text:
    LIVERPOOL & LONDON GLOBE INS. CO. v. BAKER.
    (No. 1826.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 5, 1917.
    Rehearing Denied Nov. 22, 1917.)
    1. Insurance <&wkey;323(l) — Eire Insurance— “Vacant” or “Unoccupied.”
    A provision invalidating a fire policy if insured property became “vacant or unoccupied” for ten days is breached where tenants moved from the building expecting to return each week, but were prevented from doing so by weather conditions.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Vacancy —Vacant—Vacate; Unoccupied.]
    2. Insurance <&wkey;668(15) — Waiver—Fire Policy Provisions.
    Whether a. breach of a provision invalidating a fire policy if property remained vacant or unoccupied for 10 days was waived by submitting proofs of loss, etc., pursuant to a request of the insurer’s adjuster, held a jury question.
    Error from District Court, McLennan County; H. M. Richey, Judge.
    Action by C. D. Baker against the Liverpool & London Globe Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    The action is by the defendant in error on a fire insurance policy covering a frame dwelling and the shade trees on the premises. There,was a total loss of the dwelling and 17 of the shade trees by fire occurring November 30, 1914. The insurance company specially pleaded a violation of the stipulation in the policy reading:
    “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”
    As against the special defense the plaintiff, in a supplemental petition, pleaded waiver of the provision in the policy and also estop-pel on the part of the insurance company to assert the forfeiture. The insurance company denied the matter set up in the supplemental petition.
    The evidence establishes that after the delivery of the policy to plaintiff, C. D. Baker, he placed A. M. Havens in the dwelling as tenant. Mr. Havens and his family occupied the dwelling continuously until October 5, 1914, on which date he and his family went to a farm belonging to the insured, Baker, about six miles southeast from the dwelling, for the purpose of picking cotton, expecting to return to his dwelling on ¡Saturday night. As testified to by Mr. Havens:
    “Myself and family went to Mr. Baker’s farm to pick some cotton, and it was our intention to go back every Saturday night. When we left the house we took only a few of our clothes and two or three quilts, and we left only temporarily, expecting to return each Saturday night.”
    In the first week of Mr. Havens’ absence bad weather set in, and continued until after November 30th, rendering the public road difficult to travel, and on this account Mr. Havens and his family were prevented from returning to the dwelling in evidence. Mr. Havens did not remove from the dwelling any of his household goods, but all of his household goods were in the dwelling and were destroyed with it on November 30, 1914. The fire occurred during the absence of Mr. Havens and his family, and his absence, under the circumstances stated, was from October 5, 1914, until after the dwelling was destroyed by fire on the date above given. No person actually resided or stayed in the dwelling during Mr. Havens’ absence.
    It further appears that the next week after the fire the owner of the dwelling had a conversation with the adjuster of the company, who came to investigate the loss, and disclosed to him all the facts with reference to the fire and the absence of the tenant from the dwelling. The adjuster looked at the destroyed building and told the plaintiff that he would get a letter in about 10 days, concerning what the company would do. The plaintiff informed the local agent of the company of the absence of the tenant from the dwelling the day of the loss; and later the agent took the affidavit of the tenant, which affidavit set out in full the fact of his absence from the dwelling. The adjuster made a second trip to the place of loss concerning the loss, and the agent furnished the adjuster at the time with a copy of the affidavit of the tenant. At a later period the adjuster, in the name of the company, wrote the plaintiff a letter stating that the company was not satisfied with the circumstances of the loss, but “if you hold, as stated, the above-numbered contract, it would be well for you to meet the requirements therein set out.” Acting on the letter, the plaintiff employed an attorney and had him prepare and send to the company proofs of loss required by the terms of the policy, and incurred expense in order to do so.
    The jury in a special issue found from the evidence that the dwelling in suit was not vacant or unoccupied for as much as 10 days at any time before it was destroyed by fir.e. The court entered judgment for the plaintiff on the verdict.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of 'Dallas, for plaintiff in error. Allen Beadel, of Moody, and J. P. Alexander, of Waco, for defendant in error.
   LEVY, J.

(after stating the facts as above).

The plaintiff in error insists that under the undisputed facts there was no such occupancy of the dwelling as the policy contemplated, and that the court should have directed a verdict for the defendant as requested. It is believed that the court should have .directed a verdict for the defendant on this issue, and that the plaintiff in error’s insistence of error should be sustained. The precise facts of this case are that the tenant and his family, occupying the dwelling as a residence on October 5th, went to another place six miles distant to pick cotton, expecting to return on the Saturday within the week, but were prevented by bad weather and the condition of the road from returning before the building was destroyed by fire on November 30th. The household goods remained in the dwelling. And the special clause in the policy on which the defense is based is:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”

It becomes necessary, therefore, to determine when, in legal contemplation, the dwelling may be said to have been “vacant or unoccupied” within the meaning of these words as used in the policy. The word “vacant” is not -synonymous with “unoccupied.” 2 Cooley on Insurance, p. 1663. And as the words “vacant” and “unoccupied” are used in the clause of the policy disjunc-tively, it is not incumbent on the defendant, in order to sustain the defense, to show that both conditions existed for 10 days before the fire. “Vacant” means without inanimate objects, and “unoccupied” means without animate objects. Herrman v. Insurance Co.,

85 N. Y. 162, 39 Am. Rep. 644. Giving, then, the word “vacant,” as used and as applied to a dwelling, the meaning of being deprived of contents such as are usual to the use of a dwelling (2 Cooley on Ins. p. 1663), the words “or unoccupied” would mean and have reference to the lack of actual use of the dwelling by some person or persons. Knowlton v. Insurance Co., 100 Me. 481, 62 Atl. 289, 2 L. R. A. (N. S.) 517; Limburg v. Insurance Co., 90 Iowa, 709, 57 N. W. 628, 23 L. R. A. 99, 48 Am. St. Rep. 468; Stoltenberg v. Insurance Co., 106 Iowa, 565, 76 N. W. 835, 68 Am. St. Rep. 323; Ashworth v. Fire Ins. Co., 112 Mass. 422, 17 Am. Rep. 117.

Consequently, as within the meaning of the word “vacant” as contemplated by the policy, the insured dwelling' may not be regarded as vacant, for, in point of fact, the household effects were in the dwelling, and were articles of a character adapted to the use and purpose of a dwelling. But the personal absence of the occupants of the dwelling would, within the meaning of the words “or unoccupied” as used in the policy, be an act rendering the dwelling unoccupied for the time by them. And it is believed that the temporary absence of the occupants, as proven, would not fulfill the condition of the stipulation,, for, according to the terms of the clause, the dwelling may remain “unoccupied” only for the period of 10 days without forfeiture of the policy, unless non-occupancy be consented to by the insurance company. Thus, by the terms of the clause, the occupants of the dwelling may be temporarily absent from the dwelling for a period of 10 days or less, and such absence would not be an act rendering the dwelling “unoccupied” so as to work a forfeiture during said time of absence. But the parties, when they entered' into the contract of insurance, did not, according to the special clause as to occupancy, contemplate nor provide that the dwelling should be treated as “occupied” if the occupants remained absent from the dwelling for more than ten days unless consented to by the insurance company. The courts cannot change or ignore the agreement of parties, but must construe their agreement as it is found. The case of Insurance Co. v. Evants, 94 Tex. 490, 62 S. W. 417, was where an owner was absent from the dwelling, but left a servant “who stayed in the room and slept there until the house was destroyed by fire,” and in virtue of the fact that there was a personal occupancy of the dwelling the Supreme Court held that the dwelling did not become unoccupied within the meaning of the contract of insurance. In the case of Insurance Co. V. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 99, a vacancy of three days incident to a change of tenants was held to avoid a policy containing a stipulation that if the house should become vacant or ■unoccupied the policy should “at once” become void, upon the ground that the stipulation was contractual “and the court must enforce the contract as made.” The effect of this latter decision is that such stipulation in the policy was a reasonable subject-matter of contract, and that, as the parties contracted against nonoccupancy of the building for any period of time, nonoccupaney for any period of time would be a breach of the stipulation. It logically follows that if the parties may contract against non-occupancy of the building for any period of time, they may legally contract for temporary absence or nonoccupancy of the dwelling for a period not to exceed 10 days. The case of Phoenix Ins. Co. v. Burton, 39 S. W. 319, is cited and relied on as supporting the judgment here for the plaintiff. While that case cites the Kempner Case, supra, it does not support the ruling, and we follow the Kempner Oase as decided by the Supreme Court enforcing contractual stipulations.

But the breach of the condition of the clause considered would not necessarily require a judgment for the defendant if the evidence warranted a finding of fact that there was a waiver, as pleaded, on the part of the insurance company of forfeiture by reason of nonoccupancy in the facts. It is believed the facts made this issue in the case. Insurance Co. v. Evants, 25 Tex. Civ. App. 300, 61 S. W. 536. The issue was not submitted to the jury. And it appears affirmatively from the record in thi^ case that the court founded the judgment solely upon the verdict of the jury as to oecupanoy.

Since the judgment for loss of the dwelling cannot be sustained on the said finding of fact of the jury, and the parties are entitled to have a jury finding on the issue of waiver, the judgment is reversed and the cause remanded for trial on the whole case.
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source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    CRADDOCK v. CITY OF SAN ANTONIO.
    (No. 6010.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Municipal Coepobations <&wkey;614 — 'Traffic Regulation — Automobiles.
    ,San Antonio ordinance of August 27, 1917, regulating and licensing automobiles used for hire, other than jitneys, is not unconstitutional.
    2. Municipal Coepobations &wkey;>112(3) — Subjects and Titles — Municipal Oedinances.
    The requirement that the title of an act shall embrace its subject does not apply to municipal ordinances.
    3. Municipal Coepobations &wkey;>614 — Traffic Regulation — Automobiles—Powers op City.
    A municipal corporation has the same power of regulation over automobiles used for hire on special trips as over regularly licensed jitneys operated over fixed routes.

      4. MUNICIPAL CORPORATIONS <&wkey;114 — Ordinances — Amendment.
    San Antonio ordinance of August 27, 1917, regulating automobiles used for hire, is not invalid as seeking to amend an ordinance by reference to its title.
    5. Municipal Corporations <&wkey;lll (1) — Oedi-kah ces — Enactment.
    Such ordinance is not invalid for failure to state, either in the preamble or body, the existence of an emergency.
    6. Municipal Ooeporations &wkey;>592(3) — Traffic Regulation — Automobiles.
    Such ordinance is not invalid as in conflict with the State Highway Department Act of 1917 (Acts 35th Leg. c. 190).
    7. Constitutional Law &wkey;>267 — Denial of Tbial by Jury — 1Traffic Regulation.
    .Such ordinance is not invalid as depriving any person of the right of trial by jury.
    8. Municipal Corporations <&wkey;592(l) — Traffic Regulation — Automobiles.
    Such ordinance is not in conflict with the Texas Employers’ Liability Act (Acts 35th Leg. c. 103).
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Injunction by Frank Craddock, Jr., against the City of San Antonio. From interlocutory judgment denying the writ, petitioner appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. R. J. McMillan, of San Antonio, for appellee.
   FLY, C. J.

This is an appeal from an interlocutory judgment denying an injunction sought to restrain the enforcement of a certain traffic ordinance enacted by the city of San Antonio. Appellant describes himself as being “engaged in the business of operating automobiles for hire, known as special car service” in the city of San Antonio, under an ordinance dated March 8, 1915; alleges that he had paid his license fee of $25, required by the ordinance, from June 1, 1917, to and including May 31, 1918; that on August 27, 1917, the board of commissioners of San Antonio had passed an ordinance or amendment by which it was “attempted to license automobiles for hire except such automobiles as may be used in local street transportation, as defined by an ordinance of the city approved March 8, 1,915; that said ordinance attempts to prohibit this plaintiff and those similarly situated from operating automobiles for local street transportation, or to operate said automobiles as special ear service within the limits of the city of San Antonio, Bexar county, Tex.” The court granted a temporary restraining order, but, on hearing the application on the date fixed for the same, denied the temporary injunction.

The ordinance is assailed by appellant on 19 grounds, the main ones being as- follows: In that it does not express the subjects contained in it in its title; in that it seeks to amend an ordinance by reference to its title; in that it fails to state an emergency in the preamble or body of the ordinance; in that it is in conflict with the State Highway Department Act passed by the Thirty-Fifth Legislature in 1917; in that it is obnoxious to the Fourteenth Amendment to the Constitution of the United States, in that the penalties and conditions required are different from the laws of the state; in that it is class legislation; “in that it deprives a party of the right of trial by jury” and because it was in conflict with the Texas Employers’ Liability Act. 1

The ordinance is not unconstitutional. The provision as to acts expressing the subject in the title does not apply; to municipal ordinances. Morris v. State, 62 Tex. 728; Dillon, Mun. Corp. §§ 72, 577; McQuillin, Mun. Corp. § 681.

The ordinance of which complaint is made was passed for the purpose of regulating the use of the streets of the city by corporations or individuals with public service automobiles, not operating under the jitney ordinance, which prescribes the streets on which they shall or shall not operate, and is not open to any of the objections urged against it. The city seeks to regulate this class of automobiles just as it regulates the class known as jitneys, and it has the same right over its streets in connection with public service cars that transport passengers when and where they may choose, as it has over those whose routes are prescribed and licenses and bonds provided for. If the city can require a jitney to take out a license and give an indemnity bond, why should it not require the same or similar things of the public service cars? They are fully as dangerous, use the streets for a similar business, and no reason can be offered for not regulating their use of the streets that has not been given many times in connection with jitneys. The jitney transports its passengers along certain named streets of the city at a charge of five cents a passenger. The jitney is required to give a bond in a certain sum for the protection of those who ride upon it. This court has held, and perhaps every court of the Union, considering the question, has held, that cities under their charters have absolute control of their streets so far as the regulation thereof is concerned in connection with the operation of a private business. The service car has no more rights and privileges upon the streets than have jitneys, the rights and privileges of each de-. pending upon grants made to them by the municipality in which they operate. A discussion of the rights and responsibilities of jitneys, therefore, meets the rights and responsibilities of service cars, and further consideration of the matter would not be productive of any good. Greene v. City of San Antonio, 178 S. W. 7; Peters v. City of San Antonio, 195 S. W. 989; Auto Trans. Co. v. City of Fort Worth, 182 S. W. 685; Le Blanc v. New Orleans, 138 La. 243, 70 South. 212; Id., 139 La. 113, 71 South. 248; Memphis v. State, 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1056; State v. Howell, 85 Wash. 294, 147 Pac. 1159, Ann. Cas. 1916A, 1231.

The traffic laws enacted by the Thirty-Fifth Legislature not only did not attempt to interfere with the powers belonging to cities as to the regulation of traffic upon their, streets, but it is specially provided in that law that it should not interfere with “the powers now or hereafter vested in local authorities to license and regulate the operation of vehicles offered to the public for hire.” Gen. Laws 1917, pp. 474-485, § 23, subd. 2. Also in the law creating, the “State Highway Department” it,is provided that the license and registration prescribed therein shall “not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation.” Gen. Laws 1917, § 25, p. 426. The city ordinance clearly is not in conflict with the two laws mentioned, or any other law of the state.

There is no merit or equity in the petition, and the court properly refused the writ of injunction.

The judgment is affirmed.
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      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HALL v. HALL et al.
    (No. 5746.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 28, 1917.)
    1. Appeal and Error &wkey;3384(3), 797(2) — Bond* — Jurisdiction—Time—Dismissal.
    Where an appeal bond does not distinctly name the ob’lig'ees, but does so by reasonable in-tendment, it at any rate gives the appellate court jurisdiction, and a motion to dismiss, not having- been filed in time, will be overruled.
    2. Tbial <&wkey;139(l), 140-(1) — Credibility and Weight op Testimony — Juey Questions.
    The credibility of a witness and the weight of his testimony is for the jury.
    3. Trusts <&wkey;44(3) — Parol Trusts — Sufficiency op Evidence.
    A parol trust can be grafted upon a deed by testimony of one witness.
    4. Trusts <&wkey;>371(8) — Establishment — Pleadings and Proof.
    Where plaintiff alleged that a grantor and her husband settled a divorce case and such grantor gave a deed to defendant with the understanding that on the death of the husband a one-half interest should be deeded to plaintiff’s father, the land granted being the homestead and community property, there was no variance as to the parties to the agreement, though the husband was not a party thereto; no claim of that kind being, made.
    5. Continuance <&wkey;26(ll) — Absent Witness-Discretion.
    Where a witness resides out of the county and a deposition could have been had, it was not an abuse of discretion to refuse a continuance to obtain his testimony.
    6. Trusts <&wkey;37íb-AcTioN por Land — Pleading — Recovery op Rent.
    In an action for a half interest in land held in trust, where the trustee pleaded limitations and adverse possession, plaintiff was entitled to rent on recovery.
    Appeal from District Oo-urt, Williamson County; C. A. Wilcox, Judge. •
    Suit by Ida Hall and others against Brack Hall. Judgment for plaintiffs, and defendant appeals.
    Reformed and affirmed.
    W. F. Robertson, of Dallas, and Nunn & Love, of Georgetown, for appellant. R. E. Bowers and Wilcox & Graves, all of Georgetown, for appellees.
   On Motion for Rehearing by Appellant.

JENKINS, J.

In order that our decision in this case and reasons therefor may be succinctly stated, we withdraw our former opinions herein upon original hearing and upon former motions for rehearing, and substitute this opinion in lieu thereof.

Findings of Fact.

Moses Hall and Rilla Hall were husband and wife. In 1899 there was a divorce suit pending in the district court of Williamson county between said parties. Appellant Brack Hall and Thos.- Hall were their only children. Plaintiff alleges that at the date mentioned the divorce suit was compromised and Moses Hall and Rilla Hall, for the consideration of $500 paid to Rilla Hall by Brack Hall, executed to Brack Hall a deed to, the land in controversy, upon the agreement between Brack Hall and Rilla Hall that at the death of Moses Hall he would convey a one-half interest in said land to Thos. Hall. The land in controversy was the homestead and community property of Moses and Rilla Hall. The evidence shows that Moses Hall was unwilling for Thos. Hall to inherit-from him any part of said land. Rilla Hall died January 11, 1908. Moses Hall lived with Brack Hall until his death, February 14, 1912. Thos. Hall died March 22, 1914, leaving surviving him his wife, Ida Hall, and his minor children, Irene Hall, Doloris Hall, Frankie Hall, and Thos. Hall, the appellees herein.

The case was submitted to the jury upon special issues as follows:

“(1) Was the deed introduced in evidence, dated December 26, 1898, and acknowledged January 3, 1899, executed by Rilla Hall upon the expressed condition and understanding that, at the death of Moses Hall, Brack Hall should convey to Thos. Hall an undivided one-half interest in said land?
“(2) If you have answered the preceding question in the affirmative, then, did the defendant, Brack Hall, accept said deed upon such condition?
“(3) At the time of, or immediately before, the execution of said deed by Rilla Hall, did the defendant, Brack Hall, promise and agree that upon the death of Moses Hall he would deed an undivided one-half interest in and to said land to Thos. Hall?
“(4) 'If you have answered the preceding question in the affirmative, then, was such promise and agreement of the defendant, Brack Hall, made for the purpose of inducing said Rilla Hall to sign said deed?
“(5) If you have answered the preceding question in the affirmative, then: (a) Did the said Brack Hall, at the time he made said promise and agreement, intend to carry out and fulfill the same? (b) Was the said Rilla Hall, by reason of said promise and agreement, induced to sign said deed?”

To each of the foregoing questions the jury answered, “Xes.” The evidence is sufficient to sustain the findings of the jury.

Opinion.

1. Appellees filed a motion to dismiss the appeal, for the reason that the bond d^es not name the obligees therein.

While the bond does not distinctly name the obligees, it does so by reasonable intendment. State v. Wood, 51 Ark. 205, 10 S. W. 624; Leach v. Flemming, 85 N. C. 447; 9 C. J. 12. At any rate, the bond is sufficient to confer jurisdiction on this court. Hugo v. Seffel, 92 Tex. 414, 49 S. W. 369; Williams v. Wiley, 96 Tex. 148, 71 S. W. 12; Oliver v. Cotton Co., 136 S. W. 508. Such being the ease, and the motion to dismiss not having been filed within the time required by the rules governing this court, said motion is overruled.

2. Appellant assigns as error the refusal of the court to peremptorily instruct the jury to- return a verdict in his favor, for the reason that the evidence did not clearly and satisfactorily establish a parol trust. This assignment is overruled for the reason that, if appellees’ witness Walter Rector told the truth, such trust was clearly established. There is no uncertainty in his testimony as to the subject-matter, the parties, the interest of Rilla Hall to be conveyed to Brack Hall, nor as to the conditions upon which the same was conveyed. The credibility of the witness and the weight to be given to his testimony was for the jury.

3. Appellant contends that a parol trust cannot be grafted upon a written instrument by the testimony of one witness. Such is not the law in this state. Pierce v. Fort, 60 Tex. 464; Whitfield v. Diffie, 105 S. W. 324; Keller v. Keller, 141 S. W. 583.

4. We do not think that there was a variance between the allegations and the proof as to who were the parties to said agreement. Moses Hall was a party to the divorce suit, but it is evident that it was not intended to allege that he w'as a party to the trust agreement. It is not claimed by appellees that there was any trust agreement as to the half of the land owned by him and by him conveyed to Brack Hall. No such variance was suggested upon the trial, either by objection to the evidence or by requested charge. Railway Co. v. Evans, 78 Tex. 370, 14 S. W. 798; Brown v. Sullivan, 71 Tex. 477, 10 S. W. 288; Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93; Parks v. Sullivan, 152 S. W. 705; Roberts v. Graham, 6 Wall. (73 U. S.) 578, 18 L. Ed. 791.

We do not think the court abused its discretion in refusing to postpone the case in order to obtain the testimony, of the witness Edrington. He did not reside in Williamson county, and appellant should have taken his deposition. Dowell v. Dergfield, 39 Tex. Civ. App. 635, 87 S. W. 1051.

We cannot say that the court abused its discretion in refusing to grant a new trial on account of the newly discovered testimony of the witness Miller.

The appellant having taken exclusive possession of the land, claiming the same adversely to appellees, and having pleaded not guilty and the statute of limitation, ap-pellees were entitled to recover rent. But we think that appellees, under the allegations of their petition, were not entitled to recover rent at the rate of $3 per acre per annum, for the period since the death of Moses Hall, but only $3 per acre for such entire period. Appellees recovered rents for $625.50, when, under their pleadings, they were entitled to recover only $208.50. The excess rents recovered are $417. Appellees having expressed a willingness to remit such excess, the judgment of the trial court is here so reformed as that appellees shall recover of appellant only the sum of $208.50 rents, with interest thereon at the rate of 6 per cent, per annum from the date of the judgment in the trial court.

As thus reformed, the judgment of the trial court is affirmed.

Reformed and affirm'ed.
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author: LEVY, J.

text:
    PRINCE v. COLVIN et al.
    (No. 1841.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 8, 1917.)
    1. Principal and Surety <&wkey;125 — Discharge of Indorsees — How to Fix Liability — “Insolvent.”
    Where action is not brought against indors-ers on a note secured by a vendor’s lien as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, at least in the term of court following the term in which due, and it is not shown that the land was of no value as security for the debt, the maker is not “insolvent” within article 1S43, authorizing suit in such case without proceeding against the maker, and the indorsers are discharged.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insolvent.]
    2. Pleading <&wkey;34(2) — General and Specific Allegations — Fixing Liability of Indorsers.
    A general allegation, not specially denied in the answer, of insolvency of the maker of the note, will not prevail over a specific, alleged, and proven fact of a lien on land not apparently of less value than the note, in an action against indorsers after expiration of second term of court.
    . Error from District Court, Smith County; R. M. Smith, Judge.
    Suit by L. R. Prince against W. B. Colvin and others. From a judgment for plaintiff against only a part of the defendants, lie brings error.
    Affirmed.
    W. E. Oolvin executed to S. B. Ray and J. P. Seale a series of three notes in part payment of 60.8 acres of land, the vendor’s lien being retained in the conveyance to secure the payment of the notes. Before maturity of the first note, J. P. Seale sold and transferred his interest in the said note, together with the vendor’s lien, to S. B. Ray; and before maturity of the said first note S. B. Ray sold and transferred it, together with the vendor’s lien, to J. A. Butler. J. A. Butler sold and transferred his interest in the said first note, together with the vendor’s lien, to the plaintiff in error. The plaintiff in error brought this suit against the maker of the note to recover the amount of the note and to foreclose the vendor’s lien on the land, and against Ray,, Seale, and Butler as indorsers of the note. The petition alleged that Seale, Ray, and Butler each for a valuable consideration transferred and indorsed the note, and that the maker of the note was insolvent at the time the note fell due and at the time this suit was brought. Other parties intervened in the suit as owners of the second and third notes, praying judgment thereon and for foreclosure of the vendor’s lien. The plaintiff’s note was due October 1, 1913, and more than two terms of court intervened before he filed suit in January, 1915. The defendants Colvin and Butler did not make answer. The defendants Ray and Seale pleaded that the-plaintiff had not instituted suit in time to fix liability as indorsers. The court in a trial before him entered judgment in favor of the plaintiff and the interveners against the maker of the notes and for foreclosure of the vendor’s lien on the land. The court also rendered judgment by default in favor of the plaintiff against Butler as an indorser on the note, but entered judgment in favor of the defendants Seale and Ray as indorsers of the first note. The plaintiff in the appeal seeks to have revision of the judgment releasing the defendants Seale and Ray as indorsers on the first note.
    Hanson & Butler, of Tyler, for plaintiff in error. Simpson, Lasseter & Gentry, of Tyler, for defendants in error.
   LEVY, J.

(after stating the facts as above).

The indorsement on the first note has the legal effect to render the defendants in error Seale and Ray each liable as indorsers. Behrens v. Kirkgard, 143 S. W. 698. But as the statute (article 579, Vernon’s Sayles’ St.) was not complied with by the plaintiff, the court correctly ruled, it is thought, that such indorsers were discharged. Eor the plaintiff in his petition alleged and the proof shows that he had a lien on 60.8 acres of land, given by the maker to secure the notej sued on; and there was no allegation nor proof that the land was of no value as se-¡ curity for the debt. And in these facts it may not be said that the maker of the note was insolvent within the meaning of the statute (article 1843, Vernon’s Sayles’ St.) so as to excuse or make unnecessary, in order to sue and hold only the indorsers, the bringing of the suit by the plaintiff at the first or second term of court after maturity of the note. Smith v. Ojerholm, 93 Tex. 35, 53 S. W. 341; Id., 51 S. W. 37, Id., 18 Tex. Civ. App. 1ll, 44 S. W. 41. And merely a general allegation, not specially denied in the answer, of insolvency of the maker of the note, would not prevail over the specific and affirmatively alleged and proven fact of a lien on 60.8 acres of land not apparently of less value than the note. For, as said by the Supreme Court in the Smith Case, supra:

“Hence we think it cannot be said that a principal is insolvent within the meaning of that statute when any part of the debt can be made by execution against him. * * * It cannot be said that a debtor is insolvent within the meaning of our law * * * when he holds property against which the creditor may enforce a lien for the payment of the debt.”

The judgment is affirmed.
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author: WIBLSON, C. J.

text:
    WESTCHESTER FIRE INS. CO. et al. v. McMINN.
    (No. 1813.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 14, 1917.
    On Motion of Plaintiffs in Error for Rehearing, Oct. 4, 1917.)
    1. Insurance <&wkey;335(2) — Fire Policies — Inventories — Substantial Compliance.
    Under a fire policy requiring insured to take a complete itemized inventory once each calendar year and within 12 months of the last preceding inventory, and providing that unless such inventory has been taken within 12 months prior to the date of the policy, and together with a set of books showing complete record of business since the taking of the inventory is on hand at the date of the policy, one should be taken within 30 days thereafter or the policy should be void, there was substantial compliance when the insured began business in November, 1913, having a complete inventory, the policy was dated December 2, 1914, and the insured kept the necessary records, testified that not over $25 worth of goods were sold before January 1, 1914, and had begun to take a new inventory a few days before December 25, 1914, which was not completed when the fire occurred in January, 1915.
    2. Insurance <&wkey;668(4) — Fire Policy — Stipulations — Compliance—Question pots Jury.
    Question whether insured complied with a stipulation of the policy requiring him to keep certain books clearly and plainly presenting a record of the business, held for the jury.
    Error from District Court, Frankiin County; J. A. Ward, Judge.
    Action by M. W. McMinn against the West-chester Fire Insurance Company and others. Judgment for plaintiff, and defendants bring error. Affirmed. Oh motion for rehearing.
    Motion overruled.
    The suit was by defendant in error against plaintiff in error the Westchester Fire Insur-anee Company of New York and tlie Delaware Underwriters of the Westchester Insurance Company of New York. Defendant in error sought a recovery on three policies insuring him, for a period of one year from their respective dates against loss by fire of a stock of general merchandise and certain office furniture and fixtures situated in Mt. Yernon. One of the policies was for $2,800 on the merchandise, and $200 on the furniture and fixtures. It was issuéd December 2, 1914. Both of the other policies were on the merchandise. One of them, for $500, was issued January 4, 1915. The other, for $1,500, was issued January 8, 1915. The stock of merchandise and furniture and fixtures were destroyed by fire January 17,, 1915i The appeal is from a judgment in defendant in error’s favor against plaintiffs in error for $5,000, the amount of the policies.
    Thompson, Knight, Baker & Harris, of Dallas, for plaintiffs in error. R. T. Wilkinson, of Mt. Vernon, for' defendant in error.
   WIBLSON, C. J.

(after stating the facts as above). The policy for $8,000 contained a stipulation as follows:

“The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory if such has been taken. Unless such an inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days alter the date of this policy, or in each and either case this entire policy shall be null and void.”

Plaintiff in error insists that it conclusively appeared from the testimony that an» inventory of the stock was not taken within 12 months prior to the date of said $3,000 policy, nor within 30 days after its date. It insists it therefore appeared as a matter of law that it was not liable on that policy, and that the court erred when he refused to so instruct the jury. It appeared from the testimony that defendant in error commenced business November 23, 1913, with a stock of goods he purchased a short time before that date, worth about $9,000 according to an invoice or inventory made of same, then verified as correct. He testified that he had engaged in the mercantile business before he so commenced business, and always before had taken an inveintory of his stock on January 1st; that he did,not take such an inventory January 1, 1914, because he had not sold exceeding $25 worth of goods to that date, so that an inventory taken then would have been, substantially, the same as the one made at the time he commenced business. He further testified that he commenced taking an inventory before December 25, 1914 — “a few days” before that date, his clerk testified. The taking of the inventory so commenced was incomplete when the fire occurred January 17, 1915. So far as taken and preserved the inventory showed goods worth $9,667.67 then on hand, which defendant in error testified represented about five-sixths of the stock. Defendant in error further testified that he preserved and then had invoices made by the sellers thereof, covering all goods purchased by him after he commenced business November 23, 1913, to the date of the fire, and that the goods so purchased by him, as they were received and placed with his stock, were checked by the invoices.

It is clear that it appeared from the testimony recited that the stipulation in the policy invoked by plaintiff in error was not literally complied with, in that an inventory of the stock of goods not having been taken within 12 months before the policy was issued, one was not taken within 30 days after it was issued. But whether it was a sufficient basis for a finding that the stipulation had been substantially complied with is another question. We think it was. The inventory or invoice made when defendant in error purchased the stock of goods in November, 1913, was preserved by him and tendered to plaintiff in error after the fire occurred. If the different articles, and the value attached thereto, which went to make up the- stock on hand at a given time within 12 months before the date of the issuance of the policy might with reasonable certainty have been ascertained from that inventory (Western Assur. Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661), then it contained the information plaintiff in error contracted for, and, we think, should be held to have been a sufficient compliance with the stipulation. If the' testimony of defendant in error that not exceeding $25 worth of stock covered by that inventory was sold before January 1, 1914, was true, then certainly the inventory showed, substantially, all the articles in the stock on January 1, 1914. If it did, then we see no reason why the production of that inventory was not such a compliance with the stipulation as to relieve defendant in error of the forfeiture claimed because he failed to take an inventory of his stock within 30 days after the policy was issued. By the terms of the stipulation, if he had taken an inventory within the 12 months preceding the issuance of the policy, he was not bound to take one within 30 days after it was issued. Having produced an inventory which furnished, substantially, all the information one taken within 12 months before the date of the issuance of the policy would have contained, we think the one furnished should be held to have been a sufficient compliance with his undertaking, notwithstanding it was not taken within the limit of the time specified. .Ruffner v. Insurance Co., 59 W. Va. 432, 53 S. E. 943, 115 Am. St. Rep. 924, 8 Ann. Cas. 866; Western Assur. Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661; Dorroh v. Insurance Co., 104 Tex. 199, 135 S. W. 1165.. In the Kemendo Case the Supreme Court said that an issue as to whether the insured has substantially complied with the stipulation in question so as to entitle him to demand the indemnity contracted for arises when he furnishes “anything from which the information contracted for could be with reasonable certainty ascertained.”

Each of the policies contained a stipulation as follows:

“The assured will make and prepare, in the regular course of business, from and after the date of this policy, a set of books, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and on a credit, or this entire policy 'shall be null and void. The term ‘complete record of business transacted,’ as above used, is meant to include in said set of books a complete record of all the property which shall go into the premises and be added to the stock, and of all property taken from the stock, whether by the assured or by others, even though not technically purchased or technically sales.”

It is insisted it conclusively appeared from the testimony that defendant in error did not comply with the requirements of the stipulation, and that the trial court therefore erred when he refused to instruct the jury to find in plaintiff in error’s favor as to each of the three policies. It was shown that ap-pellee kept a book showing all purchases of goods made by him after he commenced business in November, 1913. It thus appeared that he had complied with the stipulation in so far as it required him to keep books showing all the property added to his stock. It was shown that he kept a “credit sales book,” which covered all sales made by him on credit, and a “cash sales book,” in which he entered all sums received by him on account of sale of goods. It thus appeared, it seems to us, that defendant in error had complied with the stipulation in so far as it required him to keep books showing all property taken from his stock. It is insisted, however, that it appeared from the testimony that the “cash sales book” was not in fact what it purported to be; that it did not show only cash received on account of sales of merchandise as it purported to, but also showed as cash received on account of such sales sums received on account of sales made on credit, which it did not purport to do. It appeared from the testimony that all sums received by defendant in error on account of goods sold for cash, and all sums received by him on account of goods sold on a credit, as they were received, were placed in his cash drawer. At the end of each day’s business the total of the sums received that day on those accounts were entered in the “cash sales book.” It seems to us if it was important to plaintiff in error to know what part of the entries in the book represented sales for cash and what next represented sales on credit, it easily could have determined the matter by reference to the “credit sales book.” That doubtless would have shown the sums received by defendant in error each day on account of sales on credit, and those sums subtracted from the sums entered in the “cash sales book” on those days would have shown the parts thereof representing sales for cash. After stating that:

“The assured in the case at bar kept a record of his cash sales in this manner: Each morning he left a small amount of change in the cash drawer. All money taken in from cash sales and all payments made on credit sales during the day were also placed in this drawer, and when he needed money he took it out of this same drawer. "When goods were taken from the store for the use of himself and family he put a slip of paper in the drawer for the amount of goods used”

—plaintiff in error argues as follows:

“We submit that the testimony of the assured to the effect that at the end of each day he would make a record of cash in the drawer less the amount of the change put there in the morning as the amount of cash sales shows that a complete record of the cash sales and goods taken by the assured was not kept. To illustrate, if the amount of money in the cash drawer at night was $10, that amourit would be entered as cash sales, after deducting the amount of change left there in the morning. If during the day he had paid his help $5 in cash or had taken $5 in cash for his own use, the amount of cash sales entered in his book would be $5 short.”

It would seem from the illustration in the quotation last made from plaintiff in error’s brief, that its contention may be based on a misapprehension of the record. The testimony was undisputed that when defendant in error took money from the drawer for any purpose he put therein a slip showing the amount taken, which was counted as cash at the end of the day’s business. It is apparent, therefore, that the entries made in the cash sales book did not incorrectly represent the cash received by defendant in error.

Being of the opinion it appeared from the testimony ás a matter of law that defendant in error had sufficiently complied with the stipulation in question, it follows, of course, that we think the trial court did not err when he refused to peremptorily instruct the jury to find in plaintiff in error’s favor, nor when he gave to- the jury the special charge numbered 3 requested by defendant in error.

We think the issue made by the testimony as to whether the policies for $500 and $1,500, respectively, were canceled by plaintiff in error, defendant in error consenting, before the fire occurred or not, was sufficiently submitted to the jury in the court’s main charge, and that it was not error which should cause a reversal of the judgment to refuse to give the special charge numbered 6 on that issue requested by plaintiff in error.

The judgment is affirmed.

On Motion of Plaintiffs in Error for a Rehearing.

It is asserted in the motion that the statement in the part of the opinion of this court referring to books kept by defendant in error that the testimony showed that when he took money from his cash drawer “for any purpose” he put therein a slip showing the amount taken, which was counted as cash at the end of the day’s business, was unauthorized by the record. The statement was based on testimony of defendant in error as follows, which we think, fairly construed, authorized it:

“Miss Willie Lou Williams is the only one I had helping me in the store, and she did not work near all the time. I paid her $20 a month. The only record I, kept during that time of the groceries used by me for family use was I would treat it as a cash article and gire the drawer credit for it. When I would take any goods out of the stock for my family use I would give the cash drawer credit for it; treat it as a cash article, and put a slip of paper in the drawer of the amount of the goods I had used, and then treat it as a cash article that night. The items I have in the cash book for cash sales include the goods I used for family purposes. There is nothing on my books anywhere showing any goods that went to myself for my own use. The young lady who worked for me always paid the cash when she got anything. I probably paid her sometimes by check and sometimes cash. When I paid her money I took it out of the sales for the day. When I took money out of the cash drawer I always counted it for cash. * ⅜ * In regard to my personal account, if I bought a sack of flour for my personal use I gave the drawer credit for it and counted it up on the day’s sales. I did not have a charge account of my own; it was all in my cash sales. My expense account was paid out of the money outside of the day’s sales; it was not paid out of the drawer. Any expense account I had was paid outside of the money that was in the drawer — the money that was counted the day before, in other words.”

We think the appeal has been properly disposed of, and therefore overrule the motion.
      &s>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUEE, C. J.

text:
    MATHESON v. C-B LIVE STOCK CO. et al.
    (No. 1202.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 24, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Appeal and Error <©=>733 — Assignments op Error— Sufficiency.
    tinder Vernon’s Sayles’ Ann, Civ. St. 1914, art. 1612, requiring appellant or plaintiff in error to file assignments of error distinctly specifying the grounds on which he relies, provided that, where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error, and provided, further, that all errors not distinctly specified are waived, but that an assignment shall be sufficient which directs the attention of the court to the error complained of, an assignment that the court erred in rendering judgment, in that there is no evidence to support the judgment, is too general, as it does not point out in what particular the evidence does not support the judgment.
    2. Appeal and Error <©=>742(6) — Assignments op Error — Propositions.
    In a suit for specific performance, defended on the ground that the chief consideration for the construction was omitted by mutual mistake, propositions asserting in effect that there was no plea of mutual mistake, and that the finding and judgment were without pleadings to support them, were not germane to an assignment that the court erred in rendering judgment, in that there was no evidence to support it.
    3. Appeal and Error <⅞=719(8) — Assignments of Error — Necessity—Fundamental Error.
    If the judgment is not supported by any pleading, its rendition is fundamental error, and it should be set aside on appeal, whether the error is assigned or not.
    4. Appeal and Error <©=>301 — Pleading <©=> 419 — Waiver of Objections — Variance— Motion for New Trial.
    In a suit for specific performance, in which defendant pleaded mutual mistake, an order appeared in the record sustaining' exceptions to the answer setting up mutual mistake, but not purporting to eliminate the particular paragraph setting up mutual mistake, and it was not otherwise eliminated. More than a year thereafter the case was tried on such answer, without anv exception or objection to evidence on the ground that there was no plea of mutual mistake, or any exception or obiection to the charge in submitting that issue to the jury because there was no such plea, and the motion for a new trial, instead of requesting that the verdict be set aside because there was no such plea, asserted error in overruling the exceptions, which the order showed to have been sustained. Held, that the order sustaining the exceptions was waived, and plaintiff was estopped from asserting that there was no pleading setting up the issue.
    5. Appeal and Error <©=>916(1) — Presumptions — Submission to Jury.
    If the exception was sustained, as indicated by such order, it might be presumed from the record that the trial judge subsequently changed his mind, and submitted the issue of mutual mistake to the jury as one properly pleaded.
    Error from District Court, Crosby Comity; W. R. Spencer, Judge.
    Action by H. D. Matheson against the C-B Live Stock Company and others. Judgment for defendants, and plaintiff brings, error.
    Affirmed.
    Bean & Klett, of Lubbock, for plaintiff in error. J. W. Burton, of Crosbyton, for defendants in error.
   HUEE, C. J.

The plaintiff in error, Mathe-son, instituted this suit against defendants for specific performance of a contract of sale to a certain half block in the town of Crosbyton, executed by plaintiff and defendant C-B Live Stock Company. The other defendant, Crosbyton & South Plains Town-site Company, was made party upon the grounds that it was asserting some sort of claim to the property. For terms and provisions of the contract reference is here made to the report of this case upon a former appeal. 176 S. W. 734. After reversal of 'this case the defendants' amended' their, answer, and alleged that the $50 consideration recited in the contract was not the sole consideration thereof, but that the chief consideration was that the plaintiff in error should .build a dwelling on the lot, which provision was omitted from the contract by the mutual mistake of the parties thereto, and that the plaintiff obtained the original contract with such provision omitted as to the building, by fraud, etc. By supplemental petition plaintiff in error filed a number of exceptions, and also denied that he agreed to erect such building on the lot as any part of the contract.

The first assignment is:

“The trial court erred in rendering judgment against the plaintiff, in that there is no evidence to support said'judgment.”

The defendant in error objects to the assignment, because it is too general. This objection should not be disregarded by us. It does not point out in what particular the evidence does not support the judgment. The statement of facts in the record consists of some 35 pages. The error in rendering judgment must be surmised by us, aside from the assignment. Article 1612, Vernon’s Sayles’ Civil Statutes; Railway Co. v. Menter, 61 Tex. 122; Ackerman v. Huff, 71 Tex. 317, 9 S. W. 236; Koepsel v. Allen, 68 Tex. 446, 4 S. W. 856; Modern Woodmen, etc., v. Yanowsky, 187 S. W. 728.

This assignment is not followed by propositions pointing out the particular in which the evidence fails to support the judgment, but the five propositions thereunder each in effect assert that there was no plea of mutual mistake in omitting from the contract the agreement by plaintiff to build a house upon the lot and that the finding by the jury of mutual mistake was without pleadings to support it. The jury found against defendant on the issue of fraud, and therefore upon the finding of the jury and the pleadings the trial court was not warranted in rendering the judgment. These several propositions are not germane to the assignment and the proposition involved in the assignment cannot, therefore, be properly considered by us. However, from our reading of the facts we are impressed that the evidence authorizes the inference that plaintiff and defendant agreed to the stipulation as alleged, and that the scrivener drawing the contract was instructed by the parties to place that provision of the contract in the instrument, but that owing to the fact that a great number of prospectors on that day were looking at the lands of the Live Stock Company to purchase, and did purchase several tracts, for which contracts were then being drawn, and that this contract was different from the others, as plaintiff wanted' the particular contract for the block in controversy in addition to the regular contract, in the hurry of preparing and signing this and other contracts the omission was occasioned and overlooked by the parties thereto.

The plaintiff, under this assignment, urges five propositions which present in effect'that there was no plea of mutual mistake, and therefore the judgment was improperly rendered. These propositions, it is useless to say, are not relevant or germane to the assignment and can only be considered on the theory that the error is fundamental. It is fundamental if there is no pleading to support the judgment, and its rendition would be erroneous, and should be set aside on appeal, whether assigned or not.

In this record, however, there is a plea of mutual mistake in the answer. It is the only answer in the record, and the judgment of the court recites that the pleadings were heard and read. The trial court in his main charge defined mutual mistake, and submitted a special issue to the jury as to whether there was such an agreement, and whether by mutual mistake of the parties to the contract it was omitted • from the contract. The jury found that there was such agreement as alleged, and that by mutual mistake of the parties it was omitted from the contract. Plaintiff in error made no exception or objection to th'e evidence bearing on the question of mutual mistake on the ground that there was no such plea. Neither was there any exception or objection to the charge in submitting that issue to the jury, and no instruction was requested by plaintiff withdrawing such issue, because there was no such plea. The motion for new trial did not request that the verdict be set aside because there was no such plea. However, piaintiff in error contends in this case that this plea was stricken out upon his exception at a former term of the court. There is an order in the record which appears as of date November 17, 1915, to the effect that exceptions Nos. 15 and 17 in plaintiff’s supplemental petition are sustained. These exceptions were to the answer setting up mutual mistake, and objected thereto because the facts constituting such were not set out in the answer. The order sustaining exceptions does not purport to eliminate that particular paragraph of the answer setting up mutual mistake. Neither was it eliminated by amendment or otherwise, other than the bare recital in the order that exceptions Nos. 15 and 17 are sustained. The ease was tried in the district court on November 16, 1916, a year after the order above mentioned was entered. Erom the entire record it shows that the case was tried on the answer presenting the issue of mutual mistake, without an objection or exception anywhere shown in the record to have been made by the plaintiff. In fact, in the motion for new trial two of the grounds thereof are that the court erred in overruling exceptions Nos. 15 and 17. If there can be a waiver' of such an order sustaining the exception, the plaintiff in error did so in this case. He never demanded that the answer be withdrawn or not read to the jury, or that an amendment eliminating such issue be filed. But he apparently accepted this answer as setting up the issue. He made no objections to the evidence introduced under it; neither did he object or except to the court’s submitting the issue to the jury. It occurs to us that the plaintiff, under such facts, ought to be estopped at this late day from asserting there was no pleading setting up the issue.

If the court sustained the exception to the particular paragraph as here presented, we may, we think, presume from the record that the trial judge subsequently changed his mind, and submitted the issue of mutual mistake to the jury as one properly pleaded. Kneale & Watkins v. Thornton, 88 S. W. 298; Gay v. Pemberton, 44 S. W. 400; Harle v. Railway Co., 39 Tex. Civ. App. 413, 86 S. W. 1048; Ralls v. Parish, 151 S. W. 1089. To now permit the plaintiff to urge that there was no pleading, when he and all the i>arties in the court below treated the case upon the theory that the pleadings presented the issue of mutual mistake, and induced the judge to submit it to the jury, would, in our judgment, be an unwarranted enforcement of a technicality, which, in our opinion, this record shows did not deprive the plaintiff of any substantial right.

The second Assignment is that there was error in rendering judgment because the evidence did not authorize the finding that the Live Stock Company did not waive the provision to build the house. The evidence, we think, is ample to authorize the finding, and will support the finding that such provision was not waived.

Judgment affirmed.
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author: MOUBSUND, J.

text:
    WILLIAMSON, Mayor, et al. v. CAYO et al.
    (No. 5963.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 14, 1917.)
    1. Appeal and Error @=59|54(1) — Injunction @=5143(1) — Notice oe Application — Discretion.
    Under the statute, the matter of notice to defendants of plaintiff's application for injunction is left within the discretion of the trial judge, and the Court of Appeals is not authorized to reverse his injunction order on the ground that notice was not given.
    2. Municipal Corporations ⅞=957(3) — Extent op Taxation — Dealing with Funds —Constitution.
    If Const, art. 11, § 5, constitutes a city’s grant of power to levy taxes, it can levy them to the extent of 2½ per cent, of the taxable property of the city, and deal with its funds as provided by its charter.
    3. Municipal Corporations @=5957(3)- — Extent op Taxation — Constitution.
    The provisions of Const, art. 8, § 9, relating to levy of city taxes for any one year is not applicable to cities of 5,000 inhabitants operating under special charter.
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Suit by E. P. Cayo and others against O. E. Williamson, Mayor, and others. From judgment for plaintiffs, defendants appeal.
    Judgment reversed, and cause remanded.
    Stroud & Gayle and Beasley & Beasley, all of Beeville, for appellants. Dougherty & Dougherty and G. C. Bobinson, all of Bee-ville, for appellees.
   MOUBSUND, J.

E. P. Cayo, C. M. Brown, and A. F. Castel, tax-paying citizens of the city of Beeville, filed suit against the city and its officials seeking to perpetually restrain them from further proceeding with the construction of a certain power house and machinery and boiler foundation to cost about $3,000; the city “having in view the erection, at a later date, of an electric light plant.” Plaintiffs alleged that no contract for the erection of such improvements had ever been entered into by the city through its city commission, so far as plaintiffs are advised, but at a special meeting of the city commission held July 14, 1917, defendant Williamson, mayor, was authorized to make arrangements for the construction of said building to serve for the purpose of an electric light building, and said Williamson was authorized to enter into any contract for the construction of said building as he might deem advisable; that said Williamson, mayor, has entered into a contract with some one, to these plaintiffs unknown, to construct such building and foundations, and while said Williamson was not, by the terms of the resolution passed, authorized to contract for machinery and boiler foundation for said power house that nevertheless plaintiffs are advised and charge the fact to be, that he has entered into a contract therefor, and that the defendants will ratify or expect to ratify the same; that if said Williamson has not entered into a contract for the construction of such power house and foundations, that under his supervision and direction, and at the cost and expense and for the account- of the city of Beeville said improvements are being constructed; that there are no funds belonging to the public improvement fund of the city, and that said fund is in fact overdrawn to the extent of about $350; that the defendants have entered into a contract, express or implied, with some one to erect said building and foundations, and agreed to pay him a certain sum therefor, either when the work is completed or from time to time as the work may be done and, whichever be true, that plaintiffs say that such arrangement constitutes a debt against the city of Beeville and that no provision has been made, or was made to satisfy said debt, by creating a sinking fund or levying a tax to satisfy said obligation at the time it was incurred;that said improvements are permanent in their nature and are not such as may be paid for out of the current expense fund, or any other fund, save the public improvement fund, and warrants will be issued in payment of such obligation, or money belonging to the sewer fund, or to the street fund, or to the general fund will be appropriated -for the purpose of paying such obligation; that if the building is not being constructed under a contract, as stated, then it is being constructed through day labor, and that if this course is pursued, it is necessarily evasive, and with the effort to impose an obligation upon the city of Beeville by way of debt, when no provision for the same has been made, and to divert funds appropriated for other purposes, to wit, sewer, street, and general current expense purposes to public improvements, thus supplementing and increasing the public improvement fund beyond the limit warranted by law; that if defendants are not endeavoring to create a- debt by the issuance of warrants for the construction'of said'building and foundations, they will, by transfer from other funds, which are in their hands as a trust for the carrying out of the express purposes for which they were levied, collected, and appropriated, to wit, the general expense, sewer, and street funds, endeavor to supplement said public improvement fund and pay for the erection of said building and foundations; that the real purpose of defendants is to erect an electric light plant for the city of Beeville, and said city is without adequate money or debt creating ability to fully construct the same, and that an essential part of such electric light plant is a power house and foundations upon which to place the machinery; that defendants have already begun the construction of said power house and foundations, and have entered into contracts with a view to the erection, of said electric light plant, and intend to supplement the amount that they may lawfully appropriate or expend with funds appropriated to other trust purposes, as before stated.

Plaintiffs’ prayer was for an injunction restraining defendants from carrying the contracts for the construction of the power house and foundations into effect, and from incurring obligations for material or labor in the construction thereof, and from issuing any warrants in payment of any obligation incurred thereby, and from .building with any funds, except unappropriated public improvement funds, said power house and foundations, and from diverting and appropriating any other fund than the unappropriated public improvemfent fund to the construction of said power house and foundations. They also prayed for the cancellation of any obligation that may have been issued in payment of any work done on said house or foundation, or to secure money therefor. Thety prayed, for a temporary injunction, and such prayer was granted on July 16, 1917. On July 20, 1917, the judge, on his own motion, entered an order modifying the injunction, which reads as follows: a debt under the Constitution and laws of the state.”

“The defendants are hereby permitted and authorized to expend any sums that they may have on hand, in cash, and not otherwise appropriated, and actually belonging to what is known as the sewer fund and not derived from taxation, in- the: construction of said power house and foundation, or for material or labor therefor, and they are also authorized to expend any additional sums belonging to said sewer fund not derived from taxation, in the construction of such improvements, that they may collect during the current year, and to issue any obligation payable during the current year against the said sewer fund or to be collected during the current year that will not constitute

Appellants contend, that under the circumstances of this case it was error upon the part of the court to grant the injunction without giving appellee an opportunity to be heard. Under the statute the matter of notice is, left within the discretion of the judge, and we would not be authorized to reverse the order on the ground that notice was not given. Houk v. Robinson, 160 S. W. 120. The injunction, after the modifying order was made, did not prohibit the appellants from constructing the improvements, but limits expenditures to money in the sewer fund, or.which may be paid into the same during the current year.

Appellees contend that no expenditures for public improvements could legally be made out of money raised by ad valorem tax for either of the purposes, other than public improvements, designated in section 9, article 8 of the Constitution, and that the order of the judge as it stand's after being modified should be upheld as to money so raised, although it might be proper to modify the same as to money paid into the funds not raised by ad valorem tax. They cite in, support of their position the case of Carroll v. Williams, 182 S. W. 29, and the notation made by the Supreme Court in granting a writ of error in said ease. Their contention is based upon the theory that the funds, the use of which are sought to be enjoined, were collected under the authority of section 9, article 8 of the Constitution. We find no allegation in the petition concerning the incorporation of the city which shows that its taxes would be governed by that provision of the Constitution. For aught that appears in the petition, section 5 of article 11 of the Constitution may constitute its grant of power, in which event it could levy raxes to the extent of 2⅛ per cent, of the taxable property of the city, and deal with its funds as provided by its charter. That the provisions of section 9, article 8, are not applicable to cities of 5,000 inhabitants, operating under special charter, is well sustained by, the authorities. Lufkin v. City of Galveston, 63 Tex. 437; Muller v. City of Denison, 1 Tex. Civ. App. 293, 21 S. W. 392. In orderj for appellees to be granted an injunction, they should, by their petition, show themselves to be clearly entitled thereto. The1 only allegation with respect to incorporation of the city is that it was incorporated under the commission form of government.

The petition does not show appellees to be entitled to an injunction restraining the use of money in other funds than the public improvements fund. The judgment is therefore reversed, and the cause remanded.
      <Sz=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    LOTT v. BALLEW.
    (No. 1232.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1917.)
    1. Landlord and Tenant <⅜=>331(2) — Breach oe Lease Contract — Evidence—Measure.
    Where defendant counterclaimed for plaintiff’s breach of contract to demise to him agricultural land, and. it did not appear when the crop should be divided, the value of the crop in the field which it was claimed would have been raised does not establish defendant’s measure of damages, for he might have been required to gather the crop before division should be made, in which case necessary expenses for labor in addition to that of himself and his family should be deducted in computing his profits.
    2. Landlord and Tenant <§=»331(2) — Breach oe Contract to Lease — Evidence — Measure.
    Where a landowner breached his contract to demise certain agricultural land, thus depriving his tenant of employment, the amount earned by the tenant in. other employments, or the amount he could have earned by leasing other equally available land, should be deducted from his recovery.
    3. Landlord and Tenant ⅞=>331(6)' — Lease Contract — Actions for Breach — Evidence.
    Where defendant counterclaimed for plaintiff’s breach of contract to lease to him agricultural land, evidence as to controversies between plaintiff and other tenants concerning the leasing of his land is inadmissible.
    4. Trial ®=>25(9) — Argument — Right to Open and Close.
    Where defendant who counterclaimed did not admit all of the items of plaintiff’s claim, there was no such admission as required by rule 31 (142 S. W. xx) for the district and county courts so as to entitle defendant to open and close the argument; this being true though but one affirmative fact important to plaintiff’s recovery was denied.
    Appeal from Donley County Court; J. H. O’Neal, Judge.
    Action by H. Lott against F. L. Ballew, who counterclaimed. From a judgment fox-defendant, plaintiff appeals.
    Reversed.
    Taylor, Allen & Taylor, of Henrietta, and E. A. Simpson, of Clarendon, for appellant. A. T. Cole, of Clarendon, for appellee. •
   HUFF, C. J.

The appellant, Lott, sued the appellee, Ballew, on a note for $649, with a credit thereon of $40, bearing interest at the rate of 10 per cent, per annum from date, together with 10 per cent, as attorney’s fees in case of nonpayment at maturity, or if placed in the hands of an attorney for collection, or if sued upon, and to foreclose a mortgage lien on certain mules, wagons, and crops given to secure the note. He also sued to recover rent from 100 acres- of land under a rent contract, by the terms of which appellee was to pay one-fourth of all lint and seed cotton and one-third of all grain crops, alleging that ap-pellee was due appellant the value of the one-fourth of the lint and seed cotton and one-third of all grain grown on said tract of land. It is alleged that there were five bales of cotton grown thereon, setting out the weights, and that appellee was due appellant $100.12 for the one-fourth of the cotton and $55 for the feedstuff grown thereon. The ap-pellee answered by general denial, and specially by way of cross-petition that the 100 acres which he did rent was sod land, and that under the original contract’ appellant agreed to rent to appellee, in.addition thereto, 50 acres of old ground for the purpose of growing cotton, which was to be planted thereon, and that plaintiff failed to furnish such land, but that he permitted other tenants to crop the same, and that thereby ap-pellee lost wholly the proceeds and profits which would have accrued to.him, by virtue of having said 50 acres of cotton grown for the year 1916; that his three-fourths in said cotton would have been $16 per acre, with the labor power and tools, which he would have provided, and which he had provided, if it had been grown to maturity without further outlay or expense to him, but that appellant refused to deliver the 50 acres of land, or any portion thereof, to his damage, $800.00.

The first assignment is that the court erred in refusing to sustain appellant’s exception to the cross-action because it did not state a cause of action, and did not allege a legal measure of damages which resulted from the failure to furnish the 50 acres of land.

The second and third assignments of error relate to the testimony of Sam Byers and W. M. Holland, both to the effect that cotton standing ready to gather would have been worth from $20 to $25 per acre because the evidence was irrelevant and immaterial and tended to prove an improper measure of damages. The terms of the rental contract are not definitely alleged or proved; that is, whether the tenant was to furnish the teams, tools, and labor or whether the landlord should furnish part. It is apparently treated, however, by the parties that this obligation was resting on the tenant. Neither is it alleged and proven how the crop should be divided under the contract, whether standing in the field, at the gin, pen, or after sale. It appears to be treated as if the tenant should cultivate, gather, and thereafter divide. If there was no agreement as to these matters, it was a simple contract to rent for the year 50 acres of land; then perhaps the value of its use for that term would be the measure of damages for its breach; but the allegation and the evidence is that the defendant was to pay for the use of the land one-fourth of the cotton and one-third of the grain. However the condition in which this record leaves the case, it is rendered difficult for us to treat the objections as made. If the tenant was to furnish teams, tools, and labor and was to gather and gin the cotton and to gather and house the grain, then the value of the cotton per acre, while standing in the field was not the proper measure of damages.^ It might be no error to permit evidence of its value while standing in the field as one of the factors to he considered in obtaining the probable value of the crops to the tenant when gathered and divided. “The rights' of the parties are founded on the contract, and the wrong done is compensated for when the injured party is allowed the full value which ha would have produced, less the expense of which he has been relieved.” Crews v. Cortez, 102 Tex. 1ll, 113 S. W. 523, 88 L. R. A. (N. S.) 713. If in gathering the cotton the tenant would-have been required to employ labor other than his own or that of his family, this amount must be deducted from the price of the cotton. “The profit to be realized out of the crops over and above the value' of the labor and other outlays expended in making them is therefore not all that is contemplated in such contracts. Employment for the tenant or cropper when so secured is valuable, whether a profit over and above such labor and other expenses is realized or not, and this may be true as to the labor of members of his family which he can control and utilize without extra expense.” Id. We have gone to the' statement of facts in this case and ascertained therefrom that the above witnesses testifying evidently arrived at the value of the cotton per acre standing in the field from their judgment as to what the land should have produced that year and what its market value when sold in the bale would have been. In arriving at this they, of course, made no allowance for what it would have cost the tenant to gather this cotton over and above his own labor and that of his, family. The case appears to have been tried upon the theory- of the value of the cotton on the stalk ungathered, and the witnesses were permitted to state this without showing the cost of labor or whether there was any necessity for extra labor.’ The record in this case shows there was no other evidence warranting the recovery for the alleged breach. The assignments and statements in this case are such that it is difiicult to determine whether we can properly reverse the case on the assignments as made. However, it is obvious the case was tried on a wrong theory, one calculated to injure the rights of the appellant. There was error in the admission of this evidence, as this record shows it. It seems to us the proof should first have shown the probable yield and the value thereof after it was gathered ready for the market. Now there is evidence in the record showing that appellee obtained other labor, which he did because of his failure to obtain this 50 acres of land. The sum of this should have been deducted from the. possible profits. So he may have picked other cotton for which he was paid by reason of his enforced idleness. If he got pay for his labor or could have secured employment and other land as good and on the same terms by the use of reasonable diligence, then this too should have been deducted." The case evidently was not considered upon this theory nor so briefed, yet we do not feel warranted in ignoring the now established rule in this state. Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753; Crews v. Cortez, 102 Tex. 1ll, 113 S. W. 523, 88 L. R. A. (N. S.) 713; Smith v. Milam, 143 S. W. 293. We also refer to the case of Bost v. McCrea, 172 S. W. 561, where this court approved a charge of the trial court presenting the rule on a casé somewhat like this.

The fourth, fifth, and sixth assignments present error as to the testimony of three witnesses, to the effect that other tenants of Lott in the neighborhood of the land rented and occupied by appellee were unable to get their quota of land, and that there was a great deal of squabbling between Lott and the other tenants; that there was a general report that Lott was short of old Jand, and there were several complaints from the men that they did not get the land they had rented; that Lott had had a good deal of trouble down where his land was situated and several controversies, and that he would continue to have them. Clearly no part of this evidence was admissible. Trouble with his other tenants and controversies with them could not have thrown any light on this case, and could have had no other effect than a mischievous one and to. create a prejudice against Lott. In fact, Lott admitted that he agreed to give Mr. Ballew 50 acres of old land, but later he found another man, a Mr. Morgan, was holding and claiming the land and that he did not wish' to surrender it. He admitted that he was short of this 50 acres. The only issue, therefore, presented by him was whether, when this state of facts was ascertained, he and Ballew entered into a new contract of rental for the 100 acres of land alone without the 50 acres. Lott claimed there was a change in the contract in this particular; Ballew, on the other hand, claimed there was none. All the squabbles or troubles between Lott and his other tenants were entirely foreign to the issues thus presented, and would have a tendency to injure the rights of the appellant.

The seventh assignment complains at the action of the court in permitting the defendant to open and conclude the argument. By the bill of exception it is shown, after the introduction of the evidence and after the charge of the court was read to the jury, the defendant claimed the right to open and conclude the argument, which the court granted over the objection of plaintiff. The defendant, by his answer, first pleaded a general denial and in a separate paragraph, however, admitted the execution of the note, and stated he was now willing to satisfy the same when the plaintiff would do justice for the default set up in his answer or cross-petition. In his prayer he asked for $950, less the principal of the note and the interest thereon, to the 1st day of November, 1916, when same could have been paid and would have been paid had plaintiff kept his agreement, and that no attorney fees be allowed against the defendant. Plaintiff sued on the note, asking for attorney’s fees as stipulated in the note and interest from date. Judgment was rendered on March 10, 1917. The plaintiff sought to foreclose a mortgage lien on certain property. There appears to have been some controversy as to whether a certain mule was included or covered by the mortgage. It seems the note was executed for certain mules, to secure which the mortgage was executed. After their execution, one of the mules so sold defendant he after-wards swapped to plaintiff for another of less value, the difference being $40, which was credited on the note as of the date of its execution, the plaintiff claiming that the mortgage covered the last mule, or, if not, he had an equitable or verbal lien to secure the note. Plaintiff also sought to recover the value of the rent grown on the 100 acres of sod land. The record further shows the plaintiff on the trial was first required to introduce evidence on all these items; that in some measure the defendant rebutted the several contentions. However, it appears at the close of the evidence an agreement was entered into by the attorneys for the parties, to the effect that there were 1,100 bundles of bundle stuff, and that it was of the value of four cents per bundle, and that defendant owed plaintiff therefor rent to the sum of $14.80. There appears to have been no agreement as to cotton on the 100 acres, but it is treated as if plaintiff’s statement of the amount was correct. However, in the trial amendment, filed by the defendant after the evidence was all in, the defendant, in his prayer therein, embodied an admission that for the rent on the land there was due plaintiff $114.92. The plaintiff, by his petition, claimed that there was due him $155, for rent and sought to prove that amount. However, the agreement, after the evidence as to the value of the bundle stuff, brings the total amount claimed in plaintiff’s petition to $114.-92. The trial court instructed the jury to .find on the note the principal and interest, less $40 credit and attorney’s fees, unless they should further find that Lott was responsible for the delay in the settlement, then in that case no attorney’s fees were to be allowed, and also to find for $114.92 for rent. There was no such admission as required by rule SI for the district and county courts (142 S. W. xx). Unless such admission is entered upon commencement of the trial, the plaintiff has the right to open and conclude both in introducing his evidence and in the argument. In this case he was required to assume the burden on the evidence, but was denied the right to open and conclude the argument. His cause was not admitted or agreed to,, only in part. He was required to establish that he was entitled to his attorney’s fees, and the jury in this case found against him on this issue, and not until after the evidence was introduced was it admitted that the defendant was due him the rent on the five bales of cotton or for the grain grown on the 100 acres. After the introduction of the evidence the agreement was entered as to the value of the rents, and the defendant then filed his trial amendment making such admission. We understand from the court’s general statement that he considered it substantially admitted that the mule exchanged for the one originally mortgaged was covered by the mortgage, or that a lien should be foreclosed against it. It is also a rule well established that where there is one affirmative fact important to recovery by the plaintiff, and which is not admitted by the plaintiff, the plaintiff has the right to open and conclude. Caldwell v. Auto Sales, etc., 158 S. W. 1030; Sanders v. Bridges, 67 Tex. 93, 2 S. W. 663; Steed v. Petty, 65 Tex. 490.

W.e believe the trial court in this case was in error in giving the defendant the opening and concluding arguments, over the objection of the plaintiff.

The judgment will be reversed for the reason above set out.
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