text:
    MADDOX v. CLARK.

    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 6, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Appeal and Error (§ 1002) — Verdict— Con clusiveness.
    The question of whether false representations were made is for the jury to determine where the evidence thereon was directly conflicting.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    2. Exchange op Peopeety (§ 3) — Real Peopeety — False Representations.
    If defendant by himself, or through his agent, made positive representations relating to land exchanged which were false and material, and were relied on by plaintiff, and induced him to make the exchange, defendant is responsible therefor, though he stated to plaintiff that he had never seen the land exchanged, and referred him to another as having knowledge thereof, or offered to permit him to personally inspect it.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 3, 7; Dec. Dig. § 3.]
    3. Judgment (§ 256) — Conformity to Verdict.
    Though the verdict, in an action to recover possession of land, in which defendant prayed the cancellation, of a deed therefor executed to plaintiff by fraud, did not specifically find for a cancellation, the judgment properly canceled the deed where the verdict established .fraud and all other facts warranting cancellation.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. § 256.]
    4. Appeal and Eeeob (§ 1069) — Harmless Eeeob.
    Any remarks by the foreman of the jury in an action to recover possession of lots exchanged for plaintiff’s land, in which defendant alleged false representations as to improvements on plaintiff’s land, that he did not think plaintiff’s land was of much value, were harmless; its value not being in issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4136, 4138, 4139; Dec. Dig. § 1069.]
    5. Appeal and Eeeob (§ 1050) — Harmless Ebeoe.
    Admission of incompetent evidence as to what a former owner of the land in controversy had offered to take for it was harmless error; its value not being in issue..
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    6. Evidence (§ 317) — Hearsay.
    In an action to cancel an exchange of land for lots on the ground of fraudulent representations as to improvements on the land, evidence as to what another had told witness after the exchange, as to the price such other had once offered to take for the land was incompetent and irrelevant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dee. Dig. § 317.]
    7. Cancellation of Instruments (§ 55)— Judgment.
    Upon setting aside an exchange of land for misrepresentations, after plaintiff had transferred to a bona fide purchaser notes executed by defendant for the difference in the agreed values, the judgment should provide that execution in favor of defendant should not issue for the collection of that part of the judgment in his favor for the value of the notes transferred until he shall pay a part thereof.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Dee. Dig. § 55 ; Contracts, Cent. Dig. § 1201.]
    Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Action by S. B. Maddox against J. P. Clark. From a judgment in part for plaintiff, be appeals.
    Reformed and affirmed.
    D. J. Brookreson, of Benjamin, for appellant. ■ Jas. A. Stephens, of Benjamin, for appellee.

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

       Writ of error granted by Supreme Court.

   CONNER, C. J.

On the 5th day of February, 1913, S. B. Maddox instituted this suit against J. P. Clark in trespass to try title, and for possession of lots 7, 8, and 9, in block 21, and lots 7, 8, 9, 10, and 11, in block 19, of an addition to the town of Knox City, in Knox county. The appellee, Clark, answered, alleging, among other things, that prior to the 19th day of February, 1912, he and his wife were the owners in fee simple of the property sued for, together with lots 3, 4, 5, and 6, in block 24 of said addition; that they were old and ignorant people who could neither read nor write, and that plaintiff took advantage of their ignorance, and, for the purpose of procuring a deed of conveyance to the said property, personally and through his agent, L. P. Bennett, represented to them that he was the owner of 160 acres of land situated in Montague county that was good farming land, of which 40 acres was in cultivation; that said land had a good two-room house and good well of water near said house on said land. It was charged that said representations as to the improvement on said land were false and untrue, but that nevertheless appellee relied upon the same, and was thereby induced to exchange his said property for the Montague county land. It was further alleged that in the exchange appellee also agreed to execute his note for $500 for the difference in the agreed prices of the several properties; that appellant, knowing that appellee could neither read nor write, prepared notes different from those agreed upon, aggregating the sum of $950; that appellant had transferred said notes to a Mr. Tonn, who was an innocent purchaser for value, without notice of the fraud that was perpetrated in securing them; and that therefore said notes constituted a valid outstanding obligation against the appellee. The appellee prayed for a cancellation of the deed that he had executed to appellant, and for the value of any property conveyed thereby that should be found to have been reconveyed by appellant. He also prayed for judgment for the amount of the notes so transferred to Tonn, and for general and equitable relief. The jury returned a verdict for the defendant for all the property for which appellant sued, and for the value of certain of the lots originally owned by appellee that appellant had conveyed, and for the notes conveyed to Tohn, less certain credits specified in the verdict. Upon this verdict, the court canceled the deed to Maddox, vesting the title of the Montague county land in him, and gave appellee a money judgment as specified in the verdict, and declared a lien upon the Montague county land for the payment of the judgment for the value of the $950 vendor’s lien notes.

The principal assignments of error question the sufficiency of the evidence to support the verdict and judgment; but of this we think there can be no doubt. It is true that both appellant and his negotiating agent, L. P. Bennett, denied that they, or either of them, made the representations imputed to them; but appellee just as clearly and circumstantially testified that they were made, and in this he is substantially corroborated by his wife and daughter, who testified to their presence during a part of the negotiations. This presents a simple conflict of testimony which it was the function of the jury to determine. That the representations, if made as alleged by appellee, were material and false and operated to induce appellee to make the conveyance to appellant, is scarcely controverted in the testimony. It can make no difference that both appellant and his agent stated that they had never seen the land in Montague county, and that they referred appellee to a Dr. Smith as one knowing the land, or offered to permit appellee to first visit it. It is sufficient that appellant by himself, or through his agent, made positive representations relating thereto which were false and material, and which were relied upon by appellee, and induced him to make the exchange. See Brand v. Odom, 156 S. W. 547; Morrison v. Cotton, 152 S. W. 866; Farris v. Gilder, 115 S. W. 645; U. S. Gypsum Co. v. Shields, 106 S. W. 724; Wright v. U. S. Mortgage Co., 42 S. W. 789. The court, therefore, committed no error in overruling the motion for a new trial predicated upon an insufficiency of the evidence.

It is also insisted that appellee had ratified the contract of exchange, and was guilty of laches in the institution of the suit. It is sufficient to say, however, that a ratification was not pleaded, and that neither the period of limitation relating to actions to rescind had expired, nor has appellant pleaded or proven any such state of things as would render appellee’s suit inequitable.

It is also urged that the judgment of cancellation cannot be sustained, for the reason that the evidence shows that in the contract of exchange appellant assumed the payment of a debt secured by lien on some of the lots transferred to him. The verdict and judgment, however, credit appellant with what he actually paid on this account, and there is no evidence of an acceptance by the' creditor of appellant’s assumption of the obligation, so that no fixed liability or injustice is made to appear.

Nor do we think the judgment unauthorized by reasoR of the failure of the verdict to specifically find for a cancellation of the conveyance to appellant. The verdict established the facts warranting the cancellation, and the judgment, therefore, properly declared the legal consequence of the facts so found. To the objection that the rights of the innocent holder (not a party to the suit) of appellee’s $950 notes cannot be herein adjudicated, it will be sufficient to say that the court did not undertake to adjudicate or dispose of any right of such purchaser, and that appellant’s rights, in so far as they flow from such transfer, have or will be sufficiently guaranteed by the judgment herein.

We find no reversible error because of misconduct of the jury or of the court’s rulings on the admission of testimony. It is possible to be inferred from the statement of the foreman of the jury that he did not think the Montague county land was of very much value; but the jurors whose affidavits presented the matter denied that the statement of the foreman was considered, or had any influence in bringing about the verdict. ' Besides, there was no evidence of a misrepresentation of the value of the Montague county land, and no such issue was submitted by the judge of the court, nor did the charge otherwise authorize a verdict in appellee’s favor on the ground of a misrepresentation of value. The remark of the foreman of the jury, therefore, which relates alone to the question of value, would seem at most to be harmless, and this conclusion applies as well to appellee’s testimony relating to what Dr. Smith told him after the exchange what he (Smith) had once offered to take for the Montague land. Of course the declaration of Smith was incompetent and irrelevant, and should have been excluded; but the value of the land, as stated, was not an issue in the evidence, was not submitted, and but little consequence seems to have been attached to the question during the trial, for we find that appellant himself testified to what a drummer said of the land’s value, and appellee, without objection, was permitted to testify that the Montague county land was worth but $3 per acre, basing this conclusion on what he had been “told.” We accordingly overrule the assignments raising these questions.

We find one error in the judgment, however, that we think should be corrected. Appellee was awarded, • among other things, a money judgment for the face value of the $950 notes executed by him, and subsequently assigned by appellant to an> innocent purchaser, as stated, and for the payment of this part of the judgment a lien was declared in appellee’s favor on the Montague county-land., with direction for the issuance of execution. Appellant is undoubtedly liable as an indorser to the purchaser of the notes, who also has a lien on the Montague county land restored to appellant-by the decree.. Appellant and his land are thus subjected to a double liability, which should not be. The judgment should provide that execution in favor of appellee should not issue for the collection of that part of the judgment based upon the value of the $950 vendor’s lien notes transferred by appellant until such time, if at all, as appellee shall pay the same, or some part thereof, by virtue of his execution of the notes. The judgment herein will be so corrected; but in all other respects it is affirmed, with costs of appeal taxed against appellee; appellant having urged this defect in the judgment in his motion for a new trial, which was overruled by the court below.

Judgment reformed and affirmed.


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    HENRY OIL CO. v. HEAD.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 29, 1914.)
    1. Damages (§ 120) — Measure—Breach of Contract.
    In an action for damages for breach of a contract to sink an oil well 1,200 feet, or to oil or gas in paying quantities, in consideration of which plaintiff had assigned to defendant leases on 3,000 acres in the vicinity of the test oil wells, which then had a market value of $3,700, plaintiff, prevailing, was entitled to recover that amount, being the consideration received by defendant, though the value of oil leases in that locality had practically vanished.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 291-305; Dec. Dig. § 120.]
    2. Contracts (§ 328) — Action for Breach-Defenses.
    In an action for damages for defendant’s breach of contract to sink an oil well, defendant could not be heard to say that plaintiff would have derived no benefit from a completion of its contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1571-1584; Dec. Dig. § 328.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Action by J. E. Head against the Henry Oil Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Mathis & Kay, of Wichita Falls, for appellant Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

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

   SPEER, J.

J. E. Head sued the Henry Oil Company to recover damages for breach of a contract to dig a certain oil well, and from a judgment in his favor, the defendant company has appealed.

Head, the appellee, owned a great many thousand acres of oil leases in Archer county, leased from Henry J. Scott and others, and conveyed a portion of his holdings to the Henry Oil Company in consideration that that company would sink a well to a depth of 1,200 feet, or to oil or gas in paying quantities, said contract containing other stipulations not necessary to notice in this statement The facts attending the contract are thus found by the trial court:

“I find that the contract set forth in the plaintiff’s petition was made between plaintiff and defendant. Defendant at that time was under a contract to develop, by boring for oil and gas, the lands leased in this contract and had begun operations -by placing a rig on the property and materials for the operation of the well. The Henry Oil Company undertook by said contract to dig to a depth of 1,200 feet in any event, and if oil was not discovered by the time they reached that depth, then they contracted to sell their rig and outfit at actual cost to plaintiff to enable him to complete the well to the depth required in his contract with the owners of the soil. As a consideration for the boring of the well, the plaintiff transferred to defendant, and assigned to them leases on 2,200 acres of the Scott lands adjoining the well, and also leases on various small tracts in Archer and other counties aggregating 3,000 acres, said leases being all near to or in the vicinity of the test wells being bored or in prospect of being bored by oil operators. I find that at the time this contract was made there was considerable activity in the market for so-called ‘wildcat’ leases, or leases in places where prospect wells were being bored. Oil had been discovered in Archer county, south of the Scott lands, a distance of 10 or 12 miles, and the leases transferred by defendant to plaintiff had a market value, which I find aggregated the sum of $3,700, $1 per acre for Scott land and 50 cents per acre for the scattered lands. I find that the defendant sold a few other leases in the vicinity of the Scott well, but not many while work was progressing. The Henry Oil Company took charge of the well and proceeded to work on it, but abandoned it at the depth of about 900 feet, without the consent and against the protest of the plaintiff, Head.

“I find that at the time the well was abandoned, which was about the middle of June, 1912, several test wells in Archer county had been abandoned, others had proven to be ‘dry holes,’ and the market value of leases in that section had gone to pieces, and none were selling in the market. That the prospect of finding oil in the Scott test well was remote in the judgment of the oil men at that time.

“I find that same conditions, with reference to the market, existed throughout the whole section of country over which the leases transferred to the defendants were scattered.”

These findings are not attacked by appellant, but the sole contention is that the trial court adopted an improper measure of damages in that he allowed appellee to recover -$3,700, the reasonable market value of the leases transferred to appellant at the time of their transfer, or, in other words, that the profits which appellee probably could have made out of a fortuitous sale of his leases were too indefinite and uncertain as to form the basis of a recovery at all. A sufficient answer to this contention is, we think, that no recovery was allowed for lost profits, but the judgment is limited to what appellee actually paid appellant in pursuance of their contract. This, we think, is the very least damages to which appellee under any circumstances would be entitled. In every actionable cause actual compensation is the true end to be attained. To allow just compensation in every case demands the application of different rules for measuring the damage according to the circumstances of each case. In the present case we have no doubt but that appellee would have been entitled to complete the well undertaken by appellant, and to have charged appellant with the costs thereof, but the undisputed evidence is to the effect that this would have exceeded the amount of the judgment. We think appellant has no cause of complaint since the recovery is limited to the amount actually expended on the contract.

Appellant will not be heard to say that appellee would have derived no -benefit from a completion of its contract, for that is no concern of its. Letot v. Edens, 49 S. W. 109; Chapman v. Clements (Ky.) 56 S. W. 646; Gayton v. Day, 178 Fed. 249, 101 C. C. A. 609. Appellant received from appellee property of the value of $3,700, for which it undertook to do a specific thing, which it has failed to do. The least that can be expected of it is that it should return the consideration received.

The judgment of the district court is therefore in all things affirmed.


text:
    DUNN v. TOWNSEND et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 17, 1914.)
    Bills and Notes (§ 469) — Liability oe In-doksee — Necessity oe Fixing.
    An indorser’s liability is conditioned upon default of the maker, and upon the holder taking steps to fix such liability by instituting suit against the maker before the first term of court, etc., pursuant to Rev. St. 1911, art. 579, or by protest according to article 590, so that a petition in an action against an indorser was insufficient for not showing that his liability had been so fixed.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1494-1502; Dec. Dig. § 469.]
    Appeal from Taylor County Court; T. A. Bledsoe, Judge.
    Action by B. F. Townsend against J. E. Dunn and others. From a judgment for plaintiff against the defendant named, such defendant appeals.
    Reversed and remanded for new trial.
    C. B. Hailey, of Abilene, for appellant. Thomas F. White, of Houston, for appellee.

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

   SPEER, J.

B. F. Townsend sued M. E. Sumerford, as maker, and J. F. Flannigan and J. E. Dunn, as indorsers, on a negotiable promissory note in the sum of $200, alleging that said Sumerford had executed said note payable to the order of Flannigan on June 2, 1910, due June 2, 1912, and that on May 29, 1911, the defendant Dunn had indorsed the same to plaintiff. The defendants Sum-erford and Flannigan were not served with citation, and made no appearance. The defendant Dunn answered, and, among other pleas, demurred to the sufficiency of plaintiff’s petition. The plaintiff dismissed as to the defendants Sumerford and Flannigan, and judgment was rendered against the defendant Dunn for the amount of the note, interest, and attorney’s fees. The defendant Dunn has appealed.

Appellant not only demurred generally to plaintiff’s petition, but specially excepted thereto, because the same showed that the note sued on was due June 2, 1912, and alleges that appellant, by written transfer and indorsement, transferred said note to appel-lee on May 29, 1911; and the petition shows that suit was not brought on said note at the first term of court after the same matured, and no excuse was alleged for such failure. This exception was overruled. The statute (Rev. St. 1911, art. 1843) provides that the indorser upon any contract may be sued without the necessity of previously or at the same time suing the principal obligor when he resides beyond the limits of the state, or in such part of the same that he cannot be reached by the ordinary process of law, or when his residence is unknown, and cannot be ascertained by the use of 'reasonable diligence, or when he is dead, or actually or notoriously insolvent. The indorser of a promissory note is not absolutely liable thereon; but his liability is conditioned upon the default of the principal obligor, and upon the holder’s taking the steps prescribed by law to fix his liability. Article 579 of the Revised Statutes prescribes the methods by which the liability of an indorser may be fixed. “The holder of any bill of exchange or promissory note, assignable or negotiable by law, may secure and fix the liability of any drawer or indorser of such bill of exchange, and every indorser of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district or county court to which suit can be brought, after the right of action shall accrue; or by instituting suit before the second term of said court, after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.” The liability of an indorser may also be fixed by protest. Rev. St. art. 590. There is no showing in the petition that the liability of this appellant as an indorser was made certain by either of the methods indicated by the statute. In the absence of such showing the special exception should have been sustained, for otherwise the petition shows no cause of action against appellant. Elliott v. Wiggins, 16 Tex. 596; Smith v. Lumber Co., 92 Tex. 448, 49 S. W. 574.

For the error of the court in overruling appellant’s special exception, the judgment is reversed, and the cause remanded for another trial.


author: CONNER, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. MARTIN.

