author: BROOKE, J.

text:
    CANTWELL v. SUTTLES et al.
    (No. 263.)
    (Court of Civil Appeals of Texas. Beaumont.
    May, 1917.)
    1. Appeal and Error <&wkey;1012(l) — Review-Finding or Court.
    Unless the trial court’s finding is against the great weight and preponderance of the evidence, so as to 'be manifestly wrong, it should be upheld by the appellate court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992.]
    2. Elections <@=^295(1) — Qualification of Yoter— Sufficiency of Evidence.
    In suit contesting the election of commissioners for a drainage district, evidence held to sustain the court’s finding that a voter was not qualified because he had not resided within the district for six months preceding the election.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 297.]

      3. Elections &wkey;293(2) — Residence oe Voter —Evidence—Statements oe Wiee. '
    In view of the law fixing the place where a voter is entitled to vote as being where his wife resides, when he is not permanently separated from her, statements by the wife of a voter at an election for commissioners of a drainage district, tending to show where she resided, were admissible, in suit contesting the election, as throwing light on the disputed Question of the voter’s residence. •
    [Ed. Nóte. — Por other cases, see Elections, Cent: Dig. § 289.]
    4. Appeal and Error <&wkey;1054(l) — Harmless Error — Evidence—Trial to Court.
    In suit contesting the election of drainage commissioners, where there was ample testimony, the admissibility of which was not Questioned, sustaining the court’s findings as to the residence of a voter, the admission of objectionable testimony on the point was harmless; the trial being to the court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4185.]
    5. Elections <&wkey;295(l)- —Qualification of Voter — Sufficiency of Evidence.
    In suit contesting the election of commissioners of a drainage district, evidence held to sustain the court’s finding that a voter was qualified to vote on drainage commissioners.
    [Ed. Note. — Por other cases, see Elections, Cent. Dig. § 297.]
    6. Elections &wkey;>291 — Illegality of Vote-Burden of Proof.
    In suit contesting the election of drainage commissioners, the party challenging a voter has the burden to prove the vote was illegal.
    [Ed. Note. — Por- other cases, see Elections, Cent. Dig. § 286.]
    7. Taxation &wkey;>98 — Place of Taxation — Personalty.
    Personal property is subject to taxation in the county or district where it is situated.
    [Ed. Note. — Por other cases, see Taxation, Cent. Dig. §§ 196-198, 200.]
    8. Appeal and Error <&wkey;1008(l) — Review-Finding on Uncontradicted Testimony.
    The trial court’s finding on the uncontradict-ed testimony of a witness is conclusive on the Court of Civil Appeals.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3955.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Suit by J. H. Suttles and others against H. L. Cantwell and others. Prom the judgment, defendant Cantwell appeals.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellant. C. H. Cain and E. B. Pickett, Jr., both of Liberty, for appellees.
   BROOKE, J.

This suit was filed for an injunction by J. H. Suttles, J. C. Akin, and George Parker, individually, and by the Liberty County drainage district No. 2, acting by said Suttles, Akin, and Parker, as commissioners for said district, as plaintiffs, against the appellant, H. L. Cantwell, and also H. C. Abshier and the county judge, and four county commissioners of Liberty county, as defendants; and by their petition plaintiffs alleged that said Suttles, Akin, and Parker were the duly elected, qualified, and acting commissioners for said drainage district, and at a general election held on November 7, 1916, throughout Liberty county, they were candidates for re-election as such commissioners, and that the defendants Cantwell and Abshier were also candidates for the same office; further it was alleged that said election was null and void, and an injunction was sought restraining the commissioners’ court from canvassing the returns of said election and declaring the result; thereof, and a temporary injunction to that effect was granted. Plaintiffs further alleged that if said election was held legal and valid, then and in that event the 'said Suttles, Akin, and Parker received a majority of the legal votes cast in said election, and were lawfully elected as commissioners for said drainage district, and to maintain that plea there were allegations particularly charging; certain votes to have been illegally cast. Also plaintiffs alleged that they were rightfully and legally vested with the title to said office-of drainage commissioners and were in law the owners of title to said office, which is of the value of more than $500. Further, it was alleged that defendants were asserting title to said offices and making the claim that they had been duly elected thereto, and' were preparing to attempt to qualify and take possession of and deprive plaintiffs thereof, and thus to interfere and hinder" them in the performance of their- official duties. And the prayer of plaintiffs was that the temporary injunction which had been granted be perpetuated, and,- further, that they have judgment perpetually enjoining the defendants Abshier and Cantwell from thereafter in any manner interfering with- or attempting to interfere with plaintiffs-in the performance of their duties as drainage commissioners, and for full relief, legal and equitable, general and special.

The defendants Cantwell and Abshier, calling them contestees in their answer, pleaded a general denial, and by special pleadings attacked the legality of several votes cast for plaintiffs. Upon a trial before the court, the said election was held legal, but the-court found that five illegal votes were cast as follows: By Dr. H. C. Smith, August Fregia, and M. E. Ackers, who voted for the-candidates H. C. Cantwell and H. C. Abshier; and by C. J. Barrow and H. A. Hotchkiss, who voted for the plaintiffs Suttles, Akin,, and Parker. And after deducting those illegal votes from the total number of votes returned for the several candidates, the court concluded that H. C. Abshier received 16-votes, and J. H. Suttles received 15 votes, and that they were duly elected as commissioners for said drainage district in said election, and that J. C. Akin and H. L. ■Cantwell' had each received 14 votes, and therefore referred to the county commissioners’ court the question of appointing a commissioner for said third place, in accordance with the law in such cases made and provided.

Only H. L. Cantwell appealed from said ■judgment, and upon his request the trial court filed findings of fact and conclusions of law as follows:

“Findings of Fact.
“(1) The court finds that at the general election held in Liberty county, on November 7, 1916, the following persons were candidates for the office of drainage commissioner of Liberty county, drainage district No. 2, namely: J. H. Suttles, J. C. Ak|n, Geo. Parker, H. C. Abshier, H. L. Cantwell, and M. E. Akers, and that said candidates were balloted on at the Raywood voting box which is located in said drainage district and is the usual voting place for election precinct No. 11 of Liberty county.
“(2) That Geo. Parker bad been duly appointed by the commissioners’ court as presiding judge of'said election precinct No. 11, but being a candidate at said election for the office of drainage commissioner, he declined to serve as presiding officer, and at about 7:30' a.'m. on November’ 7th (the day of the election), -several voters assembled and elected C. W. Cardiff as presiding judge, but shortly thereafter Dr. H. C. Smith and other voters arrived and said Smith claimed that he had been appointed presiding judge by the commissioners’ court, and he proceeded to take charge of the election as presiding judge, and continued to so act throughout the day, and after some objection was made to his so acting when he first claimed the authority; no further objection was made during the day by any of the officers of election at said polling place or by any of the voters who voted there.
“(3) I find that said election held as above stated was in all things (other than the casting of five illegal- votes, as hereinafter particularly found) fairly, legally, and correctly held.
“(4) That said drainage district No. 2 includes a part of four election precincts in Liberty county as follows: Nos. 4, 5, 6, and 11, and the regular and usual voting places in said election precincts Nos. 4, 5, and 6 are located in that part of each of said election precincts which is without the said drainage districts, and the commissioners’ court did not name a polling place for the election of said drainage commissioners at each of said voting precincts so partly embraced in said drainage district, and there was no other polling place within said drainage district at which qualified voters could vote for drainage commissioners except - at the polling place in the town of Raywood.
“(5) I find that H. O. Abshier, G. T. Abshier, and M. K. Gertin were qualified voters and lawfully entitled to vote for drainage commissioners at the said polling place in Raywood, although they do nof reside within that election precinct, but each of them resides in election precinct No. 6, for which election precinct the usual polling place is at the town of Devers, which is outside the said drainage district; however, I find that each of said three persons resides within said drainage district and were qualified voters therein.
“(6) I find that August Fregia voted at the said Raywood polling place and cast his ballot for H. O. Abshier, M. E. Akers, and H. L. Cant-well, and that his ballot was so counted for said three candidates, but I find’that said August Fregia was not a qualified voter because he had not resided within said drainage district for six nionths next preceding said election,-and he was not a resident property taxpayer within said district as required by articles 2580 and 2585, R. S. 1911.
. “(7) I find that M. E. Akers voted in said election at the Raywood polling place and cast his ballot for himself, H. C. Abshier, and H. L. Cantwell, and his ballot was so counted for said three candidates, but I find that said M. E. Akers was not a qualified voter. within said drainage district because he was not a resident property tax payer within said district as required by articles 2580 and 2585, R. -S. 1911.
“(8) I find that Dr. H. O. Smith voted in said election at said Raywood polling place and cast his ballot for H. C. Abshier, H. L. Cantwell, and M. E. Akers, and his ballot was so counted for said three candidates, but I find that said Dr. H. C. Smith was not a qualified voter within said district because he had not resided within said district for six months next preceding such election.
“(9) I find that C. J. Barrow who voted in said election at said Raywood polling place cast his ballot for J. H. Suttles, J. C. Akin, and Geo. Parker, and that his ballot was so counted for said three candidates; but I find that said C. J. Barrow was not a qualified voter in said drainage district, because he had not resided in said district for six months next preceding such election.
“(10) I find that H. A. Hotchkiss voted in said election at said Raywood polling place and east his ballot for J. H. Suttles, J. C. Akin, and Geo. Parker, and his ballot was so counted for said three candidates; but I further find that said H. A. Hotchkiss was not a qualified voter within said drainage district because he was liable to Montgomery county, Tex., for a poll tax for the year 1915, because a resident of that county on January 1, 1915, and that he had not paid same.
“(11) I find that all the other voters who participated in said election, except the five voters above specifically named, were qualified voters in said election, and that after deducting the said five illegal votes from the total votes of the respective candidates for whom said five illegal votes were cast and counted, the true and correct result is as follows: The defendant H. 0. Ab-shier received 16 votes, the plaintiff J. H. Sut-tles received 15 votes, the defendant IT. L. Cant-well and the plaintiff J. C. Akin each received 14 votes, and the plaintiff Geo. Parker received 13 votes and one M. E. Akers (who was also a candidate, but is not a party to this suit) received 12 votes.
“Conclusions of Law.
“(1) The court concludes that the votes of August Fregia, M. E. Akers, and Dr. IT. C. Smith (they not being qualified voters), having been illegally cast and counted in favor of IT. C. Abshier and H. L. Cantwell, should be and they are by the court deducted from the total votes reported in favor of said two candidates, and therefore the true and correct vote which said two candidates received was as follows: The said IT. C. Abshier received 16 votes and the said IT. L. Cantwell received 15 votes, and that only the said number of votes were cast for said two candidates by persons lawfully qualified to vote in said election upon the question of electing drainage commissioners for said drainage district.
“(2) The court concludes that the votes of C. J. Barrow and H. A. Hotchkiss (they not being qualified voters) having been illegally cast and counted for J. H. Suttles, J. C. Akin, and Geo. Parker, should be and they are by the court de- . ducted from the total votes reported in favor of said three candidates, and therefore the true and correct vote which said three candidates received was as follows: The said J. H. Suttles received 15 votes, the said J. C. Akin received 14 votes, and the said Geo. Parker received 13 votes, and that only the said number of votes were cast for said three candidates by persons lawfully qualified to vote in said election upon the question of electing drainage commissioners for said drainage district.
“(3) The court concludes that the plaintiff _J. H. Suttles and the defendant H. C. Abshier were duly elected as drainage commissioners in and for said drainage district No. 2, and that they possess the qualifications required by law to become drainage commissioners of said district, and are lawfully entitled to qualify and hold said office until the qualification of their successors in the manner and form prescribed by law.
“(4) The court concludes that the plaintiff J. C. Akin and the defendant H. L. Cantwell having each received the same number of votes for the third commissioner of said drainage district, the question of selecting and appointing a commissioner for said third place should be referred to the county commissioners’ court of Xfiberty county, Tex., so that court may promptly proceed to select and appoint either the said J. C. Akin or the said H. L. Cantwell as the third commissioner for said Liberty county drainage district No. 2 in accordance with the law in such cases made and provided, and that when said commissioners’ court so elected and appointed the said third commissioner, that the commissioner so appointed shall be lawfully entitled to qualify and hold said office until the qualification of his successor in the manner and form prescribed by law.”

By the first assignment of error, complaint is made of the action of the court in excluding from the number of votes that appellant received on November 7, 1916, the vote of H. C. Smith, because said Smith was a legal voter by being a property tax paying resident citizen of drainage district No. 2, Liberty county, on November 7,1916, and had been such a resident taxpayer since January 1, 1916.

It will be seen that the court found as a matter of fact that Dr. H. C. Smith was not a qualified voter in the election for drainage commissioners, and unless this finding is against the great weight and preponderance of the evidence, so as to be' manifestly wrong, the finding of the court should be upheld by the appellate court, and if there is evidence to sustain such finding of the lower court, this court will hold that it was justified in making the finding. Suffice it to say, without going into details, there is testimony in the record to sustain the finding of the court. L. W. Akin, among other things, testified:

That he asked Smith where he was living, and Smith answered, “I have moved out on the farm,” and that he (Akin) said, “I was at the town house;” and Smith said, “No, we moved out on the farm.” That that happened some time prior to the election that was held in March Of 1916. “It was in July a year ago, I think. He has been living out on the farm since that time up until 30 days before this last election, when he moved back into Baywood. This last election was held on November 7, 1916, and he moved back to Baywood 30 days before that time. Dr. Smith is a married man; he has a wife, but no children.”

Akin further testified:

“Yes, sir;. I mean to tell this court that Dr. Smith has not been living in Baywood since last spring, up until 30 days before November 7, 1916. I know that he did not live there, because he wasn’t there. I know that he moved back just 30 days before the election for the simple reason that I felt confident that he would move back in time to vote in that election, and I watched for it. I forget the night that he moved in, but I know it was 30 days, because when, we knew he moved back we figured it up, and it was just 30 days at that time. He did not reside there in Baywood at all prior to that 30 days before the election. He did not live there at all as a home. I do know that he did not live there as a home.”

He further testified:

“During the time Dr. Smith was living out there on the farm, the house in Baywood appeared to be vacant and nobody living in it. And over the windows — I took them to he screens from an old threshing machine nailed up over the windows, and there was no live stock or anything about th'e yard, and the weeds were growing up in the yard. The fence was up and the gates closed. The fence was down partly at one time, and it may be down yet for what I know. Those things that were over the windows disappeared after he moved back to town, that is, all of them except two. I think there are two of them up yet.”

Mrs. Annie Meacham testified:

“I live at Baywood, and have lived there for 16 years the 4th of this month. I know Dr. H. 0. Smith, and have known him since the first time he came down there. I believe it is 3 years this coming winter the first time he came down there. He at one time lived in Baywood, and when he lived there he lived right across the street from my home. I .recall the time that he and his wife moved away from there out to the farm, and they took everything they had with them. They had pigs, chickens, and hogs and everything, and they took them to the farm. I think that was in July, a year ago. They moved everything, and did not make much use of the house there in Baywood. When they would come in for their mail they would sometimes come up there. The appearance of the house was just like any other house that is closed and vacant. The windows were nailed up on the outside. That house is located right on the public shell road, right across from me. The windows were nailed up, and the gate was left open, and the stock went in and ate off the grass and broke down the fence, and when he come back this fall he nailed it up and put his mules in where he was making hay.”

This witness further testified:

“Their house looks like a vacant house. They moved their furniture from there, but not quite all of it. They left a little there, and the rest of it they took out to the ranch. I have had occasion to go over to that house many times. After the doctor came back from the North he brought a leather couch and a dining 'table and two Morris chairs. One of them they took out to the farm, and one of them they left there. They have a cooking stove there, but they took their beds out,' but they had a cot there and this leather couch. If they had any other furniture in the house I did not see it, and I have been all over the house.”

Mrs. Margaret Parker testified:

“I know Dr. Smith. My house is about BO yards from the place where he lived in Baywood when he lived there. The two houses are about 50 yards apart, or something like that. There are no houses intervening between my house and his, and they are on the same block. Dr. Smith and his wife moved away from the house in Baywood the week after the 4th of July, 1915. They moved to the farm.”

And, further:

“I couldn’t say exactly how long it had been before that since I had seen them there at night, or early in the morning, but they stayed there a few nights the first part of April, or the last part of March. From that time until I saw them there in October they had not been there at night. There-is a fence between my yard and theirs. It is not a solid fence that cannot be seen through; it is just a wire fence. The outside fence to their place has been down during the time they were not living there, and the cattle and stock have been running in there just the same as on the outside. I say that they never stayed there at night from April until October, and I am positive about that; that is, pretty positive. I could not be absolutely positive about it, for, of course, I was not in the house every night, but I will say that they were not there. I did not see them there. If they stayed there at night they left before daylight the -next morning; of course they could have done that. I didn’t see any light there, and I will say I know that if they stayed there they did not have a light. I can testify that during the months of April, May, June, July, August, and September, that there were no lights in that house, and T further say that every night from April until October that Dr. Smith and his wife did not stay there at that house.”

O. W. Cardiff testified:

“I know Dr. Smith, and also know his wife, and I recall about the time they moved away from Raywood, and left that house to go out on the farm. At that time I recall Mrs. Smith having made a statement relative to where they were going to live. She was teaching the Bible class in the Sunday School, and we voted on our teachers and officers twice a year, in January and July, and we. talked about electing her for another term, and she said she couldn’t teach. * * * She said she couldn’t teach, as they were going to move out on the farm, and that we would have to elect somebody else. That was just before the election, in June. After'that-they left the house in Raywood, and the stock was taken away and the windows nailed up. The fence was torn down, and the cattle could go in.”

J. H. Suttles testified:

“I know when Dr. Smith moved back into the town of Raywood; that is, I know just about the time. He moved ‘back along about the 6th or 7th of October. After we tried the election contest case here last summer Dr. Smith did not make any different use of the place in Raywood than he made before we tried that case. He did not take up his habitation in that house in Ray-wood until about the 6th or 7th of October, and prior to that timé he lived out in the country on Ms farm. I know where that farm is, and it is outside of that drainage district. I might add why I say I know he came back to Ray-wood about the 6th or 7th was because we expected him to move back about that time. The appearance of the house there at Raywood before he came back was about the same as it had always been all the summer. There had been uo change with reference to taking down the nailed up places over the windows, nor in the appearance of the place, except that there had been a few bones burned up from a mule that had died there. The windows of the house appeared to be nailed up. The windows were nailed over with screens, the same as come out of a separator, galvanized iron and perforated. That was nailed over several of the windows. They were nailed up until about a month ago. After he returned, about a month ago, I noticed that he removed one of them from off the front porch.”

And, further:

“During the time that this house Dr. Smith claims as his home was nailed up, I never saw any evidences of human habitation around there during the day as I would pass. That house faces right on the main highway that runs through Raywood. The windows on both the sides and the front were nailed up.”

Upon the extracts above given, it will be seen that there was ample evidence before the court to justify its finding. There being no error in the action of the court in this matter, the assignment is overruled.

The second assignment of error is as follows :

“The court erred in permitting the witnesses J. H. Suttles, O. W. Cardiff, J. 0. Akin, Geo. Parker, Mrs. Meachem, and L. W. Akin, respectively, to testify to conversations and statements alleged to have been made by Mrs. H. C. Smith, wife of H. C. Smith, pertaining to and touching upon where the residence of the said H. C. Smith had been for six months prior to November 7, 1916, and especially that said witness had ■been living on the farm, which was out of the drainage district No. 2, all of which is shown by bills of exception No. 1 to 7, inclusive, and asked to be considered a part hereof, because said testimony was hearsay, not sworn to, ex parte, and because H. C. Smith or head of the family had right to determine the residence thereof.”

The point seems to be made that this is being urged only as to the testimony of C. W. Cardiff and Mrs. Parker.

By the law of this state, which seems to fix the place where a voter is entitled to vote as being where his wife resides, when he is not permanently separated from her, we are of opinion that statements made by the wife tending to show where she resided are admissible as throwing light on the disputed question. We do not believe that the testimony, if objectionable, is sufficient to require a reversal of this case. In the trial of a case before the court, perhaps, the same strictness with regard to the admission of testimony is not required as in trial before -a jury, and especially if it does not appear that tbe court gave weight and was influenced by such testimony, whose legality is called in question.: In the present case there is ample testimony, about the admission of which there is no question, to sustain the findings of the court on the particular facts, as testified to by Mrs. Smith. As said by the court in the case of Davis v. State, 75 Tex. 428, 12 S. W. 959:

“It is not reversible error to admit improper testimony in a trial -before the judge without a jury, unless it should appear that he has considered it and given it weight. The fact that Rodriguez came from San Antonio about the 1st of May, 1888, was established by other proof.”

Finding no merit in the assignment, it is overruled.

The third assignment complains of error in the action of the lower court in holding that J. H. Suttles was a qualified voter to vote upon drainage commissioners on November 7, 1916, because on January 1, 1915, the said Suttles Was a resident of Jefferson county, Tex., and during said month of January, 1915, assessed his poll tax for Jefferson county in said Jefferson county, and was subject to a poll tax for the year following January I, 1915, in Jefferson county, and did not pay the same; that said J. H. Suttles,- as shown by the evidence, voted against appellant and for J. C. Akins, and his vote should he excluded.

As we have heretofore stated in this opinion, the rule is that this court will not disturb a finding of fact, unless it. clearly appears that it is against the great weight and preponderance of the testimony such as to be manifestly wrong. With .reference to the poll tax being assessed in Jefferson county, it will be sufficient, perhaps, to say that a citizen is subject to a poll tax and is liable for that tax to the county in which he is a resident upon January 1st. By the poll tax records of Liberty county, it is shown that J. H. Suttles did, in fact, pay his poll tax for 1915 to Liberty county on January 4, 1916. The trial court had the witnesses before him in person, and as said by the court in the case of Abshier v. Aiken, 191 S. W. 766:

“While the testimony is not. free from all doubt, we find no error in the action of the court in this matter. We are not prepared to say that it was shown conclusively that Suttles did not, as he testified, live in Liberty county, and pay his poll tax in Liberty county.”’

In passing, it may be said that the opinion of the court in the Abshier Case, supra, was with reference to the identical party, and that it was settled in that case, as in this, adversely to the contention of appellant, that Suttles was entitled to vote. After careful consideration, we are of opinion that there is no merit in the assignment, and it is overruled.

By the fourth assignment, complaint is made that the court erred in holding that J. H. Suttles was qualified to fill the office of drainage commissioner in drainage district No. 2, Liberty county, Tex., because the evidence shows that said J. H. Suttles, at the time of his pretended election on November 7, 1916, was not a legally qualified voter in this: That the said J. H. Suttles on the 1st day of January, 1915, was subject to poll tax in Jefferson county, and did not pay the same prior to January 1, 1916, and because, further, the evidence shows that the said J. H. Suttles was a resident of Jefferson county, Tex., on January 1,1915. What we have said above disposes of this assignment, and it is therefore overruled.

Complaint is made by the fifth assignment of error that thei court erred in holding that Paul Jacko was a legally qualified voter to vote on drainage commissioners in drainage district No. 2, Liberty county, Tex., on November 7, 1916, because said Paul Jacko, was not a property tax-paying citizen of said drainage district on November 7, 1916, and because he was not a resident of said district on said date; and because he had not been a resident of said district for six months prior to said date; and because the evidence is insufficient to show that he owned any property subject to taxes in said district, or out of said district on January 1, 191.6, or at any time subsequent thereto, and said vote should be excluded, the evidence having shown that said ¿’aul Jacko voted against this appellant and for J. C. Akin.

It seems that Paul Jacko was one of appellant’s witnesses. There is testimony to sustain the finding of the trial court that Jacko was a resident of the drainage district for six months preceding the election on November 7, 1916. The party who challenges' a voter hasi the burden of proving whether the vote was illegal. The testimony given by Jacko himself, who was called by the defendants as their witness, is undisputed. The facts, according to his statement, are that he owned hogs on January 1,1916; that their accustomed range was around the Ford place, which is located in the drainage district. Personal property is ■ subject to taxation in the county or district where it is situated. Without indulging in speculations or comparisons with reference to and as between the testimony of Richard Mulvey, who seems to have testified in this case that he owned a violin on January 1st, although his furniture, so he testified, is not worth over $5 or $10, or that of Newt Tucker, who testified that he owned a tramp dog, a watch, an organ, and a gun, the value of which was not stated, and both of whom seem to have voted for appellant, it may be observed that the lower court had full opportunity, which it is not doubted he exercised, to inquire into the matter fully upon the trial of the case. He heard the witnesses, observed their manner of testifying, concluded from the testimony of Jacko that he was worthy of credence, and this finding on the testimony of Jacko, not being controverted by any other witness, is conclusive upon this court. We have given that careful consideration to this assignment which all of appellant’s assignments deserve in this cause. We have, however, not been able to find any merit in the same, and it is therefore overruled.

With reference to the cross-assignments Nos. 1 and 2 that have, been filed, it is sufficient to say that the findings of the lower court, and the inferences to be drawn from them, and the conclusions arrived at, are believed to be sound. We believe that the parties have had a fair and impartial trial in the lower court; that the findings of the court are based upon the right, reflected by the record, and, so believing, the judgment is in all things affirmed.
      ©s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      c§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    LANGFORD et al. v. POWER et al.
    (No. 8588.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 21, 1917.
    On Motion for Rehearing, May 19, 1917. Further Rehearing Denied June 16, 1917.)
    1. Action <&wkey;50(5) — Parties <&wkey;26 — Defendants— Joinder.
    In an action against a bank and individual defendants' who signed a contract for the sale and purchase of the assets of the banks to recover the difference between the book value of real estate and the proceeds of a sale of the real estate on failure of the bank to redeem it as provided in the contract, there was no error in overruling the defendant’s exceptions presenting the question of misjoinder of parties defendant and of causes of action; as the plaintiff’s demands against each and all of the defendants grew out of the same transaction and were so intimately connected as to render it entirely proper to determine all in one and the same suit.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 528, 529; Parties, Cent. Dig. §§ 32-34.]
    2. Appeal and Error <&wkey; 1036(2) — Review-Reversible Error.
    Misjoinder of parties is not cause for reversal where no prejudice appears to have resulted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4070.]
    3. Appeal and Error <&wkey;1062(2) — Review-Reversible Error.
    In view of the anti-trust statute (Rev. St. 1911, arts. 7796-7809), rendering trusts, monopolies, and conspiracies in restraint of trade illegal, and particularly article 7797, making the consolidation of two or more corporations a monopoly when any corporation acquires the share, property, and rights of another to prevent or lessen competition, directly or -indirectly, in an action involving the purchase of the assets of a bank by an individual, where the issue whether the contract was entered into by plaintiff in behalf of another bank for the purpose of preventing and destroying competition was duly presented by defendant’s pleadings, refusal of defendant’s request for its submission as a controverted issue of fact was reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213.]
    4. Monopolies i@^23 — Evidence — Sufficiency.
    In an action involving a contract for the purchase of the assets of a bank by an individual, evidence held to justify a jury finding that the individual purchased in behalf of another bank, and not for himself individually, and that that bank ratified the transaction in its entirety, oven though its stockholders and directors did not have prior knowledge thereof, and that they are chargeable with all the legal consequences and burdens incident thereto, by virtue of the anti-trust statute (Rev. St. 1911, arts. 7790-7809).
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 16.]
    5. Evidence <&wkey;450(5) — Parol Evidence — Admissibility. .
    In an action involving a contract for the purchase of the assets of a bank by plaintiff, evidence of the negotiations between plaintiff and one of the individual defendants who signed the contract leading up to the execution of the contract, which was ambiguous, was admissible, not upon the theory that such preliminary negotiations and conversations occurring in the absence of the adverse party or parties were binding upon them, but simply for. the purpose of showing the understanding of each as to the meaning of the written contract in accordance with the familiar rule that, to explain the meaning of the parties to an ambiguous contract, the situation of the parties and prior negotiations and surrounding circumstances may be looked to.
    [Ed. Note. — For other cases, see Evidehce, Cent. Dig. § 2071.]
    6. Evidence <&wkey;471(29) — Opinion Evidence —Conclusions—Contracts.
    In an action involving a contract for the purchase of the assets of a bank by individual, testimony of one of individual defendants who signed the contract, which consisted merely of conclusions and opinions of that witness with respect to what plaintiff understood by the written contract in controversy, was properly excluded.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2174.]
    7. Appeal and Error &wkey;>215(l) — Review — Instructions — Necessity of Objections.
    In an action involving a contract for the purchase of the assets of a bank by individual, where no objection was made at the trial to an instruction submitting the issue with respect to the true meaning of the written contract when read in the light of all the surrounding circumstances, defendants are in no position to complain on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Trial, Cent. Dig. § 683.]
    Appeal from District Court, Archer County; ffm. N. Bonner, Judge.
    Action by F. M. Power against the First State Bank of Archer City, P. P. Langford, and others. Judgment for plaintiff, and P. P. Langford and others appeal.
    Judgment against appellants reversed, and remanded for another trial, and in all other respects judgment affirmed on rehearing.
    A. A. Hughes, T. R. Boone, and Kay & Akin, all of Wichita Falls, for appellants. Carrigan, Montgomery & Britain, of Wichita Falls, for appellees.
   DUNKLIN, J.

The disposition of a former appeal of this case is shown in 166 S. W. 382. The sui-t was instituted by F. M. Power against the First State Bank of Archer City, a banking corporation incorporated under the laws of the state of Texas, and Lon Morris, L. F. Gragg, P. P. Langford, C. E. Goodwin, M. A. Finley, J. O. Tandy, and others, upon a written contract which is set out in full in the opinion of this court on the former appeal, to which reference is-here made.

As shown by that contract, F. M. Power, the plaintiff, purchased all the assets of the-defendant bank upon terms and conditions therein stated. It appears that the total consideration to be paid by Power was the book value of the capital stock of the,bank, which was estimated to be $19,573.33; the basis of such estimate being- the face value of all notes and accounts due the bank, with accumulated interest, plus the" value of real estate, furniture, and fixtures, as the same was listed in tlie books of the bank. Ten thousand, dollars was paid by Power at the time of the execution of the contract, and the balance of the purchase price, $9,573.33, was placed on deposit in the Power State Bank of Archer City, where it was to remain as a .guaranty that the books and accounts of the First State Bank were correct and showed the true condition of the notes and accounts transferred to Ppwer. Among the assets belonging to the bank and listed upon its books were its real estate, furniture, and and fixtures, described in the contract, which was listed at $7,058.38. By paragraph 9 of the contract the second party to the contract agreed to redeem the real estate, furniture, and fixtures at the book value thereof on or before the 1st day of January, 1912.

In plaintiff’s petition it was alleged, and the proof showed, that said real estate, furniture, and fixtures were not redeemed within the period stated, and that thereafter, under and by virtue of an order of court, the same were sold for the sum of $3,277.50, which was turned over to the plaintiff. The difference between that sum and the sum for which that property was listed on the books of the bank, with interest thereon, was the amount sued for by plaintiff in the present case; the basis of plaintiff’s demand being the written contract, and particularly the ninth paragraph thereof.

Judgment was rendered in plaintiff’s favor against the bank and also against the individual defendants named above and others whose names are signed to the contract, from which judgment the individual defendants named .above, except Lon Morris, have prosecuted this appeal.

On the former appeal this court held that' the contract was ambiguous, and that parol testimony was admissible to explain its meaning as understood by those who executed it, and we reversed the first judgment of the trial court because of the refusal of the trial judge to admit parol testimony, which was offered by the defendants for that purpose. ’

There was no error in overruling the defendant’s exceptions presenting the question of misjoinder of parties defendant and of causes of action; as the plaintiff’s demands against each and all of the defendants grew out of the same transaction and were •so intimately connected as' to render it entirely proper to determine all in one and the •same suit. Cobb v. Barber, 92 Tex. 399, 47 S. W. 963; Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423. Furthermore, in view of the fact that no prejudice appears to have resulted to the appellants by the misjoinder, if misjoinder there was, then such misjoinder would be no cause for reversal. Thompson v. Griffin, 69 Tex. 139, 6 S. W. 410.

We overrule appellants’ contention that "the written contract, construed in the light -of all the parol testimony introduced upon the t-rial, shows beyond controversy that the obligation to redeem the real estate, furniture, and fixtures at its book value was the obligation of the First State Bank, and not the individual contract of the defendants who signed the same, and that the trial court therefore erred in refusing appellants’ request for an instructed verdict in their favor.

It will be noted that in paragraphs 12 and 12a of the contract the term “second party” is so used that it may reasonably be construed to refer to the individual signers, and in their signatures such individuals also designate themselves as “second parties.” Furthermore, according to the testimony of plaintiff, such was the understanding of himself and defendant Lon Morris.

Nor can we say that the court erred in refusing to give appellant’s special charge No. 2, which was a peremptory instruction for a verdict in their favor. The request for that instruction was based upon the contention that the evidence showed without contradiction that the contract sued on- was entered into by the plaintiff for and on behalf of the Power State Bank of Archer City, another bank then engaged in the banking business in the town of Archer City, and for the purpose on the part of the bank to acquire all the assets of the First State Bank of Archer City, to the end that competition with the First State Bank might thereby be prevented and destroyed, contrary to the provisions of our anti-trust statutes shown in chapter 1, tit. 130, Revised Statutes, which render trusts, monopolies, and conspiracies in restraint of trade illegal, and particularly article 7797, which reads, in part, as follows:

“A monopoly is a combination or consolidation of two or more corporations when effected in either of the following methods: * * * (2) Where any corporation acquires the shares or certificates of stock or bonds, franchise or other rights, or the physical properties, or any part thereof, of any other corporation or corporations, for the purpose of preventing or lessening, or where the effect of such acquisition tends to affect or lessen competition, whether such acquisition is accomplished directly or through the instrumentality of trustees or otherwise.”

But we are of the opinion that there was reversible error in the court’s refusal of appellant’s request for the submission of that issue as a controverted issue of fact; such issue having been duly presented by appellants’ pleadings. Power testified that all of the 'assets of the First State Bank of Archer City acquired by the purchase were turned over to the Power State Bank and entered upon the books of that hank as its property; that the $10,000 paid' by him to the. stockholders of the First State' Bank of Archer City was taken from the Power State Bank, and that he did not charge that money against his individual account with that bank, nor did he give his promissory not to the Power Bank for that sum. _ He further testified:

“The First State Bank was a corporation when I bought it out. The one object I had in buying the assets of the First State Bank was to increase the business of the Power State Bank. Their buying of that bank would get rid 'of competition. * * * My purpose in buying out the First State Bank and the one that I had in view was to get rid of competition. * * * None of the stockholders of the Power State Bank ever raised any objection to my taking over the assets of the First State Bank and placing them in the Power State Bank as its assets, and paying for them by the Power Bank. We had stockholders’ meeting after that, and from an examination of the affairs of the bank they were bound to see that the Power State Bank had actually taken over the assets of the First State Bank, and they raised no objection.”

He further testified that he was president of the Power State Bank at the time of the transaction, and owned three-fourths of its capital stock, and other testimony given by him was along the line of that Quoted above.

The following resolution passed at a regular stockholders’ meeting of the Power State Bank on February 10, 1911, 16 days after the execution of the contract of purchase by Power, was introduced in evidence:

“Since our last regular meeting the entire business of tbe First State Bank was taken over, all resources and liabilities amounting to $51,075.12. After careful examination of the contract with reference to the same which is recorded in Book 47, Deed Records of Archer County, Tex., this matter was fully examined and approved.”

Plaintiff, Power, testified that he wrote that resolution himself, and in that connection testified that his contract of purchase of the assets of the First State Bank had been filed for record on February 3, 1911. He further testified as follows:

“I did not borrow any money of the bank to pay for these assets. I put the assets into the bank and got the money. I made them the assets of the bank and entered them on the books as a part of the assets of the bank. X did not place them there as collateral security for any debt of mine. On April 17, 1911, we bad a meeting of the directors in which.it was stated that none of the stockholders were indebted to the bank in any sum that was written in the minutes.”

However, Power further testified that he made the contract for himself, that no one else was interested in it, that prior to the making of the • contract he never consulted any of the stockholders or directors of the Power State Bank concerning the purchase of the assets of the bank, and further as follows:

“The bank charged me up with some of the losses, altogether about $1,300. I paid that much out of my individual funds. I- paid this $1,300 to the Power State Bank of my own volition. No one requested me.”

But we do not think that the testimony 'of Power last referred to necessarily should be given controlling effect. In view of the other evidence, we think that the. jury would have been authorized to find that the transaction in controversy by Power was intended by him as the transaction of the Power State Bank, and not for himself individually, and that that bank ratified the transaction in its entirety, even though its stockholders and directors did not have prior-knowledge thereof, and that they are chargeable with all the legal consequences and burdens incident thereto; 1 Mechem on Agency, §§ 435, 438 and 506.

We are of the opinion further that there was no error in the action of the court-in admitting in evidence the negotiations between Power and Lon Morris leading up to-the execution of the contract. Lon Morris was one of the defendants who was sued by Power, and certainly such evidence was admissible as against him. It was admissible also as against the other defendants for the purpose of showing the understanding of Power with respect to the meaning of the written contract, which was ambiguous, just the same as was the testimony of the defendants themselves as to what was said to them by Lon Morris and statements by them in reply thereto when they executed the contract. Of course, all of such testimony introduced by the respective parties was admissible, not upon the theory that such preliminary negotiations and conversations occurring in the absence of the adverse party or parties were binding upon them, but simply for the purpose of showing the understanding of each as to the meaning of the written contract in accordance with the familiar rule that to explain the meaning of tbe parties to an ambiguous- contract the situation of the parties and prior negotiations and surrounding circumstances may be looked to. -

There was no error in excluding the testimony of the witness Lon Morris referred to in assignments 12 to 21, inclusive, since such testimony -consisted merely of conclusions and opinions of that witness with respect to what plaintiff Power understood by the written contract in controversy.

Even though it could be said that the criticism was just as made by appellants of the court’s instruction to the jury submitting the issue with respect to the true meaning of the written contract when read in the light of all the surrounding circumstances, appellants are in no position to complain, since no objection was made thereto upon the trial. G., T. & W. Ry. Co. v. Dickey (Sup.) 187 S. W. 184.

For the error indicated, the’ judgment is-reversed, and the cause remanded.

On Motion for Rehearing.

The only part of the judgment of the trial' court which was reversed is that rendered in favor of plaintiff in the trial court against those defendants who are appellants here, and the cause is remanded for another trial of the issues as between plaintiff and those defendants only. In all other respects the judgment of the trial court is left undisturbed ; no appeal from or complaint of such portions thereof being made in this court by any one. Our decision upon original hearing was intended to have the effect stated above, although such was not definitely expressed..
      i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    SHEEHAN v. SHEEHAN-HACKLEY & CO.
    (No. 776.)
    (Court of Civil Appeals of Texas. El Paso.
    June 7, 1917.
    Rehearing Denied June 28, 1917.)
    '1. Good Will <&wkey;6(4) — Sale — Resumption op Business.
    In the absence of an express covenant, there is nothing to prevent the assignor of a business and its good will from conducting a competing business in the same locality.
    [Ed. Note. — Por other eases, see Good Will, Cent. Dig. § 5.]

      2. Good Will <&wkey;6(4) — Sale — Resumption op Business.
    One who has transferred his exclusive agencies, terminable at will, for manufacturers of and dealers in building and fireproofing material, together with the good will, without any express agreement not to engage in competing business in the same territory, should not be enjoined on his resumption of business from representing his former customers, since he is lawfully engaged in business and such injunction would deprive the manufacturers and dealers of their right to deal with him, if they, desire to do so.
    [Ed. Note. — For other cases, see Good Will, Cent. Dig. § 5.]
    S. Good Will <&wkey;6(4)— Sale — Soliciting pbom Customers.
    One who has transferred his exclusive agencies, terminable at will, for manufacturers of and dealers in building and fireproofing material, together with the good will, without any express agreement not to engage in competing business in the same territory, may be enjoined from soliciting or inducing his former customers not to do further business with his transferee, since to induce them to cancel their agency contracts with his transferee would injure the good will of the business which he had transferred.
    [Ed. Note. — Por other cases, see Good Will, Cent. Dig. § 5.]
    4. Good Will <&wkey;6(l) — Sale,—Implied Covenant.
    The grantor of the good will of a business impliedly covenants that he will do nothing which would derogate from his grant.
    [Ed. Note. — Por other cases, see Good Will, Cent. Dig. § 2.]
    5. Good Will (&wkey;6(4) — Sale—Business Outside State.
    It is no defense, to an action to enjoin the grantor of the good will of an exclusive agency for manufacturers of and dealers in fireproofing material from soliciting his former customers in Mexico and neighboring states not to do further business with his grantee, that latter, a corporation organized in Texas, has no power to do business in that territory, since such a corporation may lawfully transact the business for which it is organized in another state or foreign country.
    [Ed. Note. — For other cases, see Good Will, Cent.- Dig. § 5.]
    6. Corporations &wkey;>374 — Powers.
    A corporation, organized for the purpose of buying and selling goods by wholesale and retail, has power to sell goods by taking orders from the customer, sending them to the wholesaler, and having him ship goods directly to customer.
    [Éd. Note. — For other cases, see Corporations, Cent. Dig. §§ 1517, 1518.]
    7. Good Will <&wkey;6(4) — Actions—Relevancy.
    In an action to enjoin one who has sold his business and good will to a corporation from soliciting his former customers or dealing with them, the right of the corporation to oust him as president and general manager, and stop his salary, presents questions foreign to the issues involved.
    [Ed. Note. — For other cases, see Good Will, Cent. Dig. § 5.]
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Action by Sheehan-Hackley & Co., a corporation, against J. P. Sheehan. From a- decree for plaintiff, defendant appeals.
    Decree reformed and affirmed.
    E. C. Wade, Jr., and Jones, Jones, Hardie & Gambling, all of El Paso, for appellant. Turney, Culwell, Holliday & Pollard, of El Paso, for appellee.
   HIGGINS, J.

This is an appeal from a temporary injunction granted the appellee,,-a corporation, against Sheehan, restraining and enjoining him from soliciting or attempting to induce certain dealers (and manufacturers named in the petition to cancel the agency and representation of said manufacturers and dealers, or either or any of them, in that portion of Texas west of the Pecos river, and including El Paso county, Tex., and also the states of New Mexico and Arizona, and the states of Chihuahua and Sonora in the republic of Mexico, or from doing directly or indirectly any act or thing to cause or induce said manufacturers and dealers, or any or either of them, from doing any further, other, or additional business with the plaintiff, Sheehan-Hackley & Co., Incorporated, and also that the said defendant, J. P. Sheehan, be enjoined and restrained from either directly or indirectly representing said dealers and manufacturers as above set out and named, either 'as agent or otherwise, in the territory above described, and from handling the products and goods of said manufacturers and dealers either directly or indirectly in said territory, and all including El Paso county, Texi The material facts set up in -the petition, and in support of which evidence was ■adduced, are as foilows :

Sheehan for a number of years had been engaged in business as a salesman of building and fireproofing material, and represented a number of dealers and manufacturers of such supplies. He had the exclusive agency and representation in the territory named in the decree for the manufacturers and dealers therein named. On or about July 31, 1910, appellee was incorporated under the laws of Texas; Sheehan becoming a stockholder thereof. He also became its president and managing director, and continued to act in that capacity until March 2, 1917. On this last-mentioned date he was deposed from his position as president and director. He thereupon resumed his former business, operating in the territory mentioned, and. endeavored to take from appellee the right to handle the products'of the manufacturers and dealers named in the decree and in the territory mentioned. In his answer, Sheehan admits that, when he resumed business on his own account, he wrote and wired to said dealers and manufacturers, notifying them that he had severed active connection with appellee, and that he would be glad in the future to represent them in that territory, and that some of said parties had immediately wired him, requesting him to represent them, and at the same time wired appellee that, on account of the withdrawal of appellant from active participation in the affairs of the corporation, they canceled the agency contracts. At the date of the incorporation of appellee, Sheehan and his then partner, Hackley, for a valuable consideration, transferred to appellee all the agencies then held by either J. P. Sheehan, Sheehan, Hackley & Co., or Sheehan, Baldridge & Co., together with the good will.

The decree entered is twofold in its nature: Eirst. It enjoins Sheehan from soliciting or inducing said dealers and manufiaicturers to cancel appellee’s agency for andi representation of them, and from doing anything to induce them from doing further business with appellee. Second. It enjoins Sheehan from representing said dealers and manufacturers, and from handling their goods and products.

Though there is some conflict of authority, the more generally accepted doctrine is that, in the absence of an express covenant, there is nothing to prevent the assignor of a business and its good will .from settingup and conducting a competing business in the same locality. 12 R. C. L. 988; 20 Cyc. 1279; High on Injunctions, § 1169; 14 Am. & Eng. Ency. Law, 1090; Von Bremen v. MacMonnies, 200 N. Y. 41, 93 N. E. 186, 32 L. R. A. (N. S.) 293, 21 Ann. Cas. 423.

There was no express agreement upon the part of Sheehan that he would not again engage in a competing business in the territory mentioned in the decree, nor did he agree that he .would not again represent said dealers and manufacturers. He merely transferred the agencies and the good will of his business. Under the rule stated, he was thus at liberty to engage in a 'business competing with appellee in the same territory. Obviously any one who desired to deal with him after he had established his competing business would have the right to do so. Whatever limitation there might be upon the right of Sheehan to solicit business from the customers of the old firm, arising out of the transfer of the good will of his old business, would not impair the right of such customers to deal with Sheehan, if they desired so to do. The agency contracts given by the dealers and) manufacturers to Sheehan, and by him transferred to appellee, were terminable at the will of the dealers and manufacturers, and appelleé had -no property right thereto. Rice v. Angell, 73 Tex. 350, 11 S. W. 338, 3 L. R. A. 769; Smith v. Smith, 51 La. Ann. 72, 24 South. 618. When they were so terminated, the principals had the right to give them to' any lawful competitor of appellee. Sheehan was lawfully engaged in business as a competitor of appellee, and could lawfully accept the agency contracts of siaid dealers and manufacturers, if tendered to him.

But that portion of the decree now under consideration would absolutely preclude appellant from representing the principals in the agency contracts and from handling their goods and products. Those principals are not before the court. They have an undoubted right to cancel the agency contracts given to appellee and grant same to any person lawfully engaged in business. Yet the effect of the decree is to preclude them from granting the same to Sheehan, and thus indirectly deprive such principals of a right which they have, and this, too, in a proceeding to which they are not a party. For the reasons indicated, we believe that portion of the decree went too far.

On the other hand, that portion enjoining Sheehan from soliciting or inducing the dealers and manufacturers to cancel appellee’s agency for and representation of them, and from doing anything to induce them from doing further business with appellee, was properly entered. Sheehan conveyed the good will of his business, which carried with it .an implied covenant that he would do nothing which wiould derogate from his grant. Dwight v. Hamilton, 113 Mass. 175. The definition of good will given by Judge Story has been frequently quoted with approval. It is thus stated:

“Good will may be properly enough described to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers on account of its local position, or common celebrity, or reputation for skill, or influence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices. Story, Pai-tn. § 99.

The agency contracts acquired by appellee, with right of exclusive representation in certain territory, may well be considered as an advantage or benefit acquired by appellee within the scope of this definition, and to permit appellee, by solicitation, to induce the principals of the agency contracts to cancel the same and substitute him • for appellee would injure the good will of the business which he had transferred. That he was properly enjoined from doing.

In support of the decree which was entered in this case, appellee relies upon Von Bremen v. MacMonnies, by the New York Court of Appeals, reported in 200 N. Y. 41, 93 N. E. 186, 32 L. R. A. (N. S.) 293, 21 Ann. Cas. 423. In that case one of the plaintiffs, Henry Von Bremen, and the defendants, Frank MacMonnies and Wm. Von Elm, entered into a copartnership under the firm name of Henry Von Bremen & Co., subsequently changed, to Yon Bremen, MacMonnies & Co., for the transaction of an importing and commission business in buying, taking on commission, and selling fancy groceries. On February 10, 1909, the defendants sold to the plaintiff Henry Yon Bremen:

“All their right, title, and interest in all the assets, good will, trade-marks, and other property of every name and nature, wheresoever located, of the firm of Von Bremen, MacMonnies & Co., together with all debts and things in action due or owing by or from any person or corporation to said firm.”

Plaintiff Henry Von Bremen and Herman T. Asehe under the firm name of Yon Bremen, Asche & Co., succeeded to the business thus purchased by the plaintiff Henry' Von Bremen individually. Thereafter the defendants formed a partnership for the transaction of a similar business. In the competition which thus arose, the defendants did or threatened to do various acts which had a tendency to lessen or destroy the good will of the business which they had acquired from the defendants by means of the transfer mentioned, and suit was filed to enjoin such acts. The trial court enjoined the defendants from using the cable address of the old firm, from using a list of 2,200 dealers in fancy groceries which had been compiled by.the old firm, and from using labels, brands, etc., owned or controlled by the old firm. The decree also directed an accounting for the profits realized by the defendants and an assessment of the damages sustained by plaintiffs. Upon appeal by the plaintiffs to the Appellate Division, the injunction was extended so as to enjoin the defendants from soliciting orders for goods packed under special labels, trademarks, and brands devised for the old firm for special customers.

Upon appeal to the Court of Appeals, that court further extended the injunction, so as to forbid the defendants from soliciting business from any customers of the former firm of Yon Bremen, MacMonnies & Co., and, as thus modified, affirmed the decree. It will be thus noted that the decree in Yon Bremen v. MacMonnies did not go to the extent of the decree entered in the present case, and went no further than what we have indicated to be the proper decree to enter in this case. In answering certified questions propounded in the case, however, that court answered in the affirmative the fifth question propounded. That question was:

“Whether, upon the facts found in this case, the plaintiffs are entitled to an injunction against the defendants, restraining them from dealing with, or selling merchandise to, the person, firms, and corporations who were customers of or purchased merchandise from the firm of Von Bremen, MacMonnies & Co., of which ther plaintiff Von Bremen and the defendants were copartners, and whose trade was solicited by the defendants since selling their interests in the said firm to the plaintiff Von Bremen.”

The answer returned to that question would seem to have warranted a more extensive and far-reaching decree than the court actually entered. It seems to us that there is a conflict between the decree which the court actually entered and the answer to that question. But we are of the opinion that the decree which was entered was the only one which under the .reasoning of the opinion could properly have been entei’ed, and that such reasoning supports our view that the decree enjoining Sheehan from soliciting said dealers and manufacturers to cancel ap-pellee’s agency contracts was properly entered, and that it would be improper to enjoin him from representing them and handling their goods and products.

Appellee was incorporated for the purpose of “the buying and selling of goods, wares, and merchandise of any description by wholesale or wholesale and retail.” Appellant insists that it was ultra vires of the corporation to act as manufacturers’ agent in the territory mentioned in the decree, and therefore it was not entitled to maintain this suit for an injunction to aid it in transcending its corporate powers. With reference to the manner in which appellee transacted its business, the witness Haekley testified in its behalf as follows:

“We transact our business here in two ways; primarily, in three ways. We sell their goods directly to the customer, and they ship direct to the customer; the mills invoicing us, and we invoicing the customer. Then we sell the goods, the mills ship them direct to the customer, and invoice directly to the customer, paying us a commission on the‘sale; and the third way we buy the stock from the mills and sell from our stock.”

It is lawful for a corporation chartered under the laws of Texas to transact business in another state or in a foreign country. It could therefore rightfully operate in the territory mentioned. It was incorporated to buy and sell goods. The power thus conferred is a general one and carries with it every right incident thereto. There is nothing in our corporation law which re-' quires that the goods shall be kept in any particular way, or that they shall be handled in any particular way. It is just as much buying and selling of goods to take an order from the customer, send the order to the wholesaler, and have him ship direct to the customer, as it is to take the order and fill from a stock already purchased. The beginning and end is the same in each case, and the same result is accomplished.

The matters referred to in the first proposition subjoined to the first assignment of error concern the internal affairs and management of the corporation. They present issues entirely foreign to the issues here involved. They can in no wise affect the rights involved in this litigation. Furthermore, there is evidence in the record from which the trial court would have been warranted in .finding that the corporation had ample grounds for its action in ousting appellant as its president and managing director and stopping payment of his salary.

What has been said necessarily eliminates or disposes of the various other propositions advanced by appellant. Tbe decree entered in tbe court below will be reformed, by eliminating tbat portion thereof which enjoins appellant from representing the dealers and manufacturers named in the decree and from handling their goods and products. As thus reformed, the decree will be affirmed.

Reformed and affirmed.
      ©soFor other cases see same topic and KEY -NUMBER, in all Key-Numbered Digests and Indexes


author: HIGHTOWER, Jr., C. J.

text:
    HOUSTON OIL CO. OF TEXAS v. HOLLAND.
    (No. 197.)

    (Court of Civil Appeals of Texas. Beaumont.
    May 30, 1917.
    On Motion for Rehearing, June 27, 1917.)
    1. Adverse Possession &wkey;>115(7) — Question e'or Jury.
    In trespass to try title, plaintiff claiming title under tbe ten-year statute of limitations, the court properly submitted to the jury the question of plaintiff’s claim of adverse possession to more of the land than the six acres which had been used and cultivated for a number of years by plaintiff and his predecessors, plaintiff having claimed all the land at all times.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 693.]
    2. Adverse Possession <&wkey;85(3) — Nonpayment oe Taxes.
    Though defendant showed on plaintiff’s cross-examination that plaintiff had not paid taxes on any portion of the land, that did not show conclusively that plaintiff was not claiming adversely.
    [Ed: Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 499, 500, 503, 688-690.]
    3. Adverse Possession <&wkey;18 — Actual Occupancy.
    Actual occupancy in the way of a residence upon land is not necessary to constitute adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 96-98.]
    4. Appeal and Erese <&wkey;930(l) — Review — Evidence.
    After verdict for plaintiff, the appellate court must assume that the testimony for plaintiff is true.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758.]
    5. Adverse Possession &wkey;>97 — Possession of Part oi? Tract.
    Where plaintiff held possession for at least 12 years of a field of from 5 to 6 acres in a tract of 160 acres, claiming the whole tract, and using the field for the purposes to which it was adapted, plaintiff secured title to the whole tract by adverse possession; the owner of the land being bound to take notice that plaintiff’s claim was hostile to and inconsistent with any claim of right or title by the owner.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 537-541.]
    6. Appeal and Error <&wkey; 1062(3) — Harmless Error — Withdrawal oe Issue.
    In trespass to try title, plaintiff claiming title by adverse possession, where the trial court could have properly instructed a verdict for-plaintiff, its action in withdrawing from the jury, after having.submitted it, the issue whether plaintiff’s possession of the tract which he had under fence was sufficient to put defendant on notice that plaintiff was claiming 160 acres, was harmless to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4214.]
    Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Action by J. H. Holland against tbe Houston Oil Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Parker & Kennedy, of Houston, for appellant. Thomas & Wheat, of Woodville, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   HIGHTOWER, Jr., C. J.

This was an action of trespass to try title brought by ap-pellee, J. H. Holland, against appellant, Houston Oil Company of Texas. Appellee prayed in his second amended original petition, on which the case proceeded to trial, for recovery of a specific tract of 160 acres of land out of the N. H. Hooe or 1-Iove (it is immaterial which is correct) survey of 640 acres in Tyler county, or, in the alternative, that he recover an undivided 160 acres out of said survey, to be run out so as to include his improvements.

Appellee based his claim of title to the 160 acres of land sued for by him on the 10-year statute of limitation. On the trial of the ease it was agreed that the appellant owned the record title to all of the land in controversy, and that appellee could not recover, unless appellee had acquired title to the land sued for by him under the 10-year statute of limitation.

Tbe case was tried with a jury, and the following issue only was finally submitted to the/jury, to wit:

“Has the plaintiff, J. H. Holland, had and held peaceable and adverse possession of the land sued for,- cultivating, using, or enjoying the same,' for a period of ten consecutive years before the commencement of this suit, and after defendant’s cause of action accrued?”

To this issue the jury answered “Yes.” Upon bringing in a verdict in favor of appel-lee, motion was made in his behalf for judgment thereon, which, was granted, and judgment was rendered in his favor for the specific 160 acres claimed in his petition; it having been agreed by the parties to the cause that appellee, if entitled to recover any 160 acres on tbe tract of land in controversy, was entitled to recover the 160 acres claimed by him specifically.

Appellant’s first assignment of error challenges the correctness of the action of the court in submitting to the jury the question of appellee’s claim of adverse possession to any more of the land in controversy than 6 acres, which had been used and cultivated for a number of years by appellee and one J. D. Richardson before him; the proposition under this assignment being that the un-controverted evidence shows that appellee had no claim of right to any of the land in controversy other than to the 5 or 6 acre field, so that appellee could not and did not acquire title to that part of the land in controversy not within the field.

Under this proposition we notice that appellant cites as authority for same the case of Stevens v. Pedregón (Sup.) 173 S. W. 210. This court has had occasion heretofore to pass upon this precise question, and in each instance we overruled the contention here made by appellant. Houston Oil Company v. Stepney, 187 S. W. 1082, and authorities there cited. «See, also, Brown v. Fisher, 193 S. W. 357, decided' by this court at the present term. "We have seen no reason since our decision in the two cases above mentioned to change our views on this question, and appellant’s first assignment of error is therefore overruled.

Appellant’s second assignment of error, while in different form, raises substantially the same question as the first assignment, and is therefore overruled.

Before mentioning other assignments of error, we will make a brief statement of the facts (not the evidence) established on the trial below relative to appellee’s claim of title under the statute of 10-year limitation. The undisputed facts show that one J. D. Richardson in 1895 entered upon the land in controversy on the Hooe, or Hove, survey, and cleared up a field of some 4 or 5 acres, which he fenced and regularly cultivated as a farm for a period of 5 years thereafter, or until the summer of 1901, on which last-named date he sold ¿t least as much of the land in controversy as was included in the field of 4 or 5 acres to appellee, which sale was verbal, and appellee shortly thereafter took possession, an’d ever since that time appellee has remained in possession, using, cultivating, and enjoying said field, now including between 5 and 7 acres, an’d has raised a crop each and every year since his going into possession, for at least 12 years. The field that appellee has regularly cultivated during said period of time has been, until recently, inclosed by a substantial fence, and there was built and kept in the field a house or barn, known as a cotton house, for storing cotton and other products of the field, and during all the period of time that the field has been cultivated'and used both by J. D. Richardson and appellee their possessions thereof were peaceable and continuous. At the time J. D. Richardson sold to appellee Richardson’s claim on the land in controversy, in 1901, he (Richardson) also conveyed to ap-pellee by deed a tract of land on the N. X Smart survey,' which, it appears from the record, adjoins the Hooe, or Hove, survey. The record ’does not disclose the number of acres conveyed to appellee on the Smart survey, but the undisputed facts disclose that appellee paid J. D. Richardson $400 as consideration in full for the tract on the Smart survey and Richardson’s claim, whatever it was, on the land in controversy. J. D. Richardson never actually resided upon the land in controversy, nor has appellee ever actually resided thereon, but, as above stated, the field on the tract in controversy has been continuously farmed since 1895. The record does not disclose satisfactorily just what quantity of land or what claim J. D. Richardson set up to the land in controversy on the Hooe, or Hove, survey during the time he was in possession and cultivated the field above mentioned, but the record does dis: close affirmatively and without contradiction that ever since appellee went into possession in 1901 he has at all times claimed 160 acres of lan’d, including the field above mentioned, and that this claim was testified to by at least three witnesses besides, appel-lee himself. Now, appellant takes the position in a number of its assignments of error that the evidence was insufficient to warrant a recovery by appellee of any portion of the Hooe, or Hove, survey in excess of the field of 5 or 6 acres, and we shall not discuss these different assignments numerically, but will say that we have carefully considered the testimony of every witness who testified in the case, and have concluded that the evidence was abundantly sufficient to warrant the verdict of the jury an’d judgment of the court awarding to appellee the 160 acres of land, as was done. It is intimated by appellant in its brief that the facts show that J. D. Richardson claimed only that portion of the land in controversy which was included in the field that was cultivated by him, but, after careful consideration of this question, we have decided that the record does not support appellant’s contention on this point. It is true that the record leaves it uncertain as to what Richardson’s claim was, but it does not show affirmatively that he claimed only that portion of land which was inclosed in the field. The testimony of appellee himself shows that he understood that Richardson was claiming 160 acres of land on the tract in controversy, and that he (appellee) at the time he purchased from Richardson believed that Richardson was claiming and was conveying to appellee his claim to 160' acres. It is true that appellee does say that he cannot be sure just what Richardson claimed on the land in controversy, but that he does know that Richardson at least claimed as much as was included in the field. But, leaving aside the question as to what portion of the land, if any, was claimed by Richardson, the evidence is absolutely uncon-tradicted and undisputed in any way that ap-pellee has always claimed since 1901 160 acres of land on the tract in controversy, and that he has continuously an’d peaceably cultivated, used, and enjoyed the field of 5 or 6 acres, and has avowedly claimed 160-acres, including this field and improvements. The testimony on this point is all one way, appellant not having introduced a single witness to contradict this evidence introduced by appellee.

It is true that appellant did show, on -cross-examination of appellee, that he had not paid taxes on any portion of the land in controversy, all of which, was admissible and proper, yet, as held by an unbroken line of decisions in this state, such evidence did not show conclusively that appellee was not claiming adversely the land in controversy, but was, the most that can be said for such testimony, a circumstance to go to the jury for what it was worth, bearing upon the question as to whether appellee had claimed the land sued for. This case does not bring in question the doctrine frequently announced in what is known as encroachment cases, and, therefore the cases of Bracken v. Jones, 63 Tex. 184, Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559, Titel v. Garland, 99 Tex. 201, 87 S. W. 1152, and Holland v. Nance, 102 Tex. 177, 114 S. W. 346, have no application, and require no notice in the decision of this case. The field on the tract in controversy, which was regularly cultivated by Richardson and appellee since he acquired possession, is some half a mile from where appellee resides and has always resided, on the Smart tract, and there is no connection whatever between appellee’s possession on the tract in controversy and his possession and improvements on the Smart tract. We say, therefore, that there could be no supposition of encroachment, by mistake or otherwise. The whole thing to be decided here is whether or not the appropriation, character of possession, use, etc., made by appellee of the land in controversy was of such character as will amount to “adverse possession,” as that term is used in our statute.

Every element of adverse possession is present in, this case, unless it be that an actual occupancy in the way of a residence upon the land in question was required, and we hold that such an occupancy is not necessary to constitute adverse possession. The possession of appellee for at least 12 years of the field of some 5 or 6 acres was open and continuous, and he was using the land for the purposes to which it was adopted, and avowedly claiming all the time, as shown by the undisputed testimony herein, 160 acres of the tract.

No superior claim of title was recognized in any one, and if the testimony along these lines be true, as we must assume it is, it must be held that the true owner of this land was bound to take notice that the claim set up by appellee was hostile to and inconsistent with the claim of any right or title thereto by the true owner, and, without discussing this question further, we hold that, as presented in the record before us, the evidence was such that the court would have been warranted in instructing the jury to return a verdict for appellee for 160 acres of land, as claimed by him.

There is another assignment of error which challenges the action of the court in taking away from the jury, after having submitted to tlie jury, this issue:

“Was the possession, use, and cultivation, if any, by plaintiff, J. H. Holland, of the tract of land which he has under fence on the land in controversy, sufficient to put the defendant on notice that the plaintiff was, by such possession and cultivation of said tract under fence, claiming 160 acres of the land in controversy, under and by virtue of the 10-year statute of limitation, as same has been defined to you by the court?”

It is true that the court first gave this issue in charge to the jury, but, for some reason not disclosed by the record, the jury was recalled, and this issue was taken away from the jury. Without determining whether this action of the court might or might not be prejudicial in certain supposable cases, we hold that in this case such action of the court was not prejudicial to appellant, for the reason, as stated above, that the trial court could have properly instructed a verdict straight out for appellee for 160 acres, of the land claimed by him. This same question is also raised by an assignment which challenges the action of the court in refusing to give to the jury a special requested instruction by appellant submitting practically the same issue to the jury. What we have said with reference to the action of the court in taking this charge from the jury will apply to appellant’s contention with reference to the court’s action in refusing to specially instruct the jury on this point. We see no necessity for discussing any of the authorities cited by appellant, nor consuming further time in disposing of this matter. It is simply a case where appellee has acquired title under the 10-year statute of limitation to 160 acres of land owned by appellant, and the evidence showing this is in such shape that the trial court could have held and should have held, that appellee’s claim thereto was established as a matter of law.

All assignments are therefore overruled, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

We have carefully considered appellant’s motion for rehearing, and have concluded that it should be denied. We are also earnestly requested to certify to the Supreme Court, on the ground, as claimed, that our opinion affirming this case is in conflict with the holding of the Supreme Court in the case of Stevens v. Pedregón, 173 S'. W. 210. We respectfully decline to grant the request for two reasons:

First, because we do not think the opinion of the Supreme Court in the Stevens-Pedre-gon Case, considered in its entirety, is susceptible of the construction contended for by appellant. Our understanding of that opinion is stated in our opinion in the case of Brown v. Fisher, 193 S. W. 362.

The other reason is that the very question which appellant wants certified is now pending before tbe Supreme Court, and will be reached and decided, in all probability, before action of that court could be had on the question, if here certified.
      iteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes