text:
    WALKER v. FLANARY.
    (No. 5492.)
    (Court of Civil Appeals of Texas. Austin.
    June 16, 1915.)
    1. Evidence <&wkey;>442 — Parol Evidence — Date oe Maturity oe Note.
    Where no specific date of payment is named in the note, it is permissible to prove by extrinsic evidence, and especially by a notation in the margin of the note, the date agreed upon by the parties.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. <&wkey;>442.]
    2. Trial <&wkey;252 — Issues—Submission.
    An issue unsupported by the evidence should not be submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by W. J. Flanary against W. S. Walker. From a judgment for plaintiff, the defendant appeals.
    Affirmed.
    McClellan & McClellan, of Gatesville, for appellant. H. E. Trippet, of Hico, and Eid-son & Eidson, of Hamilton, for appellee.
   KEY, C. J.

Appellee sued L. P. Gibbs, R. P. Marchbanks, and W.- S. Walker and recovered a judgment upon a promissory note against all the defendants, and W. S. Walker has appealed.

In appellee’s petition it is alleged that the defendants had executed two notes for the same debt, but that the one of later date was not to be delivered and become operative as a substitute for the former note until all the interest was paid, which had not been done. At the trial, appellee abandoned any claim on the second note, and sought to recover only upon the first.

The main defense relied upon is limitation. The suit was filed February 14, 1914, and the note upon which recovery was had reads as follows:

$900.00. Hico, Texas, 10/23/1909. No. 2843.
“Due 10/23/1910.
“-- without grace, after date, for value received I, or we, as principals, jointly and severally promise to pay to W. J. Flanary or order nine hundred dollars in gold coin of the United States of the present standard of weight and fineness, or its equivalent, at the First National Bank, Hico, Texas, with interest at ten per cent, per annum from date until paid, interest to become as principal when due and bear the same rate of interest. The makers, sureties, guarantors, indorsers and assignors of this note hereby waive presentment for payment, notice of nonpayment, protest and notice of protest, and consent that time of payment may be extended without notice thereof. In case this note is placed in the hands of an attorney for collection or suit is instituted on it, I, or we, agree to pay ten per cent, additional as attorney’s fees.
L. P. Gibbs.
“W. 8. Walker.
“R. P. Marchbanks.
“P. O. Glenrose, Texas.”

Counsel for appellant contend, that what they term the marginal notation, “Due 10/23/1910,” is no part of the note, and therefore the latter was due upon demand, or immediately after its execution. If that contention is correct, the debt was barred by the four years’ statute of limitation, and the plaintiff should not have recovered. However, the plaintiff alleged in his petition that it was agreed and understood between the parties that the debt was to become due 12 months after the time when the note was executed; and the court instructed the jury that if they found that such was the agreement of the parties to return a verdict for the plaintiff for the amount of the debt. Under that instruction, the jury found for the plaintiff upon testimony which supports that finding. We are strongly inclined to hold that the note shows upon its face that the debt was to fall due October 23, 1910; but, if such construction is not correct, then no specific date of payment is named in the note, and it was permissible to prove by extrinsic evidence, and especially by the notation referred to, when the parties intended the debt to become due. Petty v. Fleischel & Smith, 31 Tex. 170, 98 Am. Dec. 524; Head v. Cleburne, etc., 25 S. W. 810. This case is distinguishable from Dark v. Middlebrook, 45 S. W. 963, and Washington County State Bank v. Bank & Trust Co., 168 S. W. 456, relied on by appellant. In the two cases last referred to, it was correctly held that, when the time of payment is clearly stated in the body of the note, that stipulation cannot be varied or controlled by a marginal notation indicating a different time of payment. In this ease, if the language, “Due 10/23/1910,” is not to be regarded as part of the body of the note, then the latter does not specify any particular time of payment, and therefore there is no inconsistency between it and the time indicated by the notation referred to , and shown by the testimony of witnesses.

While it is true that appellant and his codefendant Marehbanks averred in their answer that the language, "Due ,10/23/1910,” had been added to the instrument after they signed it, no testimony was presented which would have sustained that averment, and therefore no error was committed in refusing to submit that issue to the jury.

All of the questions presented in appellant’s brief have received due consideration, and our conclusion is that the judgment should be affirmed, and it is so ordered.

Affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    ADAMS v. FIRST NAT. BANK OF WACO et al.
    (No. 5491.)
    (Court of Civil Appeals of Texas. Austin.
    May 12, 1915.)
    1. Appeal and Error <&wkey;917 — Presumptions —Decision on Exceptions to Pleadings.
    On defendant’s appeal from a decision on exceptions to Ms pleadings, it must be assumed that all the allegations thereof are true.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. <§==> 917.]
    2. Pleading &wkey;>149 — Cross-Petition Against Codefendant — Sufficiency.
    A cross-petition by defendant in a bank’s action on a note signed by him in payment for stock of a corporation given as collateral, alleging that the cross-defendants were officers of the corporation; that they proposed to defendant that he execute his note for unsubscribed stock with the stock as collateral, and that they would arrange with the payee to advance the money with which to pay for the stock and to carry it for their use until they could sell it; that they would sell it and apply the proceeds of sale to payment of the note and so protect defendant from any liability thereon; that they sold a part of the stock and applied it on the note; that defendant signed a renewal note on the same; that such agreements were made with the knowledge and consent of the payee, who agreed that the cross-defendants should pay the note, and that defendant would not be called on to pay it — stated a cause of action against the cross-defendants for breach of contract, which might be asserted against them in a separate suit.
    [Ed. Note. — For other cases, see Pleading, Gent. Dig. § 301; Dec. Dig. <&wkey;>149.]
    3. Action <&wkey;25 — Complete Relief — Prevention of Multiplicity of Suits.
    One of the reasons for giving the courts both legal and equitable jurisdiction was that the equitable doctrine of avoiding a multiplicity of suits might be enforced, as it is the general policy of law to settle all matters between the same parties, and between all parties as to the same subject-matter, in the same suit.
    [Ed. Note. — For other cases, see Action, Gent. Dig. §§ 12A-145, 147-149, 153, 156-159, 313; Dec. Dig. <&wkey;>25.]
    4. Parties &wkey;>50 — Joinder—Exception.
    Under Rev. St. 1911, art. 1848, permitting additional parties to be brought in, it is the g'eneral exception to the rule as to the joinder of parties that the court in its discretion may refuse to allow additional parties defendant, who, though proper, are not necessary parties, where such action would prejudice plaintiff’s right by unduly delaying the trial of the cause.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. § 76; Dec. Dig. &wkey;>50.]
    5. Action &wkey;>47 — Joinder of Causes of Action-Actions Ex Contractu and Ex De-licto.
    Matters ex contractu and ex delicto should not be joined in the same suit, though they may be joined when they grow out of the same transaction, relate to the same subject-matter, and are dependent upon the same evidence.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 469, 470, 472-489; Dec. Dig. &wkey;47.]
    6. Contribution i&wkey;5-^JoiNT Tort-Feasors.
    No contribution is allowed between tort-feasors, though such rule will not be applied where the wrongdoers are not in pari delicto.
    [Ed. Note. — For other cases, see 'Contribution, Cent. Dig. §§ 6-9; Dec. Dig. <&wkey;>5.]
    7. Parties &wkey;>92 — Joinder—Waiver.
    A bank, suing the maker of a note, but failing to object within a year to the joinder of cross-defendants who had appeared and answered and were ready for trial, and agreeing to several contingent continuances, thereby waived its right to object, on the ground of delay, to such cross-defendants being made parties to suit; and, where the cross-defondants were proper, if not necessary, parties, the sustaining of an exception to their joinder was an abuse of the trial court’s discretion, especially as defendant might thereby incur the danger of having the statute of limitations successfully urged in his cause of action against the cross-defendants.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 150-152; Dec. Dig. &wkey;92.]
    8. Pleading <&wkey;149 — Cross-Petition Against Codefendants — Allegation and Proof.
    In an action on a note wherein defendant made his alleged sureties cross-defendants, he need not allege that the agreement of suretyship was in writing, as, if required to 'be in writing, written evidence would be admissible to prove the alleged contract.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § SOI; Dec. Dig. <®¿M49.]
    9. Bills and Notes <&wkey;460 — Action—Join-DER — CROSS-DEPENDANTS.
    In an action against the maker of a note, given in payment for a subscription to capital stock of a corporation, wherein defendant alleged that the note had been executed by him .at the request of the cross-defendants for their accommodation and benefit as stockholders and directors of the corporation, in that they were thereby enabled to issue additional shares of the corporation and deliver it to the plaintiff subject to sale by them, that defendant was only nominally, and that cross-defendants were primarily, liable on the note and had assumed its payment, the plaintiff had a cause of action against the cross-defendants to which the defendant was entitled to be subrogated, and the cross-defendants, primarily liable, were proper parties to the suit
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1434-1443; Dec. Dig. 460.]
    10. Bills and Notes <&wkey;119 — Parties Liable — Name on Note.
    No one is chargeable on a note unless his name appears as a party to it in some relation.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 255-259; Dec. Dig. <&wkey;> 119.]
    11. Evidence <&wkey;385 — Parol Evidence — Writing.
    In the absence of fraud, accident, or mistake, oral evidence is not admissible to contradict or vary the terms of a written instrument.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1757, 1'758; Dec. Dig. &wkey;3S5.j
    12. Principal and Agent &wkey;»145 — Undisclosed Principai^-Liability por Debt.
    While an undisclosed principal cannot be held as a party to a bill or note, he may nevertheless be held liable for the debt, so that, while an agreement in reference to the payment of a note may not be a good plea in bar to recovery thereon, it may furnish sufficient grounds for a suit for breach of'contract.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. &wkey;}145.]
    13.,Parties •&wkey;51 — New Parties — Persons Primarily Liable.
    One who, as between himself and a defendant in any suit, is the principal obligor may be impleaded by such defendant, who may have judgment over against such primary obligor; and in such case it is immaterial that the obligation arose upon a collateral contract or by force of law.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 77-82; Dec. Dig. &wkey;51.]
    Appeal from District Court, McLennan County; J. Walter Cocke, Special Judge.
    Action by the First National Bank of Waco against H. H. Adams, with cross-action by Adams against W. R. Clifton and others. Judgment for plaintiff on exceptions to defendant’s pleadings, and defendant appeals'.
    Reversed and remanded.
    J. D. Williamson, of Waco, and Alex. F. Weisberg and Thompson, Knight, Baker & Harris, all of Dallas, for appellant. Sleeper, Boynton & Kendall, Cross, Gross & Street, and Stribling & Stribling, all of Waco, for appellees.
   Statement of the Pleadings.

JENKINS, J.

1. On March 25, 1913, the First National Bank of Waco, which will be hereinafter referred to as the Bank, filed its petition in usual form, seeking to recover of appellant on his negotiable promissory note the sum of $18,616.77 and attorney’s fees, and also to foreclose a lien on 110 shares of stock in the Behrens Drug Company, which it alleged the appellant had indorsed and delivered to it to secure the payment of said note.

2. On June 5, 1913, the appellant filed his answer and by way of cross-action made parties defendant herein W. R. Clifton, H. C. Risher, E. Rotan, S. Archinold, and the Behrens Drug Company, who will be hereinafter referred to as the cross-defendants. On June 30, 1913, all of the cross-defendants, except Archinold, who was absent from the state, filed their answer herein. Archinold answered in September, 1913.

3. The Bank and all of the cross-defendants were represented by the same attorneys.

4. The Bank filed no additional pleading until July 1,1914, at which time it filed what is denominated “Plffs Special Exception to Defendant Adams’s Cross-bill,” in which it says:

“ * * * If the allegations in said cross-bill be true, yet it is not such a cause of action as can be properly litigated in this proceeding, and it appearing upon the face of plaintiff’s petition [meaning defendant’s cross-action] that it is not a cause of action arising out of the loan of the money made by plaintiff to defendant, as is admitted in defendant’s said answer and cross-bill. Wherefore tMs plaintiff prays that so much of said answer as undertakes to set up a cross-bill against said defendants be stricken out.”

This exception does not appear to have been passed upon by the court. On July 6th, the Bank filed its second supplemental petition, treating the exception above referred to as its first supplemental petition, and excepted to appellant’s second amended original answer on account of misjoinder of parties and causes of action, and also excepted to said amended answer as showing no defense to the Bank’s cause of action on the note sued on. Both of these exceptions were urged to appellees’ third amended original answer and both were sustained.

5. The original answer of the cross-defendants (June 30,1913) consisted of a general demurrer and a general denial. The first amended original answer of the cross-defendants does not appear in the record. The cross-defendants filed their second amended original answer on July 6,1914, wherein they excepted to appellees’ first amended original answer on account of misjoinder of causes of action and of parties, and in addition thereto demurred generally to said petition, and denied generally and specifically the material allegations therein. No action was taken on this answer.

6. The ease went to trial on appellant’s second amended original answer and cross-bill filed herein July 6, 1914, and his trial amendment, filed July 7, 1914, which contained substantially the same allegations as to his defense to plaintiff’s suit and his cause of action against the cross-defendants as were set out in his original answer and cross-bill, and in addition thereto alleged that the Bank had waived its right to plead misjoinder herein by reason of its delay in filing the same, and by reason of its having agreed to several continuances, after appellant had filed said cross-bill and before it excepted thereto.

7. Appellant’s cause of action against the cross-defendants, as alleged in said answers, is substantially as follows:

(a) That about December 10, 1910, the Behrens Drug Company was a private corporation under the laws of this state, doing business in "Waco, Tex.; that W. R. Clifton was its president, Edward Rotan was its vice president, H. C. Risher was its secretary, and that all of said parties, together with S. Arehinold, were its directors; that said parties were desirous of increasing the capital stock of said corporation to the extent of 500 shares of the par value of $100 each, which they desired to sell to parties other than the then stockholders; that at the solicitation of said parties appellant subscribed and paid for 200 of said shares, and one M. H. Hickox subscribed and paid for 100 of said shares, leaving 200 of said shares unsubscribed for, which 200 shares the appellant did not desire to subscribe or pay for.

(b) That thereupon the said parties, the cross-defendants_ herein, proposed to appellant that if he would nominally subscribe for said remaining 200 shares for their benefit, and execute his note therefor to the Bank with said stock as collateral, they would arrange with said Bank to advance the money with which to pay for said stock, and to carry the same for their use and benefit until they could sell the same, and that they could and would sell the same at its then value, which it was agreed was $159 per share, plus a sufficient amount to pay the interest on said note, and would apply the proceeds of said sale to the payment of said note; that although appellant would appear to be nominally liable to the Bank on said note, he was not to pay the same, but that they would be primarily liable for the payment thereof, and that they would protect the appellant from the payment of the same or any liability thereon. That the cross-defendants gave as a reason why they wished the appellant to sign said note, instead of signing the same themselves, that three of them were directors in said Bank and also directors in said Behrens Drug Company, and for this reason they did not wish their name to appear on said note.

(e)That appellant, having confidence in the good intentions of the cross-defendants, and relying upon their said promises to sell said stock and to pay said note, and to hold themselves primarily liable for the payment thereof, and to hold him harmless in said transaction, did nominally and for their benefit subscribe for said stock and execute to the Bank a note for $31,800, the value of said 200 shares of stock at $159 per share.

(d) That pursuant to their agreement to sell said stock, and with the proceeds thereof to pay said note, the cross-defendants did sell 90 shares of same on a basis of $159.06 per share, and did pay into said Bank, which applied the same as a credit on said note, the proceeds of such sale, and there was paid to said Bank, as dividends on said stock the sum of $1,100, which was also applied as a credit on said note.

(2) That in the meantime said note fell due, and the cross-defendants arranged with the Bank for a renewal of the unpaid balance thereof, which amounted to $18,616.77, and at the instance and request of the said defendants, and for their benefit, appellant signed said renewal note for said amount, the same being the note herein sued on, under a like agreement with said defendants as with reference to the original note, and for no other purpose or consideration.

(f) That the appellant has demanded of the cross-defendants that they carry out said agreement, but that with the exception of the sale of said 90 shares, they have wholly failed and refused, and still fail and refuse, so to do.

(g) That appellant is only the nominal owner of said drug company stock, but, in so far as he may legally do so, he tenders the same to the cross-defendants herein.

(8) In reply to the Bank’s suit, the appellant alleges: (1) That all of said agreements and understandings with the cross-defendants were made with the knowledge and consent of the Bank; (2) that they were made at the same time that said note was executed, and that the execution of said note and said agreement to indemnify and hold harmless the appellant and to pay off said note were all parts of one and the same transaction; (3) that the Bank was privy to all of said agreements and was a party thereto and agreed to the arrangement that the appellant was not to pay said note, but that the same was to be paid by the cross-defendants; three of said defendants being at the time directors of said Bank, the defendant Rotan being its active president and business manager; (4) that said cross-defendants were acting in said transaction not only for themselves but also for the Bank and the Behrens Drug Company, with the knowledge and consent of the Bank and said 'Drug Company, and that the Bank did for itself also agree with and promise appellant that his signature to said note was merely nominal, and that appellant would never be called on to pay the same, but that the cross-defendants would pay the same in the manner stated;

(6)that it was agreed and understood by all parties, including the Bank, that said note was not delivered with the intention that the same should become a note or binding obligation of appellant to pay the same, but that the same was executed merely as a matter of form; (6) that if appellant is liable on said note in any event, this suit is prematurely brought, in that it was understood and agreed by and between all of the parties to the transaction, including the Bank, at the time of the execution of said note, and as a part of the consideration therefor, that the proceeds of the sale of said drug company stock was the primary fund out of which said note was to be paid, and that no demand for the payment of said note should be made until all of said stock was sold and the proceeds thereof applied to said note, and that there remains unsold in the hands of the Bank 110 shares of said stock.

Opinion.

This case having been decided on exceptions to appellant’s pleading, it must be assumed, for the purposes of this decision, that all of the allegations therein are true. Such allegations being true, we think it cannot be doubted that appellant has a cause of action against the cross-defendants for breach of contract which might be asserted against them in a separate suit. Had the Bank, prior to the institution of such separate suit, recovered judgment against the appellant on the note herein sued on, the cross-defendants being primarily liable for the debt, as between them and the appellant, it would not have been necessary, in a suit against them, to allege that he had paid such judgment. Pope v. Hays, 19 Tex. 378; Skipwith v. Hurt, 94 Tex. 333, 60 S. W. 423; Haberzettle v. Dearing (Civ. App.) 80 S. W. 539; Courchesne v. Fuel Co. (Civ. App.) 155 S. W. 684.

For the reasons which support the foregoing proposition, if the appellant’s cause of action against the cross-defendants who are primarily liable to him is one which can properly be joined with plaintiff’s cause of action against him, he may make the cross-defendants defendants in this suit, and have judgment against them.

One of the reasons for giving our courts both legal and equitable jurisdiction was that the equitable doctrine as to the avoidance of a multiplicity of suits might be enforced. It is the general policy of our law to settle all matters between the same parties, and between all parties as to the same subject-matter, in the same suit. Skipwith v. Hurt, supra; Clegg v. Varnell, 18 Tex. 294; King v. Parks, 26 Tex. Civ. App. 95, 63 S. W. 902; Craddock v. Goodwin, 54 Tex. 582; Hume v. Perry (Civ. App.) 136 S. W. 598; Story on Eq. Plead. § 76a. Our statutes with reference to joining sureties in suits against the principal obligor are additional evidence with reference to the policy of our laws on this subject. R. S. arts. 1842, 1843, 6336, and 6337.

The general exceptions to the rule as to joinder of parties and causes of action are that the court in its discretion may refuse to allow additional parties to be made defendants who, though proper, are not necessary parties, and where such action would prejudice the plaintiff’s right by unduly delaying the trial of the cause. R. S. art. 1848; Phelps v. Scott, 49 S. W. 687; that matters ex contractu and ex delicto should not be joined in the same suit, and that no contribution will be allowed between joint tort-feasors.

It has been held that the last-named doctrine will not be applied in this state where the wrongdoers are not in pari delicto. San Antonio v. Smith, 94 Tex. 266, 59 S. W. 1109; City of San Antonio v. Talerico, 98 Tex. 155, 81 S. W. 518; Ft. Worth v. Allen, 10 Tex. Civ. App. 488, 31 S. W. 235.

It has also been held that matters ex con-tractu and ex delicto may be joined where they grow out of the same transaction, relate to the same subject-matter, and are dependent in their principal features upon the same evidence. Bank v. Bank, 77 S. W. 241; Harris v. Cain, 41 Tex. Civ. App. 139, 91 S. W. 869; Kemendo v. Fruit Co., 131 S. W. 76. These cases show the general trend of our decisions as to the liberality that will be allowed in the joinder of parties and causes of action.

By failing to object to the joinder of the cross-defendants for more than a year after they had been made parties and had appeared and answered, and by agreeing to several continuances in the meantime, we think that the Bank waived its right to object on the score of delay to said defendants being made parties to this suit. There is no suggestion in the record that said cross-defendants were not ready for trial. Under such circumstances, if it be conceded that the cross-defendants were proper, though not necessary, parties to the Bank’s cause of action, sustaining the exception to such joinder must be held to have been an abuse of the court’s discretion, especially as appellant may thereby incur the danger of having the statute of limitation successfully urged to his cause of action against the cross-defendants. Hume v. Perry, supra; Garner v. Jamison, 162 S. W. 943; San Antonio v. Wildenstein, 49 Tex. Civ. App. 514, 109 S. W. 233.

Appellant does not allege that the agreements upon which he relies were in writing, but such allegation was not necessary. If the same is required to be in writing, written evidence would be admissible to prove the alleged contract without having alleged that the same was in writing. Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93; Carson v. McCord, 37 Tex. Civ. App. 540, 84 S. W. 392; Land Co. v. Dooley, 77 S. W. 1031. For the purpose of this opinion it roust be taken that the alleged agreements between appellant and the cross-defendants were in writing.

The Bank having waived its right to have the cross-defendants made parties on the ground that such action might delay its suit, the question still remains, Were the cross-defendants proper parties? It is contended by appellees that they were not, because, among other reasons, the Bank had no cause of action against the cross-defendants. In support of this contention we are cited to Fidelity Co. v. Fossati, 97 Tex. 504, 80 S. W. 74; Young v. Bank, 54 Tex. Civ. App. 206, 117 S. W. 476, and Keel & Son v. Grain Co. (Civ. App.) 143 S. W. 235. In Fidelity Co. v. Fossati, supra, occurs the following language:

“In each of those cases [Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423, and Underwriters v. Railway Co., 31 Tex. Civ. App. 104, 71 S. W. 419] the plaintiff had a cause of action against the party impleaded by the defendant, to which cause of action the defendant was entitled to be subrogated, and the party impleaded was, in justice, primarily liable.”

We think that appellees’ allegations place the instant case in the class of cases above cited. These allegations are, in substance, that the note sued on was executed by appellant at the request of the cross-defendants for their accommodation and for their benefit, in that thereby they were enabled to have the 200 additional shares of the Drug Company stock issued and delivered to the bank subject to sale by them, and which they desired to sell for purposes of their own, they being stockholders in and directors of said Drug Company, and being desirous of increasing the capital stock of said Drug Company to that amount over and above what had otherwise been subscribed, which they could not do unless the same was actually or nominally subscribed and actually paid for; that while the appellant was to become nominally responsible to the Bank for the money used in paying the Drug Company for said stock, and was to become nominally the owner of said stock, in fact the cross-defendants agreed to pay said note, and that appellant in fact held said stock in trust for whomsoever might purchase the same from them. In other words that for a valuable consideration they assumed the payment of said note. If so—

“the plaintiff had a cause of action against the [cross] defendants, to which cause of action the defendant [appellant] was entitled to be subro-gated, and the parties impleaded [the cross-defendants] was [were] in justice primarily liable.” Key v. Fouts, 44 Tex. Civ. App. 424, 99 S. W. 448; Spann v. Cochran, 63 Tex. 242, and authorities there cited; Ward v. Green (Civ. App.) 28 S. W. 576; Gay v. Pemberton, 44 S. W. 401; Book Concern v. Carswell (Civ. App.) 46 S. W. 859.

In Fidelity Co. v. Fossati, supra, the facts which would have entitled the state to recover were different from those which would entitle the bondsmen to recover, and provable under different rules of evidence. This would have produced such a complication as perhaps justified the court in dismissing the Fidelity Company from the suit, even had it been liable to the state; the state not attempting to enforce such liability. In Young v. Bank, supra, the statement in the opinion that “the allegations did not show that the insurance company was a proper or a necessary party to the suit” is dicta. That question was not presented by any assignment of error in the case. In Keel v. Grain Co., supra, Williams sold the Grain Company a car of corn of a certain quality -to be delivered at a certain place. Keel sold Williams a car of com of a certain quality to be delivered at a certain place. It was not alleged that Keel assumed Williams’ contract, or that he agreed to furnish corn to fill the same. Legally speaking, the facts that each car of com was to be of the same quality and to be delivered at the same place were mere coincidences, and that these coincidences were brought about by the fact that it was Williams’ purpose to use the corn contracted for by him from Keel in filling his contract with the Grain Company (which fact was not known to Keel) did not make Keel privy to Williams’ contract with such company, or liable for the fulfillment thereof.

The Bank, in support of its contention that it could not have sued the cross-defendants, invokes the doctrine in reference to negotiable instruments that “no one can be charged thereon unless his name appears as a party to the paper in some relation.” T. L. & C. Co. v. Carroll, 63 Tex. 51; Sanger v. Warren, 91 Tex. 482, 44 S. W. 477, 66 Am. St. Rep. 913; Heffron v. Pollard, 73 Tex. 96, 11 S. W. 165, 15 Am. St. Rep. 764; Lanius v. Shuber, 77 Tex. 25, 13 S. W. 614; Sparks v. Dispatch Co., 104 Mo. 531, 15 S. W. 417, 12 L. R. A. 714, 24 Am. St. Rep. 351; Brown v. Parker, 7 Allen (Mass.) 337; Slawson v. Loring, 5 Allen (Mass.) 340, 81 Am. Dec. 750; and Shuey v. Adair, 18 Wash. 188, 51 Pac. 388, 39 L. R. A. 473, 63 Am. St. Rep. 879. In each of these cases, except Lanius v. Shuber, it was alleged that the party whose name did not appear on the note sued on was in fact the principal thereon, the evidence of which fact rested in oral testimony. It is elementary that, in the absence of fraud, accident, or mistake, oral evidence is not admissible to contradict or vary the terms of a written instrument. In Sanger v. Warren et al., supra, it was sought to hold Sanger as principal on a note signed by Rees, upon the ground that Rees was Sanger’s agent in the transaction. The same point was involved in Sparks v. Dispatch Co., Brown v. Parker, and in Slawson v. Loring, supra. In Heffron v. Pollard, the instrument sued on was not negotiable. It was sought to hold Heffron as principal on an instrument to which he signed the name of John W. Fry by himself as agent. In Shuey v. Adair, it was held that the maker of a negotiable promissory note could not defeat payment thereof on the ground that he acted in the transaction as agent for another, under an oral agreement with the payee that he should not be personally bound. There are other cases along this line which hold that one who indorses a negotiable note without qualification will not be allowed to prove by oral testimony that it was agreed that such indorsement should be taken as without recourse. We do not question the correctness of these decisions; but there is another legal principle which should not be lost sight of, and that is, while an undisclosed principal cannot be held as a party to a bill or note, he may nevertheless be held liable for the debt. Daniels on Neg. Instr. § 308a. So, while an agreement in reference to the payment of a note may not be a good plea in bar to recovery on the note, it may furnish sufficient grounds for a suit for breach of contract. Atwood v. Lewis, 6 Mo. 392; Brown v. Shelby, 4 Ind. App. 477, 31 N. E. 89; Mills v. Todd, 83 Ind. 25; Bridge v. Tierman, 36 Mo. 439; Durand v. Stevenson, 5 U. C. Q. B. 336.

In Lanius v. Shuber, supra, the defendant sought to defeat plaintiff's cause of action by proving that plaintiff had breached his contract with reference to conditions subsequent growing out of a collateral agreement with reference to the transaction. The defendant did not seek to recover damages for breach of such contract, as we think he might have done, if any he suffered by such breach. Neither did Rees in the Sanger Case seek to make Sanger a party defendant as being liable over to him.

Conceding, as we do, the proposition that recovery cannot be had upon a note, in the technical sense, against any one “unless his name docs appear as a party to the paper in some relation” still, as we have seen from Key v. Fouts and other cases hereinabove cited, the payee of a promissory note may recover against one who has assumed or guaranteed, by a collateral agreement, the payment of such a note, and may join such party and cause of action in a suit on the note against the maker.

There is another point worthy of consideration, and that is, if the Bank, at the time of the execution of said note and as a part of the same transaction, agreed in writing that it would look to the proceeds of the sale of the Drug Company stock for payment of said note, and that appellant should not otherwise be liable thereon, is it entitled to a personal judgment against the appellant? In Gas Co. v. Wood, 90 Me. 516, 38 Atl. 548, 43 L. R. A. 449, it was held that an agreement in writing that the payor of a note might, at his option, receive the same back by surrendering certain stock for which the note was given would be enforced. We do not deem it necessary to decide this point. It may be disclosed on another trial that the alleged agreement was not in writing.

We think it is well settled in this state that one who, as between himself and a defendant in any suit, is the principal obligor may be impleaded by such defendant, and that such defendant may have judgment over against such primary obligor. Kings v. Parks, 26 Tex. Civ. App. 95, 63 S. W. 900; Haberzettle v. Dearing (Civ. App.) 80 S. W. 539; Key v. Fouts, 44 Tex. Civ. App. 424, 99 S. W. 448; Hume v. Perry (Civ. App.) 136 S. W. 595; Courchesne v. Fuel Co. (Civ. App.) 155 S. W. 684; Love v. Keowne, 58 Tex. 200; Underwriters v. Railway Co., 31 Tex. Civ. App. 104, 71 S. W. 419; Ins. Co. v. Houston (Civ. App.) 110 S. W. 973. In such case it is immaterial that the obligation of indemnity arises upon a collateral contract or by force of law. As we have seen in Ft. Worth v. Allen, supra, it is the policy of our law to permit such joinder, even in cases of tort, where one party is, as between the defendants, primarily liable. We are in full accord with the statement of the court in that case, wherein it is said:

“It has always seemed to us just and right that the one who is ultimately liable should be made a party to the suit in which the amount of his liability is to be fixed.”

We are cited to Frey v. Railway Co., 86 Tex. 465, 25 S. W. 609, as announcing a contrary doctrine. That was a suit of trespass to try title to recover a certain 15 acres of land in the town of Stephenville, which was being used by the railway company for depot purposes. Prey and others were sought to be made parties on the ground that they had executed a bond to furnish the railway company 15 acres of land in said town for such purpose. But it was not alleged that they had agreed to furnish the land in controversy Cor such purpose. Hence a recovery in that suit would not have shown a breach of contract on the part of the bondsmen.

For the reasons stated herein we hold that the trial court erred in sustaining the Bank’s plea of misjoinder, and this cause is reversed and remanded for a new trial,

Reversed and remanded.
      <§^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      iS^sPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    BASS et al. v. McCORD et al.
    (No. 5502.)
    (Court of Civil Appeals of Texas. Austin.
    June 16, 1915.)
    1. Assignments eor Benefit oe Cbeditoes <&wkey;363 — Rights oe Heibs op Assignors— Action to Recover Balance — Laches.
    A suit by creditors against assignees for the benefit of creditors, resulting in the setting aside of a fraudulent conveyance by an as-signee to a grantee, who reconveyed to him according to an understanding, inured to the benefit of the heirs of the assignors, and made the assignees trustees of such property after payment of creditors, so that a suit by the heirs to recover the balance, brought within two years after final judgment in the creditor’s suit, was not subject to the defenses of laches or limitations; .and, where the petition negatived any report by the assignees, as contemplated by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 106, providing-that an assignee who has fully performed the duties of his trust and desires to be discharged may file a report of his proceedings in the office of the county clerk, and that no action shall be brought against him on anything done under the assignment as shown by the report, except within 12 months from the filing thereof, the general law of limitations was not applicable.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §1 1101-1103; Dec. Dig. @=363.]
    2. Assignments fob Benefit of Creditors @=363 — Action bt Heirs of Assignors to Recover Balance — Sufficiency of Petition..
    A petition by the heirs of assignors for the benefit of creditors to recover the balance due the estate from the assignees after payment of debts, alleging that the assignees had fraudulently conveyed part of the property to one who, pursuant to an understanding, had reeonveyed to one of the assignees; that One of the assignees had conveyed certain parts thereof for an inadequate consideration to the other defendants, who had knowledge of the fraud; that in a suit by creditors the first conveyance had been adjudged fraudulent and an order made that on payment of all accepting creditors the estate should be closed and the assignees discharged — stated a good cause of action.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. í¡§ 1101-1103; Dec. Dig. @=363.]
    Appeal from District Court, HiU County; Horton B. Porter, Judge.
    Suit by Anna F. Bass and others against A. P. McCord and others. Judgment for defendants dismissing the petition, and plaintiffs appeal.
    Reversed and remanded.
    Sleeper, Boynton & Kendall, of Waco, for appellants. Etheridge, McCormick & Brom-berg, of Dallas, Wear & Frazier, of Hills-boro, T. S. Henderson, of Cameron, and Crane & Crane, of Dallas, for appellees.
   RICE, J.

In 1896 Wilbur F. and Frank M. Crawford were partners, conducting a hanking business in Cameron, under the name of the Milam County Bank, as well as a general business under the firm name of Crawford & Crawford. On the 16th of March of said year they executed to A. P. McCord and T. S. Henderson a deed of assignment, conveying their property for the benefit of their accepting creditors. The assignees qualified and took immediate control and possession of said property and began the administration of said estate; and this suit was brought October 3, 1913, by appellants, who are the surviving wives and children of the said Crawfords, against said assignees, the Milam County Oil Mill, R. L. Batte, and the Cameron Cotton Oil Company to recover an alleged surplus of the value of $120,000, and certain property remaining in the hands of said assignees, as well as for other property held by the other defendants, or to impress the same with a lien for their benefit, as well as against T. S. Henderson for a one-half undivided interest in 519 acres of land out of the Jones league in Milam county, claimed to be the property of said assigned estate, alleging that both Wilbur F. and Frank M. Crawford died intestate in 1902, leaving appellants, their surviving wives and children, as their sole heirs; that the property conveyed by said deed of assignment was community property; that in 1897 said assignees fraudulently conveyed a considerable portion of said property to one Lawrence, with the understanding that he should reconvey the same to said McCord, which he subsequently did in 1898, and said McCord thereafter conveyed certain portions thereof for an inadequate consideration to the other defendants who had knowledge of such fraud; that thereafter on the 10th of July, 1900, W. A. Nabours and other accepting creditors brought suit in the district court of Milam county for the removal of said assignees and for cancellation of said deeds to Lawrence and from Lawrence to McCord, and praying that the property so conveyed thereby be declared the property of said estate, subject to the payment of its debts under said deed of assignment, which suit was finally determined in favor of plaintiffs therein. It is further alleged that a final order was made in said suit on May 23, 1912, wherein it was declared that upon the payment of all accepting creditors said estate should be finally closed and said assignees discharged. It is alleged that said suit inured to the benefit of said estate as well as such accepting creditors, and that appellants were not entitled to maintain any action against the defendants for the recovery of such surplus, or any portion, of said estate until after the entry of such final order. Appellees answered by general demurrer and numerous special exceptions, among others pleading the statute of limitation of 2, 4, and 10 years, laches and stale demand. The court having sustained all of said demurrers and appellants declining to amend, their petition was dismissed, from which judgment they have prosecuted this appeal.

It is deemed unnecessary to make a more extended statement of the matters involved, as a full history of the litigation may be had by consulting the following cases: Nabours v. McCord, 36 Tex. Civ. App. 504, 75 S. W. 827; Id., 82 S. W. 153, 193, 661; McCord v. Nabours, 97 Tex. 271, 78 S. W. 223; Nabours v. McCord, 97 Tex. 527, 80 S. W. 595; Id., 100 Tex. 456, 100 S. W. 1152; Id., 103 S. W. 469; McCord v. Nabours, 101 Tex. 494, 109 S. W. 913, 111 S. W. 144; Sprinkel v. McCord, 129 S. W. 379; McCord v. Sprinkel, 105 Tex. 150, 141 S. W. 945, 145 S. W. 903.

We have concluded that the demurrers were not well taken, and the court erred in sustaining them.

The questions of limitation, laches or stale demand do not apply for the reason, we think, that there could be no surplus until alter the creditors had been fully paid. The chief purpose of this suit was to recover an alleged balance remaining in the hands of the assignees after the payment of the creditors of said estate. The assignees were trustees, holding this property for the benefit, first, of the accepting creditors, then if any balance remained it became their duty to return the same to the assignors or their heirs. It is alleged that there was a fraudulent conveyance of parts of this property by said assignees to Lawrence, which was subsequently reconveyed by him to McCord, in accordance with a previous understanding so to do. It seems to us that this property came back into the hands of said assignee charged with this trust. The suit of McCord v. Sprinkel, 105 Tex. 150, 141 S. W. 945, 145 S. W. 903, which resulted in favor of the plaintiffs, determined that such conveyance was in fraud of the creditors. This being true, then we think that such reconveyance by Lawrence to said assignee had no binding effect and stood just as if it had never been made. At any rate, if such conveyance should stand, certainly the assignees, who were trustees of said estate, must in equity be regarded as holding said property in trust for the benefit of said estate; and, after payment of the creditors of said estate who accepted, the balance remaining in their hands, if any, should be turned over to 'the assignors or their heirs. The result of said litigation of Nabours v. McCord, inured, we think, to the benefit of said estate; at least, we hold it would prevent the running of the statute of limitations as against any one interested therein. If the assignors had brought the suit a like result would have been had. Can it make any difference if the creditors brought the suit which resulted in setting aside such conveyances and determining that said property should go back into said estate and be administered for the benefit thereof? We think not. If we are correct in this view, it follows that since this suit was brought within 2 years after the final entry of judgment in Nabours v. McCord on May 23, 1912, the defenses urged would not apply.

In addition to what we have said, it may be suggested that the statute itself having prescribed a period of limitation for the settlement of trust estates of this character, the general law of limitation is not applicable. Article 106, Vernon’s Sayles’ Rev. Civ. Stats, provides that:

“Whenever any assignee shall have fully performed the duties of his trust and desires to be finally discharged therefrom, he may make a report of his proceedings under the assignment showing the moneys and assets that have come into his hands, and how the same have been disbursed and disposed of, the truth of which shall be verified by his affidavit; and such report shall thereupon be filed and recorded in the office of the county clerk of the county in which the assignment is recorded; and no action shall be brought against such assignee by reason of anything done by him under the assignment as shown by his report unless the same be brought within twelve months from the time of the filing thereof, as aforesaid.”

Said petition specifically alleges that said “assignees have made no accounting to your petitioners or as assignees of their administration of said assigned estate of said Craw-fords, as aforesaid, or accounted to your petitioners for the surplus or any portion thereof remaining after settlement of the claims of accepting creditors under said deed of assignment,” thus negativing the idea that any such report as contemplated by this statute has ever been made. Burrill on Assignments, section 408, says:

“The time for closing the trust is sometimes fixed by the assignment itself. £f no time be limited, the assignee will be allowed what may be considered, under all the circumstances, a reasonable time for the purpose. Sometimes the trust will be considered as closed by lapse of time. As a general rule of equity, an as-signee in trust cannot set up the statute of limitations against his cestui que trust; such direct trusts not being within the statute. The possession of the trust fund in the _ hands of the trustee or assignee is the possession of the cestui que trust for creditors, and is not held adversely to them. But after 20 years the law presumes the debts paid and the trust executed so far as respects creditors. It has been held, however, in Pennsylvania that the lapse of 17 years without corroborating circumstances was too short a time to raise a legal presumption that the objects of an assignment have either been accomplished or abandoned.”

Having considered the remaining exceptions, we hold that they are without merit.

Believing that the petition shows a good cause of action, we hold that the trial court improperly sustained the demurrers, for which reason its judgment is reversed, and the cause remanded.

Reversed and remanded.
      ánwFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HENDRICKS, J.

text:
    FOSTER v. BENNETT et al.
    (No. 806.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 12, 1915.
    Rehearing Denied Oct. 23, 1915.)
    1. Appeal and Error <§==>730 — Assignment op Error.
    An assignment of error that the court erred in giving its special issues to the jury and in refusing those requested by the defendant in his bill of exceptions cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <@=> 730.]
    2. Appeal and Eerob <@=>739 — Assignments op Error.
    To sustain an assignment of error that the court erred in giving its special issues to the jury, and in refusing to give those requested by defendant, it must appear that every special issue submitted was improper, and that every special issue requested was good.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3034-3036; Dec. Dig. <©=> 739.)
    3. Judgment <@=>250 — Verdict to Support— Evidence.
    Assignments of error which attach the action of the court in founding its judgment upon issues not submitted and not requested by a party, partly on the verdict of the jury, and partly on the court’s conclusions from the evidence, is without merit, in view of Rev. St. art. 1985, providing that, where a necessary special issue is not submitted nor requested, it shall be deemed found by the court in accordance with the judgment, if there is sufficient evidence to support it.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <§=>256.]
    4. Appeal and Error <@=>263 — General Assignment — Immaterial Issues — Effect.
    An assignment of error based on the court’s refusal to submit an issue cannot be considered where the specific issue requested and others which were properly refused were requested and rejected as a whole, and no exceptions reserved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523,1525-1532; Dec. Dig. <@=>263.]
    5. Appeal and Error <@=>1070 — Harmless Error — Failure to Find — When Cured.
    Where, in an action against a surety on a note, the defense was that defendant undertook the suretyship as part consideration for the purchase by him of stock in a milling company, and that his purchase was induced through misrepresentations of the plaintiff as to financial condition of the company, the failure of the jury to find on such issue was rendered immaterial by their finding on another issue that plaintiff submitted a true statement of the company’s affairs to defendant, and the further finding that defendant had full access to the books of the company, it appearing from the record that the statement submitted readily disclosed the true affairs of the company to a man of average business intelligence such as defendant was shown to be, since one who has at hand the means of ascertaining the truth is held to the knowledge of that which he might readily ascertain, and will not be heard to say that he relied on other statements to the contrary.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <§=> 1070.]
    6. Appeal and Error <@=>216 — Objection Below— Sufficiency — Submission oe Issues.
    On the issue whether the purchase of stock was induced by false representations as to its market value, where the court submitted the question whether the representation made was of the market value or book value, error therein was not reviewable on appeal in the absence of any request for submission of the question whether the representation as to the market value was made.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@=>216; Trial, Cent. Dig. §§ 627-641.]
    Appeal from District Court, Baylor County; Jo A. P. Dickson, Judge.
    Action by R. G. Bennett and others against J. S. Foster and another. Judgment for plaintiffs, and defendant Foster appeals.
    Affirmed.
    D. A. Holman and Glasgow & Kenan, all of Seymour, and Ocie Speer, of Ft. Worth, for appellant. Arnold & Taylor, of Henrietta, Leslie Humphrey, of Wichita Falls, Joe A. Wheat, of Seymour, and Sporer & McClure, of Jacksboro, for appellees.
   HENDRICKS, J.

W. A. Bennett, R. G, Bennett, Arthur Bower, and E. D. Power were the owners of 303 shares of stock in the Seymour Mill, Elevator & Light Company. On the 31st day of December, 1909, 110 of said shares were transferred to the appellant Foster, 90 shares to J. T. Cockrell, and 103 shares to C. W. Abbott. In the negotiations resulting in the transfer of all the stock to the parties mentioned in the amounts indicated, it seems that the trade with each of the three parties, calling for a transfer of the amount of stock to each, was conditioned by the vendors upon a transfer of the whole.

M. R. Fuller was the manager of this corporation, and prior to the change in ownership of the 303 shares W. A. Bennett had agreed with Fuller that, if the latter would make an acceptable disposition of his stock and interest in the mill, he would reserve and assign to the latter 20 shares of said stock. By the efforts of Fuller, Bennett, who resided in Memphis, Tex., and Foster, who lived in Seymour, were brought together, with the result that 100 shares of the Bennett stock were traded by the Bennetts to Foster for a one-fourth interest in the Lank-ford addition to Seymour, Tex., consisting of 140 acres; and in the trade Fuller, upon Foster’s demand, assigned 10 shares of the 20 going to him as commission, in order to effectuate the trade. Abbott was unable to pay for his 103 shares, except the sum of $1,000, and, as a part of the consideration of the trade with Bennett, Foster became Abbott’s surety upon the notes executed by the latter, said notes representing the greater part of the consideration for the Abbott stock, the said stock to remain with Bennett as additional security for the Abbott notes. Foster asserts against this suit brought by the Bennetts upon the Abbott notes that his part oí the trade was produced by the false representations of Fuller, the plaintiff’s agent, alleging in the last answer filed by Mm that:

To “induce the sale * * * Fuller represented the market value [of the stock] at that time to be $1.14, on the face value, and that said corporation only owed from $7,000 to possibly $18,000, dependent upon liability for the Bellows note for $5,000, except the debt owing by it to the First National Bank Tof Seymour], which he estimated to be about $23,000 or $24,-000, and that it had bran, wheat, flour, solvent accounts, notes and money on hand sufficient to pay off the bank debt.”

The following are all of appellant’s assignments of error, which were numbered by appellant in accordance with the enumeration in the motion for new trial, and by us consecutively for convenience:

First. “The court erred in giving its special issues to the jury; and in refusing to give those requested by defendant, as shown in defendant’s bills of exceptions Nos. 3 and 4.”
Second. “Because the verdict of the jury is insufficient to warrant any judgment for either party, without resort to the testimony to aid the court in framing a judgment, which is contrary to law, and was rendered on special issues submitted to the jury which were not made issues in the pleading, and as to them should not be considered.”
Third. “The judgment of the court is contrary to law and the evidence, in this, to wit [giving the subnumbers]:
“(1) Because when the verdict is founded upon special issues alone, the court cannot look beyond it to any fact apparent upon the record in aid of the judgment.
“(2) The court cannot look to the evidence on which the verdict was rendered in order to render judgment; but must look alone to the verdict.
“(3) A judgment resting partly on special verdict and partly on the court’s conclusions of fact cannot stand.”
Fourth. “The court erred in failing to submit as to whether Foster believed and relied upon the representations of Fuller, and was induced thereby to enter into said contracts, and then, refusing to submit the special issues, presented in writing by the defendant, with request to submit that issue to the jury.”
Fifth. “The judgment is contrary to the law, because founded upon an erroneous assumption '■of law that the fact that Foster, after December 19, 1909, when Foster learned that there were more debts than represented and contracted for, and he, Cockrell, and Abbott by letter demanded a rescission, continued, in connection with other directors, to carry on the business, was an election to waive the fraud and affirm the contract between Abbott and plaintiff, on which Foster was only a surety.”
Sixth. “The court erred in rendering its judgment, because the verdict showed that the jury made a mistrial on issues which precluded a judgment.”
Seventh. “The failure of the jury to find on the issue of misrepresentations and fraud rendered all the other findings immaterial and insufficient.to found a judgment upon.”

The first assignment, without discussion, manifestly cannot be considered: If it could be considered in any event, every special issue submitted by the court would have to be improper, and every' special issue requested to be submitted by the appellant would have to be good. The requested issues were refused as an entirety.

A part of the second assignment and all of the third are equally improper, and inappropriately urged. Whether considered as assignments or propositions — and they are of the latter nature — they are not sufficient specifications of error, and, as an abstract general presentation, are incorrect. Appellant’s authorities to the effect that the trial court cannot look beyond the special verdict to aid the judgment were rendered prior to. the adoption of article 1985 in 1897, and now, “upon appeal or writ of error, * * * an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment: Provided, there be evidence to sustain such a finding” — which, under appropriate conditions, extends to the trial court the power which appellant denies and would abridge.

The second specification of error in the second assignment, in effect that the judgment was rendered on special issues, not pleaded, will be noticed later.

As to the fourth assignment, complaining generally of the court’s failure to submit whether Foster relied upon the representations, likewise complaining of the court’s refusal to submit the same issue requested in writing by the defendant, the specific issue was requested, accompanied by a number of other issues, some of which were wholly immaterial as substantive “issues raised by the pleadings and the evidence in the case.”' Article 1984a. Some are mere submissions for a finding of evidence, and others were substantially embraced within the court’s submission. They are also requested as an entirety and rejected as a whole. Hovey v. Sanders, 174 S. W. 1027. Neither are we able to find any exceptions to the court’s action in refusing the issues requested. If embraced within Acts 33d Leg. c. 59, exceptions are required. If not so embraced, the general rule as to exceptions to preserve an erroneous action for the appellate court’s consideration is necessary. Also see Railway Co. v. Cody, 92 Tex. 632, 51 S. W. 329.

As to the fifth assignment, of course, if the record were such that the judgment was required to be based upon the issue of ratification, and the evidence was not sufficient, to sustain such issue, necessarily the judgment could not stand.

The sixth and seventh assignments are cognate, and are presented as propositions, and will be considered. The court submitted the following issue, upon, the decision of which the jury were unable to agree:

“Did plaintiffs, or their agent, Fuller, falsely represent the true and real condition of the property of the Seymour Mill, Elevator & Light Company to the defendant Foster, at or prior to the time of the trade in question., as to the amount of indebtedness against said property, and as to the amount of stock, products, notes, and accounts on hand?”

This was necessarily a material and decisive issue in the case, and should have been found, unless the submission of the following issue, No. 3, with the finding of the jury thereupon, renders the same immaterial:

.Third Issue. “Did plaintiffs, or their agent, Fuller, submit to the defendant Foster, for his consideration, before said trade was made on December 31, 1909, a true statement showing the financial condition of said Seymour Mill, Elevator & Light Company, including a statement of all of its indebtedness and the amount of stock, products, notes, and accounts on hand? Answer: Tes; they did.”

The court submitted, and the jury also found, the following issue:

“Did the plaintiffs or their agent, Fuller, give the defendant Foster, before and at the time said sale was made, free access and opportunity for him to examine the books of said company, and, if so, did he examine said books? Answer: As to first clause, Yes. As to second clause, No.”

There are two statements in this record, one of date November T, 1909, and another of December 31st, the date the trade was closed, each purporting to reflect, as upon the respective dates, the true condition of the Seymour Mill & Elevator Company as to its resources and liabilities, and their correctness is undenied in this record, except as to overvaluation of some of the property owned by said corporation. These statements, as exhibitions of indebtedness of the corporation, are simple in their presentation, and the testimony of the appellant that he could not have understood the same if he had read them is of no probative strength. Appellant had owned, or had been interested in, several cotton gins, some in the city of Seymour, another in the state of Oklahoma, and another in California. He handled and bought real estate and real estate paper, had been a stockholder in an oil mill, and owned an interest in a steam laundry and in two different national banks. This record exhibits this appellant as having had rather a wide range of business experience, and in trading $3,500 worth of real estate for mill stock which confessed in his pleadings, and established by the finding of the jury, to be worth $8,350 at the time of the trade, indicates generally an intelligence of an understanding quality, notwithstanding his suretyship upon the Abbott notes was a part of the trade. The appellant complains that:

“There was no issue in the pleadings, nor was there any testimony submitted controverting the amount of stock, products, notes, and accounts on hand, * * * nor was there an issue in the pleadings by Foster, or testimony submitted thereon, that he had been deceived as to the amount of stock, products, notes, and accounts on hand.”

Appellant probably overlooks Ms pleading, but if it be true that the testimony does not raise the issue which we are inclined to think is correct, we are only concerned with the alleged false representations as to the debts and the market value of the stock.

As a business man, handling transactions of considerable magnitude, this record is convincing that appellant could have immediately discerned, upon inspection of the “Liability” columns upon either statement, that the liabilities of the mill and elevator company far exceeded and positively contradicted the alleged representations of Fuller as to that matter. The testimony was ample to sustain the finding that the plaintiffs submitted to Foster, before the trade was made on December 31, 1909, a true statement showing the financial condition of the mill company and its personal assets. The testimony is to the effect that he either personally, or in cooperation with the other prospective purchasers, solicited such a statement; and Martin, the bookkeeper, his own witness, on cross-examination first testified positively that appellant offered him such a statement just before the trade for verification from the books, which had been furnished, and then qualified the statement by saying that he did not remember that it was Foster, but that one of the purchasers did offer such a statement for verification. He further said that he remembered they, meaning the purchasers, had the two statements the night when they were discussing this trade.

Appellant himself testified that at the first meeting in early January, immediately following the trade, the board of directors, of which he was one, had under consideration the payment of the mill’s obligations. He expressed it in this manner:

“I could not tell you what the main discussion was, but the main thing was trying to meet our obligations.”

He said he did not remember whether the board at this time had under consideration statements representing the financial condition of the plant. However, Arthur Powers testified positively that such a statement was at that time presented to the board.

The statements indicated were not only furnished to Foster, but it could be implied and found that he solicited or co-operated in the solicitation from Bennett or his agents the statements. Assuming, argumentatively, that he did not read the same, after having been called for and furnished, we think it is the law that, under the conditions then presented, a party claiming that he has been deceived, who has placed himself upon guard with a desire to ascertain the facts, should not become blind as to the true facts furnished.

“Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these moans and opportunities, he will not be heard to say that he has been deceived by the vendor’s misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be' entitled.to favorable consideration when -he complains that he has suffered from his own voluntary blindness, and been misled by overconfidence in the statements of another. ‘Volen-ti non fit injuria’ is the maxim in such cases in all courts. And the same reasoning applies when the complaining party does not rely upon the misrepresentations, but seeks from other quarters means of verification of the statements made, and acts upon the information thus obtained.” Slaughter v. Gerson, 13 Wall. 383, 20 L. Ed. 628.

Also see Wright v. Bott, 163 S. W. 360; Newman v. Lyman, 165 S. W. 136.

Justice Field used the foregoing language in the Slaughter Case, as applicable to the sale of a boat, the draught of which was claimed to have been falsely represented, and, though the investigation of the purchaser, with his agents, developed his position to that of caveat emptor, however, we conceive that the law has always been that, where a purchaser places himself on guard by soliciting other means of verification of the statements referable to the condition, kind, or quality of the subject-matter of sale, and where the true condition is accessible and patent in the course of the investigation, when begun, the purchaser is not then in a position to say that he blinded himself to the real condition and relied upon the representations. Necessarily, courts are impatient of fraud, and the pervasive moral sense of the community has inspired a judicial attitude exhibited in this state, as well as in other jurisdictions, preventing the guilty party from asserting that another’s eyes should have been opened when his influence has been exerted to close them. It is the duty, of course, to square legal principles with the fundamental ethical rules of right and wrong; but the law also recognises that it is more likely for one disappointed in the expectations of a trade not to blame himself with the cause of his loss, but to blame the act of another.

Pomeroy says:

“If, after a representation of fact, no matter how positive, the party receiving it institutes an inquiry for himself, as recourse to the proper means of obtaining information, and actually learns the real facts, the claim that he relied upon the first statement and was misled by it cannot be admitted, * * * and, if allowed, his defense would furnish a ready means of avoiding all contracts with which a party had become dissatisfied.”

After the repetition of this axiom of the law, he further says:

“The same result must plainly follow when, after the representation, the party receiving it lias had given to him a sufficient opportunity of examining into the real facts, he is directed to the source of information, and he commences or purports or professes to commence the investigation. The plainest motives and grounds of convenience and expediency demand that, in such circumstances, he must be charged with all the knowledge which he might have obtained had he pursued the inquiry with care and thoroughness to the end. He cannot be heard to allege that he did not learn the truth; he cannot claim to have been misled.”

Specific Performance of Contracts (2d Ed.) top page 304, § 220, with notes and annotations.

The same doctrine in the same language is enunciated by Pomeroy, in bis Equity Jurisprudence (volume 2, § 893), in connection with, note No. 1, on page 1594, third edition. It is probably not necessary to guard this rule by this learned author, in view of the many distinctions disclosed by the decisions of this state and of other states. For example, it seems to be the well-settled principle that, where affirmations of fact are made with reference to the quantity of land, a vendor fraudulently overstates its area, and though the boundaries of the same may be pointed out to the purchaser on examination, however, if the quantity contained within the boundaries is not reasonably capable of estimate upon inspection, and the statements are relied on, the fraud still exists. Again, in this state, in the case of Buchanan v. Burnett, decided by the Supreme Court (102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900) and the Court of Civil Appeals (52 Tex. Civ. App. 68, 114 S. W. 406), where a vendor made a positive affirmation of title and was furnished an abstract and which the vendee, an unlearned man, assisted by some friend, attempted an examination, the vendee testified that he could not tell anything about the title, and a part of it was unintelligible to him. The abstract exhibited a defective title, but under the status of case presented, the vendee relying upon the representation made he was entitled to rescind. 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900. In that cause the information was, of course, available in a sense, not to the purchaser directly, but to one of sufficiently expert knowledge to whom the purchaser might have presented the abstract for examination. This is the nearest case to the present record which has been cited or we have been able to find decided by the courts of this state. The analogy is only apparent. Here the appellant, or those co-operating with him, demand a statement The same is furnished, presenting the true condition of the corporation. To a purchaser the liabilities are apparent. One witness testified that the statement was taken by the purchasers into another room at a period of the negotiations while the trade was under discussion. The appellant says he did not read it, and if he had he would not have understood it. Pomeroy, in both text-books, under the sections cited, presents the case of Lowndes v. Lane, 2 Cox, 363, which is an English case, not accessible to this court. He summarizes it as follows:

“A purchaser had bought property, consisting partly of woods, upon the representation that they had yielded from timber cut and sold from them, £250 a year, on the average for 15 years. He claimed that this representation was practically false and really misleading, not because the woods had not, in fact, yielded that sum, but because they had not been used in a proper manner, and according to ordinary fair husbandry, and, if so used, they would not have produced nearly so much. This objection would probably be fatal in England, where woodland is exceedingly valuable, and where the mode of using it is guided by many strict rules of practice and of law; but, as a fact, before concluding tlie contract, a paper was delivered to the purchaser and kept in his possession which, if examined, would have shown him conclusively that the woods had not been used in this ordinary manner, but that the timber had been unequally and extravagantly cut. He was held chargeable with the knowledge which he might and ought to have obtained, and so was not misled.”

This quotation is taken from note 1, Specific Performance of Contracts (2d Ed.), under section 220; also noted and cited under section 893, in his work on Equity Jurisprudence, above mentioned. AVe conceive, of course, that a party could deliver a statement which the purchaser could assume as being in conformity with the representations made and would not have to examine it, relying upon the representations, nor would the lack of examination avail the person guilty of the fraud.

If the above conception of the law, as applied to the facts, and to the finding of the jury as to the true statement furnished as to liabilities, is correct, it is decisive of the case; and the failure of the jury to find on the issue of the alleged representations as to the debts of the Seymour Mill & Elevator Company is wholly immaterial.

The trial court submitted the following special issue, answered by the jury as indicated:

“(1) Hid the plaintiffs or their agent, Fuller, represent to the defendant Foster at or prior to the time when said trade was made, December 31, 1909, that $1.14 was the book value or market value of said stock in Seymour Elevator & Light Company?”
To which the jury answered: “Book value.”

In the condition of this record, the appellant has no just cause for complaint of the manner of the submission of this issue on the ground that it was the submission of an issue not embraced within his pleadings. Foster testified that Fuller represented the market value of this stock at $1.14. Assuming that the alleged statement as to the market value is an affirmation of a fact, and not opinion-ative, Fuller specifically denied any such representation, but admitted that he stated the book value was $1.14. At the time of the trade, according to the manner of bookkeeping, this statement as to book value was true. This testimony rather assumed the condition of a conflict between a representation as to book value and market value of the stock— whether Foster made the one or the other statement. As applied to the testimony, an appellate court could consider the submission and the finding of the jury as to book value; that such finding negatived the alleged statement as to market value. Of course, it may have been more proper to have presented a definite submission whether the alleged representations as to market value had been made. However, the court’s method of the presentation of the issue, without any special issue requested properly presented to this court as to sustain any compaint against the action of the court, precludes any error.

We think, upon the whole, this judgment should be affirmed.

Affirmed.
      <@=>Eor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    HOUSTON TRANSP. CO. et al. v. ALLIEN.
    (No. 466.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1915.
    Rehearing Denied Nov. 4, 1915.)
    1. Appeal and Error <&wkey;1126 — Determination — Affirmance.
    Where plaintiffs in error reserved no exception to the judgment, filed no motion for new trial, requested no statement of facts or conclusions of law, and presented no assignment of error or bi'iefs, judgment will be affirmed on motion by defendant in error, made on the transcript and bond.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3144, 4429-4431; Dec. Dig. <@=^1126.]
    2. Costs <&wkey;2C0 — Frivolous Appeal —Af-firmance — Damages.
    Where a writ of error was taken solely for purposes of delay and without sufficient cause, a judgment of affirmance for want of prosecution should include as damages 10 per cent, on the amount of the original judgment.
    [Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. &wkey; 260.]
    Error from District Court, Harris County ; Win. Masterson, Judge.
    Action by L. F. Allien against the Houston Transportation Company and others. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.
    John G. Tod, of Houston, for plaintiffs in error. E. P. & O. K. Hamblen, of Houston, for defendant in error.
   WALTHALL, J.

This suit was brought by L. F. Allien, defendant in error, against tiie Houston Transportation Company, a corporation, and John G. Tod and J. W. Matthews, for debt evidenced by certain promissory notes given in part payment of certain barges described.

The petition is in the usual form of a suit on notes and prayer for the amount of the indebtedness, including interest and attorney’s fees, expressed in the notes, and for foreclosure of his lien on the barges named therein. Answers were filed for the Houston Transportation Company, consisting of exceptions and demurrers, and setting up that some of the barges were damaged, and that the attorney’s fees provided for in the notes were excessive, and stating an amount that would be sufficient. Plaintiffs in error John G. Tod and J. W. Matthews filed a joint answer, consisting of demurrers and exceptions, and alleged that they were in-dorsers on the note, and prayed that if judgment should he rendered in favor of plaintiff and against defendants, they have judgment over and against the Houston Transportation Company. The case was tried before the court without a jury, and judgment was duly rendered in favor of defendant in error against the Houston Transportation Company, John G. Tod, and J. W. Matthews, for the sum of $4,496.67, with interest thereon from the 10th day of October, 1913, the date of the judgment, at the rate of 8 per cent, per annum, and for costs and foreclosure of the lien described, with order of sale of the barges, and that in the event the barges could not be found or the proceeds from the sale of them, if found, was not sufficient to satisfy the judgment, then execution should issue for the remaining amount. It was further decreed that plaintiffs in error Tod and Matthews were guarantors on said notes, and that in the event they, or either of them, should pay any portion of said judgment, they should have judgment' over against the Houston Transportation Company for such amount as they each, respectively, pay.

No exception was taken to the judgment ; no motion for a new trial was filed; no statement of facts or conclusions of the trial judge was requested or filed; no assignment of error or brief was filed by plaintiffs in error. Petition for writ of error and supersedeas bond were filed and given by the Houston Transportation Company and John G. Tod with Texas Eidelity & Bonding Company as surety and the bond approved. The defendant in error submits the transcript filed in this court and asks this court to affirm the judgment rendered in the trial court against the plaintiffs in error 'and against the surety on their writ of error bond. The judgment of the trial court is affirmed.

This court is further of the/opinion, that the writ of error in this case has been taken for delay, and that there was no sufficient cause for taking this appeal, and we now here include, in this judgment of affirmance as damages against plaintiffs in error, 10 per cent, on the amount of the original judgment.
      <S&wkey;For other eases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


text:
    KENT v. McDANIEL et al.
    (No. 5505.)
    (Court of Civil Appeals of Texas. Austin.
    June 9, 1915.)
    1. Courts <&wkey;472 — Probate—Death oe Trustee — Appointment oe Successor — Jurisdiction.
    The testatrix by her will created a trust for the benefit of a minor, directing that the proceeds and increase should be used for the education of the minor until he should reach 21 years of age. The will expressly withdrew the trust estate from the control of the probate court, giving the trustee control over expenditures. The trustee died during the minority of the beneficiary. Held,, that on the trustee’s death control of the property did not pass to the probate court to be exercised by the appointment of a guardian, notwithstanding Const, art. 5, § 16, giving the probate court original jurisdiction in probate matters, including the appointment of guardians, and the district court, being a court of original jurisdiction, will appoint a trustee to carry out the trust.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204^-1224, 1247-1259; Dec. Dig. &wkey;472.]
    2. Trusts >&wkey;160 — Trustees—Appointment.
    The appointment of a trustee in place of a deceased one rests in the discretion of the district court, and the appointment of a banker as trustee of a trust created for the benefit of an infant, instead of the guardian of the infant’s person, who was his mother, is not erroneous; the duties of the trustee not conflicting with those of the guardian.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 204, 207, 208; Dec. Dig. &wkey;160.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Proceeding by W. E. McDaniel, as temporary administrator of J. B. McDaniel, deceased, against Mrs. Kate L. Kent and another, for the appointment of a trustee in the ;place of said J. B. McDaniel in which J. H. iWeatherby was appointed as trustee. From the judgment, the named defendant appeals.
    Affirmed.
    Clendenen & Simmons, of Ft. Worth, for appellant. T. H. Jackson and Morrow & Morrow, all of Hillsboro, for appellees.
   Nature and Result of the Case.

JENKINS, J.

We adopt from appellant’s-brief the following statement of the nature and result of this case:

“This proceeding was instituted by W. E. McDaniel in the district court of Hill county, alleging that he was temporary administrator of the estate of J. B. McDaniel, deceased, and that at the time of his death J. B. McDaniel was in possession of trust funds amounting to about $11,000 belonging to Dudley M. Kent, Jr., a minor, alleged to reside in Tarrant county, Tex., and that Mrs. Kate L. Kent, residing in Tarrant county, Tex., was the guardian of said minor. Plaintiff’s petition prayed for citation to Dudley M. Kent, Jr., the minor, and to Mrs. Kate L. Kent, and prayed for the appointment of a suitable person as trustee of the estate of said minor, and offering to account to such trustee for' the said estate and to deliver the same to such trustee under the direction of the court. In obedience to said citation Mrs. Kate L. Kent appeared for herself' and as next friend and guardian of the person of Dudley M. Kent, Jr., and pleaded a want of jurisdiction in the district court of Hill county to appoint a trustee for said minor, and alleging that the county court of the proper county alone had jurisdiction to appoint a guardian of the estate of said minor. The court, over the objection of appellants, appointed T. H. Jackson guardian ad litem for said minor, and upon the suggestion of the said guardian ad litem, and over the protest of appellants, appointed J. H. Weatherby as trustee of the estate of said minor, and ordered and adjudged that the estate of said minor be delivered by W. E. McDaniel to the said Weather-by upon his execution of a bond payable to the district judge of Hill county in the sum of $22,000. Appellant, Kate Kent, for herself and as next friend for said minor, made a motion for a new trial, which was overruled, to which appellant excepted and gave notice of appeal to this court, and in due time filed her appeal bond and brought the case to this court for revision.”

Findings of Fact.

We adopt the following agreed facts, which were admitted by all parties in open court:

“(1) That J. B. McDaniel duly qualified as independent executor of the estate of Ceyota-McLain, deceased, and fully administered said estate; (2) that the said J. B. McDaniel accepted the trust imposed upon him under ■ the will of Ceyota McLain; (3) that the said J. B. McDaniel, while acting as trustee for the said D. M. Kent, Jr., under the terms of the said will of the said Ceyota McLain, died on the 29th day of June, 1913, having in his possession at the date of his death $11,328.13, the property of said trust estate; (4) that the said J. B. McDaniel left a will, duly probated by the probate court of Hill county, Tex., in which W. E. McDaniel is named as executor of his estate, and that the said W. E. McDaniel duly qualified as such executor; (5) that the said W. E. McDaniel, as such executor, has taken possession of the estate of the said J. B. McDaniel, deceased, and has possession of the said $11,328.13 held by the said J. B. McD'aniel, deceased, at the date of his death as trustee under the said will •of the said Ceyota McLain; (6) that the defendant, Kate Kent, is the mother of Dudley M. Kent, a minor of the age of 9 years; that said defendant, Kate Kent, is a feme sole, having procured a divorce from her husband, D. M. Kent, Sr., in the district court of Tarrant county, Tex.; that under the decree granting said divorce, the said Kate Kent was awarded the custody of said minor, and that said minor resides with the said Kate Kent in the city of Ft. Worth, Tarrant county, Tex.”

The appellant, Mrs. Kate L. Kent, is the •only child of Mrs. Ceyota McLain, deceased, and is the mother of Dudley M. Kent, Jr., who is her only child and who is about 10 years of age. J. B. McDaniel brought a suit in the district court of Hill county to have the will of Mrs. McLain construed. We make the following excerpt from the judgment in that suit:

“* » * a jury having been waived, all matters of fact as well as of law were submitted to the court, and, the pleadings, evidence, and argument having been heard by the court, etc., * * * the court is of the opinion that the following instructions are proper, and the same are hereby given, to wit: ‘The trustee will be 'governed by the following instructions of the will of Mrs. Ceyota McLain: He will expend from the trust fund and the increase thereof for the education of D. M. Kent, Jr., such 'amounts as in his judgment are reasonably necessary to defray the actual expenses of D. M. Kent, Jr., such expense to include and to include only tuition, board, school books, and other incidentals, proper clothing and reasonable medical attention. He shall pay such expenses as they accrue to the persons to whom they are due, taking from such persons proper vouchers and receipts, except the trustee may allow the said D. M. Kent, Jr., such a sum of money as in his, the trustee’s, judgment will reasonably take care of minor incidental expenses not recurring in their nature.’ ”

No appeal was taken from said judgment.

Opinion. -

The first issue raised by appellant’s assignments of error is as to whether the district court had jurisdiction of the subject-matter of this suit. It is the contention of appellant that the personal property bequeathed to Dudley M. Kent, Jr., belongs to the estate of said minor, and, the trustee appointed by the will to control the same having died, the control thereof belongs to the probate court of the proper county, to be exercised! by the appointment of a guardian, and that the district court has no original jurisdiction in such matter. In support of this contention appellant cites article 5, § 16, of the Constitution of Texas, which gives the county court original jurisdiction in probate matters, including the appointment of guardians for the estates of minors; and also article 4053, R. S., which prescribes the duties of county judges in matters of guardianship pending in their courts. Appellant also cites Prince v. Ladd (Sup.) 15 S. W. 159; In re Estate of Grant, 93 Tex. 68, 53 S. W. 372; Langley v. Harris, 23 Tex. 564; Blanton v. Mayes, 58 Tex. 422; and Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367.

On the other hand, it is the contention of appellee that, inasmuch as the will of Mrs. McLain creates a trust estate to be controlled by the trustee in the manner indicated in the will, by the terms of which said estate is expressly withdrawn from the control of the probate court, a guardian of the estate of the minor would have no right to the possession or control of such estate during the life of the trust, which is to continue until said minor is 21 years of age, and that, the district court being a court of general jurisdiction, it will not permit the trust to fail for the want of a trustee, but that it has the power and it is its duty to appoint a trustee in lieu of the deceased trustee. Such is our view, of the law.

In McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S. W. 1171, it appears that Prather had been appointed executor of the estate of Petqr McClelland, deceased, and also trustee to manage and control the estate for Peter McClelland, Jr. The executor completely administered the estate, but retained control thereof as trustee for Peter McClel-land!, Jr. Prather having died, the issue, in so far as it relates to the matter here involved, was as to the power of the district court to appoint his successor. We make the following excerpt from the conclusions of law in that case:

‘‘As soon as Prather had discharged all the duties of executor as required of him by law and the will, * * * the county court lost entire jurisdiction over the property, and never thereafter reacquired such jurisdiction, and it became an estate in trust as completely and perfectly as if some other person had been named as trustee and Prather, as executor, had turned over the property of the estate to such other person to administer the trust. Prather now being dead, the trust will not be permitted to lapse for want of a trustee, and * * * the district court has exclusive jurisdiction to appoint such trustee.”

It is true in that case there was no effort to have a guardian appointed for Peter McClelland, Jr., he not belonging to any class of persons for whom the probate court had the right to appoint a guardian. He was neither a minor, an habitual drunkard, nor a non compos mentis. This can make no material difference between that ease and the instant case. The point decided was that the probate court had no jurisdiction over a trust estate, and, if so, the decision would not have been otherwise had Peter McClelland, Jr., been a minor with a legally appointed guardian who was demanding the possession and control of the trust estate. The jurisdiction is determined by the nature of the estate, and not by the status of the beneficiary.

In Willis v. Alvey, 30 Tex. Civ. App. 96, 69 S. W. 1035, one of the heirs of the testatrix brought suit to set aside certain clauses of her will, upon the ground that the trustee named was incompetent to act as trustee. The court in effect held that if this was true it would afford no ground for setting aside the clauses of the will attacked, but that it would be the duty of the district court in such case to appoint another trustee. See, also Converse v. Davis, 90 Tex. 462, 39 S. W. 277, and Irvine v. Dunham, 111 U. S. 327, 4 Sup. Ct. 501, 28 L. Ed. 444. The legal title to the property was vested by the will in the trustee; the interest of Dudley M. Kent, Jr., beyond receiving an education from the proceeds or revenues thereof, is limited upon the contingency of his living to be 21 years of age. Until that time, it is made plain by the will that the original trustee, J. B. McDaniel, deceased, had the exclusive right of possession and control of the property, subject, under the general equity powers of the district court, to be removed for abuse of the trust. Upon his removal by death in this case the district court was authorized to appoint a new trustee, with all of the rights and powers of the original trustee. Trust estates “attach to the property and will be preserved by courts of equity until executed.” Roy v. Whitaker, 92 Tex. 356, 48 S. W. 892, 49 S. W. 367.

We do not think that the cases cited by appellant are authority against the views which we have here expressed. The holding in Re Estate of Grant, supra, was that the appointment of an independent executor was a personal power to be exercised alone by the testator, and could not be delegated to the county court; that the statute did not confer such power on the county court. To the same effect is Longley v. Harris, Blanton v. Mays, and Roy v. Whitaker, supra. In Prince v. Ladd, supra, the appellant had been duly appointed guardian of certain heirs. The probate court also undertook to appoint him trustee for an estate belonging to the minors which had been received in trust for them by their deceased father. The appellant alleged that he held this estate as trustee and not as guardian, and therefore the probate court had no control over him. The substance of the decision was that the county court had no authority to appoint him trustee; that the property had come into his hands as guardian of the minors ; that—

“there was nothing in the will through which the money came that authorized a trusteeship other than that furnished by a gmardian, after the death of the father, who by the terms of the will was made trustee for his children.”

The duties of the father as trustee for his children do not appear in the opinion. We gather from the decision that they were not shown to be other than to receive the property for his children from another estate; and, if so, it would have been the duty of the probate court to appoint a guardian to take charge of such funds during the lifetime of the father, after he had reduced them to possession.

As to whom the district court should appoint trustee in place of the deceased trustee, that was a matter in the discretion of the trial court, and we cannot say from the evidence that the court abused such discretion in appointing J. H. Weatherby such trustee. Weatherby is a banker, and evidently the court thought him better qualified to administer the trust than was the mother of the minor. She was the guardian of the person of her son. Her mother left her a valuable life estate in lands in Hill county which, presumably, was sufficient to enable her to support herself and her son during his minority; his expenses for education being paid by the trustee. The duties of the trustee did not require him to interfere with the-duties of Mrs. Kent as guardian of the person of her son.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in'all Key-Numbered Digests and Indexes