author: LEVY, J.

text:
    ALDREDGE v. ALDREDGE et al.
    (No. 1989.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 6, 1918.)
    Husband and Wife <®=»274(1) — Community Property.
    Where husband paid consideration for deed in his name only, and subsequently died, devis>-ing all property in equal shares to wife, stepson, and four children, the property having been community property, a son, who purchased the rights of all the children, would be legally regarded as having acquired title by purchase from the grantor in the deed to a one-half undivided interest, and was entitled to sixteen twenty-fourths, the widow to seven twenty-fourths, and the stepson to one twenty-fourth of the land.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Action by Susan Aldredge against Tom Aldredge and others, in which Douglass Jones joined as plaintiff. Judgment for plaintiff Aldredge in part, and defendant Aldredge appeals.
    Cause remanded.
    The appellee Susan Aldredge brought the action in trepass to try title to 100 acres of land. Afterwards Douglass Jones joined in the suit as a party plaintiff, claiming under a will a one-twelfth undivided interest in the land. Bufus Cummings and Peter White, as executors of the estate of T. A. Aldredge, deceased, were made parties to the suit, but disclaimed any interest in the land. The appellant, Tom Aldredge, who was the defendant, answered by plea of not guilty, and specially that he was the owner of a sixteen twenty-fourths undivided interest in the land, and that plaintiff Susan Aldredge owned seven twenty-fourths and Douglass Jones one twenty-fourth undivided interest in the land, and asked for a decree of partition. The ease was tried before the court without a jury, and judgment was entered, establishing the interest of Susan Aldredge in the land as seven-twelfths thereof, the interest of Douglass Jones as one-twelfth, and the interest of appellant as four-twelfths or one-third; and the land was ordered partitioned in the proportions above set out. The court made the findings of fact set out below:
    “(1) I find that on the 30th day of October, 1900, J. B. Florence and M. E. Florence, his wife, by their deed duly acknowledged, conveyed to T. A. Aldredge the land described in plaintiffs petition and in controversy in this suit, situated in Camp county, Texas. The consideration for said deed was $800, recited in the deed to have been paid by T. A. Aldredge as follows: $300 in cash and one $200 cash note, due November 1, 1900, with interest at 10.per cent, from date, and one note of $300, due December 1, 1901, with interest from date at the rate of 10 per cent, per annum.
    “(2) I find that on February 16, 1898, said T. A. Aldredge was married to the plaintiff Susie Aldredge, and that they lived together as husband and wife until the death of T. A. Al-dredge, on or about the 10th day of January, 1915, and were husband and wife at the date of the execution of the deed to T. A. Aldredge by J. B. Florence and wife, as above recited, and at the date of the payment of the purchase-money notes, as recited in said deed.
    “(3) I find that the cash recited in said deed and the notes therein recited were paid by T. A. Aldredge, the grantee in said deed and husband of Susie Aldredge, to Dr. J. B. Florence, who was the owner of the notes at the time they matured, and therefore the land conveyed by said deed was the community property of T. A. Aldredge and his wife, Susie Aldredge, at the date of the death of T. A. Aldredge.
    “(4) I find that T. A. Aldredge, the grantee in said deed, died in Hill county, Texas, on or about the 8th or 10th day of January, 1915, and that he left a will, which was duly probated on the 1st day of March, 1915, in the probate court of Hill county, Texas, and that by the terms of the said will all of the estate of the said T. A. Aldredge, both real and personal, was disposed of as follows, in the third paragraph of said will:
    “ ‘I give, devise and bequeath to my beloved wife Susie Aldredge and to my stepson Douglass Jones, and to my beloved daughters Carrie Crosby and Mary Jordan, and to my sons Henry Al-dredge and Tom Aldredge, Jr„ all my property, real, personal and mixed, of every character whatsoever, which I may be seised and possessed of at the time of my death, in equal portions, share and share alike, in fee simple, absolutely and forever.’
    “(5) I find that Tom Aldredge, the defendant herein, at the date of the filing of this suit, was the owner by legal transfer of all the interest in the property bequeathed by said will of T. A. Aldredge to his daughters, Carrie Crosby and Mary Jordan, and his sons, Henry and Tom Aldredge, Jr., and that at that time the plaintiffs, Susie Aldredge and her son, Douglass Jones, and the defendant Tom Aldredge, were the owners of the land described in plaintiffs petition in the proportion as follows: Susie Al-dredge, an undivided interest of seven-twelfths; Douglass Jones, an undivided interest of one-twelfth ; and Tom Aldredge, an undivided interest of four-twelfths.”
    Boy Patterson, Smith & Bryson, and C. G. Engledow, all of Pittsburg, for appellant. E. A. King, of Pittsburg, for appellees.
   LEVY, J.

(after stating the facts as above).

The question in the case is whether the evidence established a trust in the land in suit in favor of appellant; and appellant challenges the third finding of the court that the consideration for the land was paid by T. A. Aldredge. It is believed that the evidence in the record so conclusively shows a joint purchase of the land by T. A. Aldredge and his son Tom Aldredge as to require that finding of fact; and in virtue of this fact, here adopted, the appellant would be legally regarded as having acquired title by purchase from Dr. Florence to a one-half undivided interest. Sachs v. Goldberg, 159 S. W. 92.

The judgment is here so reformed, therefore, as. to allow and establish the interest of appellant in the land as sixteen twenty-fourths thereof, the interest of Susan Al-dredge as seven twenty-fourths, and the interest of Douglass Jones as one twenty-fourth; costs of appeal to be taxed against appellees. The cause is remanded for partition in accordance with this judgment.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    FERGIN v. VINCENT.
    (No. 5912.)
    (Court of Civil Appeals of Texas. Austin.
    May 15, 1918.)
    Garnishment <®=»196 — Discharge oe Gar-NTSTTEE.
    Where, in thb main case, a judgment was given against garnishee as trustee for defendants’ creditors which was not appealed from but was paid, an appeal will not lie from, the judgment discharging the garnishee, which would reliti-gate matters already finally adjudicated.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Suit by E. G. Fergin against S. B. Price. Plaintiff sued out a writ of garnishment against Chas. Vincent, and the defendant impleaded the garnishee, whereupon plaintiff filed a plea in the main suit against the garnishee. Judgment for plaintiff against the defendant Price and against the defendant Vincent as the trustee for the' creditors of Price, and, from that part of judgment discharging the garnishee, plaintiff appeals.
    Affirmed.
    Geo. W. Barcus, of Waco, for appellant. S. E. Stratton, of Waco, for appellee.
   KEY, C. J.

Appellant, Fergin, brought suit against one S. B. Price, and sued out a writ of garnishment against appellee Vincent. In the main suit the defendant Price im-pleaded Vincent, alleging that he had entered into a contract by which he obligated himself to pay Price’s debt to Fergin; and therefore Price asked for judgment over against Vincent. Vincent filed an answer to Price’s cross-action, and also an answer to the writ of garnishment, in which he denied that he had promised to pay Price’s debt to Fergin; denied that he had bought from Price a stock1 of merchandise, as alleged by Fergin; but alleged that Price had assigned the same to him (Vincent), as trustee, to be sold and proceeds applied pro rata to the payment of Price’s debts. Thereupon the plaintiff, Fer-gin, filed a plea in the main suit, alleging that Vincent had bought Price’s stock of merchandise, and that the sale was in violation of the bulk sale statute, and prayed that, in the event Vincent was not held liable to him as garnishee, he have judgment against him because of the fact that he had unlawfully obtained possession of and placed the stock of goods out of the reach of creditors. At the trial of the main case the court held that Vincent obtained possession of the merchandise, fixtures, and accounts of Price, as trustee, for the benefit of all creditors, and rendered judgment against Vincent in favor of Fergin and Price for the sum of $142, as Fergin’s pro rata share as a creditor of Price in the proceeds of the sale by Vincent of the trust property, the judgment stipulating that when the same was paid it would be credited on the judgment which was then rendered in favor of Fergin against Price for $237. That judgment was not appealed from, and the record shows that Vincent had paid and satisfied the same. In the garnishment suit the court refused to render judgment in favor of the plaintiff, Fergin, and rendered judgment discharging Vincent as garnishee; and Fergin has prosecuted this appeal from that judgment.

A recital of the foregoing facts renders it obvious that the appeal is without merit. In the main case the questions involved -in the ancillary garnishment proceeding were tried, judgment was therein rendered in favor of appellant against appellee, which judgment has been satisfied, and therefore appellant has no right to have the same questions re-litigated, as he is now attempting to do; and the righteous judgment of the trial court in refusing to grant him such right is affirmed.


author: JENKINS, J.

text:
    LITTLEFIELD v. HAM, Constable.
    (No. 5881.)
    (Court of Civil Appeals of Texas. Austin.
    May 15, 1918.)
    Execution <⅞=>171(2) — Restraining Sale.
    Where an execution was issued and a levy made under a final justice court judgment against plaintiff, and after the levy but before sale a writ of garnishment was sued out against him in a suit pending in the county court against his judgment creditor, and plaintiff answered that he was indebted for the amount of the justice court judgment and paid the amount in the registry of the county court, the judgment creditor being insolvent, plaintiff was not entitled to injunction restraining sale, since if he had pleaded such facts in his answer to the writ of garnishment, he would have been entitled to a judgment discharging the writ.
    Appeal from District Court, Bell County;. F. M. Spann, Judge.
    Petition for injunction by W. W. Littlefield against J. A. 1-Iam. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. B. Talley, of Temple, for appellee.
   JENKINS, J.

Appellant filed in the district court of Bell county his petition for injunction, in which he alleged that the A. B. Crouch Grain Company had obtained a final judgment against him in the justice court of precinct No. 1, Bell county, from which no appeal was taken; that execution had been issued on said judgment, and levied by appel-lee, as constable, on property of appellant; that the same had been advertised for sale, and would be sold by said constable if he was not restrained from doing so. As ground for injunction, he alleged that since the levy, as aforesaid, a writ of garnishment had been sued out against Mm in a suit pending against Grouch Grain Company, in the county court, and. that he had answered therein that he was indebted to Crouch Grain Company in the amount of the judgment against him in the justice court, and had paid said amount into the registry of the county court; that Crouch Grain Company was insolvent. The district judge granted a temporary injunction. Appellee filed a motion to dissolve said writ, for the reason that the allegations in appellant’s petition were insufficient to entitle him to an injunction. The court sustained said motion and dissolved the temporary writ theretofore issued. In this there was no error.

If appellant had pleaded the facts as alleged by him in answer to the writ of garnishment, he would have been entitled to judgment discharging him from said writ.

Finding no error of record, the judgment of the trial court is affirmed.

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


author: HODGES, J.

text:
    BROWN et al. v. GREEN.
    (No. 1974.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 6, 1918.)
    1. Justices oe the Peace <®=>44(2) — Jurisdiction — Chattel Mortgages.
    In mortgage foreclosure, where the value of mortgaged property exceeds $200, the justice court has no jurisdiction, even though the debt sued for is for a less amount.
    2. Justices of the Peace <©=>44(2) — Jurisdiction — Ciiattel Mortgages.
    The jurisdiction of a justice of the peace in a mortgage foreclosure must generally bo settled by the pleadings of the plaintiff, who must allege the value of the property, and where this has been done in good faith, and there is no effort to show fraud, jurisdiction upon the ground of amount cannot thereafter be raised by proof of greater value.
    3. Justices of the Peace <©=>208(3) — Certio-rari — Record—Presumption.
    On certiorari to review a judgment of a justice of the peace, where the petition merely states the value of the property involved in a mortgage foreclosure, and not what the plaintiff in his pleading in a justice court alleged it to be, and there is no claim of fraud, it will be presumed that the plaintiff stated a case within the jurisdiction of the justice court.
    Error from Lamar County Court; Tom L. Beauchamp, Judge.
    Petition iri the county court by J. M. Brown and others for certiorari to review a judgment of a justice of the peace in the case of F. P. Green against J. M. Brown and others. From a judgment dismissing the petition, the petitioners bring error.
    Affirmed.
    Mahaffey, Keeney & Dalby, of Texarkana, for plaintiffs in error. W. L. Hutchison, of Paris, for defendant in error.
   HODGES, J.

This is an appeal from a judgment of the county court of Lamar county dismissing a petition for a certiorari to the justice court of precinct No. 1. The rec- ' ord shows that in March, 1907, defendant in error, Green, recovered a personal judgment against plaintiff in error, J. M. Brown, in the justice court for the sum of $196.90 and a foreclosure of the mortgage lien upon several head of stock. Mrs. J. M. Brown áppears to have been a party to that suit. The petition for a certiorari recites the rendition of the judgment, and alleges that the property upon which the mortgage was foreclosed aggregated in value $340, and for that reason the suit was not within the jurisdiction of the justice court. It is also alleged that an order of sale had been issued and is now in the hands of the sheriff of Bowie county, who is threatening to levy upon the stock. It is further alleged that the petitioners reside in Bowie county, and have never agreed in writing to pay the debt sued for in Lamar county or any place outside of the county of their residence; that they have never entered an appearance in that cause, but that the justice of the peace arbitrarily rendered a judgment against them by default; that they have a good defense to the suit in that they did not at the time and do not now owe the debt sued for, or any part of it; and that they were deprived of the opportunity for setting up that defense by reason of the illegal action of the justice of the peace. The writ of certiorari was granted by the county judge, but at a subsequent term of the county court it was dismissed on motion of the defendant in error. While in their petition the plaintiffs in error present two grounds for the cer-tiorari, it is conceded in their brief that the averments are sufficient to sustain only that which assails the jurisdiction of the justice court.

It has been well settled that in suits like the present the value of the mortgaged property determines the jurisdiction of the court, and that, where this exceeds $200, the justice court has no jurisdiction, even though the debt sued for-be for a less amount. But the question of jurisdiction must generally be settled by the pleadings of the plaintiff. It devolves upon ‘him, when seeking the foreclosure of a chattel mortgage in the justice court, to allege the value of the incumbered property and disclose a case of which that court may take cognizance. Where this has been done in good faith, and there is no effort to abate the suit upon the ground of fraud in making the averments as to value, the question of jurisdiction upon that ground "must be regarded as settled, and cannot be thereafter raised in the trial by proof of greater value. Turner & Bro. v. Gable, 195 S. W. 348, recently decided by this court; Hrancky v. Sell, 199 S. W. 315; Reeves v. Faris, 186 S. W. 772.

In this case the petition for the certi-orari merely states the value of the property, and not what the plaintiff in his pleadings in the justice court alleged it to be. We may concede that the property does actually exceed in value the sum of $200, but in the absence of an averment or a showing to the contrary we must presume that the plaintiff in his pleadings stated a case within the jurisdiction of the justice court. Presumably those pleadings were oral, and the record does not contain any notation indicating their substance. Where there is no attack upon the good faith of the plaintiff, we are not justified in assuming that he acted otherwise. AVe conclude that the application for a cer-tiorari does not conclusively present a controversy over which the justice court did not have jurisdiction.

The judgment of.the county court will therefore be affirmed.
      <§us>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASRURY, J.

text:
    FARMERS’ NAT. BANK v. CRUMLEY et al.
    (No. 7990.)
    (Court of Civil Appeals of Texas. Dallas.
    June 8, 1918.
    Rehearing Denied June 29, 1918.)
    Judumunt <&wkey;861 — Revival.
    Under Vernon’s Sayles’ Amn. Oiv. St. 1914, arts. 3430, 3443, 3449, and 3450, providing for the rejection and allowance of claims against an estate, and that a claimant may sue on a rejected claim, and that no execution shall issue on a judgment thus obtained, but a certified copy thereof shall be filed with the county court where the suit is pending would be of the same effect as if the claim had been allowed by the administrator, such judgments are not to be enforced by executions, and can neither become dormant under the provisions of article 3717, nor be revived by scire facias as provided by article 5696.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit by the Farmers’ National Bank against E. S. Crumley and others to revive a judgment. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Wear & Frazier, of Hillsboro, for appellant. R. M. Vaughan and J. D. Abney, both of Hillsboro, for appellees.
   RASRURY, J.

This is an appeal from the judgment of the district court refusing to revive by scire facias a judgment of that court alleged to be dormant because of failure to issue execution therefrom within twelve months after entry. The action of the court is based upon the following uncontroverted facts: On March 9, 1906, Mrs. Efnily AVhit-mire was appointed administratrix of the es"tate of M. H. AVhitmire, deceased, by the. county judge of Hill county sitting in probate, and her bond fixed at $10,000. Thereafter, on May 5, 1906, the county judge approved bond of the administratrix, and on the same day she qualified by taking the oath of office. The application for administration, among other claims against the estate, disclosed a claim in favor of appellant. All property left by the deceased was community.

On March 23, 1907, judgment was rendered in the district court of Hill county against Emily Whitmire, administratrix of the estate of M. H. AVhitmire, then being administered in the county court of Hill county, for $3,969.-90, with interest, costs, etc., in favor of Farmers’ National Bank, the appellant, the judgment reciting that it was based upon a valid and subsisting claim against the estate of M. H. Whitmire, deceased, and directing that it be certified to the county court as provided by what is now article 3450 of both the Revised and Vernon’s Sayles’ Civil Statutes. Execution did not issue from said judgment within 12 months of its rendition. Appellant at the time of the trial of the instant case was the owner of the judgment, which was satisfied neither in whole nor in part.

Appellant contends, in effect, that it appearing without dispute that the judgment was dormant, but not barred, it was entitled to have same revived under articles 3717 and 5696, Vernon’s Sayles’ Civil Statutes. Those statutes provide compositely in substance that when a judgment has become dormant for failure to issue execution within 12 months after rendition action to revive by scire facias or action for debt thereon may be maintained thereon at any tim^ within 10 years after the date of such judgment. We conclude that the articles cited do not apply to the character of judgment sought to be revived in the instant proceeding. We base our conclusion on grounds noted in numerous prior decisions that the Legislature has conferred upon the county court sitting in probate full and complete administration of estates of decedents, free from interference by the decrees or process of other courts, save in a limited degree, such, for instance, as the right to establish in a court having jurisdiction of the subject-matter the validity of a claim which the administrator or executor has refused to approve, and save, of course, where the testator has by will denied the county court the right to administer upon h'is estate. The power so conferred by the numerous acts of the Legislature upon county courts comprehends authority to do every conceivable thing necessary to preserve the estate and to protect the rights of both creditors and those entitled to the residue of the estate. In general that court, acting through an executor nominated by the deceased or through an administrator appointed by it, may make the allowances allowed by law to the widow or minor children, set apart the homestead or other exempt property to the widow and children, classify and enforce payment of claims, hire, rent, and sell the property of the estate, enforce specific performance of contracts, and partition and distribute the estate among those entitled to receive it, etc. In relation to the particular matter in issue in this proceeding it is provided by statute, among other matters, that all persons hold-mg claims against a decedent shall present same within the time prescribed by law, which shall be allowed or rejected by the executor or administrator, and if rejected the owner of the claim may within 90 days sue the executor or administrator in any court haying jurisdiction of the claim to establish same against the estate, and if the judgment establishes the claim, execution shall not is-’ sue, but a certified copy of the judgment shall be filed with the clerk of the county court, etc., and be entered upon the claim docket, classified by the county judge, and be of the same force and effect as if allowed by the executor or administrator and approved by the county judge. Articles 3430, 3443, 3440, 3450, Vernon’s Sayles’ Civil Statutes. It is thus apparent that the only purpose in permitting judgments to be rendered against executors and administrators upon claims asserted against the estate is to establish their validity in the same manner and to the same purpose and extent that an allowance by the administrator and an approval by the court would in the first instance have established the claim, to be followed by classification and payment in the order of administration. Birdwell v. Kauffman, 25 Tex. 189. That being true, such judgments, apparent from the plain provisions of article 3450, supra, are not to be enforced by executions as in ordinary judgments against persons in esse, although that right was early asserted and denied. Bason, Adm’x, v. Hughart, 2 Tex. 476. The remedy for enforcing payment of claims, whether established by judgment after rejection or by allowance and approval, if there be funds or estate which may be subjected to that purpose, is adequate and ample, as will appear from an examination of the statutory provisions in that respect. As a consequence such judgments cannot in the sense of the ordinary judgment ever become dormant. For the purpose for which they were rendered they never become dormant or •barred by limitation, and execution to preserve their efficiency and force is unnecessary. Wygal v. Myers, 76 Tex. 598, 13 S. W. 567. If there be no property or funds which should be applied in payment of the claim as classified, those owning the claim have no further rights under the judgment, since they cannot proceed further against the decedent.

The judgment is affirmed.
      ¡S^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SMITH v. BRYAN.
    (No. 5923.)
    (Court of Civil Appeals of Texas. Austin.
    May 1, 1918.
    Rehearing Denied June 12, 1918.)
    1. Trial <§=>194(1), 240 — Instructions—Refusal ox Instructions.
    Instructions which are argumentative and in violation of the statute prohibiting comment on the weight of the evidence are properly refused.
    2. Trial <§=>229 — Requested Instructions— Repetition.
    Where the pleadings charged that an arbitrator had acted fraudulently, it was not error for the court to instruct, in response to a question by the jury as to whether or not the arbitrator’s decision, would be binding if he was interested or partial, that a decision by the arbitrator would be binding unless he acted fraudulently and in bad faith, although substantially a repetition of what had been stated in the main charge; the instruction following issues presented by the pleadings.
    3. Trial <§~=251(1) — Instructions—Issues.
    Instructions relating to issues not presented by the pleadings are properly refused.
    4. Appeal and Error <§=>1064(1) — Review-Instructions.
    Giving an instruction which has the effect of withdrawing an issue not raised by the testimony is not cause for reversal.
    Appeal from McLennan County Court; Jas. ■P. Alexander, Judge.
    Proceedings between William Smith and Alva Bryan. From a judgment for Bryan, Smith appeals.
    Affirmed.
    R. O. Stotter, of Waco, for appellant. John Maxwell and W. L. Eason, both of Waco, for appellee.
   KEY, C. J.

This is a county court case, and as the questions presented are neither novel nor difficult no elaborate opinion will be written.

The first and second assignments of error complain of alleged omissions in the court’s charge, and do not claim that the charge contained affirmative error. It is not necessary to cite any of the numerous decisions which hold that such assignments do not point out reversible error.

The third and fourth assignments complain of the action of the trial court in refusing to give two special charges requested by appellant. These charges were properly refused. One of them embodied an unsound proposition of law; and the other was argumentative, and would have violated the statute which prohibits a trial judge from commenting upon the weight of testimony in charging a jury.

The fifth assignment complains of the charge given by the court in response to a request made by the jury. One of the issues in the case was that of arbitration, and appellant charged in his pleading that, if the matter in controversy had been submitted to arbitration, the arbitrator had acted fraudulently, but did not charge that he was interested or partial. The question submitted te the court by the jury was whether or not the decision of the arbitrator would be binding upon the parties, if he was interested and partial; and in response to that question the court instructed the jury, as it had previously done, that a decision by the arbitrator would be binding upon the parties unless he acted fraudulently and in bad faith; but, if he acted fraudulently and in bad faith, his decision would not be binding. That charge followed ttie issues as presented by tlie pleading, and while it was substantially a repetition of what had been stated in the main charge, still we do not think the case should be reversed for that reason.

The sixth assignment complains of the action of the court in refusing to give a requested instruction; and we overrule that assignment because the instruction referred to related to an issue not presented by the pleadings.

The seventh and last assignment of error complains of the action of the court in giving a special charge requested by the ap-pellee; the contention being that the effect of the charge was to withdraw from the jury the issue of fraud. If it be conceded that the charge referred to is subject to the construction placed upon it by appellant, we do not think the case should be reversed, because, in our opinion, there was no testimony raising the issue of fraud; and therefore it was not necessary that that issue should have been submitted to the jury.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.
      @=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    OAKES et al. v. FREEMAN.
    (No. 1820.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 9, 1918.
    Rehearing Denied . May 30, 1918.)
    1. Chattel Mortgages <⅞=>138(3) — Priority.
    A chattel mortgage executed and filed before the making of a lease contract is a prior lien over one contained in the lease contract.
    2. Chattel Mortgages <§=>86 — Filing — Reasonable Time.
    Where a chattel mortgage was executed in the afternoon and filed at 9 o’clock the next morning, a finding that it was filed within a reasonable time was justified.
    3. Appeal and Error <@=>181 — Matters Reviewable — Waiving Objections.
    An assignment of error as to a matter to which no complaint was made in the trial court cannot be considered.
    Appeal from District Court, McLennan County; H. M. Rickey, Judge.
    Action between C. H. Oakes and others and J, A. Freeman. Judgment in favor of the latter, and the former appeal.
    Affirmed.
    Scott & Ross, of Waco, for appellants. Sam E. Stratton, of Waco, for appellee.
   LEVY, J.

The appeal is to determine the priority of liens on certain chattels. On September 12, 1913, and in the afternoon thereof, M. Hays executed a chattel mortgage on certain horses and buggies to secure payment of his note of even date for the sum of $1,000 due December 12, 1913, with interest, payable to the order of appellee, J. A. Freeman. It was agreed in the case that the mortgage was left with and filed in the office of the county clerk at 9 o’clock a. m., September 13, 1913, as shown by the clerk’s file mark placed thereon at such date, “and that said ■ original mortgage had remained on file since said September 13, 1913.” The note is unsatisfied. On January 16, 1914, M. Hays leased from the appellant C. H. Oakes his livery stable building until November 1, 1915, for $125 a month payable monthly. M. Hays failed to make payment of the rent for the months of May, June, July, and August, 1915, and this amount of rent is unpaid.

The trial court decreed a priority to the mortgage lien. It is believed that the trial court did not err, for the mortgage lien was acquired prior to the making of the lease contract. Brackenridge v. Millan, 81 Tex. 17, 16 S. W. 555. And the judgment of the trial court involves the finding of fact, having evidence to support such finding, that the mortgage was filed in the county clerk’s office within a reasonable time. Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163.

The> appellee objects to the consideration of the third assignment of error, upon the ground that no complaint was made in the trial Court as to any ruling or action of the court; and it is believed that the objection should be sustained. But, even if we should consider the assignment, no reversible error would appear from the record.

Affirmed.


text:
    HOPKINS v. KING.
    (No. 1986.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 5, 1918.
    Rehearing Denied June 27, 1918.)
    1. Appeal and Error <@=>690(5) — Record-Exclusion op Evidence.
    In action of trespass to try title, where deeds were excluded on objection that the descriptions were insufficient, and bill of exceptions reserved to such ruling did not contain a description of the property, and the record did not otherwise give a description, the court could not say that the trial court erred in excluding the deeds.
    2. Trespass to Try Title <@=>40(5) — Evidence — Deeds—Admissibility.
    In action of trespass to try title to land in the “Isom Lee” survey, sheriff’s deed fully describing land situated in “J. Lee” survey was properly excluded, in the absence of evidence tending to show that the variance in the description was a clerical error.
    3. Appeal and Error <@=>1056(1) — Harmless Error.
    In trespass to try title, where the record contained no evidence of adverse possession, or of payment' of taxes by defendant, exclusion of deeds upon which defendant sought to rest his adverse possession, if error, was harmless.
    4. Execution <@=>258 — Sale—Suppiciency op Consideration — Collateral Attack.
    Mere fact that plaintiff’s title rested on purchase at execution sale for inadequate consideration did not make the sale an absolute nullity, which could be urged in a collateral proceeding in trespass to try title, brought by such purchaser.
    5. Trespass to Try Title <@=>18 — Depenses— Right^ op Third Person.
    In trespass to try title, brought by purchaser at execution sale, where the evidence justified conclusion that defendant, if in actual possession, was a naked trespasser, he was in no position to take advantage of any irregularities in the execution sale upon -which plaintiff’s title rested.
    Appeal, from District Court, Camp County; J. A. Ward, Judge.
    Action by E. A. King against G. C. Hopkins and others. Judgment for plaintiff in part, and defendant Hopkins appeals.
    Affirmed.
    Smith & Bryson and C. G. Engledow, all of Pittsburg, for appellant. O. A. Arnold, of Pittsburg, for appellee.
   HODGES, J.

This suit originated in an action of trespass to try title instituted by the appellee, King, against the appellant, Hopkins, and a number of other parties, for the recovery of several tracts of land. It was finally reduced to a controversy between King and Hopkins as to the title and owner*ship of 50 acres of land situated in Camp county and described as a part of the Isom Lee survey. In a trial before the court without a jury, a judgment was rendered in favor of the appellee for an undivided nine-sixteenths of the land sued for. It was agreed by the parties that M. J. Couch, the surviving widow of J. M. Couch, and her son, J. W. Couch, constituted the common source of title. As evidence of title, the appellee introduced a judgment in his favor against Mrs. Couch for the sum of $120.95 rendered in the justice court of Camp county in 1893; also a deed by the constable of that precinct, which recited the issuance of an execution and levy upon the land in controversy and a sale to the appellee. This deed was dated March 7, 1893. When the deed was offered in evidence, the objection was made that no execution authorizing the sale had been shown. There was ample evidence to warrant a finding by the court that an execution had been issued upon the judgment and placed in the hands of the constable and that the sale was made by virtue of that writ. Parol testimony was offered showing that a search had made among the records of the court for the execution, and it could not be found. Appellant claimed the land by limitation under deeds executed after the constable’s sale to King. He proved that after the death of J. M. Couch his widow, M. J. Couch, qualified as community administratrix of the common estate. He offered in evidence a deed from M. J. Couch as such community administratrix conveying 50 acres of land to J. F. Sor-rells in consideration of a cash payment and the execution of three vendor’s lien notes. This deed- was dated August 9, 1893. He then offered in evidence a judgment rendered thereafter in his favor in a suit instituted by him against Sorrells to foreclose his vendor’s lien upon the land in controversy; and an order of sale issued on that judgment, in which the return of the officer showed a sale to appellant Following this, the appellant offered a deed made by the sheriff of Camp county in pursuance of that sale. The deeds from Mrs.' Couch to Sorrells and the sheriff’s deed were excluded upon the objections that the descriptions of the property contained in them were insufficient to sustain valid conveyances.

The bill of exception reserved to the action of the court in excluding the Sorrells deed does not contain a description of the property, and we are not otherwise in the record informed as to what that description was; hence we are unable to say that the court committed any error in excluding that instrument. The description in the sheriff’s deed is set out at length; and, while it may not have been void upon its face as being insufficient to convey any land, it describes a tract situated in the “J. Lee” survey, and not the “Isom Lee” survey. There was no evidence offered tending to show that the variance in the description was the result of a clerical error. We are of the opinion that the court committed no error in excluding that deed. Those deeds were both offered, not as evidence of a paper title in the.appellant, but as the basis for his defense founded upon five years’ adverse possession. The record contains no evidence of any such adverse possession, or of the payment of taxes by the appellant or any one under whom he claimed. Under that state of the evidence, even if the deeds had been admitted, the defense of limitation would not have been complete; and the error, if any, was harmless.

The contention is also made by the appellant that the appellee’s title depends upon the purchase at an execution sale made upon an inadequate consideration. Conceding that to be true, that fact alone does not make the sale an absolute nulity that may be urged in a collateral proceeding like this. Smith v. Perkins, 81 Tex. 152, 16 S. W. 805, 26 Am. St. Hep. 794. Furthermore, the appellant filed an abstract showing the chain of title upon which he relied as a basis for his claim of ownership and right of possession. The state of the evidence was such as to justify the court in concluding that the appellant, if in actual possession of the land, was a naked trespasser without any rights whatever. He is therefore in no position to take advantage of the irregularities claimed. Pitch v. Boyer, 51 Tex. 345.

The judgment is affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DENTON MILLING CO. v. GREEN et al.
    (No. 1960.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 18, 1918.)
    1. Sales <®=»22(1) — Offer—Conditions.
    A letter offering flour at a certain price, “based on 'to-day’s market, * * * and hope
    to have your acceptance before we have another advance,” was not an unconditional offer, and was only good until there was another advance.
    2. Venue <©=^7 — Contracts —■ Peace oe Performance.
    A letter from a wholesaler in D. county to a retailer in N. county agreeing to book a carload of flour was not an offer to perform any agreement in N. county so as to authorize a suit to be brought in N. county.
    3. Sales t©=»22(5) — Offer—Acceptance.
    An offer to book a car load of flour upon terms requiring shipment to be ordered out within 15 days must be accepted within a reasonable time, and where the prospective buyer expressly dissented to the terms the next day, the seller should not be held to its offer 10 days later.
    Appeal from Navarro County Court; H. E. Traylor, Judge.
    Suit by G. E. Green and another against the Denton Milling Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded, with instructions.
    R. E. Prince, of Corsicana, for appellant. Dexter Hamilton, of Corsicana, for appel-lees.
   HODGES, J.

In April, 1917, the appellees, G. E. and R. J* Green, filed this suit in the county court of Navarro county against the appellant, seeking the recovery of damages resulting from the alleged breach of a written contract. The appellees resided at Kerens, in Navarro county, and were merchants doing business under the firm name of Green & Son. The appellant is a private corporation with its domicile and place of business in Denton county. At the proper time it filed and'presented its plea of privilege, claiming the right’ to be sued in the county of its residence. In a trial before the court this plea was overruled, and a judgment for damages rendered in favor of the appellees.

In this appeal the adverse ruling of the court on the appellant’s plea of privilege is the basis of the assignments of error. Upon the record as presented the correctness of that ruling depends upon whether the appellant entered into a written contract to be partly performed in Navarro county. The appellees rely upon the following correspondence as constituting the contract:

“Kerens, Texas, 3 — 26, 1917.
“Denton Milling Company, Denton, Texas— Dear Sir: Has your man that works this territory booked us a car of flour some time ago"! We will need flour in 2 or 3 weeks. We like Very Best fine, it gives satisfaction.
“Please give prices of all feed stuff, bran, meal chops, and flour. We have prices offered on all, but we like your flour so we will wait to hear from you.
“Tours respectfully, G. P. Green & Son.”
“Denton,, Texas, March 28, 1917. '
“G. E. Green & Son, Kerens, Texas — Gentlemen: Replying to yours of the 26th based on to-day’s market, we will book you a car of flour for 9.50 high patent basis for shipment within 30 days net cash, balance of car in feed and meal at market price date of shipment, you will find the present market to be 9.80 basis, but we are making you the old price and hope to have your acceptance before we have another advance.' Thanking you for the inquiry, we are,
“Yours very truly, Denton Milling Co.”
“Kerens, Texas, 3 — 29, 1917.
“Denton Milling Company — Kind Sirs: We roed, your letter to-day stating that you would book us a car of flour at $9.50 basis for shipment in 30 days, and’ will say in reply that you may book us the car of flour.
“Yours respectfully,
“G. E. Green & SonV
“Denton, Texas, March 31, 1917.
“G. E. Green & Son, Kerens, Texas — Gentlemen: Replying to yours of the 29th, while our" market is 50 cents higher, yet we are booking you 25,000 lbs. of flour at 9.50 high patent basis, terms net cash upon arrival of car with the understanding that you will order it out pri- or the 4/15 with balance of car in feed and at market price date of shipment; this is not allowing the 30 days for shipment, but our present wheat stock will not admit of our booking for that length of time, hence we specify 15 days. Wishing you well, we are,
“Yours very truly, Denton Milling Co.”
“Kerens, Texas, 4 — 2, 1917.
“Denton Milling Company, Denton, Texas— Dear Sirs: We are in receipt of your letter of 3 — 31st. We are surprised to get a letter of that kind asking us to take the flour out before the 30 clays is out. You proposed to let us have and we accepted your offer. Now we could have gotten a car of flour 50 cents cheaper per car the eve before from McCluney Bros, to be shipped from Paris, Texas, but we having our trade started on your flour we decided to take your car of flour 9.50 basis, and as we need the 30 days we think you should comply with your first offer. We may build up a good trade on your Very Best brand. We trust you will reconsider the proposition and still willing allow us the 30 days. Hoping to hear from you soon.
“G. E. Green & Son.”
“Denton, Texas, April 3, 1917.
“G. E. Green & Son, Kerens, Texas — Gentlemen: Replying to yours of the 2d, if you will refer to ours of the 28th, you will see that we offer you based on the market at that time and were not under any obligations to book the car. By the time we had your acceptance the market was still 50 cts. more up. However, the market advance would not have affected our time to you, but while we were waiting to hear from you, we sold enough flour to just about clean up our present stock of wheat, and that is the reason that we changed the date of shipment, as we must ask that the shipment move in time to produce it from our present stock of wheat to avoid considerable loss, and, too, if you will refer to your letter of the 26th, you will state that you wanted the car shipped within 2 or 3 weeks, we have made a sacrifice to meet your demands in perfect good faith Mr. Green, and we are sure when you consider these facts you will see the justice of our claim. “Respectfully, Denton Milling Co.”
(Telegram.)
“Kerens, Texas, 13th April, 1917.
“Denton Milling Company, Denton, Texas. Ship immediately car flour as booked three hundred sacks forty eight verabest eighty sacks twenty four verabest eighty sacks forty eight success eighty sacks twenty four success forty sacks forty eight lillie white one hundred fifty sacks thirty five meal fifty sacks seventeen half meal fifteen sacks corn chops send draft first national bank Kerens.
“G. F. Green & Son. 8 P. M.”
“Denton, Texas, April 14, 1917.
“G. F. Green & Son, Kerens, Texas — Gentlemen: Replying to your wire for order of a car of flour, we did not know that you were expecting a car from us, for you never gave us acceptance for same. We wrote you on the Sd, telling you -the best we could do, and expected to hear from you, but as you did not reply we naturally assumed that you did not want it like we offered it, hence did not protect ourselves. We have read both your letters and copies of ours to you . covering this matter. You did accept the booking for 30 day shipment, but when we wrote you that we could not confirm for that shipment you replied on the 2d that we should confirm as we had offered, but did not say then nor later that you would take it for shipment within 16 days.
“Respectfully, Denton Milling Co.”

Tile question is: Do those letters constitute a contract binding the appellant to deliver a car-load of flour in Navarro county? For convenience in analyzing this correspondence it may be divided into two groups; the first consisting of the first three letters, dated March 26th, 28th, and 29th. In these we have a request for prices, then quotation, and an offer to sell upon specified terms. This was followed by an unconditional acceptance. If the offer made by the appellant to sell was unconditional we have all the essentials of a complete contract. But in the appellant’s letter of March 28th it expressed a hope to have an acceptance before there was another advance. This justified the inference that the offer then made was conditioned upon an acceptance before another advance occurred. Subsequent correspondence indicates that the acceptance came after an advance in prices, and there is nothing showing to the contrary. That being true, those letters are not sufficient to constitute a binding agreement, and we must look elsewhere for the terms and conditions of a contract to support the judgment rendered. But, assuming that the acceptance of Green & Son was in time, the appellant did not offer to perform any part of its agreement in 'Navarro county, and for that reason a contract based upon those letters would not authorize the suit to be brought in that county. Birge v. Lovelady, 145 S. W. 1194; Orthwein v. Wichita M. & E. Co., 32 Tex. Civ. App. 600, 75 S. W. 364.

In examining the second group it appears that in its letter of March 31st the appellant calls attention to the advance in the market, but agrees to book the appellees for 25,000 pounds of flour at a $9.50 basis upon terms requiring shipment to be ordered out within 15 days thereafter. In their letter of April 3d replying to this offer the ap-pellees protested against the new terms, and insisted that they had a special reason for wanting the 30-day limit originally tendered. The appellant answered, explaining the reasons why it imposed the 15-day limit, but making no modification of its last offer. At this stage of the correspondence there was no contractual obligation to be performed by the appellant in Navarro county. Its offer had not been accepted. The appellees had a right to reject the new terms. Having made the offer by mail, the appellant would be bound only in the event it was accepted in a reasonable time. Appellees’ reply written the next day was not an acceptance, but an express dissent from the new terms exacted. Ten days later they telegraphed an acceptance specifying the grades and quantities of flour desired, which aggregated 24,-000 pounds. On the following day the appellant replied, refusing to make the shipment, upon the ground that the acceptance came too late.

'Counsel for the appellees insist that the offer of March 31st was by its terms open for 15 days, and that the telegram was sent within that time. The letter tendered a sale provided the goods were ordered out and paid for by April 15th. A time limit for ordering shipment is entirely different from a limit within which an offer to sell must be accepted. Suppose the appellees had refused to take any of the goods'booked; they could not have been held responsible for any damage the appellant might have sustained as a result, because they had not assented to any such terms. The seller certainly should not be held to its offer after receiving a dissent on the following day.

We are of the opinion that the correspondence relied on fails to establish a contract to be performed in Navarro county so as to give the courts of that county jurisdiction. We are not called upon to decide any other issue.

The judgment of the court below will therefore be( reversed for the reasons stated, and the cause remanded, with instructions 'to transfer it to a court of competent jurisdiction in Denton county.
      ®=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: .'BEVY, J.

text:
    WELLS et al. v. BRUNER.
    (No. 1985.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 6, 1918.)
    Mandamus <®^>101 — Right to Remedy — DISCRETIONARY ACTS OF OFFICERS.
    Where defendants as school trustees contracted to pay plaintiff a salary for teaching school but refused to sign or approve his voucher for the last month, plaintiff could not have mandamus to compel the signing of thd voucher, since the approval thereof was discretionary with the trustees, although, had the claim been reduced to judgment, mandamus might have been awarded.
    Appeal from District Court, Fannin County; R. T. Lipscomb, Judge.
    Mandamus by J. P. Bruner against D. C. Wells and others, as trustees of the New Hope School District. Erom an order overruling demurrer to the petition, defendants appeal.
    Reversed, and (judgment entered dismissing the suit.
    The appellants, the school trustees of the New Hope school district, contracted with the appellee to teach school in' the district for six consecutive months of the school year of 1915-16 at a salary of $70 per school month. The appellee asked for a mandamus to have the trustees sign a warrant for $70 for the last or sixth month’s teaching. The appellants demurred to the petition, and the court overruled the demurrer.
    The petition alleged substantially that the trustees entered into a written contract, approved by the county superintendent, with the plaintiff to teach school in the district for a term of six months at a salary of $70 per month, and that in pursuance of the contract the plaintiff taught said school during the entire term of six months, and that his vouchers were duly signed by all of the trustees and approved and ordered paid by the county superintendent up to the last month of the school, which the trustees refused to sign and continue to refuse to do so without any ground or reason therefor; that there was at the time the contract was made, and at the time of the refusal of the trustees to sign the voucher, ample funds on hand apportioned to the district to pay the salary; that upon the refusal of the defendants to sign the voucher the plaintiff appealed to the county school superintendent, who ruled that the salary was due, and the defendants did not appeal from such decision. The prayer was for mandamus to compel the trustees to sign the voucher.
    Rosser Thomas, of Bonham, for appellants. Cunningham & McMahon, of Bonham, for appellee.
   .'BEVY, J.

(after stating the facts as above).

The petition seeks to compel the signing of a warrant for a school teacher’s salary alleged to have been earned under a contract duly approved and authorized by law to be made, and the appellants urge that the demurrer should have been sustained to the petition for the reason that mandamus does not lie to control the discretion of the trustees in the allowance of the claim or the issuance of a warrant therefor in the premises. It is admitted by appellants that if the claim for salary had been reduced to a judgment, and so alleged, in a court of proper jurisdiction, then clearly the claim would be such a definitely ascertained demand as that the issuance of a warrant by the trustees for the same would be regarded as merely a ministerial act or duty and mandamus would issue to compel the performance of the legal and official duty. Harkness v. Hutcherson et ah, 90 Tex. 383, 38 S. W. 1120. But, as insisted, until the claim has been determined as required by law or by judgment of a court, there exists and is involved the exercise of judgment or discretion in the allowance at all of the claim on the part of the trustees, and consequently mandamus will not be awarded to compel the payment of the claim. It is believed that the contention should be sustained. 26 Cyc. 286; 18 R. C. L. § 38; Id. § 145; Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791; Jones v. Dodd, 192 S. W. 1134. The allegation that the trustees refused to sign the warrant and allow its payment is in effect a denial by them of the claim.

The writer, though, thinks the petition good as against a demurrer. A mandamus may issue to correct an abuse of discretion if the case is otherwise proper. McKillop v. Board of Supervisors, 116 Mich. 614; 74 N. W. 1050; Wood v. Strother, 76 Cal. 545, 18 Pac. 766, 9 Am. St. Rep. 249.

The judgment is reversed, and judgment is here entered dismissing the suit, with costs of the trial court and of this court taxed against appellee.
      ©=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and.Indexes


author: RICE, J.

text:
    FLEMING et al. v. BONINE et al.
    (No. 5927.)
    (Court of Civil Appeals of Texas. Austin.
    May 15, 1918.)
    1. Bail Jurisdiction — Bail Bond.
    In view of Const, art. 5, § 19, providing that justices of the peace shall have such other criminal jurisdiction as is provided by law, and Code Cr. Proc. 1911, art. 107, providing that justices of the peace shall have power to take forfeiture of all bail bonds given for the appearance of any parties at their courts regardless of amount, where defendant did not appear in justice court for his examination for rape in accordance with his bail bond therein for $7,500, a justice court had jurisdiction to enter judgment against defendant and his securities forfeiting the bond, although the grand jury had returned an indictment against defendant for the same offense.
    2. Bail ⅜=93 — Void Judgmeni^-Collateral Attack.
    The omission of the name of the defendant from a judgment forfeiting his bail bond would not render it void so as to be subject to collateral attack.
    3. Judgment <⅜^>521 — Void Judgment — Collateral Attack.
    Injunction to restrain sale under execution issued upon a justice court judgment forfeiting bail bond was a collateral attack on judgment,» not permissible where judgment was not void.
    Appeal from District Court, McLennan County; Geo. N. Denton, Judge.
    Suit by Gertie Bonine and others against S. S. Fleming and another. Judgment for plaintiffs, and defendants.appeal.
    Reversed and remanded.
    Jno. B& McNamara and D. C. Woods, both of Waco, for appellants.
   RICE, J.

According to the brief of counsel, this; suit was instituted by appellees, as heirs of J. M. Saffel, deceased, against S. S. Fleming, as sheriff, and John B. McNamara, county attorney of McLennan county. Its purpose was to restrain the levy of an execution upon land alleged to belong to plaintiffs. The execution was issued upon a judgment in the justice court, precinct No. 1, of said county, in a cause wherein the state of Texas was plaintiff and Hugh Saffel, W. B. Saffel, J. M. Saffel, O. A. Saffel, and L. B. Saffel were defendants. The suit was based upon a forfeited hail bond given on August 12, 1915, by Hugh Saffel as principal and the other named Saffels as sureties, in the sum of $7,500, conditioned for the appearance of Hugh Saffel before said court as an examining court, on the 16th day of August, 1915, there to remain from day to day until the examination against him for the offense stated in the bond, to wit, rape, was completed.

On October 23, 1915, the grand jury of Mc-Lennan county indicted said Hugh Saffel for the offense charged against him in the justice court. His case in the district court upon the indictment was set for November 1, 1915. On that day it was discovered that he had not been rearrested, and had not made bond for his appearance in the district court. Thereupon the case in the justice court was called for trial; it not having been before begun; and upon failure of the defendant to appear in answer to the call, judgment nisi, forfeiting the $7,500 bail bond, was entered. Subsequently scire facias was issued to the sureties, and at the January term, 1916, judgment final by default was rendered against them, but not against Hugh Saffel. The first execution was returned nul-la bona, and thereafter the execution enjoined by this suit was issued. Temporary injunction formerly issued by the district court was perpetuated upon final hearing.

Both of the above contentions as a basis for the writ of injunction were found to be true by the court, and said court concluded, as a matter of law:

(1) That the examining justice lost jurisdiction to proceed with said examining trial of Hugh Saffel upon the complaint filed in his court, upon the return of the indictment against him on October 23, 1915, when said bail bond thereupon became functus officio.

(2) It found that in pursuance of the first finding of law, said justice of the peace and examining magistrate had no authority to render the judgment nisi and the judgment final upon said bail bond, as he had lost jurisdiction of the case through the grand jury’s action.

(3) The court further found that the judgments of the justice court were void, and plaintiffs herein were entitled to a perpetuation of their injunction against the attempted levy of an execution upon said judgment.

(4) The court further found that the judgment in the justice court was void, because of the omission of the name of Hugh Saffel, the principal in the bond, as one of the defendants.

The final judgment of the justice court, which was introduced in evidence, was regular on its face, and shows judgment against Hugh Saffel and the sureties on said bond.

Said conclusions of law and judgment of the court are assailed by appropriate assignments; and the question involved in this appeal is whether or not the justice of the peace had jurisdiction to render the judgment sought to be enjoined, or whether the alleged omission of the name of Hugh Saffel from the judgment rendered the same void. Though a justice court ordinarily has no right to entertain jurisdiction when the amount in controversy is more than $200, it is expressly authorized to forfeit bail bonds, irrespective of the amount in controversy, in felony examining trials. Article 107 of the Code of Criminal Procedure 1911; State Constitution, article 5, § 19; Garner v. Smith, 40 Tex. 505.

The attack upon the judgment in the present case is collateral and not direct; it being an effort to restrain the same by an injunction. See Texas Central R. R. Co. v. Hoffman, 193 S. W. 1140, and authorities there cited. Upon its face, the judgment in the justice court is not void, and from it and the proceedings in the case upon which it is based, the justice court had jurisdiction. This being true, we think the court erred in holding that its judgment was void and subject to collateral attack.

There was some evidence offered on the issue of homestead, but the same was meager and unsatisfactory, and could, in our opinion, be more fully developed on another trial.

The case, therefore, will be reversed on this issue, as well as on the other two.

Reversed and remanded.
      (&=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    TEXAS PORTLAND CEMENT CO. v. LUMPAROFF et al.
    (No. 7965.)
    (Court of Civil Appeals of Texas. Dallas.
    June 15, 1918.)
    1. Appeal and Ebbob ¡§=569(2) — Record— Statement op Facts — Requisites.
    Statement of facts prepared under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2070, by the official stenographer must be approved by the trial judge and will not be considered unless so approved.
    2. Appeal and Ebbob ¡§=627(3) — Aefibmance on Cebtieioate — When Pbopee.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1610, providing for affirmance on certificate when the appellant fails to file a transcript of the record_¡__the only ground upon which there may be an affirmance on certificate is that specified in the statute.
    3. Appeal and Ebbob <§=555 — Aeeibmance on Cebtieioate — When Peopeb.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1610, the appellee is not entitled to affirmance on certificate merely because the statement of facts is stricken from the record.
    4. Appeal and Ebbob ¡§=627(3) — Aeeibmance on Cebtieicatei — When Pbopee.
    Where the appellant, after perfecting his appeal by filing and having approved a bond, neglects to file transcript, the appellee may during the term of court to which the appeal is taken have the case affirmed on certificate, even though the appellant has by writ of error removed the proceeding to the appellate court and filed his transcript within the prescribed time.
    5. Appeal and Ebbob <§=776 — Dismissal by Pabty.
    Where the judgment appealed from was favorable to appellee, the appellant had the inherent right to dismiss the appeal.
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by Naiden P. Lumparoff and others against the Texas Portland Cement Company. Judgment on verdict for plaintiffs, and defendant appeals. The appeal was dismissed, and defendant brought error.
    Dismissed.
    Coke & Coke, of Dallas, for appellant. Mc-Cutcheon & Church, of Dallas, for appellees.
   RASBURY, J.

This is an appeal from a judgment entered upon a special jury verdict awarding appellees damages for depreciation in value of their property and physical discomforts in its use and occupancy due to the operation by appellant of a cement factory adjacent to appellees’ property. Prior to the submission of the case several preliminary matters were presented to and acted upon by this court, culminating in a dismissal. of the appeal by appellant. For the purpose of placing bur action in those matters on record the dismissal of the appeal was set aside and the case regularly submitted. Affecting our action in the respect stated the record discloses the following facts transpiring during the present term of court: A transcript and statement of facts on appeal were filed in this court within 90 days after appeal was perfected. While the statement of facts contained an agreement by counsel that it was a true and correct statement of all facts proven upon trial, it was not approved by the trial judge, and was for that reason upon motion of appellee stricken from the record. Accompanying the motion to strike out the statement of facts was one to affirm on certificate on the ground that proper statement of facts had not been filed and fundamental error was not disclosed. This motion was overruled. Subsequently appellant filed motion to dismiss its appeal, which was sustained. Thereafter appellee filed motion to set aside the order of dismissal and to affirm on certificate on the ground that the appeal was taken for delay or in the alternative to set the case down for submission. The dismissal was set aside, the motion to affirm on certificate was overruled, and the cause submitted for the purpose already stated. Pending the proceedings recited appellant brought the case to this court by writ of error.

First. We struck out the statement of facts because it was not approved by the trial judge. It was prepared under the provisions of article 2070, Vernon’s Sayles’ Civil Statutes by the official stenographer. AVhen so prepared it must be approved by the trial judge, and until so approved it is not obviously a legal .statement of facts. The requirement is sufficient reason for holding the statement insufficient.

Second. We overruled both motions of appellee to affirm on certificate on the ground that that character of affirmance or remedy is available only when the appellant fails to file a transcript of the record within 99 days after the appeal is perfected. The precise provision of article 1610, Vernon’s Sayles’ Civil Statutes, conferring the remedy is that affirmance on certificate may be had in case appellant “shall fail to file a transcript of the record” in compliance with the other provisions of the law, that is, within 99 days after appeal is perfected. We have shown that the transcript was filed within that period. In fact, the right to an affirmance is not claimed on the ground that the transcript was not filed in the time fixed by law, but, in truth, on the ground that the striking out of the statement of facts entitled appellees to that remedy. We think not. In cases where the appellant, after perfecting his appeal by filing and having approved a bond, neglects to file transcript, it is the settled rule that the appellee may during the term of court to which the appeal is taken have the case affirmed on certificate, even though the appellant has by writ of error removed the proceeding to the appellate court and filed his transcript within the prescribed time. For, while it is true that there is no prohibition against a litigant availing himself of both appeal and writ of error within tlie period of limitation provided by law (Eppstein & Co. v. Holmes & Crain, 64 Tex. 560), it is also true that the right to the successive appeals is subject to tlie right of ap-pellee to have the case affirmed on certificate (Scottish Union & Nat. Ins. Co. v. Clancy, 91 Tex. 467, 44 S. W. 482). Yet it is further apparent from the statute that the right to affirm on certificate depends alone upon the failure to file transcript, and cannot be grounded upon other defects in the record, even defects warranting a dismissal of the appeal. Failure to file transcript alone gives rise to the remedy. It occurs to us that the present matter is analogous to those cases holding that appellee is not entitled to an affirmance on certificate when the transcript was filed within time, but the appeal dismissed for failure to file briefs in time, or for other conceivable defects. Gulf, C. & S. F. Ry. Co. v. Hall, 76 S. W. 590; Santle-ben v. Richter, 126 S. W. 926. The holdings in the cases cited are grounded on the bare fact that transcript had been filed and that affirmance on certificate was authorized only in cases where the transcript had not been filed. The holding conforms to article 1610, supra, and no other intention can be gathered from its provisions. It cannot be said that the article expressly or by implication confers any greater right. In fact, it must affirmatively appear from the record that the transcript was not filed before we can affirm on certificate. The record here affirmatively discloses that the transcript was filed within the time required by law. As a consequence the right to that remedy has never accrued.

Third. We permitted appellant to dismiss its appeal on the ground that it had the inherent right to do so and because we think no complaint on the part of appellees could be fairly urged to such a course, since the judgment from which the appeal was taken was in their favor.

For the reasons stated, the order setting aside the dismissal will be set aside, and appeal will be dismissed in' accordance with appellant’s motion in that respect. In such connection we are not to be understood as anticipating or passing pro or con upon any of the issues of procedure which may arise in any manner in the appeal which we have said has been taken by the writ of error.

The appeal is dismissed.

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


author: WILLSON, C. J.

text:
    NATIONAL FIRE INS. CO. v. OLIVER.
    (No. 1894.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 13, 1918.
    Rehearing Denied June 27, 1918.)
    1. Insurance @=>229(4) — Fire Insurance — Cancellation — Agency.
    Where an owner of property had instructed an insurance agent “to take his insurance and keep it up for him,” and the agent, after writing the policy which the company directed to be canceled, ar-ranged with another insurance company for insurance to take effect after the cancellation, the agent was the agent of the owner for the purpose of acquiescing in the cancellation, notwithstanding that a five-day notice thereof was not given as required by the policy. 2. Insurance @==>112 — Acts of Agent — Ratification.
    Where an agent of an insurance company who had been instructed to keep up the insurance on certain property canceled the policy under instructions from the company, and delivered to insured a policy in another company, and the property was destroyed by fire, that ratification of such new policy by the insurance company did not occur until after the fire did not prevent the ratification from being binding on the insurer.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Action by Richard Oliver against the National Fire Insurance Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Mrs. May Croley was the agent at Gilmer of the Northern Assurance Company and also of appellant. It appeared from the testimony of appellee as a witness that prior to December 23, 1915, he requested Mrs. 'Croley “to take his insurance and keep it up for him,” and that she agreed to do so. On said December 23, 1915, acting for said Northern Assurance Company, Mrs. Croley issued a policy insuring, in the sum of $2,500 and for a period of one year from that date, a stock of general merchandise and the building same was in, in Graceton, belonging to appellee, against loss by fire. The policy so issued was delivered to appellee. April 13, 1916, said assurance company repeated a request it had before made to Mrs. Croley to cancel all “outside risks” she had written for it, meaning by “outside risks” policies she had written on property situated elsewhere than in Gilmer. April 14, 19J6, Mrs. Croley took up with one Nisbet, an agent of appellant authorized to act for it, the matter of appellant’s taking over the risks carried by the assurance company which she had been directed to cancel. Nisbet agreed for appellant that it would take over several of the risks, among them the one on appel-lee’s property in Graceton, and, as evidence of the agreement so far as appellee’s property was concerned, delivered, to Mrs. Croley a statement in writing dated said April 14, 1916, as follows:
    “I have authorized $2,500 written in National Insurance Co. through Gilmer, Texas, agency on bldg, and stock gen. mdse, located s/s Main St., Graceton, Tex., belonging to Richard Oliver. Rate 5.22. Recommended net line $1,000. Lower on account of removal of bldg.
    “[Signed] F. A. Nisbet, Special Agent.”
    Intending same to take the place and to be in lieu of the policy issued as stated by said assurance company to appellee, which she had been directed to cancel, Mrs. Croley, on April 17,1916, as she had been authorized by Nisbet acting for appellant to do, and as she had declared to him on said April 14th she would do, issued a policy in appellant company for a like sum as the one issued by said assurance company, insuring said stock of merchandise- and building against loss by fire for a period of one year from that date. The property so insured was destroyed by fire on the night of April 18, 1916. April 19, 1916, Mrs. Croley for the first time advised appellee that the assurance company had directed her to cancel the policy she had issued to him December 23, 1915, and that on April 17, 1916, she had rewritten the risk in the appellant company. Appellee thereupon delivered the assurance company’s policy to Mrs. Croley, and she delivered, the policy she had written in the appellant company to him. The - assurance company and appellant, respectively, having denied liability on the policy issued by it, appellee commenced a suit against each of them. At his instance the suits were consolidated and tried as one suit, the trial resulting in a judgment for the amount of the policy in appellee’s favor against appellant, and that appellee take nothing by his suit against the assurance company. Appellant alone appealed.
    Locke & Locke, of Dallas, for appellant. Simpson, Lasseter & Gentry, of Tyler, for ap-pellee.
   WILLSON, C. J.

(after stating the facts as above).

In support of the complaint made here that the trial court erred when he refused- to instruct the jury to find in appellant’s favor, it is insisted that it conclusively appeared from the testimony:

(1) That the policy issued by appellant was not to be effective until the-one issued by the Northern Assurance Company was canceled,. We agree it so appeared.

(2) That the policy issued by said assurance company had not been canceled when the fire occurred. The policy contained a provision that it might “be canceled at any time at the request of the insured, or by the company by giving five days’ notice of the cancellation.” It was not pretended that appellee had requested the assurance company to qancel the policy, or that that company had effected a cancellation thereof by giving the notice specified. The contention on the part of appellee was, it seems, that Mrs. Croley acted for him when she arranged with appellant to take over the risk carried by the assurance company on his property, and that he, therefore, under the circumstances of the case, was in the attitude of consenting to the cancellation of the policy demanded by the assurance company. We think the contention was riot without support in the testimony. By arranging with Mrs. Croley “to take his insurance and keep it up for him,” as he testified he did, appellee authorized her to do for him everything reasonably necessary to be done to keep up the insurance. The assurance company having determined to exercise the right it had to cancel the policy it had issued on the property, it was necessary, in order to “keep up the insurance,” to arrange with some other company to carry- the -risk. • Incidental to this was the cancellation of the policy issued by the assurance company, for appellant’s assumption of the risk was. to become effective only when the assurance company ceased to carry it. We are of opinion, therefore, that it sufficiently appeared that Mrs. Croley had power to bind appellee by consenting to a cancellation of the policy, and that, acting for him, she consented when she arranged with appellant to take over the risk. We think the testimony warranted a finding that the liability of the assurance company ceased, and the liability of appellant began, when Nisbet agreed with Mrs. -Cro-ley that appellant would take over the risk' on the property. 22 Cyc. 1447, and authorities there cited; 14 R. C. L. 849,1010; 2 Joyce on Ins., p. 1482; Johnson v. Ins. Co., 66 Ohio St. 6, 63 N. E. 610; Assurance Co. v. Mc-Alpin, 23 Ind. App. 220, 55 N. E. 119, 77 Am. St. Rep. 423; Ins. Co. v. State, 76 Ark. 180, 88 S. W. 917, 6 Ann. Cas. 440; Dibble v. Assur. Co., 70 Midi. 1, 37 N. W. 704, 14 Am. St. Rep. 470; Stevenson v. Ins. Co., 17 Cal. App. 280, 119 Pac. 529. In Ferrar v. Western Assur. Co., 30 Cal. App. 489, 159 Pac. 609, 611, where it appeared that one Coleman had been-requested by Mrs. Plier the owmer of the property, “to take care of her insurance and to see that she was covered to the aihount of $1,-000,” the Supreme Court of California said:

“We are satisfied that the direction by Mrs. Plier to Coleman * ⅜ ⅜ made him * * * her general agent to keep her insured, to the extent of ⅜1,000 in respect to the property involved. Being her general agent for this purpose, we think he was authorized, as an incident of his employment, to accept and act upon a notice of cancellation.”

Having determined that there w7as testimony warranting a finding that Mrs. Cro-ley was authorized to act for appellee in consenting to a cancellation of the policy issued by the assurance company, and therefore that the trial court did not err when he refused to instruct the jury as complained of in the assignment, we need not determine, and do not, whether that court, had there been no such testimony, should have refused to so instruct the jury, on the ground that there was testimony which would have supported a finding that appellee supplied by a ratification, of her act any lack of authority on the part of Mrs. Croley to bind him by consenting to the cancellation of the policy issued by the assurance company. The contention on the part of appellant,is that the ratification was ineffective for any purpose because it occurred after the property had been destroyed by fire. All we care to say about that is that, if the holding of the Court of Civil Appeals in Ins. Co. v. Dalton, 175 S. W. 459, relied upon By appellant as supporting its contention, should be construed as denying to the insured in a case with facts like this one a right to assert that such a ratification is binding on the insurer, we are inclined to think it is wrong and against the weight of the authorities. 2 Joyce on Ins., § 642, and authorities there cited; Mar-qusee v. Ins. Co., 198 Fed. 475, 119 C. C. A. 251, 42 L. R. A. (N. S.) 1025; Ferrar v. Western Assur. Co., 30 Cal. App. 489, 159 Pac. 609, 611; Todd v. Ins., Co., 2 Ga. App. 789, 59 S. E. 94; Boutwell v. Ins. Co., 193 N. X. 323, 85 N. E. 1087.

The judgment is afíirmed.
      <g=s>For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


text:
    KUEHN v. NEUGEBAUER.
    (No. 5920.)
    (Court of Civil Appeals of Texas. Austin.
    April 25, 1918.)
    1. Damages <S=5l01, 191 — Personal Injury-Items oe Expense — Reasonableness.
    While the plaintiff may recover for necessary items of expense consequent upon personal injury from defendants wrongful conduct, it must be shown that the amount claimed for such expenses or the amount recovered is a reasonable amount, and defendant is not necessarily liable for the amount plaintiff has agreed to pay, and the fact that plaintiff has paid an item of expense does not show that it was reasonable.
    2. Damages ®^163(1) — Personal Injury — Reasonableness — Burden oe Prooe.
    In such case, the burden rests upon the plaintiff to furnish testimony which would justify the jury in finding that the amounts allowed by them are fair and reasonable.
    3. Trial <S=203(3) — Instructions — Theory oe Case.
    The refusal of reguested instructions properly framed, and which, if given, would have submitted defendant’s theory more fully and clearly than did the charge of the court, was error.
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Suit by Joseph Neugebauer against Gus Kuehn. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Will G. Barber, of San .Marcos, for appellant. J. P. Pfeiffer, ’of San Antonio, and T. J. Saunders, of San, Marcos, for appellee.
   KEY, C. J.

Appellee brought this suit and recovered a verdict and judgment against appellant for $300 damages, alleged to have been caused by the misconduct and negligence of an agent of appellant, who was driving an automobile upon a public road. The proof shows that appellee and a companion were traveling the public road from Austin to San Antonio; that appellant’s automobile, wliich was driven by his minor son, was traveling the same road in the opposite direction, when a collision occurred between the automobile and appellee’s motorcycle, which resulted in certain personal injuries to appellee, and some damage to his motorcycle. Appellant has brought the case to this court, and seeks reversal upon several assignments of error.

After testifying, concerning his injuries, appellee gave a detailed statement of the expenses he had incurred as doctor’s bills, hospital charges, charges for a trained nurse, and for medicines. He also submitted some other testimony tending to show the correctness of the items for which the charges were made, but no witness testified that any of them were reasonable. Appellee also testified that his motorcycle “was all smashed up,” and that he had obtained an estimate, showing that it would cost about $100 to repair it. He did not state who furnished the estimate referred to, nor did any witness testify as to how much would be a reasonable amount for repairing the motorcycle.

This being the condition of the testimony, counsel for appellant made timely objections to those paragraphs of th'e court’s charge which submitted to the jury the right to recover for the items of damages referred to, because there was no proof as to the reasonableness .of such items; and the same point was-made and reason assigned in appellant’s motion asking the trial court to set aside the verdict. That court ruled against appellant on the points referred to, and those rulings are assigned as error in this court; and Wheeler v. Railway, 91 Tex. 360, 43 S. W. 876, Railway v. Williams, 136 S. W. 267, Railway v. English, 178 S. W. 667, and Rishworth v. Moss, 191 S. W. 851, are cited in support of appellant’s contention.

The authorities referred to, and Railway v. Ison, 37 Tex. Giv. App. 219, 83 S. W. 408, cited in appellee’s brief, sustain the contention of appellant to the effect that before recovery can be had for expenses incurred by the injured party, as a result of the defendant’s wrongful conduct, it must be shown that the amount claimed for such expenses, or at any rate the amount recovered, is a reasonable amount. In other words, the Texas authorities hold that, while a plaintiff may recover for necessary items of expense, the defendant is not necessarily liable for the amount the plaintiff has agreed to pay, and is liable only for what would be a fair and reasonable amount;, and the cases above cited hold that the burden of proof rests upon the plaintiff to furnish testimony which will justify the jury in finding that the amounts allowed by them are fair and reasonable; and in one- case our Supreme Court held that proof of the fact that the plaintiff had paid the item of expense was no evidence tending to show that it was fair and reasonable.

Counsel for appellee have cited some authorities in other jurisdictions, which seem to be in conflict with the rule established by our Supreme Court; and, if the question was not already settled, we might feel disposed to follow those authorities. But our own Supreme Court has definitely settled the law upon the point, as stated above, and we, therefore, sustain appellant’s assignments of error which relate to that question.

We also sustain the assignments winch complain of the action of the trial court in refusing, to give appellant’s requested instructions numbered 1 and 2. The requested instructions were properly framed, and, if given, would have submitted appellant’s theory of the case more fully and clearly than did the charge given by the court; and, therefore, the court erred in refusing to give them. Railway v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538; Railway v. Casseday, 92 Tex. 525, 50 S. W. 125; Railway v. Mangham, 95 Tex. 413, 67 S. W. 765; Railway v. McGlam-ory, 89 Tex. 635, 35 S. W. 1058; Railway v. Rogers, 91 Tex. 58, 40 S. W. 956.

The assignments which present other questions are overruled.

For the errors pointed out, the judgment of the court below is reversed, and the cause remanded for further proceedings.

Reversed and remanded.
      <®=»For other coses see same topic ana KEY-NUMBERin all Key-Numbered Digests and Indexes


text:
    HENDERSON v. CREDIT CLEARING HOUSE et al.
    (No. 1954.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 16, 1918.
    Rehearing Denied May 2, 1918.)
    1. Libel and Slandeb ⅛=»85, 86(2) — Libel-Pleading.
    In an action against credit company for libel for placing plaintiff’s name in a list of debtors, it was necessary to set out the words in the list which were regarded as libelous, with such innuendoes as were necessary to show they were so.
    2. Libel and Slandeb <S=>101(3) — Libel — Publication.
    In action against credit company for libel in placing plaintiff’s name in a list of debtors, it was necessary to prove the publication of words in the list regarded as libelous.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by Elam Henderson against the Credit Clearing House and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    This was a suit by appellant against ap-pellees (the Credit Clearing House and the Magnolia Petroleum CompansO for damages for libel, in which judgment was rendered for appellees.
    According to allegations in his petition, the libelous matter of which appellant complained consisted of a charge that he “was indebted to the Magnolia Petroleum Company the sum of $3; that he had not paid the same; that it was past due.” The particular language used in making the charge was not set out in the petition, nor was it proven at the trial; appellant contenting himself .with testimony showing that the Credit Clearing House included the Magnolia Petroleum Company’s account against him in a list of accounts held by it for collection December 29, 1914. It was alleged that publication of the1 libel was made by the Credit Clearing House by sending copies of the list to its members. It was further alleged that the Magnolia Petroleum Company conspired and acted with the clearing house in making the publication; and it was on that ground that appellant sought a recovery against the petroleum company.
    It appears from the record that in May, 1914, appellant purchased $3 worth of gasoline of the agent of the petroleum company in Athens. In August or September, 1914, the petroleum company wrote appellant requesting him to remit the amount of the purchase. Appellant replied that he had paid same to the petroleum company’s said agent. The agent insisting that payment had not been made to him, the petroleum company on December 23, 1914, placed its account against appellant with the clearing house for collection. The clearing house at once sent appellant one of its form letters, in which a hope was expressed that he would promptly honor the draft it had made on him for the amount of the account, and in which he was advised that the clearing house was aD organization composed of manufacturers and wholesalers; that twice each year, and oftener if requested, it compiled reports “showing the exact condition of the merchant’s account on the ledger of each interested member” ; that, while it issued nothing but bare ledger facts, such facts of necessity showed in what manner the merchant was meeting his obligations; that the failure of a debtor to honor a draft for a past-due claim, unless properly explained, was apt to be considered evidence of financial weakness ; and that it was a well-known fact that no good business house would knowingly extend credit to concerns “of doubtful record and uncertain promptness.” After expressing a desire, while acting for the petroleum company in the matter, to be just to appellant, and requesting him to so advise it if the claim was not correct, the clearing house concluded the letter with a warning that the claim would be passed to an attorney for collection if appellant should fail to honor the draft or give a satisfactory reason for not doing so. Regarding the letter as offensive, appellant did not reply 'to it. The account against appellant was included in a report made by the clearing house December 29, 1914, of accounts held by it for collection. The amount of the account was paid to the petroleum company by its agent in Athens January 6, 1915, and it immediately notified the clearing house of the fact. The latter mentioned the account as paid in a report made by it January 12, 1915. The payment to the petroleum company by its Athens agent on January 6, 1915, was explained by testimony of appellant. He said:
    “That the petroleum company’s agent “always insisted,” quoting, “the,bill had not been paid, and that it was just and owing. I went over his books and accounts with him, and his hooks did not show the hill in question to have been paid. He afterwards said he would remit his own money to the Magnolia Petroleum Company rather than have a squabble with me over $3 or to lose my friendship over that amount, and after that no further demand for payment was made by the Magnolia Petroleum Company, though prior to that time the Magnolia Petroleum Company sent me bills for this item from its Dallas office every month, until a letter came from the Credit Clearing House.”
    The judgment was based on a verdict in accordance with a peremptory instruction to the jury to find in favor of appellees.
    Richardson•& Watkins, of Athens, for appellant. AV. H. Francis and Geo. C. Greer, both of Dallas, W. B. Paddock, of Ft. Worth, and Faulk & Faulk, of Athens, for appellees.
   WILLSON, C. J.

(after stating the facts as above).

We think the. trial court did not err when he instructed the jury to find for appellees.

The list charged to have contained the libelous matter was not adduced in evidence, nor were the contents thereof proven in any way. All that was shown with reference to it was that it was one of accounts placed in the hands of the Credit Clearing House for collection, and that among those accounts was one against appellant for $3 in favor of the Magnolia Petroleum Company. It devolved upon appellant to set out in his petition the words in the list which he regarded as libelous, with such innuendoes as were necessary to show they were so, and at the trial to prove the publication of the words. The Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 883; Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 870; 17 R. C. L. 390; 13 Ene. P. & P. 45; 25 Cyc. 447; Green on Ev. p. 387; Book Co. v. Pub. Co., 71 Minn. 363, 73 N. W. 1089; Kirby v. Mar-tindale, 19 S. D. 394, 103 N. W. 648, 9 Ann. Cas. 493; Webster v. Holmes, 62 N. J. Law, 55, 40 Atl. 778; Battersby v. Collier, 34 App. Div. 347, 54 N. Y. Supp. 363. He did neither. In the Gill Case, cited above, the court said:

“A libel suit is based on language or its equivalent. The complaint should put the court in possession of the libelous matter published, the language used, with such innuendoes as are necessary to explain what was meant by the language, so as to enable the court to determine whether the words are actionable. In this case the complaint attempts to give the meaning of the words or libel only, without stating what the libel was. If the libel consisted in reporting plaintiff’s standing as a merchant ‘in blank,’ the complaint should have informed the court and the defendant of the fact, with such explanations as to what was meant by the report as were necessary to show that the report was injurious and defamatory. This is not a case where the pleader must from the nature of the publication resort to a verbal description of the slanderous matter, as it would be when movements, postures, or pictures are used. Plaintiff could have stated his cause of action as it was in clear terms. Pie has not done so. It is not sufficient in this kind of a suit to state the substance of the language used or its meaning. We believe the general demurrer ought to have been sustained.”

The judgment is affirmed.
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