text:
    TRINITY & B. V. RY. CO. v. GEARY.
    (No. 2738.)
    (Supreme Court of Texas.
    Jan. 20, 1915.)
    1. Trial (§ 321%) — Verdict—Concurrence of Jurors — Grounds of Negligence.
    A verdict, in an action for personal injuries, in which part of the jurors found the defendant negligent as charged in one count of the petition and the rest found it negligent as charged in another count, was contrary to Rev. St. 1911, art. 5217, providing that no verdict shall be rendered in any cause except upon the concurrence of all the jurors, the enactment of which statute was authorized by Const, art. 5, § 13. •
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 742; Dec. Dig. § 321%.]
    2. Courts (§ 247) — Jurisdiction—Supreme Court — “Substantive Daw.”
    Error in receiving such a verdict is error in a ruling upon the “substantive law” of the case, since it is a question of law that substantially affects the right of the defendant, and that ruling can therefore be reviewed by the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. | 247.

    For other definitions, see Words and Phrases, Second Series, Substantive Law.-]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (169 S. W. 201), and the defendant brings error.
    Judgment of the district court and of the Court of Civil Appeals reversed, and cause remanded.
    N. H. Lassiter, of Ft. Worth, and Andrews, Streetman,. Burns & Logue, of Houston, for appellant. Jno. Lovejoy and Presley K. Ewing, both of Houston, for appellee.

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

   BROWN, C. J.

An answer to the applica-. tion for writ of error having been filed, and the application granted, the case will now be disposed of.

Defendant in error instituted this suit in the district court of Harris county, seeking to recover from the railroad company damages for an injury received while he was in the employ of said company as foreman and while engaged “in hauling and unloading gravel from a train on the railroad of the plaintiff in error.” Negligence which caused the injury was set up in separate counts, but each count is in the same language, except as to the specific negligence.

The petition alleged [as stated by Higgins, J., in the Court of Civil Appeals (see 169 S. W. 203 et seq.)]:

“That while he was so engaged in riding, standing about the center of a fiat car, or, at any rate, thereop, where he had a right to be (which car was the second car’from the caboose at the north end of said train), the brakes were, unexpectedly to him, suddenly applied and the car suddenly and abruptly stopped, as would be in an instantly applied emergency, whereby he was thrown northward about 15 feet to the end of the car, and caused to fall onto and against the car and from the car to the ground, whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage. The allegation of negligence in the first count reads: ‘That one of defendant’s em-ployés engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes, and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid, which act on the part of defendant’s said employé in so handling said car was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid. * * * ’
“The allegation of negligence in the third count reads: ‘That aforesaid train, so causing injury to plaintiff as aforesaid, including its operation, handling, and equipment, was under the exclusive management and control of the defendant or its employés other than plaintiff, and the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care; and plaintiff’s said injuries, so suffered on account of said brakes being suddenly applied so as to.produce said sudden and abrupt stop of the car, were proximately caused by negligence of the defendant, or of its agents or employés acting for it within the scope of their employment in that behalf, due to a want of ordinary .care either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped, but the particular or particulars of which negligence are unknown to plaintiff, and he cannot more definitely or with greater certainty specify such. “ * * ’ .
“Defendant answered by general denial and plea of assumed risk and contributory negligence.
“Upon the issues raised by the pleadings, the jury was instructed:
“ ‘If you believe, from the evidence, that one of defendant’s employés engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the adr, and that thereby the cars were caused to separate and to burst or part the air hose and to apply the air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding suddenly and abruptly, and that by reason thereof plaintiff was thrown, and caused to fall and suffer injuries substantially in the manner alleged, and if you further believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then fipd for the plaintiff under the first count of his petition, and so say by your verdict. * * *
“ ‘If you do not find that an operative of the train uncoupled the cars without turning, the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car -on which plaintiff was riding suddenly and abruptly stopped, and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not, in the ordinary course of things, happen. if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or employés acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict. * * *
“ ‘If you find plaintiff entitled to recover under the first count, you need not consider his right to recover or not under the third count.
“ ‘If you do not find plaintiff entitled to recover under the first count, then, unless you believe from a preponderance of the evidence that some defect in the train existed, and that defendant or its agents or employés knew thereof, or in the exercise of ordinary care should have known thereof, within a reasonable time to have remedied it, and that such defect, if existing with the knowledge, or negligent lack of knowledge, on the part of the defendant, was a proximate cause of alleged injuries to plaintiff, then you cannot find for plaintiff under the third count under the claim of negligent equipment of the train, and in that event you will decide whether or not plaintiff is entitled to recover under said third count under the claim of negligent operation of the train, as before submitted to you. * '* *
“ ‘If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count, the form of your verdict will be: “We, the jury, find for plaintiff, under his first count, and assess his damages at $- (stating the amount).”
“‘If‘your verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and 'do find him entitled to recover under his third count, the form of your verdict will be: “We, the jury, find, for plaintiff, under his third count, and assess his damages at $- (stating the amount).”
“ ‘If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under his third count, the form of your verdict will be: • “We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at ip-(stating the amount).”
“ ‘If your verdict is in favor of the defendant, its form will be: “We, the jury, find for the defendant.” ’ ”

Section 13 of article 6 of our Constitution, adopted in 1876, contains this provision:

“In trials of civil cases, and in trials of criminal cases below the grade of felony in the district courts, nine members of the jury concurring may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it * * * provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.”

The Constitution became effective on the 15th day of February, 1876, and the Legislature assembled on the 18th day of April, 1876, when a law was enacted, now article 5217 of the Revised Statutes, which we copy:

“Art. 5217. .Entire jury must concur in verdict. — No ?erdict shall be rendered in any cause except upon the concurrence of all the members of the jury trying the same.”

The action of the Legislature reflected public sentiment, and that law remains in force. It would be a waste of time to cite cases to support a statute so plain. We note, however, the emphatic terms in which the law is expressed, “No verdict shall be rendered." There remains for our consideration the question, Does it appear from the verdict rendered that all of the jury impaneled in this case concurred in the finding as presented to the court?

The court submitted to the jury two grounds of negligence as charged in plaintiff’s petition, set out in the first paragraph of the charge copied above, in substance, that an employs of the defendant in discharge of his duty, uncoupled cars of the train without turning the angle cocks and confining the air, which caused plaintiff’s injury.

The third ground of liability cannot be condensed and preserve its character. We, therefore, copy it:

“If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped, and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not, in the ordinary course of things, happen if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars ■and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or employes acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict.”

The grounds of recovery were submitted in the alternative in this language:

“If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count the form of your verdict will be: ‘We, the jury, find for plaintiff under his first count, and assess his damages at $ — -— (stating the amount).’
“If your verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and do find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find for plaintiff under his third count, and assess his damages at í¡>-(stating the amount).’
“If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at $- (stating the amount).’ ”

The jury returned this verdict:

“We, the jury, find plaintiff, Morris Geary, entitled to recover under his first and third counts, and assess his damages at $20,000.00 (twenty thousand dollars).”

Interpreted by the charge, the verdict clearly expresses that a part of the jury found for plaintiff under the first ground, and part under the third ground. It is manifest that some of the jury based their finding on the first, and some on the third ground, but all did not agree upon either. There being no “concurrence” of all of the members of the jury on either ground of negligence, the action of the district court in receiving the verdict was in direct disregard of the statute.

Counsel for defendant in error assert that this court has no jurisdiction of the application, because it does not present error in ruling upon the substantive law of the case. This court has defined the term “substantive law,” as applied to applications for writs of error, thus:

“(5) If the case be one in which the Court of Civil Appeals has erroneously declared the substantive law of the case, that the ruling complained of was upon a question or questions of law that substantially affected the right of the plaintiff to recover or the right of the defendant to maintain his defense.”

The denial of a statutory and constitutional right to have the concurrence of all of the jurors “substantially affects the right of the defendant to maintain its defense.” This court has jurisdiction. Because of the error of the trial court in receiving the verdict contrary to. the plain language of the I statute, the judgments of the Court of Civil Appeals and of the district court are reversed, and this cause is remanded.


source: Caselaw Access Project

author: PIODGES, J.

license: Public Domain

text:
    BUIE et al. v. PENN et al.
    (No. 1353.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1914.
    On Motion for Rehearing Jan. 26, 1915.)
    1. Trespass to Tby' Title (§ 41) — Peior Possession — Prima Facie Title.
    In trespass to try title, prior possession of property in plaintiffs’ grantors establishes a .prima facie title sufficient to recover in the absence of rebuttal by defendant.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    2. Trespass to Try Title (§ 45) — Continuous Use — Instruction.
    In trespass to try title, a charge that, if the land was inclosed by a fence for 10 years, plaintiffs could not recover, unless they asserted ownership by “continuous use” thereof for 10 years, was not erroneous because it did not use the words “continuous cultivation, use, or enjoyment” employed in the statute.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. f 67; Dec. Dig. § 45.]
    3. Adverse Possession (§ 19) — Possession-Requisites.
    To perfect a title by limitation, the land must not only be inclosed with a fence, but “cultivated, used, or enjoyed.”
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dee. Dig. § 19.]
    4. Adverse Possession (§ 24) — Continuous Possession.
    When “use” of lánd is relied upon to establish title, it must be continuous.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 114, 115; Dec. Dig. § 24.]
    On Motion for Rehearing.
    5. Trespass to Try Title (§ 35) — Proof-Variance.
    The rule that, when a party specially pleads a title to real estate, he cannot prove any other, does not apply where title by limitation is specially pleaded.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    6. Trespass to Try Title (§ 38) —Prior Possession — Prima Facie Title.
    A finding that plaintiffs had no title by limitation does not destroy the presumption of title, raised by proof that their grantors had prior possession of the property.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    Appeal from District Court, Rusk County; W. R. Stephen, Judge.
    Trespass to try title by D. A. Buie and R. W. Simpson, against D. W. Penn and others. Judgment for defendants, and plaintiffs appeal.
    Reversed in part, and remanded.
    G. L. Florence and Warren & Briggs, all of Gilmer, for appellants. J. H. Beavers and W. G. Russell, both of Winnsboro, for appel-lees.

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

   PIODGES, J.

In June, 1913, the appellants, Buie and Simpson, instituted this suit against the appellees in the form of an action of trespass to try title to recover a tract of land described as lying south of the Von Rhoeder survey in Upshur county.' The land was shown by the evidence to be a part of the Ridgeway survey. The petition also prayed for an injunction to restrain the defendants from cutting any timber on the land sued for. A title based upon adverse possession for five and ten years was specially pleaded.

The testimony showed that in 1885 this tract of land was. claimed by J. U. and W. R. Camp, who at the time owned another large tract situated in the Von Rhoeder survey. Their land on the Von Rhoeder survey was inclosed by a wire fence which extended south and included within the same inclosure the lánd in controversy in this suit. That the Von Rhoeder survey was occupied by tenants of the Camps and was partly in cultivation, but no part of the Ridgeway tract was occupied by tenants or in cultivation. It is also shown that this land was used during the fall and winter, in common with the rest of the land inclosed, as a pasture for stock. That the stock would be turned out when the time arrived for planting crops in the spring, and remain out till the crops were gathered in the succeeding fall. Some time subsequent to 1885, a man by the name of Holmes acquired an interest from J. L. and W. R. Camp in the land on the Von Rhoeder survey, and seems to have claimed in common with the Camps th'e ownership of the land in question. In 1895 Buie and Simpson purchased 700 or 800 acres from the Camps and Holmes. The deed described their purchase as being in the Von Rhoeder survey, but at the time they purchased the fence inclosing the land in controversy was pointed out as being the south boundary line of the land sold. There was evidence tending to show that the Camps previous to that time claimed the ownership of the land, and that Buie and Simpson thought it was a part of their purchase. Several years after the purchase by Buie and Simpson their lines were surveyed, and it was then discovered that this particular tract of land was not in the Von Rhoeder survey and was not included in their deed from the Camps, and Holmes. The testimony was conflicting as to the extent to which this fence on the south side of the land in controversy was maintained during the time the Camps claimed,the land. The appellants offered evidence tending to show that a good substantial wire fence was constructed there in 1885, and that it was kept in good repair continuously for 10 years or more; that occasionally breaks would occur in it by reason of overflows or the falling of timber; but that these were repaired and the fence was depended upon during the greater part of that time to protect the crops grown on the Von Rhoeder survey from the depredations of stock; and that it was sufficient, with the exception of the occasional breaks, to hold stock placed therein for pasturage. The appellees offered testimony tending to show that this fence was neglected; that it was permitted to remain down and out of repair for a considerable length of time, and that practically no attention was given towards keeping it in repair for the purpose of holding stock or of excluding stock running on the commons from entering the inclosure. After 1896 the use of this tract of land was practically discontinued and the fence was not kept up.

Eor evidence of title the appellants rely upon proof of the prior possession of the Camps and Holmes, as well as their adverse possession, which, it is claimed, extended over a period of at least 10 years, and the deed from the Camps and Holmes conveying this particular tract of land several months prior to the institution of this suit. The appellees offered in evidence deeds showing a good paper title from the state to an undivided one half interest, the other half interest not having passed from T. C. Gillespie, the original grantee from the state. The court submitted the issue of a title by limitation depending upon adverse possession for a period of 10 years by the Camps and Holmes, and the jury returned a verdict in favor of the appellees for all of the land.

The appellant requested a special charge directing the jury to And for them for at least one-half of the land. This was refused, and that ruling forms the basis of the first group of assigned errors. The request for the charge was predicated upon the prior possession of the Camps and Holmes, with which the appellants connected themselves by the deed from those parties in 1912. That prior possession is sufficient evidence of title to establish a prima facie right of recovery in the plaintiff is now well settled. Randell v. Robinson, 146 S. W. 717, just decided by this court, but not yet officially reported; Watkins v. Smith, 91 Tex. 589, 45 S. W. 560; Boyd v. Miller, 22 Tex. Civ. App. 165, 54 S. W. 411; House v. Reavis, 89 Tex. 629, 35 S. W. 1063. The appellants, having connected themselves with the prior possession of the Camps and Holmes, were, under the facts of this case, entitled to this instruction. It was unnecessary that their possession should be continuous down to the date of the institution of the suit. The fact that it antedated, so far as the evidence disclosed, possession by any other person, was sufficient. Boyd v. Miller, supra.

At the instance of the appellants the court gave the following special charge:

“Gentlemen of the Jury: At the instance of the plaintiffs you are charged that the land was inclosed by a fence, and if the fence was sufficiently substantial to afford a reasonable protection against the stock (cattle and horses) of the neighborhood, then such inclosure, if any, is sufficient to show exclusive and adverse possession of the land, and, although you should find that there was an occasional breaking of the fence by floods or cutting of the wire by others, by reason of which the cattle and horses of the neighborhood entered upon the land, such would not constitute a break in the possession, unless you should also find that the fence was left in such a condition as that the land was open to the cattle and horses of the -public for such a length of time as to justify the belief that J. L. Oamp, W. R. Camp, and S. J. Holmes, and after them J. L. Gamp and W. R. Oamp, did not intend to continue the exclusive appropriation of the same.”

In view of this special charge, we think there was no error in refusing the other special charges requested by the plaintiffs of which they complain in other assignments.

At the request of the appellees the court gave the following special charge:

“Gentlemen of the Jury: At the request of defendants, I charge you that if you find by a preponderance of the evidence that the plaintiffs, or those under whom they claim, had the land in controversy inclosed by a wire fence for a period of 10 years prior to the 1st day of January, 1913, that fact would not entitle plaintiffs to recover, unless you find from a preponderance of the evidence that they asserted ownership to same by a continuous use of said inclosure for the full period of ten years.”

Appellants complain of the giving of this charge “for the reason that the same was not the law, and they (the jury) were thereby led to believe that, although the land was substantially fenced so as to keep out stock, * * * yet the fact that cattle did not graze this particular land during crop season would interrupt the running of the statute.”

We are not prepared to say that the jury would probably draw the conclusions which the appellants urge as possible under this charge. As before stated, there was evidence tending to show a practical abandonment of the use of the land in controversy as a pasture for a considerable length of time. It is not sufficient, in order to perfect a title by limitation, that the land be merely inclosed with a fence. The statute requires that it be “cultivated, used, or enjoyed.” McDonald v. McCrabb, 47 Tex. Civ. App. 259, 105 S. W. 238; Buster v. Warren, 35 Tex. Civ. App. 644, 80 S. W. 1063; Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027; Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265; Hutcheson v. Chandler, 47 Tex. Civ. App. 124, 104 S. W. 434. We are not called upon to determine the distinction between the terms “use” and “enjoyment” as employed in the statute. The only character of “use” or “enjoyment” to which the evidence shows this property was applied was the pasturage of cattle; and while this charge is not strictly in accordance with the terms of the statute, by reason of its failure to incorporate the term “or enjoyment” in connection with “use,” we do not think the omission operated to the detriment of the appellants in misleading the jury. When use is relied on for title it must be continuous. We cannot say as a matter of law that even the breaks in the use made of the property by the Camps, as shown by some of the evidence, would not justify the jury in holding that the úse was not sufficiently continuous. It was for them to determine, under all the facts, whether or not there had been such a continuous use for the period of at least 10 years.

We have discovered no error which justifies remanding this case for another trial. Under the evidence we have concluded that the appellants were entitled to .recover an undivided one-half interest, and judgment to that effect will be here rendered in their favor, as well as costs of this suit.

On Motion for Rehearing.

Upon further consideration we have concluded that the ends of justice are more likely to be subserved by remanding this case for another trial, instead of here rendering judgment, as had previously been ordered.

Counsel for appellees insist that inasmuch as the appellants specially pleaded a title by limitation, and there being a finding by the jury against them on that evidence of title, they occupy the status of naked trespassers, from whom any joint owner of the premises may recover the possession. This conclusion is predicated upon the proposition that, when a party specially pleads a title to real estate, he cannot prove any other. That rule is not applicable to a pleading which specially sets up a title by limitation. Mayers v. Paxton, 78 Tex. 196, 14 S. W. 568; McAdams v. Hooks, 47 Tex. Civ. App. 79, 104 S. W. 432. The reasons for the distinction are fully discussed in the cases cited. If the restriction invoked does not apply in this ease, then the appellants were entitled to the benefit of the presumptions of title resulting from the prior possession of the Camps, with whom they were connected, such ¿as would exist, had they failed to make any special averments as to the basis of their title.

A finding that they had no title by limitation did not destroy the probative effect of this prior possession as prima facie evidence of a paper title. If it had been shown that the appellants in fact had no other claim of title, except that based upon adverse possession, then upon proof of part ownership the appellees would clearly be entitled to recover the entire tract of land. The failure to establish that fact is what prevents an affirmance of the judgment of the court below.

The former judgment of this court will be modified as indicated, and the cause remanded for another trial.


author: JENKINS, J.

text:
    DIBRELL v. CITY OF COLEMAN et al.
    (No. 5414.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Pleading (§ 214) — Demurrer—Effect.
    A demurrer admits the allegations of the petition.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.]
    2. Municipal Corporations (§ 57) — PowERS OE.
    A municipality has no power except that granted, expressly or by reasonable implication in its charter.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. § 57.]

      Z. Constitutional Law (§ 254) — Due Process op Law — Nuisance.
    Though Rev. St. 1911, art. 844, authorizes municipalities to define and declare what shall be a nuisance, a municipality cannot, in view of Const, art. 1, § 19, prohibiting the deprivation of property without due process of law, make that a nuisance which is not one of itself.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. § 735; Dec. Dig. § 254.]
    4.Nuisance (§ 3) —What Constitutes — “Nuisance Per Se.”
    To keep a single hog in a sparsely settled portion of a town far removed from other dwellings is not a “nuisance per se.”
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.

    Por other definitions, see Words and Phrases, First and Second Series, Nuisance Per Se.]
    5.Injunction (§ 105) — Scope op Remedy.
    Ordinarily, an injunction will not be granted to stay criminal proceedings.
    [Ed: Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.]
    6. Injunction (§ 105) — Ground»—Criminal Prosecution.
    To entitle one to an injunction to stay criminal prosecution he must show not only that the law is invalid, but that its enforcement will interfere with his property rights.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.]
    7. Animals (§ 2) — “Property.”
    A hog is “property,” and the owner has all property rights to protect his ownership.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 1-4; Dec. Dig. § 2

    For other definitions, see Words and Phrases, First and Second Series, Property.]
    8. Injunction (§ 105) — Right to Injunction.
    A municipality which included considerable agricultural land passed an ordinance prohibiting the keeping of hogs within its boundaries and making the keeper liable to a penalty of from $5 to $10 for every day he might keep the animal. Though the ordinance was unreasonable and void as to the keepers of hogs in outlying-districts, the authorities attempted to enforce it by criminal prosecutions. HeM that, as the ordinance tended to deprive the owners of hogs of their property by interfering with the beneficial use of the animals, and as the criminal prosecutions might be continuous, the enforcement of the ordinance, in view of Rev. St. 1911, art. 4643, which has broadened the remedy of injunction, will be enjoined.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Action by J. B. Dibrell, Jr., against the City of Coleman and others. From a judgment dissolving a temporary injunction, plaintiff appeals.
    Reversed and remanded.
    J. K. Baker and Snodgrass, Dib Jell & Snod-grass, all of Coleman, for appellant. Oritz & Woodward and Garland Woodward, all of Coleman, for appellees.

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

   JENKINS, J.

This is an appeal from a judgment of the district court of Coleman cqunty dissolving a temporary injunction against the officers of Coleman City, theretofore granted, restraining them from prosecuting appellant for keeping hogs within the corporate limits of said city. As the case was decided on general demurrer, the allegations of appellant’s petition, for the purpose of this appeal, must be taken as true.'

These allegations, in addition to those of the official character of the defendants, are, in substance: That the city of Coleman is incorporated under the general laws of this state. That the corporate limits of said city include a superficial area of more than two square miles, from 50 to 75 per cent, of which is pastural land, used only for agricultural and pastural purposes, much of which, by reason of being subject to overflow, is unfit for any other purpose. The petition particularly describes numerous tracts, ranging from 5 to 70 acres, alleged to be inclosed under separate fences, and used only for agricultural and pastural purposes, some of which are alleged to be occupied as places of residence by the owners, and others are alleged to be unoccupied by any residence. The tracts thus particularly described, exclusive of the tract occupied by appellant, aggregate 419 acres. That about 50 per cent, of the inhabited portion of said city is sparsely inhabited. That there is no sewer system in said city, except in the business and thickly settled portions thereof, and that said system does not extend to that portion of the city where appellant’s premises are situated. That said premises are situated on the southern boundary of said city in a sparsely settled portion, thereof. That said premises consist of 27 acres of land inclosed with a hog-proof fence, 20 acres of which are under a separate inclosure; and that there are no residences thereon, except the one occupied by appellant, and one occupied by a tenant, about 500 yards northwest. That there are no residences in said city south of appellant’s premises and none west. That the nearest residence in a northerly direction is 200 yards distant, and the nearest in an easterly direction is distant a quarter of a mile. That there are from 50 to 75 acres of unoccupied pasture land lying east of appellant’s premises. Appellant alleges that he is the owner of 1% acres of land in another portion of said city, SOO yards distant from any residence, and adapted to raising hogs thereon.

The petition sets out the ordinance complained of, which makes it unlawful for any person “to keep or detain or to permit to be kept or detained any hog in any inclosure upon any premises occupied or controlled by such person within the corporate limits of the city of Coleman,” declaring such act to be “a public nuisance, and injurious to the public health and comfort.” That each day any hog shall be so kept or detained shall constitute a separate offense, and affixing a penalty of not less than $5 nor more than $10. It is further alleged that since about November 1, 1913, appellant has kept on said premises omy one brood sow, and from about February 10, 1914, to March 20th her eight pigs. That appellant keeps on said premises a number of milch cows and sells separated cream and feeds the skimmed milk to said sow and to her pigs while he keeps them. That he is thus enabled to utilize his skimmed milk, which would otherwise be wasted, and to maintain said brood sow and her pigs with practically no expense to himself. That he is able to sell his pigs at one month old at from $3 to $4 each, and that his profit from keeping said sow and selling her progeny is $50 per annum. That he owns no land outside of said city, and that if said ordinance is enforced it will destroy his business of raising pigs, and destroy the value of his skimmed milk, which, on account of there being no sewerage on„or near said premises, he would be compelled to throw upon the ground, and thereby create a breeding place for flies, which would carry disease germs and endanger the health of himself and family, and other inhabitants of Coleman City. That his pen in which said sow is kept is about 8 by 15 feet, and is partly floored and roofed, and that the unroofed portion is covered with coal cinders and ashes to a depth of from six to eight inches, and never becomes sloppy or muddy, even in the rainiest season. That at all times he has kept said pen in a sanitary condition, and that no odor, offensive to himself and family, or to any one else, has ever arisen therefrom, and that said pen has not endangered the health or comfort of any one, and, in the manner in which the same is kept, will not do so. It is further alleged that said premises are suitable for keeping hogs for- hire, and that he believes he would be able to lease his pasture for hogs and particularly for brood sows to run therein to other people in said city at a profit of from $100 to $200 per annum, but for the fact that such persons are deterred by the existence of said ordinance and fear of prosecution thereunder from keeping hogs in his said inclosure. It is further alleged that a number of other citizens who own inclosed agricultural lands in the thickly settled portions of said city (naming four such persons and alleging that there are others) are desirous of keeping hogs on their premises, but are deterred from so doing by reason of the existence of said ordinance, and of threatened prosecutions thereunder, and that he brings this suit, not only in his own behalf, but in behalf of the persons named and of all others similarly situated.

Appellant alleges that he has heretofore been arrested by the officials of said city for violating said ordinance, and tried and acquitted, notwithstanding which said officials are threatening to, and if not restrained will, prosecute him for each day that said hogs have been or shall be kept upon said premises. It is alleged that said ordinance is void as being in contravention of section No. 1 of the fourteenth amendment of the Constitution of the United States of America; and of article No. 1, § 19, of the Constitution of the state of Texas. That he has no adequate remedy at law, and that unless injunction is granted he will suffer irreparable injury to his property rights.

Assuming the allegations of fact in appellant’s petition to be true, and taking judicial cognizance of those things which ought to be generally known (Ex parte Botts, 154 S. W. 221, 44 L. R. A. [N. S.] 629), we think that the ordinance complained of is void. A municipal corporation has no authority, except that granted in its charter, either directly or by reasonable implication. Ex parte Battis, 40 Tex. Cr. R. 104, 48 S. W. 514, 43 L. R. A. 863, 76 Am. St. Rep. 708; Ex parte Robinson, 30 Tex. App. 493, 17 S. W. 1057.

The city of Coleman is authorized by its charted “to abate and remove nuisances and to punish the authors thereof by penalties, fine and imprisonment, and to define and declare what shall be nuisances * * * and direct the summary abatement thereof.” R. S. art. 844. But the power to define a nuisance does not empower a city to make that a nuisance which is not such per se, and does not become such by reason of the surrounding circumstances or the manner in which it is done. Const, of Texas, art. 1, § 19; San Antonio v. Salvation Army, 127 S. W. 860; Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; Ex parte Robinson, 30 Tex. App. 493, 17 S. W. 1057; Ex parte Glass, 49 Tex. Cr. R. 87, 90 S. W. 1108; Milliken v. City Council, 54 Tex. 394, 38 Am. Rep. 629; Ex parte Patterson, 42 Tex. Cr. R. 256, 58 S. W. 1011, 51 L. R. A. 654; St. Louis v. Heitzeberg, 141 Mo. 375, 42 S. W. 955, 39 L. R. A. 551, 64 Am. St. Rep. 516; Comfort v. Kosciusko, 9 Am. & Eng. Anno. Cases, 178; Dobbins v. Los Angeles, 195 U. S. 235, 25 Sup. Ct. 18, 49 L. Ed. 175; State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; Grossman v. Oakland, 30 Or. 478, 41 Pac. 5, 36 L. R. A. 612, 60 Am. St. Rep. 832; St. Louis v. Packing Co., 141 Mo. 375, 42 S. W. 955, 39 L. R. A. 551, 64 Am. St Rep. 516; Tates v. Milwaukee, 77 U. S. (10 Wall.) 497, 19 L. Ed. 984.

To keep a hog is not, within itself, unlawful, and is not a nuisance per se. It can scarcely he contended that to keep a single hog in an inclosure of 20j 60, or 70 acres, such as is alleged to exist within the corporate limits of the city of Coleman, and in the sparsely settled portions' thereof, would produce any disagreeable odor, or interfere with the comfort or health’ of any inhabitant of that town, for which reason the ordinance is too broad and sweeping, and cannot be upheld as a legitimate exercise of the power to suppress nuisances. The facts alleged by appellant show that keeping a hog by him is done under such surroundings and in such a manner as not to injuriously affect any one.

We do not mean to say that an ordinance forbidding the keeping of hogs in the business or thickly inhabited portion of a city would he void as applied to a particular individual who kept his hog pen in a cleanly and sanitary condition. It is well known that hog pens, in the manner that they are commonly kept, do become a nuisance to those living in close proximity thereto, and it might be too great a burden on a city, whose duty it is to protect its inhabitants from nuisances, to employ an inspector of hog pens, to see that they were kept sanitary. We are passing only on the conditions alleged in the petition, and what we do say is that an ordinance of a town embracing numerous large tracts of inclosed and unoccupied pasture and agricultural lands, forbidding the keeping of hogs anywhere in said town, is an unwarranted invasion of property rights, and is therefore void.

It is a general rule, too well established to require citation of authorities, recognized in a number of the cases herein cited on other points, that an injunction will not be granted to stay criminal proceedings. Courts of law are created to try those who are accused of committing crime, and courts of equity will not usurp their jurisdiction. Philadelphia v. Stimson, 223 U. S. 620, 32 Sup. Ct. 340, 56 L. Ed. 577. This is particularly the case where the prosecution, pending or threatened, does not involve the validity of a law or ordinance, but only an issue of fact as to whether the acts done or contemplated amount to a violation of such law or ordinance. Greiner v. Truett, 97 Tex. 381, 79 S. W. 4; Galveston v. Mistrot, 47 Tex. Civ. App. 63, 104 S. W. 417; McDonald v. Denton, 132 S. W. 826. There are, however, well-established exceptions to the rule as above stated, one of which is that injunction will be granted to stay a criminal prosecution in order to avoid a multiplicity of suits. Houston v. Richter, 157 S. W. 189; Railway Co. v. Harmon, 156 S. W. 122; Coal Co. v. St. Louis, 130 Mo. 323. 32 S. W. 649, 51 Am. St. Rep. 566; Brizzolara v. Ft. Smith, 87 Ark. 105, 112 S. W. 184.

In Houston v. Richter, supra, the Court of Civil Appeals for the First District, speaking through Mr. Justice Reese, said:

“There is another ground of equity jurisdiction under which the right to grant the injunction in the present case can be sustained. Plaintiffs, 46 in number, suing for themselves and all others similarly interested, allege that they and such other persons have a common right, and that they and each of them are threatened with prosecution under said ordinance, unless they either cease to carry on their business or comply with the illegal requirements of the ordinance, and that each of them will be harassed with successive and continuous prosecutions. It seems entirely clear that the only adequate relief, if not the only relief at all, from such successive prosecutions, is by the remedy of injunction. An investigation of the authorities leads to the conclusion that in such case, and especially when, as here, such prosecution will seriously impair, if not destroy, appellees’ property rights, equity will interfere by the writ of injunction to prevent a multiplicity of suits. To put each of the parties to his remedy of a defense to such prosecutions by setting up the invalidity of the ordinance does not, in fact, afford him full, complete, and adequate relief. In City of Tyler v. Storey, 44 Tex. Civ. App. 250, 97 S. W. 856, from the Court of Civil Appeals of the Fourth District, cited and relied upon by appellant, referring to the general rule that equity will not interfere by injunction to restrain criminal prosecutions under a void ordinance, the court says that: ‘It seems that the multiplicity or oppressiveness of criminal prosecutions also constitutes an exception to the rule and affords a ground for the interference of equity.’ 1 Pom. Eq. No. 255 et seq. No. 261. In the following cases the right to injunction on this ground is expressly affirmed: 1 Joyce on Inj. No. 531; Newport v. Bridge Co., 90 Ky. 193, 13 S. W. 720, 8 L. R. A. 484; Schlitz Brewing Co. v. City of Superior, 117 Wis. 297, 93 N. W. 1120; Sylvester Co. v. St. Louis, 130 Mo. 323, 32 S. W. 649, 51 Am. St. Rep. 566; Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; City of Hutchison v. Beckham, 118 Fed. 399, 55 C. C. A. 333; Chicago v. Collins, 175 Ill. 445. 51 N. E. 907, 49 L. R. A. 410, 67 Am. St. Rep. 224; Wilkie v. City of Chicago, 188 Ill. 444, 58 N. B. 1004, 80 Am. St. Rep. 182. The Wilkie Case last cited is in all respects on all fours with the present case. We think the petition presented proper grounds for the grant of the writ of injunction, assuming that the ordinance in question is void.”

If the ordinance complained of is enforced against appellant, the prosecutions will certainly be numerous. Commenting upon similar ordinances, Chief Justice Brace of the Supreme Court of Missouri said:

“The ordinances are continuous, and plaintiffs’ business is continuous, and under the ordinances, for each wagon load of coal sold and delivered in violation of the restrictive provisions thereof, the plaintiffs each become subject to an action in the municipal courts of the city for such violation.” Coal Co. v. St. Louis, supra.

So in the instant case, appellant is liable to prosecution for each day that he has kept a hog on his premises since November 1, 1913, and for each day that he may hereafter so keep a hog. Appellant brings this suit, not only for himself, but for all others similarly situated, who desire to keep hogs in said city, and who will likewise be subjected to numerous prosecutions should they attempt to exercise their legal rights in the premises.

In order to entitle one to an injunction to stay a criminal prosecution, he must show, not only that the ordinance or enactment complained of is illegal, but also that its enforcement will interfere with his property rights. In such case he is entitled to injunctive relief. Austin v. Cemetery Ass’n, 87 Tex. 330, 28 S. W. 528, 47 Am. Rep. 114; Goar v. Rosenberg, 53 Tex. Civ. App. 218, 115 S. W. 653; Salvation Army v. San Antonio, 127 S. W. 860; Robinson v. Galveston, 51 Tex. Civ. App. 292, 111 S. W. 1076 Coal Co. v. Conley, 67 W. Va. 129, 67 S. E. 613; Fellows v. Charleston, 62 W. Va. 665, 59 S. E. 623, 13 L. R. A. (N. S.) 740, 125 Am. St. Rep. 990, 13 Ann. Cas. 1185; Dobbins v. Los Angeles, 195 U. S. 235, 25 Sup. Ct. 18, 49 L. Ed. 177; Philadelphia v. Stimson, 223 U. S. 620, 32 Sup. Ct. 340, 56 L. Ed. 570; L’Hote v. New Orleans, 51 La. 93, 24 South. 608, 44 L. R. A. 91.

A hog is property; to steal it is a felony; to willfully injure it is a misdemeanor; for its conversion, the owner may recover damages. It is no answer to the allegations herein to say that the ordinance does not purpose to take hogs from their owners. It proposes to deprive them of the means by which hogs may become valuable to citizens of Coleman, situated as is the appellant, and to render brood sows and boars valueless as such. “You do take my house when you do take the props that doth sustain my house.” The right to use property in such manner as to derive revenue therefrom is as much a property right as is the title to property. For illustrations' as to what is property, and what a property right, and what amounts to such an interference with the same as will entitle one to injunctive relief, see, in addition to the authorities above cited, R. S. art. 5652; Ex parte Robinson, 30 Tex. App. 493, 17 S. W. 1057; State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; Fellows v. Charleston, 62 W. Va. 665, 59 S. E. 623, 13 L. R. A. (N. S.) 740, 125 Am. St. Rep. 990, 13 Ann. Cas. 1185.

Appellant’s allegation with reference to the use of his lands, not only show an unlawful invasion of his property rights, but also brings him within the principle announced in Austin v. Cemetery Ass’n, supra, viz.: That when the existence of an illegal ordinance acts in terrorem over others, so as to deprive one of his property rights, injunction should be granted to stay prosecutions thereunder. Appellant alleges that the existence of the order complained of deprived him of substantial revenue, by preventing others from keeping hogs in his pasture. However, we do not regard such fact to be essential to the right of injunction. The illustration in reference to the butcher in the Cemetery Case, supra, is dicta. We think it is sufficient that it be made to appear that the ordinance is void and that its enforcement in the manner attempted or threatened will destroy the property rights of appellant. To the essentials for injunctive relief there is usually added, and that the plaintiff is without an adequate remedy at law.

Our statute broadens the equity jurisdiction of' courts in the matter of injunction. R. S. art. 4643. We held in Brownwood v. Telephone Co., 152 S. W. 713, in which case a writ of error has been refused by our Supreme Court, that:

“Appellee, having shown itself entitled to an injunction under the principles of equity provided by statute, was entitled to the writ where it was threatened with irreparable injury to its property rights, independent of whether it had an adequate legal remedy or not.”

Mr. Justice Rice, who wrote the opinion, cited in support of this proposition R. S. art. 4643; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Goar v. City of Rosenberg, McDonald v. Denton, and San Antonio v. Salvation Army, supra; and, also, Sullivan v. Dooley, 31 Tex. Civ. App. 589, 73 S. W. 82, and Ex parte Warfield, 40 Tex. Cr. R. 413, 50 S. W. 933, 76 Am. St. Rep. 724.

However, in this case, we think appellant was without an adequate remedy at law. In Houston v. Richter, supra, referring to the threatened prosecutions under a void ordinance, the court said:

“To put each of the parties to his remedy of a defense to such prosecutions by setting up the invalidity of the ordinance does not, in fact, afford him full, complete, and adequate relief.”

In Coal Co. v. St. Louis, supra, the court said:

“The fact that in each of such suits the plaintiffs might plead successfully the invalidity of the ordinances as a defense thereto does not give them an adequate remedy. They are entitled to be protected from the expense, vexation, and annoyance of such a multiplicity of suits, in consequence of their continuance of a legitimate business.”

Excerpts from other opinions to the same effect could be multiplied, but we deem it unnecessary to do so. To our minds, the mere existence of the ordinance complained of is sufficient, if no relief can be had from a court of equity, to deter any man of ordinary ’prudence from keeping a hog anywhere and under any conditions within the corporate limits of the city of Coleman.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for a new trial on its merits.

Reversed and remanded.


author: HUFF, C. J.

text:
    BERGMAN PRODUCE CO. v. BROWN.
    (No. 691.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Accord and Satisfaction (§ 7) — Liquidated Demands — Payment of Less Sum than Due — Effect.
    Payment of a less sum on the date fixed for payment of a liquidated demand, or after default, is not in satisfaction for the whole, though it was agreed that the payment should satisfy the -whole, because there is no consideration for the discharge of the demand.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 46-58, 66, 94, 95; Dec. Dig. § 7; Payment, Cent. Dig. § 183.]
    2. Accord and Satisfaction (| 1) — Agreement Constituting.
    An accord and satisfaction is the result of an agreement between creditor and debtor, and, where the creditor abates the claim against the debtor, it must appear that he understood, or should have understood, that he was so doing when receiving the consideration claimed, and an accord and satisfaction, to be enforceable, must be supported by a good or valuable consideration, however slight.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 1-13; Dec. Dig. § 1. For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction.]
    3. Accord and Satisfaction (§ 10) — Compromise and Settlement (§ 6) — Disputed ■ Claims — Payment—Consideration.
    Where there was a bona fide dispute as to the amount due on an account, a payment by the debtor of a less sum than that demanded by the creditor as a payment in full, and so accepted by the creditor, amounted to an accord and satisfaction supported by a consideration, barring recovery of any balance claimed by the creditor.
    [Ed. Note. — For other eases, see Accord and Satisfaction, Cent. Dig. J§ 67-74; Dec. Dig. § 10; Compromise and Settlement, Cent. Dig. §§ 35-50; Dee. Dig. § 6.]
    4. Accord and Satisfaction (§ 10) — Compromise and Settlement (§ 6) — Disputed Claims — Payment—Consideration.
    Where there was a bona fide dispute as to the amount due on an account, and the debtor delivered to the creditor a check for a less sum than the amount demanded by the creditor, with the statement indorsed on it that it was in full payment, and the creditor accepted the check and cashed it, there was an accord and satisfaction.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. J§ 67-74; Dec. Dig. § 10; Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.]
    5. Appeal and Error (§ 934) — Findings— Presumptions.
    Where the evidence on an issue not submitted was practically undisputed, the facts in support of the judgment will, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, be deemed as found by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.]
    6. Accord and Satisfaction (§ 10) — Compromise and Settlement (§ 6*) — Disputed Claims — Payment.
    Where an agent of a creditor, while in the discharge of his authority with reference to 'a demand of his principal, learned that the debtor disputed the amount due, and with such knowledge accepted a check stating that it was in full payment of the amount due, and the principal cashed the check and appropriated the proceeds, there was an accord and satisfaction barring a further recovery by the principal.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. J§ 67-74; Dec. Dig. § 10 ; Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.]
    7. Principal and Agent (§ 178) — Knowledge of Agent — Knowledge of Principal.
    Knowledge of an agent obtained in the business of his principal, and while acting within the scope of his apparent authority, is notice to the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 680-684; Dec. Dig. § 178.]
    Appeal from Cottle County Court; W. E. Prescott, Judge.
    Action by the Bergman Produce Company against R. C. Brown. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Slay & Simon and Theodore Mack, all of Ft. Worth, J. M. Whatley, of Paducah, and D. E. Magee, of Quanah, for appellant Browne & Hawkins, of Paducah, for appel-lee.

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

   HUFF, C. J.

This is the third time this case has been before this court on appeal from a verdict and judgment in favor of the appellee. The former appeals are reported in 141 S. W. 153, and 156 S. W. 1102. The appellant, Bergman Produce Company, sued upon a verified account for a balance of $396.34. The answer of the appellee upon the last trial in the court below does not admit the account sued for, except as the same may be defeated by his answer as he had theretofore done, but he denies that the account is just and true in whole or in part, and denies that all just and lawful offsets, payments, and credits have been allowed on the same. It is further alleged that he purchased certain items Of merchandise, and that it was agreed between the parties that defendant was to pay plaintiff at the end of each month, and plaintiff would allow defendant 10 per cent on all goods purchased, and that plaintiff would give the account credit for all goods returned according to the inventory made by plaintiff, and also for all goods lost or damaged; and by a trial amendment defendant alleged that, owing to the length of time and inability to obtain his books, he was unable to set out all the identical items of damages and goods lost and those which were never received, but that they amounted to $275, and that he had not received credit therefor. He sets out a partial list, giving the items thereof, which amounts to the total sum of $182.-50; that about the 1st day of June, 1910, the plaintiff, by its agent, demanded a settlement with the defendant and at that time claimed an indebtedness due for about $350; that defendant was not indebted in that sum and so informed the plaintiff, and that it had not allowed the credits as above alleged, and he then informed the agent he owed plaintiff only $198.20, which plaintiff then disputed and contended for the sum of $350, which defendant refused to pay, and that he then informed plaintiff’s agent he would pay only $198.20, which was the amount justly due, and further informed the agent he would write a Chech for $198.20 and send the same to plaintiff in full settlement of the indebtedness, and they could accept it or not; that after the controversy he did mail to plaintiff a check for the sum of $198.20, and wrote on the check, “In full payment of account to June 1, 1910;” and that plaintiff accepted and cashed the check and appropriated the proceeds. After this settlement defendant continued to do business with the plaintiff during the months of June and July, and that about August 1,1910, when plaintiff called for a settlement of all accounts due at that time, plaintiff claimed a sum of money greatly exceeding the amount actually owing; defendant claiming the true amount to be about $350. Plaintiff refused to accept that sum, but after the last controversy, in order to have a peaceable settlement, defendant, about the 2d day of August, 1910, delivered to plaintiff a check for $441.90, with the writing thereon, “Given in full payment of account for months of June and July;” and that plaintiff, with full knowledge of all the above jiacts, accepted the check, cashed it, and appropriated the sum of money so obtained. After that date, during the month of August, 1910, defendant purchased merchandise to the sum of $15.85, which sum was not due when this suit was instituted, and he tendered that amount into court.

The plaintiff, by supplemental petition, denied that any part of the $396.34 sued for had been settled for. It is also specially alleged that the controversy with Prank Hook, plaintiff’s agent, was had after the $198.20 check was sent as alleged. It is also denied that plaintiff agreed to allow defendant 10 per cent, discount but did agree to allow 5 per cent, discount o.n certain syrups, such as Dr. Pepper, etc., which were allowed in the account. Plaintiff denied any knowledge of the damage to numerous articles alleged to have been damaged, amounting to $275, but alleges that it had given credit for all items about which defendant notified it, and that it had given proper credits for all items, and denies specifically that defendant returned items for some $30, for which he did not receive credit on account. Plaintiff admitted that its agent, Frank Hook, accepted the check for $441.90 in full settlement of the June and July, 1910, ¿recount, and admits the account for those months had been fully paid by the check of that date. The facts in this case show that the account upon which the suit is based is made up of sundry items of- | merchandise and produce. The first item therein is of date February 28, 1910, and the last item August 3, 1910, totaling the sum of $1,732.37. The credits thereon, as evidenced by the sworn account, amounted to the sum of $1,336.03. The account is also credited in July and August with certain items returned to plaintiff by defendant, amounting to $120. There are items amounting to the sum of $227.27, charged to Brown and Jahn, which run from the opening of the account until March 12th thereafter. After this,'the testimony indicates Brown bought out Jahn and assumed the above amount. The rest of the items were furnished Brown upon his individual account, and the partnership items were brought forward and charged to Brown. The appellee Brown in this case testified:

“When I began to do business with them (appellants) they agreed with me that I was to pay them at the end of each month for goods I bought from them, and they were to allow me 10 per cent, discount on all goods purchased from them. They also agreed to give me credit on my account for all goods I returned to them; also for all goods that were lost or damaged. I did not receive any of the 10 per cent, rebate on goods purchased. I had goods damaged and lost to the amount of about $165. It has been so long now, and I have not my books, as they have gotten lost or misplaced since I left Paducah. They were to give me. credit for these losses. I was to have received credit for whatever property I returned. I cannot state the exact amount now of goods returned, but I am sure it was as much as $25.”

He further testified he had a dispute with appellant’s agent, Frank Hook, with reference to the credits claimed by him; that the claim was made by him in good faith; and that Hook put him off about the items claimed, but did not claim his (appellee’s) contention was not right. He testified he did not owe anything on the accounts at the time of the suit, except the $15.85 purchased after August 1st, which was not due when the suit was instituted. He stated that he made the check for $198.20 some few days after he had the dispute with Hook over the account.

“When I had the dispute with Frank Hook, I told him that that ($198.20) was all I owed them, and he said I owed them more, and, as he started to leave the store, I told him I wanted to settle with him, but was not going to pay them any more than I owed them. I then told him I would mail to the house this amount that I claimed I owed them and write on it, ‘In full settlement,’ and they could take it or not, and I did so, and they took it.”

The evidence is sufficient to show that the check for $198.20, as drawn, had the stipulation indorsed thereon, “In full payment, of account to June 1, 1910,” and was sent to appellant at Ft. Worth, who received and cashed it and appropriated the amount thereof. The account sued on is credited with this sum as of the date of the check. The evidence also shows that the check for $441.90, with the indorsement, “Given in full payment of account for months of June and July,” was given by appellee and accepted by appellants. The account is also credited with this amount as of its date. The appellant’s principal place of business was at Ft. Worth, Tex., and it had a branch house at Quanah, Tex. The evidence further shows that the goods were shipped out from the branch house at Quanah. Frank Hook testified he was—

“manager of the Bergman Produce Company at Quanah; as agent, I have the power of making contracts and adjustments and settlements. I have authority to make settlements with customers in regard to accounts with them.”

And he further testified: That he owned one-sixth interest in appellant’s company, and that he did not agree to a 10 per cent, rebate on the goods sold, but did agree to give 5 per cent, on certain articles, and agreed to give defendant credit for all returned goods, and that he did so, and that appellee claimed there were some articles lost, but the company’s books did not show that way. That when he had a statement he called on Brown for settlement.

“It was long about the 1st of June that I called on him for that purpose. I was not here at the time for the purpose of getting settlement. I do not remember just why I didn’t have a settlement with him. I cannot tell just what came up.”

The witness further testified that there was no dispute between him and appellee about the account until after the first check was issued and given; that he knew nothing about it, stating that it was in full settlement: and that' Brown did not tell him he would so draw it. The facts show that, when the goods were billed out from Quanah, a report of such billing was made to the Ft. Worth house and the account kept at that office. It further appears all cash on accounts was remitted to the Ft. Worth house. The bookkeeper at that place received the mail, and says he received the check for $198.20 on June 4th, and thinks it had written on it, “In full settlement of account to date.” This witness testified that at the time he received the check he had no notice of ' the dispute between Hook and Brown as to the account in question. The jury, upon special issues, found that Brown and Jahn purchased the goods sued for from February 28 to June 1, 1910, and that R. O. Brown assumed for those purchased by Brown & Jahn; that the appellant did not agree to pay 10 per cent, discount on the goods purchased; that for the goods lost or damaged, which were charged to appel-lee on the account, he was given credit therefor on the account; and that he received credit for all goods returned. In answer to the ninth issue:

“Did the defendant, R. O. Brown, and the plaintiff’s agent, Frank Hook, have a bona fide dispute over the account due the plaintiff by the defendant for goods purchased up to June 1, 1910 ? Answer: Fes.”

They further found this dispute was before the check was issued for $198.20 and sent to the Ft Worth office.

The eleventh issue is as follows:

“If you have answered that the defendant, R. O. Brown, and Frank Hook had a bona fide dispute over the amount due plaintiff for the goods up to June 1, 1910, then did the agent of Bergman Produce Company at Ft. Worth, Tex., who received and credited the check for $198.20, know of such bona fide dispute at the time he received and cashed the check for $198.-20? Answer: No.” ■

The trial court upon the verdict rendered judgment for the appellee, reciting in the judgment the finding, in addition to the verdict, that there was an accord and satisfaction between the parties on the account sued on, and that the same was binding upon both parties, and by reason thereof appellant was not entitled to recover anything; that there was a writ of garnishment issued on the 6th day of August, 1910, against the account of R. C. Brown for $425, and since such time withheld from defendant and therefore decreeing 6 per cent, interest on said sum from the 6th day of August, 1910. and that plaintiff pay all costs; and further finding that since the filing of the suit the sum of $15.85 became due and had been tendered and deposited in court by defendant, and judgment was rendered for appellant for that sum.

The first, second, and fourth assignments complain at the' action of the court in refusing to sustain appellant’s motion to .render judgment for the sum of $380.61, the balance due on the account up to June 1, 1910, and in rendering judgment for the appellee and in holding that the check for $198.20 was an accord and satisfaction 'of the account to June 1, 1910, for the reason that there was no sufficient evidence to support accord and satisfaction; that the check is not shown to have been upon a bona .fide dispute of which the agent receiving the same was cognizant; that the account was conclusively proven, and there was no consideration to support accord and satisfaction ; and that the verdict established the correctness of the account, and that the agent who received the check had no knowledge of any dispute between defendant and Hook, and, as a matter of law, there was' no accord and satisfaction. It was decided at an early date, as regards liquidated demands, that “the mere payment of a lesser sum on - the date fixed by the contract or after default cannot be in satisfaction for the whole, though it was agreed that such payment should satisfy the whole, because of a want of consideration for the discharge of the whole.” Ruling Case Law, vol. 1, p. 184, § 15; Lanes v. Squyres, 45 Tex. 382; McGehee v. Shafer, 15 Tex. 198; Bowdon v. Robinson, 4 Tex. Civ. App. 626, 23 S. W. 816; Woodall v. Insurance Co., 79 S. W. 1090.

The above rule has frequently arisen in this state and received the same solution. However, in Ruling Case Law, it is said:

“It is observable that the number of cases in which the rule has been applied and judgment rendered for the plaintiff, despite the agreement to discharge, is small in comparison with those in which the courts have been able to discover some circumstances, however trifling, which could be construed as a technical legal consideration. The general rule is not favored by the courts, and the cases show, in a striking manner, the extreme ingenuity and assiduity to which the courts have exercised to avoid its operation; and, as it is rigid and unreasonable and defeats the express intention of the parties, it should not be extended to embrace cases not within the very letter of it.” Railway Co. v. Clark, 178 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099.

We also recognize the rule that “an accord and satisfaction is the result of an agreement between the parties and, like all other agreements, must be consummated by a meeting of the minds of the parties; if the creditor is to be held to abate his claim against the debtor, it must be shown that he understood or should have understood that he was doing so when he received the consideration claimed therefor,” and that, to be enforceable, it must be supported by a good or valuable consideration. This consideration does not necessarily need to be adequate. If it is insignificant, or technical, merely, the contract will be sustained, provided the consideration is valuable, however slight, and will be deemed sufficient to support accord and satisfaction. Rotan Grocery Co. v. Noble, 56 Tex. Civ. App. 226, 81 S. W. 586.

In this ease the jury found there was a bona fide controversy as to the amount due on the account befoi’e the check was issued. If this is true, then we think it would be a sufficient consideration to support accord and satisfaction. Hunt v. Ogden, 125 S. W. 886; Oristler v. Williams, 130 S. W. 608; Olson v. Burton, 141 S. W. 549. The acceptance of an amount less than due as a full settlement of the disputed claim is a bar to recovery, of the balance. Daugherty v. Herndon, 27 Tex. Civ. App. 175, 65 S. W. 891; Bradshaw v. Davis, 12 Tex. 336. The question is, not whether the appellee was correct in his contention in that he really had a legal and ■equitable- defense to the claim in whole or in part, but consists in the fact that he in good faith urged or asserted a defense which he really believed was substantial. Insurance Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1014, citing Bank'v. Blair (N. Y.) 44 Barb. 653.

In this case the jury found that the appellee was liable for the amount of the account, and that he was not entitled to the ■discount of 10 per cent., and that he had received credit for the goods returned, lost, and damaged, which appellee asserted he had not, but they also found that the dispute of the account was made by him on those grounds before the check was issued, and that it was made by him in good faith, and that it was a bona fide dispute. Under the findings of the jury, this was a sufficient consideration for the agreement of accord and satisfaction. A check was issued for the sum of $198.20, “in full payment of account to June 1, 1910.” This check was dated June 3d, and cashed June 4th, and on August 2d appellee gave his check for $441.90, “given in full payment of account for months of June and July.” This last check is admitted by appellant in its supplemental petition as having settled and paid for all the goods for those months, and the evidence shows that to be true; but, as found by the jury, all the accounts up to June 1st amounted to about $364.76. At the time of issuing the check June 3d for $198.20, appellee contended he did not owe more, and the jury found that this contention was made in good faith. Under those conditions the check was issued.

“When a claim is disputed, and the debtor sends to his creditor a check or other remittance which he clearly states is in full payment of the claim, and the creditor accepts the remittance or collects the check without objection, it is generally recognized that this will constitute accord and satisfaction.” Ruling Case Law, vol. 1, p. 196, § 32; Olson v. Burton; Hunt v. Ogden; Cristler v. Williams, supra; Barham v. Bank, 94 Ark. 158, 126 S. W. 394, 27 L. R. A. (N. S.) 439; Sanders v. Standard Wheel Co., 151 Ky. 257, 151 S. W. 675.

It was the right of appellant to accept the check as proposed, or reject it, but there could be no modification of its terms by its will alone, without the concurrence of the appellee. The jury did not find the cheeks issued with the indorsement thereon, as shown by the pleading and the evidence, but this issue was not submitted to them for their finding. The fact, however, is that it was so issued as a payment in full to June 1st, and was so received by appellant and cashed by it, and the proceeds appropriated, which facts are practically undisputed, and will “be deemed as found by the court in such manner as to support the judgment.” Vernon’s S. C. Stats, art. 1985.

It is insisted, under the holding of this court on the last appeal, that there was no agreement for the reason that the dispute was with one agent and the check was sent to another, who received and cashed it without knowledge of the dispute, and therefore the minds of the parties did not meet as to the consideration. As we understand, the facts in the former appeal did not show that Hook, with whom the dispute was had, was clothed with authority to settle and adjust the account, and, in so far as the record then showed, appellant had no knowledge of the appellee’s contention that he did not owe the amount, when it received and cashed the check, and hence it was held that no agreement was shown. On this appeal it is shown, without dispute, Hook was the manager of the Quanah branch house, from which the goods' were shipped, and that he had authority to settle and adjust the claim, and that he called upon appellee June 1st with reference thereto, and also that he owned a one-sixth interest in the appellant company. He, however, denies that there was at that time any dispute. On this point the appellee contradicts him. The jury resolved this conflict -in favor of the appellee. The appellee further says that at that time he told Hook he did not- owe the amount claimed, but owed only $198.20, and that he would issue a check for that amount, and write on it that it was a payment in full up to June 1st, and send it to appellant at Ft. Worth, and that it could accept or not, as they pleased, and that they did accept the check as so drawn and procured the money on it.

It will be noted on the former appeal it was held that the check for $441.90, with the writing that it was in full settlement for June and July, was an unambiguous contract when accepted by appellant. In that instance upon the former appeal, the facts justified that holding. So at this time, we think, under the facts on this appeal, the acceptance of the first check should be held to be an unambiguous contract between the parties. The finding of the jury under the evidence charged appellant with notice of the dispute between Hook and appellee. Its agent, Hook, while in the discharge of his authority, with reference to this claim, canie into possession of the knowledge of the dispute, which knowledge was appellant’s, and, with such knowledge, it accepted the check with the clear declaration that it was full payment of the account up to June 1st. After this time it continued to sell appellee goods through June and July, and again accepted a check for $441.90 in full payment of the account for those months.

The knowledge of the agent obtained in the business of his principal, and while acting within the scope of his apparent authority, is notice to the principal — is elementary. It is based on the fiction of identity, and also upon the fact that it is the duty of the agent to communicate his knowledge to his principal, and the presumption that he has performed his duty. Ins. Co. v. Calvert, 100 iS. W. 1033, 1036. In this case, when the appellant accepted the check in full payment of the account, it understood, or should have understood, that there was a controversy, and that if accepted, such check, under the stipulation, appellant thereby abated its claim against appellee for the balance claimed to be due on the account. If that was not a full payment, it then knew the, fact and should have refused to accept the check on the conditions named, and returned it to appellee.' We do not think it could then hold the check and speculate on the chances of securing a full recovery. The assignments above named will be overruled.

The third assignment will be overruled. As we understand the allegation in appellee’s answer and the trial amendment, the-appel-lee alleged wherein the account was not just and all items of credit allowed, and that, wherein it was not specific as to the particular items, an excuse was alleged for not being more specific in the answer. The fifth assignment will be overruled for the reasons heretofore given.

The case will be affirmed.


author: RASBURX, J.

text:
    TEXAS MIDLAND R. R. et al. v. FOGLEMAN.
    (No. 7217.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 5, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Appeal and Error (§ 499) — Questions Reviewable — Instructions Given and Refused — Exceptions.
    Under Rev. St. 1911, arts. 1971, 1973, 2061,, as amended by Acts 33d Leg. c. 59 (Vernon’s iáayles’ Ann. Civ. St. 1914, arts. 1971, 1973, 2961), requiring objections to the charge before the same is read to the jury, authorizing either party to present requested instructions, and declaring that the action of the court in giving or refusing instructions shall be deemed approved, unless excepted to as provided by law,, assignments of error complaining of the general, charge and of refusal of requested charges cannot be considered, unless the record shows that objections to the general charge were made before it was read to the jury, and that exceptions, to the action of the court in giving or refusing special charges were in like manner presented,, and the objections and exceptions must be preserved by bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; -Dec. Dig. § 499.]
    2. Carriers (§ 213) — Carriage op Live Sto ck — Deli vert.
    Where a carrier delivers live stock at market on the day agreed on, though at such hour and in such condition as to make it necessary to carry the stock over to the following day’s market to get the best results, the delivery is a compliance with the contract, and it is not liable for any resulting damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by C. J. Fogleman against the Texas Midland Railroad and others. From a judgment for plaintiff against certain of the defendants, they appeal.
    Affirmed.
    Henry C. Coke, of Dallas, Dashiell & Coon, of Terrell, and Andrews, Streétman, Burns & Logue, of Houston, for appellants. Wynne & Wynne, of Kaufman, for appellee.

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

   RASBURX, J.

Appellee sued appellants, Texas Midland Railroad, Paris & Great Northern Railroad Company, and St. Louis & San Francisco Railroad Company, in the court below for $476.12 damages, alleged to be the injuries inflicted upon a shipment of live stock consigned by appellee to the Texas Midland Railroad for transportation to St. Louis, and in turn delivered by said railroad.' to the others, who were connecting carriers. The grounds of negligence alleged .were rough handling and delay en route, resulting in' shrinkage in weight, poor appearance, and' a decline in the market between the period' when the stock should have arrived and the time in which they did arrive and could be placed upon the market. Appellants’ defenses will be referred to in considering such assignments as may be considered upon the record before us. There was a trial by jury resulting in a verdict for appellee for $331.05 against the Texas Midland Railroad and the St. Louis & San Francisco Railroad Company, and in favor of Paris & Great Northern Railroad Company, followed by similar judgment, from which the defendants so cast have appealed.

The first, second, third, sixth, seventh, thirteenth, and fourteenth assignments of error complain either of the court’s general charge or of the action of the court in refusing certain charges specially requested by appellants. These assignments may not be considered, since all of them fail to comply with recent amendments of the practice acts. In the case of W. R. Case & Sons Cutlery Co. v. A. I. Folsom, 170 S. W. 1066, decided by this court November 21, 1914, and not yet officially reported, we held:

“Consideration of the issue raised by said assignment must be declined, for the reason that the record fails to show a compliance with the statutory rule by which the action of the court in refusing the charge may be reviewed. Article 1973, R. S. 1911, governing the giving and refusing of special charges, was amended at the regular session of the Thirty-Third Legislature, and the method of bringing such proceedings into review before this court radically changed. Gen. Laws, Reg. Sess. 33d Leg., pp. 113, 114. To the provisions of the original articles, familiar to bench and bar, which confer upon litigants the right to request special charges and have the giving or refusing of the same reviewed, the Legislature has added by amendment the further provision that the action of the trial court in the respect stated may now be reviewed only when ‘such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.’ The only indorsement upon the special charge, the refusal to give which is sought to be reviewed, other than the clerk’s file mark, is the signature of the trial judge under the word ‘Refused.’ The bill of exception preserving the point contains no more than the charge. As a consequence, the record fails to disclose whether the said special charge was ‘prepared and presented to the court and submitted to opposing counsel for examination within a reasonable time after the (general) charge was given to the parties or their attorneys for examination.’ The necessity and importance of showing-such facts affirmatively by the bill is obvious from an inspection of article 1971, relating to the court’s general charge, and article 2061, relating to the giving or refusing of special charges, both amended at the same time that article 1973 was amended. By the two articles it is contemplated clearly that all attacks upon the charge to be given to the jury, whether by the general charge or by specially requested charge, shall be submitted to the trial judge in advance of reading same to the jury, in order that he may add to or correct same, if erroneous. Failing to do so, ‘all objections not so made and presented shall be considered as waived,’ as relates to the general charge; and, as relates to the giving or refusing of special charges, the court’s action ‘shall be regarded as approved, unless excepted to’ in the manner stated. The amendments provide no less than that, and a repetition of the fact in' our own languagé could neither add to nor detract from their force. Otherwise how may it be said from the record that the trial court was given opportunity to correct his charge or give the requested one if it should have been given?” Insurance Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Culver, 168 S. W. 514; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Tomlinson, 169 S. W. 217; Texas Midland Railroad v. Becker & Cole, 171 S. W. 1024, decided by this court November 28, 1914, and not yet officially reported.

The record, in the instant ease not only fails to show that the objections to the general charge and the exceptions to the court’s refusal to give the special charges were seasonably presented, but further fails to show a bill of exceptions of any sort to the court’s action in any of the particulars complained of. Article 2061, R. S. 1911, as amended, provides, in so many words, that the action of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to as provided by the foregoing articles. Article 2061 is a part of chapter 19 of the Revised Statutes, regulating the taking of bill of exceptions, etc. The articles that precede it in that chapter and which are designated “foregoing” articles in the amendment are exact and precise instructions as to the time, requisites, and manner of taking bills of exception. Thus it is clear that the record must not only show that all objections to the general charge were made before same was read to the jury, and that all exceptions to the action of the court in giving or refusing special charges were in like manner presented, but in order to have such proceedings reviewed, same must be preserved by bill of exceptions. All doubt is removed when the original article 2061 is compared with the amended one. The old article provided that the action of the court on the matters just detailed “shall be regarded as excepted to in all cases.”' By the amended articles such action “shall be regarded as approved, unless excepted to.” The record in this case does contain what purports to be objections to the general charge and exceptions to the refusal to give the special charges requested, but, as said in Texas Midland Railroad v. Becker & Cole, supra, it does not appear that such objections and exceptions were “presented to the trial judge and approved by him. * * *• It [the paper containing the objections and exceptions] is simply signed by counsel for appellants, and marked ‘filed’ by the clerk. The paper cannot therefore be regarded as a bill of exceptions; nor can it be considered in any sense as a part of the record exhibiting the presentation of objections to the general charge or exceptions to the court’s action in refusing the special charges.”

The third assignment of error raises an issue which, this court has expressly decided adversely to the contention of appellants; that is, that when the carrier delivers live stock at market on the day agreed upon, even though delivered at such hour and in such condition as to make it necessary to carry them over to the following day’s market in order to get the best results, such delivery is a compliance with its contract, and it is not liable for any resulting damages. Railway Co. v. White, 160 S. W. 1128; Railway Co. v. Wells, Nash & Nash, 153 S. W. 659; Tesas Midland Railroad v. Becker & Cole, 171 S. W. 1024, decided by this court November 28, 1914, and not yet officially reported.

The fifth, eighth, and ninth assignments of error are overruled. The identical issues are decided against appellants in Tesas Midland Railroad v. Becker & Cole, supra. The cases are companions and were submitted upon practically identical records.

The tenth, eleventh, twelfth, fifteenth, and sisteenth assignments are likewise covered by the opinion in the case just referred to.

Finding no reversible error in the record, the judgment is affrmed.


text:
    ELLIOTT v. CLARK et al.
    (No. 7235.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 2, 1915.)
    1. Sales (§ 39) — Kbaud—Subsequent Agreements — Defect.
    Where a purchaser of a half interest in a business, conducted by the seller as sole owner, on learning of the owner’s fraudulent concealment of a mortgage on the property agreed to assume the mortgage debt in consideration of the owner surrendering his interest in the business, the agreement was lawful, and the original concealment was immaterial.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 78; Dec. Dig. § 39.]
    2. Appeal and Error (§ 1092) — 'Veedico>— Conclusiveness.
    A verdict on conflicting evidence is conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    3. Appeal and Error (§ 499) — Questions Review able — Rulings on Instructions— Record.
    Where the record fails to show by bill of exceptions that objections to the charge were presented before the charge was read, or fails to disclose that the objections were preserved by bill of exceptions, assignments of error complaining of the charge cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    Appeal from Navarro County Court; R. R. Owen, Judge.
    Action by W. F. Elliott against M. Y. Clark and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    See, also, 157 S. W. 437.
    Jack & Jack, of Corsicana, for appellant.

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

   RASBURX, J.

Appellant sued appellees in ¿he court below for $250, the amount paid by appellant for a half interest in a cold drink and bowling alley business being conducted in Corsicana at the time of the purchase by appellee H. B. White. The ground upon which recovery was sought was that appel-lee White, at the time of the purchase, fraudulently concealed from appellant the existence of a mortgage securing a debt of approximately $275, under which the property was subsequently sold, because of appellant’s inability to discharge the debt. Among other defenses, appellees alleged an agreement on the part of appellant to pay the mortgage debt. There was a jury trial, which resulted in verdict for appellees followed by similar judgment.

This is the second appeal of this case. Elliott v. Clark, 157 S. W. 437. The pleading on the first appeal and that in the instant ease are practically identical. There was no statement of facts on the first appeal, but the record did contain findings of fact by the judge, and the facts found by the court on the former trial to the extent thereof are, in substance, the same as are contained in the statement on this appeal, which are adopted as part hereof. The statement of facts in the instant case, however, contains additional evidence tending to show that after appellant bought a half interest in the business from White, and after he had learned of the debt and mortgage against the property, he agreed with his partner, White, that he would pay off the same, if White would surrender his interest in the business to him, to which White assented, and delivered the business to appellant, who conducted the same until his subsequent failure to pay the mortgage debt and the consequent foreclosure of the mortgage and sale of the property.

If, as a matter of fact, appellant, after ascertaining, the existence of the debt and mortgage, and even though appellees had fraudulently concealed its existence, agreed, in consideration of appellee White surrendering to him his interest in the business, to assume and pay off such pre-existing debt, such agreement was lawful and enforceable, and the original concealment of the mortgage debt became immaterial.

Appellee testified to. such an agreement and appellant denied it. The conflict was submitted to the jury, and the jury resolved the conflict in favor of appellee. Hence appellant’s first and third assignments of error, which, in substance, assert that the evidence was insufficient to sustain the verdict and judgment, are not well taken, and must be overruled.

The fourth assignment complains of the fifth paragraph of the court’s general charge, while the record fails to affirmatively show by bill of exceptions that the objections urged on appeal were urged in the court below and were presented to the trial judge before he read his general charge to the jury.

The fifth assignment shows a similar condition. While the sixth and seventh assignments do disclose objections in the record, they fail to disclose that such objections were preserved by bill of exceptions.

None of them as a result comply with the recent amendments of the practice acts, and cannot be considered. Insurance Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Culver, 168 S. W. 614; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Tomlinson, 169 S. W. 217; Texas Midland Railroad v. Becker & Cole, 171 S. W. 1024, and Texas Midland Railroad v. Fogleman, 172 S. W. 568, decided by this court, respectively, November 28, 1914, and December 6, 1914, both not yet officially reported.

Finding no reversible error in the record, the judgment is affirmed.