author: KEY, O. J.

text:
    CRAWFORD v. WOODS et al.
    (No. 6581.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 25, 1916.
    On Motion for Behearing, May 3, 1916.)
    1. Contracts <§=»88 — Written Contracts— Consideration.
    A written contract, by statute, imports a consideration.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 403 — 405, 407; Dec. Dig. 88.]
    2. Appeal and Error <3=^901 — Beview — Findings oe Trial Court.
    One attacking the findings of the trial court has the burden of affirmatively establishing error on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1771, 3670; Dec. Dig. <§=» 901.]
    3. Brokers <g=>71 — Commissions—Bight to.
    Where a vendor refused to enter into a contract for the sale of lands at a price less than listed, until the broker had agreed not to demand commissions unless the sale was consummated, imd it was contemplated by the parties that the contract between the purchaser and vendor should not be binding until reduced to writing, the broker was not at that time entitled to commissions and so his agreement to demand a commission only in event of a consummated sale was supported by a consideration.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. <⅜=>71.]
    4. Brokers <§^>54 — Commissions—Bight to.
    Unless a broker produces a purchaser ready, willing, and able to buy on the terms offered, he is not entitled to commissions.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. <®=>54.]
    5. Brokers <©=v>61(1) — Commissions — Agreements.
    While a broker who procures a purchaser ready, able, and willing to buy is ordinarily entitled to commissions where the sale fails because of defects in the vendor’s title, a broker who agreed to demand no commissions unless the sale was actually consummated is entitled to none where the sale was not made because the purchasers refused to buy on account of defects in the vendor’s title.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 77, 7.8, 92; Dec. Dig. <®=*61(1)J

      Appeal from District Court, .Travis County; Geo. Calhoun, Judge.
    Action by Joe Crawford against W. M. Woods and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Houghton Brownlee and J. B. Robertson, both of Austin, for appellant. Edwin H. Yeiser and White, Cartledge & Graves, all of Austin, for appellees.
   KEY, O. J.

This is a suit by a real estate agent seeking to recover compensation alleged to have been earned as such agent. There was a non jury trial, which resulted in a judgment against the plaintiff, and he prosecutes this appeal. There is 'no statement of facts, and the case is submitted in this court upon the following findings of fact filed by the trial judge:

“1. On August 10, 1913, the defendant W. M. Woods authorized plaintiff, a real estate broker, to sell for him a tract of land in Williamson county, Texas, described in paragraph 2 of plaintiff’s first amended original petition at $30 per acre in cash and notes, agreeing to pay to the plaintiff a commission of 5 per cent, of the sale price thereof.
“2. That thereafter plaintiff introduced the said Woods to S. W. Redd, W. H. Todd, and W. E. Williamson, and on the same day they agreed to buy the said property, and the defendant agreed to sell the same to them at $27.50 per acre, payable one-third in cash on January 1, 1914, purchasers to assume payment of a note for $Í5,000, with interest to accrue thereon from January 1, 1914, such note being secured by a lien upon said property, and to give note for the balance of the consideration payable on or before January-1, 1916, the cash to be paid and notes and deed executed and exchanged on January 1, 1914.
“3. That thereupon the defendant went out and made investigations with regard to the ability of said purchasers to carry out said contract, and afterwards returned stating that he had satisfied himself on this point and was ready to proceed. A written contract was drawn up by a clerk in the presence of the defendant and said Todd., Williamson, and Redd, such contract providing for the purchase by them from him of said property upon said terms.
“4. Thereupon the defendant announced that he would not sign any contract without consulting an attorney, and he thereupon went alone to the office of Mr. E. Cartledge. The plaintiff, Crawford, shortly afterwards came into the office, and he and the defendant agreed that no commission should be paid to plaintiff in connection with said property unless the sale to Todd, Williamson, and Redd was actually consummated by payment of the cash consideration and execution and delivery of the notes and deed on January 1, 1914.
“5. The said Cartledge drew up a contract providing for the sale of the said property; such contract being identical with that previously drawn up as above stated, except that the contract drawn by said Cartledge provided for execution by defendant of a warranty deed, which provision was not included in the body of the other, said contract being in words and figures ' as follows:
“ ‘The State of Texas, County of Travis.
“ ‘This contract made and entered into on this the 14th day of August, A. D. 1913, by and between W. M. Woods, party of the first part, and W. H. Todd, W. E. Williamson, and S. W. Redd, parties of the second part, all of Travis county, Texas, witnesseth:
“ T. The party of the first part agrees to sell to said parties of .the second part, and the said parties of the second part agree to buy from the said party of the first part eleven hundred and seventy-seven (1,177) aeres of land, more or less, situated in Williamson county, Texas, known as the “Carothers place,” also known as the “Dimmitt place,” lying about nine miles west of the town of Georgetown in said Williamson county, Texas, for a consideration of twenty seven and co/ioo dollars ($27.50) per acre, the quantity of said tract of land to be determined by a survey to bo made by the said party of the first part at his expense.
“ ‘II. The said parties of the second part agree to pay for said land the price stipulated in the first paragraph hereof as follows: One-third of. the total amount is to be paid in cash on January 1, 1914, and the remainder of the consideration for said land here agreed to be purchased and sold is to be paid as follows: The assumption by the said parties of the second part of a note for the sum of fifteen thousand dollars ($15,000) with interest to accrue thereon from and after January 1, Í914, which the said party of the first part has agreed to execute to - Atkinson, in the purchase of said property by him from said Atkinson, and the balance of said consideration for said land here agreed to be purchased and sold is to bo evidenced by the joint note of said parties of the second part, made due and payable to the said party of the first part on or before January 1, 1916, with interest thereon at the rate of 8 per cent, from January 1, 1914, until paid, interest to be made payable annually as it accrues.
“ ‘HI. It is mutually agreed by and between the parties hereto that the said parties of the second part, in the event this transaction is consummated, are to have possession of said property on ' January 1, 1914, and all taxes which shall accrue against said property up to January 1, 1914, shall be paid by the said party of the first part.
“ ‘IV. It is understood by the parties hereto that the said party of the first part is under contract to purchase said property from the said - Atkinson and his wife, and this agreement is made subject to the consummation, of said contract between said party of the first part and the said Atkinson.
“ ‘V. The said party of the first part agrees to furnish a complete abstract of title to said property to the said parties of the second part within 10 days after the consummation of said contract between the said party of the first part and the said Atkinson, and the said parties of the second part are to have 30 days after said abstract has been turned over to them within which to have the same examined by attorneys of their choosing and at the end of said 30 days, the said parties of the second part hereby agree to immediately notify the said party of the first part whether or not the title to said property is f'cccptnble to them.
“ ‘VI. The said parties of the second part have this day deposited with the Citizens’ Bank & Trust Company of Austin, Texas, the sum of five hundred dollars as earnest money, together with copy of this contract, and it is understood that if the title to said property is not acceptable to said parties of the second part, said sum of money shall be returned to said parties of the second part, but if the title to said property is approved by said parties of the second part, they here agree and bind themselvcfs to close this transaction on January 1, 1914, upon the terms and conditions herein stipulated, and in the event of so closing this contract, the said sum of five hundred dollars is to be applied in part on the cash payment hereinabove provided which is to be made upon said land: Provided, further, that if this contract is- closed upon the conditions here stated, the said party of the first part is to execute to said parties of the second part a general warranty deed to said property in which the vendor’s lien is to bs retained to secure the purchase price¡ as herein stipulated, that is to secure said fifteen thousand dollar note, as well as their joint note hereinabove referred to.
“ ‘In testimony whereof, this contract is executed in triplicate by the parties hereto on this the day and year first above written.
“ ‘W. M. Woods,
“ ‘Party of the First Part.
‘“W. H. Todd,
‘“W. E. Williamson,
“ ‘S. W. Redd,
“ ‘Parties of the Second Part.’
“6. That the said contract, same being set out in paragraph 5 of plaintiff’s first amended original petition, was signed by all parties on August 14, 1913.
“7. Said Todd, Williamson, and Redd were introduced to the defendant and negotiations started on August 12, 1913.
“S. That shortly after the defendant delivered to said Todd, Williamson, and Redd an abstract of title to said property which was by them delivered to their lawyers, Messrs. Sandbo & Shelton, of Austin, Texas, who within 30 days thereafter being authorized by said Todd, Williamson, and Redd to do so, verbally accepted the title to said property and afterwards wrote to the defendant a letter as follows:
“ ‘September 17, 1913.
“ ‘Mr. W. M. Woods — Dear Sir: We told Mr. Cartledge, your agent and attorney here, yesterday, and we repeated it to him to-day, that Mr. Todd and others have decided to accept the title to your Williamson county land for the sale of which you entered into a contract some time ago. While we do not consider this by any means a perfect title, in fact realize that it is subject to some objections, they will carry out their part of the contract, depending as much on your general warranty which they will construe to cover every defect in the title, as they depend upon the abstract for a showing as to the character of title.
“ ‘While our notice to your agent and attorney is satisfactory under the law, it occurred to us to also notify you of this fact.
“ ‘Yours truly, Sandbo & Shelton,
“ ‘Attys. for Will Todd et al.’
“8a. That subsequent to the signing of said contract the defendant had a survey made of said land showing that it contained 1,159¾ acres.
“9. That shortly thereafter said Todd, Williamson, and Redd entered into a contract with O. E. Clinger of Travis county, Texas, in words and figures as follows:
“ ‘The State of Texas, County of Travis.
“ ‘Know all men by these presents, that we, S. W. Redd, W. E. Williamson, and W. H. Todd, of Travis county, Texas, have this day entered into the following contract with C. E. Clinger, of Travis county, Texas, viz.:
“ ‘The said S. W. Redd, W. E. Williamson, and W. H. Todd covenant that they have a good and valid contract for the purchase of the following described property, to wit: Eleven hundred and seventy-seven acres of land more or less, situated in Williamson county, Texas, which is known as the Carothers place, and also known as the Dimmitt place, and situated about nine miles northwest of the town of Georgetown; and for the consideration hereinafter set out, do hereby bind and obligate ourselves to grant, sell, and convey said property unto the said C. E. Clinger by general warranty deed, or so cause the holders of the legal title to said property to so convey the same to him upon the payment by him of the consideration hereinafter set out.
“ ‘The said S. W. Redd, W. E. Williamson, and W. H. Todd bind and obligate themselves to deliver to the said C. E. Clinger a complete abstract of title to said property forthwith, and it is agreed that he shall have 15 days from the time it is so delivered to him within which to have the same examined; and in the event that the same shows a good and marketable title to said property in the person or persons who are to make the conveyance to the said C. E. Clinger, he binds and obligates himself to purchase the same conveyed to him by general warranty deed for the following consideration, to wit:
“ ‘The sum of seven dollars and fifty cents per acre to be paid in cash on delivery of the deed to the said S. W. Redd, W. E. Williamson, and W. H. Todd,. subject to the payment hereinafter mentioned to be made out of same, for their equity in said land under said contract; and the sum of twenty-seven dollars and fifty cents per acre in addition thereto, shall be paid as follows to the party or parties entitled to receive the same, viz.: One-third in cash on delivery of the deed; fifteen thousand dollars by the assumption of the payment of the note for said sum now constituting a lien on said property which matures and becomes due on or before January 1, 1926, and bears 8 per cent, interest ; and the remainder in a note, with interest from January 1, 1914, at 8 per cent, interest, to become due January 1,1916; but it is agreed and understood that the said C. E. Clinger assumes the payment of interest of said note for fifteen thousand dollars from January 1, 1914, and that in the event that there is any accrued interest on the same at the latter date, he is to be accounted to for the same. It is further agreed that all taxes.on said property shall be paid to January 1, 1914, by the sellers, or that the said C. E. Clinger shall be accounted to for the same.
“ ‘It is agreed that said property shall be surveyed by the county surveyor of Williamson county, or by some surveyor who is acceptable to all parties concerned, at the expense of the sellers for the purpose of determining the number of acres in the same as a basis for this sale.
“ ‘In the event that said abstract of title proves defective, the parties, furnishing the same shall have a reasonable time in which to perfect the same, provided that it shall be perfected not later than January 1, 1914.
“ ‘Possession of said property is to be delivered to the said C. E. Clinger on January 1, 1914, and he shall not be required to accept said deed until said date.
“ ‘The said C. E. Clinger deposits, together with this contract, the sum of five hundred dollars with the Citizens’ Bank & Trust Company of Austin, Texas, to guarantee the performance of this contract by him, which shall be refunded to him in the event that said title proves to be defective; but in the event that the same proves to be good and marketable, and he fails to1 comply with this contract, the same may be forfeited to the sellers as liquidated damages. In case this sale is completed said sum of five hundred dollars shall be applied in payment of part of the cash consideration to be paid by the said C. E. Clinger.
“ ‘It is further agreed that the following payments are to be made out of the cash payment to 'be made by the said C. E. Clinger on the delivery of said deed, and that it shall be the duty of said bank to see to the payment of same to the person hereinafter named, to wit:
‘To Mrs. D. M. Bogle, the sum of six hundred sixty-six and two-third dollars. To J. E. Rowe, the sum of three hundred thirty-three and one-third dollars.
“ ‘To G. B. McCormick, the sum of five hundred dollars; and
“ ‘To J. D. Mosely, the sum of one thousand dollars.
“ ‘Said sums to be paid to said parties in full discharge of all claims they have in or to said property, or against any of the parties to this contract for services rendered in securing a purchaser or purchasers for the property, or otherwise ; and it is agreed that the said G. B. McCormick shall be required to execute to the said C. E. Clinger such character of release or quitclaim of all his right, title, and interest in and to said property, as the attorney for the said O. E. Clinger may request; and that said sura shall not be paid to him until such instrument is duly executed.
“ ‘Witness our hands at Austin, Texas, this the 5th day of September, A. D. 1913.’
“9a. That said contract was signed and acknowledged before a notary public for Travis county, Texas, by all the parties thereto.
“10. That thereupon said Todd," Williamson, and Redd delivered to said Clinger the abstract of title above referred to and he delivered it to his lawyer, Mr. E. H. Yeiser, of Austin, Texas, with the request that he examine and report upon the title.
“11. That Mr. Yeiser examined said abstract of title and reported to said Clinger that in his opinion the title of defendant Woods to said property was neither good nor marketable.
“12. Thereupon said Todd, Williamson, and Redd delivered the abstract to Mr. J. M. Patterson, an attorney of Austin, Texas, with the request that he examine the same and report upon the title, and he reported to them that in his opinion the title of defendant Woods was neither good nor marketable.
“13. That said Clinger, if the title of defendant Woods to said property had been good, would have complied with his contract of purchase entered into with -said Todd, Williamson, and Redd, and would have paid the money and executed the notes provided for therein.
“14. That said Clinger had on hand at that time about $5,000 in cash and was the owner of about 600 acres of cultivated farming land in Travis county, forming no part of his homestead upon which there was a mortgage to secure a debt of $4,000. That said Clinger expected to procure the balance of the cash necessary to carry out his purchase from Messrs. Todd, Williamson, and Redd by sale of 200 acres of land property to John B. Moore of Austin, Texas, who had agreed to buy the same from him and to pay him therefor $110 per acre all in cash, and that said Moore was ready, able, and willing to purchase said property and make said payment had said Clinger desired to sell him said land and would have done so but for the fact that said Clinger, after his trade with Todd, Williamson, and Redd, failed to go through, did not desire to sell said 200 acres.
“15. That said Todd, Williamson, - and Redd did not have on hand sufficient money to make the cash payment provided for in their contract with defendant Woods, but the said Todd had on hand in cash about $5,000, and the said Redd about $1,500, and they expected to procure the balance by a sale or hypothecation of the property or by borrowing the same, but did not introduce any evidence of any prospect of securing such loan.
“16. That thereafter said Clinger notified Messrs. Todd, Williamson, and Redd that he would not accept the title to said property and refused to go on with the trade on the ground that the title of defendant Woods thereto was neither good nor marketable.
“17. That thereupon said Todd, Williamson, and Redd also refused to carry out their contract with defendant Woods, stating as ground for such refusal the fact that defendant Woods’ title to said property was neither good nor marketable, delivering to defendant at said time a letter written by their attorney Mr. E. H. Yeiser, as follows:
“ ‘Austin, Texas, December 31, 1913.
“ ‘Mr. W. M. Woods, Austin, Texas. — Dear Sir: This is to advise you that we will refuse to perform our part of the contract entered into with you for the pinchase of the Carothers or Dimmitt place consisting of about 1,159 acres part of the G. Fisk league, and the Wm. H. Munroe and Henry Garmes surveys in Williamson county, Texas, because it appears that you have no title to the property to convey to us, and as the contract mentioned requires you to convey to us a marketable title, being such as will support a warranty deed, there is a failure of consideration in the failure of the title, and a breach of the warranty in that the title to the property has proven to be unmarketable.
“ ‘The title is objected to in that it appears on pages 93 to 95 of the abstract of title to the property that P. H. Dimmitt willed the property to his daughter, together with other property in trust with a provision that she should receive only $100 per month from the same until she should become 25 years of age, at which time the estate should be delivered to her. It further appears from the abstract of title that the trustee attempted to resign before the daughter became 25 years of age, she being only 23 years of age, and that she then, joined by her husband, conveyed the property to you.
“ ‘Under the terms of the will, it is clear that a trust was created for the daughter, and that the legal title to the property vested in the trustee, who was to keep and preserve the property for her until her twenty-fifth year. Du-lin v. Moore, 96 Tex. 135 [70 S. W. 742],
“ ‘On the other hand it is clear that the trust could not be terminated by the court so as to divest the trustee of the legal title and invest it in the daughter, and the resignation of the trustee was void, and that he still holds the legal title to the property for the purpose of executing the trust. Monday v. Vance, 92 Tex. 428 [49 S. W. 516]; Danius v. Fletcher, 100 Tex. 555 [101 S. W. 1076].
“ ‘It has been intimated that if the daughter lives until she is 25 years of age, that the title to the property will pass to you under the warranty deed made to you by her and her husband by way of estoppel. This is not a sound proposition, as a married woman is not estopped by her deed. Wadkins v. Watson, 86 Tex. 194 [24 S. W. 385, 22 L. R. A. 779]; Daniel v. Mason, 90 Tex. 240 [38 S. W. 161, 59 Am. St. Rep. 815],
“‘The title is further objected to in that it appears that it was at one time vested in John J. Dimmitt and afterwards partitioned among persons claiming to be his heirs; and there is nothing in the abstract to show who were his true heirs. It further appears that_ he had a child by the name of W. W. Dimmitt, and it does not appear that he received anything in the partition.
“ ‘You are further advised that we negotiated a sale of this property to- Mr. G. E. Clinger of Austin, Texas, so as to net us a large profit, and that we were unable to close same on account of the defects above mentioned, and others as shown by the opinion of his attorney, dated October 18, 1913, and on file with the O. B. & T. Co. of Austin, Texas. Since that time, a number of attorneys have had occasion to pass on the title, and it has been declared unmarketable by all of them. And it appears that the title cannot be corrected until your grantor becomes 25 years of age, which will be some time yet. We have been greatly damaged by the failure of this title, and again declare the same unsatisfactory to us, and request that we be compensated for our damages.
“ ‘We are delivering a copy of this notice to the bank mentioned to be deposited with the contract referred to, and to serve as notice to it not to deliver our deposit to you.
“ ‘Respectfully,
“ ‘S. W. Redd,
“ ‘W. H. Todd,
“ ‘W. E. Williamson,
“ ‘By Atty. Ed. H. Yeiser.’
“18. That at the time defendant listed the said property with plaintiff for sale plaintiff had no knowledge that deed had not been executed and delivered conveying same to defendant, but learned for the first time when the contract with Todd, Williamson, and Redd was drawn up that defendant had a contract to purchase which had not yet been carried out by payment of money and execution and delivery of deed and note.
“19. That said contract of purchase was performed, and on August 18, 1913, Lillie A. Atkinson and her husband, Charles B. Atkinson, executed a warranty deed purporting to convey the said property to the defendant W. M. Woods for a consideration of $5,000 cash paid and one note for the sum of $15,000 dated January 1, 1914, due on or before 12 years after date being [bearing! 8 per cent, interest from date.
“20. That defendant Woods derived his title to said property solely through the said Lillie
A. Atkinson and Charles B. Atkinson, and they derived their title thereto solely through and under the will of P. fi. Dimmitt, deceased, the father of said Sirs. Lillie Atkinson, who owned the same at the time of his death.
“21. That the said Lillie A. Atkinson, Charles B. Atkinson, and the defendant Woods had not altogether, or by themselves, or by agents or tenants had actual possession of said property on January 1, 1914, for more than 2 years and 10 months.
“22. That the will of P. I-I. Dimmitt, deceased, which was duly probated in the county court of Williamson county, Texas, was as follows:
“ ‘Last Will and Testament.
“ ‘The State of Texas, Williamson County.
“ T, P. H. Dimmitt, of Williamson county, Texas, being of sound mind and disposing mind and memory do make and execute this my last will and testament hereby revoking the only other will I ever made it being the will executed by me on Feby. 28th, 1S95, witness by J. E. Cooper and R. T. Cooper. .
“ ‘1st. — I direct that all my just and legal debts and funeral expenses be first paid.
“ ‘2nd. — My estate at this date consists entirely of my separate estate. There being no community estate. The property real and personal acquired since my marriages came to me by inheritance and by way of advancements from the estate of my father and mother, the increasement of rents and profits received during marriage not off-setting my losses and expenses.
“ ‘3rd. — It is my will that my said wife, Mrs. Mamie Henley Dimmitt shall only receive from my separate estate an annuity payable monthly of one hundred dollars per month, or twelve hundred dollars annually as long as she remains single after my death, but the said annuity to cease and terminate at once upon her remarriage after my death. I qualify further said annuity as follows: If at my death I shail have acquired a community estate with my said wife Mrs. Mamie Henley Dimmitt and she declined to take solidly the annuity under the will, then the one-half of said community estate due my said wife shall be deducted from said annuity. In other words annuity shall not be paid for a period of months which at the rate of one hundred dollars per month would create a sum equal to her said one-half of said community estate aforesaid.
“ ‘4th. — I hereby will and bequeath the residue of my estate, real, personal and mixed, to my daughter Lillie A. Dimmitt under the following provisions:
“ ‘(a) The entire estate, real, personal and mixed after paying the annuity to my said wife under the terms and conditions provided for in section 3rd, shall be held by my executor herein after appointed in trust for my said daughter until she reaches her 25th birthday whether she remains single or marries. The said executor so holding, managing, controlling, investing and re-investing same in such securities as the law permits a guardian of the estate of minors —until my said daug’hter shall reach said age of twenty-five years when the same shall become hers in fee simple.
“ ‘(b) From the date of my death my said daughter is to receive only an annuity of one hundred dollars per month or twelve hundred dollars annually, payable .monthly, until her said 25th birthday. This annuity is also qualified as follows: If after my death my said daughter should claim and there should be determined that any part of my estate belongs to . my said daughter in her own right as an heir of her deceased mother Mrs. Amanda Dim-mitt then the said estate of inheritance of my said daughter shall be deducted from said annuity. In other words the annuity shall not be paid for a period of months which at the rate of one hundred dollars per month will create a sum equal to her estate of inheritance as aforesaid.
“ ‘5th. — I hereby,, nominate, constitute and appoint F. W. Carothers of Williamson county, Texas, as the executor of this my last will ana testament and as guardian for my said daughter Lillie A. Dimmitt. I direct that the only court proceed to be had is the probating of this will, — the filing of an inventory of my estate as the law requires and my executor executing the statutory executor’s bond.
“ ‘In testimony whereof, I have hereunto set my hand this August 27th, 1902.
“ ‘[Signed] B. H. Dimmitt.’
“ ‘Signed, declared, and published by P. H. Dimmitt as his last will and testament in the presence of us the attesting witnesses who have hereto subscribed our names in the presence of the said P. H. Dimmitt and in the presence of each other at his special instance and request, this August 27, 1902.
“‘[Signed] H. W. Harrel,
“ ‘Robt. A. John.’
“23. That in cause No. 7008 pending in the district court of Williamson county, Texas, entitled Charles B. Atkinson and Wife, Lillie A. Atkinson, v. F. W. Carothers, Executor, wherein plaintiffs sued to recover full title, contx-ol and possession of all property of the estate of said P. H. Dimmitt free from any right of the executor of said will, the said Lillie A. Atkinson and her husband agreed on March 6, 1911, with said Carothers, as executor, that a decree and judgment should be entered construing the said will of P. II. Dimmitt to vest, and that the full and complete legal title and beneficial interest to the property involved in said suit and belonging to the estate of P. H. Dimmitt at the time of his death had vested, should and did vest in said Lillie A. Atkinson, and that she was the only person having any beneficial right or interest therein, and it was further agreed by said parties that the provisions of said will directing that said executor have exclusive possession, care, and control and management of said property, and that he invest and reinvest same, should be adjudged by the court valid and subsisting provisions and effective until the said Lillie A. Atkinson should reach the age of 25 years on, to wit, October 1, 1914, and that the said Lillie A. Atkinson and her husband do nothing to interfere with or disturb said possession, control, and management until said date. That in said cause in accordance with said agreement the court rendered judgment that the full and complete legal title to the estate of P. H. Dimmitt, deceased, together with the beneficial interest therein was and had been by the terms of said will vested in the said plaintiff Lillie A. Atkinson,, and that the provisions of said will that the possession of all the effects of said estate be and the same should remain in the possession of the executor, the said F. W. Carothers, and that he should have the exclusive care, control and management of the same as provided by and subject to the restrictions included in said will was and is a valid, legal, and subsisting and binding provision of said will; and it was further ordered, adjudged, and decreed by the court that the plaintiff Lillie A. Atkinson, joined by her husband, Charles B. Atkinson, as to their several prayers that they recover the possession of said estate or any part of same, be denied, and as to such, prayers they take nothing by said suit; and that there has been and was thereby vested in said Carothers as executor the exclusive possession, management, and control of said estate under the terms of said will. And it was further decreed and ordered by the court that said plaintiffs do nothing that would in any sense interfere with or disturb the care, management, and control of said estate of said Carothers as executor thereof or his possession thereto until said plaintiff Eillie A. Atkinson arrives at the age of 25 years. _
_ “24. That on March 15, 1913, said F. W. Carothers as independent executor of said estate and said Lillie A. Atkinson and her husband filed in the county court of _ Williamson county, by which court the said will had been admitted to probate, an application tending [tendering] the resignation of said executor and alleging that said Mrs. Lillie A. Atkinson and her husband were qualified and capable of receiving, managing, controlling, and investing and reinvesting said estate, and that no debts existed against said estate, and that there was no reason for further administration thereof, or for further withholding the possession thereof from the said Lillie A. Atkinson, and that a full accounting of the property of said estate had been had, and requesting the court to accept his resignation as such executor and to discharge and release him and his bondsmen. That on the 14th day of April, 1913, the said county court upon a hearing of said application found that the allegations in said application and resignation were true, and that said Carothers was entitled. to resign and he relieved from his duties, obligations, and liabilities as such executor, and that there was no necessity for further administration of said estate, and that said Lillie A. Atkinson was qualified by law to receive and manage her said estate, and it was thereupon ordered, adjudged, and decreed by the court that ‘the resignation of the said E. W.^ Carothers as executor of the estate of X’. II. Dimmitt, deceased, be and the same is hereby in ail things received and accepted, and he is hereby discharged as such executor, and is hereby authorized and directed by the court to deliver to the said Lillie A. Atkinson, the person entitled to receive same, all the property and estate of the said P. H. Dimmitt, deceased, as shown by the Exhibit A attached to said application for resignation and settlement, and take the receipt of the said Lillie A. Atkinson and her husband, Charles B. Atkinson, for same; and it is further ordered, adjudged, and decreed by the court that the said F. W. Carothers and his surety, the said Fidelity & Deposit Company of Maryland, be and they are hereby relieved and discharged from any and all liabilities whatever, existing or to exist by reason _ of the bond or bonds heretofore executed by said F. W. Caroth-ers, as such executor, and by said Fidelity & Deposit Company of Maryland, as surety for the said Carothers as executor of the said estate of P. H. Dimmitt, deceased, and it is further ordered by the court that said application for resignation and settlement, together with the exhibit attached to and made a part of same, be recorded in full in the probate minutes of this court, together with this order; and it is further ordered that the costs of this proceeding-be paid out of said estate.’
“25. That the title of defendant Woods to said property in Williamson county, Texas, was neither good nor marketable.
“26. That had the said contract of sale entered into between defendant and Messrs. Todd, Williamson, and Redd been consummated by payment of cash and execution and delivery of deed and notes, a commission of 5 per cent, upon the total consideration would have been a reasonable compensation to plaintiff for his services and he would have been entitled to receive a commission amounting to $1,593.95.
“27. That the said Lillie A. Atkinson became 25 years of age on October 1, 1914.
“28. That though plaintiff has often demanded payment of the sums claimed by him as commissions for' procuring such purchasers no payment of any character has been made by defendant to him.
“29. That the abstract of title furnished by defendant Woods to said Todd, Williamson and Redd showed all the facts as to the condition of the title herein set out, hut plaintiff had no knowledge of any defect in the title before said Clinger refused to accept it.
“30. The defendant did not bring suit against said Todd, Williamson, and Redd to force them to comply with their contract of purchase and prior to the trial of this ease permitted them to withdraw from the Citizens’ Bank & Trust Company of Austin, Texas, the $500 earnest money they had previously deposited there as provided in said contract.
“31. Said C. E. Clinger had good fee-simple title to the 200 acres of land he [he] expected to sell to said J. B. Moore.
“32. Under the custom existing in Williamson and Travis counties, Texas, during said year a real estate agent on making a sale of propei’ty placed with him for sale was entitled to receive a commission of 5 per cent, of the purchase price, and plaintiff and defendant were each familiar with this custom and contracted with reference thereto.
“33. That in said counties in said year it was the custom for the vendor to execute a general warranty deed when he had entered into a contract to convey, but no agreement as to character of deed had been made.
“34. That if the title of defendant Woods to the said property in Williamson county had been good, and if the sale of same by Todd, Williamson, and Redd been made to Clinger, then said Todd, Williamson, and Redd would have been ready, able, and willing to. carry out their contract of purchase with said defendant set out herein, and would have paid the money to said Woods and executed and delivered to him the notes called for therein within the time fixed therefor in said contract.
“35. That prior to the time said property was listed with plaintiff for sale, he had agreed with C. Wendlandt, of Travis county, Texas, to divide with him all commissions earned by plaintiff. That said Wendlandt had a partner, to wit, J. J. Milstead, with whom said Wendlandt had agreed to share his earnings, including amounts received from plaintiff. That prior to the filing of this suit the said Wendlandt and Milstead released, transferred, and assigned to plaintiff all their interest in and to the claims herein asserted, and plaintiff was at that time and has been ever since and now is the sole owner thereof.”

Opinion.

Appellant contends that inasmuch as the record shows that appellee Woods placed the property in appellant’s hands for sale as a broker and appellant procured purchasers who were ready, able, and willing to purchase the property upon, terms satisfactory to Woods, and that a sale would have been consummated but for the fact that Woods’ title to the property was neither good nor marketable, appellant was entitled to recover his commission. In support of that contention counsel for appellant have cited authorities to the effect that when a person claiming to own property places it in the hands of a broker for sale, and the broker has no knowledge of the condition of the title, the alleged owner impliedly warrants that he has a good merchantable title, and therefore if a sale subsequently negotiated by the agent is not consummated on account of a defect in the title, nevertheless the broker has earned and is entitled to recover his commission. Conceding the correctness of that proposition of» law, we do not think it should control in this case, because of the agreement referred to in the fourth finding of fact to the effect that no commission should be paid to appellant unless the sale then under consideration “was actually consummated by payment of the cash consideration and execution and delivery of notes and deed on January 1, 1914.” It is true that appellant, in proper form, alleged in his answer that the agreement referred to was without consideration, was made after he had earned his commission and therefore was void, but the trial court’s findings of fact do not support that pleading. If the agreement referred to was in writing, then, by force of statutory law, it imported a consideration; but whether in writing or oral, we find no finding of fact or other evidence to support the conclusion that the agreement was not based upon a sufficient consideration. While the trial court made no specific finding upon the question of consideration, it treated the agreement as constituting a valid contract, and the burden rests upon appellant to make it affirmatively appear in this court that the trial court committed error in that respect. Furthermore, we do not think that the facts found by the trial court show that appellant had earned his commission before the agreement referred to was made. Perhaps the trial court’s second and third findings of fact, if looked to alone, support appellant’s contention in that regard; but the fourth finding of fact and the latter part of the third indicate with reasonable certainty that it was understood by all the parties that the contract of sale was to be reduced to writing and signed by the vendor and vendees in order to make it a binding contract, and also indicate that in order to bring about the execution of such written contract, appellant agreed with ap-pellee Woods that the latter was to pay the former no commission, unless the sale was actually consummated in the manner specified in the fourth finding of fact. If Woods was not willing to sign the contract unless appellant entered into the agreement referred to, then the action of Woods in signing the contract was a sufficient consideration for the agreement concerning the commission. Moreover, considering all the findings of fact, we think they fail to show that the proposed purchasers Redd, Todd, and Williamson, at the time the contract was made, were ready and able to make the first payment, and that they would not have been so had they not subsequently contracted to sell the property to Clinger, which contract of sale would probably never have been made by Clinger if Redd, Todd, and Williamson had not produced the written contract of sale from Woods to them. So we conclude that appellant had not earned his commission at the time he entered into the agreement with Woods to the effect that the payment of his commission was to be dependent upon the consummation of the deal between Woods and Redd, Todd, and Williamson; and as that agreement and the signing of the contract referred to seems to have been contemporaneous, we think the findings indicate that the signing of the contract by Woods was a consideration for the agreement between him and appellant.

But it is contended on behalf of appellant that the agreement referred to will not protect Woods, for the reason that Woods was to blame for the failure to consummate the sale. In other words, the contention is that Woods agreed to convey to Redd, Todd, and Williamson a good merchantable title, while it is contended that the facts show that he had no such title, and therefore could not convey it, and that it was not intended by the agreement between appellant and Woods that he should have no compensation if the failure to consummate the sale resulted from a breach on Woods’ part of his contract to convey a good title. Counsel for appellant have cited no authority in support of that contention, and we have found none. The findings of fact do not show that the contract contained any such stipulation. On the contrary, it is described by the trial judge as an agreement “that no commission should be paid to plaintiff in connection with said property unless the sale to Todd, Williamson, and Redd was actually consummated by payment of the cash consideration and execution and delivery of the notes and deed on January 1, 1914.” If the contract read as indicated by the findings of fact, then it would seem that appellant agreed that he was to have no compensation if there was no sale of the property, regardless of the reason why the sale was not consummated. Such contract would violate no law or rule of public policy, and therefore it would be valid. If the evidence, whether written or oral, showed that the contract referred to was not intended to apply if the failure to consummate the sale was caused by appellee Woods, appellant should have brought up a statement of facts, so as to make it appear that the description of the agreement contained in the court’s findings of fact is too general and not accurate. Not having pursued that course, appellant is bound by the finding referred to, and if this court is to indulge any presumptions in reference to what may have been the details of the agreement, such presumptions must be in support of the judgment rendered by the trial court.

All the questions presented in appellant’s brief have been duly considered, and our conclusion is that the judgment of the trial court should be'affirmed; and it is so ordered.

Affirmed.

On Motion for Rehearing.

Appellant’s motion for a rehearing has received careful consideration, but we are still of opinion that this court has properly disposed of the appeal. At th'e time appellant Orawford and appellee Woods entered into the contract described in the fourth finding of fact appellant was apprised of the fact that Woods did not own the land, and therefore might never acquire title to it; and that fact, together with the terms of the contract to the effect “that no commission should be paid to plaintiff in connection with said property, unless the sale to Todd, Williamson, and Redd was actually consummated by payment of the cash consideration and execution and delivery of the notes and deed,” indicate with reasonable certainty that it was intended by both parties to that contract that appellant should have no right to claim a commission unless the sale was actually consummated, regardless of who might be to blame for such failure.

Motion overruled.
      ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    DICKINSON v. FIRST STATE BANK OF BLACKWELL et al.
    (No. 5612.)
    (Court of Civil Appeals of Texas. Austin.
    April 5, 1916.)
    1. Appeal and Error <§=>909(1) — Record on Appeao-Priesumption s.
    On appeal from an order quashing a writ of garnishment to which several grounds of objection were urged, it will be presumed that all were sustained, in the absence of record showing to the contrary.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3675; Dee. Dig. <§=>909(1).]
    2. Garnishment <§=>87 — Affidavit — Sufficiency-Name of Defendant.
    An affidavit for a writ of garnishment, otherwise sufficiently identifying the original cause, is not invalid for omitting the name of the defendant in the original cause.
    [Ed. Note. — Eor other eases, see Garnishment, Cent. Dig. §§ 156-159, 163-166; Dee. Dig. <§=> 87J
    3. Garnishment <§=>193 — Affidavit—Sufficiency — Am o unt.
    It is no ground for quashing a writ of garnishment that the affidavit therefor states a less amount than is claimed in the original suit, as, for instance, that it fails to demand interest.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. §§ 381, 382; Dec. Dig. <§=>193.]
    4. Garnishment <§=>93 — Variance between Writ and Affidavit — Effect.
    A writ of garnishment, naming the amount as $752, when the affidavit and complaint named $742, is not therefore invalid; the error being on the part of the clerk, for which plaintiff was not responsible.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. §§ 160, 174-180; Dec. Dig. <§=>93.J
    5. Garnishment <§=>93 — 'Variance between Writ and Affidavit — Effect.
    It is the affidavit which is the foundation of the suit against the garnishee, and its allega-.
    tions govern if- the writ is at variance with them.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. §§ 160,174-180; Dec. Dig. <⅞=>93.]
    6. Garnishment <§=>93 — Writ—Surplusage —Amount.
    A writ of garnishment need not state the amount of the demand, and if it does so erroneously, the statement may be treated as surplus-age.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. §§ 160, 174-180; Dec. Dig. <§=>93.]
    7. Garnishment <§=>89- — Bond—Sufficiency.
    A garnishment bond is suilicient if more than double the amount of the demand of the complaint and affidavit, though less than double the amount named in the writ.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. §§ 167 — 169; Dec. Dig. <§=>89.]
    8. Garnishment <§=>96 — Affidavit — Sufficiency-Description.
    Where an affidavit described the garnishee as a corporation of which W. C. S. was president, the return of the writ of garnishment showing service on W. C. S., was sufficient.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 189-195; Dec. Dig. <§=>96.]
    Error from Runnels County Court; M. Kle-berg, Judge.
    Action by R. A. Dickinson against Will Parrish, in which the First State Bank of Blackwell was garnished. From an order quashing the writ of garnishment, plaintiff brings error.
    Reversed and remanded.
    R. B. Truly, of Ballinger, for plaintiff in error. Wright & Harris and L. B. Harris, all of San Angelo, for defendants in error.
   JENKINS, J.

Plaintiff in error sued Will Parrish in the county court of Runnels county for $742.68, with interest at the rate of 6 per cent, per annum from January 1, 1914. On March 11, 1914, plaintiff in error sued out a writ of garnishment against the First State Bank of Blackwell, Tex. On April 14, 1914, the bank answered that it had in its possession $187.54 belonging to said Parrish. On May 19, 1914, Parrish filed a motion to quash the writ of garnishment because: (1) The affidavit does not state the name of the defendant in the main suit, and does not thereby identify the ease in which garnishment is applied for; (2) because of variance between the amount of the debt sued for and the amount claimed in the affidavit for garnishment; (3) because plaintiff’s suit was for $742.68 and the writ of garnishment alleges the same to be for $752.68; (4) because the bond was insufficient in amount; and (5) because the sheriff’s return does not show that it was served on the garnishee.

The court sustained the motion to quash, presumably upon all of the grounds mentioned, as the record does not show otherwise. None of said grounds for quashing the writ of garnishment should have been sustained. The affidavit indentifies the original cause in every respect, except that the name of the defendant therein is left blank.

It is no ground for quashing a writ of garnishment that the affidavit therefor states a less amount than is claimed in the original suit. Evans v. Lawson, 64 Tex. 199; Aultman v. Smyth, 43 S. W. 932; Smith v. Mather, 49 S. W. 258; Burge v. Carriage Co., 47 Tex. Civ. App. 223, 150 S. W. 233. The only variance between the amount mentioned in the original suit and in the affidavit for writ of garnishment is the Original suit was for $742.68, with interest thereon at the rate of 6 per cent, per annum from the 1st day of January, 1914, and the affidavit for garnishment alleged the amount to be due to be $742.68, but did not mention interest.

The writ of garnishment mentions the amount claimed in plaintiff's affidavit as $752.68; whereas, the amount was $742.68. This was evidently a mistake on the part of the clerk for which the plaintiff in error was not responsible. The affidavit is the foundation of the suit against the garnishee. Bowers v. Insurance Co., 65 Tex. 52. It was not necessary that the writ should state the amount, and it may be treated as sur-plusage. Burge v. Carriage Co., supra.

The bond was for $1,500, which was more than double the amount sued for in the original suit, and more than double the amount mentioned in the affidavit for garnishment, and therefore was in compliance with the statute.

The affidavit described the garnishee as a corporation, of which W. O. Shamblin was president. The writ was served upon Shamblin.

Defendants in error’s motion to strike out the bills of exception is overruled.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded.

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


text:
    WESTERN AUTOMATIC MUSIC CO. v. FISHER et al.
    (No. 5600.)
    (Court of Civil Appeals of Texas. Austin.
    March 15, 1916.
    Rehearing Denied May 3, 1916.)
    Chattel Mortgages 3=150(2) — Recordation — Filing “Forthwith” — Statute.
    Where the buyer of a piano, giving notes for the price secured by mortgage, executed the instruments, and mailed them to the seller for inspection, which remailed them the same day to the county clerk of the county of the buyer’s residence, the mortgage was filed “forthwith” within Rev. St. 1911, art. 5655, requiring recordation of chattel mortgages.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 250, 251; Dec. Dig. 3= 150(2).
    For other definitions, see Words and Phrases, First and Second Series, Forthwith.]
    Appeal from Milam County Court; John Watson, Judge.
    Suit by the Western Automatic Music Company against Mrs. Julia Fisher and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Lyles & Lyles and Wallace & Moore, all of Cameron, for appellant. Morrison & Lewis, of Cameron, for appellees.
   JENKINS, J.

Mrs. Julia Fisher owned a business house in the city of Cameron, Milam county, which she rented to A. L. Merritt for the term of one year from February 14, 1914. He used the building until October, 1914, when he abandoned the same. At that time he owed for rent which at the time of the trial hereof amounted, principal and interest, to $430. On March 4, 1914, some two weeks after he took possession of the building, Merritt made a contract with appellant to purchase a secondhand piano, by the terms of which contract the piano was to be shipped to him from Dallas, appellant’s place of business, upon trial, and, after testing the same for a reasonable time, if it suited him, he was to purchase the same and execute his notes therefor payable $70 per month, aggregating $1,650, with a mortgage on the piano to secure the payment of said notes; said mortgage and notes to be sent to appellant at Dallas for approval. The piano was shipped to Merritt, consigned to appellant, shipper’s order, and arrived at Cameron March 2, 1914. Appellant drew a draft on Merritt for $70.15 and sent same to a bank at Cameron, with bill of lading attached, which was paid by Merritt, and the piano was delivered to him by the railway company March 4th. If Merritt took the piano, this $70 was to be credited on the purchase price. A short time thereafter appellant wrote to Merritt, urging him to either accept the piano and execute the notes and mortgage, or to ship it back to appellant. The blank mortgage and notes had been sent to the bank. On March 16, 1914, Merritt got the blank mortgage and notes, filled the same out, and mailed them to appellant at Dallas, in accordance with the agreement between said parties. They were received by appellant at Dallas on the following day, by it examined and approved, and remailed to the county clerk of Milam county on same day, and by him received and filed prior to 8 o’clock a. m. the next day. This was as soon as the mortgage could have been sent to Dallas after it was executed, and returned from Dallas to Cameron. The case was tried by the court without a jury, and Mrs. Fisher’s landlord’s lien was adjudged to be superior to appellant’s mortgage lien. There was also a judgment in reference to another mortgage lien held by the Cameron Power & Light Company, which was shown not to be superior to Mrs. Fisher’s landlord’s lien; but, as this case is to be reversed and remanded, that feature of the case need not be further discussed.

The only controverted issue herein is as to whether appellant’s mortgage was filed “forthwith,” within the meaning of article 5055, R. S. The trial court found that it was not filed forthwith, for the reason that it could have been filed in Cameron on the 16th of March, the day it was executed. It is true that Merritt could have handed it to the clerk immediately after executing the same, but he had no authority to do so. It was not then a mortgage, and did not become such until it, together with the notes, was examined and approved by appellant. Appellant, after receiving the mortgage examined, approved and mailed it to the county clerk of Milam county on the same day, and it was received by the clerk in the shortest time that it could be transported by mail from Dallas to Cameron, a distance of about 150 miles. Upon all the facts herein found the testimony is undisputed.

The title to the property did not pass until the notes were accepted and the mortgage was approved in Dallas on March 17th, and the mortgage was filed “forthwith” thereafter, as that term is used in our statute, by reason of which the appellant’s mortgage lien is superior to Mrs. Eisher’s landlord’s lien. Austin v. Welch, 31 Tex. Civ. App. 526, 72 S. W. 882; Freiberg v. Brunswick, 16 S. W. 785; Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 103.

For the reasons stated, the judgment of the trial court is reversed and remanded to be tried in accordance with this opinion.

Reversed and remanded..
      <$=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    STRONG et ux. v. HARWELL.
    (No. 5659.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1916.
    Rehearing Denied May 10, 1916.)
    Appeal and Error <@=o262(2) — Exceptions— Peremptory Charge.
    Where a record fails to show that a bill of exceptions was taken to a peremptory instruction as required by art. 2061, Vernon’s Sayles’ Ann. Civ. St. 1914, or that appellant’s objections thereto were overruled, or that exception was taken by appellants to such overruling, the peremptory instruction will not be reviewed on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1583-1585, 1587-1589, 1594, 1595; Dec. Dig. <g=>262(2).]
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Action by F. A. Strong and wife against Minnie Harwell. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    E. A. Stevens and W. H. Baldwin, both of Rockport, for appellants. T. P. Morris, of Floresville, John De Berry Wheeler, of Arans-as Pass, John B. Eddins, of Rockport, and Wm. H. Russell, of San Antonio, for appellee.
   FLY, C. J.

This is a suit instituted by appellants against appellee to rescind a certain contract by which appellee and her husband had conveyed certain land and other property to appellants and to cancel certain promissory notes executed by appellants to appellee. After hearing the evidence, the court instructed a verdict for appellee, and the sole issue on this appeal is the action of the court in instructing a verdict.

The record fails to show directly that a verdict was instructed, the requested charge to so instruct not being signed by the trial judge or marked as given, and there is nothing in the judgment indicating that the peremptory charge was given. The only evidence that the peremptory instruction was given is the indorsement of the judge on certain objections to the instruction, as follows:

“The foregoing objections to the peremptory charge given by the court to the jury in the above numbered and styled cause hoard and considered by the court.”

By a liberal construction the conclusion may be reached that a peremptory charge was given, and the case will be considered as though it was given.

The record fails to show that a bill of exceptions was taken to the action of the court in giving the peremptory instruction. The objections made by appellants might serve the purpose of a bill of exceptions, but the record fails to show affirmatively that the court overruled the objections, although this action may be inferred, which were aimed at the peremptory instruction asked by ap-pellee, and, if the court did overrule the objections1, no exception was taken by appellants to that action. There must be exceptions made at the time to the giving or refusal of charges or no complaint against such charges can be entertained in an appellate court. Article 2061, Vernon’s Sayles’ Stats.; Insurance Ass’n v. Rhoderick, 164 S. W. 1067; Railway v. Battle, 169 S. W. 1048; Railway v. Feldman, 170 S. W. 133; Connor v. Bank, 172 S. W. 175; Railway v. Dickey, 173 S. W. 967; Moore v. Decker, 176 S. W. 817; Holcomb v. Blankenship, 180 S. W. 918. Even if a bill of exceptions should not be required in connection with a peremptory instruction, there should be something in the record to show that objections to the charge given by the court were not only overruled but exception taken thereto. The record in this c-ase fails to show any such exception. A refusal to consider assignments not based on exceptions to the charge may seem technical, but the statute so provides, and the courts1 must enforce the requirement.

The, judgment will be affirmed.
      ©sjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    KELLEY v. STATE.
    (No. 4020.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Cbiminal Law @=>772(6) — Instructions— Duty.
    In pleas of guilty, as well as pleas of not guilty, the issues made by the testimony should be submitted to the jury, and- if the evidence raises an issue favorable to the defendant, which would extenuate, mitigate, or excuse the crime, it should be given in the charge to the jury; but it is not error to give such charge without evidence raising such issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1817; Dee. Dig. @=772(6).]
    2. Homicide <g=»30LO(2) — Assault with Intent to Kill — Deadly Weapon.
    Evidence that accused, in a drug store holdup, fired two shots from a pistol at close range at the assaulted party, held not to require submitting the issue of aggravated assault; the issue being, assault with a deadly weapon with intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 658; Dec. Dig. @=>310(2).]
    3. Homicide @=>310(3) — Assault with Intent to Kill — Instructions — Breach of Peace.
    Under evidence that accused, in a drug store holdup, fired several pistol shots, held not error to refuse instruction that if accused was guilty of rudely displaying a pistol, and thus disturbing the peace, he could not be guilty of assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 669; Dec. Dig. @=>310(3).]
    4. Indictment and Information @=>132(2)— Election Between Acts.
    Where an election is authorized, it is the duty of the state, or the court for the state, to make it, and refusal of election, when required by accused, in a proper case, is cause for reversal.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 433-437; Dec. Dig. @=>132(2).]
    5; Indictment and Information @=>132(2)— Election Between Acts.
    An election cannot be required by accused in a special charge or exceptions to testimony.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 433-437; Dec. Dig. @=>132(2).]
    6. Indictment and Information @=132(2)— Assault with Intent to Kill.
    Under an indictment for and. proof of an. assault with firearms with murderous intent, in a drug store holdup, the state cannot be required to elect as between assault to murder and disturbing the peace.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 433-437; Dec. Dig. @=>132(2).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Frank Kelley was convicted of assault with intent to murder, and appeals.
    Affirmed.
    Newton P. Morrison, El. J. Gibson, and W. F. Bane, all of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Under a plea of guilty appellant was convicted of assault with intent to murder and given 15 years in the penitentiary.

The judgment shows compliance with the statute in regard to pleas of guilty in felony cases. As required by the statute, evidence was introduced as to the immediate facts attending the assault. The indictment charges the assault to have been made upon Stachowiak. The alleged assaulted party and McFarland testified for the state; the appellant introduced no evidence. The testimony discloses that appellant and Weidner opened a door and entered the drug store of McFarland, where the alleged assaulted party was also present. McFarland and the alleged assaulted party were standing at the rear end of the front room of the store, near a fireplace. When appellant and Weidner entered the room, they had their pistols drawn, and said to the parties in the store, “Put ’em up!” McFarland was sitting down. He jumped up and started to a door, which seems to have led into an adjoining back room. The assaulted party raised both hands. Appellant, in moving towards them, had his left hand extended as if going to the cash register. Weidner and appellant each fired two shots. McFarland says one of the shots passed within a few inches of his head, and struck and broke bottles, and smashed a mirror. The others entered other portions of the house. The assaulted party testifies that two of those' shots were fired at him. He dodged below the counter, or some other obstruction, and went out the same door through which McFarland passed. Appellant and his companion backed out the front door of the store with their pistols drawn. One shot, it is indicated, was fired about the time they got to the door. This record does not show whether either of the occupants of the store was struck by any of the shots.

On this state of case the court instructed the jury to find appellant guilty of assault with intent to murder under his plea. Two questions are presented sufficiently to require attention: First, that the court was in error in not submitting the issue of aggravated assault; second, that the court should have submitted disturbance of the peace on account of the shooting and rudely displaying a pistol.

It is the rule in pleas of guilty, as well as in pleas of not guilty, that the issues made by the testimony should be submitted to the jury, and if the evidence raises an issue favorable to the defendant, which would extenuate, mitigate, or excuse the crime even, it should be given in charge to the jury. The authorities seem to be practically unanimous on this question; but it is equally as well settled that, unless there is such issue raised by the testimony, it would not be error to fail to so charge. In other words, the charge is limited to and governed by the facts adduced on the trial. We are of the opinion that the evidence here did not require the court to charge on aggravated assault. The parties fired two shots each at McFarland and the alleged assaulted party, at close range. There was no question of the fact that four shots were fired, and the assaulted party testified positively that two of those shots were fired at him. This would constitute an assault to murder. A pistol thus used is a deadly weapon. This question has been settled by a line of decisions in Texas, and so far as we are aware has not been questioned. For collation of cases see Branch’s Crim. Law, § 546. In Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679, the matter was discussed by Judge Hurt, as it has been in other cases prior to and subsequent to that opinion. There is nothing in the testimony to suggest adequate cause, or any issue that might require the court to charge on aggravated assault. If there had been, the judgment would be reversible.

On the other question, which is presented by exceptions to the court’s charge, and refusal to give special instructions to the effect that if appellant was guilty of rudely displaying a pistol, and thus disturbing the peace, he could not be guilty of assault to murder, was properly refused. That there was a good deal of rudeness evidenced by the manner of displaying the pistol would hardly be questioned. That it was calculated to disturb the two men assailed would hardly be debatable. They seemed to have been very much disturbed, and eliminated themselves from the room where the shooting occurred with somewhat undignified rapidity. In fact, they did not seem to stand on the order of their departure. It would hardly be questioned, under these facts, that their peace of mind was disturbed; but this would not require a charge on disturbing the peace. If the facts show that appellant rudely displayed the pistol, or fired it, as was shown in this case, for the purpose of killing, the fact that he disturbed the peace of the assaulted fugitives would not bar a prosecution for assault to murder. Any assault of this character is fully calculated to disturb the peace of the parties who are being assaulted.

But even if there could have been an election, required, under the circumstances, appellant would not be authorized to make that election, either under the doctrine of carving, or under the doctrine of election. The rule is well settled that where an election is authorized, it is the duty of the state, or the court for the state, to make that election. The accused may require this election to be made, and if, in a proper case, it is refused, it would be cause for reversal. But this cannot be done by the defendant in a special charge or exceptions to testimony. See Bradshaw v. State, 32 Tex. Cr. R. 381, 23 S. W. 892; Blackwell v. State, 51 Tex. Cr. R. 25, 100 S. W. 774. But in no event could the state have been required to elect as between assault to murder and disturbing the peace under the facts or averments of the indictment. Connected with the facts showing assault to murder, there is evidence which shows that appellant and Weidner entered the store for the purpose of robbery. Their demand of the parties to hold up their hands, and the movement towards the cash register, and the firing of the shots by two strangers entering the drug store under the circumstances, would indicate that this shooting was without extenuation, so far as it applied to any inferior offense, or any phase of the law that might be beneficial to defendant in so far as any degree of the offense might be involved.

We are of opinion that enough has been said to show none of the supposed errors urged by appellant were raised by the facts, and none of them present any merit that would justify this court in reversing this judgment.

Finding no reversible error in the reeord, the judgment is therefore affirmed.
      <@=For other oases see same topic ana KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    DAWSON v. STATE.
    (No. 4046.)
    (Court of Criminal Appeals of Texas.
    April 19, 1916.)
    1. Banks and Banking <®=o21 — Swindling— Pit oof and Variance.
    Under a complaint and information for swindling drawn under Vernon’s Ann. Pen. Code 1916, art. 1422, subd. 4, alleging that defendant, on presenting to the prosecuting witness a cheek drawn by another party to defendant and indorsed by him, falsely represented that the check was valid, and would be paid when presented, and that the drawer had sufficient funds to secure its payment, and thereby induced the prosecuting witness to accept it for goods purchased and to give the change in cash, proof that on inquiry defendant said the check was all right, and that defendant indorsed it in the witness’ presence, that the local bank never presented it to the drawee bank to give it an opportunity to pay it, that the defendant did not say it would be paid on presentation, or that the drawer had sufficient money to meet payment, was a variance.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 25; Dec. Dig.. <⅜=>21.]
    2. Banks and Banking <§=21 — Defenses — Statute.
    Under such statute defendant, who after his indorsement placed money in the drawee bank in time to meet the check upon its presentation, could not be convicted.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 25; Dec. Dig. <8=»21.]
    3. Criminal Law i®=^>815(5) — Instructions— Evidence.
    A charge that, if the defendant’s wife offered to pay the prosecuting witness after defendant had been arrested, it would in no way affect the value of the check on the day it was cashed by the prosecuting witness, was erroneous, as eliminating the theory of defendant’s honesty in the transaction appearing from his deposit in the drawee bank of funds sufficient to meet the check on presentation, especially in view of the fact that the wife’s testimony, on which the charge was predicated, was not permitted to go to the jury.
    [Ed. Note. — For other cases, see Criminal Da'w, Cent. Dig. § 1986; Dee. Dig. <®=>815(5).]
    4. Banks and Banking <®=o21 — Owenses — Indorsement or Check.
    Under Vernon’s Ann. Pen. Code 1910, art. 1422, subd. 4, providing that the obtaining of any money with intent to defraud by the giving of any check upon any bank with which such person has not then, or when in the ordinary course of the business the check would be presorted, sufficient funds to meet it, an indorser of a check on a bank, to be criminally responsible, must be shown to have been in some way criminally connected with the proposition to defraud.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 25; Dec. Dig. <@=5>21.1
    Appeal from Pecos County Court; W. C. Jackson, Special Judge.
    P. N. Dawson was convicted of swindling, and he appeals.
    Reversed and remanded.
    Higgins & Hamilton, of Snyder, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of swindling, his punishment being assessed at a fine of $50 and one day in the county jail.

The complaint and information are attacked because of the variance between the allegations in one as against those contained in the other. If it should be thought necessary to try this case again, we suggest that such pleadings be filed as are in consonance with each other as to the averments. There are quite a number of bills of exception reserved to the court’s charge, refusal to give special instructions, and to the admission and rejection of testimony. To write in reference to all these questions would require a rather voluminous opinion. The case, however, will be disposed of without going into all those matters, from a general view of the law and the facts.

The complaint and information were intended to be drawn to meet the requirements of article 1422, Vernon’s Penal Code, subd. 4, which reads as follows:

“The obtaining by any person of any money or other thing of value with intent to defraud by the giving or drawing of any check, draft or order upon any bank, person, firm or corporation, with which or with Whom such person giving or drawing said check, draft or order has not at the time of the giving or drawing of such check, draft or order, or at the time when in the ordinary course of business such check, draft or order would be presented to the drawee for payment, sufficient funds to pay same, and no good reason to believe that such check, draft or order will be paid.”

Without going into detail, the substance of the testimony may be thus stated: Dee Fowler and others were engaged in gambling. It seems appellant was not in the game, but his brother was. Fowler lost and borrowed money during the gaine amounting to $28.50^ from defendant, for which Fowler gave him” a check on a bank at Sweetwater, Tex. The game occurred at Ft Stockton, in Pecos county, 250 miles or more from Sweetwater. Directly after this check was given appellant he retired for the night. The next morning, desiring to make some purchases at a hardware store for his auto, he called on Dee Fowler to pay the check or get the money for him. Fowler promised to do so, but did not. Appellant went to the hardware store for the purpose of buying outer casings and an inner tube for his auto. These purchases amounted to $15.25. Appellant had no money, having loaned all of it but 40 cents to Fowler while Fowler was playing cards. He tendered the check that Fowler gave him for $28.50, and after some discussion between the owner of the hardware store and appellant Holbrook, the owner of the store, took the check after appellant had indorsed it, and for the remainder gave him $13.25 in money, which covered the entire cheek for $28.50. Holbrook testifies that appellant told him while they were speaking of the draft that it was good. Appellant says he told him that it was good; that he had paid the money on it. The complaint and information allege, in substance, that appellant informed Hoibrook, before presenting said check to said Holbrook, he sent a telegram to the First National Bank of Sweetwater, upon which said check was drawn, inquiring of funds at said bank to secure its payment, and that said bank wired an answer that it would not pay the check of Dee Fowler, and that Dee Fowler had no funds there on deposit. It is further alleged in the information that appellant falsely represented to Holbrook the check was valid, legal, and a valuable obligation, that same would be paid when presented for payment, and that the maker thereof, Dee Fowler,had sufficient funds in the bank upon which same was drawn to secure its payment, and did then and there, by means of said false and fraudulent representations, induce the said Holbrook, etc. Mr. Holbrook testified:

That appellant came in his store and bought some casings and a tube; that he did not remember exactly as his son waited on him; that the bill amounted to $15.25. Dawson handed him this check. “My son called to me and said, ‘Papa, what about it?’ I said, ‘Who is the cheek on?’ and he said, ‘Dee Fowler.’ I did not know Fowler’s ability, and do not know how he stands financially. I turned to Mr. Dawson and asked him if the check was all right and. he said, ‘Yes, sir; it is all right; it is good.’ I had just had trouble about a forged check, and it all happened the same day.”

Further testifying, Holbrook says:

“When Dawson handed me the check he did not say anything about it being all right; ‘that he had paid the money on it.’ Dawson signed the check on the back in my presence. I have never sent the check to the First National Bank of Sweetwa-ter, nor did I cause the bank to send it. I asked the First National Bank here to send it, but they did not do so. I turned it over to the authorities here, and they have had it ever since. So far as I know, the check has never been presented to the First National Bank of Sweetwater or the First National Sweetwater Bank for payment on the signature of Lee Fowler, or on the in-dorsement of P. N. Dawson. The bank has not had a chance to pay it if presented, so far as I know. I .do not think Mr. Dawson said anything to me to the effect that the check would be paid when presented for payment. Mr. Dawson did not say anything about Lee Fowler having sufficient money in the bank on which the check was drawn to make payment.”

This constitutes variance between aver-ments in information and the facts. So it will be seen this allegation in the information was disproved by the state’s witness Hol-brook, to whom all Ore representations were made, if made by appellant. This is one of the discrepancies that was shown in the trial of this case. Appellant testified that he told Mr. Holbrook the check was all right; he had paid the money on it; and the evidence seems to be uncontroverted by those who knew about the transaction that the check was given to appellant by Fowler in payment of the $28.50 appellant had loaned him. The defendant, testifying with reference to this cheek, stated that the check, if presented at Sweetwater bank, would be paid. The money was placed there by appellant soon after this transaction. In fact, funds were placed there in time for this check to have been taken up had it gone there for payment. This seems not to have been controverted.

Now, to restate the general case: Fowler gave appellant a check for $28.50 for the money appellant had loaned him. Appellant bought goods from Holbrook and gave the check in payment, receiving $13.25 in money above what th'e goods cost, at the time indorsing the cheek. Fowler therefore was the maker and appellant the indorser of that check. Appellant testifies that money had been placed in the bank to meet this check had it been sent there for collection, and in ample time to have been ready to meet its payment upon its arrival at the bank. The statute provides that any one who draws a check or draft or order, with intent to defraud, without having money in the bank on whom the check or order is drawn or given, would be guilty of swindling. But this would not be true if at the time when he gives the cheek, draft, or order, in th'e ordinary course of business, such check or order would be paid, provided he had sufficient funds to pay it, and no good reason to believe that such check, draft, or order would not be paid. In other words, if the maker of a draft, check, or order has no sufficient funds to meet the obligation, he would be guilty unless he believed he had the funds or had good reason to believe that the funds would be on hand to meet the check. Lee Fowler testified that he had no funds in the bank at the time, but in the ordinary course of business with that bank he believed it would be paid, basing this largely upon th'e statement that he had in the possession of that bank collaterals, among other things, a note. It will be noticed the statute refers to the maker or drawer, and not to the indorser; but the statute is broad enough, doubtless, to cover the indorser if the indorser is a party to the fraud by connivance or agreement or’conspiracy, but there is no pretense, as we understand this record, that the defendant was a party to any fraud on the part of Fowler, if it was fraudulent on Fowler’s part, to swindle anybody by drawing a check on a bank in which he had no funds, and it occurs to us under this record that, if anybody was attempted to be swindled, or in fact swindled, by giving the order, it was the defendant; he is the man who paid the money and got the check. It would hardly be supposed that the defendant would go into a conspiracy with Lee Fowler to swindle himself out of $28.50 by taking a check on a bank that had no funds in it. As the indorser of the check, appellant became responsible for its payment in case he was called upon. Realizing that fact, he placed money in the bank at Sweetwater to meet it upon its presentation, and he testifies that the money was placed there in ample time to have met the amount of the check had it been sent there. The check has not yet been sent to the bank for collection. Under this testimony appellant should not have been convicted. These matters were presented in different ways, and are properly before this court for revision.- Appellant’s- contentions along this line should have been sustained. There were quite a number of special instructions presented to the court submitting these matters, which were, except one, refused.

The court instructed the jury, among other things, as follows:

“You are charged that, if the wife of defendant offered to pay the witness T. F. Holbrook, after the defendant had been arrested in this cause, that same would in no way effect the worthlessness or value of the check for $28.50 on the 2d day of February, 1916, as said term has been hereinbefore defined.”

This charge should not have been given, under the facts of this case. Appellant was an indorser; knew nothing of the condition of Lee Fowler’s standing at the Sweetwater bank. He took this check in payment of the $28.50 appellant let him have and indorsed it, thereby becoming responsible for its payment. If at the time that, in the ordinary .course of ■business,' such check, draft, or order would be presented to the drawee for payment, sufficient funds to pay same were in th'e bank, it would not be swindling. If the drawer had good reason to believe that such check, draft, or order would be paid, he was entitled to a charge instructing the jury to acquit him, and appellant being the indorser and- responsible, . and not shown to have been in a conspiracy to defraud any one, this charge presented a phase of the law which was materially erroneous and eliminated the theory of appellant’s honesty in the transaction. This is especially true in view of the fact that another bill of exceptions shows that the testimony of the wife', upon which this charge was predicated, was not permitted to go to the jury, to which defendant reserved exception. Appellant had a right to pay it; was legally hound to pay it. He indorsed the obligation, and, if it had been presented at the bank in the ordinary course of business, and money was on deposit there to meet it, defendant certainly could not have been guilty of swindling. He was only responsible as an indorser. He had not given the check. So from any viewpoint we take in this case this conviction ought not to have been permitted.

It is not intended here to say that an indorser might not be responsible criminally under this statute, but in order to do so it must be shown he was in some way criminally connected with the proposition to defraud and acted from that standpoint. It occurs to us that the testimony here excludes the idea that appellant was swindling anybody, and does manifest the proposition that appellant was the party that Lee Fowler was swindling. It is inconceivable to the mind of the writer how appellant, under these circumstances, would let Fowler have $2S.50 of his own money out of his pocket, and then accept a draft that he (appellant) knew was drawn on a bank in which Fowler had no funds. It stands as a fact uncontroverted, proved by all the testimony, that appellant let Fowler have the money; it was his money. In payment he took what the state contends was a worthless check on a bank in which Fowler had no money, and then was barred the right of paying a debt which he was legally bound to pay as indorser. This conviction ought not to be permitted to stand from any viewpoint.

The judgment is reversed and remanded on the facts.

The judgment is reversed, and the cause remanded.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gs^For other cases see same topic anci KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    MAJOR v. STATE.
    (No. 4058.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.)
    Cbiminal Law ©=5730(16) — Trial — Argument of Counsel.
    Whore argument by the county attorney was in reply to that of accused’s attorney, the refusal of a requested charge to disregard such argument was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <⅜=>730'(16).]
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    B. F. Major was convicted of manslaughter and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter, and his punishment assessed at three years in the penitentiary.

There are but two questions raised. One is appellant claims the evidence is insufficient to sustain the verdict. We have carefully read the testimony and the record, and in our opinion the evidence was amply sufficient, not only to sustain the verdict of manslaughter, but to have sustained a verdict of murder. We see no necessity of reciting the testimony for the purpose of this case or as a precedent for any other.

The other question is to the refusal of the court to give his special charge to disregard a certain argument of the county attorney. The court refused to give the charge, expressly stating that the remarks of the county attorney were in reply to appellant's attorney. As explained above, in the refusal of the charge itself and of appellant’s bill on the subject, no error is presented.

The judgment is affirmed.


text:
    HERNANDEZ v. STATE.
    (No. 4054.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.)
    1. Cbiminal Law ©=all22(4) — Appeal — Statement of Fact.
    Without the evidence on a prosecution for incest the refusal of defendant’s requested instruction that the woman was an accomplice and would need corroboration could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2942; Dec. Dig. ©=>1122(4).]
    2. Criminal Law ©=>1092(11) — Appeai>-Ex-ceptions — Approval.
    A bill of exceptions to the refusal of a special charge, and a bill containing the argument of the district attorney., neither of which was approved by the trial judge, will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2837, 2841; Dec. Dig. <©=> 1092(11).]
    Appeal from District Court, Karnes County; F. G. Chambliss, Judge.
    Gregoria Hernandez was convicted of incest, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

.Appellant was convicted of incest, his punishment being assessed at five years’ confinement in the penitentiary.

The record is not accompanied by a statement of the facts. There are four bills of exception in the transcript. The first is to the refusal of the court to give a requested instruction that the girl or the woman was an accomplice and would need corroboration. Without the evidence this question cannot be reviewed.

The second contains a special charge» which was refused by the court, submitting, in a general way, the same proposition, but somewhat amplified. This bill seems not to have been approved by the judge. The bill containing the argument of the district attorney is not verified by the judge. The same may be said of another bill of exceptions. None of these bills state the reasons why these charges áiould have been given, or any objections urged to the court for his refusal to-give them.

In the attitude of the record we believe the judgment does not require a reversal, and it will therefore be affirmed.
      ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WESTERGREEN v. STATE.
    (No. 4056.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.)
    Criminal Law <§=>1097(6) — Appeal—Statement op Facts — Necessity.
    Where the only ground for motion for new trial was that the evidence did not sustain the conviction, that matter cannot be reviewed on appeal, where there was no statement of facts presenting the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2947; Dec. Dig. <§=1097(6).]
    Appeal from Harris County Court at Law; Clark C. Wren, Judge.
    Mrs. E. F. Westergreen was convicted of having in her possession with intent to sell and with offering and exposing for sale meat which was in a filthy, decomposed, and putrid state, and she appeals.
    Affirmed.
    C. C. McDonald, Asst. A tty. Gen., for the State.
   DAVIDSON, J.

The information and complaint charge appellant with having in her possession with intent to sell and with offering and exposing for sale meat which was an article of food consisting in whole and in part of filthy, decomposed, and putrid animal substance. The record is without a statement of facts or charges. The only ground of the motion for new trial is that the judgment is contrary to the law and the evidence in this: That there was no testimony that the meat in question was offered or kept for the purpose of sale, and therefore the evidence did not sustain the conviction. We are unable to pass on this question, for the reasons stated, that the evidence is not before the court.

The judgment will be affirmed.


author: HALL, J.

text:
    BAKER et al. v. DRAKE.
    (No. 975.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 26, 1916.)
    Appeal asd Error <@=1066 — Trial <§==>233(1) —Instructions—Conformity to Issues — Prejudice.
    In an action on a secured note, where the answer alleged that defendant signed the note as surety, that plaintiff had possession and control of mortgage, and in violation of their agreement failed to have it recorded, whereby the security and protection afforded the defendant was lost, an instruction on the pleadings that the answer alleged that the defendant signed the note as surety, and at the time of the execution of the mortgage it was agreed that the plaintiff’ in collection of the note would first exhaust the mortgaged property before the defendant should become liable, was a misstatement of the issues and prejudicial error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@=>1066: Trial, Cent. Dig. § 527; Dee. Dig. <⅜=>233(1).]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    Action by J. L. Drake against Dr. J. F. Baker, in which W. B. Olds became a party defendant. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    J. H. Lawson, of Sherman, for appellants. Brame & Brame, of Sherman, for appellee.
   HALL, J.

Appellee instituted this suit in the county court of Grayson county, against appellant Baker, seeking to recover the sum of $300, with 10 per cent interest and 10 per cent, attorney’s fees. Appellant filed an answer, praying that W. B. Olds be made a party defendant. After being duly cited Olds filed an answer. The original petition described the note as having been made for the sum of $330, with interest and attorney’s fees, but by subsequent pleading prayed for only $300, the actual principal of the note, being the sum loaned, and 10 per cent, attorney’s fees.

Appellant Baker answered, and admitted the execution of the note, but alleged that he had signed it as a surety only, and that at the time of signing the note appellee took a mortgage upon the property of his principals of sufficient value to satisfy the indebtedness ; that appellee failed to record the mortgage, and that later the principals upon the note executed a second mortgage to a third party which was recorded, giving it priority, and that the property described in both mortgages was sold under the second mortgage, and as a result of the carelessness and negligence of the said Drake the security was lost, and that defendant should therefore be released.

The appellant Olds, who was the only one of the principals upon the note cited, the remaining principals oeing nonresidents, admitted the execution of the note, and alleged that $30 of its face value represented interest thereon for 90 days.

Appellant first assigned as error that the court, in stating the pleadings to the jury, erroneously set out issues not made by the pleadings, and upon which no evidence was introduced. In giving the substance of appellant’s defenses the court instructed the jury that he alleged he signed the note as a surety, and at the time of the execution of the mortgage lien by Olds it was understood and agreed between appellant and plaintiff that in the event plaintiff was forced to institute suit for the collection of the note he was to exhaust the mortgaged property before defendant Baker should become liable. The appellant duly excepted to this misstatement of the issues, and the matter is presented here in proper form.

Reference to the pleadings shows that the court erroneously set out appellant’s defense. The complaint in the answer was that plaintiff had possession and control of the mortgage and failed and refused to have the same properly recorded; therefore the protection afforded appellant was lost; that his failure to record the mortgage was in violation of the agreement between them and of his legal duty to appellants. The error having been properly called to the attention of the trial court, the charge should have been corrected, and the failure to do so, we think, is reversible error. Smith v. Guerre, 175 S. W. 1003; G. C. & S. F. Ry. Co. v. Walters, 49 Tex. Civ. App. 71, 107 S. W. 369; Milmo v. Adams, 79 Tex. 526, 15 S. W. 690;

The second assignment of error complains of the refusal of ttye trial court to admit certain evidence. The bills of exception are not in accordance with the requirements, and this assignment will not be considered.

By the third assignment it is contended that the court erred in instructing the jury that, if they should believe from the evidence that at the time Baker signed the note it was understood and agreed between the parties that' plaintiff should collect the amount of the note out of the property covered by the mortgage, or if it was agreed on the part of plaintiff to foreclose the lien on the property and apply the same as far as its value would go toward the payment of the note and look to Baker for the remainder, they should find in favor of Baker and against the plaintiff, and in the following paragraph submitted the reverse of the proposition, because no such issue was made by either the pleadings or .the evidence. This assignment must also be sustained. The error in the charge was properly excepted to, and it is clear from the pleadings that appellant did not claim any agreement on the part of plaintiff to foreclose the mortgage, but, on the contrary, insisted that the mortgage could not be foreclosed for the reason that the security was lost because of appellee’s want of diligence in recording it.

The fourth assignment is without merit, and is overrated.

Because of the errors set out, the judgment is reversed, and the cause remanded.
      <g^oFor other cases see Paine topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes