author: HARPER, J. DAVIDSON, J. PER OURIAM. PRENDERGAST, P. J.

text:
    BECKER v. STATE.
    (No. 4117.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.
    On Motion for Rehearing, Dec. 20, 1916.)
    1. Criminal Daw @=661 — Evidence—Proof of Good Refutation.
    In a prosecution for murder, it is not error to exclude testimony of witnesses to prove defendant’s good reputation, where the state admitted that he bore such reputation prior to his difficulty with deceased.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 758, 1606; Dee. Dig. @=> 661.]
    2. Witnesses @=394 — Impeached Witness —Proof of Reputation for Truth and Veracity.
    Where accused had been impeached as a witness in his own behalf by proof of contradictory statements, he can introduce evidence of his reputation for truth and veracity.
    [Ed. Note.-r-For other cases, see Witnesses, Cent. Dig. §§ 1258, 1259; Dec. Dig. @=394.]
    3. Witnesses <§=>394 — Impeached Witness —Proof of Reputation — Withdrawal of Impeaching Evidence.
    Where defendant had been impeached by proof of contradictory, statements as to a material issue, the mere withdrawal of the impeaching evidence does not justify excluding evidence of defendant’s reputation for truth and veracity.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1258, 1259; Dee. Dig. @=3394.]
    4. Homicide @=>188(6) — Evidence—Self-Defense — Custom of Deceased.
    In a prosecution for murder where defendant claimed that deceased was in the habit of going armed, it was error to exclude all evidence of instances, occurring more than two months before the homicide and not known to defendant, in which deceased had been armed since his first difficulty with defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 396; Dec. Dig. @=>188(6).]
    5. Homicide @=>188(6) — Evidence—Self-Defense — Relevancy.
    It was no.t error.to exclude evidence of deceased carrying a pistol prior to his first difficulty with defendant of which incidents defendant was not aware.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 396; Dec. Dig. @=>188(6).]
    6. Homicide @=>191 — Evidence—Assault on Defendant’s Son.
    In a prosecution for murder, evidence of an assault by deceased on defendant’s son, not known to deceased before the homicide, is inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 414; Dec. Dig. @=>191.]
    7. Criminal Law @=>413(1) — Evidence — Self-Serving Declarations.
    Self-serving declarations, made by defendant two hours prior to his difficulty with deceased, were properly excluded from evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-932, 935; Dee. Dig. @=> 413(1).]
    8. Homicide @=>191 — Evidence—Conduct of Deceased.
    In a prosecution for murder where defendant claimed self-defense and that the difficulty originated when he protested against deceased’s attentions to his daughter, evidence that, when deceased was arrested with a pistol some time prior to the killing, he was near the sanitarium in which the daughter then was, was admissible.
    [Ed. Note. — For other eases, dee Homicide, Cent. Dig. § 414; Dec. Dig. @=>191.]
    9. Homicide @=>189 — Evidence — Self-Defense — Origin of Difficulty.
    In a prosecution for murder, it was error to exclude testimony by defendant’s wife corroborating his testimony that his difficulty with deceased began when he protested against deceased paying attention to his daughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 398; Dec. Dig. @=>189.]
    10. Witnesses @=37(4) — Reputation of Deceased-Competency of Witnesses.
    Witnesses whose opinion that deceased generally went armed was based solely on facts they personally knew are not qualified to testify to the general reputation of deceased as a man who went armed.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 84; Dee. Dig. @=37(4).]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    J. H. G. Becker was convicted of murder, and he appeals.
    Reversed and remanded.
    Meek & Kahn, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., T. J. Harris, E. T. Branch, Elbert Roberts, and Frank Wil-liford, Jr., all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at five years’ confinement in the state penitentiary.

In the first bill of exceptions appellant complains of the action of the court in refusing to permit him to prove by Mayor Ben Campbell and some ten of the other leading citizens of Harris county that they had known him for many years, and that he had always borne the reputation of being a peaceable, law-abiding citizen. When the appellant made this proof by one witness counsel for the state admitted in open court that appellant’s reputation up to the time of this unfortunate occurrence was that of a peaceable, law-abiding citizen, and the court in his charge instructed the jury:

“The defendant has offered to introduce testimony. to prove his general character as being a peaceable and law-abiding citizen, and the state has admitted that the general reputation of the defendant as being a peaceable, law-abiding citizen is good, and you are therefore instructed that you will accept as true and as a proven fact that the general reputation of defendant in that regard is good.”

Under such circumstances, there was no error in this ruling of the court. Beard v. State, 44 Tex. Cr. R. 402, 71 S. W. 960; Carver v. State, 67 Tex. Cr. R. 116, 148 S. W. 746.

We are inclined to think that the bill, wherein it is shown that the defendant offered to prove by a number of witnesses that his reputation for truth and veracity was good, presents error. Appellant had testi-fled that he had known deceased for a number of years, and they had been friends until the first of the year preceding the homicide in December. Appellant lived at Hockley, and had charge of the telephone at that place. The office .was in a room of the house where he resided. Appellant’s daughter attended to the telephone, and deceased often visited at the 'telephone office; would close the door and remain in the office for some time. His wife and others called his attention to the matter and said it wa.s calculated to cause people to talk about their daughter. He .went to deceased about this conduct, and this appears to be the first break in their friendly relations. Other matters occurred, when deceased one day about the middle of February approached appellant with an axe .handle in one hand and a pistol in the other and gave appellant a very severe whipping, inflicting such injuries that he had to be carried to a sanitarium, where he remained for about two weeks, and was then carried to the Larendon apartments, where he was confined by the injuries about a month longer. Appellant testified to many threats communicated to him at various times from that date until the day of the homicide; that just two days before the homicide deceased had come from Houston to Hockley, and .while there drew a pistol on him and cursed him; and that he ran. He testified to facts and circumstances that, if believed, would lead one to believe that he thought he was in constant danger from deceased from the time that deceased gave him the whipping until the date of the shooting. To offset this, the state, on cross-examination, asked him if, while he was at the infirmary, Charley Almond had not visited him and talked with him. He stated that Almond had visited him. He was then asked if, during the conversation then held, Almond had not told him (appellant) that he had talked with Hamilton (deceased) about' this trouble, and he (Hamilton) was desirous of letting the matter drop and did not want any further trouble with appellant. Appellant replied that no such conversation occurred, and no such -statement was made to him. Appellant was further asked if he did not say he did not want to make up with Hamilton, and he answered, “No.” The state then offered Almond as a witness and had him testify that he did tell appellant that he had a conversation with deceased, and told him that deceased did not want any further trouble and desired to let the matter alone and have it settled for all time, and that appellant had said he would not let it drop and would see if something more could not be done to Hamilton. After this testimony had been introduced by the state, the appellant then offered to prove that his reputation for truth and veracity was good by Otto Sens and some 25 other residents of Harris county. When this testimony was offered by appellant, the court withdrew the testimony of Almond from the jury and refused to permit appellant to prove his reputation for truth and veracity, and after withdrawing Almond’s testimony the court instructed the jury not to consider it- for any purpose. It will be noticed that the testimony of Almond went to a vital part of his defense as made — that Hamilton had been constantly pursuing him, going armed all the time, threatening his life, which threats had been communicated to him, and followed by an attempt to execute them just two days before the homicide, when he (appellant) fled. Could and was the harmful and hurtful effect of this testimony removed by its withdrawal? We do not think so. It had been deliberately introduced for the purpose of impeaching appellant and breaking down his defense. It was on one of the vital issues in the case. It is a general rule, when it is'thus sought to impeach and break down the testimony of the state or appellant, proof of general reputation for truth and veracity becomes admissible.

In several bills it is shown that appellant desired to prove that deceased, when visiting Hockley, from the date of the difficulty in February until the date of the homicide, had a pistol on his person. The court permitted him to prove those instances where the parties came and told appellant about seeing deceased armed, but refused to permit the witnesses to testify to seeing deceased armed at other times from February to September, limiting such proof to only two months prior to the homicide. Why the court limited such proof to only two months prior to the homicide, when the evidence both for the state and defendant shows that the unfriendly relations began in February, and continued until the date of the homicide, we‘ cannot understand. We think the testimony, taking into consideration the threats of deceased and his actions on several occasions, rendered the testimony clearly admissible from and after the date of the difficulty until the day of the homicide, and on another trial this testimony will be admitted. It is true that deceased was not armed at the time he was shot, but appellant testified that he knew deceased was a man who habitually went armed, that he believed he .was armed on the day of the homicide, and was reaching for his pistol when he shot, and this testimony about deceased going constantly armed from the date of the first difficulty until the final tragedy would aid the jury in passing on the reasonableness of appellant’s testimony that he believed deceased was armed. It is trué that he was permitted to testify to the occasions when others told him deceased was armed; but, the issue being whether or not deceased was armed virtually all the time from the date of the difficulty in February .until the date of.the killing, the testimony should have been admitted. However, there was no error in excluding the testimony of isolated instances of deceased having a pistol on his person, which were unknown to appellant, prior to the difficulty in February, and the beginning of the strained relations between them.

Nor was there any error in excluding the testimony as to the assault or attempted assault on Oscar Becker, appellant’s son, by deceased. It would shed no light on the transaction for which appellant was on trial, as appellant is not shown to have been made aware of it prior to the fatal meeting.

What appellant said to W. W. Baines some two hours prior to the difficulty was properly excluded. His statements would be but self-serving declarations.

We think the court should have permitted the appellant to prove that, at the time deceased was arrested with a pistol on him, he was near the Baptist Sanitarium. Appellant does testify that he had left the sanitarium and gone to the flats some two weeks prior to this incident; but the record also makes it plain that appellant’s daughter, about .whom the trouble arose, was then staying at the Baptist Sanitarium. It is true appellant testified he believed his girl was pure as the driven snow, but deceased’s visits to the place where this girl was at work had caused comment, and the fact he was keeping it up after she left home should have been permitted to be proven; for a father would resent more intensely a man conducting himself in a way to render his daughter subject to reproach and the tongue of scandal if she was a pure girl than if she had perhaps not been so pure in thought and deed.

We also think the testimony of Mrs. ■Gus Becker, the wife of appellant, should have been admitted. It is plain the unfriendly relations between appellant and deceased arose over deceased’s conduct in going about his daughter so often. Had she been permitted, she would have testified:

“That Gussie Becker was the unmarried daughter of witness and defendant; that prior to the assault made by deceased on the defendant on the 17th day of February, 1915, said daughter, Gussie Becker, lived at the home of witness and defendant; that the telephone company had its public station at their home, and their said daughter, Gussie, was the operator, and that prior to said assault, and for several months prior thereto, deceased would go to the room where said telephone was located, and on several occasions shut the door and remain in the room with defendant’s said daughter, Gussie Becker, sometimes as long as three hours, and was a frequent visitor to said room, to such an extent that it aroused the suspicion of witness, the mother of said daughter; that in the room at the time were two beds, and witness and defendant finally removed the beds from the room that deceased visited; that the visits to their daughter Gussie were so frequent that she called her husband’s (defendant’s) attention to said fact and told him that the neighbors would likely talk' about it, their daughter being single, and deceased being a married man, and asked her husband (defendant) to go and speak to Hamilton (deceased) and ask him to desist from making such frequent and long visits, as their actions were causing comment and would likely produce a scandal in the little village; and further that her husband did speak to deceased in reference thereto, and the daughter became angry and left their home and has remained away ever since.”

It is true, the court prevented her to so testify, but all persons who knew these facts should have been permitted to testify, for these circumstances were what brought about the unfriendly relations which culminated in the death of one of the parties.

We do not think that Elbert Roberts and J. E. Batte in their voir dire examination showed themselves qualified to testify to the general reputation of deceased as a man who went armed. It is made evident that it was but the opinion they held of the man from facts they personally knew, and from that fact alone.

There are several complaints of the charge of the court in the record, and, while there is no error in the charge for which we would feel authorized to reverse the case, yet on another trial the court will apply the doctrine of reasonable doubt to the charges on threats and self-defense, if excepted to, and requests for special charges to be given are made, as was done on this trial.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J. I think the court’s action in excluding all evidence of appellant’s general reputation for truth and veracity, under the circumstances, would not present reversible error. Miller v. State, 185 S. W. 29, and cases cited.

DAVIDSON, J.

I concur in reversal, but am of opinion that the excluded evidence of W. W. Baines should have gone to the jury and ought not to be regarded as self-serving statements.

On Motion for Rehearing.

PER OURIAM.

Rehearing denied.

PRENDERGAST, P. J.

(dissenting). Upon thorough consideration of this case upon the state’s motion for rehearing, I have reached the conclusion that the rehearing should be granted and the case affirmed, instead of being reversed. The state’s motion for rehearing, and the brief and argument thereon by the district attorney of Harris county and his assistants and the Assistant Attorney General, so well accords with my own views that I adopt it as my opinion. It is:

“1. This court erred in holding that appellant’s tenth bill, relating to the refusal of the trial court to permit him to prove his good reputation for truth, presented error, because the same under all the circumstances did not present reversible error. Appellant was only contradicted, and not impeached. And the testimony of Almon which contradicted appellant’s own testimony was not only withdrawn from the jury, but the jury were charged verbally at the very time to accept the denial of appellant that he had such conversation as true; and this instruction to the jury to accept the denial as true was also given in writing to the jury in the general charge. These instructions to the jury are not mentioned in the opinion, and we think were overlooked in considering said bill; or else the effect of such instructions was not considered in determining whether the bill presented error. There was not a mere withdrawal of the testimony of Almon, as the opinion would seem to indicate; but the withdrawal of the testimony was accompanied by the instructions to the jury just mentioned and thus accomplished all, and more, and left appellant in a better light than mere testimony as to his reputation could have done. Suppose Almon’s testimony did impeach appellant, the only question for the jury would be wnether Almon or appellant was telling the truth, and the only object, where a witness is impeached, in offering testimony of his reputation for truth, is to convince the jury that the impeached and not the impeaching witness was giving the truth. The supporting witnesses who testify to the good reputation for truth of the impeached witness do not purport to know the truth of the statement in dispute, and the jury might or might not infer that proof of good reputation showed that the impeached witness was correct, while in this ease the contradictory statement of Almon is not only withdrawn, but the jury are directly and in terms told to accept as true the version of appellant. The object of appellant was accomplished. It should be presumed that the jury followed and. obeyed the instructions of the court when nothing to the contrary is shown. The bill also shows that one witness, Jules I-Iirsch, had previously testified without objection that the general reputation of appellant for truth was good, and that this testimony was never withdrawn. The state also urges that the testimony of Almon was not proving conflicting statements of appellant about a material fact, but was a mere conflict in the testimony. It is nowhere shown in the bill that appellant had given any version of a conversation with Almon which was favorable to himself. See Pettis v. State, 68 Tex. Cr. R. 221, 150 S. W. 792, where appellant, as here, denied making the statement, and Zysman v. State, 42 Tex. Cr. R. 433, 60 S. W. 669, where the witness sought to be supported admitted making the statement; and see Jacobs v. State, 42 Tex. Cr. R. 358, 59 S. W. 1111. The fact that the testimony of Almon and appellant was in direct conflict would not authorize testimony of the good reputation of appellant for truth. Zysman v. State, 42 Tex. Cr. R. 433, 60 S. W. 669. The trial court left the jury in no doubt as to the purported conversation with Almon and settled that issue squarely in favor of appellant by the oral and written direct instructions to the jury, and this, together with the withdrawal of Almon’s testimony, prevented any error in the proceedings, and reinstated appellant and supported him more strongly on that matter than any number of mere reputation witnesses could have done. We also urge that the bill fails to show that the testimony of Al-mon tended to impeach appellant by proving his statements made out of court which were contradictory of his material testimony given on the trial. The time of this purported conversation with Almon was about five months prior to the homicide, and was unimportant and was a mere contradiction upon an immaterial matter and upon which the jury were in effect instructed that appellant’s version thereof was true and that Almon’s was untrue, and this instruction was given by the court as a matter of law.
“2. Because the court erred in holding that proof of isolated instances of deceased having a pistol was admissible, although appellant did not know and was not informed thereof, and in holding that such testimony would aid the jun in passing on the reasonableness of appellant’s testimony that he believed deceased was armed at the time of the homicide. In passing on the several bills in which this matter was sought to be raised, the opinion reads: ‘Why the court limited such proof to only two months prior to the homicide, when the evidence both for the state and defendant shows that the unfriendly relations began in February and continued until the date of the homicide, we cannot understand.’ In his ruling the trial court was more liberal to appellant than required by law, as will be seen if the real ruling of the court is ascertained from the bills and the qualifications thereof accepted by appellant. What were the facts?
“The bills-are numbered 2, 4, and 5%, and show that the court permitted appellant to prove by himself and by other witnesses isolated and disconnected instances of deceased having or carrying a pistol at any time where it was shown that knowledge thereof was brought home to appellant by his own or other testimony, and, in addition to this, the court extended the rule and permitted appellant to prove any-disconnected or isolated instances of deceased being seen with a pistol at any time within two months prior to the homicide, whether appellaht knew of such instance or not. The only testimony excluded by the court was in refusing to permit appellant to prove disconnected and isolated instances of deceased having been seen with a pistol at times more than two months prior to the homicide where knowledge of the fact that deceased at such time having a pistol was not brought home to appellant by his own or other testimony. In Andrus v. State, 73 Tex. Cr. R. 333, 165 S. W. 189, it was held that proof of isolated instances of deceased having a pistol is not admissible when it is not shown that such instances were known to the accused prior to the homicide. Similar to this is the ruling in Hysaw v. State, 69 Tex. Cr. R. 566, 155 S. W. 942. The ‘reasonableness of appellant’s testimony that he believed deceased was ármed at the time of the homicide’ could not be aided by proof of facts which were unknown to appellant when he shot deceased. What operated or could have operated on the mind of appellant when he killed deceased? Facts then unknown to him? Appellant made no claim that he knew of any instance excluded. What he did not know in no way could have influenced him. His claimed belief that deceased was armed at the time of the homicide could not have been possibly influenced by things he had never heard of. The bills themselves show that the testimony excluded was of wholly disconnected and isolated instances, few in number, and were in no way known to appellant when he slew the deceased, and we most respectfully urge that the court was in error in the original opinion, and that the trial court was not only correct, but was exceedingly liberal to appellant, and was following the former holdings of this court.
“3. Because the court erred in holding that the trial court should have permitted the appellant to prove that, at the time deceased was arrested with a pistol on him, he was near the Baptist Sanitarium, as complained of in the seventh bill of exceptions. This incident occurred on March 16th, prior to the homicide in September, and more than two weeks after appellant left the sanitarium, and the state urges that in no event, in the light of the entire record, is the matter of such importance as to require a reversal, aud the state further urges that the testimony excluded was in no way admissible for the purpose stated in the bill or for any other purpose, since appellant received the lowest term for murder, and the offer of this testimony was not coupled with any offer or claim that the homicide whs on the first meeting after such incident, or that deceased there met or insulted the daughter of appellant, and the fact that it might, as stated in the original opinion in this case, have aroused resentment, would in no way have benefited appellant, but would have been proof of malice, and no claim of manslaughter was made on account of such occurrence, nor does the testimony raise the issue of manslaughter on the theory of an insult to a female relation of appellant. Much stronger testimony was held correctly excluded in the cases of Howard v. State, 23 Tex. App. 276, 5 S. W. 231; Cockerell v. State; 32 Tex. Cr. R. 592, 25 S. W. 421; Wright v. State, 36 Tex. Cr. R. 431, 37 S. W. 732; McVey v. State, 81 S. W. 740.
“4. Because the court erred in holding that the testimony set out in the eighth bill of exceptions was admissible. This bill complains of the refusal of the trial court to permit appellant to prove by his wife that several months prior to the homicide the deceased would go to a room in which the daughter of appellant worked as a telephone operator, and on several occasions would shut the door and remain in the room where the young lady was, 'and that she called her husband’s attention thereto and asked him to see deceased with reference thereto, and that her husband did so, and that their daughter became angry and left their home and has remained away ever since. This bill is qualified, and the qualification was accepted by appellant, with the explanation that the offer of said testimony was not coupled with any offer to prove that the homicide grew out of any insult to or relation of deceased with the • daughter of appellant, and that appellant himself testified fully with reference to the same matters and testified all he desired to about his daughter and to his knowledge and information pertaining thereto, and further testified that the fact that deceased stayed in the telephone booth had nothing to do with the homicide, and that he thought and knew that his daughter was a pure girl. Appellant received the lowest term for murder, and the matters excluded occurred months before the homicide, and the proof showed that in fact appellant had met deceased many times since.
“The word ‘meet’ signifies that the parties were brought together into such proximity as would enable the defendant to act in the premises, whether he was armed or unarmed. Pitts v. State, 29 Tex. App. 377, 16 S. W. 189; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158.
“Adequate cause may be proof of malice. Hicks v. State, 171 S. W. 767. Pickens v. State, 31 Tex. Cr. R. 554, 21 S. W. 362.
“It has been frequently held that it is not error to exclude testimony of insulting words or conduct of deceased toward a female relation of the slayer, if the offer of this testimony is not coupled with any offer on the part of the defendant or his counsel to show that prior to the homicide the same was communicated to him, and thereafter he killed the deceased on his first meeting with him. Howard v. State, 23 Tex. App. 276, 5 S. W. 231; Cockerell v. State, 32 Tex. Cr. R. 592, 25 S. W. 421; Wright v. State, 36 Tex. Cr. R. 431, 37 S. W. 732; McVey v. State, 81 S. W. 740.”
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    GUARANTY LIFE INS. CO. OF HOUSTON v. CITY OF AUSTIN.
    (No. 2687.)
    (Supreme Court of Texas.
    Dec. 13, 1916.)
    1. Taxation <&wkey;276 — Property Subject— Situs ot Property.
    ■ Prior to enactment of Acts 31st Leg. c. 108, making personal property of a home insurance company taxable at the company’s home office, etc., where pursuant to Acts 30th Leg. c. 170, authorizing insurance companies to deposit with the State Treasurer securities representing investments of capital stock, with the privilege of withdrawal or substitution, and giving depositing companies the right to advertise such fact and print it upon their policies of insurance, an insurance company domiciled at Houston deposited such securities consisting of .two notes with the State Treasurer at Austin and advertised such fact, the notes were taxable at Austin under Rev. St. art. 7505, making promissory notes taxable as personal property, and article 7510, providing that all property real and personal shall be assessed in the county where situated except as otherwise required, and Const, art. 8, § 11, declaring that all property shall be assessed in the county where situated; the deposit with the State Treasurer being a voluntary one, amounting to a surrender of the possession of the notes, thereby giving the notes, for the purpose of taxation, a situs different from the domicile of their owner.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 453, 466-468; Dec. Dig. <&wkey;> 276.]
    2. Taxation <&wkey;276 — Situs oe Property.
    Where a particular business purpose can be accomplished only by locating property at a certain place and the property is so located and devoted to the purpose for more than a temporary period, it clearly acquires a situs at that place.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 453, 466-468; Dec. Dig. <&wkey;> 276.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action between the Guaranty Life Insurance Company of Houstpn and the City of Austin. Judgment for the City was aflarmed by the Court of Civil Appeals (165 S. W. 53), and the Insurance Company brings error. Affirmed.
    Lane, Wolters & Storey and Wm. A. Vip-son, all of Houston, for plaintiff in error. Lightfoot, Brady & Robertson, J. W. Maxwell, and J. Bouldin Rector, all of Austin, for defendant in error.
   PHILLIPS, C. J.

The question in the case is that of the right of the City of Austin to tax for the years 1908 and 1909 certain securities owned by the plaintiff in error and during those years on deposit with the State Treasurer in that city.

The domicile of the plaintiff in error at the time was, and is now, in the city of Houston. Its capital stock was $100,000.00, lawfully invested in the securities mentioned, consisting of two notes, secured by liens upon real estate, and of a reasonable value in excess of $100,000.00. The notes were originally deposited with the State Treasurer on August 10, 1907, under the provisions of the Act of the Thirtieth Legislature, chapter 170, page 316, Acts of 1907. That act provided in sections 8, 9, and 10 that an insurance company such as the plaintiff in error might at its option deposit with the State Treasurer securities representing investments of its capital stock, with the privilege of' withdrawing them, or substituting other securities therefor; that upon such deposit being made, the State Treasurer should issue his receipt for the securities; and the company making the deposit and holding such receipt should have the right to advertise such fact and print it upon its policies of insurance; and that the proper officers and agents of the company making the deposit should be permitted at all reasonable times to examine its securities, detach coupons therefrom and collect the interest thereon under such reasonable rules as might be prescribed by the Treasurer and the Commissioner of Insurance.

After making the deposit of its securities and obtaining the Treasurer’s receipt, the plaintiff in error advertised that fact in its business and printed it upon its policies.

One of the notes remained on deposit with the State Treasurer until April 29, 1913, when other securities were substituted for it. The other note was renewed during the year 1908. The renewal note remained on deposit until March 28, 1911, when two other notes were substituted for it. The substituted -securities had remained continuously in the custody of the Treasurer to the time of the trial. At various times during each of the years 1908 and 1909, the plaintiff in error through its officers made credits of interest payments upon the notes, and upon one occasion withdrew one of the notes for the purpose of having it renewed.

The plaintiff in error rendered the securities in question for taxation in the years 1908 and 1909 to the city of Houston, and paid to that city the city taxes assessed against them for those years.

The taxes in controversy were for a period antedating the Act of 1909 (chapter 108, page 205, Acts of 1909), providing that for the purpose of state, county and municipal taxation, the situs of all personal property belonging to a home life insurance company shall be at .its home office.

Under the propositions advanced in the petition for a writ of error it is necessary to consider only the contention that the notes in question, because of their property nature, were taxable only at the plaintiff in error’s domicile. The basis of the contention is that promissory notes, when owned by a resident of the State, are incapable of acquiring for the purposes of taxation a situs distinct from the residence of their owner.

According to the ancient rule, all personal property followed the owner and was subject only to the laws of the jurisdiction of his domicile. This was a fiction of the law; and there can be no doubt of the power of a State to modify it by statute.

In this State promissory notes are by statute expressly made taxable as personal property. Art. 7505, Revised Statutes. In Hall v. Miller, 102 Tex. 289, 115 S. W. 1168, in referring to this statute and holding that promissory notes situated in Texas were taxable in Texas, though owned by a nonresident, it was said:

“A State has no authority to levy taxes upon personal property temporarily within its borders when the owner resides elsewhere. But it is equally true that tangible personal property which has acquired a situs within the State is subject to taxation, although the owner be a nonresident thereof. Hardesty v. Eleming, 57 Tex. 401; Eidman v. Martinez, 184 U. S. 578 [22 Sup. Ct. 515, 46 L. Ed. 697]; Bristol v. Washington County, 177 U. S. 133 [20 Sup. Ct. 585, 44 L. Ed. 701]. Promissory notes and bonds are now recognized as property and are included in the terms of the statutes of 1905 which we have quoted above. New Orleans v. Stempel, 175 U. S. 322 [20 Sup. Ct. 110, 44 L. Ed. 174]; Catlin v. Hull, 21 Vt. 152. In the first ease cited the court said: ‘It is well settled that bank bills and municipal bonds are in such concrete tangible form that they are subject to taxation where found, irrespective of the domicile of the owner; are subject to levy and sale on execution, and to seizure and delivery under replevin; and yet they are but promises to pay — evidences of existing indebtedness. Notes and mortgages are of the same nature; and while they may not have become so generally recognized as tangible personal property, yet they have such a concrete form that we see no reason why a statute may not declare that if found within its limits they shall be subject to taxation.’ ”

It was urged in that case, as it is here, that the rule with respect to personal property following the owner, above referred to, governed the question. This contention was overruled. In order to reach the decision rendered, it was necessary to first determine that the notes involved were capable of acquiring a situs in Texas; otherwise they were not taxable in Texas'. The holding that they were taxable here necessarily affirmed that they were capable of acquiring a situs here. As the domicile of the owner was elsewhere, Hall v. Miller must be regarded as definitely establishing the rule in this State that under our laws promissory notes may for the purposes of taxation acquire a situs different from the domicile of their owner.

That the owner of the notes in Hall v. Miller was a non-resident, does not affect the question; or, as is urged by the plaintiff in error, distinguish that case from the present one. .The non-residence of the owner was not the ground of the decision. Necessarily the question as to whether the notes could acquire a situs here was determinable alone by their property nature under our laws. The character of their owner did not give them their character as property or alter their property nature. The case! simply holds that since promissory notes are for taxation purposes recognized and treated as personal property by article 7505, as it was within the power of the Legislature to characterize them, and have a concrete tangible form, they are capable of separation from their owner and acquiring for taxation purposes a situs distinct from his domicile. This decision was reached, not because the owner was a non-resident of the State, but notwithstanding such was the fact.

If because of their concrete form and character as personal property under our taxation laws promissory notes may in the case of a non-resident owner acquire a situs for the purposes of taxation apart from their owner’s domicile, the same rule must obtain with respect to a resident owner. They could not be held as less capable of acquirIng such a situs merely because owned by a resident of the State, in the absence of a positive statute fixing the domicile of the owner as the place for their taxation. We have no such statute.

The Constitution and statutes of the State, of themselves, put this question at rest. The Constitution, section 11, article 8, declares that:

“All property, whether owned by persons or corporations, shall be assessed for taxation, and the taxes paid in the county where situated.”

Article 7510 reads:

“All property real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county where it is situated; and all personal property, subject to taxation and temporarily removed from the state or county, shall be listed and assessed in the county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.”

This article clearly contemplates that any property classified as personal property by article 7505 and having a concrete form may acquire a situs distinct from the place of the owner’s residence. It provides that personal property “temporarily removed from the state or county” shall be taxed in the county of the owner’s residence. This is a provision with respect only to personal property “temporarily removed from the county or state.” It has no application to personal property whose removal is not temporary, but which has acquired a situs in a different county. If the removal from the county of the owner’s residence be only temporary, it could not under the article acquire a situs elsewhere; it is to be regarded as still “situated” in the county of the owner’s residence and is therefore taxable there. The article makes it plain, however, that if the removal be not of a temporary character and the property has acquired a situs in a different county, it is taxable in such county, unless within the exception of the article and therefore expressly made taxable elsewhere.

The real question in the case, therefore, is whether the notes had acquired a situs in the City of Austin so as to subject) them to taxation there for the years named. Their deposit with the State Treasurer was in August, 1907. It was voluntary upon the part of the plaintiff in error. It amounted to a surrender of the possession of the notes. It was made for a business purpose and for an evident business advantage, which could be accomplished only by placing the notes in the custody of the Treasurer, namely, the privilege of advertising that securities representing the plaintiff in error’s capital stock were in the hands of the Treasurer of the State, and also having its policies of insurance attest that fact. A temporary possession by the Treasurer of the notes would not have afforded the benefit sought by the deposit, since under the law the fact of the deposit could be advertised and printed on the plaintiff in error’s policies only while the notes were in the Treasurer’s possession. That the plaintiff in error had access to the notes and the right any time to withdraw them does not alter the fact that while they were on deposit with the Treasurer they were out of its possession. Under the law providing for the deposit the Treasurer’s possession of the' notes was necessarily exclusive. It cannot be assumed that it would have permitted advertisement of the fact of their being in his hands unless his possession was of that character. In our view the deposit had none of the aspects of !a mera temporary removal of the notes from the place of the plaintiff in error’s domicile. The nature of the deposit, its purpose, and the length of time the notes had remained in the Treasurer’s hands in our opinion forbid that view. Where a particular business purpose can be accomplished only by locating property at a certain place, and the property is. so located and devoted to the purpose for more than a temporary period, it very clearly acquires a situs at that place. The notes in question must, we think, be regarded as having been situated in the City of Austin, on the first days of January 1908 and 1909. They were accordingly taxable there for those years.

Ferris v. Kimble, 75 Tex. 476, 12 S. W. 689, is urged by the plaintiff in error as sustaining its position. The case may be said to announce that, as a general rule, promissory notes are taxable at the place of their owner’s residence. It was not there decided, however, nor attempted to be decided, that they are incapable of acquiring a situs elsewhere. The facts'of the case plainly distinguish it from the present one. The notes of Judge Eerris, the subject of the controversy, were at all times in his possession. They had been placed in the bank vault within the limits of the city of Waxahachie merely for safe-keeping, and no one had access to them but the owner. Being in his possession, they were necessarily taxable at the placa of his residence. For this same reason Ferris v. Kimble was differentiated in Hall v. Hiller.

It is to our minds illogical to say that promissory notes are incapable of acquiring a distinct situs. They are personal property under our laws. Because of their concrete form they are made use of as property in the everyday transactions of the people. Their presence is generally availed of as an element of such use. Because of this they constitute something more than mere evidences of debt. When they are thus made to perform the functions of tangible personal property, they have all the character of that class of property, and are as fully capable of acquiring a situs apart from their owner’s domicile as any property of that class.

The judgments of the District Court and the Court of Civil Appeals are affirmed.
      «S^pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    BORTON v. BORTON.
    (No. 7268.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1916.
    Rehearing Denied Dec. 21, 1916.)
    1. Divorce <5&wkey;25-l— Pleading — Title to Land.
    Allegation of original and supplemental petitions in action for divorce relating to the separate property of plaintiff and the claims of defendant with reference thereto, held to authorize judgment that plaintiff owned land in her own separate right, and quieting title thereto as against defendant.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 718-721; Dec. Dig. &wkey;254.]
    2. Husband and Wife <&wkey;205(4) — Actions —Right of Action — Protection of Separate Estate.
    A wife is entitled to sue her husband for the protection of her separate property in his possession against damages or waste threatened by his wrongful acts, or his declared intention to use the same to her damage, and she may sue to recover her separate estate wrongfully converted by him, and also to have a resulting trust declared in her favor in lands claimed by her in her own right in his possession, her title to which he is disputing and to which he is asserting title adverse to her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 748, 749, 754, 970; Dec. Dig. &wkey;205(4).]
    3. Husband and Wife <&wkey;205(4) — Actions— Right of Agent — Quieting Title.
    Under Acts 33d Leg. c. 32, defining separate and community property of husband and wife, and providing that the wife shall have the sole management, control, and disposition of her separate property, a wife may maintain suit against her husband to quiet title to land claimed by her as her separate property, to which he is asserting title adverse to her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 748, 749, 754, 970; Dec. Dig. &wkey;205(4).]
    4. Appeal and Error <&wkey;907(3) — Review— Presumption — Facts not Appearing in Record.
    Where there is ho statement of facts with the record, the review court will presume that the facts proved on the trial support the finding of the jury and the judgment of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2673; Dec. Dig. <&wkey;907 (3).]
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Action by Mrs. Leila E. Borton against W. H. Borton. From a portion of the judgment favorable to the plaintiff, defendant appeals.
    Affirmed.
    Campbell, Sewall & Myer and Tharp & Tharp, all of Houston, for appellant. Gill, Jones, Tyler & Potter, of Houston, for ap-pellee.
   LANE, J.

This suit was instituted by Mrs. Leila E. Borton, plaintiff, against her husband, W. H. Borton, defendant, for a divorce, for a partition of their community estate, for quieting her title to certain lands alleged to be her separate estate, and for injunction to restrain defendant from selling, mortgaging, or incumbering any of said property, separate or community, or in any way wasting or destroying any part thereof.

In addition to plaintiff’s allegations upon which she sought a divorce, she alleges among other things that at the time her suit was filed that she owned as her separate property three tracts of land situated in Harris county, Tex., and one in Walter county, Tex., and that as defendant had already sold seven bales of cotton belonging to said community estate and converted the proceeds of such sale to his own use, she feared he would attempt to sell, mortgage, or incumber all of said property, both separate and community. Her prayer was for a.decree of divorce, partition of all community property, and for- a decree quieting her title to the land alleged to be her separate estate, etc.

Defendant answered by general demurrer, general denial, and by special denial of all of plaintiff’s allegations in support of her prayer for a divorce. He expressly denied that the three tracts of land situated in Harris county was the separate estate of plaintiff, and says that it is the community property of plaintiff and himself, and that the same represents the total earnings and savings of the parties for the past 37 years as husband and wife; that plaintiff is claiming said lands under and by reason of a certain Instrument which upon its face appears to be a deed from him to plaintiff, conveying to her said lands, but in fact said instrument was not intended by him to be a deed, nor a transfer of his interest in said lands to plaintiff; that when said instrument was signed he was threatened with a fictitious ■and unfounded litigation, which was never instituted; that he'executed said instrument without the knowledge of plaintiff for his own protection tfigainst said threatened suit; that said instrument was never delivered to plaintiff, but that she obtained possession of the same and placed it of record without his knowledge and consent; that same was without consideration and was void.

Plaintiff by supplemental petition denied all the material allegations of defendant’s answer, and further alleged that said lands were conveyed to her by said deed, and was so intended by defendant, and that said deed was delivered to her by defendant for the purpose of conveying said lands to her.

The cause was tried before a jury, who, upon special issues submitted to them by the court, found that none of the causes alleged by plaintiff for a divorce in fact existed, but they found that defendant did make manual delivery to plaintiff of the deed in question by which he conveyed to plaintiff the lands in question. Upon such findings of the jury the court rendered judgment denying plaintiff’s prayer for a divorce and partition of the community property, but rendered judgment in favor of plaintiff adjudging tier to be the owner of the three tracts of land in question in her own separate right, and quieting her title thereto as between her and defendant as prayed for. From so much of such judgment as adjudged said land to plaintiff, defendant has appealed.

Appellant’s contentions are: First, that as appellee’s suit was for a divorce; partition of the community property of herself and husband, and for the quieting of title in her to certain lands claimed by her as her separate property, the court was without authority and jurisdiction to determine the rights of appellee to the lands claimed by her as her separate property, after the jury had found that no cause existed which entitled appellee to a divorce; that a refusal of the divorce prayed for entitled appellant to judgment and the court erred in not so decreeing. Second, that if, after said divorce had been refused, the court had jurisdiction to determine the rights of appellee to lands claimed by her as her separate property from proper allegations, it had no power or authority to do so in this cause, because ap-pellee’s petition does not allege what interest she has in said lands, nor that she was in possession or entitled to possession thereof, nor that appellant had unlawfully entered upon and dispossessed her of the same, as required by law in suits of trespass to try title.

The effect of appellee’s original and supplemental petitions, aided by the answer of the appellant, relative to the questions presented for our consideration, is that appellee ' is the owner of the three tracts of land in Harris county • in her own separate right; that she claims the same under a deed duly executed and delivered to her by appellant; that appellant is disputing appellee’s title to said land and insisting that he never delivered said deed to appellee, and never intended thereby to convey said land to her, and that the same is not the separate property of appellee, but the community property of himself and appellee; that appellee and appellant are living separate and apart from each other; that appellant has disposed of a part of their community estate and converted the proceeds thereof to his own .use; and that appellee fears that appellant will attempt to mortgage or incumber her said separate property. Upon these allegations, appellee prays for an injunction to restrain appellant from selling, mortgaging, or otherwise incumbering her said separate estate, or in any way destroying or wasting any of said property, and that upon final hearing she be quieted in her title to her said separate property.

We think that appellee’s original and supplemental petitions, when considered in connection with the allegations of appellant’s answer, were sufficient to authorize the trial court to render the judgment rendered in this cause upon sufficient proof of the matters alleged.

That a wife could not, independent of a suit for divorce, sue her husband under the laws of this state for the possession and control of her interest in their community estate, or for her separate property, either real or personal, prior to the passage of the act of the Thirty-Third Legislature of 1913, p. 61, wherein separate and community property is defined, cannot be successfully questioned, for the obvious reason that prior to the passage of such act the husband by express terms of the statute law was made the possessor and controller of his wife’s property, both community and separate, during marriage. We do not mean, however, to be understood as asserting that a wife could not at all times prior to, as well as since, the passage of the act referred to, sue her husband for the protection of her separate property in his possession against damage or waste threatened by the wrongful acts of the husband, or his declared intention to use the same to her damage. We do not think there has ever been a rule of law established in this state which prohibited a wife from resorting to the equitable powers of our courts to prevent the husband, in whose possession the law had placed her separate property, from so dealing with the same as would result in its waste or material damage, or to cast a cloud upon her title thereto, but on the contrary we think it well settled in this state that the wife may sue the husband for the protection of her separate property in his possession. Dority v. Dority, 96 Tex. 222, 71 S. W. 950, 60 L. R. A. 941; Fox v. Fox, 179 S. W. 886; Heintz v. Heintz, 56 Tex. Civ. App. 403, 120 S. W. 941, and authorities therein cited.

We think it well settled by the cases cited that, besides actions for divorce, a wife may maintain a suit against her husband for the recovery of her separate estate wrongfully converted by him, and also to have a resulting trust declared in her favor in lands claimed by her in her own right in his possession, her title to which he is disputing, and to which he is asserting title in himself adverse to her.

In the case of Dority v. Dority, supra, it is held by our Supreme Court that when the husband by nonperformance of his duties and abuse of his powers has defeated the purposes of the law in conferring upon him the right to manage the wife’s property, that right should not be permitted to stand in the way of the right of the wife to sue him for the protection of her property. The right of the wife in the instant case to sue her husband to quiet her title to the land claimed by her as her separate property and to which appellant is asserting title adverse to her, however, no longer depends upon rights accruing to her as the result of the wrongful acts of the husband hereinbefore mentioned. By an act of the Thirty-Third Legislature of 1913 (Acts 33d Leg. p. 61), separate and community property of husband and wife is defined, and .it is provided therein that the wife shall have the sole management, control, and disposition of her separate property, both real and personal: Provided, however, the joinder of the husband in the manner now provided by law for conveyance of the separate real estate of the wife shall be necessary to an incumbrance or conveyance by the wife of her lands. It is also provided that the rents fpom the wife’s separate real estate shall not be subjected to the payment of debts contracted by the husband. It is thus apparent that since the act mentioned became a law, the husband is no longer, as a matter of law, in possession or control of his wife’s separate estate, and can no longer hold the same against her will, and should he now undertake to do so we can see no legal reason why the wife may not maintain a suit against him for the possession of the same. Nor do we see any legal reason why she should not be permitted to sue him to quiet her title to her land if he be in possession of said property and asserting title thereto adversely to her, without being required to bring a suit for divorce.

There is no statement of facts with the record and in the absence of such we must presume that the facts proven upon the trial support the finding of the jury and the judgment rendered by the trial court.

We have read and considered all of appellant’s assignments, and what has been said disposes of all of them.

We find no error committed by the trial court in the trial of this cause, nor in the judgment there rendered; such judgment is therefore affirmed.

Affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    WILSON v. J. W. CROWDUS DRUG CO. et al.
    (No. 1074.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Novation <&wkey;5 — Acceptance oe New Ob-lisation.
    Where retailer, indebted to a wholesaler, sold his business, the buyers undertaking to pay Ms debt for which they made cash payment and executed notes to the wholesaler, the wholesaler, not releasing the retailer in fact, did not release him in law by merely taking such notes, this being merely accommodation of the retailer, nor, although the retailer became surety of the buyer as between themselves, did he become secondarily liable to the wholesaler, since a contract once made cannot be unmade without the consent of both parties, and the mere knowledge or notification of the wholesaler as to such relations would not be sufficient, and the fact that the notes were more onerous as to terms than authorized by the retailer was immaterial as respects his liability on the original debt, and also so far as he was concerned with the notes, since he was not liable on the latter.
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 6; Dec. Dig. <&wkey;>5.]
    2. Novation <&wkey;5 — Evidence.
    To produce a novation the intention of the creditor to discharge the first debtor and accept the second in his stead must be perfectly evident.
    [Ed. Note — For other cases, see Novation, Cent. Dig. § 5; Dee. Dig. &wkey;s5.]
    3. Novation &wkey;>12 — Evidence.
    In action on account for goods sold, the defense being that buyers of the business assumed the account, a telegram from defendant’s attorney, authorizing plaintiff to accept ■ the buyers’ notes for the account, was admissible as showing that plaintiff’s giving the buyers such additional time was an accommodation to the debtor and not a novation, notwithstanding such note contained onerous terms not mentioned in the telegram.
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 12; Dec. Dig. <&wkey;>12.]
    4. Evidence &wkey;>271(13) — Whole oe Conversation.
    In such action, a declaration of plaintiff’s agent that it was not his purpose to release defendant by accepting the notes of the buyers was not inadmissible as self-serving, where it was part of a conversation wherein defendant’s attorney admitted the defendant did not claim a release by acceptance of the notes; the whole conversation being admissible, and the agent’s assertion rendering the attorney’s admission understandable.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1087; Dec. Dig.' &wkey;>271(13).]
    6. Appeal and Error &wkey;>1058(l) — Harmless Error — Exclusion op Evidence.
    A creditor’s books, showing that the notes of a third person were entered as a credit on a debtor’s account, would have had no probative force as showing an agreement to accept the notes as a novation, and, the fact of entry having been otherwise shown, there was no reversible error in excluding the books.
    [Ed. Note. — For other cases, see Appeal and Etror, Cent. Dig. §§ 4195, 4200; Dec. Dig. 1058(1).]
    6. Account, Action on <&wkey;l&wkey;VERiPiED Account-
    Where an account is properly verified under Rev. St. art. 3712, providing for suit on sworn account, it is admissible as prima facie evidence, in absence of a sworn denial by defendant that it was not just or true, etc., as required by such statute.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 41, 42; Dec. Dig. <S&wkey;14.]
    7. Appeal and Error &wkey;?1051(l) — Harmless Error — Admission op Account.
    The admission of an account, incorrectly made up, was not injurious to appellant sued thereon, where the true account was substantially admitted and proven otherwise to be due and owing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166; Dec. Dig. &wkey;>1051(l).]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by the J. W. Crowdus Drug Company and others against Howard T. Wilson. From judgment for plaintiffs, defendant appeals.
    Affirmed.

      Ben H. Stone, of Amarillo, for appellant. Reeder & Dooley, of Amarillo, and Spence & Haven, of Dallas, for appellees.
   HUFF, C. J.

Howard T. Wilson was in business at Sweetwater, under the trade-name of Wilson Drug Company, and purchased from the J. W. Crowdus Drug Company goods from time to time, as shown by an itemized account, amounting to the sum of $2,050.

On the 22d day of June, 1914, Wilson sold his stock of goods at Sweetwater to C. W. Carder and T. B. Holman, for the sum of $4,050, they agreeing to pay therefor, and executed as part payment their three promissory notes for $666.66 each, and the balance of the consideration they agreed to pay to J. W. Crowdus Drug Company of Dallas the open account said company held against Wilson, and at the same time Holman and Carder executed a chattel mortgage to Howard Wilson on the fixtures of the drug company, to secure the three notes executed by them, and to secure Wilson on the open account due the Crowdus Drug Company, in the sum of $2,050.

After selling the drug store, Howard T. Wilson went to Lexington, Mo. Afterwards, Bramlett, a representative of appellee, called on Holman and Carder and was notified that Wilson had promised to obtain an extension of time. Bramlett wrote to Wilson about the matter, and Wilson wired him to, “See Ben Stone, he represents -me.” Stone wired the appellees the following:

“Replying to Bramlett’s letter to Howard T. Wilson, am authorized to wire you to give additional time on the basis of $250.00, cash, balance in twelve equal monthly payments.”

It appears that afterwards Holman and Carder paid the $250 cash and executed twelve notes, dividing the balance as near as possible in equal amounts, the notes payable monthly, providing for interest, attorneys’ fees, and a failure to pay one note should mature all. Wilson admits that he purchased the goods and that he had never paid for them, and admits that he made no agreement that he should be released from the payment of the account and that when Holman and Carder executed the notes ap-pellee did not tell him they would release him from payment. Carder testifies that there was no agreement between Wilson and his firm when they purchased that Wilson would be released from the claim himself; that, when he and Holman bought from Wilson, Wilson stated that he owed the Crowdus Drug Company an account for goods shipped to him in the amount of $2,050; that they assumed the payment of that in the trade with him; and that he did not make any agreement with him that he would be released from the payment of it. After the notes were executed, Mr. Bramlett, who represented the appellee in the adjustment of its accounts, went to see Mr. Stone and told him that it was not his purpose at any time in dealing either with Stone or Wilson, or the Holman-Carder Drug Company, and all parties knew it, to release Mr. Wilson in any of the transactions, and that his instructions were absolutely not to do so; that Stone told him at that time:

“You can proceed against Carder and Holman, and if you can make anything out of them, all right, we are not pleading release and are not seeking a release, and haven’t claimed a release, and we will pay the balance of it.”

He said:

“If you don’t do that, we will undertake to beat you out of it.”

Howard T. Wilson admitted in open court upon the trial the following:

“It is admitted by the defendant, Howard T. Wilson, that the Crowdus Drug Company never did say that they would take Holman and Carder’s notes and release Wilson, but that the allegation in the defendant’s answer that it was agreed by and between the parties that the notes should stand in place of the account was intended to encompass this item, that the release would follow as a matter of law from the facts as plead, and that there was no actual agreement except as the acts the plaintiff did make the agreement.”

The appellee in this case brought suit against Wilson, Holman, and Carder on the account as originally made by Wilson with the appellee, and brought into court the twelve notes executed by Holman and Carder, and tendered them into court and offered to surrender them to the defendant Wilson. The trial court instructed a verdict for the appellee against Wilson and Holman and Carder, on the account, less the $250 credit, and, upon the jury’s verdict, judgment was rendered against all parties for that amount; Wilson alone appealing this case.

The first assignment of error is to the action of the court in instructing a verdict for the appellee in the sum of $1,772.39. Propositions presented thereunder are that when Wilson sold the business to Holman and Carder, who assumed the amount of the Wilson indebtedness, they became principals and Wilson a surety, and, by extending the time of payment to Holman and Carder without Wilson’s consent to the extension made, "Wilson was discharged from liability to appellee, and that the evidence shows that the account was settled by the payment of $250 cash by Holman and Carder, and the execution of their twelve notes; that this was either a payment or novation. It is unquestionably true that, when Holman and Carder assumed the indebtedness due appellee by Wilson, they became principal obligors, and Wilson the surety, as between themselves; but this would not necessarily render Wilson a surety as to appellee so as to entitle him to the treatment and protection from appellee as a surety for the debt. This will depend upon whether appellee consented to so change the character of Wilson’s liability from principal to surety. A contract, when once made, cannot be unmade without the consent of both parties. The mere knowledge or notification to appellee of such assumption will not be sufficient. Shapleigh v. Wells, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783. See, also, Montague County v. Meadows, 21 Tex. Civ. App. 256, 51 S. W. 556; Heard v. Thrasher, 71 S. W. 811; Witt v. Amarillo National Bank, 135 S. W. 1108; Abernathy v. McDougle, 187 S. W. 503; Newby v. Harbison, 185 S. W. 642.

The fact that Holman and Carder made their notes to appellee and paid $250 on the debt does not-of itself operate as a payment or novation. It may be evidence that the ap-pellee has accepted the obligation of the ven-dees to pay, upon which they may recover. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672. It may be doubted whether this is sufficient to show or present the issue whether the appellee consented to “so change the character of his (Wilson’s) liability to such creditor from principal to surety, as to entitle him” to the protection and treatment of a surety. Under our decisions, we are not at all certain that such a result will necessarily follow from the acceptance of the obligation of the vendee alone. If such is not a payment or a novation, the original debt may be sued on and recovery had, and as to such the character and relation of the parties are unchanged, unless the creditor consents thereto. If there is no agreement by the parties that the new evidence of the debt shall be a payment or novation of the old, then the old debt based upon the original contract fixed the character, liability, and responsibility of the parties. This case must therefore turn on the question whether the original debt, as based on the original contract, was paid or novated. If there was not a payment by the notes or a novation, it is a matter of no concern, in so far as Wilson is affected, whether the notes were more onerus than his telegram directed. If the debt was paid by the notes, or if it was novated then Wilson is not liable, his obligation or contract has been discharged, and the question of suretyship becomes immaterial in disposing of the case. There.is no evidence in this case that the appellee, at' the time Wilson sold to Holman and Carder, knew of the trade, assented to it, or agreed to accept them on such debt. On the contrary, it is shown Wilson took a mortgage on the fixtures of the drug store to secure him against the payment of this debt, evidencing that he regarded himself as liable on the debt. At that time there was no consent on the part of appellee to change the character of the debt. If, in giving the parties time, according to the request of Wilson, there was no agreement to pay the original debt, it is yet in force. It seems to us the case of Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56, is in point. The Supreme Court there says;

“The rule is established by the great weight of authority in England and the court of the American states that where a debt exists, and a note is given therefor, by the debtor, the right of action is suspended upon the original consideration until the note becomes due, and if it is unpaid at that time the creditor may elect to sue upon the original indebtedness, or upon the note, unless the note was accepted as payment of the pre-existing debt. If suit be brought upon the original consideration, and the note be negotiable, the plaintiff must show that it has not been transferred and is lost or destroyed or he must produce and surrender it.” 2 Cyc. 183.

The appellee declared upon the account and sought a recovery thereon, and upon which the trial court entered judgment. The pleadings in this case, therefore, bring it within the rule recognized in the case of Casey v. Anderson, 37 Tex. Civ. App. 223, 83 S. W. 840. The above case of Otto v. Halff is valuable upon the question, even though the notes may not be enforced by reason of an unauthorized change from the terms of the telegram, yet, 'if there was no agreement that there should be a payment of the debt, the original debt is not forfeited by the change in the notes, but suit may be had therefor upon the original consideration. Certainly this case is stronger for appellee than the case cited. The only contention herein is that the extension authorized was a payment in twelve equal installments, while the extension granted was upon twelve notes, with ten per cent, interest and attorneys’ fees, and the stipulation that a failure to pay one should mature all. The telegram itself does not purport to direct how the extension shall be evidenced, or the interest to be allowed, or the like. There is no fraud shown in taking the notes or in the change from the terms of the telegram. We think it would be a strained construction to hold the telegram did not authorize the notes. The notes did not purport to bind Wilson to their payment. It in no way obligated him upon them or to their terms. If he was not thereby released from the original debt, their form would not affect him upon his obligation. We do not believe the facts in this casé will authorize a finding that there was a novation.

To produce a novation, the intention of the creditor to discharge the first debtor, and to accept the second in his stead, must be perfectly evident. Scott v. Atchison, 36 Tex. 76; Id., 38 Tex. 390.

“Novation can only exist by mutual consent and agreement of all the interested parties, and it is subject to the same rules of evidence that obtain in regard to any other kind of contract. Not only is it necessary to prove that the creditor took a new debtor, but it must be made to appear, in order to release the old debt- or, that there was an extinguishment of the old debt, and an agreement to look to the new debt- or aloné. The mere taking of a new debtor for the old debt would not, standing alone, be sufficient to show novation.” Gimble v. King, 43 Tex. Civ. App. 188, 95 S. W. 7; Rushing v. Citizens’ National Bank, 162 S. W. 460.

The facts in the King Case, in many of its features, are quite analogous to the instant case. In this case there was no agreement between appellee and Wilson to take Holman and Carder and to release Wilson; in fact, it was admitted in the trial court there was no such agreement. There was no agreement whatever between any of the parties to take Holman and Carder for the debt instead of Wilson. On the contrary, Wilson took a chattel mortgage to secure himself ahd payable to himself. Under the uncontroverted facts and admission in this case, there could have been no substitution of a new debtor with the intention to release the old one. In fact, the telegram itself shows that it was only intended by Wilson to get an extension of the debt and not to procure, the payment of the debt by the substitution of a new debtor.

The second assignment of error will be overruled. The telegram from Stone to ap-pellee, to the effect that the appellees were authorized to accept $250 cash and the balance in twelve equal monthly payments, was, we think, admissible. Wilson had directed the appellee to Stone as his attorney. The notes had not then been executed. This telegram was not immaterial, but showed that Wiison did not consider the cash and notes a payment or a novation of the account, but he agreed thereby to extend the time for its payment. He did not, in so far as appellee was concerned, at that time stand in the attitude of a surety, and the facts that the notes contained provisions for ' attorneys’ fees and 10 per cent, interest, and default of payment of one of the notes should mature all, while not mentioned in the telegram, did not render the message inadmissible on that account. If Wilson is liable upon the original contract, the provisions added to the notes did not affect the admission of the telegram or defeat Wilson’s liability on his original undertaking.

The third assignment will also be overruled. This assignment is based on the admission of the declaration of Bramlett to the effect that it was not his purpose to release Wilson by taking the notes and cash payment. This declaration was made after the notes were taken and in the conversation with Stone, the attorney for Wilson. Stone, in that conversation, admitted that he and Wilson were not claiming a release by the acceptance of these notes. This testimony was in its nature an admission that there was no release. The whole conversation relating to that matter we think admissible. Bramlett’s assertion would render Stone’s admission understandable; that is, that it was not the purpose of either party to effect a release from the original debt. We therefore think the court correctly ruled that this would not fall under the rule excluding self-serving declarations.

The fourth assignment is also overruled. We think there was no reversible error in excluding the appellee’s book of entry, showing a credit on the account by the notes. This fact appears to have been shown in Bramlett’s testimony otherwise, and its exclusion would not be reversible error on that account. However, this entry would not prove or show an agreement to accept the notes as a novation or as a payment. Under the surrounding circumstances, the telegram of Wilson to appellee, authorizing the extension of time, the admission on his part and that of his attorney, that there was no agreement, and also his admission that he was liable on the account and no pretense that there had been any such agreement actually made except in so far as the act of taking the notes may have shown one, we do not think the mere entry in accordance with bookkeeping would have been entitled to any probative force on the question of agreement. The facts show that the account was credited with the notes, and this was all the book of the account could have shown. There was no reversible error in excluding' the evidence.

The sixth assignment presents as error the admission of the verified account sued on for the reason that it does not show a credit proper to August 30, 1913. It is claimed that the $250 paid by Holman and Carder is shown by the petition .to have been made, and the account does not appear to have been credited with that amount. The account is properly verified under the statute. Article 3712, Revised Civil Statutes. Wilson did not file a sworn denial that it was not just or true in whole or in part as required by the statute. In the absence of such a plea, the account was prima facie evidence and admissible in testimony. In addition to the above, there was no injury in admitting this account, for it is substantially admitted and proven otherwise that the account for which the judgment was rendered was due and owing by Wilson. ,

We find no reversible error, and the case will be affirmed.
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