author: DAVIDSON, P. J.

text:
    STAUFER v. STATE.
    (No. 5283.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Vagrancy &wkey;>3 — Fortune Telling — Sufficiency of Evidence — Advertisements.
    In prosecution for vagrancy under Pen. Code 1911, art. 634, evidence held insufficient to show that defendant was advertising as a clairvoyant, or as a prophet of coming events, or of having supernatural knowledge with respect to either present or future conditions, happenings, or events.
    2. Vagrancy <&wkey;i — Fortune Telling — Construction of Statute — “Vagrant.”
    To be a “vagrant” under Pen. Code 1911, art. 634, making “all persons who advertise and maintain themselves in whole or in part as clairvoyants,” etc., vagrants, a party must advertise himself as a clairvoyant, etc., for the purpose of maintaining himself in whole or in part.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vagrant.]
    3. Vagrancy <&wkey;>l — Fortune Telling — “Vagrant.”
    A cabinet workman supporting himself by such work, and who was a regular certified commissioned Spiritualist, teaching and lecturing on Spiritualism, was not a “vagrant” under Pen. Code 1911, art. 634, even though he acted as a medium and charged for spiritual consultations, unless he was advertising himself as a clairvoyant or prophet of coming events or of having supernatural knowledge for the purpose of maintaining himself in whole or in part.

      Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    S. W. Staufer was convicted of vagrancy, and lie appeals.
    Reversed and remanded.
    Wrn. F. Robertson, of Dallas, for appellant. .
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted under an indictment, omitting formal parts, which charged he was a vagrant, in this, that he “did then and there unlawfully advertise and maintain himself as a clairvoyant, foreteller of future events, and as having supernatural knowledge with respect to present and future conditions, transactions, happenings, and events, contrary,” etc.

The article under which he was tried is 634, Branch’s Ann. P. C., denouncing vagrancy. The particular section in that act under which this indictment was framed reads as follows:

“All persons who advertise and maintain themselves in whole or in part as clairvoyants or foretellers of future events, or as having supernatural knowledge with respect to present or future conditions, transactions, happenings or events.”

It would seem from a reading of this statute that as prerequisite to vagrancy the person must advertise and maintain himself in whole or in part as a clairvoyant or fore-teller of future events, or he must advertise and maintain himself as having supernatural knowledge with respect to present or future conditions, transactions, happenings, or events. This being the statute, the evidence must correspond with and support the allegations in the indictment. These allegations did follow the statute. The evidence with reference to the advertisement is about as follows:

Marie Barnett testified as follows:

“There was a little sign in the room, in the hall, which said: ‘Spiritual consultation thirty minutes fifty cents; more than thirty minutes one dollar.’ ”

She also testified:

“Staufer gave me a little card, business card, reading as follows: ‘Phone Bell Haskell 7098. D. W. Staufer, Spiritualist. Private appointments by phone. Public Message Service every Friday night 8 o’clock, 505 Alcalde Street, Dallas, Texas.’ ”

Upon this it seems the state rested its case. There seems to have» been no other advertisement introduced in evidence. These do not show that appellant was- advertising as a clairvoyant, or as a prophet of coming events, or of having supernatural knowledge with respect to either present or future conditions. happenings, or events. As the advertisement is a necessary prerequisite to constitute the party a vagrant, the state must show in some way that he so advertised. The statute does not seem to contemplate that a man might be a vagrant under this peculiar phase of the law unless he had advertised as set out by the wording of the statute. It is thought to be a safe conclusion that a party would not be a vagrant without so advertising, and for the purpose of maintaining himself in whole or in part.

We are of opinion that the evidence does not justify the conviction. The evidence for the defendant is that he was a regular certified commissioned Spiritualist to teach the doctrine of such faith and organization, and that he did lecture, and may have acted as a medium. All this may be true; yet, unless he advertised for the purpose of making money out of it and for the purpose denounced by the statute, it would not constitute him a vagrant. The evidence seems to be un-controverted that he was a cabinet workman, and by such means supported himself. The only evidence that undertook to bring him within the statute from the pecuniary standpoint was that two witnesses testified they visited him at his room, and he charged one of them 50 cents and the other $1. This, however, would not constitute him a vagrant unless he was advertising himself as denounced by the statute.'

As the record presents itself, we are of opinion that the state has failed to make a case; wherefore the judgment will be re versed, and the cause remanded.
      —iT?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    DAVIS v. STATE.
    (No. 5336.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Criminal Law &wkey;>1114(2) — Bill on ' Exceptions — Facts Showing Error.
    Where neither of appellant’s two bills of exceptions set out fact showing error in ruling of trial court, the same cannot be considered on appeal.
    2. Homicide &wkey;>234(l) — Murder—Evidence-Sufficiency.
    Evidence held insufficient to show that defendant shot, or participated in shooting, resulting in death of deceased.
    3. Homicide <&wkey;7 — Murder — Essential Proof.
    In prosecution for murder, two things were necessary to make out defendant’s guilt, namely, death of deceased, and the criminal connection of defendant therewith.
    4. Criminal Law <&wkey;59(3) — Defendant’s Connection with Offense.
    Mere presence of an accused when an offense is committed will not make him guilty, since there must be some character of guilty connivance or participation.
    5. Criminal Haw ' <&wkey;556 — Confession as Binding on the State.
    In prosecution for murder, where the state introduced entire confession of accused, it was bound by statement therein, unless there was some other evidence upon which jury might base a rejection of statement.
    6. Criminal Raw <&wkey;1159(2,3) — Verdict-Review.
    While ordinarily verdict will not be disturbed when evidence is merely conflicting, yet, where there is no substantial evidence supporting conviction, court on appeal will not hesitate to so decide.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    J. L. Davis was charged with murder, and, having been convicted, appeals.
    Reversed and remanded.
    C. M. McKinnon, of Livingston, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was charged in the district court of Polk county with the offense of murder, and upon his trial was convicted and given 15 years in the penitentiary.

J. H. I-Iawkins, a colored brakeman, was shot and killed at night while standing on the engine gangway of a moving train in Polk county, Tex. Several shots were fired from the dirt road running parallel with the railroad track and about 30 steps distant therefrom. One struck the brakeman, killing him, and one struck the caboose. The bullet extracted from the body of deceased was a 38-ealiber, as also was the one gotten out of the caboose. It was proven without ■ contradiction that appellant owned a 38-cali-ber pistol; that on the night of the homicide he, with Tom Banks and Garnett Davis, two other negroes, were walking along said dirt road not very far from the place of the shooting, only a short time before the same. Also that some days after the shooting appellant and the other two negroes were arrested, placed in separate cells in the jail, and by; various methods of persuasion, lasting until 4 o’clock in the morning, all three were induced to make “voluntary” statements, which were reduced to writing. Appellant seems to have made his early in the night, but the other two were more obdurate, and their willingness did not manifest itself until repeated visits from the officers with reports to each suspect as to what the others had said. A significant statement of one of them appears in the testimony of the witness Holliday, the constable. We give his statement as follows:

“I do not remember what time it was I finished getting these statements, and I do not think it was as late as 4 o’clock in the morning. I was not up all night getting those voluntary statements. All of them kicked in in 30 minutes of one another after this negro told me about it. I says, ‘John L.,’ this nigger, told it. That negro there was trying to put it on Banks first, and that threw them two boys — the two Davis boys — that would throw them in the clear and put it off on Tom, and Tom was the last to kick in; I told him, I says, ‘All those niggers downstairs done told all about it,’ and he asked me what they said, and I told him what they said; he went ahead and told me about Garnett having the gun, and both of them standing side by side when they were doing the shooting, when he aimed at the engineer. I do not mean that Davis told me that, but that Tom told me that.”

The written statement of the appellant made the night of the arrest, to the officers, was introduced in evidence by the state over appellant’s objection. Said statement is as follows:

“The state of Texas, county of Polk. The following is a voluntary' statement of John L. Davis, made to me, John McDoed, on this the 3d day of October, A. D. 1918, after having been duly warned by me, John McLoed, that he did not have to make, any statement at all, and that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made: On Sunday night September 29th, in company with Tom Banks, Jr., and Garnett Davis, we were walking along the dirt road from New Willard to Leggett, Tex., and a short time after leaving New Willard we saw the light of a train on the H. E. & W. T. track coming south, and just before the engine reached us, Tom Banks said, ‘Less shoot into that train,’ and I told him not to do it, but he went on a little farther, and did shoot at the engine as it passed, and just as soon as the first shot was fired I turned and run off into the woods, and as I was running I heard either one or two more shots, and about the time the caboose passed there was two more shots fired. I saw Tom shoot into the engine, but I did not see him shoot into the caboose; I did not see Gar-nett Davis shoot any, but I heard him say that he had shot at the train, and I know-there was two different guns fired, for I could tell the difference in the sound of them, and I know that Garnett Davis took some empty shells out of his pistol just after they caught up with me in the woods. Just after we got back into tbc public road we passed some automobiles, and Tom Banks said, ‘Less shoot them - cars,’ and I said ‘No, for I think you all have shot enough or too much.’ We then went through the wire fence onto the* railroad track, and walked along it to where Garnett Davis turned off to go home, and Tom and I went on to Leggett together. I saw Tom early next morning, and he told me that a man had been killed on that train, and asked me not to say anything about it, and I also saw him again that evening, and he asked me again not to say anything about the shooting into the train the night before. I told him I would not say anything about it. The gun Tom Banks was shooting that night belonged to me, and was' a 38-ealiber Oolts gun, and Garnett was shooting a 45-caliber gun. .LSigned] John L. Davis. Witnessed by E. W. Young. V. B. Hinson. R. B. Davis.”

