author: KEY, C. J.

text:
    OKLAHOMA FIRE INS. CO. et al. v. ROSS.

    (No. 5325.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 11, 1914.)
    1. Action (§ 50) — Causes oe Action — Mis-joinder.
    Plaintiff and defendant B. were employed by defendant insurance company as agents to represent it in Texas, and, plaintiff having been discharged, he sued the insurance company®for breach of the contract, alleging a discharge without legal excuse before expiration of his contract, and joined B. as a party defendant, alleging that.B. conspired with the company to aid and abet it in ousting plaintiff from his employment. Held, that, while B. was a party to the contract, he was so in the same sense that plaintiff was, and rested under none of the obligations that were imposed on the insurance company; and hence there was a misjoinder of causes of action.
    [Ed. Note. — Eor other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. Í 50.]
    2. Damages (§ 40) — Breach oe Contracoy-Speculative Damages.
    Where a contract employing plaintiff to act as agent for defendant insurance company provided that he should receive $125 a month, traveling expenses, and 2% per cent, commission on all premiums forwarded to and accepted by the insurance company, plaintiff, on discharge without sufficient cause before the end of his term, was not barred from recovering profits he would have made out of the commissions on premiums had he been allowed to serve the remainder of his term, on the ground that the amount of such profits was to a considerable extent speculative.
    [Ed, Note. — For other cases, see Damage's, Cent. Dig. §§ 72-88; Dec. Dig. § 40.]
    3. Appeal and Error (§ 1040) — Rulings on Pleadings — Causes op Action — Misjoin-der.
    Where plaintiff sued for breach of contract and pleaded certain slanderous charges alleged to have been made by the officers of defendant company at and subsequent to its breach of the contract, but on exceptions for misjoinder of causes of action, plaintiff’s attorney claimed that such allegations of slander were made to show malice only, and the court did not submit the issue of slander to the jury as a ground for recovery, the overruling of the exceptions was not ground for reversal of a judgment for plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    4. Damages (§ 89) — Breach op Contract-Exemplary Damages.
    In general, exemplary damages are not recoverable for breach of contract, unless the breach occurs in such a manner as to constitute a tort, but tortious conduct, however malicious or inexcusable, committed after the breach, will not justify such damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 203; Dec. Dig. § 89.]
    5. Conspiracy (§ 19) — Contract op Employment-Breach.
    Evidence held insufficient to establish a conspiracy between an insurance company and B. to terminate plaintiff’s employment by the insurance company, and to charge him with improper conduct in the padding of his expense account.
    .[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 25, 26; Dec. Dig. § 19.]
    6. Master and Servant (§ 41) — Contract-Breach — Punitive Damages.
    Where plaintiff was discharged by defendant insurance company prior to the expiration of his contract, but such discharge, accomplished by the company’s representative, was not accompanied by harsh op rude conduct, and, though plaintiff was informed privately when, he demanded to know the reason that he was discharged because he had been padding his expense accounts, such statement, made to him privately in good faith, was not a slander, but was privileged; and hence plaintiff could not recover punitive damages against the company in an action for breach of the contract.
    [Ed. Note. — For other cases, see Master and Seiwant, Cent. Dig. §§ 12, 50-53; Dec. Dig. § 41.]
    Error to District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Harvey B. Ross against the Oklahoma Eire Insurance Company and others. Judgment for plaintiff, and defendants bring error.
    Reversed and rendered as against defendant J. W. Beasley, and modified and affirmed as against defendant insurance company.
    Sleeper, Boynton & Kendall, of Waco, and Burwell, Crockett & Johnson, of Oklahoma City, Okl., for plaintiffs in error. Witt & Saunders, Scott & Boss, and E. J. Clark, all of Waco, for defendant in error.

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

       Application for writ of error pending in Supreme Court.

   KEY, C. J.

Harvey B. Ross brought this action against the Oklahoma Fire Insurance Company and J. W. Beasley, and sought to recover both actual and punitory damages for the breach of a contract entered into by Ross and Beasley, parties of the first part, and the insurance company, party of the second part. The answers of the defendants contained general and special exceptions, general denials, and certain special pleas, the particulars of which it is unnecessary to state. There was a jury trial, which resulted in a verdict and judgment for the plaintiff, Ross, against both of the defendants for $6,667 actual, and $2,500 punitory, damages, and the defendants have brought the case to this court by means of a writ of error.

While the defendants in the court below are ■ plaintiffs in error, and the plaintiff in the court below is defendant in error, in this court, in this opinion that unnecessary and confusing transposition of the parties will be disregarded, and the word “plaintiff” will refer to Ross, who was the plaintiff in the court below, and the word “defendants” will refer to the insurance company and Beasley, who were defendants in that court.

After giving the case long and careful consideration, we have reached the conclusion that, as between the plaintiff and the defendant Beasley the judgment should be reversed and here rendered for the latter; and, as between the plaintiff and the insurance company, the judgment for punitory damages should be reversed and rendered for the insurance company, and the judgment for aetual damages as against tliat defendant should be affirmed.

Dealing with the Beasley branch of the case first, we deem it proper to say that while the plaintiff charged in his petition that Beasley had entered into a conspiracy with the insurance company to oust the plaintiff from his employment as an agent of the insurance company, and had aided and abetted in accomplishing that result, there was an entire failure to prove the existence of any such conspiracy, or that Beasley aided or abetted in ousting the plaintiff from his employment, and therefore the court should have instructed a verdict for Beasley. By the terms of the contract hereinbefore referred to, Ross and Beasley were employed by the insurance company as agents to represent that company in the state of Texas, and Ross sued the insurance company for a breach of that contract, alleging, in substance, that, without legal excuse, the company had discharged him before the expiration of the contract. Now, while Beasley was a party to that contract, he Was a party in the same sense that Ross was, and rested under none of the obligations that were imposed upon his codefendant, the insurance company; and therefore we think the trial court should have sustained the exceptions which presented the question of misjoinder of causes of action. However, as we have concluded to reverse and render the case in favor of Beasley, the action of the trial court in overruling the exceptions referred to is now immaterial, in so far as he is concerned.

Turning to the other branch of the case as to the insurance company, conceding that the court should have sustained the exception referred to, we have reached the conclusion that the case ought not' to be remanded for another trial upon the question of actual damages, because there is no reason to suppose that a retrial between the plaintiff and the insurance company, limited to the question of the breach of the contract and actual damages, would result in'a more favorable finding for the insurance company than the verdict which has already been rendered for actual damages. True it is, the insurance company assails that finding and charges that it is unsupported by testimony, but we have reached a different conclusion. At the time of its breach the contract had about four years to run; by its terms the plaintiff was to receive a salary of $125 per month, his traveling expenses, and 2y2 per cent, commission on all premiums forwarded to and accepted- by the insurance company. It is also true that by agreement of the parties and the charge of the court, the question of the plaintiff’s right to recover for salary was eliminated from the case, and the measure of damages thereby limited to the profits the plaintiff would have made out of the commissions on premiums. In the very nature of things, the amount of such profits is, to a considerable extent, speculative, but the authorities hold that that fact will not prevent a recovery. In this case it was shown that after the insurance company had discharged the plaintiff it ceased to do business in Texas on the ground that it was not profitable so'to do. But there was testimony tending to show that Ross and Beasley were building up a business at the time the former was discharged; that it was largely through his efforts that the business referred to had been obtained, and we cannot say that the jury was not justified in reaching the conclusion that, if the plaintiff had not been discharged, the business would probably have been successful and attained such proportions as that during the remaining four years the plaintiff would have earned as commissions the amount awarded him as actual damages.

It is also insisted by the insurance company that the ease should be reversed because of a misjoinder of causes of action, in that the plaintiff sued for a breach of the contract and also for slander founded upon certain slanderous charges made against the plaintiff at and subsequent to the breach of the contract. Counsel for Ross contend that the plaintiff’s petition did not seek a recovery for slander, and that the matters referred to were set up in the petition for the purpose of showing malice on the part of the defendant in discharging the plaintiff in the manner and under the circumstances alleged in the petition. The trial court seems to have adopted the latter view, and did not submit to the jury the question of slander, but did submit the questions of conspiracy between the two defendants, of breach of the contract and actual and punitory damages. Therefore if it be conceded (which we do not decide) that the plaintiff had no right to join in the one action against the insurance company the right to recover upon contract and also for slander, we do not think the case should be remanded for another trial because of the action of the court in overruling exceptions to the petition presenting that point. Inasmuch as the court held that no recovery was sought on the ground of slander, and did not submit that issue to the jury, it would seem that the result was the same as if the court had sustained the exceptions referred to.

It is also contended that error was committed in permitting the plaintiff to introduce testimony tending to sustain the slanderous charges referred to, which consisted, in substance, of the charge that the plaintiff had fraudulently padded his expense accounts and had thereby committed a fraud upon the insurance company, for which reason he had been discharged. If it be conceded that the testimony referred to was not admissible, we see no reason to suppose that it had any influence with the jury in determining whether or not the insurance company had breached the contract, and the amount of actual damages the plaintiff was entitled to recover for such breach. Doubtless that testimony was considered by the jury and spent its full force in determining the question and of the amount of punitory damages; but, as we have concluded to reverse and render upon that issue, we hold that the insurance company is entitled to no further relief because of the admission of that testimony.

In conclusion, we deem it proper to make a few observations concerning our rulings upon the question of .punitory damages, and the failure to make a case against Beasley. It is well settled, as a general rule, that punitory or exemplary damages are not recoverable for the breach of contract. There are some exceptions to that rule where the breach occurs in such manner as to constitute a tort; but tortious conduct committed after the breach of the contract, no matter how malicious or inexcusable, will not form the basis for recovery of punitory damages for a breach of contract. Aside from the testimony given by the plaintiff, it is not pretended that he had any case against either defendant. According to his testimony, which the jury had the right to and did accept as true, he was not guilty of the fraudulent conduct chaz'ged against him, and therefore his discharge was wrongful, and he was entitled to recover from the insurance company actual damages therefor. But his counsel contend that he was not only entitled to recover actual damages against the insurance company, but was also entitled to both actual and punitory damages against both Beasley and the company. The claim against Beasley rests upon the contention that he entered into a conspiracy with the insurance company for the purpose of ousting Ross from his employment; while the claim for punitory damages rests upon the conspiracy theory, and also upon the contention that the manner in which the plaintiff • was discharged from his employment constituted a tort, entitling him to recover punitory as well as actual damages.

In support of those contentions, counsel for Ross have embodied in their brief the following statement of his testimony bearing upon the two issues referred to :

“It was in January or February that he first began discussing with the representatives of the Oklahoma Fire Insurance Company the advisability of coming to Texas. Shortly thereafter defendant in error J. W. Beasley executed a contract with the said company, by virtue of which they became general and special agents for the state of Texas. At the time of the making of the contract, defendant in error was acting as secretary for the company, which position he resigned on moving to Texas. The representatives of the company wanted defendant in error to introduce the business in Texas on account of his family standing. The president, Robert Galbreath, knew all about defendant in error’s connections in this state and the position which his family had occupied in years past. Before establishing a general agency defendant in error came to Texas and called upon the Commissioner of Insurance and Banking, in order to ascertain the legal requirements for the admission of Ms company. This trip was taken at the request of the president of the company. The contract in issue was executed on the 28th day of April, 1910, and immediately thereafter defendant in error and the said J. W. Beasley came to Texas and established themselves at Dallas. Defendant in error applied himself to the establishment of the business of the said company, and traveled over the state, appointing agents, establishing, in all, between 120 and 140 agencies himself out of a total number of 160, representing the combined efforts of both Ross and Beasley during the period intervening between the execution of the contract and the date of the breach. The contract was breached by the said Oklahoma Fire Insurance Company on the 28th day of February, 1911, 10 months after its execution. The life'of the contract was for a period of five years from the 1st day of May, 1910, to the 1st day of May 1915, inclusive. In consideration .of the services of the defendant in error and the said J. W. Beasley, as special and general agents and adjusters, it was stipulated in the contract that they were to receive a salary of $125 each per month and a further consideration of 5 per cent, commission on all premiums forwarded to the home office of the said Oklahoma Fire Insurance Company and accepted by it. Defendant in. error and the said J. W. Beasley were to receive all necessary hotel bills, traveling and other incidental expenses, while engag'ed in the prosecution of such business, including a reasonable amount for office rent for the period of the contract. In making up his expense accounts for numerous trips he was obliged to make in appointing agencies and in the prosecution of the business, defendant in error prorated his incidental expenses under general heads, such as hotel, sleeper, and railroad items. Robert Gal-breath, president of the company, was fully advised as to this practice and never objected to it. During the 10 months period of his active employment his traveling expenses, inclusive of incidentals for the 10 months, were only $913.60, during which time he had traveled 13,-650 miles in all. In the following October, 1910, the president of the company visited defendant in error at Dallas, and expressed gratification with the manner in which the business was being conducted. ‘He expressed himself in the presence of the bookkeeper and in the presence of Mr. Phipps as being highly gratified with the business in every way. * * * The first time I ever had any intimation from Mr. Galbreath, or any other person connected with the concern, that my management and conduct of the business was not satisfactory, was on Sunday, February 28th, about 1:30 or 2 o’clock in the afternoon. * * * J. L. Gessler informed me of the fact. He was general manager of the company. Previous to that time I had made out my expense accounts in the manner in which I have described, and made out one in the presence of Mr. Galbreath. That took place about the 1st of February. That took place in Oklahoma City in the home office. I gave the expense account that I made out at that time to Mr. Galbreath. He was president of the company. He handed it to the secretary of the company, and he gave me a check in payment of that expense account. ’* * * Mr. Gal-breath did not say a word to me at that time about being dissatisfied in any manner with the manner in which I had made out the report of my expense account. * * ’? I had a talk with Mr. Galbreath, in which I explained to him how I classified my expense items. I talked with him right at the time aj>out coming to Texas. We had up a discussion of the incidentals in the contract. I told him I would include all those incidentals in hotel items, and he thought so, too; that it would not look good putting down cigars and drinks and different things like that in the expense account.’ In the early part of February, 1911, a short time before this contract was breached, defendant in error received a letter from General Manager J. L. Gessler, in which he objected to the amount of commissions that they were paying under the provisions of the contract, stating that it would be up to them, Beasley and Ross, to make the move, and that unless they modiiied the contract the Oklahoma Fire Insurance Company would have to go out of business, etc. ‘Immediately upon receipt of that letter Mr. Beasley and I discussed it. We both declined to do so. Beasley said he would go to Oklahoma City and have Gessler fired for writing such a letter.’ (Previous to receiving the telegram from Mr. Gess-■ler arranging the appointment at which the contract was breached, a phone call came from Oklahoma City.) ‘They had called several times that day, and called for Beasley and would not talk to me. I answered the phone and the long-distance girl told me that they wanted Beasley. The call was from Gessler in Oklahoma City. That was Saturday morning when that occur-l-ecl. * * * I know of my own knowledge that Beasley answered that call. He did not say. anything to me after the conversation over the phone. I only heard just a word or two of the phone call. * * * I could understand Beasley talking to Gessler over the phone. I only came in just when the tail end of the conversation was going on. I recall what it was that I did hear. Beasley said: “He is going to leave; you had better do it now.” That is all I heard. It was one hour or so after that when I received the telegram. After that conversation I received a telegram from Gessler. He was then in Oklahoma City. * * * I did not go to South Texas.’ On meeting Gessler at Dallas the following Sunday defendant in error was notified that he, Gessler, had come there for the purpose of firing him, and when asked for what, Gessler answered, ‘Well, for padding your expense accounts.’ I says, ‘I guess you are joking,’ and he says, ‘No; I am in earnest.’ I says: ‘Well, Gessler, if you are in earnest this is a serious proposition. Will you tell me in what particular I have padded my expense account? You know, and the balance know, how I made my expense accounts, and I never had any criticism from any of you. T have kept them all, and I will bé willing to explain to anybody else what is necessary about it.’ * * * Gessler said: ‘There is no use of your getting your expense accounts, for I have been sent down here for the purpose of firing you. There is nothing that you can say or do that would change the situation; that is my mission; sent here by Robert Galbreath to fire you.’ I said: T would like for Mr. Galbreath to give me an opportunity; I want a chance to explain these things. This is indeed a serious matter to me.’ He said: ‘Well, I am sorry, but I haven’t anything else to do but to fire you; you have missed your opportunity.’ I told him they owed me some money. He said, ‘They sent one dollar for you to sign this release.’ (See release submitted to defendant in error, but which he refused to sign.) ‘He reached in his pocket and pulled out a silver dollar, and said: “That is all yon will get. I told Galbreath he should pay you at least your salary.” Gessler advised me to sign the release. He said: “You know Galbreath is a rich man, and if you do not sign this paper he will scatter broadcast over the country the fact that you have padded your expense accounts, and, whether true or not, it does not make any difference, he will ruin you in a business way, and he will never let you get on the road anymore.” ’ J. W. Beasley remained in charge of the business. Both defendant in error and J. W. Beasley occupied the same desk and divided the pigeon holes or receptacles equally between them. The letter received from Mr. Gessler, with other letters of a personal nature, were in Ross’ side of the desk. When Ross opened his desk to produce his expense accounts and show them to Gessler, his half of the desk was blank with the exception of one place, a locker where his expense accounts were kept and which was locked by a different key, the key being kept by Ross. There were two keys to the desk. Ross had one and Beasley the other. Beasley was in the office a while that Sunday morning Ross was fired, and left there before Gessler came in. Ross was on the eve of departure for Corpus Christi to adjust a loss at the time he was advised by Gessler of his discharge. J. W. Beasley, plaintiff in error and Robert Galbreath, president of the Oklahoma Fire Insurance Company, were closely and intimately connected in a business way, and had been for some time prior to Mr. Beasley’s coming to Texas; Mr. Beasley having been elected general manager. After his discharge defendant in error applied to numerous fire insurance agencies, both general and special, and for some inexplicable reason failed to get employment.”

This testimony falls far short of showing the existence of a conspiracy, and therefore we hold that Beasley is not liable. It may cause a suspicion, hut it does not justify a finding that any agreement had ever been entered into between the insurance company and Beasley for the purpose of ousting the plaintiff; and it follows that as the proof fails to show the existence of the conspiracy, punitory damages are not recoverable upon that theory.

Then the remaining question is, Was such a tort committed by the insurance company at the time it discharged plaintiff as to justify a recovery of punitory damages? and in our opinion the law gives a negative answer to that question. It does not appear that Gessler, who acted for the insurance company in discharging the plaintiff, acted harshly or was guilty of any other rude conduct. He expressed sympathy for Ross, and did not make the charge of fraudulent conduct against him until Ross demanded to know the reason for his discharge. Gessler replied that he was discharged because he had been padding his expense accounts; and, in addition thereto, offered the plaintiff a dollar if he would sign an instrument releasing the company from the contract, advised him to sign it, and told him that if he did not do so Galbreath, the president of the company, would make the charge referred to public and injure the plaintiff in a business way. The entire transaction, and all that was said on that occasion, was private matter between Gessler and the plaintiff; and, conceding that it constituted a false charge against him of fraudulent and dishonest conduct, still, in contemplation of law, it was not even a slander. because it was not published or uttered in the hearing of any third person, and therefore it could not have damaged the plaintiff’s reputation or good name; and, if made in good faith, it was privileged because it was in response to Ross’ question. It may be true, as the testimony tends to show, that at different times and on other occasions after the plaintiff had been discharged and the contract breached, the insurance company caused the charge referred to to be repeated in the presence of others, and under such circumstances as to create a cause of action for slander; but the plaintiff’s counsel say that bis petition did not seek to recover for slander, and that issue was not submitted to the jury; and the fact that the proof may have shown a cause of action for slander afforded no ground for a recovery of punitory damages for a breach of the contract, when the slander referred to was no part of and not connected with the breach of the contract. Hence we conclude that the plaintiff Was not entitled to recover anything as puni-tory damages, and the court should have so instructed the jury.

All the questions presented have been duly considered, and, as heretofore stated, our conclusion is that the judgment for actual damages should be affirmed as against the insurance company, and that in all other respects the judgment should be reversed and here rendered for both the insurance company and Beasley.

Some objections are urged to the court’s charge, but those which relate to the question of actual damages are not regarded as tenable, and the others, except those which our decision sustains, are rendered immaterial by the judgment rendered by this court.

Affirmed in part and in part reversed and rendered.


source: Caselaw Access Project

author: RASBURT, J.

license: Public Domain

text:
    W. R. CASE & SONS CUTLERY CO. v. FOLSOM.
    (No. 7211.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 21, 1914.)
    1. CORPORATIONS (§ 376) — POWERS — PURCHASE op Own Stock.
    A corporation, when not forbidden by statute and when acting in good faith and without objection from its stockholders or prejudice to creditors, may purchase shares of its own stock, regardless of the purpose for which it is bought.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1530; Dec. Dig. § 376.]
    2. Appeal and Eeeoe (§ 525) — -Bill op Exceptions — INSTRUCTIONS.
    Under Rev. St. 1911, § 1973, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1973), giving parties the right to request special charges and have the giving or refusing of them reviewed, and providing that the trial court’s action thereon may be reviewed only when such instructions shall be presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the court’s charge is given to parties for examination, and in view of article 1971, relating to the general charge, and article 2061, relating to special charges, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061), requiring that all objections to the general charge or to specially requested charges shall be submitted to the trial judge before reading them to the jury, that he may correct them, and that, failing to do so, all objections to the general charge shall be waived, and the court’s action on the special charges shall be approved, a bill of exceptions to the refusal of a specially requested charge indorsed by the signature of the trial judge under the word “refused” could not be considered, because not affirmatively showing-that it had been presented to the court and to opposing counsel within a reasonable time after the general charge was given to counsel for examination.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2376-2378; 'Dec. Dig. § 525.]
    3. Appeal and Eeeoe (§ 499) — Instructions — Necessity op Objection.
    An assignment of error to part of the court’s general charge could not be considered, where the bill of exceptions did not show that appellant presented the objections relied upon to the trial judge before the charge complained of was read to the jury, since, under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. C'iv. St. 1914, art. 1971), all objections not so presented are waived.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    4. TRial (§ 340) — 'Verdict—Amendment.
    Under Rev. St. 1911, art. 1980, authorizing the court to direct a verdict to be reformed at the bar if it is informal or defective, the trial court, after receiving a verdict for the plaintiff and after polling the jury and being informed that they had found against defendant on his cross-action, properly amended the verdict by inserting the words “and against the defendant on its counterclaim.”
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 795-799; Dec. Dig. § 340.]
    5. Appeal and Eeeoe (§ 1060) — Misconduct op Counsel — Argument to Juey — Harmless Eeeoe.
    In an action for the unpaid balance on defendant’s own stock purchased from plaintiff, in which the defense was that the agreement, if any, to purchase the stock, was ultra vires and void, argument of plaintiff’s counsel that “ultra vires is a dead issue in Texas,” that it stinks to heaven, and is never resorted to except when a crooked corporation, such as the defendant, wanted to defeat honest debts, erroneous because ultra vires, in certain instances may be invoked as a just rule and misleading when asserted by counsel in the presence of jurors likely to be influenced thereby, was inflammatory, calculated to and probably arousing the prejudice of the jurors, and hence reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    6. Evidence (§ 352) — Records op Corporation.
    In such action the records of the corporation in respect to any written authority of its president to purchase the stock from plaintiff were admissible to show that the authority was or was not given, but not as a conclusive circumstance on that issue.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1398-1403; Dec. Dig. § 352.]
    7. Evidence (§ 508) — Opinion Evidence-Powers op Corporation,
    In such ease the opinion of counsel for defendant corporation, that it was without authority to purchase the stock, was inadmissible.
    [Ed. Note. — For other cases, see Evidence Cent. Dig. § 2311; Dec. Dig. § 508.]
    Appeal from Dallas County Court; W. F Whitehurst, Judge.
    Action by A. I. Folsom against the W. R. Case & Sons Cutlery Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.

      Seay & Seay, of Dallas, for appellant. Rob-: ertson & Sergeant and Meador & Davis, all of Dallas, for appellee.

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

   RASBURT, J.

Appellee sued appellant in the court below alleging that by the terms of several contracts he was employed by appellant, a foreign corporation, to sell its wares and merchandise, and that under said contract of employment appellant was due him $S4 in expenses incurred on behalf of appellant. He alleged further that while in the employ of appellant he sold and delivered to appellant by written contract 30 shares of the capital stock of appellant’s corporation at $50 per share, aggregating $1,500, on which there was due an unpaid balance of $868.-11. Upon these two items appellee secured verdict and judgment for $952.11, from which this appeal is prosecuted.

Appellant met the allegations of the petition: (1) By special exception, asserting that if it did agree to purchase said stock such agreement was void and unenforceable, because ultra vires; (2) by special answer alleging such agreement, if made on behalf of -the corporation, was made by J. Russell Case, appellant’s sales manager, who was without authority to make -same and was acting without the apparent scope of his authority when such agreement was made; (3) denying the purchase or delivery of said stock or the payment of any amount of money thereon; (4) plea of ultra vires; and (5) -cross-action for $336.21, alleged .to -have been paid to appellee in excess of any amount due -him under his contract of -employment.

We -shall not attempt to recite the facts which the evidence of the respective parties tend to establish, since the issues presented by the record do not require it; but we will, in considering the several assignments, relate thereunder such facts as are supported by the evidence and necessary to an intelligent consideration of the issues.

It is first urged that the eourt erred in overruling appellant’s special exception, which admitted, for the purpose of the exception, the sale and purchase of the stock, but asserting the same to be void because ultra vires. It is sufficient to say, in reference to the proposition of law raised by the exception that corporations may, when not forbidden by statute, if acting in good faith, in the absence of objections from its stockholders and without prejudice to creditors, purchase shares of its stock, regardless of the purpose for which it is bought. Howe Grain & Mercantile Co. v. Jones, 21 Tex. Civ. App. 198, 51 S. W. 24; San Antonio Hdw. Co. v. Sanger, 151 S. W. 1104. In view of the full discussion and the exhaustive citation of authorities in the cases cited, further discussion of the reasons for rule is unnecessary.

The second assignment of error complains of the refusal of the eourt below to peremptorily instruct verdict for appellant as to the item for balance due on purchase of stock, on the ground that appellee failed to introduce testimony showing that appellant was solvent or that the purchase of the stock by appellant would not prejudice the right of its general creditors. Consideration -of the issue raised by said assignment must be declined for the reason that the record fails to show a compliance with the statutory rule by which the action of the court in refusing the charge may be reviewed. Article 1973, R. S., 1911, governing the giving and refusing of special charges, was amended at the regular session of the thirty-third Legislature, and the method of bringing such proceedings into review before tlys court radically changed. Gen. Laws, .Reg. Sess., 33d Leg., pp. 113, 114. To the provisions of original articles, familiar to bench and bar, which confer upon litigants the right to request special charges and have the giving or refusing of the same reviewed, the Legislature has added by amendment the further provision that the action of the trial court in the respect stated may now be reviewed only when “such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.” The only indorsement upon the special charge, the refusal to give which is sought to be reviewed, other than the clerk’s file mark, is the signature of the trial judge under the word “refused.” The bill of exceptions preserving the point contains no more than the charge. As a consequence the record fails to disclose whether the said special charge was “prepared and presented to the court and submitted to opposing counsel for examination within a reasonable time after the (general) charge was given to the parties or their attorneys for examination.” The necessity and importance of showing such facts affirmatively by the bill is obvious from an inspection of article 1971, relating to the court’s general charge, and article 2061, relating to the giving or refusing of special charges, both amended at the same time that article 1973 was amended. By the two articles it is contemplated clearly that all attacks upon the charge to be given to the jury, whether by the general charge or by specially requested charge, shall be submitted to the trial judge in advance of reading same to the jury in order that he may add to or correct same, if erroneous. Failing to do so, “all objections not so made and presented shall be considered as waived,” as related to the general charge; and, as relates to tlie giving or refusing of special charges, the court’s action “shall be regarded as approved, unless excepted to” in the manner stated. The amendments provide no less than that, and a repetition of the fact in our own language could neither add to nor detract from their force. Otherwise, how may it be said from the record that the trial eourt was given opportunity to correct his charge or give the requested one ii it should have been given.

The third assignment of error complains of that portion of the court’s general charge which instructs the jury that “the burden of proof is upon the defendant to establish its defense by a preponderance of the testimony.” Without reference to the merits of the issue thus raised, we must decline also to consider said assignment, for the reason that the bill of exception bringing into review the action complained of fails to show that appellant presented the objections here made to the trial judge before the charge complained of was read to the jury, since all such "objections are waived when not presented as indicated. Article 1971, R. S., as amended Gen. Laws, Reg. Sess., 33d Leg., p. 113.

The fourth assignment of error complains of the action of the court in amending or correcting the verdict of the jury. By cross-action appellant sought to recover of appellee $301.32, the amount claimed to have been paid appellee in excess of the amount really due him. After considering the case, the jury returned into open court a verdict reciting, “We, the jury, find for the plaintiff in the sum sued for, $952.11.” Thereupon the court polled the jury and asked if they found against defendant on its cross-action, and the jury nodded their heads and said “they did.” Whereupon the court inserted in the verdict, “and against the defendant on its counterclaim.” We conclude the court was authorized to poll the jury and correct the defective verdict under article 1980, R. S. 1911, and the various decisions construing same. Malcolm v. Sims-Thompson Motor Car Co., 164 S. W. 924.

The fifth assignment of error, to which appellee makes no reply, relates to alleged misconduct of counsel for appellee by the use of inflammatory language in argument to the jury, not supported by the evidence, and of a nature calculated to arouse against appellant the prejudice and passion of the jury. As we have related at another place in this opinion, appellant in its answers by exception and by plea urged that, if it did agree to purchase its own stock from appellee, the agreement was void and unenforceable, because ultra vires. The exception raising the defense of ultra vires was overruled, and no further reliance placed thereon, or reference made thereto by appellant. After the other issues in the case had been developed, both by appellee and appellant, the same were presented to the jury on the facts for the jury’s solution. Counsel for appellee in their presentation of appellee’s case used the following language:

“Ultra vires is a dead issue in Texas. You never hear-of ultra vires until there is a case like the one in question. Ultra vires stinks to heaven when a crooked corporation tries to beat its honest debts. So dishonest and crooked is this corporation that they won’t hand Folsom his stock back. J. Russell Case parts his hair in the middle and runs their business. Ultra vires means X have got authority to defraud the public. When you plead ultra vires, the jury will say you are crooked. J. Russell Case went to Hot Springs and busted up this car, and Folsom refused to take it. The Pennsylvania statutes and laws say that a corporation can purchase its own stock. Why didn’t they take the testimony of J. Russell Case? He is the only man who knows anything about the transaction. They didn’t take the testimony of J. Russell Case, but took the testimony of every one else connected with the business.”

The charges contained in the quoted language relating to the “crookedness” of appellant was without support in the evidence, so far as the record discloses inflammatory, calculated to and probably did arouse the passion and prejudice of the jurors. To say that ultra- vires in Texas is a dead issue, stinks to heaven, and is never resorted to except when a crooked corporation, such as appellant was alleged to be, desires to defeat its honest debts, is both erroneous and misleading. Erroneous because ultra vires is a rule of law that corporations may invoke in certain instances, and in those instances it is a just rule. Misleading because when asserted to he a dishonest defense by a member of the legal profession to and in the presence of jurors, such assertion obviously carries force and influence with those not familiar with such matters. Much more could be said concerning the further statement by counsel that appellant would not even hand appellee back his stock, and, was in effect to be censured for not taking the'deposition of J. Russell Case, through whom appellee sold his stock to the corporation, but whose agency in that behalf appellant denied, but we believe that what we have already said is sufficient to show the evident harm that lurks in such remarks and the futility of attempting to measure the extent thereof. The following cases cited by appellant from among the many rendered on this troublesome question discuss the rule and the reasons upon which it is founded: Miller v. Burgess, 136 S. W. 1174; Metropolitan Street Ry. Co. v. Roberts, 142 S. W. 45; M., K. & T. Ry. Co. v. Cherry, 44 Tex. Civ. App. 232, 97 S. W. 715; G. H. & S. A. Ry. Co. v. Washington, 42 Tex. Civ. App. 380, 92 S. W. 1054. The assignment will be sustained.

In reference to the sixth assignment of error, which complains of the refusal of the court to permit appellant’s president to testify what the records of the corporation disclosed concerning any written authority of J. Russell Case to- purchase the'stock of appellee, we are of opinion that such testimony was admissible either to show that the authority was or was not given, but not as a conclusive circumstance on that issue. We do not think the opinion of counsel for appellant corporation that the corporation was without authority to purchase the stock was admissible, however.

For the reasons indicated, the judgment is reversed and the cause remanded for another trial not inconsistent with the views here expressed.


author: RICE, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WILLIAMS et al.
    (No. 5390.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. New Trial (§ 96) —Grounds' — Absent Witness — Diligence.
    Refusal 'of a continuance for absent wit; nesses, nonresidents of the county, not a statutory one, under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1918, held not an abuse of discretion, where the case was decided November 28th, and a new trial granted on December 5th, the court having several days before told counsel that he would grant it, and the motion for continuance made on December 6th, when the case was called for trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 172, 190-194; Dec. Dig. § 96.)
    2. Appeal and Eeeoe (§ 966) — Disceetion of Go uet — Refusal of Continuance.
    Where an application for a continuance is not a statutory one its refusal is not subject to review unless the discretion of the court is abused.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3S37; Dec. Dig. § 966.]
    3. Continuance (§ 14) — Disceetion—Abuse.
    The overruling of a motion for a continuance, made on the ground of the filing of an amended petition on the day of trial, is not an abuse of discretion, where the original petition is not in the record, and the explanation to the bill states that a new cause of action was not introduced, and counsel for plaintiff offered to introduce the report of their testimony at a former trial, which was objected to by defendant, and the judge did not consider any new matter, and the judgment rendered was for a few dollar's less than a judgment on a former trial.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. § 14.]
    4. Appeal and Eeeoe (§ 740) — Assignment of Eeeoe — Generality.
    An assignment of error that the verdict is excessive is too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3028; Dec. Dig. § 740.]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    Action by Joe E. Williams and others against the St. iLouis Southwestern Railway Company of Tex^s. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Marshall Ferguson, of Stephenville, for appellant. Eidson & Eidson, of Hamilton, for appellees.

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

   RICE, J.

This suit was brought by appel-lee Williams against appellant and the Ft. Worth & Rio Grande and the Gulf, Colorado & Santa Fé Railway Companies, to recover damages alleged to have been sustained to 60 head of beef steers, shipped by appellee Williams on the 25th of January, 1913, over the lines of said railway companies from Hamilton, Tex., to Oklahoma City, Okl., on account of negligent delay en route. Each of said companies filed answers, denying generally and specially the negligence attributed to them; and the case, being tried befóte the court without a jury, resulted in a judgment in favor of appellee Williams against appellant for the sum of $347.40 and interest, and in favor of the other defendants, from which this appeal is prosecuted.

The only errors assigned are: First, that the court erred in overruling appellant’s motion for continuance; and, second, that the judgment of the court is excessive. It appears from the evidence that the shipment left Hamilton on Saturday evening about 5 o’clock, reaching Ft. Worth about 6 the next morning, but was held there, without any apparent cause, until 12 o’clock Sunday night, reaching Oklahoma City Monday at midnight, being likewise delayed three hours at Gainesville and five hours at Purcell. The cattle were very much drawn and injured in marketable appearance, besides which they lost some 50 pounds per head in excess of the ordinary and natural depreciation in weight; and it appeared that the market on Monday was higher by 15 cents per hundred than it was on Tuesday, from all of which appellee suffered loss to the extent of the judgment.

Appellant contends that the court erred in overruling its motion for a continuance. The motion was not a statutory one, failing to show any diligence to obtain the testimony of the witnesses, for whose evidence the continuance was sought. See article 1918, vol. 2, Vernon’s Sayles’ Tex. Civ. Stat. 1914. Three of these witnesses were conductors on the lines of the defendants, and one was a station agent at Hamilton at the time the shipment was made, all of whom were nonresidents of the county at the time of the trial, and no effort was made to secure their depositions. The original petition was filed on the 19th of June, and the case was first tried on the 28th of November of the same year, and judgment rendered against defendants, which was set aside at their instance on the 5th of December; the court having told counsel for defendants, several days before granting same, that it would be granted. On December 5th, at the time the motion was ■ granted, counsel was informed that the case would be set down for the next day. No effort was thereafter made to secure the attendance of either or any of said witnesses. Since the application was not a statutory one, its refusal was within the sound discretion of the trial court, and, unless the same was abused, it is not the subject of review by us. See Carver Bros, v. Merrett, 155 S. W. 633; Wauhop v. Sauvage’s Heirs, 159 S. W. 185, and authorities there cited. We do not think any abuse of this discretion is shown. It is true that appellant recites in its motion that an amended petition, setting up a new and distinct cause of action, was filed on the day of trial, for which ■ reason it asserts that it was entitled to a continuance; but the original petition is not brought up in the record, and the trial court, in an explanation to the bill, shows that the cause of action alluded to was in fact embraced within the original petition. Besides, it appears that counsel for appellee offered to permit defendant’s counsel to introduce in evidence the stenographic report of the testimony of all of said witnesses, except one, taken on the former trial, but counsel did not take advantage of such offer; and subsequently counsel for appellee offered to introduce such report themselves, but, upon objection of appellant’s counsel, said testimony was excluded. Besides this, the court, in its explanation, stated that it did not consider any new matter, and the judgment rendered was in fact for a few dollars less than the judgment on the former trial. This being the state of the record, we do not think there was any error in overruling appellant’s motion for a continuance.

The remaining assignment, complaining that the verdict is excessive, is too general to be considered; but, waiving this point, the evidence, we think, is ample to sustain the judgment rendered.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.


text:
    SMITH v. McDANIEL.
    (No. 5406.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 4, 1914.)
    1. Appeal and Error (§ 12) — Abandonment oe Akpead — Writ oe Error — Juris-diotion.
    A party to a judgment, foreclosing a vendor’s lien on real estate, might abandon an attempted appeal and bring the judgment to the Court of Civil Appeals b'y writ of error; no motion to affirm on a certificate having been made in the meantime.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 39-46; Dec. Dig. § 12.]
    2. New Trial (§ 117) — Time—After Term.
    A losing litigant may obtain a rehearing after the term, when it is shown that the judgment was obtained by fraud, mistake, or accident, that the complaining litigant has a meritorious cause of action or defense, that he was not negligent in failing to present his case or in asking for a new trial during the term, that there is reason to believe that a different result will be attained, and that, unless the judgment be set aside, he will sustain substantial and irreparable injury.
    TEd. Note. — For other cases, see New Trial, Cent. Dig. §§ 238-241; Dec. Dig. § 117.]
    3. Pleading (§ 34) —General Demurrer — Construction.
    As against a general demurrer, a pleading is to be liberally construed, and all reasonable inferences are to be indulged in its favor.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.] .
    4. Vendor and Purchaser (§ 285) — Proceedings to Set Aside Foreclosure Sale-—Sufficiency of Motion.
    A motion to set aside a judgment foreclosing a vendor’s lien and the sale thereunder, alleging that the purchaser had never executed the notes sued on and did not owe the debt upon which the plaintiff sued, had been prevented by sickness from appearing at the trial, and making her defense, and that such disability continued until she was dispossessed under the order of sale issued upon the judgment, and that , she had no knowledge of the fact that judgment had been rendered against her until she was dispossessed, as against a general demurrer, stated a cause of action entitling her to have the judgment set aside.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. § 285.]
    5. Appeal and Error (§ 1074) — Matters Rbviewable — Ruling on Motion.
    Any error in the action of the trial court in refusing to enter a nunc pro tunc order for the entry of notice of appeal was immaterial and would not be reviewed, where the moving party obtained by writ of error all the relief that an appeal would have afforded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4248-4252; Dec. Dig. § 1074.] ’
    Error to District Court, McLennan County; Tom L. McCullough, Judge.
    Action to foreclose a vendor’s lien by R. McDaniel against Sallie Smith. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    J. E. Yeager, of Waco, for plaintiff in error. Witt & Saunders, of Waco, for defendant in error.

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

   KEY, C. J.

R. McDaniel, the defendant in error, sued Sallie Smith, the plaintiff in error, and on September 13, 1912, obtained a judgment foreclosing a vendor’s lien on certain real estate which was sold under an order of sale and bought in by McDaniel. On May 14, 1913, Sallie Smith filed a motion seeking to have the judgment and sale set aside. The trial court sustained a general demurrer to her motion, and she attempted to appeal. It seems, however, that the minutes of the court did not show that notice of appeal had been given, and therefore she instituted a proceeding, alleging that notice of appeal was in fact given, but had not been entered of record, and asking to have it entered nunc pro tunc. That motion was overruled, whereupon Sallie Smith, within the time allowed by law, sued out a writ of error from the original judgment;' and in prosecuting that writ she has assigned error upon the action of the trial court in sustaining the general demurrer to her pleading, seeking to have the judgment against her set aside and the sale thereunder annulled.

Counsel for defendant in error, on the day the case was submitted, filed several1 motions, all of which come too late, except the motion to dismiss for the want of jurisdiction.

On that point it is contended that the plaintiff in error should have prosecuted an appeal from the action of the trial court in refusing to correct its minutes, and that, until such appeal was prosecuted and disposed of, this court has no jurisdiction of a writ of error from the original judgment.. We overrule that contention, and hold that the plaintiff in error had the right to abandon her attempted appeal and bring the original Judgment to this court by writ of error; no motion to affirm on certificate having been made in the meantime.

It is well settled in this state that a losing litigant may obtain a rehearing after the térm, when it is shown by specific allegation and proof that the judgment was obtained by fraud, mistake, or accident; that the complaining litigant has a meritorious cause of action or defense; that he has not been guilty of negligence in failing to present his defense, or in failing to ask for a new trial during the term; that there is reason to believe that a different result will be attained ; and that, unless the judgment be set aside, he will snstain substantial and irreparable injury. Gross v. McClaran, 8 Tex. 341; Spencer v. Kinnard, 12 Tex. 180; Cook v. De la Garza, 13 Tex. 431; Goss v. McClaren, 17 Tex. 107, 67 Am. Dec. 646; Caperton v. Wanslow, 18 Tex. 125; Fisk v. Miller, 20 Tex. 572; Seguin v. Maverick, 24 Tex. 526, 76 Am. Dec. 117; Plummer v. Power, 29 Tex. 7; Taylor v. Fore, 42 Tex. 256; Overton v. Blum, 50 Tex. 417; Williams v. Nolan, 58 Tex. 708; Anderson v. Sutherland, 59 Tex. 409; McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357.

It is also well settled that, as against a general demurrer, a pleading is to be liberally construed, and all reasonable inferences are to be indulged in its favor.

Applying that rule of pleading, and the principles of law and equity announced in the authorities cited, and without copying or stating all the contents of the pleading in question, we hold that, as against a general-demurrer, it stated a cause of action which entitled the plaintiff in error to have the judgment against her set aside. It alleged that she never executed the notes sued on, and that she did not owe the debt upon which the plaintiff sued; that she had been prevented by sickness from appearing at the trial and making her defense; that such disability continued until she was dispossessed under the order of sale issued upon the judgment; and that she had no knowledge of the fact that judgment had been rendered against her until she was so dispossessed. The petition contained other material averments not necessary to be stated, and also contained some averments that were wholly unnecessary, but the latter could not be reached by a general demurrer.

The plaintiff in error is also complaining of the action of the- trial court in refusing to enter the nunc pro tunc order that was asked for, but we decline to review that ruling, because it is now wholly immaterial. If the court had entered the order referred to, it would merely have enabled plaintiff in error to prosecute her appeal; but, having brought the case up by writ of error, she can and has obtained all the relief that the appeal would have afforded.

For the error of the trial court in sustaining the general demurrer hereinbefore referred to, the judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded. ■


author: RASBURY, J.

text:
    HART v. HART et al.
    (No. 7177.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 24, 1914.
    Rehearing Denied Nov. 28, 1914.)
    1. Executoes and Administeatobs (§ 3) — Appointment of Administkatob — Necessity.
    While the probate court has exclusive jurisdiction to administer a decedent’s estate, letters of administration may be refused if there is no necessity for administering it there; as where there are no creditors of the estate, those interested in it are under no legal disability, the widow is in actual possession and use of the homestead, and partition of real estate, owned by deceased and his children by former wives, and allowances to the widow, may be adjusted in a suit for partition already filed by her, or by the parties in interest themselves.
    [Éd. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 1, 3-14%, 1782; Dec. Dig. § 3.]
    2. Executoes and Administeatobs (§ 3) — — Refusal of Appointment — Disceetion —Review.
    There is a discretion in the lower courts to refuse appointment of an administrator as unnecessary; and, such ground for refusal being fairly sustained by the evidence, and it appearing nothing was refused but what may be adjusted in a pending suit by intestate’s widow for partition, the ruling will not be disturbed.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1, 3-14%, 1782; Dec. Dig. § 3.]
    Appeal fropa District Court, Navarro County ; H. B. Daviss, Judge.
    Proceeding by Emma A. Hart against Ira E. Hart and others for appointment of petitioner as administratrix. From an adverse judgment of the district court; on appeal from a refusal of the petition, petitioner again appeals.
    Affirmed.
    McClellan & Prince, of Corsicana, for appellant. Richard Mays and J. S. Callicutt, all of Corsicana, for appellees.

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

   RASBURY, J.

This is an appeal from a decree of the trial court refusing -to appoint appellant permanent administratrix of the estate of her deceased husband, Dr. C. H. Hart. The application alleged that administration was necessary for the purpose of paying debts against .the estate. Appellees, children by former wives of decedent, contested the application of appellant on the grounds mainly that there were no debts against the estate, that .there existed at decedent’s death no community assets of appellant and decedent, his estate being separate property, consisting mainly of a lialf interest in lands and in tlie property occupied by deceased and appellant as a homestead, in which appellant was at most entitled to a life intei’est in one-third, and that all those interested in the estate were adults, and that the same could be partitioned by agreement, or in another court of competent jurisdiction, thereby saving unnecessary expenses of administering the estate in the probate court. Appellant met the contest of appellees by asserting- that valid debts did exist against the estate, since she was entitled to an allowance out of the estate sufficient for her maintenance for one year, and an allowance in lieu of articles exempted to her by law, but not left by deceased; also that administration was necessary for the purpose of setting aside to her a homestead, and in that respect she alleged that she was, and had been since decedent’s death, in possession of the homestead of her deceased husband, occupying same with her two unmarried daughters and minor son, children by a former husband. No other issue was raised by either side which was supported by the testimony.

The trial judge filed no conclusions of fact, but in support of the judgment the record ■will sustain the following facts: Dr. O. H. Ilart, deceased, was married three times, appellant, whom’ he married in 1903, being the third and surviving wife. Appellees are children by former wives; Mrs. Rich being'a daughter by the first wife, and Mrs. Garrett and Ira E. Hart being, respectively, daughter and son by the sécond wife. There was no issue of the marriage of appellant and deceased. Dr. Hart died September 26, 1910, at Corpus Christi, where he had gone in search of health. After his death appellant and appellees by mutual agreement used what money Dr. Hart had in cash to pay the expenses of his last illness, his funeral expenses, and the expense of appellant in returning to Corsicana, where Dr. Hart and appellant resided, save $100, which was retained by appellant for her personal necessities. The debts above enumerated and so paid were all the debts owing by Dr. Hart at the time of his death, and all had been paid when the application for letters was filed by appellant. At the time -Dr. Hart died his son-in-law, N. E. Garrett, owed him $500, balance on the amount for which Dr. Hart had sold Garrett his interest in a grocery business, formerly conducted by Garrett and Ira Hart. Garrett and Hart also owed Dr. Hart $250, rentals for Dr.’ Hart’s interest in certain lands owned on the one hand by Mrs. Garrett and Ira Hart and the other by Dr. Hart, and which had been acquired by Dr. Hart and his former wife, the mother of Mrs. Garrett and Ira 1-Iart. Dr. Hart had an undivided half interest in approximately 200-acres of land in Navarro county, the other one-half belonging to his children by his former wives. He also had a similar interest in the homestead ill Corsicana, consisting of about 10 acres of land and a residence thereon. Appellant occupied .this home after Dr. Hart’s death, and was so occupying same at the date of the trial of the instant case, including furniture therein. No real property was acquired by appellant and Dr. Hart after their marriage. There were some unimportant items of personalty, other than the furniture of the home, owned by Dr. Hart at his death, which -ye deem it unnecessary to enumerate. After the probate court refused to appoint appellant permanent administratrix of the estate of her deceased husband, and pending appeal therefrom to the district court, she filed in said district court an independent suit in trespass to .try title and for partition against appel-lees for her husband’s interest in certain lands alleged to belong in common to’ Dr. Hart and appellees, asserting a one-third interest in an undivided half thereof for life, as well as one-third of any rents denied her and appropriated by appellees subsequent to her husband’s death. The allowance for one year’s maintenance and that in lieu of certain exempt articles, to which the records show appellant was entitled, was not made by the county judge, nor did he set aside to appellant the homestead.

There is but one issue disclosed by the record, the action of the district judge in refusing to appoint appellant permanent administratrix of the estate of her deceased husband on .the ground that a necessity therefor did not exist, although other issues arise incidental to the controlling one. For that reason we shall not attempt a discussion seriatim of the various assignments of error, but discuss the issues as such. It cannot and will not be denied at this period in our jurisprudence that the probate court has exclusive jurisdiction to administer the estates of deceased persons, and that when such court has. properly acquired jurisdiction and the consequent .legal possession of the estate of a deceased person for such purpose, it has, among other matters, exclusive authority to establish and allow claims against the estate, make allowances for the maintenance of the surviving widow and children of the deceased, also allowance in lieu of exemptions, set aside the homestead to those entitled thereto, and to partition and distribute the residue thereof. McCorkle v. McCorkle, 25 Tex. Civ. App. 149, 60 S. W. 434; Wilkinson v. McCart et al., 53 Tex. Civ. App. 507, 116 S. W. 400; Buchner et al. v. Wait et al., 137 S. W. 383.

It is equally clear and nearly as well settled that letters of administration may be refused if it appears no necessity exists for administering the estate in that court. This rule has been asserted mainly In cases originally filed in the district court seeking. a division of property and an adjustment of equities growing out of joint or common ownership thereof. Solomon v. Skinner et al., 82 Tex. 845, 18 S. W. 698; Moore v. Moore, 89 Tex. 29, 33 S. W. 217; Goldstein v. Susholtz, 46 Tex. Civ. App. 582, 105 S. W. 219. Generally the district court, on objection to its jurisdiction in such cases, has retained it on the ground that the property of the estate is insufficient to justify the expense of administration, or that, there being no creditors of the estate and those entitled to same being under no legal disability, no necessity for administration exists. Angier v. Jones, 28 Tex. Civ. App. 402, 67 S. W. 449. The rule is recognized in Buchner v. Wait, supra, with the qualification that where a decedent has, by will, selected the probate court to administer his estate, no other reason for invoking the court’s control is necessary. The rule then being as we have indicated, does the testimony support the decree of the court? We conclude it does. It is not seriously disputed by appellant that she agreed with appellees that the latter should use what money Dr. Hart possessed when he died in paying the debts he owed, which were mainly those incurred as the result of his last illness and death, and that it required all he had for that purpose. Thus there were no creditors’ claims to be established and allowed by an administratrix.

It then remains to determine whether the court should have made the appointment in order to set aside a homestead for appellant, make an allowance for maintenance and one in lieu of exempt articles, and partition the estate. Certainly we believe it cannot be intelligently urged that administration was necessary in order to set aside the homestead. The evidence is undisputed that ai> pellant was in actual possession and use of the homestead occupied by her and her husband prior to his death, including the furniture therein, the land consisting of 10 acres, which she has used and cultivated since the death of her husband, as a consequence she was in complete enjoyment and possession of as much as the order of the probate court could have conferred upon her, or the Constitution secures to her, and which she may continue to enjoy until appellees demand a partition of the estate, or agree upon same, as they may lawfully do. Of course ultimately, if the title to the land is as indicated by the record before us, her homestead will have to be confined to the .separate property of her deceased husband. Crocker v. Crocker, 19 Tex. Civ. App. 296, 46 S. W. 870. Thus administration was clearly unnecessary for the purpose of setting aside the homestead. It is equally clear that administration was unnecessary for purposes of partition, since she had no such interest in the lands of the estate as could not be adjusted at less expense in the suit she voluntarily instituted in the district Court before presenting her application in the case at bar. So far as the question of allowances is concerned, it áppears that at the time Dr. Hart died his son and son-in-law owed him about 8750, appellant’s interest being one-half. If the interest of Dr. Hart in the land is as appears in this proceeding, she will be at this time entitled to an additional sum of about $250, or at least an amount readily ascertainable. These matters, as indicated, may be adjusted either in the partition suit already filed by appellant, or by the parties in interest themselves, and are wholly insufficient, it occurs to us, to sustain a proceeding for letters of administration. A discretion is clearly vested in the county and district courts in such matters, and if their refusal to appoint an administratrix is fairly sustained by the evidence, and it appears that nothing was refused but that which may be adjusted in a suit for partition in the district court, which was pending at the time of such refusal, such ruling will not be disturbed.

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


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. TEMPLE NORTHWESTERN RY. CO. et al.
    (No. 5413.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 4, 1914.)
    1. Easements (§ 1) — Eminent Domain (§ 317) — Right oe Way — Fee—Condemnation — Estate Acquired.
    Where a right of way is taken by condemnation proceedings under Texas statutes or is conveyed by deed, the fee remains in the owner of the land.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7; Dec. Dig. § 1 ; Eminent Domain, Cent. Dig. §§ 834-840; Dec. Dig. I 3173
    2. Eminent Domain (§ 317) — Rights Acquired-Right of Way — “Easement.”
    In condemnation proceedings an award of a right of way left the fee in the owner, and the right of way was an “easement” in the sense of “a right which one proprietor has to some profit, benefit, or lawful use out of or over the estate of another proprietor.”
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 334-840; Dec. Dig. § 317.

    For other definitions, see Words and Phrases, First and Second Series, Easement.]
    3. Courts (§ 163) — Jurisdiction of County Court — Reversion of Easement.
    In such proceeding, where the county court further provided that upon nonuser of the land for a right of way within two years it should revert to the owner of the fee, jurisdiction to determine the issue of reversion was in the district court, and not in the county court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410-411, 443, 479, 1294; Dec. Dig. § 163.]
    4. Eminent Domain (§ 325*) — Reversion — “Condition Subsequent.’

    In such proceeding, the right of forfeiture for nonuser was a “condition subsequent,” one that when it does or does not happen, is or is not performed, as the case may be, defeats the estate.
    [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 854-856, 850; Dec. Dig. § 325.

    Eor other definitions, see Words and Phrases, First and Second Series, Condition Subsequent.]
    5. Eminent Domain (§ 325) — Reopening Judgment.
    A judgment of the county court awarding a right of way, or easement, to revert to the owner, of the fee if not used within two years, could not be reopened by motion to declare the reversion on the ground of nonuser, since such motion was in the nature of an independent action to determine title to the easement dependent upon a future contingency, and not involved in the original suit, and which could not properly be made the predicate of such motion.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 854-856, 859; Dec. Dig. § 325.]
    6. Judgment (§ 386) — Reopening Judgment — Feaud ob Mistake.
    The county court’s judgment in a condemnation proceeding, awarding a right of way to revert to the owner of the fee upon nonuser within two years became a final judgment upon the adjournment of that term of court, and hence could not be reopened after two years by a motion for forfeiture alleging neither accident, fraud, nor mistake as a basis therefor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 735-744; Dec. Dig. § 386.]
    Appeal from Coryell County Court; G. E. Johnson, Judge.
    Condemnation proceeding by the Temple Northwestern Railway Company against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant’s motion in the original proceeding for judgment of forfeiture' or reversion denied for want of jurisdiction, and defendant appeals.
    Affirmed.
    Scott & Ross, of Waco, for appellant. T. R. Mears, of Gatesville, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & R'ep’r Indexes

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

   RICE, J.

In 1910, the Temple Northwestern Railway Company filed proceedings in the county court of Coryell county against the St. Louis Southwestern Railway Company of Texas, seeking to condemn 8Vi o acres of land out of the E. Norton survey, for right of way and other purposes. On the 16th of September, 1911, it recovered judgment in said court against appellant, condemning said land for such purposes, and awarding appellant damages therefor in the sum of $489.50, providing, however, that if said Temple Northwestern Railway Company, its successors and assigns, should fail, within 24 months from said date, to use said land for such purposes, the same should revert to appellant upon its repayment of said sum with 6 per cent, interest from date of said judgment. Thereafter 'the Temple Northwestern Railway Company became insolvent, and the Temple, Northwestern & Gulf Railway Company by purchase became its successor, and was legally entitled to all its franchises, rights, and property. On December 13, 1913, appellant paid to the trustees mentioned in said judgment the $489.50, together with 6 per cent, interest thereon from September 16, 1911, and filed its motion in said original condemnation proceedings in the county court of Coryell county, asking that said cause be reopened, alleging that the Temple Northwestern Railway Company had dissolved, and was no longer undertaking to carry out the purposes for which it was organized, and that neither it nor its successor, the Temple, Northwestern & Gulf Railway Company, had used said land for any or either of the purposes mentioned in said judgment within 24 months from date thereof, whereby it asserted that they had forfeited any right, title, or interest awarded to-them under said judgment The trustees answered, alleging that said payment was made voluntarily by appellant to them without any demand on their part therefor, and the Temple, Northwestern & Gulf Railway Company, filed its plea to the jurisdiction of the court, first on the ground that the county court had no right to pass upon such alleged forfeiture, for the reason that it involved title to real estate, and was further without jurisdiction to reopen said judgment after the expiration of two years from its rendition without allegations of fraud, accident, or mistake, and also answered, denying its failure to use said land within two years. The trial court sustained the plea to the jurisdiction for both reasons, from which judgment this appeal is taken.

It is true, as urged by appellant, that where a right of way is taken by condemnation proceedings under our statute, or such right of way only is conveyed by deed, the fee in either case remains in the owner of the land. See Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295; Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453; Texas Cent. Ry. Co. v. Bowman, 97 Tex. 417, 79 S. W. 295.

Still, there is no warrant in either of these cases for holding that where the right or title to such an easement is in controversy, the county court would have jurisdiction to determine such question; but, on the contrary, it has been decided in this state that jurisdiction to determine such issue was in the district court. See Hensley v. Boyd, 48 Tex. Civ. App. 494, 107 S. W. 128; chapter 5, § 8, Axtell’s Ann. Const, of Texas, and authorities there cited. See, also, Scott v. Missouri, O. & G. Ry. Co., 151 S. W. 578. An easement is defined as:

“A right which one proprietor has to some profit, benefit, or lawful use out of or over the estate of another proprietor.” Washburn on Easements, 4.

By the judgment of the county court appel-lee was awarded an easement in and to the land for the purposes therein specified. It is true that said judgment likewise provided that upon a failure to use the land for the purposes named within 24 months it should revert to appellant. Tins right of forfeiture was dependent upon a condition subsequent, to wit, the failure to use within the time mentioned. See 6 Am. & Eng. Ency. Daw (2d Ed.) p. 500, subd. 5, wherein it is said:

“A condition subsequent is one that when it does or does not happen, is or is not performed, as the ease may be, defeats the estate.”

The easement which appellees acquired in said land was an interest therein, and could only be defeated by showing their failure to use the land for the purposes named within the time mentioned, and the determination of this question is, we think, peculiarly within the jurisdiction of the district court.

Again, there are two other reasons why the judgment of the county court could not be reopened: First, the motion' was in the nature of an independent action to determine the title to this easement, dependent upon a future contingency, and not involved in said original suit, and hence could not properly be made the predicate of such motion. Second, the judgment of the county court awarding the land to appellees became a final judgment upon the adjournment of that term of court, which occurred more than two years prior to the filing of this motion, and neither accident, fraud, nor mistake was alleged as a basis therefor. We think the court did not err, therefore, in sustaining the plea to the jurisdiction, for which reason its judgment is affirmed.

Affirmed.


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    RAMSEY v. BIRD.
    (No. 7208.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 14, 1914.)
    1. Continuance (§ 51) — Grounds—Intoxication of Defendant.
    Where a ease had been continued several times because of the intoxication of defendant, it was not an abuse of the court’s discretion to refuse a further continuance on the same ground, especially where defendant became sober long enough to testify in his own behalf in chief, but was too intoxicated to testify in surrebuttal.
    [Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 69, 79, 85, 87, 88, 118, 128, 130, 132, 135, 141, 147; Dec. Dig. § 51.]
    2. Appeal and Error (§ 1170) — Presenting Questions in Lower Court — Bequest for Submission of Special Issue.
    In an action for an accounting between partners who were wrecking a house, where one partner claimed damages for breach by the other of an agreement to sell a portion of the house to the former partner, who had contracted to sell it to a third person, and remove it to such person’s land, tiie failure of the court in submitting special issues as to the damages for such breach to submit the question of the cost of removing it, upon which there was substantially no conflicting evidence, was not reversible error, in the absence of a request for such submission, under Rev. St 1911, art. 1985, providing that the failure to submit an issue shall not be deemed a ground for reversal, unless its submission was requested, and that an issue not submitted and not requested shall be deemed to have been found by the court, provided there be evidence to sustain such finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    3. Evidence (§ 419) — Parol Evidence — Consideration for Contract.
    In an action for a partnership accounting, where the written partnership agreement stated the consideration to be furnished by the defendant, but not that to be furnished by the plaintiff,_ parol evidence was admissible, on behalf of plaintiff, to show the consideration furnished by him, even though that question was not raised by the defendant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dee. Dig. § 419.]
    4. Damages (§ 182) — Mitigation—Breach of Contract.
    Where plaintiff sought to recover damages for a breach of an agreement to sell him a certain portion of a house which he and defendant were wrecking, and which plaintiff had agreed to sell to another and remove onto the land of the other at a certain time, evidence that the receiver of the property, who was appointed after the action commenced and more than six months after the expiration of the time fixed for the removal, offered to sell the property to plaintiff at the agreed price was inadmissible to mitigate the damages, in the absence of testimony that the plaintiff could purchase at that time, and that his buyer was still willing to accept the property at the agreed price.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 473, 500; Dec. Dig. § 182.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by G. W. Bird against W. S. Ramsey. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    M. M. Plowman, of Dallas, for appellant, Harmon & Harmon and Bird & Bird, all of Dallas, for appellee.

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

   RASBURY, J.

This is an appeal from a judgment of the court below entered upon the findings of the jury upon special issues. The suit was filed by appellee against appellant for an accounting of partnership affairs and for damages. Any statement of the evidence necessary will be made under each assignment.

The first assignment of error complains of the action of the lower court in overruling appellant’s application to continue the case. The ground upon which the continuance was sought was that appellant, who was a periodical drinker of intoxicants, was ill and in an inebriated condition and unfit mentally to testify when the case was called for trial. The bill of exception bringing into review the overruling of the-motion is qualified by the statement that the case had been repeatedly passed and continued on the ground that appellant was drunk, and that the court believed it doubtful if appellant would be found sober on any assignment of the case. The trial judge also qualified the bill by the further statement that appellant, during trial, was sober and testified in his own behalf, but before its completion “fell again,” and was unable to testify on surrebuttal. The proposition urged by appellant under tbe said assignment is tbat, under tbe facts recited, the court abused the discretion vested in him to deny or grant tbe application. In our opinion tbe proposition is unsound. Tbe application was not a statutory one, and called for tbe exercise of tbe trial judge’s sound discretion in the matter. Tbe case bad been repeatedly continued for tbe identical reasons stated in tbe application in tbe expectation tbat appellant would at tbe next recurring trial be in a state of sobriety. He was not, notwithstanding tbe tolerant and considerate indulgence in the past by tbe trial judge. Tbe repeated continuances of tbe case, in our opinion, evidence an unusually fair observance of tbe discretion vested. Certainly no facts are disclosed tbat could support a conclusion by this court tbat there was an abuse of discretion. A further and decisive reason that prevents interference on our part is that appellant did in fact attend tbe trial and did testify for himself. And while it is also true tbat during trial appellant again succumbed to bis unfortunate habit, it is obvious tbat a final settlement of litigation would in some cases never be bad if tbe latter fact was cause for reversal.

Tbe second and ninth assignments raise a question of practice. The facts necessary to tbe disposition of tbe question, as found by tbe jury and in turn supported by tbe evidence, are these: Tbe partnership in which appellant and appellee were associated bad for its particular purpose tbe moving and sale of an old bouse, which tbe partners had purchased under an agreement unnecessary to detail here. Certain portions of tbe structure were desired by each partner, and it was finally agreed tbat appellee should pay tbe firm $300 for the portion desired by him. Appellee in turn sold tbe portion so purchased by him to one Kreck for $900 delivered upon Kreck’s land. At tbe time agreed upon for the payment of tbe $300, appellant declined, as a member of tbe firm, to accept the amount, and prevented appellee removing tbe portion of tbe bouse bought by appellee upon Kreck’s land as be bad agreed to do. Tbe damages sought by appellee were those caused by appellant’s action just detailed, which were alleged to be tbe difference between tbe price agreed to be paid for tbe portion of the bouse bought by appellee and tbe price at which appellee sold to Kreck, less the cost of removing tbe same upon Kreck’s land. Tbe only testimony upon what it would have cost appellee to remove tbe portion of the bouse bought by him upon Kreck’s land was that of two witnesses, one testifying that it would cost $150, and another tbat it would cost $150, maybe $200. In submitting tbe case to tbe jury upon tbe issue of damages, the trial judge required tbe jury to find specifically all tbe facts just related, but did not interrogate them as to what it would have cost appellee to have removed tbe bouse to Kreck’s land, bad be not been prevented from doing so by appellant, but determined that issue himself in entering judgment upon tbe special verdict. Tbe proposition urged by appellant is tbat tbe trial judge, in submitting to the jury tbe question of damages claimed by appellee, should also have required tbe jury to say what would have been the cost of removing the portion of tbe bouse bought by appellee upon Kreck’s land, and, the jury not having passed upon that issue, tbe court was without authority to determine it. Tbe contention cannot be sustained. Since 1897 tbe rule with reference to special verdicts has been, as relates to tbe issue under discussion, that “tbe failure to submit any issue shall not be deemed a ground for reversal of tbe judgment upon appeal or writ of error, unless its submission has been requested in writing by tbe party complaining of tbe judgment,” and tbat, “upon appeal or writ of error, an issue not submitted and not requested by a party to tbe case 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. Acts 1897, p. 15, c. 7; article 1985, R. S. 1911. Thus it is seen tbat tbe only inquiry properly to be made by this court is whether tbe finding by tbe court below is sustained by tbe evidence. On tbat point there can be no dispute, since, as we have said, but two witnesses testified, one tbat tbe expense necessary to remove tbe portion of the bouse described was $150, tbe other “$150, or maybe $200.” It is not necessary for us to demonstrate by mathematical process that tbe amount of tbe judgment for damages entered upon tbe special verdict is correct, since no issue is made upon tbe amount of tbe verdict, but upon tbe action of tbe court in determining tbe issue of ■ fact we have detailed. This tbe court clearly has tbe right to do under the statute, when tbe parties to tbe suit have failed to request tbe submission of such issue, even though tbe evidence on tbe point not submitted is conflicting Tbe testimony in the instant case was without practical or real conflict.

Tbe third assignment of error complains of tbe action of tbe court in referring to tbe jury tbe ascertainment of tbe true consideration of the contract between appellee and appellant; the proposition being that such evidence was an attempt to vary or contradict tbe legal effect of a written instrument by parol evidence. Tbe contract signed by appellant and appellee, which was offered in evidence and is contained in tbe record recited tbe purpose to be tbe purchase, wrecking, and sale of a building, appellant furnishing tbe purchase price, whiék was to be refunded him from tbe proceeds of tbe sale of the building, any balance to be divided equally between tbe parties, after deducting all expense incident to dismantling tbe building, etc., together with other provisions not material to the point under discussion. The contract was silent concerning the consideration contributed by appellee, which would entitle him to share in the profit derived from the sale of the building, and it was alleged by ap-pellee and found by the jury and supported by the evidence that the original contract was verbal, hut reduced subsequently to writing, and that the consideration moving to appellant and inducing him to contribute all the necessary funds to the enterprise and divide the profits equally with appellee was the skill, knowledge, and experience of the latter in dismantling or wrecking such building in a profitable manner. And it occurs to us that in order to anticipate any claim of a total want of consideration, and for the purpose of showing the true consideration, it was proper for him to allege and prove same. For as well settled as the rule that the legal effect of a written instrument may not be varied or contradicted by parol testimony is the further rule that holds that parol evidence is admissible to show the true consideration of a written agreement, conveyance, etc., even in cases where the true consideration is variant to that recited in the instrument in writing. The citation of authority in support of either rule is unnecessary. Such is what was done in the instant case, and it occurs to us that it is immaterial how the question was raised, whether by appellee, as he voluntarily appears to have dóne, or by appellant, by a denial of partnership and the contention that appellee was by the contract but an employé.

The tenth assignment of error complains of the refusal of the court to permit appellant to prove by Franklin, who was appointed receiver of the partnership property pending the litigation, that, after getting possession of the property, he offered to sell appellee the portion he was to have for $300, and that appellee repeatedly refused to purchase same. The proposition asserted under said assignment is in effect that, when appellant breached his contract, it was appellee’s duty, in order to lessen the damages caused by such breach, to purchase the property from any other source available. Much necessarily has been written concerning the rule of law for the recovery of damages, but the general purpose and policy of the law finally is to afford the injured person compensation for the injury suffered. Incidental to the right to recover such compensation it becomes, in many cases, the duty of the injured party to lessen the damages by taking such steps in that respect as would be observed by an ordinarily prudent person similarly situated. Do the facts recited in the bill of exception bring appellee’s suit within the variation of the general rule of compensation? We think not. Appellant unlawfully prevented appellee from removing the portion of the building bought by the latter from the partnership, and it is in effect undisputed that his damage resulting therefrom was the amount recovered. The mere offer by the receiver to sell appellee the property is not enough to invoke the rule. Appellee’s contract with Kreck, according to the testimony, was to be concluded the latter part of December, 1911. The receiver went into possession of the property June 25, 1912, more than six months after appellee had agreed to deliver the property to Kreck. This testimony was clearly insufficient to raise the issue that appellee had failed to exercise ordinary care to lessen the damage. Aside from the question of the lapse of so much time, it devolved upon appellant to show, not only that appellee could have purchased the house at the same price, but to show also that Kreck was yet willing to pay the price originally agreed upon, and that appellee was able to purchase at such time.

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