Rosenberg firm was credited with the face value of the same. After the Hallettsville firm had received this note, it was by them sent to Max Stein, of the Rosenberg firm, with instructions to sell it to the Rosenberg Bank. The note as indorsed was sold to said bank for $775, and the proceeds sent to the Hallettsville firm. After the Rosenberg Bank became the owner of the note, West, the maker, paid $500 or $600 thereon to the Rosenberg Bank, but having failed to pay the balance, the bank called on the Rosenberg firm for payment of such balance. Mr. Rheinstrom, of the Hallettsville firm, instructed the bank to sue the maker and his surety on the note, and make the Rosenberg firm party to the suit, so that judgment might be taken in favor of said firm for any sum it might have to pay by reason of its indorsement over against West and Dvorak. (See statement of facts, bottom of page 52).

■ After these proceedings the bank drew a draft on the Hallettsville firm for $298, which included the. balance due on the principal of the note, interest due thereon at the time of the suit, $25 attorney’s fees provided- for in the note, and $10 costs of suit. This draft was paid by the Hallettsville firm, and the original note withdrawn from the court and sent to said last-named .firm. After the Hallettsville firm had paid the Rosenberg Bank the amount of the judgment and costs of suit, it instructed either Stein or one Joer-ger, of Rosenberg, to try to get a settlement out of West and Dvorak, the makers of the note. Stein went to see these parties, and they agreed that, if Stein would deliver to them the note, they would deliver to him three of the mules. Stein notified the Hal-lettsville firm of this proposition, and in due time the note was sent to either Stein or Joerger, and Stein delivered the same to West and got the mules. The appellee, Greenebaum, contends that the mules were the property of the Hallettsville firm, and Stein, appellant, contends that they were the property of the Rosenberg firm, at the time they were taken back from West.

The undisputed evidence shows that the note was sent to the Hallettsville firm under the agreement of the two firms, and that the Rosenberg firm received credit therefor; thus it became the property of the Hallettsville firm. The undisputed evidence also shows that this note was later sold to‘the Rosenberg Bank and beyond question became its property, and that neither it nor any part thereof was ever retransferred to or in any manner became the property of the Rosenberg firm. The undisputed evidence of the bookkeeper, Tippett, is that after the Hal-lettsville firm received the note from Stein he entered a credit, but that after1 the Hal-lettsville firm had paid the $29S to the bank no charge or credit of any kind was made against the {Rosenberg firm. 1

Without going into further details, we have, from what has already been stated, shown by the undisputed facts, first, that the note in question was credited to the account of the Rosenberg firm, and as a consequence was charged to the Hallettsville firm, thus reducing the debt of the Rosenberg firm to the Hallettsville firm in the sum of $775; second, that neither the note, nor any part thereof, was ever charged back to said Rosenberg firm; third, that said note was sold to the Rosenberg Bank by átein at the request of the Hallettsville firm, to whom it had been transferred, for the sum of $775, and of course became the property of the bank, fourth, that, after the bank had taken judgment on the note against the makers of the note and the indorser, the Rosenberg firm, and after the Rosenberg firm had taken judgment over against the makers for such sum as it might be compelled to pay the bank, the Hallettsville firm paid the bank its money for said judgment, and became subrogated to the rights of the bank; fifth, that the Rosenberg firm was never charged with any portion of the sum paid by the Hal-lettsville firm to the Rosenberg Bank; sixth, that Stein took the mules involved in this controversy in payment of the judgment owned by the Hallettsville firm, and disposed of them without the consent and over the pro-test of their owners.

If I am sustained by the undisputed evidence in the above conclusion, of course it follows that Max Stein was in possession of the mules as bailee for the Hallettsville firm when he took them from West, and not as owner or part owner thereof. The contention that he had an interest in them, because his firm had indorsed the note in question, is so plainly untenable that it will not admit of an extended discussion. Suppose A. owned a note given for mules by B., and A. was to indorse and sell the'same to a bank, and the bank were to pay A. for the note or give him credit on its books for the value of the note, and thereafter, on failure of B. to pay said note, the bank sued B. and the indorser, A., thereon and took judgment thereon against both A. and B., and then A. took judgment over against the maker, B., and thereafter, by instructions from the bank, A. took the mules back in payment of the judgment, to whom would the mules belong? It seems to me that but one answer could be made, and that is that the mules were the property of the bank, and that A. was holding them as bailee for the bank. Certainly in such case A. would own no interest in the mules by reason of his indorsement of the note which he had sold to the bank. If A. was credited with the amount of the note on the books of the bank, such amount stood as a credit to A. and it would be absurd to say, as is said in the majority opinion, that such credit was “only a - mere matter of bookkeeping:” The bank, in such case, would have the option, to call upon the indorsers for payment of the note when the maker failed' to pay the same; but it was not bound to do so, and if it saw proper to take the mules, or have them taken, in payment and full satisfaction of its judgment, the mules would be. its property, and the indorser, A., would own no interest whatever therein. The same principle is applicable in the present case. Technically Stein, in disposing of the mules taken from West, without the consent and over the protest of the Hallettsville firm, was guilty of the offense of theft by bailee. Greenebaum had been so told by Mr. Bagby and Mr. Ragsdale, two highly honorable men and lawyers of known ability in their profession. He had also been so told by Hon. W. £>. Davidson, county attorney of Ft. Bend county, after said county attorney had been fully advised of all the matters directly material and relative to the question of the-guilt or innocence of Stein, and certainly under these circumstances Greenebaum had reasonable grounds for making the affidavit charging Stein with theft as bailee, and therefore I do not think the trial court erred in instructing a verdict for appellee Greenebaum in this case.

It was not a necessary justification of Greenebaum that legal probable cause should, in fact, have existed. The question on this issue was, not whether Stein was actually guilty as charged, but whether Greenebaum had reasonable grounds, from the facts known to him and advice given him, to believe, and did actually believe, that Stein was thus guilty. McManus v. Wallis, 52 Tex. 546, 547. Where the undisputed evidence shows, as in this case, that the defendant had probable cause for instituting the prosecution against the plaintiff, the question .as to whether at the time of the institution of the prosecution defendant was mad at the plaintiff becomes immaterial, l shall therefore not discuss the question of malice.

For the reasons given, as well as others apparent of record, I am unable to concur with the majority of the court'in holding that the judgment of the trial court should be reversed, and the cause remanded.
      ^=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    OWOSSO MFG. CO. v. CHICAGO, R. I. & P. R. CO. et al.
    (No. 6037.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 8, 1918.
    Rehearing Denied May 29, 1918.)
    1. Appeal and Error <@^671(5) — Record — Evidence.
    A letter in evidence, construed as one of agency, not being in the record, the finding of agency, with a circumstance tending to support it, cannot be disturbed, though there is evidence tending to show prior different and inconsistent relation.
    2. Carriers &wkey;>132 — CONVERSION — UNAUTHORIZED DELIVERY — INJURY—BURDEN OE PROOF.
    The shipper suing for conversion, by delivery other than to shipper’s order, contrary to the bill of lading, has the burden not only of showing this, but also that he was injured thereby.
    3. Appeal and Eebob &wkey;>704(2) — Record — Evidence.
    The finding against the plaintiff on a fact which he had the burden of establishing cannot be disturbed on appeal; the record not containing affirmative evidence of the fact.
    Appeal from Bexar County Court.
    Action by the Owosso Manufacturing Company against the Chicago, Rock Island & Pacific Railroad Company and others. From an adverse judgment, plaintiff appeals.
    Affirmed.
    H. M. Aubrey, of San Antonio, for appellant. Mason Williams, of San Antonio, for appéllees.
   SWEARINGEN, J.

The appellant, Owosso Manufacturing Company, brought this suit to recover $650 damages for conversion of wooden crates shipped by the appellant, but never delivered to appellant. The original petition complained of the Chicago, Rock Island & Pacific Railway Company, Cecil A. Lyon, and J. A. Baker, as receivers of the International & Great Northern Railway Company, and Duval West and A. R. Ponder, as receivers of the San Antonio, Uvalde & Gulf Railroad Company. No service was had upon the Chicago, Rock Island ■& Pacific Railway Company, which was dismissed. The death of Cecil A. Lyon, eoreceiver of the International & Great Northern Railway Company, was suggested and the cause discontinued as to him; it being shown that J. A. Baker became sole receiver. It was made to appear that Duval West terminated his authority as coreceiver of the San Antonio, Uvalde & Gulf Railroad Company, and that A. R. Ponder became the sole receiver of the San Antonio, Uvalde & Gulf Railroad Company. The suit was discontinued as to Duval West. There was no jury. Judgment was rendered against the appellant and in favor of A. R. Ponder, receiver of the San Antonio, Uvalde & Gulf Railroad Company, and Jas. A. Baker, receiver of the International & Great Northern Railway Company.

The original petition alleged the delivery to the common carriers sued, upon a. contract evidenced by a bill of lading by the terms of which the goods were t.o be delivered to appellant, the shipper, at Viola, Tex., and that the goods were neither delivered to the shipper by the defendant common carriers nor paid for by them, though delivery or payment was demanded. The receivers for the International & Great Northern Railway Company and the San Antonio, Uvalde & Gulf Railroad Company generally and specially excepted to the petition and filed general denials. It was specially answered that the bill of lading contained a provision absolving the defendant carriers from liability for goods after unloading at a nonagency station, which Viola, Tex. the destination, was. It was further answered that the crates were delivered to an agent or representative of appellant at a destination directed by the representative of appellant.

Upon request for findings of fact the trial court found that the freight was delivered to the common .carriers as alleged; that the bill of lading was issued to shipper’s order and described the merchandise; that the goods were transported and delivered to an agent of the appellant at a destination ordered by said agent; and further found that appellant suffered no damage by reason of the delivery.

Three assignments are presented, all 'of which complain that the judgment is contrary to the evidence for the reason that the deliv-. ery was made, without authority, to A. A. Whitney, who was not the agent of appellant, and that such unauthorized delivery was a conversion.

As has been stated, the trial court found as a fact that Whitney was an agent of appellant with authority to receive the freight, and that said agent did receive the freight at its authorized destination. This finding seems to have been excepted to. The statement of facts before us is so obviously incomplete that we are not able to- declare that the finding complained of has no evidence to support it, though the statement discloses a conflict upon the issue of agency; for instance, the evidence would sustain a finding that appellant sold the goods to Whitney, the sale to become effective when the goods were paid for, until the payment the goods to remain the property of the owner of the bill of lading, the testimony to that effect being the bill of lading which bound the carriers to deliver the goods to the order of appellant at destination, and the further fact that a draft for the amount of the purchase price was drawn on Whitney with the bill of lading attached. This evidence proves that the relation between appellant and Whitney was that of seller and buyer, which relation is repugnant to and inconsistent with the relation of principal and agent. Closner & Sprague V. Acker, 200 S. W. 421, and authorities therein cited. Had Whitney paid the draft and obtained the bill of lading, he would have acquired the right to receive the freight as owner, but not as agent. On the other hand, the trial court had before it a letter from appellant to Whitney, which was construed by the appellees as written authority from appellant for Whitney to receive the goods without presenting the bill of lading. This letter is not shown in the statement of facts. The construction placed upon the letter .iust mentioned by the carriers is corroborated by the fact found by the trial court, and supported by ample testimony, that appellant was notified of the delivery to Whitney promptly, but made no objection to said delivery for nearly a year, though there was continuous correspondence in reference to demurrage claimed by the delivering carrier.

It appears probable that when the bill of lading was issued, appellant considered that the relation between it and Whitney was that of vendor and purchaser; but that the relation was changed prior to the arrival of the shipment, and that the letter mentioned, but not copied in the statement of facts, evidenced that changed relationship. At any rate, in order to reverse the trial court’s finding of the fact of agency, it is necessary for the record to show affirmatively that the said letter did not authorize the trial court’s finding as a fact that the letter authorized Whitney to represent appellant as its agent to receive the freight at destination.

Then again the trial court found as a fact that: appellant suffered no loss by this delivery to Whitney. There is no evidence that appellant never received the crates; nor is there any evidence that appellant never received payment from some one for the crates. Appellant alleged that the carrier never paid for nor delivered the crates to it. The court found that the delivery was to appellant’s agent. If true, appellees are absolved. There is no positive testimony that this finding is not correct as above shown. But if this finding of the trial court were incorrect, and we were authorized by the record to so hold, a reversal of this case would be restrained by the entire absence from the statement of facts of any evidence to prove that appellant was not paid for its goods by Whitney or- some other purchaser. The burden was upon ap■pellant to establish this fact. No such evidence appears in the record. On the contrary, the trial court found that appellant suffered no loss by the delivery to Whitney. We are bound by this finding of fact in the absence of affirmative evidence to the contrary.

A carrier is bound by a bill of lading to shipper’s order to deliver the goods to the shipper’s order only, and a delivery not to shipper’s order is a conversion; if this conversion causes loss to the shipper, the carrier becomes liable for the damages proximately caused by such conversion. G., C. & S. F. Ry. Co. v. Ada Clark, 2 Willson, Civ. Cas. Ct. App. § 512; Trice v. Miller, 3 Willson, Civ. Cas. Ct. App. § 440; H. & T. C. R. R. Co. v. Adams, 49 Tex. 757, 758, 759, 30 Am. Rep. 116; Southern Pacific v. Maddox, 75 Tex. 309, 12 S. W. 815; Railroad Co. v. Seley, 31 Tex. Civ. App. 158, 72 S. W. 89; Railroad Co. v. Belton Oil Co., 45 Tex. Civ. App. 44, 99 S. W. 430; Express Co. v. Hertzberg, 17 Tex. Civ. App. 100, 42 S. W. 795; Express Co. v. Critzer, 42 S. W. 1017; Williamson v. Railroad Co., 138 S. W. 807; Railrdad Co. v. Hall & Brown, 23 Tex. Civ. App. 211, 56 S. W. 140, 142; Railroad Co. v. Bank, 77 Ark. 482, 92 S. W. 522, 113 Am. St. Rep. 160; G., C. & S. F. Ry. Co. v. Freeman, 4 Willson, Civ. Cas. Ct. App. § 246, 16 S. W. 109; Missouri, I. & M. Co. v. T. P. Ry. Co., 198 S. W. 1087. But the trial court has found that there was no conversion, and has also found that there was no loss. The evidence in the statement of facts before us does not authorize us to reverse those findings.

We overrule the three assignments, and affirm the judgment.
      @=»For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes