author: FLY, C. J.

text:
    DAVID v. TIMON, County Judge, et al.
    (No. 5671.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1916.)
    1. Drains <S=»2 — Drainage District — Right to Vote.
    As Const, art. 3, § 52, merely secures to the people of a drainage district the right to vote on whether to issue bonds, Vernon’s Say les’ Ann. Civ. St. 1914, arts. 2477-2625r, preserib-ing the method of issuing drainage bonds, are not invalid; vote being provided for.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 17; Dec. Dig. <§=>2.]
    2. Drains <§=>20 — Drainage Districts— Statutes.
    While Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2597a, prohibits the institution of any suit which seeks to enjoin or contest the validity of the formation of any drainage district, or bonds issued, except in the name of the state by the Attorney General, a citizen taxpayer may attack the constitutionality of drainage laws or enjoin the issuance of drainage bonds where the officers issuing them have not complied with the law.
    [Ed. Note. — For other eases, see Drains, Dec. Dig. <§=>20J
    S. Constitutional Law <§=>143, 190 — Retro-activIü Legislation — 'Validity.
    Where the law under which issuance of bonds by a drainage district was voted provided that the commissioners’ court should not sell the bonds for less than their face par value and accrued interest, such law became part of the contract, and Acts 34th Leg. c. 33, providing that where drainage districts already organized have authorized the issuance of bonds, the county judge may sell bonds at not less than 90 per cent, of their face value and accrued interest, is retroactive, other provisions of the law showing that it was not to apply to'bonds to be issued in the future, and so is invalid under Const, art. 1, § 16, prohibiting bills of attainder, ex post facto law, or retroactive law, or any other law impairing the obligation of a contract.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 84CL-348, 531-533; Dec. Dig. <§=>143, 190.]
    4. Drains <§=>18 — Drainage Bonds —Issuance.
    Unless the county judge has given the bond required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2601, providing that before the county judge shall be authorized to sell any drainage bonds he shall execute a bond to the commissioners of such district for an amount not less than the amount of the bonds issued, conditioned upon the faithful discharge of his duties, he may be enjoined from disposing of drainage bonds.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. <§=>1&]
    5. Drainage <§=>18 — Drainage Bonds — Issuance.
    "Where drainage bonds to run 40 years were authorized by vote of taxpayers, the commissioners’ court cannot issue bonds running only 25 years.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 11,13; Dec. Dig. <§=>18.]
    6. Drains <§=>66 — Bonds—Taxes.
    As Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2603, makes it the duty of the commissioners’ court, when any drainage bonds have been voted, to levy and cause to be collected a tax on all property within the district to pay the interest on such bonds and provide a sinking fund, such tax should be levied as soon as the bonds have been voted, and where they were voted in the middle of the year, the assessment cannot be attacked on the ground that it was levied for only part of the year, notwithstanding assessments for taxes are made on all property held by the owner on January 1st of each year.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 177; Dec. Dig. <§=366.]
    7. Appeal and Error <§=>916 — Presumptions —Pleadings not Denied.
    Where the averments of a petition praying a temporary injunction were not denied, they must, for the purposes of an appeal from a judgment denying the writ, be treated as true.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. <§=> 916.]
    Appeal from District Court, Nueces County; W. B. I-Iopkins, Judge.
    Action by J. G. David against Walter F. Timón, County Judge, and others. From a judgment denying a temporary injunction, plaintiff appeals.
    Reversed, and temporary writ ordered issued until the case, should he disposed of on the merits.
    H. M. Holden and E. B. Ward, both of Corpus Christi, for appellant. R. B. Russell, of Corpus Christi, for appellees.
   FLY, C. J.

This is a suit instituted by appellant to restrain the sale of certain drainage district bonds. It was alleged, in substance, that appellant was a resident taxpayer of drainage district No. 2, in Nueces county; that Timón was the county judge and T. M. Lawrence, C. C. Wright, J. C. Baldwin, and John T. Bartlett were the county commissioners of Nueces county; that under the authority of chapter 118, Acts 32d Leg., as amended, the voters of the district, on June 17, 1915, had voted drainage bonds in the sum of $154,429.25, bearing 5 per cent, interest; that district commissioners were appointed on August 11, 1915, and the commissioners’ court ordered the bonds to be issued, the first to be payable August 1, 1916, and one on that date for each year for 25 years; that the bonds as voted by the people were to mature in 40 years; that the bonds were placed in the hands of W. F. Timón, county judge, to sell and to receive the proceeds thereof; that a tax of 50 cents on the $100 was levied to pay interest and create a sinking fund; that no order was made requiring the county judge to execute the bond required by the statute, and no such bond has been executed. The validity of the tax and the constitutionality of chapter 118 was attacked. It was further alleged that the act of the Thirty-Fourth Legislature (Acts 34th Leg. c. 33), amending chapter 118, because it provides that drainage bonds may be sold at not less than 90 per cent, of their face value, is in violation of the federal Constitution and the state Constitution. Many reasons are advanced in the petition why the law as to drainage districts is unconstitutional and why the proceedings of the commissioners’ court are invalid. It was also alleged that the county judge had failed to give the bond required by law, and was about to dispose of the bonds for less than their par value; that an attempt was being made to collect taxes assessed for 1915, although the bonds were not issued until the latter part of that year, and a temporary writ of injunction was prayed for to prevent the sale of the bonds and collection of tile taxes. The court denied the writ on the ground, as recited in the decree, that:

“It appearing that said suit is an attack upon the validity of Nueces County Drainage District No. 2, and that the same is a public, or quasi public, corporation and that said district as created cannot be attacked except in the name of the state of Texas by the Attorney General upon his own motion, or upon the motion of any party affected thereby upon good cause shown, and that the plaintiff herein, J. G. David, is without authority and capacity to bring this suit.”

From that order this appeal has been perfected by appellant.

The attacks upon the constitutionality of the drainage act which is found in title 47, arts. 2477 to 2625r, inclusive, Vernon’s Sayles’ 'Ann. Civ. St. 19Í4, are not meritorious, and the matters set up in the attacks have been decided adversely to appellant in the case of Holt v. State, 176 S. W. 743. The Legislature has not denied the people of any drainage district any right guaranteed to them. Only the right to vote on whether or not any certain drainage district shall issue bonds is given the people by article 3, § 52, of the state Constitution. The Legislature is in terms authorized to provide the ways and means to carry the provision into execution. As said by Chief Justice Pleasants, of the First District, in the case cited:

•‘The power to determine whether the bonds should be issued and the tax levied and collected is vested absolutely in the voters of the district, but when this power has been exercised, the actual issuance of the bonds, and the levy, assessment, and collection of the taxes, shall be done in such manner as the Legislature may authorize, and this provision of the Constitution cannot be construed as prohibiting the Legislature from placing upon the commissioners’ court the duty to issue the bonds and levy, assess, and collect the taxes authorized by the voters of the district.”

The Constitution itself prescribes that the voters shall be property taxpayers who are qualified electors of the district or territory. That the drainage act does not violate any provision of the federal or state Constitutions is held in a well-considered opinion by Judge Rees» of the Court of Civil Appeals of the First District, in the case of Wharton Drainage Dist. v. Higbee, 149 S. W. 381, and a writ of error was denied by the Supreme Court. None of the constitutional objections to the act can be maintained, and this is well settled by the decisions cited.

Appellant alleged that he was a property taxpayer residing in the district, and he was fully authorized to institute the suit upon his own motion and without being joined by the Attorney General of the state. Article 2597a, Vernon’s Sayles’ Ann. Civ. St. 1914, prohibits the institution of any suit which seeks to contest or enjoin the validity of the formation of any drainage district or bonds issued, except in the name of the state, by the Attorney General, but no citizen is deprived of the right to attack the constitutionality of the law authorizing the formation of such district, nor does the law deprive any citizen taxpayer of the right to enjoin the acts of any officer not done under and by virtue of the authority of law. To say that the county judge has not given a bond as required by law, and therefore has no right to sell bonds, or to say that he is endeavoring to sell the bonds below par; or that the electors voted 40-year bonds, and that the commissioners’’’court has ordered 25-year bonds, is not an attack upon the validity of the formation of the drainage district, or upon bonds issued under the provisions of the law. It is an effort to restrain acts in contravention of the law, and under the allegations of the petition appellant had the right to demand pj-otection against the unlawful acts of the county judge and commissioners’ court. As said by the Supreme Court in Parks v. West, 102 Tex. 11, 111 S. W. 726:

“Certainly a property holder has the right to say to the court that he is protected by the Constitution from the imposition of a tax by persons to whom the Constitution, in effect, denies such power.”

In the case of Morris v. Cummings, 91 Tex. 618, 45 S. W. 383, the general rule was laid down that in any case in which the collection of an illegal tax is sought to be enforced, any one or more of the parties sought to be subjected to the imposition may invoke the interposition of a court of equity to restrain the collection.

We are not called upon to pass upon the authority of the Legislature to prevent a citizen from instituting suits to protect himself from the imposition of taxes by an illegal district or corporation, but it is significant that article 2597a closes with this proviso:

“If for any reason the provisions of this section shall be held invalid, the same shall not in any manner affect the other provisions of this act.”

It is evident that the Legislature had doubts or fears as to the validity of the article in question. However, even under its terms, appellant had the authority to prosecute this suit.

The taxpayers of the drainage district voted to issue the bonds with the provisions of the law in view, and they became a part of the contract entered into by the voters, and any taxpaying voter in the district has the right to demand that the law shall be complied with before his property shall be taxed. The statute provides that the county judge shall, with assistance directed and authorized by the commissioners’ court—

“offer for sale and sell said bonds on the best terms and for the best price possible, but none of sajd bonds shall be sold for lass than the face par value thereof and accrued interest, thereon,” etc.

That law was in effect when the bonds were-voted by the taxpayers of the district. It was a part of the consideration the voters had in contemplation, and it was very important because, if the bonds were sold for a less sum than the face par value, less money would be realized for drainage purposes, and the burdens of taxation would be just the same as though par value had been received for the bonds. The election on the issuance of the bonds was held on June 17, 1915, and on June 19, 1915, the act found on page 59, General Laws of the State of Texas, passed by the Thirty-Fourth Legislature, went into effect. in which it is provided that where drainage districts already organized have authorized the issuance of bonds bearing interest at a rate not exceeding 5 per cent, the county judge may sell said bonds at not less than 90 per cent, of their par face value and accrued interest. In the same section 28 of the act it is provided:

“But in no event shall said bonds be sold for less than the face par value thereof together with the accrued interest thereon”

—and the provision in regard to selling below par value is sought to be applied to bonds already authorized to be issued; that is, the Legislature, recognizing the absolute necessity of preventing bonds thereafter issued to be sold for loss than par value, deliberately proceeded to authorize sales of bonds, issued under an act providing for sales at not less than par, at 90 per cent, of their face value. Why the people who had voted bonds under the old law should be placed at such a disadvantage as to their bonds is not apparent, and no valid reason can be given for such retroactive legislation. The act is not curative, nor for the protection of innocent purchasers, for it has reference to bonds merely authorized, and does not refer to their issuance and sale. If the Legislature, after bonds have been voted under a law then in existence, can authorize the sale of them below par, the interest on them could be increased by the Legislature, and the whole contract changed in other respects. There can be no doubt that the provision in the law in effect when the bonds were voted was mandatory and binding upon every one concerned. It became a part of the contract for the issuance and sale of the bonds, and was a part of the consideration for the authorization of their issue. Wilson v. Herbert, 174 S. W. 861; Dillon, Mun. Corp. § 895. The effect of the legislative act of the Thirty-Fourth Legislature was to materially change and impair a contract entered into by taxpayers in certain drainage districts. The Constitution of Texas (article 1, § 16) provides:

“No bill of attainder, ex post facto law, retroactive law, or any other law impairing the obligation of contracts, shall be made.”

Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in relation to transactions or considerations already past, must be deemed retroactive. De Cordova v. Galveston, 4 Tex. 470; Hamilton v. Flinn, 21 Tex. 713; Sherwood v. Fleming, 25 Tex. Supp. 408.

The provision of the state Constitution is broader and more far-reaching than the similar provision in the Constitution of the United States. The Supreme Court of Texas shows this in the cáse of Mellinger v. Houston, 68 Tex. 37, 3 S. W. 249, and holds:

“The making of it evidences an intention to place a further restriction on the power of the Legislature, and it must be held to protect every right, even though not strictly a right to property, which may accrue under existing laws prior to the passage of any act which, if permitted a retroactive effect, would take away the right. A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured by law.”

The test as to whether a law is or is not retroactive is whether a vested right to possess a certain thing is impaired or defeated. Hamilton v. Flinn, herein cited. The voters of the drainage district had voted bonds under a law which secured to them the right to have their bonds sold for no sum under their face par value, and that valuable right was sought to be impaired by a law which permitted them to be sold at 99 per cent, of their par value, entailing a loss on the district of over $15,000. This is a substantial vested right, of which they cannot be deprived by a Legislature. As hereinbefore mentioned, the law in question is made to bear upon those districts that had previously provided for issuing bonds, but had not sold them. The law was intended to be, and substantially states that it was, enacted to affect bonds already voted. If any reason existed for the former law, requiring that bonds should not be sold for less than their par value, and for the present law, declaring the same thing as to all other bonds except those mentioned, it exists in regard to the districts singled out for legislative attack. The law is a wholesome and just one, which prevents the exploitation of the people’s money, and saves them from the burdens of taxation for something they never received. Being good for one district, the law prohibiting the sale of bonds for less than par value, with accrued interest, is good for them all, and the Legislature has no authority to impair or destroy this vested right.

It is alleged in the petition, and for the purposes of this appeal the allegation, in the absence of denial of its verity, will be taken as true, that the bonds had been placed in. the hands of the county judge by the commissioners’ court, and he was directed to sell them, and that no bond had been required or given by him. In article 2601, Vernon’s Sayles’ Ann. Giv. St. 1914, it is provided:

“Before the county judge shall be authorized to sell any of the drainage bonds, he shall execute a good and sufficient bond, payable to the commissioners of such drainage distinct, to he approved by such drainage commissioners, for an amount not less than the amount of the bonds issued, conditioned upon the faithful discharge-of Ms duties.”

Without the execution of the statutory bond, the county judge was not authorized to negotiate the sale of the drainage bonds, and upon that allegation, had there Been no other, tile injunction should have issued. The taxpayers have the right to claim the statutory protection given them by the execution of a bond.

It seems that the bonds voted by the taxpayers of the district were to run for 40 years, and it is alleged in the petition that bonds have been issued, the last of which will mature in 25 years. This will of course necessitate the levying of a heavier annual tax than if the last bond matured in 40 years, but if it did not, the commissioners’ court is attempting to issue bonds not authorized by the taxpayers of the district.

The bonds must be issued and sold according to the very terms of the submission of the matter to the voters, and no material departure from the terms can be tolerated. The bonds were voted to run for 40 years, to be sold for their face par value and accrued interest by an officer under bond as required by statute. The property of the taxpayers, to the extent of the taxes, is bound for the face value of the bonds, no matter for what they might be sold, and they have a vital interest in seeing that no part of the amounts shown by the face of the bonds is diverted from the purpose for which they were voted. They contracted to pay the interest and principal of the bonds so arranged as to run for 40 years, the amounts realized to be used for drainage, and not that a portion of the amount of the bonds should be paid as a discount to purchasers, and the taxpayer has the right to invoke the aid of the courts to see that the officers issue and sell the bonds according to law.

Assessments for taxation are made on all property held by the owner on January 1st of each year, and that assessment forms the basis and is essential to the levy and collection of taxes. All property held and owned on the 1st day of January of each year is bound for and subject to the taxes levied during that year, whether such levy be made in the beginning, the middle, or the last of the year. The rates of taxation for counties or subdivisions thereof are made by the commissioners’ court. It is made the duty of the commissioners’ court, whenever any drainage bonds shall have been voted, to levy and cause to be assessed and collected a tax upon all property within said drainage district, whether real, personal, mixed, or otherwise, sufficient in amount annually to pay the interest on such bonds as they shall fall due, together with an additional amount to be annually placed in.a sinking fund sufficient to discharge and redeem said bonds at their maturity. Vernon's Sayles’ Ann. Civ. St. 1314, art. 2603. That levy must be made at any time during the year that the issuance of the bonds may be authorized. The tax is levied as soon as it has been ascertained that the bonds have been voted, and the levy is made in a sufficient amount to pay the whole principal and interest divided into annual payments. The allegation, therefore, as to the tax being levied for only a part of the year is without merit. In this regard the commissioners’ court was following the terms of the law in providing for the annual interest and sinking fund sufficient to pay off the bonds at maturity.

There was no denial of the facts alleged in the petition, and for the purposes of this appeal they must be taken as true, and, under the allegations, the case should be held in statu quo until it is tried on the merits.

The judgment of the lower court is reversed, and a temporary writ of injunction is ordered by this court, restraining the county judge and commissioners as a court or individually from any further acts or proceedings with the drainage bonds until, this cause is tried on its merits, and it is further ordered that the clerk of the district court shall at once issue the writ of injunction herein allowed.
      i&ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©5»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    KINCHEON v. EDWARDS.
    (No. 5539.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.
    Rehearing Denied Feb. 2, 1916.)
    1. Boundaries ⅞=>37 — Establishment — Testimony oe Surveyor.
    Where, in a suit to recover a narrow strip of land claimed by adjoining owners, it conclusively appeared that the title of neither party could be based on limitations, and that the east boundary line of plaintiff’s tract called for the west boundary line of defendant’s tract, and it appeared probable that defendant’s lines and corners could be definitely ascertained by a proper survey, a surveyor’s testimony that in running lines of plaintiff’s land he began at her northwest corner and ran the distance called for in her field notes for her northeast corner and then ran the course and distance called for in her deed for her east line, was insufficient to identify plaintiff’s east line where it appeared that her field notes called for no distance for either of these lines.
    P3d. Note.—For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. <§=3⅞7.]
    2. Appeal and Error <®=^562—Presentation eor Review—Evidence—Maps.
    Where it is sought to present for review evidence consisting largely of testimony of witnesses, wherein they made constant references to maps, the statement of facts should show the maps in connection with the references made thereto, so that the testimony may be intelligible to the reviewing court.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2495-2499; Dec. Dig. 562.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by Marain Edwards against Tom Kincheon. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    A. T. McKean, of Austin, for appellant. Dickens & Dickens, of Austin, for appellee.
   JENKINS, J.

This is a suit by appellee to recover of appellant a strip of land about 10 feet wide. The controversy involves the true location of the west line of appellee’s 50-aere tract of land. Both appellant and appellee claim the land under both the five and ten year statutes of limitation. The evidence is insufficient to support limitation in favor of either party. This being true, the only way to have arrived at a proper settlement of the controversy was to establish the true location of the west line of the Kincheon tract. Both of these tracts, as well as adjoining tracts, appear to have been subdivisions of a large survey. Appellant’s father and uncle, under whom he claims, purchased the 50-acre tract above referred to in 1870. Appellee’s husband purchased the tract owned by her in 1873. The field notes of appellee’s tract are as follows:

“Beginning at the S. W. corner of the Blocker 83-acre tract for the N. W. corner of this survey; thence S. 30 W. to the N. W. corner of Tom Kincheon’s 25-acre tract; thence S. 60 E. to John Penland’s 50-acre tract; thence N. 30 E. to the S. E. corner of Blocker’s 83-aere tract; thence N. 60 W. to the beginning, containing 5Ó acres.”

The Penland tract above referred to is the tract now owned by appellant. It will thus be seen that the east boundary line of ap-pellee’s tract calls for the west boundary line of appellant’s tract. Appellant’s field notes call:

“Beginning on a stone mound in the west boundary line of E. S. Berry’s tract and N. E. corner of Harper’s tract; thence S. 30 E. 624.4 vrs. to a stone mound in Berry’s line, from ■which an elm 6 in. dia. brs. S. 67 B. 14 vrs.; another 8 in. dia. brs. S. 17 E. 13 vrs.; thence N. 60 W. 452 vrs. to a stone mound from which a live oak Í0 in. dia. brs. S. 38½ W. 27 vrs.; thence S. 30 W. 624.4 vrs. to a stone mound in Harper’s N. line;- thence S. 603 vrs. with Harper’s line to beginning.”

It will thus be seen that appellant’s field notes not only call for lines and corners of other surveys, but also call for bearing trees at his northeast and northwest corners, and it is probable that his lines and corners can be definitely ascertained by a proper survey.

A surveyor testified for appellee that he ran out appellee’s land, beginning at her northwest corner, and ran the distance called for in appellee’s field notes for her northeast corner, and then ran the course and distance called for in appellee’s deed for her east line. Appellee’s field notes call for no distance for either of these lines, and it is evident that the survey does not aid in identifying her east line, which, as stated, is the west line of appellant’s survey.'

This is another record in which the testimony as to the location of lines consists largely in witnesses saying “At this point” (indicating), and “Over here” (indicating), and “To a point here” (indicating); the reference being, as appears from the record, in part to a map on the floor, and in part to a map in the hand of the witness. Such testimony does not show in any intelligent way what the testimony of the witness was; and we again warn attorneys, as we have had occasion to do in other cases, that if they do not make their statements of facts indicate what the testimony was, the case will be affirmed for want of a correct statement of facts.

For the reason that the evidence in this case is insufficient to support the verdict and judgment, this case is reversed and remanded for another trial.

Reversed and remanded.
      (SssFor other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. EVANS.
    (No. 5554.)

    (Court of Civil Appeals of Texas. Austin.
    Jan. 12, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. Railroads <⅜=>108 — Construction of Track — Culverts—Statutory Provisions.
    A railroad company failing to construct, as required by Rev. St. art. 6495, necessary culverts in an embankment is liable for all damages of which the failure was the proximate cause, and the company should have reasonably anticipated that water accumulating for want of necessary culverts would wash away the embankment, and in so doing not only dirt, but Johnson grass roots, if any, in the embankment, would be carried on the adjacent land below, to the damage of the owner thereof.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 333-336; Dec. Dig. ⅞=>108.]
    2. Trial <§=3260 — Instructions—Requests.
    Where, in an action against a railroad company negligently failing to construct necessary culverts in an embankment which was washed away and on the adjacent land, the court submitted to the jury the issue whether the market value of the land was injured by the spread of Johnson grass carried with the embankment onto the land, so" that the jury could not have found for plaintiff without finding a depreciation in the market value of the land by reason of the spread of Johnson grass on it, the refusal to charge that, though the jury found that the company was negligent in the construction of the embankment, and that by reason thereof Johnson grass had been washed on plaintiff’s land, yet, unless they found that the negligence injured the market value of plaintiff’s premises, the verdict must be for the company, was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. ©=260.]
    3. Railroads <®=>114 — Construction of , Railroad Track — Negligence—Evidence —Instructions.
    Where, in an action against a railroad company for negligently failing to construct culverts in an embankment which, with Johnson grass thereon, was carried by flood on the land of plaintiff, the evidence showed that there was a large amount of Johnson grass roots deposited on plaintiff’s land immediately after the flood, and that there was an increased amount of the grass growing on his land in the season following, and a witness testified that he cultivated the land adjoining plaintiff’s land, and that his land was overflowed, and a part of the embankment was washed thereon, that by cultivating his land he kept the grass thereon down in a large measure, and that, if plaintiff’s land had been cultivated in the same manner, the grass there in a large measure could have been destroyed, it was not error to refuse to charge that, if the jury found that there was more Johnson grass on plaintiff’s land after the flood than there was before, but such increase was caused from plaintiff not properly working his land, the verdict should be for the company, was not erroneous; for, if the increase of the grass could have been prevented by an increased amount of cultivation, "plaintiff, under a proper pleading, could have recovered the increased cost of cultivation rendered necessary by the deposit of the grass on the land.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. «=>114.]
    4. Trial «=>191 — Instructions—Weight oit Testimony.
    An instruction in an action against a railroad company negligently failing to construct culverts in an embankment which was by flood washed on plaintiff’s land that, if the rainfalls, surface or flood water that caused the embankment to crumble, if it did, and that washed up Johnson grass and roots thereof onto plaintiff’s land, “as alleged,” was such an unprecedented, etc., was not objectionable as assuming that the Johnson grass roots were washed on plaintiff’s land; for the words “as alleged” did not assume that the facts as alleged were proven.
    [Ed.. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. «=5191.]
    5. Railroads «=>114r — Construction of Embankment — Culverts — Negligence — Evidence.
    Evidence held to justify a finding that a railroad company negligently failed to construct culverts in an embankment on which there was Johnson grass, and that in consequence thereof the embankment and the grass were washed by flood on plaintiff’s land.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 865-371; Dec. Dig. «=>114.]
    Appeal from District Court, 'Bell 'County; John D. Robinson, Judge.
    Action by J. E. Evans against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, .defendant appeals.
    Affirmed.
    Chas. C. Fluff and A. H. McKnight, both of Dallas, and Jas. B. Hubbard, of Belton, for appellant.

      Application for writ of error pending in Supreme Court.

   JENKINS, J.

Appellee owned a farm of 250 acres in the valley of Dittle River. Appellant constructed its railway north and south across the bottom of said river and along the western border or upper side of appellee’s land. On December 2, 1913, the surface water and overflow from the river washed away the roadbed of appellant adjoining appellee’s land. The appellant had permitted Johnson grass to grow upon its roadbed, and the same was filled with the roots of the grass. Appellee alleged that appellant, in constructing its roadbed, failed to construct the necessary culverts and sluices through and under the same as the natural lay of the land required for the necessary drainage of the land above said roadbed, by reason of which the natural flow of surface and flood water was impounded and accumulated in such an amount on the upper or west side of the embankment or roadbed as caused the same to crumble and the earth, together with the Johnson grass therein, to be deposited upon appellee’s land, to his damage in the sum of $5,000. Appel-lee recovered judgment for $750.

Appellant assigns error upon the action of the court in overruling its general demurrer. In this there was no error. Appellee did not allege negligence upon the part of appellant in permitting Johnson grass to grow upon its right of way. The ground of complaint was that appellant did not construct the necessary sluiceways, as required by the statute. Rev. Stats, art. 6495. Such failure to comply with the statute would render appellant liable for all of the damages of which it was the proximate cause. It should have been reasonably anticipated in such ease that water accumulating by reason of the want of necessary culverts and sluices as required by the natural lay of the land would wash away the embankment upon which the track was located, and in doing so that it would carry, not only the dirt, but the Johnson grass roots, if any therein, upon the adjacent land below; and, while it might not be negligence for the railroad company to permit the Johnson grass to grow upon its right of way, it should be required to anticipate that, if the dump or embankment was. washed away, it would carry with it the Johnson grass roots. It is somewhat similar to the ease of a railroad running its train at a high rate of speed. Such speed might not be negligence upon a good roadbed, but would be upon a roadbed out of repair; which is to say that in doing any particular act a party is required to take into consideration the conditions under which it is done.

The pleadings raised the issue as to whether the roadbed was constructed with proper culverts and sluices, and the evidence sustains the finding of the jury that it was not, for which reason the court did not err in refusing to give a peremptory instruction in favor of appellant.

Appellant requested the following special charge, which was refused:

“You are charged that, although you may find that the defendant had been negligent in the construction and maintenance of its passageways adjacent to plaintiff’s premises, and by reason thereof Johnson grass had been washed upon plaintiff’s land, and, although you may find that the defendant had been negligent in the manner charged by plaintiff, yet, unless you further find that these acts or some of them on the part of defendant have injured the market value of plaintiff’s premises, you will return a verdict in favor of the defendant.”

The proposition submitted under the assignment with reference to the refusal of this charge is that defendant was entitled to have an affirmative finding of the jury on the question whether the market value of the premises had been diminished by the spread of the grass. The charge does not require an affirmative finding on this issue, but only that, if the jury should find that appellee had not been injured by any of the acts complained of, they would find for the appellant. The court submitted the issue to the jury as to whether or not the market value of appellee’s land was injured by the spread of Johnson grass thereon, and the jury could not have found for plaintiff under the charge of the court without finding a' depreciation in the market value of appel-lee’s land by reason of the spread of Johnson grass upon it. We do not see how the requested charge could have aided the jury in arriving at their verdict or could have been beneficial to appellant. The testimony sustains the finding of the jury that appellee’s land was injured by such spread of Johnson grass thereon. The doctrine announced in Neely v. Railway Co., 96 Tex. 274, 72 S. W. 159, and recognized by this court in Bangle v. Railway Co., 140 S. W. 375, is not applicable to the facts of this case. In the Neely Case the railway company, in planting Bermuda grass upon its right of way, did that which it had the legal right to do. In the instant case appellant violated a provision of the statute in not properly constructing its roadbed.

Appellant’s fourth assignment of error is as to the refusal of the court to give the following special charge:

“You are charged that, if you find from the evidence that there was more Johnson grass on plaintiff's land after the flood of December, 1913, than there was before the flood, and if you further find that such increase in the amount of Johnson grass thereon was caused from plaintiff’s not properly working said land, you will find for the defendant.”

The evidence showed that there was a large amount of Johnson grass roots deposited upon appellee’s land immediately after the flood, and that there was an increased amount of Johnson grass growing upon his land in the season following. A witness for appellant testified that he cultivated the land adjoining appellee’s land, and that his land was overflowed and a part of the embankment constituting appellant’s railway dump was washed upon his land. He further testified that by cultivating his land he was enabled to keep the Johnson grass thereon down in a large measure, and that, in his opinion, if appellee’s land had been cultivated in the same manner that the witness cultivated his land, the Johnson grass could, in a large measure, have been destroyed. It will be observed that the charge requested does not submit the issue as to whether or not Johnson grass roots were deposited upon appellee’s land, nor whether or not failure to work the land was the sole cause of the increase of Johnson grass on appellee’s land, but only whether or not, by properly working his land, the increased amount of Johnson grass thereon could have been prevented. It was shown by the evidence that some Johnson grass was growing upon appel-lee’s land before the flood and that the same was greatly increased in the following year, if such increase could have been prevented by an increased amount of cultivation, it does not follow, as is assumed in the charge requested, that appellee would not be entitled to any damages by reason of the deposit of Johnson grass roots on his land. In such event, by proper pleading and testimony, it might have been shown that the measure of appellee’s damage would have been the increased cost of the cultivation rendered necessary by the deposit of Johnson grass roots on appellee’s land. But in no event should the jury have been instructed to find for the defendant, if he suffered injury as the proximate result of the unlawful acts of appellant.

We do not think that the charge of the court is subject to the criticism that it Was upon the weight of the testimony, as alleged in the fifth assignment of error. The portion of the charge complained of is as follows:

“If you find that the rainfalls, surface or flood water that caused said embankment to crumble, if it did, and that washed up the Johnson grass and roots thereof on plaintiff’s land, as alleged, was such an unprecedented,” etc.

Appellant alleged that the washing away of its embankment was caused by an unprecedented flood, and this portion of the charge was applicable to such plea. The complaint is that the court here assumes that the Johnson grass roots were washed upon plaintiff’s land. Under the previous portions of the charge the jury could not have found for ap-pellee, without specifically finding that Johnson grass roots were washed upon his land. The language used in this portion of the charge “as alleged” we do not think assumes that the facts as alleged were established by the evidence, but that the same is equivalent to the expression “as claimed”; and, taking the whole charge together, it is plain that the jury could not have been misled by the language complained of.

The sixth and last assignment of error is that the verdict of the jury is unsupported by the evidence, in that:

“The evidence does not show that defendant’s embankment which contained Johnson grass and Johnson grass roots was washed away by the flood over and across plaintiff’s land, but [and] it does not show that the depositing of Johnson grass or Johnson grass roots upon plaintiff’s land, if any was so deposited, was the proximate result of any negligence or any act or omission on the part of the defendant.”

It is true that appellee, upon cross-examination, testified that there was Johnson grass growing upon land above the embankment, and that the roots of such grass may have been washed up and deposited upon his land, and that he could not identify any of the Johnson grass roots found upon his land as coming from appellant’s embankment. The evidence does show, however, not only that there were a great many of such roots deposited upon appellee’s land, but that they were in greater quantities next to the railroad track. While this evidence as to the identify of the Johnson grass roots deposited on appellee’s land with those that were in the embankment is circumstantial, it is sufficient to sustain the finding of the jury that such roots were washed from appellant’s embankment upon appellee’s land, for which ^son said assignment of error is overruled.

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

Affirmed.
      <gc=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£^»For ofcher cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J. HIGGINS, J.

text:
    COONEY v. EASTMAN et al.
    (No. 517.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 10, 1916.)
    1. Judgment @=101 — Pleading @=129 — General Denial — Admissions.
    In an action to foreclose vendor’s lien notes, where the petition averred on information and belief that defendant, who was not the holder of the equity of redemption, had agreed with an owner to discharge such notes, a general denial does not, under Rev. St. 1911, art. 1902, as amended by Acts 33d Leg. c. 127, providing that any fact not denied by defendant, or as to which he does not deny Ms having knowledge or information sufficient to form a belief, shall be taken as confessed, put such averments in issue, and therefore a default judgment may be taken on such undenied allegations.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. @=101; Pleading, Cent. Dig. §§ 270-275; Dec. Dig. @= 129.]
    2. Vendob and Purchaser @=>261 — Lien Notes — Enforcement.
    Holders of vendor’s lien notes may enforce an agreement between defendant and an owner of the equity of redemption that defendant should discharge such notes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. @=261.]
    3. Judgment @=101 — Default Judgment-Pleadings to Sustain.
    In an action to foreclose vendor’s lien notes on land of which defendant was not the owner, the petition averred upon information and belief that defendant had agreed in writing with the holder of the equity of redemption to discharge such notes. There was no averment, however, that plaintiff was the holder of such notes, and it appeared that the owner of the equity of redemption was not personally bound to discharge them. Held that, in view of Rev. St. 1911, art. 1827, as amended by Acts 33d Leg. c. 127, requiring the petition to contain a full and clear statement of the cause of action, the petition was insufficient to sustain a default judgment against defendant; the only averments concerning defendant’s liability being hearsay, which, if proven, would not support a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. @=101.]
    4. Pleading @=236 — Amendment of Answer.
    In such case defendant, a nonresident, filed a general denial. When the case was called for trial at the December term plaintiff, over defendant’s objection, dismissed as to the holder of the equity of redemption who was not served in time to be proceeded against at such term. Defendant seasonably moved for leave to amend his answer, but was denied, and default judgment rendered against him. The amendment offered was that the agreement to discharge the vendor’s lien notes was unenforceable because the holder of the equity of redemption did not perform his agreement. Held that, wMle under Rev. St. 1911, arts. 1824, 1825, and district court rule 27 (142 S. W. xix) such courts have the power to fix the time for filing pleadings and amendments thereto, yet an amendment should not be denied where no injury to the qther side can result and it is in the interests of justice; hence it was improper to deny defendant leave to file his amendment setting up a good defense; for defendant might well have assumed that plaintiff would not go to trial without the holder of the equity of redemption, and the amendment was requested before an announcement of ready.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. @=236.]
    Error from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by Newton Eastman against P. Albert Cooney and others. There was a judgment for plaintiff, and defendant Cooney brings error.
    Reversed and remanded.
    Clay Cooke, of Pecos, for plaintiff in error. Spencer B. Pugh, of El Paso, Leslie A. Need-ham, of Chicago, Ill., and Ross & Hubbard, of Pecos, for defendants in error.
   HARPER, C. J.

Appellee recovered á judgment against appellant, Cooney, and others for the sum of $1,785.50, being the amount, principal, interest, and attorney’s fees due upon notes 1 and 2 of a series of four notes. Appellant, Cooney, urges that there is neither pleading nor proof to support the judgment against him.

The allegations in appellees’ trial petition which in any wise state a cause of action against appellant are: That the four notes were executed by defendant A. B. Heath, trustee, by H. E. Heath, attorney in fact, and delivered to Dandridge and Pugh; that they recite that they were executed in part payment of the purchase money of certain lands and the usual recital of vendor’s lien; that thereafter, and before the maturity of any or either of said notes, the said Spencer B. Pugh, by written indorsement thereon, transferred notes 1 and 2 for a valuable consideration, and guaranteed the payment of each of said notes at maturity on demand, waiving demand and protest on nonpayment thereof to this plaintiff; and that at and before the purchase by this plaintiff of said notes numbered 1 and 2, respectively, the defendant John B. Dandridge and E. Leslie Cole, each respectively, for and in receipt of a valuable consideration, indorsed in blank each of said notes numbered 1 and 2, respectively.

“Xour petitioner further charges, upon information and belief, that the said P. Albert Coon-ey, on or about the month of June, 1912, entered into a certain contract in writing with the defendant H. E. Heath, who, on said date and prior thereto was the owner of the equity in the' premises hereinbefore described, wherein and whereby the said Albert Cooney,'for a valuable consideration, promised and agreed to pay and discharge each of the notes numbered 1 and 2 then and now owned by your petitioner, and that your petitioner, in addition to the foreclosure of the lien of said notes 1 and 2, is entitled to a personal judgment for the sum due and owing your petitioner,” etc., against defendant' P. Albert Cooney, etc.

It is admitted that there was no evidence adduced upon the trial in proof of the allegation that Cooney agreed with Heath to pay and discharge the notes sued on, but appellee contends that, the allegations not having been specifically denied, under article 1902, R. S., as amended by Acts 33d Leg. c. 127, they are taken as confessed; therefore no proof is necessary.

The defendant simply filed a general denial, and in no way specifically denied the allegation relied upon to sustain the judgment by default. Under this statute a general denial is not sufficient to prevent judgment by default, nor is it sufficient to permit defendant to controvert the allegations in plaintiff’s petition. Spencer v. Levy,, 173 S. W. 550. So, if the plaintiff’s allegations copied above are sufficient to charge liability of the defendant to the plaintiff upon the notes sued upon, then this assignment is without merit.

There are no allegations charging that appellant, Cooney, was primarily liable. It is not charged that he was a maker or an indorser of the note, but the allegation is, “your petition charges upon information and belief” that Cooney agreed in writing with defendant H. E. Heath to pay and discharge the notes sued upon. There is’ no allegation that the plaintiff was at the time of filing the suit the legal owner and holder of the notes sued upon. These allegations do not bring appellee within the provisions of article 1827, as amended chapter 127, Acts 1913, that the petition shall contain a “full and clear statement of the cause of action.” If this was evidence upon the trial of the case, it would simply be hearsay, and not sufficient to be the basis of a judgment; much less then must its probative force be, when reduced to its final analysis, as an allegation in the petition, for by failing to answer Cooney simply admitted that plaintiff had heard and believed that he (Cooney) had agreed in writing to pay the notes. Nor do they bring him within the well-established rule of law that:

“The liability of defendant to the plaintiff on the cause of action for which the suit is brought must be' distinctly averred. It is not sufficient to show a right of action in other parties, which, as a matter of inference, it may be supposed the Plaintiff is entitled to assert.” Colbertson v. Beeson, 30 Tex. 76.

The allegation that Cooney agreed with H. E. Heath to pay the notes is not equivalent to charging that appellant agreed with appellee that he (appellant) would pay the notes in the hands of him (appellee). According to the allegations, H. E. Heath is not charged with liability upon the notes in question at any time. He, as attorney in fact, executed the notes for A. B. Heath, trustee. True, it is alleged that Heath was the owner of the equity in the lands, but there is no showing as to how such equity was acquired that it might be refuted. The petition therefore shows no cause of action against Cooney, and the recovery therefore cannot be maintained. Sneed v. Moodie, 24 Tex. 160, and cases there cited. There is, however, no doubt, that upon sufficient allegations and proof appellee could enforce Cooney’s promise to pay the debt of Heath. McCown v. Schrimpf, 21 Tex. 22, 73 Am. Dec. 221; Stadler v. Talley, 3 Willson, Civ. Cas. Ct. App. § 472; Mathonican v. Scott, 87 Tex. 396, 28 S. W. 1063; Spann v. Cochran, 63 Tex. 240; Bank v. Texas, etc., 74 Tex. 421, 12 S. W. 101.

The sixth assignment reads:

“The court erred in overruling the defendant’s motion for a new trial because said motion showed a good and valid defense to the cause of action so far as a judgment against the said P. Albert Cooney is concerned, in that said judgment against him was rendered as by default because of a certain alleged allegation in plaintiff’s petition, which the court held was not denied by the said defendant Cooney, and the court had theretofore refused the defendant Cooney permission and leave to deny said allegation, and had refused to permit the defendant Cooney to deny said allegation, and had .refused to permit the defendant Cooney to deny same prior to the trial of said cause, and had refused to continue said cause upon the application of the defendant Cooney to give him an opportunity to contest said allegation and his motion for a new trial showed a good and valid defense to said allegation of the petition attempting to charge a personal liability against the defendant Cooney, and that same was false and unfounded, and said motion for a new trial should have been granted.”

The amended petition upon which the judgment is predicated was filed September 8, 1914. Defendant Cooney was served, by delivering notice to him, as nonresident, in Chicago, Ill., on the 9th day of November, 1914. Defendant Cooney filed a formal answer. At the time of filing this answer Ida D. Cary, who then owned the legal title to the land upon which the lien existed, was a party defendant. Citation was served upon the last-named defendant one day too late for the December term of court. "When the cause was called for trial, plaintiff dismissed as to said Cary, over the objections of Cooney, -Whereupon Cooney asked leave to amend his answer, which was refused by the court, whereupon jury was impaneled. The notes 1 and 2 were introduced in evidence, and testimony of witnesses as to the ownership of notes numbered 3 and 4 was introduced. The court then submitted one special issue to the jury, i. e.: “Is defendant Cooney the owner of notes 3 and 4?” The answer was: “No.” Then a personal judgment was entered against defendant Cooney for the amount, principal, interest, and attorney’s fees of notes 1 and 2, which judgment recites:

“It appearing to the court from the uneontro-verted facts confessed by the pleadings and proved on the trial of this cause that the plaintiff should recover,” etc.

Within the time prescribed defendant Cooney filed his motion for new trial. This was overruled. Tlie motion contained the following allegations as to his liability upon the notes numbered 1 and 2:

“Defendant arrived in Pecos December 28, 1914, said cause was immediately called for trial, and defendant bad no time to consult bis counsel or prepare his defense; that said alleged Heath contract was an executory contract between the said Heath and this defendant requiring said Heath to secure a certain judgment in a cause then pending in court, and to convey to defendant certain lands and to assign to defendant said judgment; that said Heath did not convey said lands nor procure or assign to defendant said judgment nor perform the covenants therein contained on his part; that by reason of said contract no liability accrued on the part of this defendant to pay said notes 1 and 2 sued on; that in said contract defendant never at any time agreed to pay notes 1 and 2 upon any condition whatever, but was only, under said agreement, obligated to pay one of said notes in case said Heath performed his part of said contract, which he failed to do.”

The 'above sets up a meritorious defense, and the facts alleged (in no way controverted) constitute a sufficient reason for not setting it up in an answer before the cause was called for trial, and the trial court should 'have set aside the judgment. Deonidas Holliday v. A. J. Holliday, 72 Tex. 585, 10 S. W. 690; Kruegel v. Porter, 136 S. W. 801.

Under articles 1824 and 1825, Revised Civil Statutes of 1911, and rule -27 for district courts (142 S. W. six), said courts have the power to fix a time for filing pleadings and amendments thereto, etc. These rules were promulgated for the purpose of expediting the business of the court, but, where no injury to the other side can be shown by granting permission to file pleadings, the court has the power to relax the rules, and it should be done in the interest of justice. Lipscomb v. Perry, 100 Tex. 125, 96 S. W. 1069; Radam v. Microbe Destroyer, 81 Tex. 129,16 S. W. 990, 26 Am. St. Rep. 783.

And any party to a suit should be granted leave to file pleadings or amendments up to the time of announcing ready for trial, and at any time thereafter, by’ withdrawal of announcement, if justice demands it. The courts should never feel that- they are so pressed for time to dispose of the business before them, that they would enforce these rules to the letter where there is any doubt that a strict enforcement thereof would result in a refusal of'a trial of the case between the parties upon its merits tested by the established rules of law and equity. In the instant case, considering the fact that plaintiff, by his suit, was not only seeking to recover the amount of the notes 1 and 2, as against defendant Cooney, but also against the other named defendants, but also asked a foreclosure of his vendor’s lien upon the land, the legal title to which was at the time of the suit shown to be in Ida D. Cary, in connection with the further fact that, if the legal title to the lands was, in fact, in said Cary, no judgment foreclosing the lien could be effective without a decree against the then owner, Cary, appellant was justified in believing, and in acting upon the belief, that no judgment would be taken until service was completed upon said Cary; but, whether he was justified in this belief or not, when the cause was dismissed, as to said Cary, he offered to amend his pleadings before announcing ready for trial. Therefore, whether plaintiff’s petition was sufficient to be the basis of a judgment in the absence of an answer by Cooney denying the allegations of the petition strictly in accordance with the statute or not, he (Coon-ey) should in the interest of justice have been permitted to file his answer to the merits of the cause as plead.

There are other assignments charging error in the courts of the trial, and in the judgment as entered, but, if errors, they are not likely to occur upon another trial; so we overrule them without comment.

Reversed and remanded.

HIGGINS, J.

(concurring). Eor the reasons stated in majority opinion, I think the refusal of the court to grant a new trial constitutes error.

I do not concur in what is said in that portion of the majority opinion relating to the'sufficiency of petition. Since I concur in the result, it would serve no useful purpose to state in detail the grounds of my non-concurrence.
      <@»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    PECOS & N. T. RY. CO. v. PORTER.

    (No. 832.)
    (Court of Civil Appeals of Texas. Amarillo
    Jan. 26, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. Courts <©=3489 — Jurisdiction—Interstate Commerce Commission Act.
    The Interstate Commerce Act (Act Cong. Eeb. 4, 1887, c. 104), providing, in section 22 (24 Stat. 387 [U. S. Comp. St. 1913, § 8595]), that nothing therein shall in any way abridge or alter the remedies existing at common law or by statute, but the provisions of the act are in addition to such remedies, does not deprive a state court of jurisdiction of an action against a carrier for conversion of an interstate shipment.
    The refusal of a shipper to pay more than the contract rate for freight, which was less than the proper rate, does not affect his right to recover for conversion, where the carrier would not accept the proper rate, but sold the goods for its charges.
    [Ed. Note. — Eor other cases, see Courts, Cent Dig. §§ 404, 1324-1330, 1333-1341, 1372-1374; Dec. Dig. ⅛=489.]
    2. Carriers @=>91 — Transportation oe Freight — Conversion oe Shipment.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 338-355; Dec. Dig. <©=91.]
    3. Carriers <®=94 — Transportation oe Freight — Conversion—Nature oe Action.
    An action against a carrier for damages on the demand of an excessive freight charge, which the shipper refused to pay, and the sale of the goods for the charges is one for conversion.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. <§=94. ]
    4. Carriers <§=>91 — Transportation op Freight — “Conversion.”
    That the agent of a carrier demanded only a small amount in excess of the legal rate, and the demand was honestly made without wrongful intent, does not affect the shipper’s right of recovery for conversion by the sale of the goods on refusal of the shipper to pay the charge; “conversion” being any distinct act or dominion wrongfully exerted over another’s property in denial of his right or inconsistent with it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 338-355; Dec. Dig. <§=>91.
    For other definitions; see Words and Phrases, First and Second Series, Conversion.]
    5. Trover and Conversion <§=>22 — Defenses —Good Faith.
    In an action of trover and conversion, good faith cannot be shown as a defense, but only where exemplary damages are claimed, in mitigation thereof.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. <§=>22J
    6. Carriers <§=>94 — Transportation of Freight — Conversion.
    In an action for conversion by a carrier by sale of goods on refusal of shipper to pay excessive freight rate, refusal to submit to the jury an issue whether defendant’s agent offered to rebill the ear, letting the charges follow so that the shipper could pay the legal charge at the new destination, was proper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. <§=>94J
    7. Carriers <§=>94 — Transportation of Freight — Conversion—Evidence.
    In an action for conversion by a carrier on refusal of the shipper to pay an excessive freight rate, the award of the Interstate Commerce Commission, determining the proper rate for the shipment, was admissible in evidence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. <§=>94. ]
    8. Evidence <§=>80 — Presumption—Law of Other State.
    The right of action for loss of personal property passes to the father and mother of one dying unmarried without issue within the state; and, in the absence of proof to the contrary, it will be presumed that the same law applies in New Mexico.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. <§=>80.]
    9. Assignments <§=>131 — Action by As-signee-Pleading.
    An assignee of the father and mother of one who died in New Mexico unmarried and without issue, suing to recover for loss of personal property of decedent, need not allege that there was no administration on the decedent’s estate in New Mexico, since an administrator appointed there could not sue in Texas, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3209, providing for administration in Texas on the estate of a nonresident.
    [Ed. Note. — For other eases, see Assignments, Cent. Dig. §§ 22iV-226; Dec. Dig. <§=>131.]
    10. Carriers <§=>94 — Transportation of Freight — Conversion.
    In an action for conversion by a carrier by sale of the goods on refusal of the shipper to pay excessive freight, the fact that the shipper and his attorney purchased most of the property is immaterial.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. <§=>94.]
    11.Witnesses <§=>37 — Competency—Knowledge of Subject-Matter.
    In an action against a carrier for conversion, a witness’ testimony that she could enumerate the various articles which were packed or prepared with her assistance, and that she was present and helped pack and load the wagons with the goods that were shipped, and that she testified from what she did and saw herself, shows that she was fully qualified to testify to the identity of the property.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dec. Dig. «@=>37.]
    Appeal from District Court, Deaf Smith County; M. J. R. Jackson, Special Judge.
    Action by G. H. Porter against the Pecos & Northern Texas Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 156 S. W. 267; 158 S. W. 564.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellant. Knight & Slaton and S. J. Dodson, all of Hereford, for appellee.

      Application for writ of error pending in Supreme Court.

   HALL, J.

Appellee, B. M. P'orter, in his own right, and as the assignee of the heirs of G. H. Porter and L. Cameron, sued the appellant for the conversion of a car of emigrant movables, transported by the St. Louis & San Francisc'o from Fletcher, Okl., to Qua-nah, Tex., by the Ft. Worth & Denver City Railway from Quanah to Amarillo, and by the appellant company from Amarillo to Bovina, in the month of January, 1907. A jury trial resulted in a judgment in favor of appellee for $2,940, with interest from the 23d day of November, 1914, the date of the judgment.

Appellee and his assignors had decided to remove from Fletcher, Okl., to Melrose, N. M., and applied to the agent of the initial carrier at their home station for a ear in which to ship their goods and chattels. The car, having been furnished, was loaded by appellee January 11, 1907. Upon inquiry as to the rate of freight the agent of the initial carrier quoted to appellee a through rate of 37 cents per hundredweight, and issued a shipping c'ontract, showing that such rate, amounting to $74 charges, had been paid. The car was billed at the estimated weight of 20,000 pounds, but, upon being weighed subsequently, was found to actually weigh 24,000 pounds. At the time this shipment moved there was no through rate filed with the Interstate Commerce Commission, between the initial station and the des-tinátion. In the absence of such a tariff, the sum of the local rates must govern. The initial carrier had a local rate of 18 cents per hundredweight between Fletcher and Qua-nah; the Ft. Worth & Denver City Railway had a local rate of 19 cents between Quanah and Amarillo; the appellant, the delivering carrier, had two rates, one 'of 25 cents and the other of 31 cents, from Amarillo to Bo-vina, and there was a dispute as to which of the two rates applied to this shipment. Upon application to the Interstate Commerce Commission, it was decided that the lesser of the two rates applied, making a total rate, as held by the Interstate Commerce Commission, of 62 cents per hundredweight. No complaint is made of delay or other injury t'o the goods, which arrived at Bovina on the 14th day of January, 1907. Upon arrival, and ascertainment of the fact that the car weighed 4,000 pounds more than it was originally billed, the delivering carrier insisted upon $14.80 additional as freight charges. Upon arrival of the car at Bovina on the 14th day of January, 1907, G. H. Porter applied to the defendant’s agent for delivery of the car, and to have the same reeonsigned to him at Mel-r'ose, N. M., offering to pay the $14.80 additional charges. The agent refused to deliver on such terms, and demanded charges at the rate of 65 cents per hundredweight. Appel-lee at that time declined to pay any more than the rate of 37 cents per hundredweight, as stated in the original contract. The matter was referred to the company’s general freight agent at Amarillo, and it is shown by the testimony of Cameron and appellee that, while the matter was pending, the agent demanded first 65 cents per hundredweight, then 68 ⅛ cents per hundredweight, and the jury so found, and refused to deliver the contents of the car unless the rate demanded in each instance was paid. Defendant’s agent testified that he had the appellant’s published rates, but did not have the rates from the other two roads, and insisted upon the rate given him by the general freight agent of appellant. Appellees’ assignor G. H. Porter, under the advice of counsel refused at all times to pay anything more than the illegal rate of 37 cents per hundredweight until November 9, 1907, when appellant’s auditor began the sale of the goods as unclaimed freight, at which time appellee offered to pay at the rate of 62 cents per hundredweight, but refused to pay demurrage and expense of keeping the live stock contained in the shipment. The Interstate Commerce Commission, passing upon the appel-lee’s claim and prayer for reparation, decided that 62 cents was the true through rate at that time, being the sum of the local rates fixed, and published by the three carriers, and held, further, that 65 cents was in excess of that total rate, ordering that a 41 cent rate be established and maintained for two years thereafter. It was further ordered that on or before the 25th day of February, 1909, the appellants should pay to appellee and his assignors the sum of $64.80, together with whatever amount was charged and collected for demurrage Or warehousing as reparation for excessive and unreasonable rates charged and exacted for the transportation of the car from Fletcher to Bovina. The property was sold November 9th, and failed to bring enough by $380 to pay the freight, demur-rage, and cost of keeping it in the interim.

The trial court submitted the cause upon special issues, which together with the answers of the jury, are as follows:

“No. 1. What rate per hundred pounds was demanded of the shipper by defendant on January 14, 1907, when the car of goods arrived at Bovina, Tex.? Ans. A rate of 65 cents was demanded.
“No. 2. Was more than one rate demanded by the defendant of the shipper or his agent at any time after the arrival of the car at Bovina; if so, how many rates were demanded, and what was each rate demanded? Ans. Tes; two rates, 65 cents and 68½ cents.
“No. 3. What was the value of the goods in the car belonging to B. M. Porter, G. H. Porter, and L. Cameron on January 14,1907, at Bovina, Tex.? Ans. $2,000.00.
“No. 4. What rate, or rates, per hundred pounds did the shipper offer to pay, and when was such offer or offers made? Ans. Thirty-seven cents January 14, 1907, and 62 cents in November, 1907, prior to sale.”

For a further statement of the history of the case, reference is made to the Southwestern Reporter, vol. 121, p. 897, and vol. 156, p. 267.

The question of the jurisdiction of the state courts over this controversy is again raised by the first and second assignments. This question has been considered on both the former appeals, and decided by the Second Court of Civil Appeals and by this court adversely to appellant’s contention. However, in deference to the earnestness with which the point is again urged, and with the aid of the exhaustive brief furnished us, we have, so far as we are able, again given it a thorough examination. We are now more firmly convinced than ever before that our former ruling is correct. In addition to the authorities cited in the first and second opinions, we are sustained by a number of later cases. Donnelly, Justice, in Detmer-Wallen Co. v. Delaware, L. & W. Ry. Co., 89 Misc. Rep. 252, 153 N. Y. Supp. 287, said:

“ * * * There is nothing in the act to indicate that the [state] courts have been deprived of the power to act with respect to complaints that may arise out of the failure of carriers to carry out their contracts of transportation promptly and safely, and properly to perform their duties as common carriers.”

In Wolverine Brassworks v. Sou. Pac. Co. (Mich.) 153 N. W. 778, and Coad v. Chicago, St. P., M. & O. Ry. Co. (Iowa) 154 N. W. 396, it is distinctly held that the state courts have jurisdiction of actions brought to recover excessive freight rates collected by the carriers. In our judgment, the controlling authority is Penn. Ry. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 35 Sup. Ct. 484, 59 L. Ed. 867, in which Justice Lamar construed sections 8, 9, and 22 of the Interstate Commerce Act (U. S. Comp. St. 1913, §§ 8572, 8573, 8595), using this language:

“But sections 8 and 9, standing alone, might have been construed to give the federal courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which were preserved and the new obligations which were imposed by the Commerce Act. And, evidently, for the purpose of reventing such a result, the proviso to section 2 declared that: ‘Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.’ That proviso was added at the end of the statute, not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a state court, recover, for damages to property while in the hands of the interstate carrier, damages caused by delay in shipment; damages caused by failure to comply with its common-law duties, and the like. But for this proviso to section 22 it might have been claimed that, Congress having entered the field, the whole subject of liability of carriers to shippers in interstate commerce had been withdrawn from the jurisdiction of the state courts, and this clause was added to indicate that the Commerce Act, in giving rights of action in federal courts, was not intended to deprive the state courts of their general and concurrent jurisdiction. G., H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516. Construing, therefore, sections 8, 9, and 22 in connection with the statute as a whole, it appears that the act was both declaratory and creative. It gave shippers new rights, while at the same time preserving existing causes of action. It did not supersede the jurisdiction of state courts in any case, new or old, where the decision did not involve the determination of matters calling for the exercise of the administrative power and discretion of the commission, or relate to a subject as to which the jurisdiction of the federal courts had otherwise been made exclusive. Compare Abiline Case, 204 U. S. 439, 446, 27 Sup. Ct. 350, 51 L. Ed. 658, 561, 9 Ann. Cas, 1075; Robinson v. B. & O. Ry. Co., 222 U. S. 506, 32 Sup. Ct. 114, 56 L. Ed. 288.”

Further on it is said:

“But if the carrier’s rule, fair on its face, has been unequally applied, and the suit is for damages occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits, though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the state or federal courts.”

In applying the rule announced, the court also said:

“It [the present suit] is not based on the ground that the Pennsylvania Railroad’s rule to distribute in case of car shortage on the basis of mine capacity was unfair, unreasonable, discriminatory, or preferential; but, as shown above, the plaintiff alleged it was damaged by reason of the carrier’s failure to furnish it with cars to which it was entitled. In support of that. issue of fact the plaintiff relied on the carrier’s own rule as evidence. That rule, and the carrier’s distribution sheets, showed the number of cars to which the plaintiff, the Ber-wind-White Company, and other coal companies in the district, were each entitled. The evidence further showed that the plaintiff did not receive that number of cars to which by rule it was thus entitled. So that on the trial there was no administrative question as to the reasonableness of the rule, but only a claim for damages occasioned by its violation in failing to furnish cars. Penn. Ry. Co. v. International Coal Mining Co., 230 U. S. 197, 33 Sup. Ct. 893, 57 L. Ed. 1451 [Ann. Cas. 1915A, 315]. The state and federal courts had concurrent jurisdiction of such claim against an interstate carrier without a preliminary finding by the Commission.”

It is clear to us that the cause of action presented in the appellee’s pleadings is one “caused by failure to comply with its common-law duties” on the part of appellant; and, in our opinion, the decision of the issues presented, since the determination of the question of what was the correct rate by the Commission, does—

“not involve the determination of matters calling for the exercise of the administrative powers and discretion of the Commission, or relate to a subject to which the jurisdiction of the federal courts had otherwise been made exclusive.”

Appellee does not insist that the tariff rate of 62 cents “was unfair, unreasonable, discriminatory, or preferential.” On the other hand, prior to the sale of his goods he tendered the amount determined to be due by the Commission, at the rate of 62 cents per hundredweight, which tender was refused by the agent. Nowhere in his pleadings does he attack the rate fixed by the Commission, but, having acquiesced in it, his suit is to recover damages because of the failure of appellant to deliver his goods unless he would pay a greater sum than appellant could legally demand. In our opinion, appellee’s refusal to pay more than the contract rate can have no bearing upon the issue, because if he had tendered the sum due at the rate of 62 cents per hundredweight, it would have been refused. Both the carrier and shipper are presumed to know the correct rate, and the controlling fact is the refusal of the appellant’s agent to deliver unless appellee should pay an amount exceeding 62 cents. Eastern Ry. Co. of N. M. v. Littlefield et al., 237 U. S. 140,35 Sup. Ct. 489, 59 L. Ed. 878; Western & A. Ry. Co. v. White Prov. Co., 142 Ga. 246, 82 S. E. 644. The record does not show that appellee ever submitted the issue of its right to recover damages and the amount thereof to the arbitrament of the Commission. If he had, we apprehend, the Commission would have held as it did in Blume v. Wells Fargo Express Co., 15 Interst. Com. Com’n R. 53, and Lansing-Harris Coal Co., Id. 37, that it had no authority to adjudicate such matters. There is therefore, no question of election of remedies in the case.

Appellant again, on this appeal, insists that this is not a suit for conversion. After a careful review of the pleadings, we must adhere to our former ruling. This is simply a case where the delivering carrier demanded an excessive and illegal freight charge, and, upon the refusal of the shipper to pay it, declined to deliver the property, and sold it for the charges. That is, in brief, the substance of the allegations in the appellee’s pleadings, which also set up the damages resulting to him, and prays judgment for the amount. We are so thoroughly convinced that this is nothing else than a ease of conversion, we shall not attempt to discuss it further, as we deem the question too well settled by the authorities. Donnell v. C. P. Ry. Co., 109 Me. 500, 84 Atl. 1002, 50 L. R. A. (N. S.) 1172, and authorities cited in notes Davies v. Texas Central Railway Co., 133 S. W. 295; Southern Kansas Ry. Co. v. J. W. Burgess Co., 90 S. W. 189; M., K. & T. Ry. Co. of Texas v. C. H. Rines & Co., 37 Tex. Civ. App. 618, 84 S. W. 1092; Isham v. Greenham, 1 Handy (Ohio) 357; Gates v. Bekins, 44 Wash. 422, 87 Pac. 505 ; Briggs v. Boston, etc., Ry. Co., 6 Allen (Mass.) 246, 83 Am. Dec. 626; 4 R. C. L. 837; Bouvier’s Daw Dictionary, 670; 5 Enc. of Law (2d Ed.) 232, 389; 6 Cyc. 474; Brown v. P., B. & W. Ry., 36 App. D. C. 221, 32 L. R. A. (N. S.) 189.

Under the fifth assignment appellant urges the proposition that the court should have directed a verdict in its favor because the evidence shows that the appellant’s agent at Bovina demanded only a small amount in excess of the legal rate, and because such demand was honestly made and without any wrongful intent. The fact remains, however, that because appellee did not pay the small amount demanded in excess of the legal rate, the injury to him was in no degree lessened. On this account the appellant refused to deliver his property, and it was sold for the payment of the small amount of excess, together with the charges legally due. It is not contended that the refusal of the company to deliver the goods was prompted by malice; but, where property is sold by a carrier or bailee for the payment of an amount not due, the law conclusively presumes a wrongful intent.

“ ‘Conversion’ is any distinct act or dominion, wrongfully exerted over another’s property in denial of his right or inconsistent with it.” Baldwin v. G. M. Davidson, 143 S. W. 716.
“In determining whether there has been a conversion, the intent with which the defendant acted is, as a general rule, immaterial.” 28 Enc. of Law (2d Ed.) 681; Williams v. Deen, 5 Tex. Civ. App. 575, 24 S. W. 536.

According to the weight of authority, good faith on the part of the defendant, in an action of trover and conversion, cannot be shown as a matter of defense. If exemplary damages are claimed, it is admissible upon that question alone in mitigation thereof. White v. Yawkey, 108 Ala. 270, 19 South. 360; Imhoff v. Richards, 48 Neb. 590, 67 N. W. 483; B. & O. Ry. Co. v. O’Donnell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579; West Jersey Ry. Co. v. Trenton Car Works, 32 N. J. Law, 517.

This is not a case of the mere detention of property, but, as heretofore stated, the pleadings and evidence show a sale under an illegal claim. Hence the language quoted by appellant from 38 Cyc. 2010, and 13 Enc. Ev. 81-83, have no application. The rights of the parties do not turn upon the motive of the agent. The intent of the company was manifested by his act, which is ratified and affirmed by the sale of the property.

Therefore, it would have been reversible error if the court had directed a verdict, as is contended should have been done under the fifth and sixth assignments.

The seventh assignment is:

“The court erred in refusing to submit to the jury the requested issue as to whether or not defendant’s agent at Bovina, when informed by Porter that he desired the car forwarded to Mel-rose, offered to rebill and send the car forward, letting the charges follow so that Porter could pay the legally chargeable rate for transporting through from Fletcher to Melrose and receive the car at Melrose, because the evidence showed that the defendant’s agent did so offer; and, upon a finding that he did, the law would have required a judgment to be rendered in favor of the defendant.”

The refusal of appellee to enter into a new contract with the agent at Bovina as to the rates from Fletcher to Melrose does not militate against his right to recover for conversion of his property at Bovina. He was under no legal duty to accept the proposal. If the issue had been submitted and found in favor of appellants, it could have had no bearing upon any issue in the case save that of intent, which we have just held immaterial.

It is urged under the eighth assignment that the court erred in admitting the award of the Interstate Commerce Commission. This award was the result of an application before the Commission for the determination of the question of a proper rate applicable to this shipment. The parties to this suit were also parties to that proceeding; and, under the law, the findings of the Commission were admissible evidence, and are made prima facie evidence of the legality of the rate. The record does not bear appellant out in the statement that the court made the finding of the Commission as to the rate conclusive; on the contrary, it is shown that various rate sheets were offered in evidence. This assignment is also overruled.

The propositions urged under the ninth assignment in substance, are that ap-pellee should not have been permitted to recover the value of the chattels belonging to G. H. Porter, who died in New Mexico, where he was residing, pending the suit, and prior to the time of the trial. Appellee alleged that since bringing the suit G. H. Porter had died intestate, in New Mexico, on the 25th day of December, 1908, unmarried and without issue, and leaving as his heir's at law his father and mother; that said father and mother had conveyed to plaintiff the interest of their deceased son; that there is no administration pending in this state and no-need of any. The appellant demurred because the pleading failed to show that there had been such an assignment or conveyance to him of the interest of G. H. Porter as confers upon appellee the legal right to maintain an action for the loss of the property belonging to G. H. Porter. The evidence shows that G. H. Porter died on his claim in New Mexico, December 25, 1908, without issue, and left surviving him his father and mother, one brother and one sister. The court admitted in evidence, over appellants’ objections, a transfer by the father and mother of G. H. Porter of all their interest in the goods owned by G. H. Porter to appellee. The evidence shows that the right of action for the interest of G. H. Porter was based upon the loss of'personal property; as such it passed at his death to his mother and father, under the laws of Texas; and, in the absence of proof to the contrary we must presume that they would inherit it under the laws of New Mexico. It was not necessary for the plaintiff to allege that there was no administration upon the decedent’s estate in New Mexico. An administrator appointed in New Mexico could not maintain a suit in Texas. Terrell v. Crane, 55 Tex. 81. Under article 3209, Vernon’s Sayles’ Civil Statutes, administration proceedings should have been instituted in Texas. More than four years elapsed since the death of G. H. Porter, and it is held in Loyd v. Mason, 38 Tex. 212, that after the expiration of four years from the death of a party, the presumption is that there are no debts against his estate, or, if any, that they are barred by limitation. It is further held that the property belonging to him is presumed to have gone into the possession of the persons entitled to receive it. The law does not require the appellee to allege that there was no administration in New Mexico. Hynes v. Winston, 54 S. W. 1069.

The tenth assignment, that the verdict of the jury is not supported by the evidence, and is contrary to the law and facts, is overruled. The fact that appellee and his attorney purchased most of the property at the sale is of no importance in this appeal.

The eleventh assignment, insisting that the cause of action was barred by limitations, is without merit.

Mrs. Lehman testified by deposition that before moving to New Mexico she and her brother, G. H. Porter, lived with their parents near Fletcher, Okl., and that she helped G. H. Porter pack his property included in the shipment; that it was packed in barrels, boxes, and sacks. She said:

“I can enumerate the various articles of his property which were packed or prepared with my assistance for such shipment, and here is a list of as many of his articles as I can remember” (referring to Exhibit B, attached to the petition).

On cross-examination she said:

“I was present and helped pack the goods and load the wagon with the goods that were shipped from Fletcher to Bovina, testified about in answer to the direct interrogatories, and I testified from what I did and saw myself.”

This testimony, with more to the same point, we think shows this witness fully qualified to testify as to the identity of the property. She did not testify as to its value.

The remaining assignments are disposed of by what we have heretofore said, and, finding no reversible error, the judgment is affirmed.
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