text:
    BROWNE GRAIN CO. et al. v. FARMERS’ & MERCHANTS’ NAT. BANK OF ABILENE et al.
    (No. 8072.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 9, 1915.
    Rehearing Denied Feb. 13, 1915.)
    1. Appeal and Erbob <&wkey;659 — Certiobabi TO PERFECT RECORD — PAPERS MISSING IN Lower Court.
    Under Rev. St. 1911, arts. 2157-2163, providing' for the substitution of lost papers and records on motion, such motion can only be made in the trial court, unless it is agreed to by the adverse party, and is available where the lost papers, pleadings, etc., are in existence and on file in the court below, and a writ of certio-rari would require' the clerk thereof to send them up, but is not available where such papers, etc., are missing in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. §§ 2834-2843; Dec. Dig. <&wkey; 659.]
    2. Judgment <&wkey;18-4REQUisiTBs — Pleading to Sustain.
    Where the record contained no pleadings to sustain a judgment for defendant against his codefendants for the amount he might be required to pay under the judgment against him, and in favor of plaintiff in the court below, such judgment was reversible error.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34-37; Dee. Dig. &wkey;18.]
    3. Judgment <&wkey;18 — Parties—Misnomer.
    In an action against a defendant named in the petition as “C. B. B.,” where service was had on “C. V. B.” (the correct middle initial), there was no error in disregarding the misnomer and rendering judgment against C. Y. B.
    [Ed. Note. — For. other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. <§=^18.]
    4. Assignments &wkey;>131 — Action—Pleading —ALLEGATION OE ASSIGNMENT.
    A petition in an action against a copart-nership, and alleging that L. sold the firm a I car of grain and drew a draft for the price in j favor of plaintiff bank, and guaranteed the amount of the draft, and that plaintiff gave him credit for the amount thereof, did not sufficiently allege L.’s assignment of the debt, so as to constitute the bank the real owner as .against the firm.
    [Ed. Note. — For other cases, see Assignments,. Cent. Dig. §§ 220-226; Dec. Dig. &wkey;131.]
    Error from Taylor County Court; E. M. Overshiner, Judge.
    Action by the Farmers’ & Merchants’ National Bank, of Abilene against the Browne Grain Company, W. L. Lilly, and another. Judgment for plaintiff against the Browne-Grain Company and against C. Y. Browne and another, and against W. L. Lilly, with judgment for Lilly over against the Browne Grain Company, and the Browne Grain Company and others bring error.
    Reversed and remanded.
    Cunningham & Oliver, of Abilene, for plaintiffs in error. Kirby & Davidson, of Abilene, for defendants in error.
   BUCK, J.

The Farmers’ & Merchants’ National Bank of Abilene, Tex., brought this suit in the county court of Taylor county against W. L. Lilly, the Collin County National Bank, and the Browne Grain Company, a copartnership, alleged in the petition to be composed of C. B. Browne and E. P. Browne, alleging, in substance, that defendant in error Lilly, residing in Taylor county,, sold to Browne Grain Company, domiciled in-Collin county, a car of grain; that Lilly drew a draft for the purchase price of said car of grain in favor of the plaintiff bank for the-purchase price, 1289.70; and that Lilly guaranteed to plaintiff the amount of said draft, and that plaintiff gave Lilly credit for the-amount thereof, and that Lilly had not repaid any part thereof. It was further alleged that said draft was forwarded to the-Collin County National Bank for collection, and an allegation of negligence on the part of said defendant bank in failing to collect said draft or protest the same was made as-a basis for the claim against said bank, but as, on the trial, suit as to the Collin County National Bank was dismissed, that feature-of the case is not involved in this appeal. From a judgment by default in favor of' plaintiff and against the Browne Grain Company, and also against C. Y. Browne and E. P. Browne and W. L. Lilly, and in favor of Lilly over against the plaintiffs in error, for the amount of the draft with interest, thjs-writ of error was prosecuted.

The transcript contains no pleadings by defendant in error, W. L. Lilly, but merely his waiver of citation and acceptance of service. Defendants in error have filed in this-court a motion “to substitute lost papers and for certiorari to perfect record.” In support of this motion are affidavits by the trial court, by the attorney for defendants in error, and by W. L. Lilly, reciting, in substance, that according to tbeir best recollection there was filed in the trial court, prior to the rendition of the judgment, a cross-plea by W. L. Lilly, one of the defendants in error, which would have sustained that portion of the judgment rendered in which a recovery was awarded Lilly over against plaintiffs in error, but that the clerk and others have made diligent search therefor and cannot find the same. They attach to said motion pleadings, which they claim to be a substantial copy of the lost or missing pleadings, and also an instrument which, it is claimed, is a substantial copy of the service of citation, and pray that such pleading and process be substituted in the record, and that this court consider the same as a part of the record.

A motion of this nature can only be made in the trial court, unless it is agreed to by the adverse party. If such pleadings and service were in existence and on file in the court below, a writ of certiorari by this court would be available to require the clerk of the trial court to send them up for the inspection of this court, but not where the part of the record desired to be supplied is missing in the court below. Therefore defendant in error’s motion must be overruled. Rev. Civ. Stat. 1911, arts. 2157-2163; Lovett v. Zeiss, 133 S. W. 497; Ross v. McGowen, 58 Tex. 603; Railway v. Peery, 27 S. W. 751.

Lienee, because the record before us fails to show any pleadings to sustain the judgment in favor of defendant in error, Lilly, for such amount as he has been, or may be, required to pay by virtue of the judgment against him and in favor of plaintiff in the court below, plaintiff in error’s fourth and fifth assignments must be sustained.

In view of another trial, it might be well to state that we do not think the trial court erred in disregarding the alleged misnomer as to one of the copartners constituting the Browne Grain Company. The name appears in the petition as C. B. Browne, while' service was had on C. Y. Browne (the correct middle initial) and the, judgment was rendered against C. V. Browne. Williams et al. v. Abilene Independent Telegraph & Telephone Co., 168 S. W. 402, and cases there cited; McKay v. Speak, 8 Tex. 376; Cummings v. Rice, 9 Tex. 527.

Furthermore, we question whether plaintiff’s petition in the court below sufficiently alleges an assignment by Lilly of the debt claimed to be due to said Lilly by Browne Grain Company to constitute the plaintiff bank the real owner of the claim against the grain company. Ucovich v. Bank, 138 S. W. 1103; House v. Kountze, 17 Tex. Civ. App. 402, 43 S. W. 561; Terry v. Dale, 27 Tex. Civ. App. 1, 65 S. W. 51, 396; Gamer v. Thomson, 35 Tex. Civ. App. 283, 79 S. W. 1083.

For the reasons given, the judgment of the trial court is hereby reversed, and the cause remanded.
      <§rroFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    FT. WORTH & R. G. RY. CO. v. BROWN.
    (No. 8039.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1914.
    Rehearing Denied Jan. 23, 1915.)
    1. NEGLIGENCE ¡$=^119 — PETITION — ISSUES, Proof, and Vabiance.
    One suing for negligence cannot recover on a ground not alleged in his petition.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. &wkey;119.]
    2. Principal and Agent <&wkey;177 — Notice to Agent — Dangerous Premises1 — Poison.
    One cannot recover for loss of his cattle by poison, placed by a railroad company on its right of way to kill Johnson grass, on the ground of the company’s failure to notify him of the distribution of the poison, where the agents in charge of the cattle knew the facts.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 670-679; Dec. Dig. <&wkey;> 177.]
    3. Railroads '<&wkey;411 — Killing Stock — Dangerous Premises — Poison.
    Rev. St. 1911, art. 6603, making a railroad company failing to fence its tracks liable for stock killed, applies only to stock killed by trains or locomotiv.es, and to authorize one to recover for the loss of his cattle by poison placed on the right of way he must show negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. &wkey;411J
    4. Animals <&wkey;96 — Injury to Trespassing Cattle — Liability—Poison.
    One placing poison on his premises for a legitimate purpose is not liable for the death of another’s cattle trespassing thereon and eating the poison, unless he failed to exercise reasonable care.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 375-379; Dec. Dig. &wkey;96.]
    5. Railroads <@=»411 — Failure to Fence — Stock Law — Effect.
    A railroad company placing poison on its right of way to kill Johnson grass, where the stock law (Rev. St. 1911, arts. 7227, 7248) is in force, need not foresee that stock may be running at large, and is not guilty of actionable negligence for failing to station guards at gates in the pasture of an adjacent owner or along its right of way to prevent trespassing cattle from entering on the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. &wkey;>411.]
    6. Animals <&wkey;96 — Trespass — Dangerous Premises — Liability.
    Where the willful or negligent act of a third person in opening a gate in a fence adjacent to a railroad right of way on which poison had been placed caused cattle to escape on the right of way and eat the poison, failure of the railroad company to notify the owner that it was going to put out poison was not actionable negligence.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 375-379; Dec. Dig. &wkey;96.]
    Buck, J., dissenting.
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by W. E. Brown against the Fort Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Rockett & Rowe, of Ft. Worth, and Andrews, Streetman, Burns & Logue, of Houston, for appellant. Stephens & Miller, of Ft. Worth, for appellee.
   CONNER, C. J.

Appellee Brown instituted this suit to recover of appellant damages for the loss of a number of Jersey cattle, which he alleged had been poisoned and killed by the negligence of appellant, its agents and servants. It was alleged, in substance, that on or about the 28th day of August, 1911, the agents and servants of the defendant negligently applied “some kind of poison, the exact kind being unknown to plaintiff,” to Johnson grass growing upon its unfenced right of way, and that certain of his cattle went upon the right of way and ate of the poisoned Johnson grass, resulting in the death of 20 head of said cattle. Appellant’s negligence is thus alleged:

“Defendant was. guilty of gross negligence in putting out poison on its right of way running through some of plaintiff’s land, and on and near a public road, without having the same fenced, said right of way, to wit, and without taking any precaution to protect plaintiff’s cattle from entering on said right of way and becoming poisoned, although defendant knew that plaintiff’s cattle were in a pasture through which a gate opened onto said right of way, and knew that said gate was liable to be left open, and knew that the natural propensity of said cattle was to eat the grass on said right of way on which defendant had put out poison, and knew and was bound to know that it was endangering the life of said cattle when it put out said poison.” *

Defendant answered by a general denial, and also by the following special answer:

“Defendant avers that, at the time of the injuries complained of by plaintiff, there was a stock law in full force and effect in Tarrant county which prohibited the cattle from running at large in said county; that the plaintiff and his agents in charge of said cattle illegally permitted the plaintiff’s cattle to run at large in Tarrant county and get on the right of way of this defendant in violation of said stock law, which act was negligence on the part of plaintiff and his agents, and was the proximate cause of the death of plaintiff’s cattle, and proximately contributed to the cause of their death, which act of negligence is hereby expressly pleaded in bar of any recovery herein.”

The trial before the court without a jury resulted in a judgment in appellee’s favor, for the sum of $1,362. The judgment rests upon the following conclusions of fact and law filed by the trial court, viz.:

Conclusions of Fact.
“(1) The court finds that a day or two prior to September 1, 1911, 20 bead of Jersey cattle belonging to plaintiff were poisoned on the right of way of defendant and died in consequence thereof, which were then of the reasonable market value of $1,200.
“(2) The court finds that just prior thereto the defendant had put out a poisonous solution on its right of way adjacent to plaintiff’s pastures where said cattle were kept in order to kill Johnson grass on said right of way, and that there cattle went from the pasture of the plaintiff on the west side of said right of way through a gate in plaintiff’s fence which had just been left open by some one unknown to plaintiff and without the fault of plaintiff, and after grazing a few minutes on said right of way became poisoned; that the plaintiff’s agent in charge of s.aid cattle, as soon as he discovered that they were on said right of way, which was only a few minutes after they had passed through said gate on to the right of way, immediately drove them off of said right of way and confined them in a lot.
“(3) The court finds that the plaintiff also had a pasture on the east side of said right of way, and that a public road of Tarrant county ran along on the east side of and adjacent to said right of way between the same and plaintiff’s fence inclosing said east pasture, and that there was a gate in said fence east of the right of way, and also two gates in the fence west of the right of way, and that these pastures were inclosed with lawful fences, and the gates were in good condition, and that the agent of plaintiff in charge of said cattle took every reasonable precaution to keep said gates closed and to keep said cattle within said pastures; that they were driven each day across said right of way, being grazed in the east pasture during the day and in the west pasture during the night; and that the plaintiff or his agent did not permit said cattle to graze upon said right of way and was not guilty of any negligence in the premises.
“(4) The court finds that said pastures and right of way were in Tarrant county about six or seven miles west or southwest of Ft. Worth, and that the defendant in putting out said poison to kill said Johnson grass was aware of the fact that plaintiff had his cattle in said pastures and was driving them to and fro across. the right of way from one pasture to another twice every day, and that these cattle, as well as cattle driven along the public road, were liable to eat said Johnson grass and to be killed thereby, and also knew of said gates in said fences and of the liability of some person passing through them to leave the same open and of the propensity of cattle to graze upon the Johnson grass and failed to notify the plaintiff or his agent of the danger to which it was subjecting said _ cattle in putting out said poison, though it did notify a neighboring dairyman whose pasture adjoined the defendant’s right of way. The court further finds that plaintiff did not know, nor had he been notified, that said solution so distributed along its right of way was poisonous to cattle.
“(5) The court finds that said righf of way was not fenced, and that the defendant took no precaution whatever to prevent plaintiff’s cattle from entering upon said right of way and eating said Johnson grass.
“(6) The court finds that the defendant, in putting out poison on its right of way under the cii’cumstances shown in the evidence, was guilty of gross negligence, and that this negligence was the proximate cause of the death of said cattle.
“(7) The court finds that the stock law prohibiting cattle from running at large in Tar-rant county had been adopted prior to the time when said cattle were killed and was in force at that time.
“Conclusion of Law.
“The court finds that the mere fact that the stock law had been adopted in Tarrant county and was in force when said cattle were killed did not relieve defendant of liability for putting out poison along its right of way between plaintiff’s pastures and within a few feet of a public road, but that under the facts above stated, and under the circumstances more, fully shown by the evidence, it was liable for the consequences of putting out said poison which resulted in the killing of plaintiff’s cattle, and. that this gross negligence on the part of the defendant was the proximate cause of said injury, and that the plaintiff was not guilty of contributory negligence preventing a recovery herein.”

It will perhaps be well to observe that, while the court in his findings states that appellant “failed to notify the plaintiff or his agent of the danger to which it was subjecting said cattle in putting out said poison,” no such ground of negligence was alleged in plaintiff’s petition. It also, appears from the undisputed testimony of the plaintiff that his cattle were in charge of one Crinim, and he testifies without dispute that:

“I knew the grass was poisoned, but did not know it would poison cattle. * * * I seen them passing there and putting out the poison. The noise the car made drawed my attention to it. I had come to town with butter Monday morning and seen the car that had the poison in it standing in the Frisco Yards. It was a kind of a tank car with a cap. It had a label on it, which said: ‘Dinamin. Put up by the Galveston Chemical Company for killing Johnson and Bermuda grass.’ I believe that was what the label said, but I would not be positive. The car that I saw in the Frisco Yards was the car that was afterwards pushed down on this track, and the noise it made distributing the fluid drawed my attention to it. * * * I seen them while they were putting the poison out along the right of way. They put the poison along there in the morning, and that evening the cattle got on the right of way, and the next morning I noticed there was something wrong with the cattle. * * * The poison ran out some eight or ten feet from the end of the ties on each side of the track, and it turned the grass brown like it had been frosted.”

It follows that the plaintiff’s recovery cannot be predicated upon negligence on the part of the servants of the railway company in failing to notify the plaintiff of the fact that the poison had been distributed along the right of way, both because there is no basis in the pleadings for such ground of recovery, and because, so far as the evidence shows, the plaintiff’s agent in charge of the cattle knew as much about it as did appellant’s servants who distributed the substance.

Nor can plaintiff’s recovery be grounded upon the fact that appellant’s right of way was not fenced, inasmuch as his cattle were not killed by appellant’s locomotive or cars, in which event only our statute makes railways absolutely liable for the value of stock killed, irrespective of the question of negligence. R. S. art. 6603; G., H. & S. A. Ry. Co. v. Graves, 164 S. W. 413, and authorities there cited; I. & G. N. Ry. Co. v. Holley, 160 S. W. 990. So that, in determining, the question of plaintiff’s right to recover, we are restricted to the particular grounds of negligence alleged, to wit, that of “putting-out poison * « * without taking any precaution to protect plaintiff’s cattle from entering on said right of way and becoming poisoned.”

In the case of Brown v. M., K. & T. Ry. Co. of Texas, 69 S. W. 178, Brown sued the railway company, alleging that it ■ had permitted Johnson grass to grow up on its right of way, that Johnson grass was attractive to cattle, and that his cattle had been attracted thereto through an insufficient fence and poisoned; but it was held, following a decision of our Supreme Court, that damage or inconvenience by one from a state of things naturally existing upon the land of another furnishes no ground of complaint against the latter. In relation, however, to the question of the liability of one who by artificial means collects upon his own premises substances not naturally arising thereon, which in themselves are dangerous, and which may inflict injury to others if not kept under proper control, Mr. Thompson, in his Commentaries on the Law of Negligence (volume 1, § 696), says that the American doctrine, contrary to that applied by the English Courts, is:

“That one who artificially collects upon his own premises a substance which from its nature is liable to escape and cause mischief to others must" use reasonable care to restrain it and is answerable for any damages occasioned to others through its escape from a want of care.”

Thus showing that in such cases, as an essential predicate of recovery, a plaintiff must show a want of reasonable care on the part of the owner of the land where such substances are collected to prevent injury to others. This principle is recognized in the plaintiff’s petition herein and was, in effect, applied by our Supreme Court in the case of G., C. & S. F. Ry. Co. v. Oaks, 94 Tex. 155, 68 S. W. 999, 52 L. R. A. 293, 86 Am. St. Rep. 835, where it was held that the planting of Bermuda grass by a railway company on its right of way, not being in itself unlawful, would not, unless shown to have been done under circumstances making it an unjustifiable use of its property by the company, render it liable for injuries to the lands of an adjoining proprietor by the spreading of such grass thereon from the right of way.

Can it be said then, in the light of these authorities, that any such negligence on the part of the appellant railway company was shown, as alleged, as will support the recovery in this case? Our statutes under severe penalties forbid railway companies to permit Johnson grass on their right of ways to go to seed (see R. S. 1911, art. 6601), and we know of no statute and none has been cited, which makes it unlawful to kill such grass by substances which in their nature may be poisonous. We know as a matter of common knowledge that poisonous substances are frequently used by owners of land to eradicate harmful growths, insects, and animals, and we know of no case holding that the mere fact that such poisonous substances used by such owners on their own premises is an insurer against harm that may arise to persons or animals that may intrude upon such premises without the consent of the owner. If then, as we think it must be held, the mere fact that appellant used the poisonous substance in question upon its right of way will not support the recovery in this case, what further act of negligence may be relied upon? It was alleged, in substance, that no precaution had been taken to protect plaintiff’s cattle from entering the right of way; but it is undisputed that the fences upon either side belonged to the plaintiff, the gate through which the cattle entered was his, the duty and burden of keeping the gates closed not only rested upon the plaintiff, but was actually assumed by his agent as such agent expressly testified. S. A. & A. P. Ry. Co. v. Robinson, 17 Tex. Civ. App. 400, 43 S. W. 76; M., K. & T. Ry. Co. of Texas v. Hanacik, 23 Tex. Civ. App. 394, 56 S. W. 938; St. L. & S. W. Ry. Co. of Texas v. Adams, 24 Tex. Civ. App. 231, 58 S. W. 1035. The court finds, and there is no controversy on this point, that the stock law was in force in the locality under consideration. Under the terms of this law, it was not only unnecessary that the railway company should fence against stock (see R. S. 1911, art. 7227), but it was also unlawful for the plaintiff to permit his cattle to run at large (see R. S. art. 7248). The appellant company therefore was not bound to foresee that stock might be running at large on its right of way. See M. K. & T. Ry. v. Scofield, 98 S. W. 435; H. & T. C. Ry. Co. v. Hollingsworth, 29 Tex. Civ. App. 306, 68 S. W. 724; H. & T. C. Ry. Co. v. Atlas Press Brick Works, 36 Tex. Civ. App. 368, 81 S. W. 792. On the contrary, appellant had the right to assume that the plaintiff would keep his gate shut, as it was his duty to do, and thus prevent the stock in his inclosed pasture from entering upon the right of way. What further act of care on appellant’s part could reasonably be required? Must it be held that, having put out the poison in question, it was the duty of the railway company under the circumstances to post a guard at each of the gates in appellee’s pasture, or to station guards along its right of way to prevent trespassing cattle from entering thereon? We think not.

In Slayton v. Fremont, etc., Ry. Co., 40 Neb. 840, 59 N. W. 510, a railroad company left torpedoes in a section house situated on its right of way. The doors and windows of the house were closed and locked; but there was a hole in one of the windows, through which a child put its hand and unlatched the bolt. After raising the window and entering the house, the child got one of the torpedoes and was injured by it. The court held that the company was not liable. The torpedoes were dangerous instruments, and the company was bound to use care in protecting them; but it was not bound to render it impossible for trespassers to get to them, as it might have done by. putting iron bars on the windows.

In Badali v. Smith, 37 S. W. 642, defendant owned a vicious dog, which he kept confined on a lot inclosed by a high fence. Plaintiff’s son saw the dog and put his hand through the fence. The dog bit the child, but the court held, in effect that under such a state of facts the defendant would not be liable, for he was not bound to make it impossible for strangers to be injured by the dog, in spite of their trespasses.

In McCutchen v. Gorsline, 39 Tex. Civ. App. 146, 86 S. W. 1044, defendant owned an uninclosed lot in a town, where the stock law was enforced. The lot had an open well on it, and plaintiff’s horse, running at large, fell into it. The court held that defendant was not liable unless he was guilty of gross negligence, and the fact that the well was on an open lot in a thickly populated district did not show gross negligence as against owners of stock.

The only thing that appellant might have done towards better safeguarding the poison, which it did not do, was the placing of guards at the gates or along the right of way where the poison was located. This doubtless would have made it impossible for the cows to get to the grass. But it is difficult to see that the failure to do this constituted gross negligence, as alleged, and, under the cases cited,' appellant cannot be held liable unléss it was guilty of gross negligence.

It is urged that the company should have notified appellee that it was going to put out the poison. But in addition to what has already been said on this subject, there is nothing to show that this would have prevented the accident. The trial court found that appellee was not negligent in the manner in which he kept his fence, and there is no evidence to show that he would have locked the gate, or kept a closer watch out had he been specially notified. Furthermore, the negligent or willful act of the third party in opening the gate might have been committed while appellee’s agent was away from home or asleep and in no position to discover it in time. In such case, notification would have been without effect. A train is dangerous to cattle on the right of way as well as poison, yet plaintiff evidently thought that the fence was sufficient to protect his stock from trains, and, as stated nothing appears that indicates that the failure to give notice is material.

Under the authorities and circumstances already stated, the burden of preventing the .escape of appellee’s cattle and entrance upon the right of way rested at least with as great force upon the plaintiff as the defendant, and we see no sufficient reason to hold that the result which followed the unauthorized act of some person in leaving plaintiff’s gate open should be borne by the appellant rather than the plaintiff himself. Under very similar circumstances, this court held, in the case of St. L. & S. W. Ry. Co. v. Bailey, 168 S. W. 406, that the railway company was not liable for the death of Bailey’s cattle which had escaped through a pasture gate fence and drank oil upon the right of way, which it was alleged had been negligently collected there. So, in Mayberry v. Mill Co., 112 Tenn. 564, 85 S. W. 401, the Supreme Court of Tennessee held that the owner of a shed in which nitrate of soda sacks were stored was not bound to keep its premises safe from trespassing animals, nor liable for the death of a cow caused by her straying into the sheds and eating the sacks. Stress has been laid upon the fact that in this case there was a public road along the south side of the right of way, and that the plaintiff’s cattle were driven one or more times a day across the right of way from one pasture to the other. Had the injury complained of in this case happened to cattle lawfully driven along the right of way or across the right of way from one pasture to the other which had accidentally escaped from caretakers, a different holding might possibly be required. In such case, it might be properly said that appellant could, in placing the poison, reasonably have anticipated such a result; but appellant’s duty to stock lawfully passing along the highway is not here involved. I. & G. N. Ry. v. Vallejo, 102 Tex. 70, 113 S. W. 4, 115 S. W. 25. It must be measured by the circumstances of the particular case, and the accident here complained of arose in no such way. It was such as in a legal sense could not reasonably have been anticipated See Railway v. Bailey, supra.

We conclude that, except as herein otherwise stated, the court’s findings of fact should be adopted, and the judgment reversed and here rendered for appellant.

BUCK, J., dissenting.
      tg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    FRANCIS v. CORNELIUS.
    (No. 8056.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1914.
    On Motion for Rehearing, Jan. 23, 1915.)
    1. Evidence ' <&wkey;444 — Parol — Conditional Liability — Bonds.
    Where defendant, who signed a bond, made it a condition that the signature of others should be procured, and that condition which was agreed to by the o.ne presenting the bond for signatures was made known to the obligee before delivery, evidence thereof is admissible in a suit on the bond where the signatures of the others were not procured.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. &wkey; 444.]
    2. Appeal and Error &wkey;>216 — Objections at Trial — Necessity—Requests for Instructions.
    Where plaintiff sued on a bond both as obligee and assignee of an obligee, he cannot complain of the general admission of evidence of a condition precedent to the obligor’s liability, which was binding on plaintiff, but not his assignor, where there was no request to limit such testimony to plaintiff’s suit as ob-ligee.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <®=>216; Tidal, Cent. Dig. § 627.]
    3. Guaranty <&wkey;25 — Actions—Evidence.
    In a suit on a bond, evidence held not to show that plaintiff’s assignor knew of a condition precedent to the obligor’s liability.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 102, 103, 104; Dec. Dig. &wkey;25.]
    4. Guaranty <&wkey;32 — Right op Assignee.-
    Where, one of the obligees of a bond, who did not know of a condition imposed by the obligor, assigned his interest to the other ob-ligee, who knew of the condition and was bound thereby, such obligee may recover as assignee, though he could not recover as obligee.
    [Ed. Note. — For other cases, see ■ Guaranty, Cent. Dig. § 35; Dec. Dig. <&wkey;32.]
    5. Guaranty i&wkey;25 — Actions—Evidence.
    In a suit on a bond, evidence held to sustain a verdict that the obligor notified the ob-ligee- that he would not be bound unless the signatures of others were procured.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 102, 103, 104; Dec. Dig. &wkey;25.]
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Action by M. H. Francis against J. W. Cornelius. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    J. W. Boynton and Walter S. Pope, both of Anson, for appellant. Brooks & Brooks and Chapman & Coombes, all of Anson, for appellee.
   BUCK, J.

This was an action by appellant in his own behalf, and also as the owner by transfer of the claim of T. M. Harrell, instituted December 13, 1913, in the district court of Jones county, against Lige Davis, Geo. H. Baker, F. E. Hudson, George Eoff, J. L. Keen, and appellee, J. W. Cornelius, upon the following bond:

“We, the undersigned persons, do hereby jointly and severally bind and obligate ourselves, our heirs and assigns, to, on January I, 1912, pay to T. M. Harrell and M. H. E’ran-cis, and each of them, the sum of twenty-five thousand dollars, with interest thereon at 10 per cent, per annum from the 1st day of January, 1912,. together with 10 per cent, attorney’s fees if sued on, or placed in the hands of an attorney for collection, to He levied on our respective goods and chattels, lands, tenements.
“The conditions, however, of this obligation are such that whereas on this day the said T. M. Harrell and M. H. Francis have each respectively executed to the Farmers’ & Merchants’ National Bank of Anson, Tex., their respective notes for twelve thousand five hundred dollars each, each of said notes bearing even date herewith, and to become due on January 1, 1912, and bearing interest after maturity at 10 per cent, per annum, and providing for 10 per cent, attorney’s fees, if sued on or placed in the hands of an attorney, and are secured by two deeds of trust, executed respectively by the said T. M. Harrell and M. II. Francis, to D. T. Bomar, trustee.
“As between the makers and the payee of said notes they are each accommodation paper, and were executed to 'said bank at the request4 of the undersigned for the purpose of enabling said bank to relieve tbe undersigned and others from the embarrassment caused by the suspension of said bank.
“Now, therefore, if the undersigned. shall well and truly protect and save harmless the said T. M. Harrell and M. H. Francis and each of them from the payment of any and all sums of money on said note and each of them, except is/soo of such net sum as the said T. M. Harrell shall be required to pay on his note to said bank, and 10/3oo of such net sum as the said M. H. Francis may be required to pay on his said note to said bank, then this obligation to be null and void; otherwise to remain in full force and virtue.
“In witness whereof we hereunto sign our names on this 22d day of December, A. D. 1910.
“Geo. I-I. Baker.
“Lige Davis.
“Isaac Hudson Est.
Ms
“Geo. X Eoff. mark
“J. W. Cornelius.
“J. L. Keen.
“Witness as to signature of Geo. Eoff: D. T. Bomar and Lige Davis.”

The court rendered judgment by default against Lige Davis, Geo. Eoff, and J. L. Keen; and in favor of Geo. I-I. Baker on Ms plea of discharge in bankruptcy; and in favor of F. E. Hudson, by sustaining a general demurrer to plaintiff’s petition, which alleged that F. E. Hudson had signed the name Isaac Hudson Est. (by Est. meaning estate) in said bond sued on; and in favor of J. W. Cornelius, appellee — from which judgment, as to Cornelius, appellant appeals.

Said bond or written contract was executed under the following circumstances, to wit: December 15, 1910, the Farmers’ & Merchants’ National Bank of Anson, Tex., hereafter styled. F. & M. Bank, failed and closed its doors. Its stock consisted of 300 shares of the par value of $100 each, of which stock J. L. Keen owned 20 shares, Lige Davis 58 shares, Geo. H. Baker 70 shares, Geo. Eoff 12 shares, T. M. Harrell 13 shares, M. H. Francis 10 shares, and the other shares being distributed among other parties not necessary here to mention. The comptroller sent a man from his office to make some arrangements for said bank’s liquidation. The First National Bank of Anson agreed to act as liquidating agent, without pay, if the F. & M. Bank would turn over to it all of its assets, and would further secure said First National Bank by depositing with it, in addition to said assets, $25,000 worth of paper secured by real estate. The stockholders of the said F. & M. Bank met, and, after some discussion, M. H. Francis and T. M. I-Iarrell each agreed to execute and deliver to said First National Bank his promissory note in the sum of $12,500, properly secured by a deed of trust on certain real estate, said two notes thus aggregating the $25,000 required, provided the bond hereinbefore set out should be executed by the other stockholders of the said F. & M. Bank, and also certain other parties, including appellee, who were sureties on a certain bond which the F. & M. Bank had theretofore given Jones county; said F. & M. Bank being the depository of Jones county, and the latter bond being in the sum of $125,000, and conditioned as required by law. At this meeting of the stockholders of the F. & M. Bank Lige Davis and Geo. I-I. Baker, the latter being the president of said bank, agreed to secure the necessary signatures of the parties aforementioned to the indemnity bond to said Harrell and Francis, and later Mr. Baker presented the bond to appellee for his signature. Ap-pellee at first declined to sign the same, but, as pleaded and testified by him, finally consented to sign the indemnity bo'nd provided all the shareholders of the F. & M. Bank, except, of course, Francis and I-Iarrell, in whose behalf the bond was given, and the sureties on the bond to Jones county, would also sign it. As will be seen from recitations of the bond heretofore set out, the condition of the bond was that, if • the ob-ligors should protect and save harmless appellant and his assignor from the payment of any and all sums of money on said notes, except that appellant should pay r»/30o and his assignor 13/3oo> the obligation should be void.

In his petition appellant alleged that he and his assignor had executed said notes and deeds of trust, and had fully complied with their part of the conditions of said bond, and had been required to pay on said notes certain sums, which, reduced by collections made of the assets of said F. & M. Bank and payments made by other defendants than appellee, left a balance of $3,912.-09 on the note, of appellant, and $5,964.16 on the note of his assignor, which sums had not been paid, and for which sums, and 10 per cent, interest thereon, and $450 attorney’s fees, appellant prayed judgment, and the costs of suit and general and special relief.

Appellee, J. W. Cornelius, answered under oath, denying categorically the allegations of plaintiff’s petition, except that he admitted the signing of said bond by him and the execution of said notes and deeds of trust by appellant and his assignor, and that he had paid nothing to either appellant or his assignor on said bond of indemnity. He further pleaded that he was never a stockholder in said F. & M. Bank; nor interested in same, but was a surety on the depository bond of said bank to Jones county with 10 other parties; that 17 named parties were the stockholders of said bank; that on the 22d day of December, 1910, Geo. H. Baker, one of the principal stockholders of said bank, presented him with said bond sued on, and represented that all the stockholders of said bank and all the sureties on said depository bond would sign the same, and that, relying on said representations, he signed said bond with the distinct understanding and agreement that said bond was not to be binding upon him, and was not to be delivered, unless signed by all of said parties; that said Baker, in securing the signature of appellee, was the agent of appellant and his assignor; that on the same day appellee met appellant and informed him of the conditions upon which he had signed the indemnity bond, to which conditions appellant agreed ; that said Baker then delivered to appellant said bond for the purpose of appellant’s obtaining further signatures thereto; that, in making said agreement with appellee, the appellant was acting for himself and his assignor, and that both appellant and his assignor had notice of the conditions under which appellee had signed said bond; that other depository bondsmen, 5 named parties, did not sign the bond sued on, and certain stockholders of the bank, 11 named parties, did not sign the same; that appellee did not learn that said bondsmen and shareholders did not sign the bond sued on until after the maturity thereof, and after appellant had demanded of him the payment of same;. that appellant, if he purchased the interest of his assignor, did so long after maturity, and with full notice of appellee’s defense thereto; and that, by reason of the facts stated, the consideration for appellee’s signing said bond had wholly failed, and that he never became liable thereon. Appellee further pleaded that the notes of appellant and his assignor were executed to the F. & M. Bank for the purpose of swelling its assets and to induce the First National Bank to act as liquidating agent, and that, contemporaneously with the execution of said notes, the said banks entered into an agreement whereby the First National Bank was to assume the liabilities of the former and act as its liquidating agent, and said notes and the assets of the former bank were to be turned over to the latter as security; that, as between appellant and his assignor, on the one hand, and the F. & M. Bank, on the other, said notes were accommodation paper, and that said F. & M. Bank and the stockholders, proratably, became liable and bound under said contract to the amount of said notes as principal debtor, and appellant and his assignors were the sureties; that the instrument sued on was for the purpose of protecting appellant and his assignor as stockholders in said F. & M. Bank from the payment of more than their pro rata of the indebtedness of said bank, and, as between the obligors and appellant and his assignor, such obligors were entitled to the protection of the F. & M. Bank and its stockholders for the debt to the First National Bank, for which said notes were security, and were only secondarily liable for the indebtedness after the revenues of the bank and its stockholders were exhausted; that later, and after maturity of said notes on, to wit, January 2, 1912, the F. & M. Bank and the First National Bank entered into a contract, appellant and his assignor participating in and consenting to and ratifying said contract and agreement, whereby the F. & M. Bank turned over to the First National Bank all of its assets, including the notes of appellant and his assignor, in full liquidation of the affairs of the said bank, and in discharge of all claims against said bank and its stockholders, and by which said bank and its stockholders were released from further liability, and by the terms of which contract it was agreed that said notes of appellant and his assignor should each be credited with $3,248, and were to be no longer assets of the F. & Mi Bank, but the property of the First National Bank, and be extended for one year, and be the binding notes of appellant and his assignor to said First National Bank, and that there were to be attached to said notes certain notes apd overdrafts as collateral security, by which acts and agreements the original contract of liquidation was changed and another contract made between said banks and the appellant and his assignor; that, if appellant and his assignor paid anything to said First National Bank, it was upon another and different obligation from that which the bond sued on was made to secure; that appellee, not being a stockholder, did not participate in said contract, and had no notice or knowledge thereof, and did not consent to the release of the F. & M. Bank and its stockholders, and, accordingly, was discharged from liability on said bond, if ever he became liable thereon.

Attached to said answer of appellee were various exhibits, to wit: Exhibit A, the depository bond; Exhibit B, the contract between the F. & M. Bank and the First National Bank, by which the latter agreed to act as liquidating agent for the former; Exhibit O, the final contract between the two banks by which the liquidation was closed; and Exhibit D, the agreement between appellant and his assignor and the First National Bank for the extension of said notes, and that they should have certain credits and become the binding obligation of said parties to said First National Bank.

Appellant, by a supplemental petition, denied that Geo. H. Baker was the agent of himself or of Harrell in procuring the signatures to said bond, and alleged that Baker was the agent of the parties making the bond. 1-Ie denied that he had any agreement with appellee by which appellee was not to be bound on said bond, unless certain parties signed the same, and denied that Baker made any such representations to appellee. He further denied that he, for himself, or as agent for Harrell, ever attempted to secure any signatures to the bond, but that, at the request of Davis, he did attempt to get one J. W. Fowler to sign same. He further denied that he, or his assignor, took the bond with any agreement or understanding that the liability of appellee thereon was contingent on securing the signatures of the depository bondsmen and all the shareholders of said F. & M. Bank. He further denied that any change in the contractual relations between the parties, and as alleged by appel-lee, had taken place subsequent to the execution of the bond, and alleged that the act of liquidating the F. & M. Bank and applying such of its assets as could not be realized upon to the fixed amounts ascertained by the stockholders of said bank to be due by appellant and said Harrell, and the extension of the maturity date of the obligation of appellant and Harrell, to permit further pursuit of said bank’s assets, was carrying out the real contract had between all parties at the time the instruments set out were executed. He admitted the collection of $2,490 from J. A. Mills; collateral notes, which he had accepted as a credit to be applied equally on the two notes sued on. He further alleged that all the balance of the assets of the F. & M. Bank, in the form of collateral notes, which were delivered by the First National Bank to appellant and Harrell, were still in appellant’s possession, and he tendered them in court to the defendants upon the payment to appellant of the balance finally determined to be due by reason of the payment of said two $12,500 notes executed by himself and Harrell. He further alleged that said collateral notes were worthless and had no value.

The cause was submitted to a jury on special issues, and upon said issues the jury fqund: First, that J. W. Cornelius, appellee, did inform Geo. H. Baker, at or before the time he signed the contract or indemnity bond, that he would sign the same only on the condition that it should be signed also by the shareholders other than said Francis and Harrell, of the F. & M. Bank, and by the other sureties on the bond given by the F. & M. Bank to Jones county; second, that appellee did state in a conversation between himself, Geo. IT. Baker, and appellant, at or before the delivery of 'the contract sued on, that he signed the same only on the condition that the other signatures thereto should be secured; third, that Geo. H. Baker, in securing the signatures of appellee to the indemnity bond, acted as the agent of the F. & M. Bank; and, fourth, that in securing said signatures, said Baker did not act as the agent of appellee. Upon the issue as to whether said Baker, in securing the signature of appellee, was acting as the agent of M. H. Francis, or whether he was acting as the agent of T. M. Harrell, the jury disagreed.

Upon the verdict of the jury, as hereinbe-fore set out, the court entered judgment in favor of appellee, and a judgment was entered as to the other parties defendant, as hereinbefore set out.

In his first assignment of error appellant complains of the action of the court in overruling plaintiff’s objection to the ap-pellee, J. W. Cornelius, testifying, in substance, that Mr. Baker had told him that all of the stockholders of the F. & M. Bank and all of the sureties on the bond to the county were to be on this indemnity bond, and that said indemnity bond was not to be good unless they did sign it. Appellant urges that the ruling of the trial court was erroneous,, for the reason that it had not been shown, and was not thereafter shown, that said Baker was the agent of the appellant or of his assignor, and, further, neither of said last-named parties had authorized Baker to make any such statement, and that neither of said parties had any notice of said conversation between Baker and appellee before they accepted said bond and delivered their two notes to the First National Bank. We think that this evidence was admissible as against appellant upon appellee’s plea of such agreement between him and Baker first, and thereafter between him and appellant. Appellee testified that after the conversation between him and Baker, and the promise by said Baker to secure the other signatures mentioned, and the stipulation on the part of appellee that they should be secured before the instrument would become binding, he had a conversation during which appellant was present and in which appellant participated, and that appellant agreed to the condition upon which appellee claimed he had signed the bond in the first instance, and that such agreement by appellant was made prior to delivery of the bond. Therefore we think that this testimony was admissible in due course of evidence as against appellant, as to that part of his claim which was predicated upon the balance alleged to be due and unpaid to him individually and in his own right. While it probably was not admissible as against his assignor, yet, being admissible as to one item of the • appellant’s claim, it was the duty of the appellant, in case he did not believe that such testimony was admissible as to the claim that he further set up as the assignee of T. M. Harrell, to request the court to instruct the jury, limiting such testimony only as to the first item of his claim, and, having failed to do so, he cannot now complain. Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574; Walker v. Brown, 66 Tex. 556, 1 S. W. 797; Roos v. Lewyn, 5 Tex. Civ. App. 593, 23 S. W. 450, 24 S. W. 538; Brin v. McGregor, 64 S. W. 78. Said assignment is overruled, and likewise the second assignment, which in another form involves the same principle.

In his third assignment appellant urges that the judgment of the trial court is contrary to the law and unsupported by the evidence, in that the undisputed evidence shows that the appellee, Cornelius, executed and delivered said bond to one of the coobligors — to wit, Geo. H. Baker — informing said Baker when he executed the same that he (appellee) would sign it only on the condition heretofore mentioned, and that thereafter said bond was delivered by said Baker to Mr. Harrell, assignor of appellant, without said condition precedent having been performed, and without notifying the said Harrell that the said Cornelius had prescribed any such condition precedent. As his fourth assignment, in part, involves the same question, we will discuss both assignments together.

In the fourth assignment appellant complains, in substance, that the judgment of the trial court is contrary to the law and without support of the evidence, in that the court did not render judgment in favor of appellant Lor $5,964.16, that being the amount of damages alleged to have been suffered by T. M. Harrell on said indemnity bond, for the reason that the undisputed evidence shows that said T. M. Harrell, appellant’s assignor, did not have any knowledge or notice of any stipulations on the part of ap-pellee as to the conditions upon which he executed said bond at the time said bond was delivered to said Harrell; that said Harrell, for a valuable consideration, sold and transferred all his rights under said indemnity bond, and the damages thereunder, to appellant prior to the institution of this suit. We believe that this assignment is well taken and should be sustained. From an examination 'of the statement of fact we find no evidence that shows, or tends to show, that T. M. Harrell at the time the bond was delivered to him had any knowledge or notice of the condition upon which it was signed by appellee or claimed to have been signed by him. While Geo. H. Baker and the appellee both testified to a conversation, during which said Baker and appellee and Francis were present, in which conversation appellee stated to Francis the condition upon which he had signed the bond, and that Francis agreed thereto, yet there is no evidence as to any knowledge on the part of Harrell as to such conditional execution of the bond by appel-lee, and Mr. Harrell testified that he did not know of any such condition precedent hav-’ ing been stipulated by the appellee. In reference to this matter he testified, in part, as follows:

“No, sir; nothing- was said to me about the condition that Cornelius had demanded before he should become liable on that bond. I did not hear anything of that kind at all. No, sir; nothing at all was said in that conversation between Davis and Baker and Francis and myself when I first saw that bond with reference to Cornelius’ liability, or as to whether he had demanded that there should be further signatures on the bond before he would be liable on it; I never heard anything of that kind at all. The first time that I ever heard anything at all about such a claim by Cornelius was some time during the summer of last year; that is, during the summer of 1913. I had a conversation with Cornelius about it some time during 1913.”

The appellee testified as follows:

“No, sir; I never had any conversation with Mr. Harrell about this matter until long afterward. I did long afterwards tell Mr. Harrell that I would not be responsible on that bond unless they all signed it. At the time that I signed the bond — the indemnity bond — I did not know Mr. Harrell, but I knew him afterwards.”

There is no evidence to show that Geo. H. Baker, in securing the signature of appellee, was acting as the agent of said Harrell, and, the jury having failed to answer the special issue No. 4, with reference to said matter, we are required to find, and do find, that' the court, in entering his judgment, was controlled in his findings as to this issue by the un-controverted evidence.

The question is then presented to us as to whether Francis, who had notice of the conditions upon which appellee signed the bond, can, as assignee, set up any superior claim by reason of his assignment from Harrell, who had no such notice of appellee’s right and claim. It seems that the authorities hold that a subsequent purchaser with notice who acquires title from a former purchaser for value and without notice succeeds to all the rights of his grantor. Thomason v. Berwick, 52 Tex. Civ. App. 153, 113 S. W. 567; Johnson v. Newman, 43 Tex. 642; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; French v. Strumberg, 52 Tex. 92; Baldwin v. Root, 90 Tex. 552, 40 S. W. 3; Fordtran v. Perry, 60 S. W. 1000; French Finch & Co. v. Hicks et al., 52 Tex. Civ. App. 427, 114 S. W. 693; 1 Cent. Dig., title “Vendor and Purchaser,” vol. 48, §§ 580, 581. Therefore this assignment is sustained, and likewise the third, in so far as it affects this item of $5,-964.16.

In the fifth assignment appellant complains of the action of the trial court in refusing to submit the special charge which purported to define “time of delivery.” We do not think there is any merit in this specification, and overrule the assignment.

In his sixth assignment appellant complains of the verdict of the jury in response to the second special issue, in answer to which the jury found that the appellee, Baker, and appellant, before the delivery of the contract to appellant, had a conversation in which the appellee informed appellant of the conditions upon which he had signed the bond, and that appellant agreed to such limitation, and urges that said verdict upon such issue is contrary to and unsupported by the evidence. Since appellee and Baker both testified positively to such conversation, we think that there is no merit in this contention, and overrule said assignment.

In view of our disposition of the case, rendered necessary by reason of our sustaining the third, in part, and the fourth assignments of error, we do not deem it necessary to discuss appellant’s seventh assignment of error.

It is the order and judgment of this court that the judgment of the trial court be reversed, and that judgment be rendered for appellant as to the item of $5,964.16, together with 10 per cent, interest from January 13, 1914, and that as to such amount judgment be had against appellee, but the judgment in favor of appellee as to appellant’s claim in his own right be affirmed; and that judgment of the trial court as. to other parties not appealing be undisturbed, and that the costs of this appeal be adjudged against appellee.

On Motion for Rehearing.

Appellee has filed an able and vigorous argument on his motion for rehearing, but, after a careful consideration of the same, and an examination of the authorities cited, we do not believe we would be justified in changing our conclusions reached in the original opinion, except as to the amount of recovery upon the Harrell obligation. It seems we were in error as to such amount, which error was induced, in part, by a mistake in various places in appellant’s brief as to what the balance was on the Harrell claim. The amount should be for $5,475.39, and for this amount judgment is hereby rendered for appellant; otherwise the judgment as given in the original opinion is unaltered.

The motion for rehearing is overruled.
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