author: PLEASANTS, C. J.

text:
    BENNETTE v. LEWIS et al.
    (No. 6986.)
    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1915.
    Rehearing Denied May 20, 1915.)
    1. Bankruptcy <S=295 — Action against Trustee — Jurisdiction—Bankruptcy Act.
    Under Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 552 [U. S. Comp. St. 1913, § 9607]) § 23, providing that the United States Circuit Courts i hall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants, concerning property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and the controversy had been between the bankrupt and the adverse claimant, where plaintiff had constructive possession of land from which defendant trustee in bankruptcy was attempting to cut timber, the district court of the county, and not the United States court, had exclusive jurisdiction to determine the rights of the parties to the timber under a contract between the bankrupt and plaintiff, since the only exception to the rule of the act is where the trustee holds actual possession of the bankrupt’s property, in which.case suits concerning it may be determined by the United States court having jurisdiction of the proceedings in bankruptcy.
    [Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 414, 417; Dec. Dig. <®=295.]
    2. Bankruptcy <§=293 — Action against Trustee — Jurisdiction — Possession of Land — Pleading.
    In a suit against a trustee in bankruptcy to restrain, such trustee from cutting timber from land formerly of the bankrupt, where plaintiff alleged that he was the owner of the timber and of the land, having purchased from the bankrupt and received a deed of general warranty, and that defendant trustee was claiming the right to cut and remove such timber under a contract unenforceable because without consideration, the petition could not be construed to allege that the timber was in the possession of the bankrupt or the trustee, so as to give the bankruptcy court jurisdiction to determine the respective claims thereto.
    [Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. <@=293.]
    Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
    Action by J. O. H. Bennette against J. W. Lewis, as trustee in bankruptcy of the firm of Banks Griffith & Son, and others. From a judgment dissolving a temporary injunction, plaintiff appeals.
    Reversed and remanded.
    J. Llewellyn and Howard Bennette, both of Conroe, for appellant. W. N. Foster, of Conroe, for appellees.
   PLEASANTS, C. J.

This appeal is from a judgment of the district court of Montgomery county dissolving a temporary injunction theretofore issued by order of the judge of said court in a suit brought by appellant against the appellees, J. W. Lewis, Banks Griffith & Son, Jesse Pitts, and O. N. Puckett, and dismissing plaintiff’s suit. Plaintiff’s petition alleges, in substance, that the defendants Banks Griffith & Son, a firm composed of Banks Griffith and M. E. Griffith, were on the - day of August, 1914, adjudged bankrupt by tbe United States District Court for the Southern District of Texas, and defendant John W. Lewis was the duly and legally elected and qualified trustee for said bankrupt estate; that plaintiff is now, and has been continuously since the 1st day of May, 1913, the sole owner and entitled to the possession of a tract of 1,100 acres of land on the Win. S. Allen .league in Montgomery county and all of the timber then and now standing and growing thereon, said tract being fully described in a deed from Banks Griffith & Son to plaintiff, which deed, as it appears of record in the deed records of Montgomery county, is referred to for an accurate description of said land; that before plaintiff purchased the land from Banks Griffith & Son, M. R. Talley had acquired from said Griffith & Son the right to cut and remove the merchantable pine timber growing thereon, for a period of five years, expiring on May 1, 1913, and that plaintiff purchased said land subject to tbe right of Talley to cut and remove said timber for said period of five years; that by the terms of contract between Griffith & Son and said Talley ail of the timber not removed within said five-year period reverted to said Griffith & Son and their assigns, and plaintiff by his purchase of the land became the owner of the timber on May 1, 1913; that prior to said date, and after the sale of land to plaintiff, Griffith & Son purchased from Talley his right to cut and remove the pine timber from said land, and about the 1st day of May, 1918—

“applied, to this plaintiff for a contract granting them additional time within which to cut and remove the balance of said timber; that thereafter, and on, to wit, --- day of October, 1913, the following purported contract in words and figures was executed by said parties:
“ ‘The State of Texas, County of Montgomery. Know all men.by these presents: That this agreement made and entered into by and between Banks Grifiith & Son, a firm composed of Banks Griffith and Morrison Griffith, parties ‘ of the first -part, and J. O. H. Bennette, party of the second part, witnesseth: That whereas the parties of the first part were the owners of the pine timber ten inches in diameter and over, standing and growing on the hereinafter described land, with a time limit for the removal thereof, which said time limit has expired and thereby vested title thereto in the party of the second part, but it being the desire of the parties hereto to extend the time limit for the removal of said timber on that portion of the land hereinafter mentioned for two years from May 1st, 1913: Therefore, in consideration of the premises, and the sum of one dollar to him in hand paid by the party of the first part the party of the second part hereby gives and grants to said first parties the right to enter upon and .remove all pine timber-inches and over, for a period of two years from May 1, 1913, off of and from that portion of the tract of eleven hundred acres of land out-of the Wm. S. Allen league in Montgomery county, Texas, lying west of the Willis and Conroe public road, said eleven hundred acres being the same purchased by second party from first parties, the portion thereof affected hereby being that lying west of said public road. Title to all said timber not removed within said period shall revert to and vest in second party. Bight of ingress and egress over and upon said land, with privilege of placing thereon and right of removal therefrom all improvements necessary to cut, handle and remove said timber are hereby given.
“ ‘Witness our hands this the - day of October, 1913.
“ ‘[Signed] Banks Griffith.
“ ‘Morrison Griffith.
“ ‘J. O. H. Bennette.’
“That the value of said timber standing and growing on said tract of land on or about said 1st day of May, 1913, and said - day of October, 1913, of the dimensions above mentioned not cut and removed, was about $5,000 and the two years mentioned in said contract above set out was ample time within which to cut and remove the same.
“That the $1 mentioned in said contract above set out as paid by Banks Griffith & Son to the said J. O. II. Bennette was in fact never paid; that there was no consideration whatever of any kind, present or future, contingent or otherwise, moving from the said Banks Griffith & Son to the said plaintiff for the rights and privileges by him, the said Bennette, attempted to be parted with under said contract aforesaid; that the same was wholly without benefit or consideration to him, the said Bennette, was and is unilateral and without mutuality, and for each and all of said reasons it is therefore void, and the said Banks Griffith & Son and the said trustee in bankruptcy took no rights or have any rights thereunder.
“That the defendant J. W. Lewis, trustee in bankruptcy, as aforesaid, is asserting some claim and right in and to said timber aforesaid under said purported contract above set out, and is now attempting to cut and remove said timber to plaintiff’s damage. The said Jesse Pitts and O. N. Puckett, as agents for and acting under the direction of the said trustee, are attempting to cut and remove said timber above described.
“Wherefore, premises considered, plaintiff prays that the defendants be cited in terms of law to appear and answer this suit, and that upon a final hearing hereof said purported contract above set out be declared void, be set aside and held for naught, and that the plaintiff have judgment for the title of said timber above described; that he be quieted in his title thereto and writ of possession issued according to law; and he further prays that your honor issue writ of injunction enjoining and restraining the defendants, their agents or representatives, from cutting and removing said timber from the said tract of land herein described, and for all costs of suit and for such other and further relief, both general and special, that he may be able to show himself entitled to under the laws and facts of this case as in duty bound he will ever pray.”

A temporary injunction was granted by the district judge in chambers, on November 28, 1914, in accordance with the prayer of the petition. On January 27, 1915, the defendant filed an answer, containing a general demurrer and the following special exceptions:

“Second. This defendant specially excepts to said amended petition, and says this court ought not to take cognizance of the matters and things alleged in said petition, because it appears from said petition that this defendant J. W. Lewis, trustee, claims title to and possession of the timber described in said petition and the right to cut and remove the same as an officer of the United States District Court for the Southern District of Texas, by virtue of his election and appointment as trustee of the estate of Banks Griffith & Son, bankrupts; it further appearing that the estate of said bankrupts is in course of administration by said United States District Court, and of this defendant prays judgment.
“Third. This defendant excepts further ■ to plaintiff’s said petition, and says this court ought not take cognizance of the matters and things therein alleged, because said petition shows on its. face that this defendant is in custody of the timber described in said petition in his capacity of trustee and agent of Banks Griffith & Son, bankrupts, acting under orders of the United States District Court for the Southern District of Texas, and because any action of this court dealing with the subject-matter would be an interference with the jurisdiction of said United States District Court for the Southern District of Texas.
“Fourth. This defendant further specially excepts to said petition, and says this court ought not to take cognizance thereof because it appears from the face of said petition that the bankrupts, Banks Griffith & Son, and Banks Griffith and Morrison 10. Griffith, prior to, and at the time of, their adjudication of bankruptcy had, prima facie at least, title to the timber described in said petition, together with the right to cut and remove the same, and that such title and rights prima facie vested in this defendant as trustee upon such adjudication of bankruptcy, and because it further appears from the face of said petition that the adverse claim now asserted by plaintiff is a controversy arising in bankruptcy which should be determined by said United States District Court for the Southern District of Texas, in which said proceedings are pending, and of this prays judgment.
“Fifth. This defendant further says that this court ought not to take cognizance of this case, because it appears from the face of plaintiff’s said amended original petition that this defendant and his agents and servants, to wit, O. Ñ. Puckett and Jesse Pitts, acting under and by authority of the United States District Court for the Southern District of Texas, were in possession of the timber described in plaintiff’s said petition, and were actively engaged in cutting and removing the same, that is to say, it appears that this defendant and his servants and agents were actively engaged in the administration of the estate of the bankrupt, Banks Griffith & Son, at the time of the issuance of your honor’s writ of injunction in this cause, and because it therefore appears that said property and rights were in custodia legis, and under active administration by said United States District Court, and because it, therefore, appears that any action of this court dealing with said timber and the rights and duties of this trustee in connection therewith would be an interference with the due and orderly administration of said United States District Court.
“Of all the foregoing exceptions to the jurisdiction of this court this defendant prays judgv ment, and that this court sustain the same and dismiss this case from the docket of this court.”

These exceptions were heard and sustained by the court on January 29, 1916, and plaintiff declining to amend, the temporary injunction theretofore issued was dissolved and the suit dismissed.

Section 23 of the bankruptcy law is as follows:

“The United States circuit courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants.” Peel. Annoted Statutes, vol. 1, p. 590.

This statute is unambiguous, and by its terms limits the jurisdiction of the United States court in contests of this kind to cases of which said court would have had jurisdiction if the suit had been brought against the bankrupt. It goes without saying that if no bankruptcy proceedings were pending and this suit had been brought against Banks Griffith & Son it could have only been brought in the district court of Montgomery county, where the defendant resides and the subject-matter of the suit is situate.

The only exception to this rule which could, in any way, affect the jurisdiction of the district court of Montgomery county to hear and determine this case is that a suit by an adverse claimant of property in the actual possession of the trustee in bankruptcy, received and held by him as part of the bankrupt estate, should be brought in the court in which the bankruptcy proceedings are pending. In such case the property in the actual possession of the trustee is regarded as in the custody of the court in which the bankruptcy proceedings are pending, and the rule of comity between courts of concurrent jurisdictions forbids that this custody be interfered with by any other court assuming jurisdiction to determine the question of the ownership and right of possession of the property.

We do not think plaintiff’s petition can be construed as alleging that the timber, the cutting and removal of which is sought to be enjoined, was in the actual possession of the bankrupt at the time of the adjudication of bankruptcy, or is now in the actual possession of the trustee in bankruptcy. On the contrary, the allegations are that plaintiff is the owner of the timber and of the land upon which it is growing, having purchased said land from the bankrupt and received a deed of general warranty thereto. These allegations show that plaintiff is in constructive possession of the land and the timber growing thereon.

The allegations are further, in substance, that the defendant trustee is asserting claim to said timber and the right to cut and remove it from the land under a contract which is unenforceable because it is unilateral and without consideration. If the allegations of the petition are true, defendants have no rights under this contract, and their claim thereunder could not give them constructive possession of the timber. The allegations that the defendants are “attempting to cut and remove the timber” cannot, we think, by any.reasonable construction, be held to mean that they have taken and are holding possession of plaintiff’s land for the purpose of cutting and removing the timber therefrom, and in no other way could they take actual possession of the growing timber. We do not think the rule of comity between courts would be infringed upon by the court below enjoining the defendant trustee and his agents from entering upon plaintiff’s land and cutting and removing the timber therefrom pending the determination by the court of the validity of the contract under which said defendant claims. Bardes v. Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175; Harris v. Bank, 216 U. S. 382, 30 Sup. Ct. 296, 54 L. Ed. 528; McFarland Carriage Co. v. Solanas, 106 Fed. 145, 45 C. C. A. 253; In re Rathman, 183 Fed. 913, 106 C. C. A. 253.

It follows from these conclusions that the judgment of the court below should be reversed and judgment here rendered, reinstating said temporary injunction and remanding the cause for trial upon its merits.

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


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    QUANAH, A. & P. RY. CO. et al. v. LECKIE.
    (No. 831.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1915.
    Rehearing Denied May 8, 1915.)
    Appeal and Eeeob <&wkey;628 — Recoed—Filing Tbanscbipt — Failuee to File in Time— Effect.
    Where appellant, after filing a superse-deas bond, delayed nearly a month before requesting the clerk to prepare a transcript, and thereafter waited more than four months while the clerk failed to deliver such transcript and put appellant’s attorney off with promises, who failed to resort to mandamus against the clerk, the judgment should be affirmed on appellee’s motion; no sufficient excuse having been shown by appellant for not having filed the transcript within the statutory time, 90 days, or at least within 30 days after the expiration of such term.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. <©=> 628.]
    Appeal from Motley County, Court; C. B. Whitten, Judge.
    Action by T. E. Leckie against the Quanah, Acme & Pacific Railway Company and others. Judgment for plaintiff, and defendants appeal. On motion to affirm on certificate.
    Affirmed.
    D. E. Decker, of Quanah, G. E. Hamilton, of Matador, and E. H. Haddix, of Ft. Worth, for appellants. T. T. Bouldin, of Matador, for appellee.
   HALL, J.

Supersedeas bond of appellant was filed in this case August 19, 1914. Appellants’ counsel wrote the clerk of the county court of Motley county on September 5, 1914, to prepare the transcript. A partial transcript was prepared and sent the attorney in order that he might prepare his assignments. The incomplete transcript, with the assignments, was returned to the clerk October 23, 1914, with request to complete the transcript and return it in its completed form to the attorney for appellant at the earliest possible moment. Nothing more was done until November 14th, when appellants’ attorney wired the clerk to know when the transcript would be completed, and informing him that it was due to be filed in this court on the following Tuesday. The matter seems to have rested until December 8th, when appellants’ counsel again wrote the clerk to know why the transcript had not reached his hands. It seems he made a trip from Ft. Worth to Matador in the early part of January to see about the matter when the clerk informed him that he would go to work on the transcript within a week, and, having failed to do so, counsel again wrote him on February 23d, threatening to procure a mandamus if the record was not forthcoming. On March 6th the clerk wired counsel that the “transcript will be mailed Monday.” It seems it was not mailed, and appellee filed a motion to affirm on certificate, together with the necessary transcript in this court on March 13th.

Appellant replied to the motion to affirm, setting up the facts hereinbefore stated, and asked this court for rule against the clerk of the county court, commanding him to forthwith make out and furnish to this court or to appellants’ counsel for filing herein a full and proper transcript of all the proceedings. The clerk has been extremely negligent in the performance of his duties, but the appellant had an adequate remedy by mandamus for compelling that official to comply with his request. Article 1592, V. S. Civ. St. (R. S.); Martin v. Irvin, 147 S. W. 1164.

Appellant delayed nearly a month before requesting the clerk to prepare a transcript, and has waited more than four months before resorting to his remedy under the statute. It we should now mandamus the clerk to prepare the transcript, as requested, it would result in a postponement of this case for this term. This would be a gross injustice to appellee. No sufficient excuse has been shown by appellant for not having filed the transcript within the statutory time, or at least within 30 days after the expiration of the 90 days. K. C., M. & O. Ry. Co. v. Stanford, 149 S. W. 1004; Casey v. Bell, 133 S. W. 478; Savage v. State, 148 S. W. 584, and authorities cited.

The judgment of the lower court is in all things affirmed.
      (gssFor other cases see same topic and KEY-NuMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAM D. CLEVELAND & SONS v. FIRST STATE BANK OF FLOYDADA.
    (No. 769.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 24, 1915.
    Rehearing Denied May 15, 1915.)
    1. Guabantt <&wkey;35 — Conditional Guaranty —Overdrafts.
    Where a bank sent drafts to plaintiffs for collection, covered by a shipment of cotton to be sold on commission, and the bank, being informed by plaintiffs that the cotton was of an inferior grade, telegraphed them to remit, and it would protect plaintiffs for the difference, such guaranty was unconditional as against overdrafts, notwithstanding that the bank requested weights and grades as a condition precedent to a sale by plaintiffs.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 37; Dec. Dig. &wkey;35.]
    2. Appeal and Error <&wkey;722 — Assignments op Error — Form and Presentation.
    Assignments of error not presented and numbered in accordance with Court of Civil Appeals rule No. 29 (142 S. W. xii) will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. &wkey;> 722.]
    Appeal from District Court, Floyd County; R. C. Joiner, Special Judge.
    Action by William D. Cleveland & Sons against the First State Bank of Floydada. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    A. P. McKinnon, of Floydada, for appellants. Mathes & Williams, of I-'lainview, and T. F. Houghton, of Floydada, for appellee.
   HALL, J.

Appellants filed this suit to recover of W. S. Bingham the sum of $1,384.-89 and interest on an - account growing out of the shipment of certain cotton during the season of 1912 and 1913. Appellee bank was made a party on account of its guaranty to appellants to protect them against loss on the payment of a draft drawn for the sum of $1,905.70, protected by 35 bales of cotton. There was a verdict and judgment in favor of appellants against Bingham for the sum of $1,444.19, and in favor of appellee, to the effect that appellants take nothing by their suit as against said bank, and that the bank go hence without day and recover of appellants ,all costs incurred. On January 28, 1913, the cashier of appellee bank wrote appellants as follows:

“We are sending you under separate _ cover drafts for collection and returns amounting to $1,905.70, covered by thirty-five b-c. We ask that you take up these drafts for these gentlemen, mailing to us the list of weights and grades for each man’s cotton and when the cotton is delivered to you and classed, to sell the same to the best advantage, remitting the balance due them on the cotton to this bank. Assuring you that we will appreciate your best efforts in this business, we are,
“Yours truly, James K. Green, Cashier.”

Memorandum:

“W. S. Bingham, 28 bales of cotton. O. B. Olson, 7 bales of cotton.”

On January 81, 1913, appellants wrote ap-pellee bank as follows:

“We have your valued favor of January 28th, notifying us of the shipment of thirty-five bales of cotton, against which you inclosed draft for $1,905.70, and we received the bills of lading covering these thirty-five bales of cotton, under separate cover. This cotton has already been delivered to Gohlman-Lester & Co., and they claim the reason the draft was turned down was on account of the cotton being bolly. These parties are drawing about $55.00 per bale and we have never had any business dealings with them and know nothing of their financial standing. However, we will take care of the draft with pleasure if you will guaranty us against overdraft. We cannot tell what we can get for bolly cotton until we offer it for sale but then this is simply hearsay on our part and we do not know whether or not the cotton is bolly and wont know until we receive the samples. Just as soon as we do we will send our receipt, showing the class and weight and Will make the best sale possible and will send the proceeds to you for their credit.”

On the 14th day of February, 1913, in answer to the foregoing letter, the appellee bank sent the following night letter to appellants:

“Kindly remit for ours January 28th, will protect you for difference. Before offering for sale send us weights and grades.”

The foregoing letters and telegram were set out in htec verba in the plaintiff’s petition. Appellant excepted to the following three paragraphs of the petition, and their exceptions were overruled:

(17) “That, had the plaintiff sent this defendant such weights and grades, this defendant could and would have protected itself against the overdraft, if any, by procuring security from the defendant W. S. Bingham.”
(IS) “And that, because of the failure of plaintiff to send this defendant weights and grades of said cotton, said plaintiff failed to meet the condition of the guaranty contained in said telegram, and cannot now enforce same against this defendant.”
(19) “That, because of said plaintiff failing to furnish this defendant said weights and grades of said cotton, it has been prevented fx-oru protecting itself against loss on account of overdrafts, if any, against said cotton by defendant Bingham, and that, had this defendant been informed of said weights and grades, it could and would have protected itself against loss because of overdrafts against said cotton, and that, if plaintiff has been damaged at all, it is because of its own failure to peifform its undertaking to 'furnish weights and gx’ades.”

Appellant excepted specially as follows:

“(1) Defendant bank does not deny that they sent to plaintiffs the communication as pleaded, guaranteeing plaintiffs against overdrafts, and said communication shows on its face that said guaranty is an absolute guaranty, and depended in no wise upon plaintiff’s sending to defendant bank the weights and grades of cotton in question.”
“(2) That said answer presents no defense to plaintiff’s cause of action on the ground that the guaranty in question was not a conditional guaranty of overdrafts growing out of the matter in question, and said defendant has pleaded no facts which show any damage to said defendant by reason of the failure of plaintiffs to send weights and gi’ades of the cotton in question to defendant.”

These exceptions should have been sustained. There is nothing in the correspondence or the telegram, which tends to show that the guaranty of appellee, as contained in the night letter, is a conditional one. The request to send weights and grades of the cotton is, by the terms of the telegram, made a condition precedent to the sale of the cotton by appellants, but iu our opinion it has no connection whatever with the first sentence of the telegram, which is simply an unconditional promise on the part of the bank to protect appellants in the amount of any overdraft occasioned by the cotton proving to be bolly or of an inferior grade. Maxwell v. Capehart, 62 Minn. 377, 64 N. W. 927.

Appellants cannot be bound by a secret intention, on the part of the bank officials, to protect themselves against loss by requiring of Bingham a deposit for that purpose, unless such intention had been duly communicated to appellants. If the bank wanted the weights and grades for that purpose, and did not intend to guarantee the overdraft, if any, until such weights and grades had been received, such intention was not expressed in either the telegram or the correspondence.

We find that the remaining assignments in appellant’s brief are subject to the objections urged by appellee, and further that they are not presented and numbered in accordance with the requirements of Court of Civil Appeals rule No. 29 (142 S. W. xii). The assignment appearing third in order in the brief is numbered 10, and so on. For this reason they will not he considered. Taylor v. Butler, 168 S. W. 1004; Barron v. White, 155 S. W. 590.

For the error pointed out, the judgment is. reversed, and the cause remanded.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    GALVESTON, H. & H. R. CO. v. COPLEY.
    (No. 6809.)
    (Court of Civil Appeals of Texas. Galveston.
    April 14, 1915.
    Rehearing Denied May 6, 1915.)
    1. Railboads <&wkey;348 — Crossing Accideni^-Negligence — Evidence.
    A finding that a train approaching a crossing did not sound the whistle or ring the bell is sufficiently supported by evidence of plaintiff, suing for the destruction of his automobile struck by the train, and two witnesses,' that they did not hear the whistle or bell, though opposed by evidence of the engineer, fireman, and switching foreman that the bell was rung continuously while the train was approaching the crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dee. Dig. &wkey;34S.]
    2. Railboads <&wkey;337 — Operation op Tbains — Grossing Accident — Negligence — Proximate Cause.
    Where trainmen approaching a crossing did not sound the whistle or ring the bell, and their failure so to do was negligence, and plaintiff was not guilty of any negligence in attempting to cross the track, the negligent failure of the trainmen 'to give the warnings was the proximate cause of the collision with plaintiff’s automobile.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. &wkey;337.]
    3. Negligence <&wkey;62 — Proximate Cause.
    Where, subsequent to an original wrongful or negligent act, a new cause intervenes, of itself sufficient to stand as the cause of the accident complained of, the former act is too remote.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. <&wkey;>62.]
    4. Railroads &wkey;>337 — Collisions at Gross-ings — Proximate Cause.
    A driver of an automobile entered on a railroad crossing without seeing or hearing a train, which was approaching without signals. He was not negligent in entering on the track, but the automobile became stalled and was struck by the train. The accident would not have happened if signals of the train’s approach had been given, or if the automobile had not stopped. Meld, that the negligent failure of the trainmen to give the required warnings of the train’s approach was the direct or proximate cause of the collision.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. &wkey;337.]
    5. Appeal and Error <&wkey;1013 — Review — Measure op Damages — Amount op Recovery.
    Where there was evidence that an automobile, struck by a train at a crossing, was of the value found by the court, the judgment would not be disturbed as excessive on the ground that the court adopted an improper measure of damages.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3993 — 3995; Dec. Dig. <©=>
    6. Appeal and Error <©=>1013 — Findings on Conflicting Evidence — Conclusiveness.
    A conflict in the evidence of value of personalty negligently destroyed is conclusively settled by the findings of the trial court awarding damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3993-3995; Dec. Dig. <S&wkey;
    Appeal from District Court,- Galveston County; Clay -S. Briggs, Judge.
    Action by George N. Copley against the Galveston, Houston & Henderson Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood and John T. Garrison, all of Houston, and John L. Darrouzet, of Galveston, for appellant. Jams B. & Charles J. Stubbs, of Galveston, for appellee.
   McMEANS, J.

George Ñ. Copley brought this suit against the Galveston, Houston & Henderson Railroad Company to recover the value of an automobile which belonged to him, and which was practically destroyed by being struck by a car of a train operated by the defendant.

Recovery was predicated upon the alleged negligence of defendant in the operation of its cars in the following particulars: In running its cars in the city of Galveston at a rate of speed prohibited by the ordinances of said city; in failing to blow the whistle and ring the bell, as required by said ordinances ; in the failure of the flagman at the street crossing, where the accident happened, to warn plaintiff of the approach of the cars; in not properly having the cars equipped with air brakes; and in failing to exercise ordinary care to discover appellee’s peril and to avoid collision with his automobile after such peril ivas discovered.

Defendant answered by general denial and by special plea of plaintiff’s contributory negligence. It further pleaded that, if defendant was negligent in any of the particulars alleged, such negligence was not the proximate cause of the collision for the reason that, at the time plaintiff attempted to cross the track in his automobile, the approaching cars were more than 200 feet from the crossing, and that, when the automobile got upon the track, it, from some unknown cause, stopped suddenly, and that plaintiff was unable to start the same before it was struck by the approaching cars; that, had said automobile not stopped, the plaintiff had ample time to cross and would have crossed the track before the cars reached the crossing; and that the stopping of the automobile on the track was an independent intervening cause and the proximate cause of the accident.

The ease was tried before the court without a jury and resulted in a judgment in favor of the plaintiff for the alleged value of the machine, less the sum for which it sold after the collision, and for 6 per cent, per annum interest thereon from the date of the collision, aggregating $2,379, from which the defendant has appealed.

The court upon proper request reduced to writing and filed its findings of fact, and we adopt the following portions thereof, which are justified by tbe evidence, as our fact findings:

“I find that on or about October 27, 1910, plaintiff was going south, on Thirty-Seventh street in an automobile; that there was a fence about eight feet high on the west side of Thirty-Seventh street, extending from Avenue C, or Mechanic street, southward to Market street, or Avenue D, which last street is crossed and traversed by several tracks of defendant; that Market street and Mechanic street run practically east and west and parallel to one another; that Thirty-Seventh street is a much traveled thoroughfare, and is one of the main thoroughfares for reaching the docks along the wharf front in the city of Galveston; that, at the time aforesaid, plaintiff, upon reaching Market street in the said automobile, after passing the fence aforesaid, and before reaching said street, looked to the east and west for any car or train of cars that might be approaching; that said fence obstructed 'the view of plaintiff, and that, while passing along said Thirty-Seventh street parallel with said fence, he saw no such car or cars, nor did he see any after passing such fence, and plaintiff crossed with his automobile a track of defendant towards the north side of Market street and was in the act of crossing a second track of defendant, at or near the middle of Market and Thirty-Seventh streets, when plaintiff, for the first time, saw a long train of cars coming towards him, with a box car at the end nearest him, and which was then about 200 feet away; that said train consisted of about 38 box cars, with an engine at the west end of said train, or the end furthest away from the plaintiff; that said engine and train of ears were owned and controlled and operated by defendant and its employés; that one of the employés of defendant was on top of and at or near the east end of the car nearest to plaintiff, and said train was then backing around a curve from the westward and moving at a rate of speed of at least 10 miles an hour; that plaintiff was crossing said streets and tracks slowly and cautiously, and as he saw the train coming around the curve, just as he was in the act of crossing, with his automobile, the track at or near the center of the street, he endeavored to promptly increase the speed of the automobile in which he was, but that such automobile suddenly stopped, the engine thereof failing to work; that it had previously been in good working and running order; that, upon the stoppage of said automobile, plaintiff jumped out of the same, and as the train of cars was coming too rapidly to afford plaintiff time to start the machinery of his automobile, or attempt to do so, and thus leave the track, plaintiff ineffectually attempted to push said automobile off the track, but was unable to do so before the train came upon it, striking said automobile with much speed and violence, and pushing it along the track a distance of between 175 and 200 feet before the train came to a stop, thereby damaging and practically destroying plaintiff’s automobile; that the reasonable market value of said automobile immediately before said collision was $2,075, and that its reasonable market value immediately after said collision was $100; the actual damage sustained to said automobile was $1,975, and that the interest upon said $1,975 from October 27, 1910, up to the date of the judgment herein, March 30, 1914, was $404.-87, making a total of $2,379.87.
“I further find that at the time of said collision, on or about October 27, 1910, there was an ordinance of the city of Galveston in force, being article 453 of the revised ordinances of the city of Galveston, and reading as follows: ‘Art. 453. It shall be the duty of every engineer or other person in charge of a locomotive or engine to cause the engine bell to be rung continuously, and the whistle to be sounded at every street crossing, whilst the engine or cars are in motion within the corporate limits, and any person who shall violate any of the provisions of this article shall be deemed guilty of an offense, and shall be fined by the recorder in any sum not less than five dollars, nor more than one hundred dollars.’
“I further find that the bell on the locomotive pushing said train of cars was not rung, nor the whistle blown or sounded, as required by said ordinance, and that had said bell been rung and whistle blown, as required by said ordinance, plaintiff would have heard the same and been warned in time to have avoided the collision, and would not have crossed said track until the said train had gotten by; and I further find that the failure of said defendant, and its engineer, or the perso'n in charge of its locomotive, to cause the engine bell to be rung continuously and the whistle to be sounded at every street crossing whilst the engine or cars were in motion in the corporate limits of the city of Galveston, was negligence, as a matter of law, and independently on the part of the defendant.
“I further find that the perilous position of the plaintiff’s automobile was discovered promptly by the defendant, but not in time, after defendant realized such peril, to avoid the collision by the use of the means at defendant’s command.
“I further find that defendant’s servant Smith, who was foreman of the crew of said’ train, and who was stationed on or about the east end of the box car nearest the automobile, first gave the signal to stop the train just as he saw the automobile stop, and that said stop signal was the ordinary stop or slow signal.
“I further find that said ordinary stop signal was communicated promptly by the other trainmen to the engineer, and that the engineer proceeded to reduce the speed of the train by shutting off the throttle and applying air to the engine; that the cars on the train were equipped with air brakes, but that such air brakes were not-coupled up so as to be of use; and that owing to the fact that it is impracticable to switch cars with the air brakes coupled up, and as the said train was switching cars, said air brakes were not used, except on the locomotive.
“I further find that a long train of cars, such as this train was then moving, has considerable slack in it, approximately 12 inches to the ear, which must be first taken up before the train can be suddenly stopped, or else there would be. danger of pulling out the couplings of the cars.
“I further find that as soon as the defendant’s foreman, Smith, saw the plaintiff get out of his' automobile, after said automobile had stopped on the track, said foreman gave a violent signal to stop, or what is known as a washout signal, meaning an emergency stop; that said washout signal was promptly communicated by the other trainmen to the engineer of the locomotive attached to said train, who further set the air on the train and reversed the engine.
“I further find that the time between the slow signal given by defendant’s foreman and the washout signal was about five seconds.
“I find that the length of a box car is from 36 to 40 feet.
“I further find that a train, such as this one, running at a speed of 5 or 5% miles an hour, would require about 250 feet within which to stop, after the application of the emergency stop.
“I further find that defendant’s foreman, Smith, saw the automobile of the plaintiff coming a half block before it got to the crossing at Thirty-Seventh and Market streets.
“I further find in this connection that the plaintiff Copley was approaching said tracks at a speed of about seven miles an hour, and that he was going slower across the tracks than he was approaching them.
“I further find that, if plaintiff’s automobile had not stopped on the track, he could have passed over all right before said collision occurred, and said automobile would not have been struck by the train.”

We shall not discuss appellant’s assignments of error in the order presented in its brief, but shall dispose of the ninth, which complains of the court’s findings of fact to the effect that the bell of the locomotive was not rung or the whistle blown while the cars were approa'ching the crossing in question.

The evidence was conflicting in this regard: The engineer, fireman, and the switching foreman, who was on the car that came in contact with the automobile, all testifying that the bell was rung continuously while the cars were approaching the crossing, and that the whistle was sounded several times just before the train was put in motion, while, on the other hand, the plaintiff testified that, as he approached the crossing, he was “listening for any signs of trains approaching, bells or whistles. I was using every possible precaution. Before I reached there and as I approached the north track, I was listening for the bell, and before I reached the north track I was listening for the whistle. I remember distinctly doing that. I didn’t hear the whistle, and I didn’t hear the bell.” Agata, he says that as to whether or not the whistle was blowing or blew for the crossing, or the bell was kept continuously ringing for the crossing, he did not hear it; that if it had blown he would have heard it, and that that applied also to the bell.

The witness Wm. W. Setley, who, just before the collision, was approaching the crossing on ai bicycle, and witnessed the accident, testified emphatically, “No signal with bell or whistle was given before the collision.” Annie Herron, who crossed the track in a gig immediately before the collision, testified that no whistle was blown or bell rung that she heard.

In view of the foregoing facts, we cannot say that the court was not warranted by the evidence in making the finding complained of, and the assignment of error is overruled.

We shall not consider in detail the other assignments of error which go to the merits of the case. As has before been shown, the accident happened in the city of Galveston; and an ordinance of said city, then in force, made it the duty of every engineer or other person in charge of a locomotive or engine to cause the engine bell to be rung continuously, and the whistle to be sounded at every street crossing, while’ the engine and cars are in motion. The court found as a fact, upon sufficient testimony to warrant the finding, that the bell on the locomotive was not rung nor the whistle blown or sounded, as required by said ordinance, and that had said bell been rung and whistle blown, as required by the ordinance, plaintiff would have heard same and been warned in time to have avoided the collision, and would not have crossed said track until said train had gotten by, and that the failure to ring the bell continuously and to sound the whistle at every street crossing while the cars were in motion was negligence on the part of defendant, as a matter of law, and independently. The court, in its seventeenth finding of fact, which has not been hereinbefore copied, found, upon testimony which justified it, as follows:

“I further find that as the plaintiff, Gopley, approached the north track on Thirty-Seventh and Market streets, and before he reached there, he was listening for the bell of the locomotive and also listening for the whistle; that he did not hear the whistle and did not hear the bell; that had the whistle been blown, or the bell rung, he would have heard the same; that, if he had heard either the bell or the whistle, he would not have crossed or attempted to cross the track; that the plaintiff, Copley, relied upon the blowing of said whistle and the ringing-of the bell, and each of them, and in part depended upon the same for warning; that he was also relying upon what he could see, and was relying on the flagman to give him warning, and was also relying on whether he could hear anything else beside the whistle or bell that would lead him to think that a train was approaching ; that, if said whistle had been blown or bell rung, it would have made the plaintiff stop before attempting to cross said tracks at Thirty-Seventh and Market streets and find out definitely if any train was coming or not, and because of the failure of the defendant, or its servants, to sound the whistle or ring the bell, or to do either, * * * plaintiff attempted to go across said crossing, which he otherwise would not have done until such train had passed east and beyond said crossing.”

Appellant does not by any assignment of error attack or question the court’s finding that, if the whistle had been blown or the bell rung, it would have made plaintiff stop before attempting to cross the tracks and find out definitely whether a train was coming, and because of the failure to sound the whistle or ring the bell, or do either, plaintiff attempted to cross the track, which he otherwise would not have done until such train had passed; nor does the appellant assert that the plaintiff, in attempting to cross the track in the circumstances detailed, failed to exercise that degree of care required of him by law to discover the approach of the cars, or that he was otherwise guilty of such contributory negligence as would bar a recovery.

The court concluded, as a matter of law, that the negligence of defendant in failing to sound the whistle or ring the bell was the proximate cause of the plaintiff’s damage. The court having found upon sufficient proof that no warning of the movement of the train was given by either the bell or whistle, and that the failure to give such warning was negligence which was the proximate cause of the collision, and there being no proof, and no contention on the part of the defendant, that plaintiff was guilty of negligence in attempting to cross the track at the time and under the circumstances he did, we think the court correctly held that the negligence of the defendant in failing to give the warnings was the proximate cause of the collision and the damage sustained by plaintiff, and that therefore the court properly rendered judgment in his favor.

But appellant contends that, even if defendant was negligent in failing to give the signals by bell or whistle, such negligence was not lie proximate cause of the collision, but that the proximate cause was an independent cause, namely, the stopping of plaintiff’s automobile upon the track, at a time when he was passing over it ahead of the advancing train.

It is the generally recognized doctrine that if, subsequent to the original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote. Seale v. Railway, 65 Tex. 278, 57 Am. Rep. 602.

The court found and the evidence shows, that, at the time plaintiff’s automobile stopped on the track, the approaching cars were about 200 feet distant, and that, if the automobile had not stopped, the plaintiff could have gotten safely across before the cars reached the crossing. But the evidence further shows that plaintiff was not negligent in attempting to cross the track; that he did not see the approaching cars until he was on the track, and that he was not negligent in not seeing them sooner; that, if the signals required by the ordinance had been given, he would have stopped before reaching the track and ascertained definitely whether a train was approaching, and that, because the signals were not given, he attempted to cross, and that he would not otherwise have done so until the train had passed. If plaintiff had actually seen the approaching cars, and, believing that he had ample time to cross, had attempted to do so, or, knowing of the approach of the cars, had hazarded the chance of getting over before being struck by tnem, then the failure of the defendant -to give the signals, while negligence because in disregard of the requirements of the ordinance, would not have been the proximate cause of the collision, for in that case he would have had all the notice of the approach of the train that the warning signals could have given him, and, in such case, the stopping of the automobile on the track would have been an intervening cause sufficient to break the causal connection between the negligence of defendant in failing to give the required warnings and the injury complained of; and plaintiff would not have been entitled to recover. But that is not the case before us. Here defendant was remiss in its duty to give the required signals, and by reason thereof plaintiff went upon the track, and he would not have done so but for the negligence of defendant in failing to give the required warnings. But for defendant’s negligence, then, plaintiff would not have gone on the track, and, of course, his automobile, but for such negligence, would not have stopped on the track. We think, therefore, that defendant’s negligence must be regarded as the direct or proximate cause of the collision and the consequent damage sustained by plaintiff. This view i-s emphasized, we think, by the testimony of appellant’s foreman of the engine crew, where he, speaking of the crossing and automobiles passing over it, says, “I have seen thousands of them go by there and do the same thing, stop on the trackand again, “I have seen lots of automobiles go over there and stop there too.”

The seventh assignment complains that the judgment is excessive. Under this assignment, appellant urges the proposition that, plaintiff having sought to recover damages for destruction of an automobile that had been used, the proper measure of damages was the value of the car at the time of the destruction, and not its value when originally purchased; the undisputed facts showing that the car at the time of its destruction was a secondhand car.

Appellee concedes that the proper measure of damages was the value of the car at the time it was destroyed, and what it originally cost does not necessarily determine that value. There was no proof that secondhand cars had a market value in Galveston or elsewhere. There was proof, however, that plaintiff’s automobile was of the value found by the court in its judgment; and, if there was any proof to the contrary, the appellant has not pointed it out in its brief. And, even if there was a conflict in the evidence as to such value, the judgment of the court has settled the conflict, in so far as this court is concerned.

We have examined all of appellant’s assignments of error, and are of the opinion that no reversible error is pointed out in any of them. The judgment of the court below is affirmed.

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


author: HIGGINS, J.

text:
    GREATER HOUSTON SUBURBAN CORPORATION v. DUPUY & MULLEN.
    (No. 453.)
    (Court of Civil Appeals of Texas. El Paso.
    May 6, 1915.)
    Contracts ¡&wkey;350 —Action toe Breach — Sufficiency of Evidence — Terms.
    In an action to recover damages for breach of a contract to shell the streets in defendant’s tract of land, divided into blocks and streets, silent as to the amount to be done, evidence held insufficient to sustain a finding of an agreement as to the quantity of shell to be placed upon the streets.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1819-1823; Dec. Dig. &wkey;350.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Action by Dupuy & Mullen against the Greater Houston Suburban Corporation. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Cbas. Warnken and Sam, Bradley & Fogle, all of Houston, for appellant. Bryan & Bryan, of Houston, for appellees.
   HIGGINS, J.

Appellant owned about 200 acres of land in Harris county, known as Park Place, wbicb it bad divided into blocks, lots, and streets, and it entered into a contract with Y. 0. Ford to grub, grade, and clear the streets thereof and place culverts therein according to written specifications; there being approximately 8 miles of streets covered by the contract, the same varying in width from 40 to 124 feet. On the same date Ford submitted a proposal to surface the streets with shell, which reads:

“I herewith submit for your approval and acceptance the following proposition to shell your subdivision, known as ‘Park Place,’ to wit: I will furnish the pump shell, spread and roll same, in accordance with grades to be set by your engineer,, on the basis of §2.05 per cubic yard, barge measurement unless otherwise agreed upon, and maintain same for sixty days.”

The appellant accepted the foregoing proposal by indorsement, reading:

“Accepted this 10th day of November, 1911.
“Greater Houston Suburban Corpo.,
“By O. J. McCarty, Pres.”

After performing a portion of the work called for by the first contract, Ford assigned both of same'to Dupuy & Mullen, who assumed his obligations thereunder, appellant assenting thereto, and Dupuy & Mullen proceeded to perform the contracts. They graded the streets as required by the contract first mentioned and proceeded to surface the same with shell as required by the other. After placing 755 cubic yards of shell upon the streets they were stopped by appellant’s orders.

Dupuy & Mullen thereupon sued, alleging that by the proposal to “shell your subdivision, known as Park Place,” was meant that all the boulevards and streets in Park Place, including what was known as Park Place therein, was to be shelled; that said shelling contract under the facts alleged called for about 12,200 cubic yards of shell, and that they had only placed 755 cubic yards when they were unlawfully stopped by appellant from proceeding further with the contract; that they would have made a profit of 38 cents per yard upon the remaining 11,445 yards which should have been placed under-said contract, amounting in the aggregate to $4,349.10, for which amount judgment was asked.

Defendant admitted that it entered into a contract with Ford to grub, grade, and clear the streets of Park Place, and the shelling contract, evidenced by the proposal above indicated and its acceptance of it, but that said proposal and acceptance did not show the entire agreement with reference to the amount of shelling to be done thereunder; that at the time it entered into the contract to grub, grade, and clear the streets, it did not know how many of its streets it desired to have surfaced with shell, and so informed Ford, but it did desire to so surface a portion of same which is described in the answer, and would probably desire to surface or partly surface more in the future, if the sale of lots justified it in so doing and it became expedient; that Ford proposed to furnish such shell as defendant might desire to be placed, at the price and under the conditions named in the proposal, provided defendant would assure him that it would use at least 500 yards of shell; that defendant agreed with Ford that it would take from him under-said proposal at least 500 yards of shell, and so much more as defendant in the future might determine it wanted; and that this constituted the contract between defendant and Ford with reference to shelling.

The substituting of Dupuy & Mullen for Ford and their subrogation to his rights under the contract were admitted; likewise was admitted the allegation of plaintiffs that a map of the addition had been delivered to them by it in reference to the work, which was to be performed by them in the completion of Ford’s contract, but denied that the delivery of the map was intended to be’, as by plaintiffs alleged, a representation that all of the streets and boulevards in Park Place were to be shelled; and it was averred that plaintiffs were informed as to the amount of shell which they had agreed with Ford to take as above stated, viz., at least 500 cubic yards, and as much more, at their option, as future developments would warrant.

By supplemental petition, appellees alleged that if the defendant'had such an agreement with Ford with reference to furnishing shell as is alleged, viz;, to the effect that defendant was only required to furnish not exceeding 500 yards of shell, that such fact was not known to these plaintiffs, and that they, in agreeing with defendant, as alleged in their petition, simply used the Ford proposition as a basis of an agreement made between the plaintiffs and the defendant, and that these plaintiffs would not have entered into or taken over the contract of Ford for the grading, filling, etc,, of Park Place, but for the agreement made by the defendant with plaintiffs that they were to be permitted to shell the streets and boulevards of Park Place, as is fully set out in plaintiffs’ petition, and that, if Ford and defendant had any such agreement as alleged by the defendant, these plaintiffs were not bound by it, and did not obligate themselves to be bound by that part of the contract which limited the amount or quantity of shell that was to be placed upon said streets; that'certain specifications constituted the contract between plaintiffs and defendant, and that plaintiffs and McCarty had same when making said contract, and the three papers together showed clearly the length of the streets to be shelled; and It was verbally understood and agreed between plaintiffs and defendant, as is fully alleged in plaintiff’s petition, and as was also state,d to the plaintiffs by the engineer of the defendant, under whose directions the work was done, that said 6,600 feet of street, which was 134 feet wide, should have an average of 14 feet on each side of said street, or a total of 28 feet, with an average depth of 5 inches of shell placed thereon, making a total of 3,080 yards of shell on that street; that said 16,660 feet of 80-foot streets was to have shell 12 feet wide and an average of 5 inches deep, or a total of 6,764 yards of shell, and that said 10,660 feet of 50-foot streets was to have shell 12 feet wide, and an average of 5 inches in depth, or a total of 2,125 yards of shell placed thereon, making a total of 11,-960 yards of shell to be placed on said 50-foot, 80-foot, and 134-foot streets; that it was also in fact agreed that said 40-foot streets should also be shelled 12 feet wide and 5 inches deep, but afterwards by mutual agreement it was agreed that plaintiffs would waive their right to shell said 40-foot streets.

The statement of the pleadings made is sufficient for a proper understanding of the questions presented by this appeal. It is apparent that the shelling contract evidenced by the written proposal and acceptance is silent as to the amount of shelling to be done, and resort was had to extrinsic evidence to show the agreement of the parties in respect thereto. The jury was instructed:

“That in order for there to have been a contract between plaintiff and defendant with reference to the shelling of streets in Park Place, which would be binding upon defendant, the minds of plaintiffs and McCarty must have met as to all the material elements necessary to constitute such contract, and each must have had at the time the same understanding as to the quantity of shell to be placed, and unless you find from a preponderance of the evidence that there was a mutual agreement and understanding between plaintiffs and said McCarty as to the quantity of shell to be placed by plaintiffs in Park Place, if any, you will find that there was no such contract.”

With the injunction to be governed by this instruction, they were then instructed to answer special issues, and in response thereto the jury found that there was an agreement between plaintiffs and defendants as to the quantity of shell to be placed by the former in Park Place, and that it was agreed 11,002 cubic yards were to be placed on the streets and boulevards therein; that only 755 yards were so placed, when plaintiffs were stopped by defendant’s orders. Upon these and other findings unnecessary to state, the judgment was rendered in favor of Dupuy & Mullen.

It is assigned as error that the evidence is insufficient to.support the finding of the jury that there was an agreement between plaintiff and defendants as to the quantity of shell to be placed in Park Place; that the agreement of the parties with reference to the shelling was not sufficiently definite to enable the jury to find that there was 11,002 cubic yards' of shell agreed to be placed upon the streets. This contention must be sustained. There is sufficient evidence to warrant the jury in finding that it was agreed that all of the streets in Park Place were to be shelled as they were graded, but it does not appear that there was any definite agreement between the parties as to the width of the shelling to be placed in the streets and the depth thereof. In the absence of such evidence, it was, of course, impossible to determine just how many cubic yards of shell was to be placed upon the streets, and unless there was a definite agreement between the parties, so that it could in some manner be ascertained how much gravel was to be placed, then the minds of the parties never met upon an essential element of the contract. It was testified by appellees that the engineer, Winfrey, gave them a cross-section showing the width and depth of the gravel which was to be placed; but Winfrey testifies he did that for the accommodation of ap-pellees, and that he was merely the engineer, supervising the grading, grubbing, and clearing contract, and had nothing to do with the shelling contract. He disclaimed any authority whatever to represent appellant with reference to the shelling contract, and there is no evidence of any holding out by the appellant of Winfrey as its representative in respect to the shelling contract, so as to bind them by any statement or representations which he may have made. It is unnecessary to detail at length the testimony of the parties upon the issue involved, but it is sufficient to say that a consideration of the entire testimony leads to the conclusion that the minds of the parties did not meet upon a material element necessary to constitute the contract, in that they did not have an understanding as to the quantity of shell to be placed upon the streets; it being apparent that there was no agreement as to the width of the shelling and the depth thereof.

The other errors assigned do not seem to ' present reversible error.

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


author: MOURSUND, J.

text:
    KIMMONS et al. v. ABRAHAM.
    (No. 5453.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 5, 1915.)
    1. Executors and Administrators <&wkey;37 — Necessity ob Administration.
    Under Rev. St. 1911, tit. 52, c. 17, and especially arts. 3413, 3422, treating of allowances for the support of widow and minor children and chapter IS, relating specifically to the setting apart to the widow and children of the homestead and other exempt property, where the record showed that there were such surviving members of the family as were necessary to take deceased’s homestead out of the assets subject to administration by its vesting in themselves, under the statutes of descent and distribution, the appointment of an administrator de bonis non was improper; since a homestead is not subject to administration, and cannot legally be sold to pay an allowance for the support of the widow and minor children, considering that, under article 3427, such an estate, if the decedent be survived by wife or minor children, cannot be sold to pay the funeral expenses or the expenses of the last sickness, obligations which, as graded by article 3411, rank higher than the allowance of support to widow and children.
    [Ed. Note. — For other cases, see Executors and Administrators, Gent. Dig. §§ 267-278; Dec. Dig. &wkey;>37.]
    2. Executors and Administrators <&wkey;37 — Administration — Necessity — Title oe Contestants.
    Where contestants opposing the application of one to he appointed administrator de bonis non of their father’s estate claimed that the only property of the estate, a homestead, was bought with their money, the respective claims of title were of a nature to be decided in the district court.
    [Ed. Note. — For other eases, see Executors and Administrators, Gent. Dig. §§ 267-278; Dec. Dig. <&wkey;37J
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Application by A. C. Abraham to be appointed administrator de bonis non of the estate of A. J. Kimmons. Elmer C. Kim-mons and others contested the appointment, which was made, and the contestants appeal.
    Reversed, and judgment rendered denying the application.
    Elmer P. Stockwell, of Angleton, for appellants.
   MOURSUND, J.

Appellee, A. C. Abraham, filed application in the county court of Bra-zoria county to be appointed administrator de bonis non of the estate of A. J. Kimmons. The application was contested by the appellants, Elmer C. Kimmons, Maude Jackson, joined by her husband, Tom Jackson, Yirgie May Abbott, joined by her husband, George C. Abbott, Myrtle Cartee, joined by her husband, Guy W. Cartee, and Luke Kimmons, by his guardian, Elmer P. Stockwell, all of whom objected to the appointment of an administrator de bonis non of said estate, on the ground that there was no necessity for such administration, but asked that, if further administration of said estate was found necessary, appellant Elmer C. Kimmons be appointed such administrator. The county court entered an order granting Abraham’s application and appointing him administrator de bonis non of said estate. The contestants appealed to the district court, and upon a trial de novo in that court a like judgment was rendered. An appeal was taken and the judgment was reversed by the First Court of Civil Appeals. See 158 S. W. 256. The second trial resulted in the same judgment as the first, and the present appeal was taken. The findings, of fact filed by the trial court are not excepted to, and are adopted by us. They are as follows:

“I find that on the 22d day of April, 1903, Jesse Hobbs was by order of the probate court of Brazoria county, Tex., appointed administrator of the estate of A. J. Kimmons, deceased, and that said administrator duly qualified as such by giving bond and taking the oath prescribed by law, on the 28th day of April, 1903; that said administrator, on the 10th day of June, 1903, filed in the probate court of Brazo-ria county, Tex., in said estate an inventory and appraisement of the property of said estate, and among other property inventoried under the head of community property was included 30 ■acres of land, being the homestead valued at $1,500, and that said inventory was duly approved by order of the probate court of Brazo-ria county, Tex., dated July 15,1903; that upon the application of L. M. Kimmons, the widow of A. J. Kimmons, deceased, the probate court of Brazoria county, on July 15, 1903, entered an order allowing the said Mrs. L. M. Kim-mons, widow of A. J. Kimmons, deceased, for the support of herself and her two minor children, the sum of $300, to be paid out of the assets of said estate; that on the 16th day of July, 1906, the probate court of Brazoria county, Tex., passed its order ordering that the land described in the inventory filed in said estate by the administrator be sold by the administrator at public auction to the highest bidder, for the purpose of raising the amount of such allowance.
“I further find that on the 14th day of January, 1907, Jesse Hobbs, as administrator of the estate of A. J. Kimmons, deceased, filed an application asking that he be permitted to resign as administrator of said estate, appended to said application being a full report and exhibit showing property received by him as administrator of said estate, and money and property disposed of by him as administrator, which said report was duly approved by the court, by its order entered on the 16th day of April, 1907, which said report, among other things, provides as follows: ‘It is therefore considered by the court, so ordered, adjudged, and decreed, that the said Jesse Iiobbs, as such administrator, be permitted to resign; that his resignation is accepted by the court; and that he and the sureties on his bond as such administrator be, and they are hereby, fully released from further obligation on said bond upon the administrator turning over to the person designated by this court the property in his hands as such administrator.’ Said report above mentioned shows that the said Jesse Hobbs, as administrator, took actual possession of the land described in the inventory, and that he leased said property and collected the rents thereon for a period of three years, and collected the proceeds of and the fruits of said property for a like period, and that about the time of his resignation he turned the land over to Elmer C. Kimmons, but in doing so he turned same over to the said Kimmons with the understanding that Kimmons took same for and on behalf of the estate, and not in his individual capacity.
“I further find that it nowhere appears that the court has ever designated any person to whom the administrator should turn over said land, and I further find that only $100 has been paid to the widow of A. J. Kimmons, deceased, upon the allowance of $300 made to her and her minor children.
“I further find that the land described in the inventory as community property was conveyed to A. J. Kimmons during his lifetime by deed dated the 30th day of June, 1893, and that A. J. Kimmons was married to Mrs. L. M. Kim-mcns, now Mrs. L. M. Bain, during the year 1892.
“I further find that the applicant, A. O. Abraham, filed his application for letters de bonis non upon the estate of A. J. Kimmons, deceased, in the probate court of Brazoria county, Tex., and that citation was duly had on said application, and that he was duly appointed as administrator de bonis non by order of the eounty court of Brazoria county, from which order the contestants have appealed to this court.
“I further find that Mrs. L. M. Bain was formerly Mrs. L. M. Kimmons, and is the surviving wife of A. J. Kimmons, deceased, that the said A. J. Kimmons is dead, and that he died in Brazoria county, Tex., during the year 1903; and I further find that Mrs. L. M. Bain with her husband, A. W. Bain, has executed and acknowledged a waiver of her right to be appointed administrator of the estate of her deceased husband, A. J. Kimmons, in compliance with law.
“I further find that the said A. O. Abraham is a resident of Brazoria county, Tex., and is above the age of 21 years, and is not disqualified to act as administrator de bonis non of said estate, but is in- all respects qualified to act as such.”

The court concluded, as a matter of law, that the estate had not been closed; that further administration is necessary; and that Abraham should be appointed administrator de bonis non.

The evidence shows that no necessity existed for any further administration upon the estate of Kimmons. There was no property except the homestead, which is not subject to administration, and cannot legally be sold to pay an allowance for the support of the widow and her minor children. The record shows that such constituents of the family survived the deceased as are necessary to take the homestead out of the assets subject to administration and vest it in those entitled thereto by our statutes relating to descent and distribution. Hoeffling v. Thulemeyer, 142 S. W. 102; Hoeffling v. Hoeffling, 167 S. W. 210; American Bonding Company v. Logan, 166 S. W. 1136. If the decedent be survived by his wife or minor children, the homestead cannot be sold to pay the funeral expenses or expenses of last sickness. See article 3427, R. S. 1911. The Legislature surely never intended that it could be sold to pay an allowance which it expressly provides shall rank lower than such claims. See article 3411. Any attempt on the part of the county court to subject the homestead to administration is null and void. Dignowity v. Baumblatt, 38 Tex. Civ. App. 363, 85 S. W. 834; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481. Chapter 17 treats of the allowance for the support of the widow and minor children; while chapter IS relates specially to the homestead and exempt property, and authorizes the use thereof to be given to the widow and minor children and unmarried daughters remaining with the family, with the exception of the exemption of one year’s supply of provisions. It seems to be the intention that, when there is a surviving husband or wife or minor children or unmarried daughters, the court has no power to sell the homestead for the payment of any debt or allowance, but merely to give the use thereof to the parties designated in article 3413. If the homestead can be sold to pay the allowance for the support of the widow and minor children, other heirs may be deprived indirectly of that which it is held the Legislature had no power to deprive them of by enacting article 3422.

It appears that the appellants who are children of Kimmons by a former wife claim that the homestead was bought with their money. The respective claims of title should be decided in the district court. Bradley v. Love, 60 Tex. 476; Chapman v. Chapman, 88 Tex. 641, 32 S. W. 871. Nothing is to be gained by further administration. The probate court should enter an order requiring Hobbs to deliver the homestead to the heirs of Kimmons, and should close the administration and discharge Hobbs.

The judgment is reversed, and judgment rendered' denying the application for administration de bonis non.
      ©u^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes