text:
    McBRIDE v. ROCKWALL COUNTY.
    (No. 7890.)
    (Court of Civil Appeals of Texas. Dallas.
    May 26, 1917.
    Rehearing Denied June 16, 1917.)
    Dedication (@^61 — Public Squares — Abatement of Nuisances.
    A public square was donated to a city “for the use of the public.”* Later a county courthouse was constructed thereon and maintained with water-closets which it became desirable to change. The commissioner contracted to have constructed a one-story brick building 18x20 on the square for storing the county’s fuel and for water-closets. Petitioner, who owned buildings immediately adjoining the square, sought to restrain the construction of the building. Held, that the injunction should have been granted, as the proposed building was inconsistent with the use for which the square was dedicated, as acquiescence of the public in the unauthorized use of the square for a courthouse would not serve as basis for an extension of such use on the ground that such extension would facilitate the first unauthorized use.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 116, 120.]
    Appeal from District Court, Rockwall County; Kenneth Foree, Judge.
    Suit by H. M. McBride against Rockwall County. From a decree dissolving an injunction, plaintiff appeals.
    Reversed and remanded, with instructions.
    T. B. Ridgell, of Rockwall, for appellant. D. T. Bowles, of Rockwall, and L. A. Clark, of Greenville, for appellee.
   RASBURY, J.

This is an appeal from the decree of the trial court dissolving an injunction temporarily restraining appellee from erecting a brick building then under construction upon the public square in the town of Rockwall. The original decree granting the temporary injunction was made in vacation on ex parte hearing.

On final trial the following, undisputed facts were developed: The public square, which is the approximate center of the town, is 200 feet square, and was donated, with the streets surrounding it, in 1854 by Elijah Elgin to the town “for the use of the public” forever. At the time of the donation what is now Rockwall county was unorganized. After the organization of the county the county courthouse was erected upon the square, where it has since remained. In the year 1910, by agreement of the county and city authorities, and for the purpose of improving sanitary conditions, the county constructed and has since maintained six water-closets and one urinal in the courthouse, connected with water and sewer pipes extending from the courthouse to the concrete retaining walls inclosing the square, at which point they connect with the water and sewer pipes of the city, and the city has furnished free the water necessary to operate the system so installed by the county. Since installation of the system, the men’s water-closet has been maintained on the second floor of the courthouse. Due to overflows and consequent objectionable conditions and injury to the courthouse, it became necessary to make some change. As a consequence the county commissioners entered into a contract with 0. Shuman for the construction of a one-story brick building 18x20 feet at the northwest corner of the square, upon which work had started when the injunction was granted. One portion of the structure was to be used for storing the county’s fuel coal and one portion for men's water-closets in lieu of the one in the courthouse, and was to be constructed in accordance with the best and most approved sanitary arrangements. Consideration of other plans for remedying the condition was before the commissioners’ court, among them, the building of a basement, which was not adopted because of its prohibitive cost, approximately $7,000; also the plan of placing the men’s water-closet at another place in the courthouse building, which was not done because it was believed the si>aee would soon be required for other purposes. The public square is inclosed by concrete retaining walls rising 2 or 3 feet above the level of the street and filled in with soil, which constitutes the courthouse lawn and on which are shade trees. In addition to the use of the square as a courthouse site, it is also used by the public as assembling and picnic grounds. Appellant owns four brick buildings of the aggregate value of $8,000, immediately west of the square and the proposed building, separated therefrom by Goli-ad street 110 feet wide. This property, in the opinion of appellant and other witnesses, will be depreciated in value by the erection of the proposed building.

The foregoing' are the facts disclosed by the record. There is in the record other testimony which is without force on the issues presented on appeal, since it consists of the opinions of various citizens of RockwalJ to the effect that the proposed building will be unsightly, and that the constant use of the water-closets by the public will.produce foul and offensive odors, such as to offend the sensibilities of the- citizens who use the lawn as a meeting or assembling place and for picnic grounds.

The controlling issue in the case is the contention of appellants that the building proposed to be erected upon the square is inconsistent with the use to which the square was dedicated and is an obstruction thereof, which may be abated as a nuisance. Under the decisions of the appellate courts of this state on similar questions we conclude the contention should be sustained. The leading case is City of Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 1008. The facts in that' case disclose that the town square was dedicated , by Llano .county to the public use, and as a site for a courthouse. The county authorities erected thereon a jail and cesspool, which was held to be inconsistent with the dedication and an encroachment upon and an obstruction of the square in the nature of purprestures and subject to - abatement as nuisances. The rule was said to be that a dedication made for the public use must be considered with reference to the purpose for which it was originally intended. In observing that rule the court, in effect, held in that case that the only right reserved by the' dedicator in the square was to use same as a site for a courthouse, and the use of it for any purpose not in keeping with the original purpose, or tending to facilitate its public use as a square as squares are generally used by the public, would be an invasion of the rights of the public. That only when that right is reserved by the dedicator may a town square dedicated to the public use be appropriated for public buildings, and that squares are in a class with public highways which the public is entitled to enjoy in the usual way free of encroachment or obstruction. In substance, similar rules are announced in Clements v. City of Paris, 154 S. W. 625; Id. (Sup.) 175 S. W. 672. In the case last cited the Supreme Court in upholding the Court of Civil Appeals in its holding that a comfort station could not be erected upon an abandoned courthouse square, in effect, declares that the use which squares may be put to when dedicated to the public use without reservation is as a place of public resort, etc. In the present controversy, as we have shown, the dedication was “to and for the public use” without reservation. An application of the rules announced in the cases cited precludes the use of the square for any purpose other than that for which town squares are generally used, which in the case last cited is said to be a mart or public meeting place. Any use which would facilitate the purpose, of the dedication as conveniences and comforts would, of course, not be precluded. But it is urged that the courthouse is upon the square, and the right to maintain it there is unquestioned, from which it is argued that the proposed building is authorized since it facilitates the use of the courthouse. We believe both statements of fact may be conceded, but the legal conclusion may not. By the dedication there never was reserved to the county specifically the right to use same as a site for a courthouse. What is now Rockwall county was at the time of the dedication of the square a part of Kaufman county, and hence, waiving for the time the point that such right would have to be specifically reserved, it cannot be consistently claimed that the dedicator even contemplated such a use at the time he dedicated the square. We understand, however, from the cases cited, that squares so dedicated cannot bé used for public buildings, save in eases specifically reserving such right. Then can the acquiescence of the public in the unauthorized use of the square for one purpose serve as basis for an extension of such use on the ground that such extension would facilitate the first unauthorized use.

“Acquiescence is a branch of the law of estop-pel and is used to defeat a party’s action on the principle of equitable estoppel; that is, it must appear that, because of something that was done, or because nothing was done, the party invoking the estoppel will sustain loss unless it is allowed.” 1 C. J. 906.

By such rule it may be that the acquiescence of the public in the erection of the courthouse on the square would estop it of any right to abate such use because of the loss to the county. Asquiescence in a particular unauthorized use, however, would not, in our opinion, conclude the public on an attempted extension of the unauthorized use in which it does not acquiesce and against which it is protesting.

Entertaining the views we do in reference to the issue discussed, all other issues become immaterial, and for that reason will not be discussed.

The judgment of the trial court is reversed, and the cause remanded, with instructions that proper orders be made perpetually enjoining appellee from erecting the proposed building on the public square.
      Éx=j'For other oases see same topic and REV-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    SULZBERGER & SONS CO. OF AMERICA v. PAGE et al.
    (No. 1173.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 16, 1917.)
    1. Municipal Corporations <&wkey;705(10) — Railway Crossing Accident — Duty op Flagman at Crossing — “Ordinary Care.”
    A railway crossing flagman is obliged to use ordinary care in keeping a lookout and giving warning of approaching trains to the traveling public, “ordinary care” being such as an ordinarily prudent person would use in discharging such a duty, although greater diligence may be demanded in such vocation than in others less hazardous.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515, 1517.
    For other definitions, see Words and Phrases, .First and Second Series, Ordinary Care.]
    2. Municipal Corporations <&wkey;705(10) — Railway Crossing Accident — Contributory Negligence.
    If flagman at railway crossing failed to use ordinary care in keeping lookout and warning driver of wagon, which negligence proximately caused flagman’s injury, latter could not recover damages therefor.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515, 1517.]
    3. Municipal Corporations &wkey;>706(7) — Railway Crossing Accident — Question por Jury — -Contributory Negligence.
    The question of whether the railway flagman at a street crossing used ordinary care in warning driver of a wagon which pushed flagman close to track, causing him to be struck by a car as he was attempting to keep the team and wagon away from the track, was for the jury.
    - [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    4. Municipal Corporations <&wkey;70£>(8) — Railway Crossing Accident — Instructions — Contributory Negligence.
    Instructions that if a railway crossing flagman, injured by being pushed onto track by approaching vehicle, was negligent in failing to use ordinary care in keeping lookout and warning driver, he could not recover from owner of wagon, held to properly apply the law to the evidence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    5. Municipal Corporations <&wkey;70G(6) — Railway Crossing Accident — Question por Jury — Negligence.
    Evidence held sufficient to submit to jury the question of a driver’s negligence in not stopping when signal to do so was given by railway crossing flagman and whether it proximately caused flagman’s injury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    6. Municipal Corporations <&wkey;705(l) — Duty op Traveling Public at Railway Crossing.
    The traveling public have no right to go across a railway crossing without using ordinary care to avoid injuring flagman there located.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1515.]
    7. Municipal Corporations <f&wkey;705(l) — Duty op Persons Using Highway.
    It is the duty of all persons rightfully on the street to use care not to injure other persons rightfully there, whatever their duties may be.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1515.]
    8. Municipal Corporations &wkey;>70G(6) — Railway Crossing Accident — Question por Jury — Right to Assume Sapety at Crossing.
    The question of whether driver could assume that a railway crossing was safe, without being negligent, where he pushed flagman on track causing latter’s injury, was for the jury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    9. Municipal Corporations <&wkey;705(ll) — Railway Crossing Accident>-Joint Tort-Feasors.
    Where defendant driver pushed railway flagman on track causing latter’s injury, driver must have been guilty of negligence proximately causing the injury either alone or concurrently with tho railway to be liable therefor, and the degree of culpability as to driver and the railway company is immaterial.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. § 1515.]
    10. Tkial <&wkey;260(l) — Refusal of Request Covered by Charge.
    There was no error in refusing a requested charge and in giving other charg'es, where the charge given covered the various features of the case.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 651.]
    11. Appeal and Error <&wkey;1033(5) — Harmless Error — Instructions Favorable to Appellant.
    Appellant cannot complain of a charge which was favorable to its case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4066; Trial, Cent. Dig. § 587.]
    12. Municipal Corporations >&wkey;705(10) — Railway Crossing Accident — Contributory Negligence.
    If a driver did not exercise ordinary care to discover a railway crossing flagman and heed his signals, and thereby forced flagman into danger, and to save the1 driver’s life the flagman acted upon the impulse of the moment and was injured thereby, the flagman’s actions will excuse him from contributory negligence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515, 1517.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by B. W. Page and others against the Sulzberger & Sons Company of America and another. Judgment for defendants, and defendant named appeals.
    Affirmed.
    Burgess, Burgess, Chrestman & Brundige, of Dallas, for appellant. Houston Wood, E. P. Dougherty, Flippen, Gresham & Freeman, and Carden, Starling, Carden, Hemphill & Wallace, all of Dallas, for appellees.
   HUFF, C. J.

It is alleged substantially, and admitted in the pleadings, that on the 30th day of May, 1914, the appellee, Page, was employed by the Texas & Pacific Railway Company, as a flagman, and as such it was his duty to keep a lookout for travelers on St. Paul street, in the city of Dallas, approaching the crossing of the railroad track along Pacific avenue, and to keep a lookout for trains and warn travelers seeking to use the crossing of the approach’of trains. The allegations and the facts show Pacific avenue ruhs east and west and the railway company’s tracks are laid about the center of this avenue. St. Paul street runs north and south and ends with the south line of. Pacific avenue. Live Oak street runs northeast and southwest and crosses Pacific avenue at the ■same point approximately where St. Paul street ends. Masten street runs practically north and south, the south end being at the north line of Pacific avenue, nearly opposite the north end of St. Paul street. The appellant company’s place of business is on Live Oak street and Pacific avenue, situated in the V formed by these two streets on the north side of the avenue. The appellant was engaged in handling; packing, and shipping meat in Dallas. The railroad company operated a motorcar from the city of Paris to the city of Dallas, which passed over the crossing on which appellee was stationed as flagman. The appellee was injured at this crossing by being struck by the motorcar of the railroad company and knocked down on the date alleged. The car which struck him was traveling along the track of the railroad, going west on Pacific avenue. While the car was a short distance east of the crossing, one U. S. Deming, driving a span of mules to a wagon belonging to appellant packers, was on St. Paul street south of the crossing and was driving north and approaching Pacific avenue, where the appellee was near the railroad track. It is alleged by appellee that he flagged Deming to stop, but that he continued to drive directly toward appellee in a trot until his mules forced or caused him to get too close to the railway track, and thereby caused the motor to strike and knock him down, inflicting the injuries alleged. The negligence alleged as to appellant is that Deming saw and knew appellee’s position directly in front of him and knew the motorcar was approaching, or by the use of ordinary care could have known, but instead of stopping, as was his duty, he continued forward, and appellee knowing that the motorcar was approaching, and that there would be a collision between the car, mules, and wagon, unless he got Deming to stop, flagged him and used his efforts to stop him, and in doing so was forced and compelled by the team and wagon to go so near the track as to be struck by the car; that, as a result of Deming’s negligence in continuing to drive near to and against appellee, he was injured in his effort to save human life. It is also alleged the railroad company was negligent, in that the motorman of the car saw and realized the danger of appellee’s position in time to have stopped and avoided striking him, or could have done so by the exercise of ordinary care; that the motorman was negligent in failing to stop the car or to reduce its speed. The railway company was negligent in constructing and operating a car so the motorman could not keep a proper lookout, and that the car was running at an unlawful rate of speed and in violation of article 415 of the charter of the city of Dallas. The appellant packers answered that appellee failed to perform his duty as flagman and was negligent, thereby contributing to his injury, directly and proximately; that it was his duty at that time to be, and he knew he should be, upon the crossing where he could be seen by people traveling on St. Paul street, which he failed to do until the car was nearing the crossing and until the wagon had approached within 25 feet thereof. It will be unnecessary to set out the railway company’s answer, as it is not complaining on this appeal, but may be noticed, if necessary, later in disposing of the assignments. The jury found for appellee damages against both defendants in the sum of $3,000, but from which amount as to the railway company deducted $2,500. The court rendered judgment in accordance therewith, which is unnecessary to set out, as no complaint is made as to its rendition.

The first and second assignments are to the action of the court in refusing to instruct a verdict for appellant, and in refusing to set aside the verdict, because it is asserted the evidence is conclusive that the injury was not the result of the negligence of appellant’s agents. We believe the evidence is sufficient to have warranted the jury to find that the appellee was on the crossing so that he could have been seen by 'Deming, and that he was there sufficient time, signaling both him and the car, to have stopped before .crowding or forcing the appellee so near the track as to be struck by the car. The facts will warrant the finding, if the driver had used ordinary care, he would have seen the appellee in time to have prevented the injury, and also that at the critical moment, and immediately before appellee was struck by the car, the driver swerved his team so as to catch appellee and cut off his escape, and but for which the appellee would have avoided the car. The trial court therefore properly submitted the case to the jury, and the verdict has evidence to support it.

The third assignment complains at the refusal of the following requested instruction:

“You aro instructed that it was the duty o-f plaintiff to be on the crossing of St. Paul street and Pacific avenue on the occasion in question in a position from which he could see the approach of trains and cars, and at the same time see the approach of travelers on .St. Paul street coming in the direction of the crossing of said street, and give such travelers signals of danger in time to enable such travelers, including the driver of defendant Sulzberger & Sons -Company’s wagon, to stop his team by the use of ordinary care within time to avoid danger to himself and his wagon and team.”

Instead of this charge, the court gave the following:

“The plaintiff in this case was employed as a watchman by the Texas & Pacific Railway Company, and as such it was his duty to exercise ordinary care to keep a lookout for vehicles upon St. Paul street approaching the railway tracks, and also to exercise ordinary care to keep a lookout for the approach of the motorcar of the defendant railway company. It was also his duty to exercise oi’dinapy care to give signals of warning to approaching vehicles. It was also his duty to exercise ordinary care to signal drivers of vehicles of approaching trains in time so as to avoid any danger to said vehicles or their' drivers from the approaching trains. If you find and believe from the evidence that he failed to exercise this degree of care in any of these respects, and that this failure, if any, caused or contributed to cause his injuries, if any, then he was guilty of contributory negligence, in which event he cannot recover against the defendant Sulzberger & Sons Company of America;, and in which event his recovery, if any, you find against the Texas & Pacific Railway Company, should be diminished in accordance with instructions given in the court’s main charge.”

It is asserted as a proposition that it is tbe duty of flagman at a” crossing to keep a lookout for travelers seeking to use it, and to give signals of tbe approach of trains in time to enable them to avoid danger. In the counter proposition, it is asserted that a flagman is not an insurer, but that it is his duty to use ordinary care to keep a lookout and signal the traveling public. It is also asserted in a counter proposition that the requested instruction was a mere abstract proposition of. law and did not apply the law to the facts.

It occurs to us, as suggested by appellee, the flagman is not an insurer. It may, we think, be conceded that it is his duty to keep a lookout and to give warning of the approach of trains to the traveling public to enable them to stop and avoid danger. A failure to perform this duty would be negligence on the part of the appellee and would defeat a recovery, if it caused, or proximately caused, his injury. The measure of care in the performance of the duty would be that which the law imposes. It is our view that the duty imposed is “ordinary care”; that is, such care as an ordinarily prudent person would use in discharging such duty. It may be that more vigilance .and diligence would be demanded in the performance of this hazardous vocation, both to himself and those using the crossing, than an occupation less so; yet, under the circumstances, as they existed, ordinary care would mean the care required in the performance of that duty. Railway Co. v. Hodges, 102 Tex. 524, 120 S. W. 849. The jurors trying the ease are the judges of what constitutes this ordinary care, and, abstractly, it is improper for the court, in its charge, to decide for them what should or should not have been done by the party whose conduct is under investigation. Railway Co. v. Pendry, 87 Tex. 553, 29 S. W. 1038, 47 Am. St. Rep. 125; Railway Co. v. Goss, 31 Tex. Civ. App. 300, 72 S. W. 94. We believe the court’s charge properly applied the law to the facts and correctly informed the jury as to what would be the result upon appellee’s failure to exercise ordinary care as to appellant.

It is urged by the fourth assignment the court should have given the specially requested instruction:

“You are instructed that the driver of the wagon of defendant Sulzberger & Sons Company of America owed no duty to protect plaintiff from injury until he discovered that danger was imminent.”

The fifth assignment of error is predicated upon a requested instruction involving the same proposition as in the above, in which appellant sought to have the jury told, if the driver discovered the peril of appellee, upon such discovery, if he used all the means at his command to avoid injury to him, to find for appellant. The trial court instructed the jury it was the duty of the driver to use ordinary care to avoid injury to appellee, and, if he failed to use such care, he would be guilty of negligence. He also defined “ordinary care,” giving the approved definition of that term.

If the evidence offered by appellee is the correct description and position of the parties, the appellee had entered his flagman’s house during a rain, but had emerged from the house and was on the sidewalk when the driver emerged from one street into St. Paul street, driving north for the crossing. The appellee flagged him and walked into the middle of the street. The driver was going in a sweeping trot and traveling on the right-hand side of the street; but, immediately before the car struck appellee, he pulled his team to the left or west, and in doing so crowded or forced appellee to a position so as to be struck by the car. The testimony is sufficient to show that the driver made no attempt to pull up his team until he was upon appellee. Bystanders testified that the team turned to the left and west, and in doing so the mules crowded appellee against the car by which he was knocked down. This testimony warrants the finding that ap-pellee was within the view of the driver in ample time for him to have stopped before reaching the railway track. The driver himself testified that he did stop within 20 or 25 feet of. the track, and that he did not strike or push the appellee against the car or onto the track. Other witnesses testify his mules did touch or crowd appellee onto the track. It appears to be the contention of appellant that there was no duty on the part of the driver to look out for the flagman; that, if he did not see the watchman until he was in peril, no duty arose as to care toward him. This accident occurred on a public street in a populous city, at the crossing of three streets and a railroad, at which a watchman was stationed. It would be useless to have a flagman if there was no duty to look out for him. Certainly there is no law which would give the traveling public the right to rush •over the crossing without using some degree of care not to injure the flagman. If the flagman was performing his duty at his station and exercising ordinary care in doing so, then there was the duty of ordinary care on the part of the driver to look for him, heed his signal, and not to injure him. This duty was imposed upon him before appellee was placed in peril by the driver’s negligence. The true question in this ease was: Did the driver, soon enough, by the use of ordinary care, discover the situation of appellee to have prevented placing him in the perilous position to which he was forced? We do not think a party can close his eyes to the necessity of looking for another lawfully in a public street, until by his wrong he has forced •him into a perilous situation. This) duty, it appears to us, does not depend upon the fact that the injured party may owe a higher degree of vigilence than the other. The question is: Was the driver, negligent, and did his negligence proximately cause the injury, and whether the appellee was guilty of negligence which proximately contributed to his injury? These were all for the jury under the facts of this case. Each party, being rightfully on the street, owes certain duties to each other. It is their duty to see that they do not carelessly injure others rightfully on the street, whatever their duties may be thereon. The following cases, cited by ap-pellee, we think support the trial court’s action: Riley v. Farnum, 62 N. H. 42; Smith v. Bailey, 14 App. Div. 283, 43 N. Y. Supp. 856; Quirk v. Holt, 99 Mass. 164, 96 Am. Dec. 725; Jones v. Swift, 30 Wash. 462, 70 Pac. 1109. This court has heretofore substantially so held in the case of U. S. Express Co. v. Taylor, 156 S. W. 617.

The first sixth assignment will be overruled for the reason that the facts did not warrant the charge requested, and that it, in effect, assumes that the flagman was absent from the crossing. The question, it appears to us, is whether he was in such position as to have been seen by the driver in time to have stopped before the collision. The charge may have presented correctly an abstract proposition of law, but it did not apply to the facts, and assumes as a matter of law, we think, that the driver could assume the crossing was safe under the then circumstances. This, under all the evidence, was a question of fact for the jury whether he could then so assume without being negligent.

Under the second sixth assignment, the ninth' assignment, the tenth assignment, and the eleventh assignment, the proposition advanced is substantially, where there is no community of action, one wrongdoer will not be bound by the action of the other wrongdoer. The charge requested under the sixth assignment was to the effect that appellant would not be liable for any injury sustained by appellee, which resulted directly or proximately, from the negligence of the railroad. The court, in the main charge, instructed the jury that, if the negligence of both defendants acting concurrently was the direct and proximate cause of the injury, both would be liable. In addition to the above, the court instructed, in the ninth and tenth paragraphs of the main charge, that if the jury should find that either was guilty of negligence, but failed to find such negligence of either of said defendants alone, or acting concurrently with the negligence of the other, was the direct and proximate cause of the injury, to find for the defendant; or, if they failed to find that appellant was guilty of negligence, or if they found it was guilty of negligence, but failed to find that such -was the direct and proximate cause of the injury, then in either of which events to find for appellant. It will be seen from the court’s charge that appellant must have been guilty of negligence- which. was the proximate cause of the injury, either alone or concurrently with the railroad. It. seems to us the entire charge, when read as a whole, presents the law of the case on this question. We think it of no consequence if another person than the one charged contributes or concurs to produce injury. — each of the wrongdoers is liable for the entire damage. The degree of culpability is immaterial. 1 Shearman & Redfiold (Street’s Ed.) § 122; Railroad Co. v. Norris, 184 S. W. 261; Railroad Co. v. Goodwin, 177 S. W. 545. Intervening agencies, as a rule, do not interrupt the current of responsibility or connection between the negligence and the injury, and, in order to accomplish such a result, they must entirely separate the original wrong and in themselves he responsible for the injury. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence or assistance of one will not exculpate the other, because it would still be the efficient cause. Railway Co. v. Cardwell, 187 S. W. 1073, and authorities cited; also, authorities cited by appellee — Shelton v. N. Tex. Traction Co., 32 Tex. Civ. App. 507, 75 S. W. 338; Butterick, etc., v. Railway Co., 39 Tex. Civ. App. 640, 88 S. W. 299.

We think there was no error in refusing the requested charge and in giving the charges complained of, especially in the light of the other charges of the court covering the various features of the case.

The propositions under the seventh and twelfth assignments' have been, we think, sufficiently answered in discussing assignment No. 4 and other assignments.

The eighth assignment appears to complain of the concluding sentence of the fourth paragraph of the court’s charge because the court confined the jury to the consideration of the definition of the negligence of the appellant and no other. The negligence there defined was confined alone to appellant’s servant; it did not purport to define the duties of the railway company or of the flagman. If the appellant was guilty of other acts of negligence not included in that definition, the charge would be to its benefit, of which it had no just ground of complaint. Railway Co. v. Votaw, 81 S. W. 130.

The thirteenth assignment is’overruled. The complaint here made is to the twelfth paragraph of the court’s charge. It is urged the charge authorized the jury to excuse appellee from contributory negligence on account of his perilous position produced suddenly and unexpectedly. It is urged that such rule would apply to the railway company, and not to the appellant, for the reason that his peril resulted from his employment. The. perilous situation here presented arose, as contended by appellee, from the negligent failure of the driver to observe the signals of the flagman, and thereby forcing him to hazard further effort to stop the team and save the life of the driver. It was such negligence of appellant that forced ap-pellee into the perilous position when appellant’s servant discovered him. We believe the trial court correctly conceived that, if the driver did not exercise ordinary care to discover appellee and heed his signals and thereby forced the flagman into danger, his recklessness threatened a collision with the car, and, to save the life of the driver, appellee acted upon the impulse of the moment, this particular act, if so impelled by the impulse, should excuse him from contributory negligence. The charge is not subject to the criticism that the particular occupation in which appellee was engaged was the occa.sion of the impulsive action, but such perilous position was the result of the wrongful act of the driver which brought about and required instant action in order to save his life. If the charge was not full enough on that point, a special charge covering the defect or omission, if any, should have been requested. The charge we do not believe subject to the appellant’s criticism.

• The fourteenth assignment is overruled for the reasons above given.

We believe the case should be affirmed.
      tóxeFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

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


author: SWEARINGEN, J.

text:
    PFEIFFER v. CITY OF SAN ANTONIO et al.
    (No. 5868.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.
    Rehearing Denied June 13, 1917.)
    1. Taxation &wkey;335 — Liability for Tax — Es-toppel by Rendition.
    Where defendant taxpayer rendered property for taxes as his own and duly swore to statements therein, including ownership, he was absolutely liable for taxes thereon after such rendition had been acted upon by proper officers, although property belonged to the partnership.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 562.]
    2. Taxation ¡&wkey;592 — Action for Taxes — General Denial — Sufficiency.
    In a suit to collect taxes, the correctness of defendant taxpayer’s verified rendition of property could not be attacked by general denial; the same formality being required as when attacking a note.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1205-1213.]
    3. Taxation <&wkey;335 — Assessment Without Rendition — Conclusiveness.
    Where defendant taxpayer failed to render the property as his or that of the partnership, assessors had the privilege of using defendant’s rendition for the previous year, and defendant was bound by sworn statement therein that property was his.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 562.]
    4. Partnership <§=o54 — The Relation — Evidence.
    That defendant’s son had a 20 per cent, interest in property or that defendant had invested in business funds intrusted to him did not prove a partnership.
    [Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 77, 79.]
    6. Trial &wkey;186(S)—Questions for Cour^-CONSTRUCTION OF INSTRUMENTS.
    Refusal of court to submit to jury construction of defendant taxpayer’s written rendition was-proper, as construction was for the court.
    [Ed. Note.—For other cases, 'see Trial, Cent. Dig. § 326.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by the City of Antonio and others against John Pfeiffer. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Leo Tarleton and Ryan & Matlock, all of San Antonio, for appellant. Geo. R. Gillette and Robt. G. Harris, both of San Antonio, for appellee.
   SWEARINGEN, J.

This is an appeal from that part of a personal judgment against appellant, J. Pfeiffer, in favor of the city of San Antonio, for the taxes for the years 1908 and 1909 on a certain stock of goods. The> jury returned an instructed verdict upon which judgment was rendered against appellant for $769.88.

The pleadings of plaintiff clearly and fully allege liability for taxes for the years 1908 and 1909, and allege that appellant rendered the personal property described in the petition as his own property for the year 1908, and avers that no one rendered the said property for taxes for 1909.

Appellant answered the allegation of liability for 1908 and 1909 taxes and the rendition by appellant by a general denial.

There is no issue made by the facts shown by the evidence, though appellant contends that • the evidence shows that in 1908 and 1909 the property described belonged to a partnership, composed of appellant, his son, and others, and contends that therefore appellant was not personally liable for the taxes for those two years. The contention is not supported by any evidence of probative force, and, even if it were, 'there is no pleading to support the issue.

The above-mentioned contention is the gravamen presented by the six assignments, viz.: That no personal judgment should have been rendered against appellant for taxes on the described stock of merchandise for the years 1908 and 1909. The reason assigned is that the personal property belonged to a partnership composed of appellant and others during those two years.

Appellant o.wned the property, and rendered it for taxes prior to 1908. There was no notice of any transfer of ownership. June 25, 1908, appellant rendered the property for taxes as his own property and duly swore to the statements, including ownership, contained in the rendition sworn to and signed by him. The statute (article 7503, V. S. C. St.) made it his duty to render the property for taxes. If it were partnership property, and appellant one of the partners, he was required by a mandatory statute to render the property (article 7517), and to state in the rendition the names of all the partners (article 7518, § 1).

The rendition executed by appellant for 1908 made him liable personally for the taxes assessed against the property described in this rendition. He is absolutely bound by his rendition and all facts stated therein. 1 Cooley on Taxation, 618, note 2; Union School Dist. of Guilford v. Bishop, 76 Conn. 695, 58 Atl. 13, 66 L. R. A. 989; In re Bank of Marion, 153 Ill. 516, 39 N. E. 118; Tolman v. Raymond, 202 Ill. 197, 66 N. E. 1086.

It may be that, had the facts stated in the rendition not been stated by the appellant, but had been inserted therein without his knowledge or fault, he would not be bound; but, as contended by appellee, in order to attack a signed and verified written instrument, it is necessary to allege non est factum, fraud, or mistake with all the formality required in defense against a promissory note for similar reasons. Irion v. Mills, 41 Tex. 316.

The only pleading by appellant concerning the taxes for 1908 and 1909 was a general denial. The assessment for 1908 was a quasi judicial proceeding, the foundation of all subsequent procedure. The law required the appellant to render the property for this proceeding, and to state whether he owned it all individually or as a partner. Articles 7517 and 7518. The law also authorized the tax officer to rely upon this rendition as a basis of apportionment of taxes. They did rely upon it, and appellant is bound by it.

It is urged by appellant’s counsel that the rendition itself states that the property belonged to a partnership. We think they are mistaken. The rendition states clearly that the property belonged to appellant. The memoranda “20th Century Pharmacy,” appearing in the description of the property, could have meant nothing more than that it was the stock of goods handled by appellant under that trade-name. Since money paid for unowed taxes without protest or without compulsion cannot be recovered because of public policy (Galveston v. Gorham, 49 Tex. 308), for the same reasons renditions of a party after being acted upon by the proper officers cannot be corrected, at the instance of the party making the rendition. Appellant is liable for the 1908 taxes as owner of the property because he rendered the property as his.

For 1909 appellant failed to perform his statutory duty, in that he failed to render his property, both his and his partnership property. Under these circumstances it became the privilege of the assessor to use the rendition of 1908, and in so doing he bound appellant just as effectually as though appellant had repeated the rendition for 1909. City of Houston v. Stewart, 40 Tex. Civ. App. 499, 90 S. W. 49.

While it is not necessary to the decision of this case, we call attention to the fact that no partnership was proven at the trial of this cause. That appellant’s son had a 20 per cent, interest, does not indicate a partnership. Neither does the testimony that appellant had invested trust funds intrusted to him in his mercantile business. The most that can be said for such evidence is that appellant used the trust funds and owes it personally together with the highest rate of interest.

The trial court very properly instructed a verdict. The court also correctly refused the requested instructions submitting to the jury the construction of appellant’s rendition for 1908, a .written instrument. It was the court’s duty to construe the written instrument, which it did, and did correctly.

The assignments are all overruled.

The judgment is affirmed.

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

      <§n^For other cases see same toDic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J. HIGGINS, J. WALTHALL, J.

text:
    PRICE et al. v. TRADERS’ NAT. BANK et al.
    (No. 689.)
    (Court of Civil Appeals of Texas. El Paso.
    April 19, 1917.
    On Rehearing, June 14, 1917.)
    1. Mortgages <&wkey;91 — Registration—Instruments Entitled to.
    A deed reserving a vendor’s lien and a purchase-money note reciting that it was secured by such lien are entitled to registration under Rev. St. 1911, art. 6823, providing that mortgages, etc., may be recorded.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 201, 202.]
    2. Judgment <&wkey;785(2) — Priority over Assigned Vendor’s Lien.
    Where a deed reserving a vendor’s lien for payment of the purchase-money note was recorded, and such lien assigned by an unrecorded instrument, the original deed was notice of the lien to the vendor’s creditors only until the purchase-money note was outlawed, and the liens of judgments against the vendor secured after the note was barred -by limitations are superior to the assignee’s rights under the vendor’s lien.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1359.]
    3. Appeal and Error &wkey;>879 — Who May Allege Fundamental Error.
    Court of Civil Appeals will not consider a suggestion of fundamental error made by a party not appealing.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3581-3583.]
    Appeal from District Court, Tarrant County; R. Bruce Young, Judge.
    Action by the Traders’ National Bank against Mrs. Anna H. Price, T. P. Day and wife, and'others. Judgment for plaintiff, and the named defendants appeal. .
    Reversed and rendered.
    W. J. Berne, E. H. Ratcliff, and Lee, Lomax & Smith, all of Ft. Worth, for appellants. W. R. Sawyers, Carlock & Carlock, and A. C. Heath, all of Ft. Worth, and R. E. Thoma-son, of El Paso, for appellees.
   WALTHALL, J.

Appellee Traders’ National Bank of Ft. Worth, Tex., brought this suit against B. J. Houston and his wife, Mrs. Laura Houston, R. P. Waltz, J. F. Weading-ton, T. P. Day' and wife,’ E. M. Day, Mrs. Anna Price, a feme sole, and others not necessary to mention, as the judgment sufficiently and properly disposes of them and the issues presented as to them, and they are not parties to this appeal. The suit was based upon a note executed by R. P. Waltz to B. J. Houston secured by a vendor’s lien on 57 acres of land near the city of Ft. Worth described in the .petition, judgment being asked for the amount of the note, interest and attorney’s fees, and foreclosure of the lien on the land. B. J. Houston was made a party as indorser and guarantor of the note under a transfer of the note to the bank and under extension agreements, and Weadington was' made a party defendant as guarantor of the note at a date subsequent to its execution, and the other defendants as claiming an interest in the land. All of the defendants disclaimed interest in the land except Day and wife and Mrs. Anna I-I. Price. The trial by a jury resulted in a judgment for the bank, and T. P. Day and wife and Mrs. Anna H. Price have appealed. The appellants have practically the same issues and present them together. Weadington is not a party to the appeal and filed no cross-action or assignment, but filed a brief suggesting fundamental error in rendering judgment against him on the ground that there is no plead j to support the judgment.

The undisputed facts shown on the trial and the facts found by the jury, so far as necessary to an understanding of the points involved, are these:

Statement of Facts.

(1) On June 20, 1907, defendant B. J. Houston was the owner under a duly recorded deed of 57 acres of land situated near the city of Ft. Worth, in the county of Tarrant, describing the same by metes and bounds, the same land involved in this suit and referred to as 57 acres of land. On August 2, 1907, said Houston, for a valuable consideration, duly transferred and conveyed by general warranty deed to defendant R. P. Waltz the said land for the recited consideration of $12,000, of which amount the said deed recited that $6,000 was paid in cash upon delivery of the deed, and that Waltz had executed on said date to B. J. Houston his note for the principal sum of $6,000, bearing 8 per cent, interest per annum from date, and due 12 months after date, and secured by a vendor’s lien upon said land, expressly reserved in said deed. The said note also provided for attorney’s fees.

(2) As a part consideration for said deed, Waltz at the same time executed to B. J. Houston his note for the principal sum of $6,000, of date June 20, 1907, due 12 months after date, and made payable to the order of B. J. Houston, and bearing interest at the rate of 8 per cent, per annum, and providing that all past-due interest should bear a libe rate of interest, and providing for attorney’s fees. In the note it is provided that same is secured by a vendor’s lien against said 57 acres of land.

(3) Before maturity of the said note Houston, for a valuable consideration paid to him by appellee Traders’ National Bank in due course of trade, sold, indorsed, and delivered said note to appellee bank, and guaranteed its payment, and executed to appellee bank a formal assignment and transfer of the superior vendor’s lien retained by said Houston in the deed from Waltz to secure the payment of said note, the sale and indorsement of the note and the assignment being sufficient to vest in appellee bank the full legal title and ownership of said note and the vendor’s lien against said land securing same.

(4) The appellee bank acquired the said note in course of trade, in good faith, and before maturity, and without any knowledge at the time that the original transaction between Houston and Waltz, out of which the said note grew, was not a genuine transaction.

(5) The deed from Houston to Waltz was filed for record in Tarrant county on August 2, 1907, and was duly recorded in the deed records of said county on August 27, 1907.

(6) The assignment and transfer of the vendor’s lien from Houston to the appellee bank was never filed or placed of record.

(7) Waltz did not in fact purchase said land from Houston and did not pay Houston the $6,000 cash consideration mentioned in the deed, or any part of it.

(8) The Houston-Waltz deed was as between Houston and Waltz a matter of form, the purpose not being made clear by the record, except to enable him to borrow money on the note.

(9) When the bank purchased the note of Houston, it knew nothing of the inwardness of the Houston-Waltz transaction except as stated in the deed from Houston to Waltz and as shown in the note, but believed that the transaction between them was what it purported to- be on the face of the instruments.

(10) After Houston transferred the note and lien to the bank, and before the note matured, the maturity being June 20, 1908, Waltz reeonveyed the land to Houston, and Houston thereupon informed the bank of such fact and stated to the bank that said reconveyance was made upon his (Houston’s) agreement to pay said $6,000 note. This re-conveyance deed was never recorded.

(11) From the time the bank received the information of the reconveyance of the lands from Waltz to Houston the bank did not look to Waltz for payment of the note, but did look solely to Houston and the lien on the land expressed and retained in original deed from Houston to Waltz and expressed in the note.

(12) From June 20, 1908, the maturity of the note, the payment of the note was from time to time extended by agreement between Houston and the bank written on the back of the note, until such time as the record showed the note to be barred by the statute of limitation of four years. None of the extensions of the note were recorded.

(13) W. R.. Édrington was cashier of the bank at the time the bank purchased the note and represented the bank in its purchase and in all subsequent transactions between the bank and Houston having reference to the note.

(14) In the spring of 1908 appellant Mrs. Price delivered certain money to Houston to be loaned for her upon proper security, and in the early part of 1909 Mrs. Price delivered to Houston further sums for the same purpose, these sums aggregating about $8,000. Houston did not loan this money, but embezzled it.

(15) In the early part of 1913, and at intervals for a short time thereafter, the Days delivered to .Houston money to be loaned by him for them upon proper security, the money so advanced aggregating about $3,000. Houston did not loan this money, but embezzled it.

(15a) About February, 1914, Houston fled the country, and about that time was indicted for embezzlement. At the time of the trial of this case he could not be found.

. (16) February 26, 1914, the Days brought this suit in the district court of Tarrant county to recover against Houston the $3,000, and on same day sued out and had levied a writ of attachment on the 57 acres as the property of Houston.

(17) On March 10, 1914, Mrs. Price brought suit in the district court of Tarrant county against Houston to recover the $S,000, and on the same day sued out and had levied a writ of attachment on said 57 acres as the property of Houston.

(18) On October 6, 1914, and on October 26, 1914, Mrs. Price and the Days each respectively recovered judgments for the amounts sued for with foreclosures of the attachment liens on said 57 acres of land.

(19) On October, 1915, sales day, the 57 acres of land were sold under proper order of sale in the Price v. Houston case to Mrs. Price, she paying the cost and crediting the balance of her bid on her judgment.

(20) On December, 7, 1915, under proper order of sale in the case of Day v. Houston, the 57 acres of land was sold to the Days, their, bid being '$25, which amount was credited on the judgment, they paying, in addition, the cost of the sheriff’s sale and cost of the suit.

(21) In this suit the Days and Mrs. Price filed cross-action against tlie bank in trespass to try title to recover the 57 acres free of its lien.

(22) The plaintiffs in the attachment suits at the time of the levies of the attachment writs had no actual notice or knowledge of the bank’s lien and no constructive notice other than the notice given by the record of the deed from Houston to Waltz and the stated retention therein of the lien to secure the payment of the note in question.

Appellants’ first four assignments of error are directed to the refusal of the court to charge the jury to find for Mrs. Price and the Days. They assert several propositions, but under the.above statement of facts we think all may be embraced in the proposition that under our registration statutes the transfer of the vendor’s lien from Houston to the bank was capable of registration, and its registration was authorized, and that, to be binding on subsequent creditors and purchasers, it was required to be recorded, and that, failing to record the transfer of the lien, they being creditors without notice, the transfer is void as to them. The contention of the ap-pellee bank substantially is that the registration of the deed from Houston to Waltz setting forth by appropriate description therein the execution and delivery of the $6,000 negotiable note from Waltz to Houston as a part of the purchase money of said land, due 12 months after date, and secured by an express vendor’s lien upon the land described in said deed, was constructive notice of the existence of said note, of the retention of the lien securing the same against the said land, and of the negotiability of said note, which would as a legal consequence in case of negotiation or assignment of said note, in the absence of any release of said lien, of record or otherwise, carry with it the vendor’s lien attaching thereto. That, while it was permissible for the bank to have filed for record the formal transfer of said note and lien executed to it by Houston, the only penalty or injurious consequence that could in law result to the bank from its failure to record said instrument was that it left it in the power of Houston to have fraudulently executed a release of said lien and to have placed same of record, and in which event any subsequent innocent purchaser or creditor, dealing with the said property, would acquire superior rights to those of the bank, not by virtue of any positive law, but under the equitable doctrine of estoppel by negligence.

Article 6823, R. S., provides:

“What May Tie Recorded. — The following instruments of writing, which shall have been acknowledged or proved according to law, are authorized to be recorded, viz.: All deeds, mortgages, conveyances, deeds of trusts, bonds for title, covenants, defeasances or other instruments of writing concerning any lands or tenements, or goods and chattels, or movable property of any description.”

Article 6824, R. S., provides:

“All bargains, sales and other conveyances whatever, of any land, tenements and heredita-ments, whether they may be made for, passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall bo void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall nevertheless be valid and binding.”

In so far as the deed from Houston to Waltz recited and retained a lien upon the land to secure the note, and in so far as the note itself recited that it was given in part payment for the land, describing it, and expressed a lien upon the land to secure its payment, the deed and the note were each substantially a mortgage upon the land, as mortgages are regarded in this state, that is, a security for the debt and entitled to registration. Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, and the cases referred to. The deed from Houston to Waltz was duly recorded ; the note itself was neither acknowledged nor recorded; the transfer or assignment of the vendor’s lien from Houston to the bank was not recorded. Ajopellants had'no notice, either actual or constructive, of the transfer of the note or the assignment of the lien by Houston to the bank, nor of any of the extensions of time for the payment of the note.

The first question presented is: Was the record of the deed from Houston to Waltz, the deed reciting the note and expressing and retaining a lien on the land, sufficient notice of the lien, to subsequent attaching creditors of Houston?

It is true that the note was made payable • to Houston, and it is true also that subsequent to the execution and sale of the note to the bank and his assignment to the bank of the lien Houston again became the owner of the land, though that deed was never placed of record; but does that fact have the effect as to appellants to reinvest in Houston the title to the land free of the lien expressed in his deed to Waltz, neither the deed nor any writing of record reciting a discharge of the lien?

Counsel in their brief and in argument discuss many cases holding that the assignment of the lien from Houston to the bank, and the note itself as' a mortgage, is subject to registration, and that, on a failure of the bank to record either the assignment or note, creditors of Houston and subsequent purchasers of the 57 acres for value, without actual notice, would take without notice. But the cases discussed, it seems to us, decide the question against appellants’ contention, i. e., the effect of the Houston-Waltz deed as notice to creditors. If the record of the deed from Houston to Waltz gave notice to the world of the existence of the note and the lien to secure its payment, as it evidently does, we see no reason why appellants would not hayo all the notice necessary' to be given of the outstanding lien through the record of the Houston-Waltz deed, at least up to the time the note was not barred by the statute of limitation of four years. It could hardly be said that the bare failure to record the assignment of the lien destroyed the notice of the lien given by the record of the deeds from Houston to Waltz. The purpose of article 6824, supra, as far as the lien is concerned, was to require registration of the deed to give notice to the world of the existence of the lien and preserve to the bank its equity of redemption. Its registration had that immediate effect. In order to render ineffectual the notice thus given something must take place to destroy or counteract the notice given by the registry of the deed. In Moran v. Wheeler, supra, it was not questioned that the record of the deed from Kensing to Wheeler reciting the notes and retaining the lien on the land, duly recorded, was not sufficient notice of the lien, but in that case Kensing, to whom the notes were made payable, as recited in the deed, and who, from the record appeared to be the adverse claimant of the lien, executed and delivered to Wheeler, the vendee in the deed, an instrument in writing acknowledging the payment of the notes, and released on the record the lien on the land described in the deed. So far as the record then showed, in the absence of notice of the assignment of the lien or transfer of the note, Kensing was the adverse claimant of the lien, and the lien was released. The release of the lien by one appearing from the record to have the lien destroyed the notice given by the record of the deed. As said in the Moran v. Wheeler Case, the law of notice was the controlling rule for determining the rights of the parties. In this case there is nothing of record to show a release of the lien as in the Moran v. Wheeler Case. The simple fact that Houston again became the owner of the land from Waltz and Houston’s notice of his ownership to the bank, the then owner of the note and assignees of Houston of the lien, did not, in our opinion, have the effect at that time and by that act alone to destroy the lien or the notice of the bank’s ownership of the lien as to appellants. The case of Henderson v. Pilgrim, 22 Tex. 464, is based upon the record disclosing a proper release of the outstanding lien, whether a mortgage lien or a vendor’s lien, by the party shown in the record to be the owner or holder of the lien. Article 6824, supra, does not denounce as a penalty for the failure to record the assignment of the lien from Houston to the bank- a forfeiture of its lien. The failure to record the assignment did subject it to the danger or possibility of Houston, the ostensible owner of the note as shown by the record, executing and recording a release, as in the cases above referred to, in which event creditors or purchasers then dealing with reference to the land upon the record title would acquire superior rights to that of the bank. We think we need not discuss the question as to whether appellants or either of them under the facts of this case were purchasers for a valuable consideration and without notice of the 57 acres of land. Appellants disclaim that their rights arise by reason .of being subsequent purchasers for value, but claim under' the creditor feature of the statute supra.

There is, however, this second question presented by the record. The note held by the bank became due on the 20th day of June, 1908, and, by indorsements on the note, the due date of the note was extended to nearly two years after the deed record showed the note to be barred. The record showed no extension or renewal of the note. Appellants had no actual notice of the extensions or renewals of the note. Appellants’ attachments are levied in February, and March, 1914. Houston had continued to remain in possession of the land, and the proof showed that he had recovered from Waltz the legal title, but had not placed it of record. Under this state of facts^he question is presented: Was the record of the Houston-Waltz deed then notice to appellants of the bank’s lien? In Rogers v. Houston, 94 Tex. 403, 60 S. W. 869, a somewhat similar question is presented. A full statement of the case is made by the Court of Civil Appeals in 60 S. W. 445. Dailey conveyed to Brown 40 acres of land reserving a vendor’s lien to secure the payment of a purchase-money negotiable note for $67.20. Brown conveyed the land to Davis, who assumed the payment of the note, and in addition gave his note to Brown for $180 as the consideration, the deed so reciting and reserving the lien. Brown’s $67.20 was assigned to Armstrong, who brought suit on it, and also upon the second promise to pay it made in the second deed against Davis and Brown, seeking also a foreclosure of the lien to satisfy the $67.20 note, but made no mention of the $180 note. When that suit was brought the $180 note given by Davis to Brown, which was negotiable, had been assigned to Young and by Young to Houston, but in the suit neither Houston nor Young were made parties, nor did they have notice until after judgment foreclosing the lien and sale to Rogers. Houston then brought suit on the $180 note against Davis as maker, Young as indorser, with foreclosure of his lien as against Rogers, and as to Rogers offered to redeem and do equity. Houston recovered judgment, but, because Rogers was required to submit to the right of redemption interposed by Houston and Young, he appealed. Both of the deeds expressing the liens were recorded, but no transfer of the lien created by the second deed, though made, was ever recorded, and it was not shown that Armstrong or Rogers had actual notice of the transfer before the purchase at the foreclosure sale, and no mention was made in the foreclosure suit of the $180 note. On the certified question as to whether the burden rested on Rogers to prove that he did not have actual knowledge that Brown had transferred the $180 note given to him by Davis, and which was described in the recorded deed from Brown to Davis, the Supreme Court said:

“Looking alone to the record, Rogers was justified in concluding that the note, which was past due, had been paid, or that Brown did not desire to assert his subsequent lien upon the land. If Brown had in fact owned the notes at the time the judgment was rendered foreclosing the lien of Armstrong upon the land, that judgment would have barred any right of redemption that Brown had, and the sale under it would be conclusive of all his rights.”

In this case the fact is made clear by Ed-rington, the cashier of the bank, and who had had the matter in hand for the bank and negotiated the transactions with Houston for the bank, that after Houston regained the title to the 57 acres from Waltz, the bank no longer looked to Waltz on the note, and by agreement alone with Houston and Weadington, a subsequent indorser of the note, advanced the due date of the note to such time that the record shows the note was not only long past due, but was barred by the four-year statute of limitation. -In this case, as in the Rogers-Houston Case, the right of the bank is in its nature subordinate to the legal title. It seems to us that from the failure of the bank to record its transfer of the lien, its failure to give record notice of the extension of the time of fhe payment of the note, and the want of actual notice of the bank’s ownership of the note, the record showing that Houston owned it, it, appellants could well presume that the note had been discharged, or that the owner of the note did not desire to assert the lien. In other words, the bank cannot now assert against the appellants, the present owners of the legal title, a lien which the record shows was barred at the times of the attachment levies; the appellants having no actual notice or knowledge of the extension of the due date of the note. Articles 5694 and 5695, R. S. 1911, as amended by chapter 123, Gen. Laws 33d Leg. p. 250 (Vernon’s Sayles Ann. Civ. St. 1914, arts. 5694, 5695).

We have not considered the brief filed by Weadington, since he is not a party to this appeal; the majority of this court holding it to be a rule of appellate practice that under such circumstances his suggestion of fundamental error should not be considered. McKenzie v. Irrigation Co., 166 S. W. 497; Needham v. Cooney, 173 S. W. 979.

We think we need not discuss the other assignments.

For reasons stated, the judgment of the trial court is reversed, and here rendered for appellants.

HIGGINS, J.

I concur in the result.

On Rehearing.

WALTHALL, J.

J. F. Weadington complains of that portion of the opinion in which we say:

“Weadington is not a party to the appeal and filed no cross-action or assignment, but filed a brief suggesting fundamental error in rendering judgment against him on the ground that there is no pleading to support the judgment”

—and to the portion of the opinion in which this court held:

“We have not considered the brief filed by Weadington, since he is not a party to this appeal; the majority of this court holding it to be a rule of appellate practice that under such circumstances his suggestion of fundamental error should not be considered.”

We are-still of the opinion that Weading-ton, not having perfected an appeal rendered against him, must be considered by this court as being content with the judgment rendered, and could not claim a reversal in his behalf on the appeal made by the Bank. Sullivan et ux. v. Doyle, 194 S. W. 136, an opinion by the Supreme Court. We overrule his motion for rehearing.

Appellee Traders’ National Bank suggests in its motion for rehearing that we are in error in the twelfth finding of fact, in which we say:

“The record showed the note held by the bank to bo barred by the statute of limitation of four years.”

The latter portion of the statement in the twelfth finding of fact is not well worded, and on that account is subject to some criticism. We meant to refer to the deed records, and not to the record of the case as presented here. The deed record showed the vendor’s lien note to be due on the 20th day of June, 1908, and showed no extension of its due date, transfer or assignment of the note or of the superior vendor’s lien. The record as presented here does not clearly show the date of the filing of appellee’s original petition, but it evidently was not filed earlier than June 27, 1914. We should have made no reference to amended articles 5094 and 5695, as they have no bearing on the question presented here, and we withdraw from the opinion any reference to those articles of the statute.

The case is affirmed as to all parties except as to appellants, Mrs. Anna H. Price and T. P. Day and wife, Mrs. E. M. Day, and as to them the case is reversed, and here rendered that appellee take nothing as to Mrs. Anna H. Price and T. P. Day and wife, and that appellants, Mrs. Anna H. Price and T. P. Day and wife, recover on their cross-action the title and possession of the 57 acres of land sued for, free from all claim of ap-pellee Traders’ National Bank and the other defendants in the suit. In other respects the motion for rehearing is overruled.
      ©mjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    GUARANTY STATE BANK OF TIMPSON v. WM. D. CLEVELAND & SONS et al.
    (No. 235.)
    (Court of Civil Appeals of Texas. Beaumont
    May 25, 1917.
    Rehearing Denied June 13, 1917.)
    1. Novation <@=»1 — Definition.
    “Novation” is the execution of a new obligation for an existing one either between the same or different parties, the consideration being the discharge of the old contract (citing Words and Phrases, Novation).
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 1.]
    2. Novation <&wkey;12 — What Constitutes.
    Where railroad bills of lading covering cotton shipped to brokers were assigned to a bank for advances made to the shipper, evidence that the bank liquidated the debt due it by the shipper upon his indorsing to it notes payable to him, and that the bank expected to realize from such notes, establishes a novation preventing the bank from recovering against the brokers for a sale of the cotton authorized by the shipper but not by the bank.
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 12.]
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by the Guaranty State Bank of Timpson, Texas, against Wm. D. Cleveland & Sons and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Woods, King & John, of Houston, for appellant. T. S. Taliaferro, of Houston, for ap-pellees.
   BROOKE, J.

TJiis was a suit by appellant against appellee to recover $281.48 by reason of the alleged breach of contract, whereby appellees, as cotton factors, agreed with appellant to hold 56 bales of cotton until ordered sold by appellant; appellees having sold said cotton on March 9, 1914, without authority from appellant, and said cotton having thereafter advanced D/is cents per pound by the 23d day of May, 1914, during the same cotton season, to the damage of appellant in the sum above set out.

J. C. Bogard, on the 29th day of December, A. D. 1913, shipped to appellee 56 bales of cotton from Timpson, Tex. The cotton was shipped over the Houston East & West Texas Railway Company, said railway company issuing a bill of lading to J. C. Bogard to “shipper’s order, W. D. Cleveland & Sons, consignees.” The bill of lading bore on its back the blank indorsement of J. C. Bogard. On December 30, 1913, the following day, J. C. Bogard notified appellee by letter as follows:

“Messrs. W. D. Cleveland & Sons, Houston, Texas — Gentlemen: Yesterday I loaded out 56 bales of cotton for you, which will go through the Guaranty State Bank. Please store my cotton where it will keep perfectly dry and hold same until I instruct you to sell.
“Yours truly, [Signed] J. C. Bogard.”

On December 29th, plaintiff wrote defendants:

“We inclose you herewith B/L for 56 bales of cotton, weight 26,693 lbs., against which we have made advance. On receipt of this cotton send us warehouse receipts for same and hold this until we advise you what disposition to make of it. Please see to it that it is unloaded properly and stored in perfectly dry shed or warehouse where it will not damage. Please send us receipts as soon as possible, that .we may attach to the bill of exchange we hold.”

On January 2, 1914, defendants wrote plaintiff:

“We thank you kindly for your letter of the 29th ult. with B/L inclosed covering 56 bales of cotton. We note you wish the cotton kpid, so upon arrival we will send you oui; receipt showing the class and weight, and will hold for your instructions.”
“Awaiting your further commands and favors and thanking you again for this shipment, we remain.”

On March 9, 1914, appellee sold the cottor upon the authority of J. C. Bogard, who notified W. D. Cleveland & Sons as follows:

“So I want you to exercise your own judgment, and make effort for me, just as you would like to be treated, as if you were selling it for yourselves. I have been hard hit with the staple this season, and I want you to pull me out on this 56 bale deal.”

Cotton having been advanced lVie cents per pound by the 23d day of May, 1914, appellant seeks to recover- the difference in price for what the cotton would have brought had it been held until the 23d of May, and the price at which it was sold on the 9th of March, A. D. 1914. All the money arising from the sale of this 56 bales of cotton was paid to appellant by appellee.

At the close of the evidence, the court instructed the jury to return a verdict for the defendants. A verdict was returned in accordance with such instruction, and judgment on such verdict entered nunc pro tunc on April 13, 1916, as of date February 9, 1916. Appellant filed a motion for new trial on April 13, 1916, which was the same day overruled, appellant excepting and giving notice of appeal to this court, and the case is properly before this court for adjudication.

By the first assignment of error, the action of the lower court is challenged in refusing to instruct the jury to return a verdict in favor of plaintiff, as shown by plaintiff’s bill of exception No. 1. The proposition is made that:

“The undisputed evidence showing that defendants, as cotton factors, had contracted with plaintiff to hold the cotton consigned to them until directed to- sell by plaintiff; that the legal title to said cotton was vested in plaintiff; that defendants had breached their contract with plaintiff by selling the cotton without instructions of or permission from plaintiff; and that shortly after such sale, and during the cotton season, during which the contract was made, said cotton advanced in price, with the result that it would have been sold for more than it actually was sold for by plaintiff, the difference being the sum of $272.61. It was error for the court to refuse plaintiff’s request for an instructed verdict.”

The testimony of B. J. Hawthorn, cashier of the appellant bank, was as follows:

“J. 0. Bogard brought me a telegram which he received from W. D. Cleveland & Sons stating that they had sold said cotton. I immediately took it up with W. D. Cleveland & Sons, asking them under whose authority the same was made. They reported under the authority of J. C. Bogard, believing, as he was our customer, that we would be satisfied. We never approved the sale. We realized from the sale of said cotton $2,454.74. $2,000 of this was received soon after the cotton was shipped, and the balance of $454.74 about April 13, 1914. This did not liquidate the amount advanced to Bogard, by the bank. It lacked $385.26 of covering such advance.to Bogard. The indebtedness of J. C. Bogard to the plaintiff bank was evidenced by bills of exchange properly accepted by J. O. Bogard, and a note. The bills of exchange were as follows: One dated December 16, 1913, for $2,700, payable on demand; another dated December 26, 1913, for $140, payable on demand; a note dated February 4, 1914, for $315.75, payable on demand.”

It was further shown by his testimony that was the amount of money the plaintiff bank advanced to Bogard, and that the rate of interest was 10 per cent, per annum; that no bonus was charged to or paid by J. C. Bogard in any way whatsoever, directly or indirectly; that the bank charged- J. C. Bo-gard nothing except interest, as above stated, at the rate of 10 per cent, per annum- on the amount of money loaned to him. The testimony of this witness further shows as follows:

“I do not know what J. C. Bogard wrote the defendants in regard to holding said cotton. If he did write defendants to hold said cotton for his instructions, he had no authority to do so, as the cotton was in our hands, and we alone had authority to give instructions concerning it. It is a fact that J. O. Bogard was the owner of the cotton at the time it was shipped to W. D. Cleveland & Sons; but, as to the advance we made on this cotton was really more than it was worth in the market at the time it was shipped, we wanted to hold the cotton in the hope that the' market would advance so that we could realize the amount in full that X C. Bogard owed us. The only interest we had in the cotton was the interest we had in collecting from its proceeds or value the amount J. C. Bogard owed us. The plaintiff bank held no securities whatever to secure the advances of money by said bank to X C. Bogard, except this cotton.”

It is contended that by indorsing the bill of lading to • appellant, and receiving an advance thereon, Bogard transferred the legal title to the cotton which had been consigned to Cleveland & Sons by appellant.

In the case of Mercantile Banking Co. v. Landa, 33 S. W. 681, this language is used:

“Appellant’s title to the property was based upon an indorsement to it of the bill of lading, and a delivery thereof, which it claimed was made prior to the levy of the writ of attachment. Appellee joined issue on this proposition, and in effect asserted that the bill of lading was not indorsed until after the levy of the attachment. Appellee, in addition, sought to show by evidence of custom that the title to the property remained in the shipper or consignee; and as the property was shipped by Harris, and in effect consigned to him in the bill of lading issued by the railway company, he was the owner. The issue raised by the appellant was: Did it have a title by reason of the indorsement of the bill of lading? And, under the. case as presented by its pleadings, if it did not have title by virtue of that fact, then the appellee should recover, and evidence of custom would not aid him in' this respect, and the court should not have presented such an issue. The law gives to a transfer by indorsement of a bill of lading, accompanied by a delivery of it, the effect of passing title to the property shipped. Railway Co. v. Heidenheimer, 82 Tex. 199, 17 S. W. 608 [27 Am. St. Rep. 861]. A title thus acquired is as effectual in law as it would be if based upon an express and completed contract of sale.”

Therefore it seems that the contention of appellant with reference to the effect of the indorsement upon the bill of lading is sound. However, the testimony does not stop at this point. The cashier of the appellant bank further testified as follows:

“With reference to steps taken by the plaintiff bank to collect the sum of $281.48, sued for in this case, from X C. Bogard, we received from X C. Bogard several notes, payable to him, with which upon his indorsement, we liquidated the amount due us by J. 0. Bogard.” (Italics ours.)

It is urged that the legal effect of the acceptance of these notes indorsed by Bogard released Bogard from his original debt to the bank, to secure which the bill of lading was indorsed, and carried with it a release of all claims of ownership based on the bill of lading. It is necessary that we set out the testimony of the plaintiff bank with reference to this transaction.

Hawthorn, the cashier, testified:

“I have done business with X 0. Bogard for some time. J. O. Bogard is regarded as an honest, upright man, and was considered up to the time of his failure a fairly good business man. In our letter of April 20, 1914, to defendant in this case, when we wrote, “When we advised you so definitely what we wanted done and that you should have been able to -see from the way we wrote you that we were not sure of J. O. Bo-gard in this case,’ I might say we were afraid the very thing would happen to J. 0. Bogard that actually did happen, viz. I was afraid ho was going to fail. I did not have a mortgage on the 56 bales of cotton, but I did have a properly executed bill of exchange by J. O. Bo-gard, with bill of lading attached, the same being a shipper’s order bill of lading, thereby vesting the title in us to said cotton. It is not a fact that J. C. Bogard paid us all that he owed us; and it is not a fact that we. are bringing this suit for the benefit of J. 0. Bogard, but we are bringing this suit to recover a loss to our bank on account of W. D. Cleveland & Sons having sold said cotton without our instructions or permission.”
“It is a fact that X C. Bogard was the owner of the cotton at the time it was shipped to W. D. Cleveland & Sons; but, as the advances we made on this cotton were really more than it was worth at the time it was shipped, we wanted to hold the cotton in the hope that the market would advance so that we could' realize the amount in value that J. C. Bogard owed us. The only interest we had in the cotton was the interest we had in collecting from its proceeds the amount J. C. Bogard owed us. Plaintiff bank held no security whatever to secure the advances of money by the said bank to X C. Bogard, except this cotton. In a letter under date of April 20, 1914, B. J. Hawthorn, Cashier, says, ‘We handled this cotton, or we were trying to handle it, so we would be perfectly safe, and still not call on Bogard to put up any more than necessary. In fact, we advanced more than we make a practice of advancing, but expected to call on him to put up more margin, whenever the market declined. The facts are we liad and still have every confidence in Bo-gard morally, but he has gotten in very heavily the past season, and we do not know what will be the outcome, hence our contention in this matter. He has several hundred bales of cotton on hand, and since this cotton was bought all during the early fall there is no telling the average grade, since it all showed up, particularly on account of rains. Now, if he gave you instructions to sell, you have recourse on him if he is solvent,” etc.

On February 10, 1914, appellant drew on W. D. Cleveland & Sons by draft for the sum of $2,000, which was accepted on February 11, 1914, and duly paid.

A. S. Cleveland: That appellee wrote appellant on February 11,1914,- as follows:

“We were not expecting you to draw against the 56 bales at the rate of your draft, and under our present rates we are not prepared to advance the amount you require against cotton of the character of your list.”

But appellee paid the draft.

The cashier of the bank testified further as follows:

“With reference to steps taken by the plaintiff bank to collect the sum of $281.48, sued for in this case, from J. C. Bogard, we received from J. C. Bogard several notes, payable to him, with which upon his indorsement we liquidated the amount due us by J. C. Bogard. Before those notes matured, J.. C. Bogard filed a petition in bankruptcy. We did not file any claim with the referee in bankruptcy to hold him on his indorsement, and to participate in the dividend, because we felt we would realize more out of these notes than we would by filing our claim with the referee. These notes have matured, and we have tried to collect; but we have failed. There is now due us, the plaintiff bank, on these notes $360.55, which amount has been charged off our books.”
“Novation” is defined as being the execution of a new obligation for an existing one. It means that, there being a contract in existence, some new contract is substituted for it, either between the same parties, or between different parties; the consideration mutually being the discharge of the old contract. Words and Phrases, vol. 5, p. 4848. It is further defined as follows in 29 Cyc. pp. 1130, 1131:
“ ‘Novation’ is the substitution by mutual agreement of one debtor or one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. It is a mode of extinguishing one obligation by the substitution, not of a new paper or note, but of a new obligation, in lieu of an old one, the effect of which is to pay, dissolve, or otherwise discharge it. And so there can be no no-vation to which the original debtor does not consent, and to which he is not a party; hence, without this consent and promise to pay, a new creditor can have no action against the debtor, because there is no privity between them. This assent on the debtor’s part is also essential for the reason that he may have a valid set off against the original creditor, of which he cannot be deprived.”

And further:

“To constitute a ‘novation,’ the creditor must have consented to the discharge of the original debtor, and have accepted the promise of the new debtor. It is not essential that the assent to and acceptance of the terms of novation be shown by express condition to that effect, but the same may be implied from the facts and circumstances attending the transaction and conduct of the parties thereafter.”

In the case cited by appellants of Gimble & Son v. King, 43 Tex. Civ. App. 189, 95 S. W. 8, the following language is used:

“Novation is effected by the substitution of a new obligation between the same parties with the intention to extinguish the old one, or by the substitution of a new debtor with the intention to release the old one, or by the substitution of a new creditor with the. intent to transfer the rights of the old one to him. Beech on Modern Law of Contract, p. 786.”

And further:

“ ‘The intention 'of the creditor to discharge the first debtor, to accept of the second in his stead, must be perfectly evident.’ Novation can only exist by mutual consent and agreement of all the interested parties, and it is subject to the same rules of evidence that obtain in regard to any other kind of contract. Not only is it necessary to prove that the creditor took a new debtor, but it must be made to appear, in order to release the old debtor, that there was an ex-tinguishment of the old debt and an agreement to look to the new debtor alone. The mere taking of a new debtor for the old debt would not, standing alone, be sufficient to show novation. Pimental v. Marques, 109 Cal. 406, 42 Pac. 159.”

In the present case, the language heretofore quoted as being used by the cashier of the appellant bank is subject only to one construction:

“We received from J. C. Bogard several notes payable to him, with which, upon his indorsement we liquidated the amount due us by J. C. Bogard.”'

And further:

“We did not file any claim with the referee in bankruptcy to hold him on his indorsement and to participate in the dividends, because we felt that we would realize more out of these notes than we would by filing our claim with the referee.”

As before stated, there can be no question about what was meant. This liquidation of the amount owed by Bogard was some time after the cotton had been sold by Cleveland & Sons, after the entire transaction had been completed, so far as Cleveland & Sons were concerned. In addition to this, appellant waited perhaps nearly two years before this suit was filed. In view of these facts, we are constrained to hold that there was a complete novation, by which Cleveland & Sons were released from any obligation which they might have been due to the plaintiff bank by virtue of the transaction.

Therefore, after a careful consideration of the appellant’s assignments, and of this record, we are driven to the conclusion that appellant has had a fair and impartial trial; that there is no- error apparent of record, or to which our attention has been called, which would justify a reversal of this cause. Believing, as we do, that the justice of the case has' been met, and finding no error in the action of the lower court in this cause, it is in all things affirmed.
      ©saFor other.cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.