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. CONTRACTS (§ 189) — Transportation op Passengers — Mutuality of Obligation.
    Under a contract whereby plaintiff agreed to transfer all passengers furnished with coupons or checks from defendant’s station to another station in the city, and also -all checked bag-gage, at a certain price, and to he responsible for any loss of or injury to passengers or baggage, the contract to be binding on the parties and their assigns, terminable by either on 30 days’ notice, there was an implied obligation on the part of defendant to present for transportation all its passengers furnished with coupons, for breach of which plaintiff, being willing and able to perform, might recover.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig; §§ 811-845, 900-902, 905; Dec. Dig. § 189.]
    2. Contracts (§ 303) — Action for Breach-Defenses — Inability to Perform.
    In an action for breach of a contract for the transportation of passengers, defendant, who had breached the contract, could not be heard to complain, or be relieved from the consequences on the ground that, as plaintiff had transferred the contract and his outfit, he was unable personally to carry it out.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1398,1399, 1400,1463, 1464,1467-1475; Dec. Dig. § 303.]
    Appeal from Jack County Court; W. E. Fitzgerald, Judge.
    Action by J. M. Martin against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lassiter, Harrison & Rowland, of Ft. Worth, and Stark & Stark, of Jacksboro, for appellant. Fitzgerald & Cox, of Wichita Falls, for appellee.

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

       writ of error denied by Supreme Court.

   CONNER, C. J.

This appeal is from a judgment in appellee’s favor for $850 as damages for a breach of a transportation contract. The contract in question was dated November 22, 1909, and by its terms Martin was denominated party of the first part and the railway company party of the second part. The material portions of said contract are as follows:

“I. In consideration of the agreements herein stipulated the party of the first part agrees to carry and transfer all passengers of the party of the second part from its depot in the city of Jacksboro, Texas, to the depot of the Gulf, Texas & Western Ry. Co. in said city, in all cases where such passengers have transfer coupons or conductor’s checks.

“II. For the consideration mentioned the party of the first- part hereby agrees to carry and transfer all baggage from the depot of the party of the second part in the city of Jacksboro, Texas, to' the depot of the Gulf, Texas & Western Ry. Co. where said baggage is covered by through checks.

“III. The party of the second part hereby obligates itself to pay to the party of the first part twelve and one-half (12½) cents for each transfer coupon or conductor’s cheek collected and returned; and it further agrees and binds itself to pay to the party of the first part twelve and one-half (12½) cents for each piece of baggage transferred by it, covered by through cheeks.

“IV. The party of the first part hereby agrees that it alone shall be responsible for the loss, damage or delay of any' baggage, while being transferred by it; and further agrees that it alone shall be liable for any injury, damage or delay whatsoever to any passenger while in its charge.

“V. The party of the first part agrees to transfer all passengers and baggage promptly on arrival of such passengers and baggage at Jacksboro, Texas.

“VI. This agreement shall be and remain in force between the parties hereto until superseded or canceled in the manner hereinafter provided.

“VII. It is mutually agreed that this agreement shall be binding upon the parties hereto and their assigns.

“VIII. It is mutually agreed between the parties hereto that the filing of any suit or suits by the one party against the other, for the breach of any provision of this agreement shall not have the effect. of terminating this agreement, but that the same shall remain in force and effect until terminated as hereinafter provided. .

“IX. It is mutually agreed that either party to this contract may terminate it at any time by giving the other party thirty (30) days’ written notice of its desire to do so.”

The evidence tended to show that, from the date of the contract until June 28, 1911, the appellant railway company, in selling tickets to passengers destined for points on the Gulf, Texas & Western Railway, required the payment of 25 cents as a transportation fee from its depot in Jacksboro to the depot of the Gulf, Texas & Western Railway in the same town, and that pursuant to the terms of the contract appellee regularly received arid transported all such passengers, with their baggage, as presented themselves for that purpose, receiving from appellant therefor the compensation specified in the contract; that on said June 28th the appellant company made an arrangement with the Gulf, Texas & Western Railway Company for interchanging passengers and baggage at Jacks-boro by means of a through car. The Rock Island did not operate this car between the two depots, but uniformly received it at its own depot, from whence it was transported to and fro by the Gulf, Texas & Western Railway Company. After the operation of this through coach began, appellee was afforded no further opportunity of transferring either passengers or baggage, and there is evidence which would authorize the conclusion that he could and would have done so, save for the adoption of interchanging passengers and baggage by means of the through car as stated. The evidence also authorizes the conclusion that appellant at no time gave to appellee written notice of its desire to terminate the contract, as provided in its ninth clause.

The controlling question we think is one of construction. That is, do.es the contract which we have quoted imply an obligation on appellant’s part to present to appel-lee for transportation, in accordance with its terms, all such of its passengers as they had furnished with transportation coupons, as appellee insists, or does the contract, as appellant contends, amount to no more than an obligation on its part to pay appellee at the specified rates for such passengers and baggage as should in fact be presented to and actually transported by appellee? The contract, it is true, does not in express terms bind appellant to furnish or present to ap-pellee for transportation its passengers destined to points on the Gulf, Texas & Western Railway, from whom they had collected the price and furnished transfer coupons, but we think this must be implied during the life of the contract. The contract at least imported an obligation on appellant’s part not to give to another during its continuance the right that must have been contemplated by both parties thereto at the time of its execution. To hold otherwiseds to impose upon appellee the burden of furnishing ways and means for the accommodation of appellant’s passengers in the way of the transfer mentioned in the contract, and to leave it wholly optional with appellant as to whether ap-pellee should have an opportunity to reap the reward provided for by the terms of the contract.

In the case of Lewis v. Atlas Mut. Life Ins. Co., 61 Mo. 534, it is said: “It very frequently happens that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied. As, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed” to be done “by the other party, an obligation by the latter to do or allow to be doné the act or thing necessary for the completion of the contract will be necessarily implied.”

In the case of Thomas-Huycke Martin Co. v. Gray & Sons, 94 Ark. 9, 125 S. W. 659, 140 Am. St. Rep. 93, by the Supreme Court of Arkansas, it was held that a contract to receive and pay at specified rates the output of a portable mill was not lacking in mutuality because not binding the sellers to sell and deliver it, since a corresponding obligation on the part of the seller to sell and deliver the lumber would be implied from the obligation of the purchaser to purchase and receive it. This case cites, among others, the case of Minn. Mill Co. v. Goodnow, 40 Minn. 497, 42 N. W. 356, 4 L. R. A. 202, where it appears that the mill company had agreed to saw for Goodnow a specified number of feet of pine logs, Goodnow agreeing to pay therefor a specified price, but not agreeing specifically to furnish the logs to be sawed. It was held that the agreement to furnish the logs would be implied. We approve, as applied herein, the doctrine of the cases referred to and accordingly overrule appellant’s second, third, fourth, and fifth assignments involving the question.

The only remaining assignment assails the verdict of the jury on the ground that the evidence shows that appellee, Martin, assigned his contract for carrying passengers to Hardin & Flowers in March, 1912, after which time appellee was unprepared to carryout his contract personally. At most this objection would reach a portion only of ap-pellee’s recovery, but, regardless of this suggestion, we think the assignment must be overruled. The evidence at least authorizes the conclusion, evidently reached by the jury, that the contract sued upon in this case had not been assigned as charged, and that ap-pellee could and would have carried out his part of the contract notwithstanding the sale of his horses and transportation vehicles to Hardin & Flowers in March, 1912.

Moreover, if appellant breached its contract, as it seems it undisputedly did, and thereby perhaps deprived appellee of an opportunity of profitably using his transfer agencies, it ought not to be now heard to complain, or be relieved from the consequences of its breach on any such ground.

We conclude that the evidence supports the material allegations of the plaintiffs petition, and that all assignments should be overruled and the judgment affirmed.


text:
    HIGBY v. KIRKSEY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 6, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Pleading (§ 34) — General Demurrer— Construction.
    In passing upon a general demurrer, the petition must be liberally construed, giving effect to its every reasonable intendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5½, 66-74; Dec. Dig. § 34.]
    2. Landlord and Tenant (§§ 132, 150) — Entry — Repairs—Rent—Damages.
    In the absence of a provision so allowing in the contract of lease and of consent by the tenant, a landlord has no right of entry upon the leased premises, even to make needed repairs ; and a tenant may recover all damages proximately resulting from such entry, even though the rent has not been paid and the tenant is only there by sufferance.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-469. 536, 538, 54<L548, 555, 556, 1198; Dec, Dig. §§ 132, 150.]
    3. Landlord and Tenant (§ 132) — General Demurrer — Construction.
    Where in a suit one count charged malicious ouster and claimed exemplary damages, and other counts for damages for unlawful entry were good and susceptible of a construction that malice was charged, the plaintiff will be held to have stated a cause of action for exemplary damages as against a general demurrer, although the count did not state a cause of action for wrongful ouster.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-469, 1198; Dec. Dig. § 132.]
    4. Landlord and Tenant (§ 132) — Evidence —Relevancy.
    Where a landlord was charged with unlawful entry and a subsequent groundless suit of ouster, evidence that the landlord had been shown receipts for the rent, and notwithstanding brought the suit for ouster, was relevant to an issue of exemplary damages for unlawful entry, although the petition did not authorize a recovery on the ground of the wrongful ouster suit.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-⅞69, 1198; Dec. Dig. § 132.]
    5. Appeal and Error (§ 1050) — Harmless Error — Evidence—Objections.
    An objection to evidence is unavailing for reversal, where evidence of like effect has been received without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.]
    6. Appeal and Error (§ 1053) — Harmless Error — Evidence Relating to Issue Not Submitted.
    Irrelevant or immaterial evidence relating to an issue not submitted by the court’s charge will not work a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4184; Dec. Dig. § 1053.]
    7. Appeal and Error (§ 1052) — Harmless Error — Evidence—Damages.
    Objectionable evidence or argument which merely tends to swell the damages is harmless, in the absence of a complaint that the verdict is excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    Appeal from Tarrant County Court for Civil Cases; Charles T. Prewitt, Judge.
    Suit by Mrs. M. L. Kirksey against L. L. Higby. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Q. T. Moreland, of Ft. Worth, for appellant. Jas. B. Mercer, of Ft. Worth, for ap-pellee.

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

   CONNER, C. J.

Appellee recovered a judgment in the county court of Tarrant county for civil cases for $155. Her original petition upon which the trial proceeded, omitting the prayer and formal parts, is - as follows: “Comes now Mrs. M. L. Kirksey, who resides in said county and state, hereinafter called plaintiff, complaining of L. L. Higby, who resides in Tarrant county, Tex., hereinafter called defendant. For cause of action in her behalf plaintiff pleads as follows: That she was a tenant of defendant for more than three years prior to April 15, 1912, occupying a cottage owned by defendant at 1006 E. Bluff street, in the city of Ft. Worth, in said county and state, plaintiff paying defendant $8 per month rent therefor; that on or about 20th day of March, while your plaintiff was sick and confined to her bed, defendant sent carpenters, painters, and other workmen to remodel and repair said house; that defendant knew the physical condition of plaintiff; that notwithstanding said conditions of your plaintiff defendant ordered his said workmen to proceed with the repairs; that said work was done under the protest of plaintiff and plaintiff’s physician; that on account of the noises and confusion made and the odor of the paints used by said workmen your plaintiff became completely prostrated and very sick; that said sickness was prolonged for more than a month, incurring a physicians’ bill amounting to $50, and medicine bill amounting to $5 all which was necessary and is just and reasonable; that during said period of illness your plaintiff suffered much physical pain and mental anguish, to her damage in the sum of $200. Plaintiff further alleges that defendant, on April 5th, instituted ouster proceedings against your plaintiff in the justice’s court, precinct No. 1, in said county; that said writ of ouster was obtained under false and malicious allegations and representations of defendant to said court; that plaintiff has always paid her rent promptly; that at the time of the issuance of said writ of ouster your plaintiff had her rent paid up to and including April .15, 1912, all of which said defendant well knew, or by the exercise of ordinary diligence would have known; that for the said willful and malicious acts on part of said defendant and malicious prosecution plaintiff is entitled to exemplary damages in the sum of $150. Plaintiff further alleges that by the malicious prosecution and unlawful ouster proceedings and malicious treatment on part of defendant’s agents she suffered actual damages in the sum of $200 as before alleged.”

Appellant’s first, and apparently principal, assignment of error complains of the action of the court in overruling his general demurrer to appellee’s petition, his proposition being that “plaintiff’s petition did not state a cause of action, and contained no allegation of liability on the part of defendant.” Regardless of appellee’s objection to the sufficiency of the statement quoted, we find no error in the ruling complained of. In passing upon a general demurrer the petition must be liberally construed, giving effect to its every reasonable intendment, and, so construing the petition under consideration, we think it states a cause of action. It alleges facts sufficient to constitute appellee a tenant under appellant of the premises in controversy, with right of exclusive possession, which was invaded by the landlord to her damage over her protest. In the absence of a provision so allowing in the contract of lease, and of a consent by the tenant, the landlord has no right of entry upon the leased premises even to make needed repairs. See O’Connor v. Andrews, 81 Tex. 28-33, 16 S. W. 628; Taylor’s Landlord & Tenant, § 174; 22 Cyc. p. 1092. And for an unauthorized entry on the part of the landlord, the tenant may recover all damages proximately resulting therefrom. See Jenner v. Carpenter, 48 S. W. 46; Williams v. Yoe, 22 Tex. Civ. App. 446, 54 S. W. 614; Gross v. Hays, 73 Tex. 515, 11 S. W. 523; 24 Cyc. p. 1056 (iii), and cases cited in note 78. We must accordingly overrule the first assignment of error and its accompanying proposition.

Nor do we think the court erred in refusing appellant’s requested peremptory instruction. The contention that “there were no allegations in plaintiff’s petition justifying the admission of any evidence showing defendant’s liability” is sufficiently answered by what we have said in disposing of the first assignment, and, after carefully considering the evidence, we feel unable to say that “there was no evidence at all to support the verdict.” Appellee’s testimony at least raised the material issues presented in her petition, and the court, therefore, could not properly take them from the jury. She testified to the tenancy and to an entry and repairs without her consent, and to resulting discomfort and sickness, and the fact, if so accepted, that she was in default in the payment of rent, or that appellant did not know of appellee’s physical condition, will not relieve appellant of all liability for an unwarranted entry and trespass. Appellee was at least a tenant by sufferance, and the burden was upon appellant to show that he had appellee’s consent to enter. No character of entry otherwise, save such as the stat-. utes provide, was authorized, whatever ap-pellee’s condition or default. Moreover, there was evidence tending to show that appellant was informed that appellee was sick, and that she had paid her rent to one, whose act in receiving, it may be said appellant ratified.

So, too, we think appellant’s assignments relating to the introduction of evidence must be overruled. Indulging every reasonable intendment in favor of appellee’s petition, as is our duty, there being only a general demurrer which questions its sufficiency, it is susceptible of the construction that malice in appellant’s unlawful entry is charged, as well as in the institution of the ouster suit; exemplary damages being claimed. If so, the evidence complained of in the fourth and fifth assignments of error, to the effect that she had paid her rents and exhibited her receipts therefor, notwithstanding which appellant thereafter gave her written notice to quit, and instituted a groundless action to oust her, would all seem relevant to the issue of exemplary damages for the unlawful entry, regardless of the insufficiency of the petition to authorize a recovery on the ground of the wrongful ouster suit alone.

Moreover, appellee was permitted to testify without objection that “when he [appellant] came about the 19th of March, and gave me notice to vacate, and it made me sick.” This is substantially the same, in so far as objectionable, as the statement complained of in the fourth assignment, except that in the statement complained of the notice to vacate was on April 5th. It has often been held that objection to evidence is unavailing where evidence of like effect has been received without objection.

Furthermore, as the writer thinks, if it be conceded that the testimony under consideration is subject to the objections urged thereto, it is nevertheless harmless, and its admission should not cause a reversal. Under the undisputed proof appellant committed a trespass upon appellee’s possession which rendered appellant liable for all the actual damage thereby proximately caused, and no other character of damage was authorized by the court’s charge, or in fact found by the jury. Nor is there any complaint of the verdict as excessive. The evidence now under consideration is objected to-as immaterial, irrelevant, prejudicial, and without basis in the pleading.

But it has often been said that objec-tional evidence or argument which merely tends to swell the damages is harmless, in tbe absencei of a complaint that the verdict is excessive. See M., K. & T. Ry. Co. v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 511; Ry. Co. v. Cockrill, 111 S. W. 1093; S. W. States Portland Cement Co. v. Young, 140 S. W. 378. So has it often been held that irrelevant or immaterial evidence, relating to an issue not submitted by the court’s charge, will not work a reversal of a judgment. See Devine v. U. S. Morg. Co., 48 S. W. 585; Ry. Co. v. St. John, 88 S. W. 297; Lowrance v. Woods, 54 Tex. Civ. App. 233, 118 S. W. 551, and cases cited, 1 Encyc. Dig. Tex. Repts. p. 810 (i). In view, therefore, of the fact that neither the issue of exemplary damage nor of actual damage because of appellant’s ouster suit was submitted, and of the further fact that no complaint is made of the verdict or judgment for actual damages because of appellant’s unlawful entry, to which the recovery was limited by the court’s charge, it would certainly seem to the writer that the testimony questioned is harmless, as stated, and should not, under the operation of rule 62a (149 S. W. x), work a reversal of the judgment.

The submission of the issue of whether appellant knew of appellee’s sickness was favorable to appellant rather than otherwise, and we have felt unable to say that the evidence did not warrant the submission of the issues of whether defendant’s workmen, in making the repairs complained of, made noises and spread- offensive odors of paint, which caused appellee mental pain and sickness. So feeling impelled, we overrule all objections to the court’s charge and affirm the judgment.


author: DUNKLIN, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. SWAGGERTY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 29, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Appeal and Error (§ 1052) — Harmless Ebeoe — Evidence.
    An assignment of error to the admission of a telephone conversation with an agent of defendant, on the ground that there was insufficient evidence that the party talking over the phone was defendant’s agent, will be overruled where the witness further testified that he later went to defendant’s office and the agent repeated the conversation.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    2. Evidence (§ 543) — Opinions—Witnesses —Qualifications.
    Witnesses who testified that they were engaged in the business of buying, feeding, and selling cattle and were familiar with the market value of cattle generally were qualified to give their opinion as to the value of a shipment of cattle which was damaged, although they testified that they had never known of sales of cattle injured as they were, and did not know just what such cattle would have brought on the market.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2356½' — 2358; Dec. Dig. § 543.]
    3. Triad (§ 296) — Misleading Instructions — Negligence.
    A charge to find for plaintiff if the cattle sustained injuries through defendant’s negligence will not be held to have led the jury to disregard defendant’s plea of contributory negligence, where in another paragraph that plea was expressly submitted and the jury instructed to return a verdict for defendant if that plea was sustained.
    [Éd. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    4. Appeal and Error (§ 739) — General Assignments oe Error — Instructions.
    In an action against a railroad for injuries to a shipment of cattle, an assignment that a charge was erroneous “because there was no evidence to show rough handling and none to show unnecessary delay” will be overruled, where there was evidence of rough handling, even though there was none of unreasonable delay.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3034-3036; Dec. Dig. § 739.]
    5. Trial (§ 296) — Misleading Instructions —Negligence.
    Where the court assumed that defendant was negligent in some paragraphs of its charge, but in other paragraphs the issue was expressly submitted as a controverted issue, and its determination left to the jury, with further instructions that, if plaintiff’s case had not been made out by a preponderance of the evidence, the verdict should be for the defendant, and that the jury were the exclusive judges of credibility of witnesses and the weight of the evidence, the jury will be held not to have been misled.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    6. Carriers (§ 228) — Animals—Injuries— Negligence — Evidence.
    In an action against a carrier for injuries to a shipment of cattle, evidence held sufficient to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 22S.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Suit by J. F. Swaggerty against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John Speer, of Montague, and Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. H. F. Weldon, of Bowie, for appellee.

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

   DUNKLIN, J.

The Chicago, Rock Island & Gulf Railway Company was sued by J. F. Swaggerty for damages alleged to have resulted from injuries received by cattle owned by the plaintiff during a shipment from North Ft. Worth to Bowie, a distance of approximately 67 miles, and, from a judgment in favor of the plaintiff, the defendant has appealed.

The shipment left North Ft. Worth about 7 o’clock in the morning on November 11, 1911, and reached Bowie shortly before noon of the same day. By the first assignment complaint is made of the admission of the testimony of plaintiff to an alleged conversation over the telephone with a person representing himself to be defendant’s station agent at North Ft. Worth; the witness testifying that the agent told witness the cattle would be shipped out of North Ft. Worth at about 8:30 o’clock of the afternoon of November 10th. Defendant objected to the testimony upon the ground that there was no sufficient evidence that the person to whom the witness talked was the agent of the defendant authorized to make the statement alleged. This assignment is overruled for the reason that the witness further testified that he subsequently went in person to_ the office of defendant’s station agent, where' the statement over the telephone already detailed by the witness was repeated by the agent. Furthermore, the proof was uncontroverted that the cattle were not delivered to the defendant for shipment until the morning of November 11th, and in the charge to the jury no issue of liability was submitted for defendant’s failure to receive the cattle earlier than they were received.

According to testimony introduced, all the cattle were in good condition for shipment at the time they were delivered to the defendant for transportation, and upon their arrival at Bowie some of them were dead, and others were bruised and crippled. Both plaintiff and witness George Teague were permitted to give their estimates of the value of the cattle which reached their destination alive, but in an injured condition at the time of their arrival, and what would have been their value had they reached their destination in an uninjured condition. The defendant objected to these estimates upon the ground that the witnesses had not qualified to give such estimates; both of said witnesses having testified that they had never known of sales of cattle injured just as those were injured, and did not know just what such cattle would have brought on the market. Both these witnesses testified that they were engaged in the business of buying, feeding, and selling cattle and were familiar with the market value of cattle generally, and the estimates given were opinions based upon their experience in such business. We are of the opinion that there was no error in admitting the testimony.

In submitting the plaintiff’s case to the jury, the jury were instructed to return a verdict in favor of the plaintiff, if the cattle sustained injuries through defendant’s negligence. Appellant insists that, in effect, this was an instruction to disregard its plea, and evidence to support the same, that plaintiff was guilty of contributory negligence in overcrowding the cattle in the cars. However, in another paragraph of the charge, the plea of contributory negligence was expressly submitted, and the jury were told that, if that plea was sustained, then a verdict should be returned in defendant’s favor. When the charge is considered as a whole, as the jury must have considered it, we do not think that it is likely that they interpreted the paragraph assailed as appellant has suggested.

In the paragraph of the court’s charge referred to already, the grounds of negligence submitted were the alleged delay in the shipment and the alleged negligence in jerking, bumping, and jamming the cattle during the shipment. Appellant insists that there was no evidence of an unreasonable delay, and none to show that the cattle were roughly handled. Testimony that the cattle were in good shipping condition when they left Ft. Worth and that some of them were dead and others bruised and crippled upon their arrival at destination was some evidence of rough handling. According to the testimony of appellant’s conductor who handled the cattle, there was a delay at Boyd, a station between Ft. Worth and Bowie, of about 50 minutes. He further testified -that this delay was necessary in order to unload two cars of cattle and to pass another train going in an opposite direction, and that the entire trip was made in a shorter time than the ordinary schedule for such a train from North Ft. Worth to Bowie; and this testimony does not seem to have been expressly controverted by any other witness. Appellant’s proposition now under discussion is that the charge was erroneous because there was no evidence to show rough handling, and none to show unnecessary delay. As there was evidence to show rough handling, the proposition cannot be sustained, even though it should be said that there was no evidence to show a negligent delay, for to sustain the same would be erroneous for the same reason as it would be to sustain a general demurrer to a petition, one count in which set up a good cause of action, while another count showed no cause of action. Besides, we are not prepared to hold that, under all the circumstances, it was improper to submit the issue of unreasonable delay for the determination of the jury.

By other assignments it is insisted that in some paragraphs of the charge the court assumed that defendant was guilty of negligence in the handling of the cattle. In other paragraphs of the charge, however, the issue of negligence was expressly submitted as a controverted issue, and its determination was left to the jury, with further instructions that, if plaintiff’s ease had not been made out by a preponderance of the evidence, a verdict should be returned for the defendant, and that the jury were the exclusive judges of the credibility of the witnesses and the weight of the evidence. Under these circumstances, it is improbable that the jury understood any portion of the instruction as implying an opinion on the part of the court that the defendant was guilty of negligence.

We are of the opinion further that the evidence was sufficient to sustain the verdict, and that the court did not err in refusing defendant’s requested peremptory instruction to return a verdict in its favor.

The judgment is affirmed.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STOGNER et al.

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Appeal and Error (§ 1064) — Haemless EEEOE — INSTRUCTIONS.
    In an action by W. and G., an instruction to find for W. if the jury found for G., if erroneous, was harmless where, under the court’s charge, a finding for G. could not have been had without an affirmation of every material fact constituting W.’s right to recover.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    2. Trial (§ 229) — Instructions — Ignoring Issues.
    Where the issue of contributory negligence was submitted in several paragraphs of the charge, it was immaterial that other paragraphs did not refer to such issue, as the error was at most one of omission and the charge as a whole did not exclude such issue.
    [Ed. Note. — For other cases, see Trial, Cent Dig. § 513; Dec. Dig. § 229.]
    3. Carriers (§ 263) — Breach op Contract por Transportation — Contributory Negligence.
    Plaintiff paid the price of a ticket to a railroad company’s station agent, who agreed to wire a ticket to the agent at another point, where plaintiff's minor son was to call for it. Though the son called for the ticket, he was told that no ticket had been wired for him. He thereupon boarded the train without a ticket and was ejected and compelled to walk home, resulting in mental and physical pain and sickness and causing his father anxiety and mental pain because of his delay in reaching home. Held that, if the son was guilty of contributory negligence, his negligence would not be imputed to the father and did not defeat the company’s liability to the father for the breach of the contract to which he was a party.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1035-1074; Dee. Dig. § 263.]
    4. Carriers (§ 277) — Breach op Contract por Transportation — Damages.
    The father could recover compensation for his mental suffering; it being a natural consequence of the breach of the contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action by William Stogner and another against the Missouri, Kansas & Texas Railway Company of Texas.- From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    A. S. Coke, of Dallas, and John Speer, of Bowie, for appellant. W. W. Alcorn, of Montague, and A. L. Scott, of St. Jo, for ap-pellees.

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

       Writ of error denied by Supreme Court.

   CONNER, C. J.

On January 3, 1912, ap-pellee William Stogner, who resided at St. Jo in Montague county, a point on appellant’s line of railway, had a minor son, George Stogner, at or near the town of Henrietta, in Clay county, also on the line of appellant’s railway, who was without means and whom the father desired to come home. E or the purpose of accomplishing the desired end, and in answer to a request of the boy over the phoné to do so, William Stogner went to the station agent at St. Jo, who agreed, in appellant’s behalf, for the price of a ticket then paid by William Stogner, to wire to the company’s agent at Henrietta a ticket from the latter place to St. Jo; the arrangement further being that George Stogner would call upon the Henrietta agent for the ticket. The evidence authorizes the further conclusion that George Stogner in due time appeared at the Henrietta station and called for the desired ticket to St. Jo; that the agent at Henrietta told him that no ticket had been wired for him and no ticket or other right was delivered to the son for transportation. The desire of George Stogner, however, was such that upon the incoming of the passenger train from Henrietta to St. Jo he boarded it without a ticket, but was ejected therefrom at the town of Ringgold by the conductor of the train, notwithstanding his insistence that an arrangement for a ticket had been made. This ejection occurred late at night, and the weather was very inclement. George Stogner nevertheless proceeded to walk on his homeward journey, and, as the evidence tends to show, suffered mental and physical pain and confinement in bed by reason of sickness. The father was expecting to meet his son upon the arrival of the train referred to in St. Jo at 3 o’clock a. m.; but, the son not appearing, the evidence authorizes the conclusion that the father suffered anxiety and mental pain between the hour of the expected arrival and the next day, when the son finally reached home, and also expended money for medical attendance and medicines during the short period of the son’s confinement on account of his sickness. The father and son instituted this suit for the damage so occasioned and recovered a judgment in the sum of $50 each, and the railway company appeals.

We find no sufficient error for disturbing the judgment below. The error, if any, of the court in instructing the jury to find in favor of the plaintiff William Stogner in event they found in favor of George Stogner was harmless, inasmuch as under the court’s charge a finding in favor of George Stogner could not have been had without an affirmation on the part of the jury of every material fact in issue constituting William Stogner’s right of recovery.

The issue of George Stogner’s contributory negligence, if indeed the evidence raises the issue, was submitted in several paragraphs of the court’s charge, and it is immaterial therefore that the issue was not referred to in other paragraphs to which error has been assigned on the ground of such omission. In other words, the error, if any, was at most one of omission and the charge, construed as a whole, as it must be, is not subject to the objection that it excludes the issue of contributory negligence.

Special charges Nos. 3, 5, and-6, to the rejection of which error is assigned, were properly refused for the reason, if for no other, that they required findings against William Stogner in event of a finding that George Stogner was guilty of contributory negligence. We are not inclined to think that the evidence raised the issue of contributory negligence on the part of George Stog-ner, but, if so, it would not be imputed to the father, who was a party to the contract and to whom appellant was certainly liable for its breach.

The eleventh paragraph of the court’s charge instructed the jury to the effect that, if they found for William Stogner, they would assess his damages at what the jury believed from the evidence would be the reasonable value for the services of George Stogner during the period of time George Stogner was sick, “if he was sick as a result of the negligence of the company”; also compensation for the doctor’s bills and medicine expended by William Stogner in having his son treated, and further for "his mental and physical suffering,” if any. The most serious objection to the charge is that William Stog-ner was not entitled to compensation for his mental and physical suffering. But inasmuch as William Stogner was a party to the contract, we think appellant was liable for all the natural consequences of its breach, including compensation for any mental suffering caused William Stogner. G., C. & S. F. Ry. Co. v. Coopwood, 96 S. W. 102; I. & G. N. Ry. Co. v. Anchonda, 68 S. W. 743.

No other question is presented which we think merits discussion, and, believing that the evidence supports the recovery, it is ordered that all assignments of error be overruled, and the judgment affirmed.


author: HENDRICKS, J.

text:
    GARRETT et al. v. A. G. McADAMS LUMBER CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1913.
    On Motion for Rehearing, Jan. 17, 1914.)
    1. Schools and School Districts (§ 81)— School Buildings — Contractors’ Bonds— Persons Protected.
    Where the contractors for a school building gave a bond, conditioned to promptly pay and discharge all indebtedness that might be incurred by the contractors, and to free the building of all mechanics’ liens, a materialman is not entitled to sue on the bond, notwithstanding a provision that it was made for the use and benefit of all persons who might “become entitled to liens,” for a school building is not subject to liens under the statute.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.]
    2. Pleading (§ 408) — Petition—Defects— Waiver.
    Where a petition shows on its face that no action can be maintained, the failure of the defendants to demur or except is not a waiver of the defect, which can be taken advantage of by answer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1362, 1366; Dec. Dig. § 408.]
    3. Schools and School Disteiots (§ 81)— School Buildings — Conteactoe’s Bond-Action by Materialman — Cross-Action.
    Where, a contractor gave a bond to a school district conditioned to complete the building free from mechanics’ liens, and a materialman sued the contractor, his bondsmen, and the school district, the school district can maintain no cross-action on the bond, for the material-man could not acquire a lien against the building.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.]
    4. Schools and School Disteiots (§ 81)— Attorney’s Fees — Allowance.
    Where a contractor, to erect a school building, gave a bond conditioned to keep the building free from mechanics’ liens and a material-man, who could never acquire a lien upon the property, sued the contractor and the district, the district is not entitled to attorney’s fees for defending the suit.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.]
    5. Appeal and Eeeoe (§ 1173) — Reversal as One oe Several Pasties.
    Where a materialman sued the contractor for a school building, the school district, and the contractor’s surety, and judgment was rendered in favor of the materialman against all parties, the school district being given a judgment over against the contractor and his surety, and the surety a judgment over against their principal, the reversal of the judgment against the sureties carries with it the judgment against the school district, even though the district did not appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.]
    On Motion for Rehearing.
    6. Judgment (§ 533) — Construction.
    In an action by a materialman against the contractor for a school building, his surety, and the school district, a judgment, which on its face shows that the recovery in favor of the materialman was based on the bond and not upon the act of the district in accepting the contractor’s order for part of the compensation, is an implied finding against that contention of the materialman.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 978, 983; Dec. Dig. § 533.]
    Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.
    Action by the A. G. McAdams Lumber Company against H. N. Garrett and others. From a judgment for plaintiff, and judgments over in favor of some of the defendants against others, defendants appeal.
    Affirmed in part and in part reversed and remanded,
    John. B Howard, of Midland, and R. D. Browne, of Paducah, for appellants. Jos. H. Aynesworth, of Childress, and Jas. M. What-ley, and J. M. Hawkins, both of Paducah, for appellee.

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

   HENDRICKS, J.

The A. G. McAdams Lumber Company, a corporation, and the ap-pellee in tlais court, brought suit in the district court oí Cottle county, against Nugent & Bowns, building contractors, against the Common School District No. 1 of Cottle county, Tex., and the Board of Trustees, in their fiduciary capacity, and ,-also against said trustees individually, and against H. N. Garrett, T. A. Fannin, W. H. Brunson, and H. M. Ramsey, the latter as sureties for the said Nugent & Bowns, upon a bond conditioned for the faithful performance of the said Nugent & Bowns in building a certain school building for the Common School District, and furnishing the lumber and materials therefor for that purpose.

The district court, without the assistance of a jury, rendered judgment in favor of the McAdams Lumber Company for $1,-750.40, as follows: First, a general judgment against all of the defendants; and, second, a judgment in favor of the Mc-Adams Lumber Company against the partnership of Nugent & Bowns, and the Common School District, and also against the sureties upon the bond of Nugent & Bowns, executed in favor of said Common School. District, and another judgment in favor of the sureties against Nugent & Bowns, the principal obli-gors in the bond, and judgment in favor of the Common School District against Nugent & Bowns, and the sureties, Garrett, Fannin, Ramsey, and Brunson, “jointly and severally for any and all sums which it may have to pay in satisfaction of said judgment”; the court finding in favor of the school trustees as individuals against the plaintiff for the amount sued for. The following in the bond executed by Nugent & Bowns and these sureties in favor of the Common School District: “Know all men by these presents: That we, Nugent & Bowns, and W. H. Brunson, H. M. Ramsey, H. N. Garrett, T. A. Fannin, of the city of Midland, county of Midland, state of Texas, are held and firmly bound unto R. H. Foard as president of the school board of Cottle county and state, as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned, in the sum of eight thousand dollars, lawful money of the United States of America, to be paid to the said R. H. Foard, and to said parties who may be entitled to liens, their executors, administrators, or assigns; for which payment well and truly to be made, we bind ourselves, one and each of our heirs, executors and administrators, jointly and severally, firmly, by these presents. Sealed with our seals; dated this 4th day of May, 1910. The condition of this obligation is such that if the above bounden Nugent & Bowns, his executors, administrators or assigns, shall in all things, stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in above-mentioned contract, entered into by and between the said Nugent & Bowns, and the said R. H. Foard, dated on the 30th day of April, 1910, for the construction of the work or works on the lot mentioned in the foregoing contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Nugent ■& Bowns, in carrying out the said contract, and complete the same free of all mechanics’ liens, and shall truly keep and perform the covenants, conditions and agreements in said contract and in the within instrument contained in his part to be kept and performed,' at the time and in the manner and form therein specified, as well as all costs including attorneys’ fees in enforcing the payment and collections of any and all indebtedness incurred by the said Nugent and Bowns, in carrying out the said contract, then the above obligations shall be void; else to remain in full force and virtue. This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided and may be sued upon by them as if executed to them in proper person.”

This character of bond, in fact, one of exact language involved in this record, was passed upon, with reference to the liability of the sureties for material furnished the contractor and principal obligor, in the ease of Republic Guaranty & Surety Company v. William Cameron & Co., 143 S. W. 317, 318, 319. Chief Justice Wilson said: “There is language in the bond which, if considered alone, would indicate an intent of the parties thereby to secure the payment of any and all indebtedness, without reference to whether it was in favor of parties entitled to fix liens on the property or not, * * * incurred by Heck & Newlander, in carrying out their contract to construct the house. But we do not think this language should be permitted to control in the interpretation of the bond, for other language in the instrument clearly indicates that such was not the intention of the parties. The obligation of the bond, it will be noted, was to Cantwell (for whom the house was to be constructed), and ‘to all persons who may become entitled to liens under’ his (Cantwell’s) contract with Heck & Newlander, and not to persons generally, to whom Heck & Newlander might become indebted in complying with their contract. And it also will be noted that the bond concludes with the declaration as to its purpose inconsistent with an intent to have it inure to the benefit of any creditors of Heck & Newlander, other than those who might become entitled to liens on the property. The declaration referred to is as follows: ‘This bond is made for the benefit of all persons who may become entitled to liens under said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper persons.’ ” In the case here, the McAdams Lumber Company occupy the same position of William Cameron & Co., in the ease cited; the Common School District oe-cupifes the same position as Cantwell, who in that case was having the house constructed, and Heck & Newlander, who were the contractors, and with the Surety Company, are occupying, respectively, the same position as Nugent & Bowns, the contractors, and the sureties who are the appellants here. The property of Cantwell in that case constituted his homestead, and there could be no lien upon the property. In this case the school building for the Common School District, by inhibition of law, could not have a lien fastened upon it. There is no privity of contract in this case between the McAdams Lumber Company and the Common School District or the sureties upon the bond. The bond does not inure to the benefit of simple contract creditors, and its conditions are not broken unless liens are fastened upon the property. Hence the petition of the McAd-ams Lumber Company, in so far as its allegations are concerned against the sureties upon this bond, clearly predicating this suit upon contract and bond, and, there being no right, of subrogation or any privity of contract between it and the bondsmen, fails to show a cause of action against said sureties.

It is the law of this state that as to a condition of this kind, when the foundation of the action has manifestly failed, the omission even of a party to except to the pleadings of his antagonist will not permit a judgment upon a petition which discloses such an entire want of any proper element of recovery. You may admit the verity of every fact asserted in the petition; however, a demurrer would not be waived. Borden et al. v. Houston, 2 Tex. 595; Powell v. Davis, 19 Tex. 380; Patterson v. Goodrich, 3 Tex. 331, and other later cases which it will be unnecessary to cite.

The appellee has" asserted that the question of the failure of the petition to show cause of action is not raised in limine, and is interposed only by an answer to the merits. This is immaterial where we are concerned with substance and not form. The appellee sues upon an open account for material furnished the original contractors, but is unable, of course, to charge a lien upon the property. It also sues upon an order given by Nu-gent & 'Bowns, in its favor, against the Common School District, which was accepted by the trustees, but repudiated, it seems, by the county judge, who was superintendent of the school district, and the trustees after-wards paid the money reserved by it, that is, 20 per cent, of the contract price, to Nugent, one of the partners, and with reference to which the sureties were in no wise concerned. The Common School District also sued Nu-gent & Bowns and the sureties, praying for recovery against the latter, and in the event of a judgment against it upon the bond and the contract, without the semblance of a ground of recovery, in so far as the Mc-Adams Lumber Company’s demand is concerned. Demurrers should have been sustained to that part of the cross-action of the Common School District against these sureties, as there could be no recovery by it against them, with reference to the McAdams matter, for the reason that a breach of the bond or contract could not, by any process, be construed in favor of a simple contract creditor.

We do not think that these sureties are liable for attorney’s fees in favor of the Common School District, in defending a suit in which they are in no wise interested, or at least should not be in contemplation of law, and the only possible recovery that could exist in favor of said Common School District against said sureties is the $5 a day penalty, on account of the delayed completion and delivery of the building, and then the cross-action of the second district in that matter should be reframed in conformity with the contract. The school district in this court moving to strike the statement of facts from the record, because it did not participate in its preparation or agree to the same, and the statement of facts having been filed late, that motion will have to be sustained to that extent only. The McAdams Lumber Company, through its counsel, agreed in open court that as to it the statement of facts could stay in the files. We will say, however, we have not resorted to the statement of facts for the purpose of revising this cause, for the reason that this cause is reversed and remanded, and should be in favor of the sureties against the McAdams Lumber Company, and the Common School District, on the pleadings, with instructions that, if they are the same upon another trial, to render a judgment in their favor.

This matter arises upon the transcript. There being a general judgment against all the defehdants, and as all the rights of the McAdams Lumber Company against the Common School District can only be measured by the contract, the reversal of the judgment as to the sureties carries with it a reversal as to all the parties. Willie v. Thomas, 22 Tex. 175, and cases cited therein. The judgment against Nugent and Nugent & Bowns, the partnership, for the lumber, which is separate from the written contract and bond, is, however, ordered affirmed in favor of the McAdams Lumber Company.

Affirmed in part, and reversed and remanded in part.

On Motion for Rehearing.

The appellee, the McAdams Lumber Company, among other things, especially insists that this court erred in reversing and remanding the cause in favor of the Common School District, for the reason that it did not appeal, neither did it assign error in this court, and for the further reason that it predicated its recovery against the Common School District upon two counts in its petition: First, that the contract and the bond executed by Nugent & Bowns, the contractors, and their sureties, inured to the benefit of the Common School District; and, second, that the Common School District was bound upon an order and an acceptance executed by Nugent & Bowns for the amount of the debt in favor of the' McAdams Lumber Company, for material furnished, and specifically urging that a general judgment having been rendered against the Common School District, that its cause of action, particularly upon such order and acceptance, should stand. We said, in the original opinion in this cause: “There being a general judgment against all of the defendants, and as all the rights of the McAdams Lumber Company against the Common School District can only be measured by the contract, the reversal of the judgment as to the sureties carries with it a reversal as to all .the parties.” This language should be applied to, and be taken in connection with, the character of judgment which was rendered against all the defendants, including the Common School District; after rendering judgment in favor of the McAdams Lumber Company against the Common School District, it then provides: “It is further ordered, adjudged, and decreed that the defendant Common School District No. 1 of Cottle county, Tex., do have and recover over and against the said Nugent & Bowns, a copartnership composed of W. P. L. Nu-gent and B. Bowns, and (against) H. N. Garrett, T. A. Fannin, H. M. Ramsey, and W. H. Brunson (sureties), jointly and severally for any and all sums which it may have paid in satisfaction of said judgment aforesaid.”

Clearly, the judgment shows that the court, in rendering judgment in favor of the McAdams Lumber Company against the Common School District, based the same entirely upon the bond and contract executed by Nugent & Bowns, and the sureties, to the Common School District; that the McAdams Lumber Company, upon some theory, was a beneficiary of said bond. The court would not have rendered a judgment in favor of the McAdams (Lumber Company against the Common School District, based upon the order and acceptance, and then rendered a judgment in favor of the Common School District against the sureties upon the bond. The liability of Nugent & Bowns upon the assignment of any part of the fund in the hands of the trustees of the Common School District was upon a different contract and independent of the liability upon the bond. Hence, if the judgment upon the face of it shows that the recovery against the Common School District, in favor of the McAdams Lumber Company, was based upon the bond and not upon the acceptance, then under the authorities there is in reality an implied finding by the court against a recovery in favor of the lumber company upon the acceptance. The expression of one thing is the exclusion of the other.

The Supreme Court of this' state, in the case of Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77, the syllabus of which we quote as properly reflecting the opinion as to the particular matter under discussion, said:“Where the pleadings in a (former) suit put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, it is prima facie an adjudication that he was not entitled to recover upon such other cause.” Chief Justice Gaines, in the case of Davies v. Thompson, 92 Tex. 391, 49 S. W. 215, followed Justice Denman, who rendered the decision in the Raekley-Fowlkes Case, in a declaration of the same principle, and which we are inclined to think is applicable to the cause under consideration. The appellee says in his second counter proposition under the fourth assignment of error in his original brief: “This suit was not brought by the defendant school district, but was brought wholly and solely by the plaintiff against the said several bondsmen and the school district jointly and severally, and the plaintiff’s rights are based, first, upon the bond, and, second, upon the O. K.’d order for the amount of the bill,” etc. The trial court, evidently upon this construction, upon some theory of liability upon the bond, permitted a judgment based upon a joint and several liability in favor of the Mc-Adams Lumber Company and against the Common School District and the sureties— first, a judgment upon the bond sued upon in. the first count of plaintiff’s petition, and then, in favor of the school district against the sureties upon the same bond. If that be true, an adjudication of the liability of the Common School District on the bond, upon the authority of the two cases, supra, is prima facie an adjudication that the Mc-Adams Lumber Company was not entitled to recover upon the acceptance; hence, when we reverse the judgment of the McAdams Lumber Company against the sureties upon the bond, a reversal as to one defendant with reference to this bond operates a reversal as to all, because the character of the judgment, logically considered, shows that it could not have been based upon the acceptance. Mc-Rea v. McWilliams, 58 Tex. 334.

The sufficiency of the petition upon general demurrer, against the school district, grounded upon the order and acceptance, and the sufficiency of the evidence in the stricken statement of facts, in view of another trial, to support a judgment upon said acceptance, are not before us, and we are unable to discuss it. It is true that to that extent there is no assignment, the Common School District not appealing or objecting; as to that matter, there is no predicate upon which we could base a discussion. What we say with reference to the rights of the Me-Adams Lumber Company is called for by its insistence tbat a reversal of the sureties with reference to this bond could not operate as a reversal of the cause in favor of the Common School District.

We are inclined to think that our former disposition of this cause was correct, and the motion for rehearing is in all things overruled.


text:
    TABOR et al. v. MODERN WOODMEN OF AMERICA.

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Insubance (§ 757) — Fraternal Insurance-Death During Suspension — ByLaws.
    Where a by-law of a fraternal association provides that a member failing to pay a benefit assessment shall be suspended, and that during such suspension his benefit certificate shall be absolutely void, where a member dies during his suspension, his beneficiaries have no interest in the certificate, although by another bylaw a member was given the right to be reinstated on payment of all his dues within 60 days, which term had not expired at the time of the member’s death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1919; Dec. Dig. § 757.]
    2. Insurance (§ 759) — Benefit Insurance— Suspension op Member.
    Where an assessment was levied November 17, 1910, and under the terms of the benefit certificate the member had until the last day of December, 1910, to pay such assessment, failure to pay on or before December 31, 1910, forfeited the certificate, and the beneficiaries wore not, after decedent’s death, allowed 60 .days, given to the member under a by-law, after such forfeiture to make the delinquent payment and reinstate the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1920, 1921; Dec. Dig. § 759.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Action by Minnie Tabor individually and as next friend, etc., against the Modern Woodmen of America. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Smoot & Smoot, of Wichita Falls, for appellants. Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

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

       Writ of error denied by Supreme Court

   SPEER, J.

This suit was brought by Minnie Tabor, for herself and as next friend for her minor children, against the Modem Woodmen of America, a beneficial insurance company, to recover on a policy of insurance for $2,000 written on the life of A. B. Tabor, her deceased husband. The company answered, denying generally and pleading specially that the insured had failed to pay two assessments of $1.60 each, due, respectively, in November and December of 1910, together with certain local camp dues, in consequence of which the policy had been forfeited prior to the deceased’s death. , The court before whom the case was tried without a jury rendered judgment for the defendant, and the plaintiff has appealed.

Only two questions are raised by the various assignments presented. The first is that the representatives of the deceased had 60 days after the forfeiture of the certificate and the suspension of the member within which to make payment to the company. The case was tried upon an agreed statement of the facts from which we take the following:

“It is agreed that at the regular monthly session of the board of directors of said Modern Woodmen of America, held at the principal office of said society at Rock Island, Ill., on November 14, 1910, inclusive, and at the session held at 1 o’clock p. m. November 18,1910, where the directors E. E. Murphy, A. N. Bort, and J. A. Rutledge were present, the director O. J. Byrns was absent, there being a quorum of said board of directors present, Director Rutledge introduced the following resolution which, upon motion, was unanimously adopted, to wit: ‘Whereas, the claims approved, allowed, and ordered paid at this meeting of the board of directors amount to $1,047,500, with claims heretofore allowed and remaining unpaid of $123,376.30, and contingent claims amounting to $477,000, a present aggregate liability of $1,647,876.30, that from the present condition of said fund it is the judgment of the board of directors that an assessment should be levied: Therefore be it resolved that assessment No. 258 for the month of December, 1910, be, and the same is hereby, levied upon the beneficial members of the society in good standing to pay benefits upon the certificates of deceased beneficial members whose death occurred while in good standing; that the head clerk prepare the notice of the levy of this assessment and cause same to be published in The Modern Woodman, the official paper of this society, December 1910 number thereof.’

“It is further agreed that the said Albert B. Tabor was duly and regularly notified of the levy of said assessment, as required by the by-laws of said defendant; that pursuant to the levy of said assessment said Albert B. Tabor was1 required to pay to the clerk of said Wichita Falls Camp No. 12,006, of which he was a member, the sum of $1.60 within the time fixed and provided in the bylaws; that the said Albert B. Tabor failed and neglected to pay the- said sum of $1.60 to the clerk of said camp on or before the 31st day of December, 1910, and by reason thereof the clerk of said camp reported to the head clerk of defendant society that the said Albert B. Tabor failed to pay said assessment, and became suspended on the 1st day of January, 1911.

“It is agreed, that the head clerk of said defendant, whose office is at Rock Island, Ill., received the notice of the failure of said Tabor to pay said assessment No. 258 on or before the 20th day of January, 1911, said information being conveyed in tbe regular pass report of said Camp for tbe month of December, 1910; that thereafter in due course of post, to wit, on tbe 24th day of January, 1911, C. W. Hawse the head clerk of said defendant, mailed to said Albert B. Tabor a notice of suspension; that said notice of suspension was forwarded by United States mail, postage prepaid, on January 24, 1911, addressed to Albert B. Tabor, Wichita Palls, Tex., 401 Burnett street.

“It is further agreed that neither the said Albert B. Tabor, nor any person for him, tendered or offered to pay the aforesaid assessments, or either of them, at any time during his lifetime, but after his death, which occurred on January 29, 1911, an amount equal to the sum of said assessments 257 and 258 was tendered to the clerk of the local camp at Wichita Palls, Tex., by the representatives of the plaintiffs herein, and that the said tender was refused by said local camp clerk; that said tender was made in the month of February, 1911, and within 30 days after the death of the said Alfred B. Tabor.”

Those portions of the by-laws which, under the terms of the certificate, are a part of the contract of insurance, and which bear upon the first contention, to the effect that the legal representatives of deceased have 60 days within which to pay the delinquent assessment, are as follows:

“Every beneficial member when so notified that a benefit assessment has been levied and ordered collected by .the board of directors, who shall fail to pay same on or before the last day of the month following such levy, or shall fail to pay his local camp dues on or before the last days of the months of March, June, September, or December, or who shall fail to pay with the assessments next due, thereafter levied, any fine regularly imposed upon him shall, ipso facto, become suspended and during such suspension his benefit certificate shall be absolutely null and void. Camp clerks shall not accept in the months of March, June, September, or December, assessments, unless such payments be accompanied by camp general fund dues in advance, nor dues in advance unless the assessment current on the date of the payment be also paid.

“Any member suspended for the nonpayment of dues, assessments or fines, if not engaged in any of the prohibited occupations mentioned in section 12 hereof, may be reinstated by payment within sixty days from the date of suspension of all arrearages of every kind including current' assessments and all fines, dues and assessments of which he may have been liable had he remained in good standing, provided, however, that he be in good health at the time of reinstatement; provided further that the receipt and rendition of assessments or dues in case the suspended neighbor is not in good health or is engaged in any such prohibited occupations shall not have the effect of reinstating such member, or entitling him or his beneficiaries to any rights under a benefit certificate.”

We think the language quoted will not admit of the interpretation that the 60 days allowed for reinstatement after suspension were days of grace within which payment might, at all events, be made, and during which time the benefit certificate would be in force. The language employed is very emphatic, and indicates an unmistakable intention upon the part of both parties that the failure of the insured to pay an assessment on or before the last day of the month following its levy shall work an absolute forfeiture of the certificate, and that from and after that time until reinstatement neither ■ the insured nor his beneficiaries could have any rights thereunder.

The other question presented on the appeal is that under the agreed facts the levy of assessment No. 258 was not made until during the month of December, and that under the operation of the by-laws, therefore, the deceased had until the last day of January in which to make payment, and, his death having occurred on the 29th day of January, he was not at that time in default, and the plaintiff was entitled to recover. The facts already stated, however, show unmistakably, as we think, that assessment No. 258 was duly levied on November 18, 1910. There is no evidence of the assessment’s having been levied at any other time. So that under the terms of the contract the insured had only until the last day of December, 1910, within which to make payment. We are aware that the rule of construction in such contracts is that that interpretation most favorable to the insured must be adopted, but this is a rule of construction of a contract actually made, and never authorizes the making of a different contract. The facts as we understand them are capable of only one interpretation, and that is in accordance with the judgment of the trial court holding that the failure of the deceased to pay assessment No. 258 on or before December 31., 1910, forfeited the benefit certificate, and that the legal representatives of deceased were not allowed 60 days from and after such forfeiture within which to make the delinquent payments, and thus, to reinstate the policy after the deceased’s death.

, The judgment is in all things affirmed.