Appellant presents but two bills of exceptions, but as neither of them contains or sets out any facts therein showing error in the ruling of the trial court, same cannot be here considered by us.

There is but one question presented by the record, and that is, the sufficiency of the testimony to sustain the verdict

The state itself introduced the statement of appellant made to the officers after the homicide, not only as to the fact that it was his pistol with which part of the shooting was done, but also showing that he remonstrated with the others when Banks said, “Dess shoot into that train,” and that when Banks did fire, that the appellant turned and ran off into the woods, and that he was still running when the other shots were fired; also that there were two guns fired; that he did not see Garnett Davis shoot, but heard him .say shortly thereafter that he had shot at the train; that when Davis and Banks overtook the appellant shortly after the shooting, Davis took some empty shells out of his pistol. It will be noted that appellant introduced no testimony, so that his guilt is wholly dependent on the testimony of the state.

Two tilings are necessary to make out appellant’s guilt; that is, the death of the injured party, and the criminal connection of appellant therewith. The first is conceded; as to the last, three facts appear in evidence independent of appellant’s own statement, to wit: First, the presence of the accused when the shooting took place; second, that it was done with a pistol of the same caliber as his own; third, that when arrested he first denied knowledge of the shooting. These, we believe, are the only guilty facts in the record.

Mere presence of an accused when an offense is committed will not make him guilty; there must be some character of guilty connivance or participation. In order to show some character of guilty connection, and that his pistol was used, the state used the entire confession and statement of the appellant above set out. Just why it did so we are not able to perceive, but having introduced the same we think the state is bound by said statement, unless there is some other evidence in the case on which the jury might -base a rejection thereof. In other words, the state might have introduced only that part of appellant’s statement relative to the pistol, leaving to him, if he saw fit, to introduce the whole statement or so much thereof as was relevant to that part put in evidence by the state; but instead of following this course the state introduced the whole statement. If its purpose in placing this in the record was to show that appellant used the pistol, it wholly failed because the state-mentK“the gun Tom Banks was shooting belonged to me, and was a 38-caliber Oolts gun,” makes it plain that appellant’s gun was not being used by him, but by Tom Banks. Appellant’s denial to the officers of knowledge of the shooting did not continue long after his arrest, as appears from their statements, and the reason of his refusal at first is disclosed in said statement by the fact that when Banks discovered that his reckless shooting had resulted in the death of a human being he came to appellant and asked him not to tell on him, and appellant promised that he would not do so.

We have searched the record carefully to find if there was any kind of evidence that more than one person shot, or that more than one pistol was fired, and the only thing we are able to find is the significant statement of Tom Banks, quoted above, after being told by the constable that “those negroes downstairs have done told all about it, and he asked me what they said, and I told him what they said, he went ahead and told me about Garnett having the gun, and both of them standing side by side when they were doing the shooting, when he aimed at the engineer.” This statement of Banks is in entire accord with the statement of the appellant, supra, to wit, that Garnett was shooting as well as Banks. It will also appear that no reference is anywhere made to appellant’s having participated with the other two in any manner in the shooting. As we view the record, it wholly fails to show any guilty connection of appellant with the shooting, but on the contrary the statement introduced by the state shows that he remonstrated with Banks, and when Banks fired the first shot that appellant ran away and did not return.

When evidence is merely conflicting, we will not ordinarily disturb verdicts of juries; but when we are unable to find any substantial evidence supporting the conviction, we will not hesitate to so decide. This is a strong case of evil association, but the state’s own evidence makes appellant’s guilt so questionable that this court is hot willing to allow the verdict to stand.

The judgment of the lower court is accordingly reversed, and the cause remanded for another trial.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: FLY, C. J.

text:
    WOLF v. GARDNER.
    (No. 6177.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1919.)
    1. Appeal and Error <&wkey;1039(2) — Harmless Eeeoe — Pleading—Conclusions.
    It is no ground for reversal that the petition contains conclusions of law from facts pleaded therein, if the facts were sufficient to constitute a cause of action, and the conclusions were deducible from such facts.
    2. Appeal and Eeeoe &wkey;>263(l) — Instructions to Juey — Effect of Failure to Except.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art, 2061, the ruling of the court in giving, refusing, or qualifying instructions will be regarded as approved, unless excepted to in the manner provided by law.
    'Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Rose M. Gardner against Ed Wolf. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. Harris and Ernest Fellbaum, both of San Antonio, for appellant.
    Nelson Lytle and Chambers & Watson, all of San Antonio, for appellee.
   FLY, C. J.

This is a suit for damages resulting from a collision between two automobiles, instituted by appellee against appellant. Appellee alleged that the car in which she was riding from Bandera to San Antonio was on the right-hand side of the road and moving at the rate of about 8 or 10 miles an hour, “and was being driven and operated in a careful and prudent manner, in full compliance with law, and all traffic rules, regulations and customs”; that the collision occurred about 11 miles from San Antonio, when appellant approached from the opposite direction in a car, and he “was driving and operating same in a negligent and reckless manner; was driving at a rate of speed of about 30 or 35 miles an hour; was driving on the left-hand side of the road, contrary to law, traffic regulations, rules, and customs; and was driving and operating his car in such a negligent, reckless, and careless manner as to endanger the lives, limbs, and persons of other persons passing along on or using said public highway and public road where the collision occurred.” It was further alleged that appellant ran into and injured appel-lee. The cause wras submitted to a jury on special issues, and on the answers thereto judgment was rendered in favor of appel-lee for $750. There is no statement of facts.

The jury found that appellant was guilty of negligence in operating his car, which was the proximate cause of the injuries to appellee, and outside of any conclusions of the pleader as to the acts of appellant being in violation of law and the acts of appellee being in conformance with law, the petition contained allegations of negligence that fully justify ¡the verdict. If everything that was pleaded which appellant excepted to as conclusions had been eliminated, there was a case of negligence alleged and we must presume was proved. The conclusions, however, were properly deducible from the facts pleaded, and would not be ground for reversal. Railway v. Kirk, 62 Tex. 227; Wingfield v. Hackney, 95 Tex. 490, 68 S. W. 262. The first, second, and third assignments of error are overruled.

The record fails to indicate that any objections were urged to the charge of the court or any special charges requested. “The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing articles.” Vernon’s Ann. Civ. St. 1914, art. 2061. There is no bill of exceptions in the record. The fourth assignment Is overruled. ,

The judgment is affirmed.


author: GRAVES, J.

text:
    ANDRLE et al. v. FAJKUS.
    (No. 7666.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 15, 1919.
    Rehearing Denied March 13, 1919.)
    1. Appeal and Eeeoe &wkey;»921 — Waiver of Juey Trial — Presumption.
    • Where judgment, reciting that upon hearing the court decided that there was no question to be submitted to the jury, is the only evidence before the court on appeal of what the actual' proceedings were, the conclusive presumption arises that defendants waived any right to a jury trial; no exception having been taken to-court’s action.
    2. Appeal and Error <&wkey;921 — Judgment— Conclusiveness.
    Where judgment is the only evidence before the court on appeal as to actual proceedings, mere showing that prior to actual trial an affidavit of inability to provide for a jury fee had been filed would not impeach the judgment, since every reasonable presumption must be indulged in its favor.
    3. Appeal and Error <&wkey;662(2) — Judgment— Conclusiveness.
    Where judgment, reciting that upon hearing of the pleadings, proof, and argument the court decided that there was no question to be submitted to the jury, is the only evidence before the court on appeal, contention that no evidence was heard by the court below at the time of or during the term at which judgment was rendered cannot be sustained.
    Error from District Court, Fayette County; Frank S. Roberts, Judge.
    Trespass to try title by Peter Fajkus against Yineeneije Andrle and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    John P. Ehlinger, of Da Grange, for plaintiffs in error.
   GRAVES, J.

This writ of error is sued out for the purpose of having reviewed a judgment of the court below, which in part contains these recitals:

“Be it remembered, that on this the 18th day of December, 1916, at a regular term of this court, the above numbered and styled cause came on for hearing, and the parties and their attorneys upon both sides appeared and announced themselves ready for trial. Upon hearing of the pleadings, proof, and argument of counsel, the court decided that there’ was no question to be submitted to the jury, and proceeded to find that the law and the facts are with the plaintiff, and that the plaintiff is entitled to recover the lands in controversy and assesses no damages.”

Then follows an adjudication of the title and possession of the land involved to defendant in error, who, as plaintiff, had brought the suit in trespass to try title against plaintiffs in error.

The cause is here without a statement of facts or any bills of exception. While their distinguished counsel has ably presented to this court the contention that error prejudicial to the rights of plaintiffs in error was committed below in two respects: First, in refusing them a trial of the cause before a jury; second, in rendering judgment against them without at that time or term of court hearing any evidence — it is not perceived, in the abbreviated condition of the record before us, how it can be sustained. While there does appear in the transcript copy of an affidavit by plaintiffs in error of their inability to pay or secure a jury fee, and of an entry on the clerk’s civil docket showing it to have been filed some time before the date of the judgment there is nothing whatever even indicating that the court in fact denied them a jury trial, and that they took an exception to that action. Upon the contrary, the conclusive presumption arising from the above-quoted recitals in the judgment is that, by so appearing both in person and through attorneys, announcing themselves ready for trial, and at that time submitting the pleadings, proof, and argument of counsel to the court, they waived any right to a jury trial they may theretofore have placed themselves in position to claim, and will be held to have acquiesced in the determination of all issues by the court. Especially must this result follow since no exception was taken to the court’s action in so doing. The judgment as entered, which imports verity, is the only evidence before this court of what the actual proceedings were. Manifestly, the mere showing that, some time prior to the actual trial before the court without a jury, an affidavit of inability to provide for a jury fee had been filed would not impeach it, since every reasonable presumption in its favor must be indulged. Note 99, Judgment, p. 2512, vol. 3, Vernon’s Sayles’ Civil Statutes, and authorities there collated.

The same principle applies with even greater force to the assertion made here that no evidence was heard by the court below at the time of or during the term at which its judgment was rendered, when the judgment itself recites the contrary.

It is not deemed necessary to indulge in extended discussion of the matter.

No other question being presented, and no error being pointed out, the judgment is affirmed.

Affirmed.
      —.TT'nr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indéxes


author: COBBS, J.

text:
    LASATER v. PREMONT.
    (No. 6157.)
    (Court of Civil Appeals of Texas. San Antonio
    March 19, 1919.
    Rehearing Denied April 16, 1919.)
    1. Exchange of Property <§=»5 — Rights or Parties — Partial Rescission.
    Defendant in undisputed possession of tract received from plaintiff on agreement for exchange of lands cannot deny existence of the agreement and retain the benefit therefrom and hold both his own and plaintiff’s tracts.
    2. Estoppel <®=»66 — Equitable Estoppel-Possession of Land.
    Defendant’s possession of tract allotted to-him under agreement to partition land held in common which agreement he recognized to the extent of going into possession does not put in motion for him the doctrine of equitable estop-pel against the plaintiff, whose lands he so seized.
    3. Estoppel <§=^66 — Title—Denial.
    One who takes possession of property in subordination of another’s title is ordinarily es-topped as against that other to deny that title.
    4. Frauds, Statute of <®=>138(3) — Implied-Promise — Recovery for Property Transferred. ' ~
    Where property has been transferred in consideration of an oral promise which the promisor refuses to perform, the law implies a promise on which an action will lie for the value of the property so transferred, or, in equity, the land itself may be recovered.
    Appeal from District Court, Brooks County ; J. T. Canales, Special Judge.

      Suit by Charles Premont, independent executor of the estate of Claudio Solis, de-eeased, against Ed. C. Uasater. Judgment for plaintiff, and defendant appeals. Affirmed.
    C. C. Wightman, of Falfurrias, and G. C. Robinson, H. S. Bonham, and Dougherty & Dougherty, all of Beeville, for. appellant.
    W. R. Perkins, of Alice, J. E. Leslie, of McAllen, and James B. Wells, of Brownsville, for appellee.
   COBBS, J.

Appellee filed this suit against appellant to compel the specific performance of an alleged oral agreement to exchange land, or, in the alternative, for recovery of land and damages. We find in the transcript plaintiff’s original, first 'amended, and second amended original petitions. The pleadings are very lengthy, but, condensed, plaintiff sets out an oral contract for the exchange of lands. It is alleged on or about May 21, 1912, and for more than ten years prior thereto, Claudio Solis, deceased, was seized and possessed and in peaceable actual possession and adverse possession, under actual inclosure, etc., of a certain tract of land containing 1,36S.65 acres described by métes and bounds, not necessary here to set out at length, out of Palo Blanco Ramireno grant, originally granted by the state of Tamaulipas, republic of Mexico, to Matías Ramirez, in the year A. D. 1830, and subsequently confirmed and patented to Isidoro Guerra by the state of Texas, by virtue of patent No. 7, vol. 18, dated the 12th day of February, 1809, in accordance with act of Legislature approved February 10, 1852.

It is averred that on said 21st day of May, A. D. 1912, Jas. T. Maupin, the alleged agent of Ed. C. Lasater, entered into an agreement whereby Ed. C. Lasater would take possession from and thenceforth hold and forever possess and enjoy the possession and fee-simple title of 848.4 acres off and out of the southern portion of the above-described 1,-368.65 acres of land of the said Claudio Solis, deceased, described by metes and bounds out of the same grant. It was agreed that Ed. C. Lasater would convey’ to Claudio Solis, deceased, and place him in possession of the same number of a res of land lying immediately north and west and adjoining the lands of the said Claudio Solis, who was to ever thereafter hold, enjoy, and possess the same in fee simple. It was further agreed, that neither party should question the other’s title; that at the time of making the proposed exchange neither party had surveyed the land to be exchanged, but as a part of the consideration of the said parol agreement to exchange the land Ed. C. Lasater was to cause each tract to be surveyed so that each party could within a reasonable time take possession of his particular tract, and Lasater immediately employed a surveyor to survey same and write field notes thereof; that the surveyor at once surveyed the S48.8 acres of land owned l y Claudio Solis, deceased, for Lasater, who immediately fenced and went in possession of same under said contract; that said surveyor surveyed the Lasater 848.8 acres for Claudio Solis, deceased, but that he refused to deliver said field notes to appellee and refused and refuses to permit him to go in possession thereof, whereupon appellee demanded to be restored to his possession of the land that Lasater went into possession of.

It is alleged that it was agreed at the time of making trade that Claudio Solis, deceased, was to erect fences round the land he was to receive from Lasater, but Lasater refuses to permit him to erect fences or go in possession thereof.

Plaintiff alleged the reasonable rental value of the 848.4 acres to be 15 cents per-acre.

Appellant filed exception to the pleading: First, on the ground that the alleged contract, not being in writing, was in violation of the statute of frauds, and not enforceable ; second, without equity, etc.; and, third, without equity and mutuality. He answered by denying agency of James T. Maupin, but it is not sworn to. He further answered that Claudio Solis, in his lifetime, never performed the obligations on him, but repudiated same and brought vexatious suits against him, causing him to pay large sums of money in defense thereof, and in such suits denied the existence of such agreement, and breached the contract in his lifetime. He pleaded the statute of four years .against the suit for specific performance of the contract and plea of not guilty against the recovery of the land.

The evidence tends to establish the oral contract for the exchange of lands. Lasater caused the two tracts to be surveyed as agreed, and field notes of each tract made as agreed. -

The land was held in common between Claudio Solis, E. C. Lasater, and others at time of the agreement. The verbal agreement was made and intended' as a partition between the parties. In pursuance of that agreement Lasater took possession of the portion he was to receive, to wit, the 848.8 acres described in plaintiff’s petition off and out of the southern portion of the 1,368.65 acres of the land of said Claudio Solis, giving the metes and bounds thereof as caused to be surveyed and segregated by said Las-ater.

In this partition Ed. C. Lasater was to survey, have field notes made, and place Solis in possession of the same number of acres of land- of said defendant, lying immediately north and west and adjoining the lands of Claudio Solis containing 848.8 acres. Ed. C. Lasater refused to further comply with his part of the agreement. I-Ie caused the land to be surveyed and refused ¡ to deliver to Solis his field notes. ¡

While it was alleged that the parties were to make conveyances to the land, the proof does not establish that there was to be any written conveyance. Nor do we think it was necessary in this verbal partition that there should be. Lasater partly performed the contract, fenced his part of the land, went in possession thereof, has used and enjoyed it ever since, and he has enjoyed 'and used the portion he was to put Solis in possession of, with field notes, since then, but refuses to j>ut Solis or his representative in possession of his land.

The agreement between the .parties was that no question of title was to be raised between them.

On the 21st day of June, 1912, Claudio Solis filed a suit in Brooks county, to which he swore, seeking to recover the land from appellant, in which he averred, among other things, “The defendant, Ed. Lasater, disregarding the legal right and legal title of plaintiffs in and to the said premises, and without the consent, but over the protest of the said plaintiffs, did, without color of title or title, or right or color of right, unlawfully enter and trespass in and upon your petitioner’s lands as above described,” etc., and prayed for an injunction to prevent Lasater from fencing the land and for its recovery as in an action in trespass to try title. Notices were issued, and a hearing was had by the court on the application.

The hearing was held in Corpus Christi, ■ and Ed. C. Lasater filed a full sworn answer thereto, and, among other things, said “that this defendant did, on or about the 1st day of May, begin the construction of said fence, which, as aforesaid, was constructed according to the said agreement of partition so made as aforesaid with the said Claudio Solis,” and further on pleaded, “and all that he has done or is doing is in keeping with the agreement as aforesaid, which was made and entered into in good faith by all the parties thereto.” Upon the hearing the injunction was refused. This record does not show what became of that suit.

The position of the parties since that hearing has changed. Appellee now seeks specific performance and in the/ alternative for the land. The appellant defends upon all the grounds, denies the agreement, and sets up the plea of not guilty, and in effect seeks to hold both tracts of land. As appellant went into possession upon an alleged agreement that neither party was to set up any question of title against the other, we put the consideration of that question out of sight, in so far as it affects the land.

From the view we take of this case, we will only consider the amount of damages assessed against the defendant, as appellee only pleads the statute of limitations of four years against damages growing out of the breach of the contract, and pleads no statute of limitations for rents for the use and occupation of said lands.

Plaintiff prayed for the rental value of said 848.8 acres of land, alleged and proven to be worth 15 cents per acre. The trial court held: First, that plaintiff was entitled to recover “from the defendant the sum of $752.90, with interest at the rate of 6 per cent, from date of the judgment until paid, the same being the reasonable rental value of the lands from May 21, 1912”; second, and adjudged to plaintiff the recovery of the 848.8 acres of land. The court further adjudged that “Ed. 0. Lasater do have and recover from the plaintiff, Ohas. Premont, independent executor of the estate of Claudio Solis, deceased, the fences constructed by Ore defendant, * * * provided the defendant shall have 60 days from the date within which to remove the same,” and, if said fences are not so removed, the plaintiff recovers same from Lasater. The court adjudged that each party recover his costs against the other.

We have set out the judgment of the court as showing the effort to adjust the equities between the parties, and under the circumstances do not feel inclined to disturb it, since it is supported by the evidence introduced.

This case is like one who is a purchaser in possession of purchased property contracted for, and is not entitled to rescind without restoring or offering to restore possession of the land to the vendor, on the principle of one who seeks equity must do equity, but the one receiving property, while in undisputed possession under an agreement of exchange, cannot on the one hand, refusing to perform such an executory contract, deny the existence of such agreement, be permitted to receive the benefits thereof, and hold both tracts, nor, while so in possession, dispute the title of appellee, and keep his land. Lasater’s possession of said property and his holding, he having been placed in possession thereof by an agreement he recognized to the extent of gaining possession, but repudiated on the ground such a contract never existed, does not .put in motion for him the doctrine he asserts of equitable estoppel against him whose lands he so seized. One who takes possession of property in subordination of another’s title is ordinarily estopped as against that other to deny that title. Ency. of Law & Proc. vol. 16, p. 805.

Where property has been transferred ( in consideration of an oral promise, which the promisor refused to perform, the law implies a promise on which an action will lie for the value of the property so transferred, or, in equity, the land itself may be recovered. 20 Cyc. 298, 299.

We have examined all the assignments of error, and do not believe the court committed any reversible error, and do believe that substantial justice lias been reached between the parties by the judgment of the court, and therefore overrule all the assignments of error.

The judgment is affirmed.
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author: BOYQE, J.

text:
    KNIGHTS AND LADIES OF SECURITY v. RUSSELL.
    (No. 1517.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 2, 1919.)
    1. Insurance <&wkey;723(6) — Benefit Insurance —Forfeiture—“Liver Disease.”
    In action on benefit certificate, falsity of statement in application that applicant had not been treated by a physician for “liver disease” would not bo established by showing that applicant had been treated for “biliousness” when he had a “bilious attack,” as' a “bilious attack” from which applicant completely recovered would not necessarily be a “liver disease,” as that term was used in the application.
    2. Insurance &wkey;>815(4) — Benefit Insurance —Í )efenses — Pleading-.
    Defendant beneficial association cannot invoke breach of warranty involved in alleged misrepresentation in application of member, where such breach is not pleaded.
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by Nellie Smith Russell against the Knights and Ladies of Security. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Chauncey & Davenport, of Wichita Falls, for appellant.
    T. F. Hunter, of Wichita Falls, for appel-lee.
   BOYQE, J.

Appellee recovered in the trial court judgment against appellant on a benefit certificate issued by appellant on the life of her husband. It is contended on this appeal that tlms judgment was erroneous because of the falsity of the following representations (which by the terms of the policy became warranties) in the application for insurance: First. That the applicant had never had, or been informed by a physician that he had, or been treated by a physician for, la grippe or liver disease. Second. That contained in the negative answers to these questions: “Do you drink wine, spirits, or malt liquors? Have you been intoxicated during the past year?” Third. That the applicant had not consulted professionally or been treated by a physician or surgeon within the past five years.

The evidence in support of the first contention is not, in our opinion, so conclusive that the question did not become an issue of fact. A physician testified at first unqualifiedly that several months prior to the making of the application he had treated the applicant for “la grippe liver, complications.” In other portions of his testimony, however, he -shows that defendant was not confined to his bed; that the giving of the medicine on this occasion may have been incidental to his waiting on the sick daughter of the deceased; and that it may have been for “biliousness.” The “bilious attack,” as he describes it, from which he said deceased completely recovered, would not necessarily be a “liver disease,” as that term is used in the application. The Homesteaders v. Stapp, 205 S. W. 745. When the- entire testimony of this physician is considered in connection with the testimony of appellee, it is even a matter of uncertainty sufficient to present an issue of fact as to whether he treated the deceased at all prior to the date of the application.

While the testimony as to drinking of intoxicants by deceased may have conclusively shown that he had at times drunk and became intoxicated, it is not conclusively shown that he was intoxicated within the time mentioned in the question, and the evidence tends to show that he had quit drinking some time prior to the date of the application.

Appellant did not plead the breach of warranty involved in the alleged misrepresentation in the application referred to in the third contention above stated. The first representation, referred to, as to disease and treatment therefor, was entirely distinct from the representation as to consultation with a physician, and the pleading of the defendant only refers to the first. Also, as we have already stated, the evidence is not conclusive that deceased was attended by a physician within the time stated.

The judgment of the trial court will be affirmed.
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author: WALKER, J.

text:
    TEXAS & N. O. R. CO. v. PIPKIN.
    (No. 427.)
    «(Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1919.
    Rehearing Denied March 19, 1919.)
    1. Continuance <&wkey;26(6) — Absent Witness —Diligence.
    Court properly refused continuance on ground of absence of witness, where trial was held almost three years after original petition was filed, and witness was not subpoenaed until two days before trial, and no explanation/was given for delay.

      2. Continuance <&wkey;17 — Time to Secure Copy op Statute^Diligence.
    Court properly refused to continue trial to permit defendant to obtain a copy of the statutes of another state to be used in the defense of the action, where trial was held almost three years after filing of original petition, defendant having had three years in which to obtain a ■copy of the statute.
    3. CARRIERS <&wkey;134 — Damage to Shipment-Sufficiency of Evidence.
    Evidence held to sustain verdict that carload -of rice became wet and was damaged during transportation.
    Appeal from District Court, Jefferson •County; W. I-I. Davidson, Judge.
    Action by S. W. Pipkin, Receiver, against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and J. D. Campbell, of Beaumont, for appellant.
    C. W. Howth, of Beaumont, for appellee.
   WALKER, J.

Appellant makes the following brief statement of the case:

“This was a suit filed August 21, 1915, by S. W. Pipkin, receiver of the McFaddin, Wiess, Kyle Rice Milling Company, against the Texas & New Orleans Railroad Company, for the value of a ear of brewer’s rice, shipped by the rice milling company over defendant’s railroad, consigned to the American Brewing & Crystal Ice Company, at Baker City, Or., about May 27, 1914. When the rice arrived at destination and the car was opened, a portion of the rice was found to be damaged, evidently from having been wet. The whole shipment was refused by consignee, and was then carried by the railroad company to Portland, Or., and disposed of by the salvage ■department. The value of the rice when loaded was $912. The amount realized by the salvage ■department was $459.48. The cost of transportation, freight, and making sale, etc., amounted to $343.43, leaving the net amount of $116.05 which defendant (appellant) holds for plaintiff, appellee.”

The first assignment of error is that the court erred in overruling motion for continuance for the witness L. Ezell, “and, second, that the shipment was sold under the laws of the state of Oregon, and the defendant had been unable to secure a copy of the statutes of Oregon in order to show that said sale was made in conformity with law.”

Plaintiff’s original petition in this cause was filed on the 21st of August, 1915, and this case was called for trial on the 5th day of April, 1918. The subpoena for the witness L. Ezell was not issued until the 3d day of April, 1918. Defendant, in its application, stated that this witness was a soldier at Camp Bowie, Tex. The return of the sheriff on the subpoena showed this witness to be in France. No further statement is found in the record as to where this witnesfe really was. This witness was in the employ of defendant when this rice was shipped, more than three years before this case was tried. No explanation is offered as to why the defendant waited so long to summon this, witness into court. Defendant had three years to get a copy of the statutes of the state of Oregon, and it is not in position to complain because the court refused to allow it more time. There was no error in overruling this motion for continuance.

By its second, third, and fourth assignments of error, appellant says the court erred in rendering judgment for plaintiff for more: than 25 sacks of rice, asserting the proposition that the testimony showed that this was all of the rice that was damaged.

Charles Bodeau testified for appellee that he inspected the car upon its arrival at Baker City and found that it was wet; that 20 or 25 sacks were damaged by water and were caked, and that a part of the sacks above them were affected by the moisture; that the refusal to take the car was on account of the damaged condition of the contents from wetting; that they would not have taken .the rice under any circumstances after they found it had been damaged by being wet.

B. A. Steinhagen, a witness for appellee, testified that he was superintendent of ap-pellee’s mill at the time the shipment in question was made and for many years before that; that there was not a chance for rice loaded from appellee’s warehouse,, as it was equipped at that time, to get wet in the course of loading; that the warehouse was absolutely rain proof and moisture proof; that it was customary to inspect the cars before loading; that in his opinion, from his experience and from the condition of the car upon its arrival at Baker City and the position of the sacks of rice that were wet, that the car of rice had been damaged after it was loaded and shipped out.

He further testified that if part of that rice got wet it would damage the entire car. That it was the custom at that time f^r the railroad to seal the car of the company containing the rice and count the number of sacks before issuing hill of lading, and that the railroad would not have given a bill of lading showing that it was received in good order and condition if it had been damaged, but would have noted that fact on the bill of lading.

Witness T. P. Iveeney testified for appellant as follows: ■ That he inspected the car of rice upon its arrival at Baker City, and found 18 or 19 bags were badly molded and were unfit for brewing purposes; that 18 or 19 bags had the appearance of having -been badly saturated with water, causing • the contents to cake, discoloring it badly, also the bag.

Witness U. 11. Raynor, witness for appel-lee, testified: That he, as the agent of ap-pellee, went from Spokane to Baker City at the request of appellee to inspect the rice; that he arrived in Baker City June 2Gth, at 2 o*clock, and found that the railroad had shipped the car to Portland that morning.

He further testified as follows: The consignee would not have saved any money by refusing this car, which arrived when most of the rice mills were closed down, and they could not get further supplies, and I feel that it inconvenienced them considerably to reject the car and be without the rice.

John R. Hinkle, witness for appellant, testified as follows: That he resides at Portland, Or. (to which place the rice was shipped from Baker City by the railroad); that he is a sales agent of the railroad company; that when this shipment arrived at Portland, he requested a number of brewers and dealers to inspect the rice and make a bid on it; that they did inspect it, but refused to quote a price owing to its condition; that Mr. Christian, representing the Gambrinus Brewing Company, made a very careful inspection of the rice, and refused to make an offer on account of the must; “that his plant had a reputation to live up to, and that he could not afford to take a chance on the rice, as it would probably cause the beer made from it to have a musty taste.” He suggested that we take it up with farmers and dispose of it as hog'feed, as he did not believe any brewer would quote on it; that Mr. Wessinger, of the Weinhard Brewing Company, and Mr. Miller, of the Star Brewing Company, took a sample of the rice that was not damaged by water and sent it to Tacoma to be analyzed, but these gentlemen were afraid it would cause a musty taste in their beer. I sold the rice for $1.05 per hundredweight at Baker City. The total price I got for it, $459.48. The musty condition, together with the water damage, is what occasioned the refusal of the parties respecting the shipment to quote.

The witness J. H. Coate, for the appellant, testified as follows: That he lived at Portland; that he inspected the car upon-its arrival; that the checking clerks of the railroad at that point checked the car and reported to me that the entire car had a musty smell, which, from previous experience, could come about from the 20 bags that were wet, either partially or wholly fermented. The bags that were wet were musty on the outside, at least the entire surface that touched the car floor. In most cases, I believe the moisture had come through almost the entire bag. The musty odor complained about by consignee at Baker City probably came about through the car being closed up and the odor from the wet bags making the entire contents of the car smell molded. The condition of the car on its arrival at Baker City would indicate that it had been wet several days before its arrival there in order to produce the odor it had.

This case was tried by a jury on special issues, and in answer to the same they found that the rice in question was damaged by water after it was delivered to the defendant company to such an extent that it was rendered unfit for the purposes for which it was shipped or sold, and that such rice became wet and damaged through the negligence of the defendant in the manner claimed by plaintiff in his petition.

We think this testimony amply sustains the verdict of the jury as to the condition of the rice. No assignment is made that the testimony does not sustain the verdict as to. the negligence of the defendant. All other assignments are overruled.

Finding no error in this record, this cause is affirmed. »
      c§==>ITor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    WASSON v. HARRIS et al.
    (No. 1438.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 8, 1918.
    Rehearing Denied March 12, 1919.)
    1. GARNISHMENT <&wkey;97 — OBJECTIONS TO WRIT —Right to Urge.
    Where an action was commenced and writ of garnishment issued, the principal defendant, who did not file a replevy bond, cannot, under Arernon’s Sayles’ Ann. Civ. St. 1914, art. 279, raise objections to the writ which might have been urged by the defendant in garnishment.
    2. Garnishment <&wkey;193 — Motion to Quash —Grounds.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 274, and in view of article 280, held that a writ of garnishment should not be quashed where it otherwise conformed to the statute, because the name of tlie plaintiff appeared in an interrogatory as to how much the garnishee was indebted, instead of the name of defendant.
    3. GARNISHMENT <&wkey;>97 — WRIT—AMENDMENT.
    Where a writ of garnishment, through a clerical error, contained the name of plaintiff instead of defendant in an interrogatory as to how much the garnishee was indebted, etc., held that plaintiff should be allowed to correct the error by amendment, though of course the amendment would not relate back to the date of service of the writ, and only funds belonging to the defendant which the garnishee had in his possession at the date of amendment would be impounded.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Action by S. E. Wasson against A. F. Luse and R. C. Harris.. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Wm. M. Knight, of Hereford, for appellant.
    Carl Gilliland and W. I-I. Russell, both of Hereford, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellees.
   HALL, J.

Appellant Wasson sued A. F. Luse, to recover an alleged indebtedness of $1,000 and damages in the sum of $1,086. He filed an affidavit for garnishment, praying that a writ of garnishment issue against R. C. Harris. In issuing the writ the clerk of the district court of Deaf Smith county used this language:

“Therefore you are hereby commanded forthwith to summon R. C. Harris, if to be found within your county, to be and appear before the said court, at the next term thereof, to be held at Hereford in said county, on the 6th day of May, 1918, then and there to answer upon oath what, if anything, he is indebted to the said S. E. Wasson, and was when this writ was served upon him, and what effects, if any, of the said A. F. Luse he has in his possession, and had when this writ was served, and what other persons, if any, within his knowledge, are indebted to the said A. F. Luse, or have effects belonging to him in their possession.”

Luse, the defendant in the original cause, filed a motion in the garnishment suit to quash the garnishment proceedings: (1) Because it is affirmatively shown by the pleadings in the original cause that plaintiff Wasson’s claim is founded on tort and for unliquidated damages; (2) Because the writ of garnishment issued is uncertain, ambiguous, and confusing, in that it commands the garnishee, Harris, to “answer upon oath what, if anything, he is indebted to the said S. E. Wasson,” instead of to the said A. F. Luse, the defendant. Plaintiff met thisi motion to quash by a motion to amend the writ of garnishment, wherein it is alleged that the insertion of the name S. E. Wasson, where the name A. F. Luse should have appeared, was a clerical error of the clerk, for which he was not responsible. The prayer is that he may be permitted to amend the garnishment by erasing from the writ the name of S. E. Wasson, and inserting in lieu thereof the name of A. F. Luse. It is shown by the court’s bill of exception that the writ of garnishment was a printed blank form in the words of the statute, and that the blanks ■ were filled in by the clerk with a typewriter ; that in all other particulars, except that mentioned above, the writ conformed to the statutory requirements. The court heard both motions at the same time, denying the plaintiff’s motion to amend the writ and sustaining the motion of A. F. Luse to quash. While the issue is not presented in appellant’s brief, there is, we think, fundámental error in the record, in that the court considered the motion of A. F. Luse to quash the writ. Luse had not filed a replevy bond. 1 Vernon’s Sayles’ Civil Statutes, art. 279, provides that “in all proceedings in garnishment where the defendant” replevies the fund afid “gives bond” therefor he “may make any defense which” the garnishee “could make in such suit.” It is held in attachment proceedings that defects in the affidavit, bond, or writ of attachment cannot be taken advantage of except by the defendant in attachment, and the right to attack attachment proceedings by reason of irregularities or informalities is denied to junior attaching creditors, purchasers of real estate after the levy of an attachment thereon, subsequent lien creditors, claimants of the property, and garnishees. Goodbar, etc., Co. v. City National Bank, 78 Tex. 461, 14 S. W. 851; Barkley v. Wood, 41 S. W. 717; Mallette v. Ft. Worth Pharmacy Co., 21 Tex. Civ. App. 267, 51 S. W. 859; Id., 93 Tex. 667, 55 S. W. xv; Bateman Bros. v. Ramsey, 74 Tex. 589, 12 S. W. 235; Ft. Worth Publishing Co. v. Hitson, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551; Douglass, etc., Co. v. Neil & Co., 37 Tex. 528. We. think the same is true of garnishments. 10 Stand. Proc., 531, 532; McCoslin v. McDavid, 22 Tex. Civ. App. 53, 54 S. W. 404; Flemming v. Pye, 43 Tex. Civ. App. 176, 95 S. W. 594,

The error of the clerk in inserting the name of the plaintiff, Wasson, where the name Luse should have been written does not invalidate the writ as a whole. Vernon’s Sayles’ Civil Statutes, art. 274, provides that, when bond and application for garnishment have been duly made and filed with the judge, clerk, or justice of the peace, such officer shall immediately issue a writ of garnishment, directed to the sheriff, or any constable of the county where the garnishee is alleged to reside, or to be, commanding him forthwith to summon the garnishee to appear on the first day of the ensuing term of the court out of which the writ issued, to answer upon oath: (1) What, if anything, he is indebted to the defendant, and was when the writ was served; and (2) what effects, if any, of the defendant he has in his possession, and had when such writ was served; and (3) what'other persons, if any, within his knowledge are indebted to the defendant, or have effects belonging to him in their possession. Article 280, Id., provides that the answer of the garnishee shall be under oath, in writing, and signed by him, and shall make true answer to the several matters inquired of in the writ of garnishment. While as to the first interrogatory, which article 274 provides the writ shall contain, there is a clerical error, which relieves the garnishee of. the duty of answering the first interrogatory, the writ is in compliance with the requirements of the statute as to the remaining interrogatories, and is sufficient to require the garnishee to answer what effects of the defendant he has or had when the writ was served, and what other persons within his knowledge are indebted to the defendant, or have effects belonging to him; and an answer by the garnishee, responding to the last two questions, would entitle him to a discharge. Adams v. McCown, 15 Tex. 349.

We think the court erred in refusing to permit the amendment of the writ in the particular pointed out by the motion to amend. As was said by Stayton, C. J., in Munzenheimer et al. v. Manhattan Cloak & Suit Co., 79 Tex. 318, 15 S. W. 389:

“Under the liberal rules as to amendment, even of writs of attachment, which have prevailed in this state, we are of opinion, however, that the court did not err, under the facts of this case, in permitting the writ to be amended as it was, and it may be that the levy should he ■given effect only from the time the writ was amended.”

We do not mean to hold that the amendment of the writ in this case would relate back to the date of its sqrvice, but the effect of such amendment would be to impound only such funds belonging to the defendant Euse as the appellee had in his hands at the time of the amendment. Attachment and other like writs have frequently been amended upon motion, but the court should, in granting the motion, enter such order as will protect the defendant in the writ. Rule Mercantile Co. v. Opry, 163 S. W. 331; McDaniel v. Cage & Grow, 201 S. W. 1079; Porter v. Miller, 7 Tex. 468; Whittenberg v. Lloyd, 49 Tex. 633; Broyles v. Jerrells, 14 Tex. Civ. App. 374, 37 S. W. 377.

For the errors indicated, the judgment is reversed, and the cause remanded.
      <&wkey;For other cases see same topic and KEY-NUMBER in al! Key-Numbered Digests and Indexes

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author: HIGGINS, J.

text:
    REUM v. REUM.
    (No. 995.)
    (Court of Civil Appeals of Texas. El Paso.
    March 6, 1919.
    Rehearing Denied March 27, 1919.)
    Divoece <S=>207 — Property — Appointment op Receiver-Discretion op Court.
    In action for divorce and for settlement of property rights, the appointment of a receiver of a portion of the property involved rests largely within the discretion of the trial court.
    Appeal from District Court, El Paso County ; P. R. Price, Judge.'
    Suit for divorce by Charles G. Reum against Andrea G. Reum. From an interlocutory decree appointing a receiver, defendant appeals.
    Affirmed.
    M. W. Stanton, of El Paso, for appellant..
    Jones, Jones, I-Iardie & Grambling, of El. Paso, for appellee.
   HIGGINS, J.

Appellee filed this suit for divorce and settlement of property rights. This appeal is prosecuted from an interlocutory decree appointing a receiver of a portion of the property involved. No briefs have-been filed. The appointment of a receiver rests largely within the discretion of the trial court. Childress v. Trust Co., 32 S. W. 330; West v. Herman, 47 Tex. Civ. App. 131, 104 S. W. 428. The record in this case has been examined, and there is nothing apparent to-warrant this court in setting aside the action of the court below.

Affirmed.
      <S=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    WILLIAMS v. DOAN et ux.
    (No. 7440.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 17, 1918.
    On Motion for Rehearing, Feb. 13, 1919.)
    Husband and Wife <&wkey;152 — Separate Estate op Wipe — Right to Contract.
    Under Rev. St. 1911, arts. 4621, 4622, 4624, as amended by Acts 33d Leg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), relating to married women and their separate estates, held that where a married woman agreed to pay a real estate broker a commission for effecting a sale of her separate estate, and the land was sold to a purchaser secured by the broker, the husband joining in the conveyance, the broker might recover, though the husband did not authorize his wife to enter into the contract originally.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Action by W. B. Williams against A. D. Doan and Mrs. Delia Doan, Ms wife. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Guynes & Colgin, of Houston, for appellant.
    Atkinson, Graham & Atkinson, of Houston, for appellees.
   LANE, J.

TMs suit was instituted by appellant, W. B. Williams, a real estate broker, against Mrs. Delia Doan, wife of A. D. Doan, for the sum of $215, agreed commission for consummating a sale of certain land, the separate property of Mrs. Doan, to A. R. Jay and wife, A. D. Doan being joined pro forma with his wife as defendant for the purpose of suit, as. required by law.

Plaintiff alleged a contract between himself and Mrs. Delia Doan by the terms of which he was to receive a commission of $215 for making a sale of certain land belonging to Mrs. Doan; that he sold said land to Jay and wife at a price beneficial to the property of Mrs. Doan, and that thereafter Mrs. Doan, joined by her husband, conveyed said land to the purchaser procured by plaintiff upon the terms agreed upon by all parties. He prayed for judgment against Mr. and Mrs. Doan jointly and severally for the sum of $215 upon an express contract, and in the alternative for said sum as the reasonable value of his services.

Defendants answered by general denial and by special plea that at the time of the alleged contract and at the time of the alleged sale of said land Mrs. Delia Doan was the wife of A. D. Doan, with whom she was living at the time of said transaction; that at no time did A. D. Doan consent to, or acquiesce in, the employment of plaintiff by Delia Doan or any one else, nor had he by word or deed authorized such employment, or ratified same.

Plaintiff by supplemental petition, among other things, alleged:

“Further answering said answer of said defendants, this plaintiff says that the defendant A. D. Doan well kribw that his wife was selling said property, and well knew that she had made arrangements with W. B. Williams as a real estate agent for the sale thereof, and well knew that she individually and through her authorized agent, F. W. Jackson, had agreed to pay him 5 per cent, on an amount represented by $4,300 of notes; that thereafter said A. D. Doan joined his wife in a deed to the purchaser found by said Williams, and thereby approved and ratified her sale for said land and her agreement for commission, and said defendants accepted the benefits of said trade and said sale brought about by the efforts of said W. B. Williams, and they are each now estopped to deny that said Williams had no authority from them, or either of them, and they are each of them estopped to deny that plaintiff is entitled to said commissions on the ground of nonjoinder.
“Plaintiff further says that defendants, and each of them, are estopped to deny plaintiff’s authority because each of them were definitely informed before they closed said sale to the purchaser found by plaintiff, and each of them well knew that said Williams had found such purchaser and had been promised said commission by F. W. Jackson, and that plaintiff was expecting payment thereof when said sale would be consummated, and, acting upon such knowledge, they accepted said purchaser found by pláintiff, and made the sale of their property .to said purchaser and in every way ratified the agreement of plaintiff and said Jackson, and are now consequently estopped to deny same.”

The evidence was substantially as follows:

W. B. Williams testified, substantially, that he was a real estate agent, and that Mrs. Doan, 10 or 12 months prior to. the sale, had asked him to sell her property • for $6,500 cash, and that, if he found any one who wanted her place, to take it up with her son, F. W. Jackson, and whatever he did was all right. About one year thereafter he found the Jays, and took the matter up with Jackson, having been referred to him as above stated. He explained that the Jays wished to put in some Houston property as a cash equivalent of $2,200, for first payment, and to pay the balance by giving ten vendor’s lien notes of $430 each. Jackson said it was perfectly all right with his mother, as she had placed the matter in his hands; that he (Williams) was the sole, procuring cause; that the title to Jays’ property was found good, but Mr. Mobley discovered a lien of $750 against the Doan property. Deeds were executed by each of the contracting parties; Doan and.his wife making a deed to the Jays and the Jáys making a deed to the Doans. Ten notes of $430, secured by vendor’s lien against the property conveyed to the Jays, were executed by the latter, and by agreement the last two of said notes were placed in escrow until judgment was obtained, or would be obtained, removing tbe cloud cast by said lien of $750 on the Doan property. This was done to the satisfaction of Mr. Mob-ley. He considered the sale closed, and demanded payment of his commission as soon as deeds were made, and the notes executed, but Jackson stated that appellant should wait until the title was cleared by Mr. Mob-ley. Both parties went into possession of the respective property sold and bought by them. Mrs. Doan has since sold the property received by her from the Jays. Jackson said he was agent for his mother. The telegram Mr. Jackson gave to Mr. Mobley, signed by Mrs. Doan, showed he had full authority to act in the premises. Before the sale was made Jackson wrote his mother that the sale was being made through appellant, instead of Mr. Mills, and that appellant was to get 5 per cent, commissions on $4,300 and fully explained the whole situation. This letter was duly mailed, and Mrs. Doan never counteracted the listing of said property with appellant, nor did he hear from said letter written by Jackson. When he demanded payment of his commissions, Jackson said that same would be paid, but there was a difference between him and the Jays, and the refusal was made on that ground. That he was the one who found the Jays and spent both time and money in trying to close the matter; no. one ever disputed) his right to commissions, but Jackson, as agent, refused to pay the same until the matter with Jay was definitely settled. That the sale of the Pasadena property was beneficial to the separate estate of Mrs. Doan. That the amount she received was not more than the place was worth.

A. R. Jay festified substantially:

“W. B. Williams is responsible for my having bought the Doan property. Jackson said he had full authority from his mother to handle the matter, and whatever he did would be satisfactory to her. A telegram from his mother was sent him at the request of Mr. Mobley, giving him full power to act in the premises. I have a suit against the Doans for misrepresentations made by Jackson concerning the crops, and the two last notes are tied up by this suit. I consider Mr. Williams is responsible for my having bought the Doan property. I am now in possession of the Pasadena property, and am not trying to rescind the sale. The two last notés were placed in escrow to protect against the lien of $750 on the Pasadena property. Mr. Mobley cleared the title, and I considered the trade closed. I have paid all but the last two notes.”

A. D. Doan testified that he had never given authority to Jackson, and that at the time of said sale he was living at Port Huron, Mich., where they have a home. Mrs. Doan also testified that they have been living at Port Huron, Mich., since they left Pasadena.

Mr. Mobley testified: That Jackson stated to him that his mother had placed the matter in his hands to handle, and he had authority; but he required Jackson, as a condition precedent, to get a power of attorney from his mother. A telegram was sent by her confirming this power. It gave full power to-him to represent her, and close the trade and do whatever was necessary in the premises. That he examined the title to both properties* and found a lien of $750 against the Pasadena property. Jay and wife made a deed to Mrs. Doan of their Houston property, as the first payment of an equivalent value of $2,200 cash, and Doan and wife joined in a deed to the Jays conveying the Pasadena property, and reserved a lien for $4,300, for which sum the Jays executed ten notes of $430 each, and the last two thereof were placed in escrow until the title was cleared. The trade was closed; the defect was removed by suit. “The contract which you hand me is the contract which Jackson executed in behalf of his mother.”

W. B. Williams also testified, his being the only testimony on the point, that Mrs. Doan’s property was worth at the time of the sale in the neighborhood of $6,500, the amount for which it was sold, and that that was a fair valuation therefor.

A jury was selected and sworn to try the cause, but after the evidence was all in the court instructed the jury as follows:

“You are hereby charged that the undisputed evidence shows that defendant Mrs. Delia Doan was a married woman at the time of making the alleged contract for the sale of her separate property and for the payment of commission, and accordingly, plaintiff having failed to make his case, you will return your verdict for the defendant.”

Verdict was accordingly returned, and judgment rendered for appellees.

Appellant assigns the charge of the court as error, and insists that the judgment rendered should be reversed, and that judgment should be here rendered for appellant. We feel constrained to agree with the contention of appellant. The evidence shows the contract and said of the land thereunder substantially as alleged by appellant. It also shows that the sale was consummated by a conveyance thereafter executed by Mrs. Delia Doan and her husband, A. D. Doan. A contract of the wife for the services of a broker to find a purchaser for her separate property is enforceable since the passage of the act of the Thirty-Third Legislature of 1913. The caption of that act (Acts 33d Leg. p. 61 [Vernon’s Ann. Civ. St. 1914, arts. 4621, 4622, 4624]) is as follows:

“An act to amend articles 4621, 4622, and 4624, title 68, chapter 3, of the Revised Statutes of Texas, 1911, concerning marital rights of parties, * * * conferring upon the wife, the power to make contracts, authorizing suite on such contracts, giving the wife control over her separate property,” etc.

Article 4621, as amended, provided that:

“All property of the wife, both real and personal, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, as also the increase of all lands thus acquired shall be the separate property of the wife. During marriage the husband shall have the sole management, control and disposition of his separate property, both- real and personal, and the wife shall have the sole management, control and disposition of her separate property, both real and personal; provided, however, the joinder of the husband in the manner now provided by law for conveyance of the separate real estate of the wife shall be necessary to an in-cumbrance or conveyance by the wife of her lands, and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this act; provided, also, that if the husband shall refuse to join'in such incumbrance, or conveyance, or transfer of such property the wife may apply to the district court of the county of her residence, and it shall be the duty of the court, in term time or vacation, upon satisfactory proof that such incumbrance, conveyance or transfer would be advantageous to the interest of the wife, to make an order granting her permission to make such incumbrance, conveyance or transfer without the joinder of her husband, in which event she may incumber, convey or transfer said property without such joinder. Neither the separate property of the wife, nor the rents from the wife’s separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings shall be subject to the payment of debts contracted by the husband.”

By article 4622 it is provided that the personal earnings of the wife, the rents from the wife’s real estate, the interest on bonds and notes belonging to her, and dividends on stocks owned by her shall he under the control, management, and disposition of the wife alone.

Article 4624 provides that neither the separate property of the husband, nor the community property, other than the personal earnings of the wife, and the income, rents, and revenues from her separate property, shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children; provided, the wife shall never be the joint maker of a note or a security on any bond or obligation of another without the joinder of her husband with her in making such contract.

The emergency clause of this act is as follows:

“The fact that the present law denies to married women the right to manage their separate property, and to make contracts is unjust to a large number of citizens of this state creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and it is hereby suspended.”

It is manifest that since the passage of the above-mentioned act the wife has sole management, control, and disposition of her separate property, both real and personal, including her personal earnings, the rents from her real estate, interest on bonds and notes belonging to her, and dividends on stocks belonging to her, with the exception only that she shall not incumber her separate real estate, or convey the same, or transfer stocks and bonds belonging to her, unless she be joined in such conveyance or transfer by her husband in the manner provided by law for the conveyance of her lands. We also think it manifest that the powers thus conferred upon the wife, that is, “the sole management, control and disposition of her separate property,” necessarily implies that she shall be permitted to contract with relation thereto as she pleases, limited only as above stated. We think it clear from the caption and emergency clause of the act referred to that the Legislature intended to empower the wife to make some contracts with relation to her separate property which she had no authority or power to make before the passage of said act; for it is recited in said emergency clause that the fact that the law then in force denies to married women the right to manage their separate property, and make contracts, is unjust, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended and the hill be put in force from the passage thereof.

To give an abstract right of disposition, without its incidental means, is to deny the wife the very power whch the lawmakers contemplated. Nowhere does the statute say or intimate that it is necessary to the enforcement of her contracts that the husband should join therein; but the control and disposition is left to the wife solely, and, this being true, it must, by the very nature of things, carry with it \ the inherent' right to contract in reference to the disposition of her property.

Mr. Justice Speer, in his very valuable work on Married Women, makes use of the following language:

“The right to recover by suit is a necessary incident to the right to manage and disposé, and inheres in the owner, unless otherwise provided by statute.”

Proceeding from the correctness of that view, it is only the application of, elementary principles of law that the right of sale carries with it the inherent and incidental rights of contract with reference to the consummation, of the sale. Deny the wife this right, and at one fell blow every power and every right which the statute sought to confer in this amended article is ruthlessly and unjustly swept away.

It must be conceded that if the amendment does not enlarge her rights and her powers in the respects claimed, then the added change is mere surplusage, and a body of lawmakers were making play with idle words. The very fact that an amendment was made confronts us with the questions: Why was it made? What was its purpose? What its effect?

The conclusion se'ems inevitable to us that the Legislature knew the existing law upon the subject concerning which it was legislating, and that it was its intent and purpose to make a change in the law. The emergency clause of the amendment gives recognition to the injustice which the old law imposed upon married women, and in substance recites that it is unjust to deny her the right to contract with relation to her separate property.

Quoting further from Mr. Speer’s work:

“When it is considered that the old law, with its well-recognized limitations upon the right of a wife to contract, is for that reason considered by the lawmakers to be unjust, and the declared object, as expressed in the caption of the bill, is to confer upon the wife the power to make contracts, the purpose of remove the unjust restrictions, and to enlarge the contract capacity of married women, is apparent, and the act, in pursuance of such purpose, should be liberally construed, with a view of accomplishing the end desired. Generally speaking, under the old law a wife could not contract. This was considered to be, as it was, unjust. It is just that wives should be allowed to contract, and the whole purpose of the act, upon this point, is to empower them to do so, except as they are forbidden in the act itself.”

We could not better present our views of the law under discussion than has been done by counsel for appellant in a very able argument filed in this court in this case, which we here adopt as our own as follows:

Article 4624 is as follows:

“Neither the separate property of the husband nor the community property other than the personal earnings of a wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children; provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

This article is too obvious in its meaning and effect for controversy: (1) It declares the husband’s separate property and the community property as being liable for the wife’s debt, where contracted by her for necessaries furnished herself or children; (2) it declares the wife’s personal earnings, as well as the income, rents, and revenues from her separate property, as being liable, unconditionally, for the payment of her debts; (3) it declares, in accordance with a well-known rule of exclusion, that her separate property shall be liable for the payment of her debts. This is necessarily so, since the words, “other than the personal earnings of the wife, and the income, rents and revenues of her separate property grammatically and legally construed, qualify and refer to only the community property. The act plainly recites that the separate property of the husband shall not be liable, and that the community property shall not be liable, except as to the earnings, income, rents, and revenues of her separate property. Hence-it is apparent that by saying that neither the separate property of the husband, nor the community estate of the marital union shall be liable for the payment of the wife’s debts, it clearly implies that her own separate property shall be subject to pay such debts as are by her justly contracted.

For what debts, then, is her separate property and the designated portions of the community estate liable? The wife’s debts. What debts of the wife? All kinds and character of debts, save and except such obligations which cannot be by her contracted, viz.: Being joint maker or surety on any bond, or obligation of another, without the .joinder of her husband.

Thus it will be seen that the amended statute recognizes to the fullest extent that the wife has the power and capacity to contract debts, and that the only debts which she cannot incur under law are those which are specifically excepted in the act itself. Quoting Mr. Speer again:

“It is to be observed the language. of the amending article is radically different from that of the amended. The old article specially authorized the wife to contract certain liabilities, which by a well-known rule of construction forbade any other. The new article forbids her making any contract of joint liability on a note, or of suretyship on any bond or obligation of another, without the joinder of her husband with her in making such contracts, and by the same well-known rule of construction necessarily authorizes her to make any other contract. In other words, the change wrought is that, where the power to contract was originally denied generally, but authorized specially, it is now denied specialty, and authorized generally. Under the terms of the present law a married woman can make any contract an unmarried woman can make, with the sole exception named in the statute. This view is supported and rendered well-nigh conclusive by the painstaking reservation in the amended article that ‘neither the separate property of the husband, nor the community, other than,’ etc. [Here quoting article 4624. * ⅜ *] From the history of the legislation, the consideration of the well known and expressed evil intended to be remedied, and the general language of the bill, with its limitations specially expressed, there can be no other conclusion than that the Legislature intended to confer upon married women the power generally to contract, subject only to some minor limitations. Much that has been decided heretofore has therefore lost its importance.” Speer’s Married Women, p. 198.

Again speaking of amending article 4261, tke same author says:

“Thus it will be seen that the statutory rule existing in the state since the early days of the republic, by which the husband was given exclusive right to the possession, control, and management of the wife’s separate property, has been swept entirely away, and the power has been given to her, with slight limitations, to contract and dispose of her separate property at will.”

Articles 4621 plainly indicates that the joinder of the husband shall be necessary to an incumbrance or conveyance of the wife’s separate property; but it also clearly implies, as well as expresses, her exclusive right to control, manage, and dispose of her property, and of her contractual capacity in relation thereto. If the law had inhibited all contracts by her with reference to her separate property, it would in consequence have rendered void all conveyances by her made without the joinder of her husband. But in qualifiedly denying her the right to convey her separate property, the greater in this instance does not necessarily include the lesser, because the principle is negatively applied in lieu of being affirmatively applied; hut rather to prohibit the doing of the greater without prohibiting the doing of the lesser act would necessarily imply permission to do the lesser. This reasoning follows, as the night the day, especially in view of her general authority to dispose, hindered only by the manner in which this must be done, viz. by joinder of the husband or under order of the district court.

The lawmakers contemplated that, as the wife had the power of management, control, and disposition of her own property, she would enter unto contracts expressing the exercise of that right. In order, accordingly, to safeguard, perhaps, a newly emancipated individual, it placed restriction in the manner of the disposition, while at the same time recognizing the right to contract in reference to that very disposition. In giving her this newly created . contractual right it also, in effect, placed in the husband’s hands a veto power to the carrying out of the contract, but this veto power they foresaw would in many cases be unjustly and unwisely exercised, and, in order to safeguard against the husband’s unwise or unjust interference of the wife’s contractual rights, they gave her an appeal to the district court. Thus it will be seen that the Legislature contemplated^ that the husband would refuse to join in conveyances for which the wife had contracted, and that it effectually provided against this contingency. These very provisions and restrictions on the power of husband and wife, in the nature of checks and balances against the unwisdom, injustice, of one or the other, recognizes the wife’s power of contract as though the very words themselves had plain-1 ly been written in the statute itself, giving-the wife the power to enter into a contract for the sale of her separate property without her husband’s joinder; and no citation of authorities is requisite to uphold the statutory construction that whatever is implied, in the law is just as much law as though it. were clearly expressed in the law.

A cursory analysis of the act in question-shows that the husband’s power of refusal is of qualified character. The wife’s rights-do not stop there, and are not rendered-nugatory by such refusal. In the latter instance, of refusal on the part of the husband, final authority is lodged with the district court, and this'authority is not an arbitrary-one, but hinges on whether or not the conveyance in question will be beneficial to the-wife’s interests. This question can never reach the district court until the husband has declined to join in the conveyance, and the husband cannot in fact decline to join before a deed of conveyance is presented for his execution, and as a general rule a deed of conveyance will never be presented for his-joinder and execution until the wife, in the natural course of the exercise of her rights to manage, control, and dispose of her property, has contracted for its disposition.

It may be pertinent to inquire, then, as to-how the wife is ever, in the ordinary course-of things, to present her right of beneficial conveyance to the determination of the district court, in relation to the sale of her property, if she is not given sufficient power under the statute authorizing her to manage, control, and dispose thereof, to enter into- and make contracts with brokers and agents to find purchasers for her property. How will she find a purchaser for her lands if the husband at the very threshold of the transaction refuses to agree that she may offer the same for sale?

This right to manage, control, and dispose-of her separate property, and the great care-which the lawmakers manifested in the wife’s welfare in requiring the sale to be-beneficial to her interests, when the husband refuses to join, evidence most lucidly that they were not dealing in mere words, but in-rights which would be beneficial to the wife. The lawmakers are considering the past injustice, -which has long been endured by every wife in this commonwealth, and they are righting this long-endured wrong, and the main things standing out in bold relief in the act are the rights of the wife, her emancipation from contractual slavery, that she may, more freely and more beneficially to-herself, deal with her own separate property.

One of the most advantageous rights in the control, management, and disposition of her separate property is the right to list the same with brokers and agents. Our modern complexity' of commercial transactions renders it almost, necessary to a certain degree tliat we shall from time to time apply to those who make specialties along certain lines. Real estate agents and brokers, with their long and varied experience,; and their opportunities for reaching purchasers that are not usually open to the proposed vendors, make it especially advantageous at times to seek their assistance, and more beneficial results are obtained through the medium of their efforts than could be enjoyed by one inexperienced in the selling of property.

It inevitably follows that if the wife has not the contractual capacity with reference to her separate property, and cannot enter into a binding agreement to pay commissions for finding purchasers for her property, then indeed is the law under consideration a meaningless jargon of mere words, without results, without justice, without change, and lacking in the progressive equity of an advanced civilization. If she may not contract at the very outset without the sanction of her husband, clearly she will be deprived of that most valuable right of seeking purchasers through recognized channels of business intercourse, and will by reason of this fact lose those sales which would prove most beneficial to her estate, if indeed she could ever find a purchaser who would agree to buy her lands. In rare instances would she enjoy the right of appeal to the district court for lack of purchasers for her property.

Verily, an adverse construction and less liberal interpretation of the statute would leave the wife powerless and at the mercy of her husband, without a proposed sale to be submitted for the district court’s approval or confirmation; for it will readily be observed that the act does not, in htec verba, or otherwise, confer upon her the right to appeal to the district court until she has first found a purchaser who is ready and willing to'pay a specified consideration not agreeable to the husband, in which event the court is to determine the benefit vel non of the conveyance to the wife’s estate.

Having reached the conclusion that the un-contradicted evidence shows that appellant was engaged by Jackson by authority of Mrs. Doan to procure a purchaser for her land, and that appellant did procure such purchaser to whom Mrs. Doan and her husband, A. D. Doan, conveyed her said land for the consideration and upon the terms given to appellant, and having further reached the conclusion that the contract of employment of appellant was a contract looking to the disposition of the separate property of Mrs. Doan, and one which she was authorized under the law to make, we here reverse the judgment of the trial court, and render judgment for appellant, W. B. Williams, for the sum of $216, as against Mrs. Delia Doan.

Reversed and rendered.

On Motion for Rehearing.

Appellees, Mr. and Mrs. A. D. Doan, have filed their motion for a rehearing in this cause, and have therein directed our attention to the decision of the Supreme Court in the case of Red River National Bank v. J. E. Ferguson et al., 206 S. W. 923, wherein that court announced a contrary holding to so much of the original opinion in this case as holds that the amended statute (Acts 33d Leg. 1913, p. 61) recognized to the fullest extent that the wife has the power and capacity to contract debts, except such as she is specifically forbidden to contract under the express terms of .said statute.

In deference to such holding of the Supreme Court we withdraw that part of the original opinion above mentioned as being in conflict .with the holding of the Supreme Court; but, believing that the original opinion otherwise properly disposes of the appeal, we overrule the motion for rehearing.

Overruled.
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