author: BEESE, J.

text:
    BLAND & FISHER LUMBER CO. v. SCANLAN.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 28, 1913.
    Rehearing Denied Dec. 18, 1913.)
    Sales (§ 177) — Construction ox Contract —Entibe and Seveeable Conteaots.
    Under a contract for the sale of 150,000 feet of “No. 1 common” lumber, more or less, at 811 a thousand feet for 100,000 feet of certain dimensions, and $9 a thousand feet for 50,-000 feet of certain dimensions, the buyer had a right to accept and take so much of the lumber tendered as complied with the contract, and to reject the remainder, and the seller had a right to demand that it accept so much as complied with the contract, since it was a severable and not an entire contract, and hence the fact that part of the lumber tendered was No. 2 common did not justify the buyer’s refusal to accept any of it.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 445-450; Dee. Dig. § 177.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by T. M. Scanlan against the Bland & Fisher Lumber Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Houston, for appellant. L. B. Moody, of Houston, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No..Series & Rep’r Indexes

   BEESE, J.

This is an action for damages in the county court by T. M. Scanlan against the Bland & Fisher Lumber Company. Upon trial with a jury the plaintiff recovered judgment, and defendant appeals.

Appellee sued upon a contract in writing for the sale of 150,000 feet of lumber, more or less, by himself to appellant, 100,000 feet of certain dimensions at ?11 per thousand feet, and 50,000 feet of certain dimensions at $9 per thousand feet, the lumber to be “dry and bright, No. 1 common,” to be delivered to appellant at Cairo, Ill.; the lumber to be shipped at once. Contract dated May 25, 1910. On May 27th appellant notified appellee that the order was canceled. Part of the lumber was shipped, which appellant refused to receive on the ground that the order to fill which the lumber had been bought had been canceled. ’ One car had been loaded, but not shipped. The court limited the recovery to lumber shipped or loaded on cars before ap-pellee received the notice aforesaid. Appellant testified that 15 per cent, of the lumber so shipped (in four several car load lots) was No. 2 common, and 85 per cent. No. 1 common as called for in the contract. There was no evidence as to any custom of the trade which would have rendered this a substantial compliance with the contract.

The only question presented by the single proposition advanced under the two- assignments of error is that, as the evidence indisputably showed that only 85 per cent, of the lumber tendered was of the grade ordered, the court should have given the instruction requested by appellant, which was a peremptory charge to return a verdict for defendant. Pretermitting any discussion of the testimony as to the grade of the lumber, and admitting that only 85 per cent, was of the grade contracted for, the contract was sever-able and not an entire contract, and the rule in such cases with regard to several contracts must be applied. Streeper v. Frieberg, Klein & Co., 3 Wilson’s Civ. Cas. Ct. App. § 240; Holmes v. Gregg, 66 N. H. 621, 28 Atl. 17. The lumber was to be paid for, not in a lump sum, but at a certain price per thousand feet, and the contract called for 150,000 feet, more or less. Clearly, when part of the lumber was tendered to appellant, it had the right to accept and take the 85 per cent, that was up to grade, and to reject the remainder. Appellee would not have been allowed to demand that appellant take all or none. The rule is reciprocal. As appellant had the right as against appellee to take that which was up to the grade contracted for, so appel-lee had the right as against appellant to demand that he do so. Appellant bases his contention for a reversal, under the proposition stated, on the ground that the contract was an entire contract. None of the eases cited by him deal with this kind of a contract. Schreiber v. Andrews, 101 Fed. 763, 41 C. C. A. 663; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Bryant v. Thesing, 46 Neb. 244, 64 N. W. 967; Yassau v. Campbell, 79 Minn. 167, 81 N. W. 829.

Appellant never inspected the lumber, and the contract was canceled by it for the reasons stated before any of it was received. The court did not err in refusing the peremptory charge requested. . The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    JOHNSON v. TINDALL.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 28, 1913.
    Rehearing Denied Dec. 18, 1913.)
    1. FRAUDS, Statute ox (§ 152) — Necessity ox Pleadin».
    The defense of the statute of frauds is available under a general denial if interposed by seasonable objection to testimony.
    [Ed. Note. — For other cases, see Frauds, Statute of Cent. Dig. §§ 363-366, 371, 372; Dec. Dig. § lo2.]

      2. Trial (§ 89) — Contract.
    Plaintiff, who sued defendant and the latter’s son-in-law for medical services rendered to the son-in-law’s wife, testified that defendant orally agreed to pay for the services, but on cross-examination qualified his statement by testimony that defendant agreed to pay only in case his son-in-law did not. Held that, as defendant’s promise to pay was a collateral one, it was void under the statute of frauds (Rev. Oiv. St. 1911, art. 3965), and plaintiff’s testimony was incompetent and should have been excluded on motion made at the close of his cross-examination.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 228-234; Dec. Dig. § 89.]
    3. Trial (§ 95) — Reception op Evidence-Objections.
    In an action to recover for medical services rendered defendant’s daughter, plaintiff’s collect- or testified that defendant told him to get all he could out of the daughter’s husband and that he would pay the balance. It was objected to on the ground that it only showed a promise made after the services had been performed and, not being in writing, was not binding on defendant. Held that, while the testimony was inadmissible because tending to show an oral contract in contravention of the statute of frauds, the court properly overruled the objection made.
    [Ed. Note.' — For other cases, see Trial, Cent. Dig. § 250; Dec. Dig. § 95.]
    4. Malicious Prosecution (§ 71) — Actions for Wrongful Attachment — Punitive Damages.
    In an action for compensation for medical services begun by attachment, where defendant claimed damages for malicious attachment, the evidence held to raise the issue of punitive damages.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 160-167; Dec. Dig. § 71.]
    5.Malicious Prosecution (§ 55) — Wrongful Attachment — Pleading.
    In an action begun by attachment, where defendant’s plea in reconvention did not in terms allege that the attachment was sued out without probable cause but alleged facts showing that it was, such plea is sufficient to support a recovery of exemplary damages.
    [Ed. Nóte. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 106-110; Dec. Dig. § 55.]
    6.Justices of the Peace (§ 173) — Appeal-Judgment Agreement.
    In an action begun in justice court by attachment, where defendant claimed damages for wrongful attachment, the parties entered into an agreement reciting that, since whichever party lost would appeal, the attachment should be quashed, and that the court should enter judgment as he thought proper on the facts, which was incorporated into the judgment. Held. that the agreement did not preclude defendant, after adverse judgment, from asserting on appeal his claim for damages for wrongful attachment.
    TEd. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 660-664; Dec. Dig. ■ § 173.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    Action by C. H. Tindall against Calvin Johnson and another, begun in Justice Court and appealed by defendant to the County Court. From a judgment for plaintiff, the named defendant appeals.
    Reversed and remanded.
    Blount & Strong and J. Mi.. Marshall, all ol' Nacogdoches, for appellant. V. E. Middle-brook, of Nacogdoches, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant and one Will Allen to recover the sum of $117.50, the value of professional services and medicines rendered and furnished by appellee, a physician, to the wife of said Allen, who is the daughter of appellant. At the time of filing the suit in the justice court, the plaintiff procured the issuance of an attachment against the property of both defendants. In his affidavit for attachment plaintiff swore: “That the said defendants, Calvin-Johnson and Will Allen, secrete themselves so that the ordinary process of law cannot be served upon them. * * * And that plaintiff will probably lose his debt unless such attachment is issued.” The attachment vías levied upon two mules belonging to appellant, which he replevied. Appellant answered in the justice court by a sworn denial of plaintiff’s claim against him and by a plea in reconvention sought to recover of plaintiff $200 damages for suing out the attachment against him, which he averred was wrongfully, willfully, and maliciously sued out without probable cause. Upon a trial in justice court the following judgment was rendered: “This day this cause came on to be heard upon the regular order of the call of the docket, whereupon came the plaintiff, C. H. Tindall, both in person and by counsel, and also came Calvin Johnson, in person and by counsel, and the defendant Will Allen, though duly called and having been duly cited, answered not but wholly made default herein. Wherefore the plaintiff introduced his evidence, and the court, after hearing the evidence, believes the plaintiff ought to recover'against the defendant Will Allen the full amount sued for. It is therefore ordered, adjudged, and decreed that the plaintiff, C. H. Tindall, do have and recover of and from the defendant Will Allen the sum of $117.50, together with 6 per cent, per annum interest thereon from the 1st day of January, 1910, and all costs in this behalf expended, for all of which let execution issue. Then came on to be heard the case as between C. H. Tindall and the defendant Calvin Johnson. The defendant demanded a jury. Both sides announced ready for trial, and six good and lawful jurors were impaneled, to wit, L. T. Blake, foreman, and five others, who, after hearing the evidence and argument of counsel, reported to the court that it was impossible for them to agree, and, having considered of their verdict a reasonable time, they were discharged by the court and a mistrial entered. Then came the 'attorneys-for both the plaintiff and defendant and announced to the court that it was certain that, whichever party to this suit lost in this court, that same party would appeal the ease to tile county court, and further announced to tlie court that it was agreed by and between the plaintiff and defendant that the affidavit and bond and the writ of attachment sued out in this case should be quashed and held for naught, and that the court might enter such judgment from the facts of the ease as he thought proper. It is therefore considered by the court, and it is so ordered, adjudged, and decreed, that the affidavit and bond for attachment, the writ of attachment with the agreement of the parties, C. H. Tindall and Calvin Johnson, is in all things held for naught and quashed, and therefore that the defendant Calvin Johnson take nothing by his plea for damages. It is the further order of the court that the plaintiff take nothing by his suit as against Calvin Johnson, and that said Calvin Johnson go hence without day, and that he recover of and from the plaintiff, C. H. Tindall, all costs in this behalf expended. The plaintiff then presented to the court his oral motion for a new trial, which is in all things overruled by the court. Whereupon plaintiff gave notice of appeal to the county court of Nacogdoches county, Tex.”

The trial in the county court with a'jury resulted in a verdict and judgment in favor of plaintiff against the defendant Allen for $117.50 and against the appellant for said sum, less the sum of $2.50, which the jury found to be the actual damages sustained by appellant because of the wrongful suing out of the attachment.

The plaintiff testified: “I was called to see Will Allen’s wife on or about October IS, 1909. One of Calvin Johnson’s boys came after me. Will Allen’s wife was then at her father’s, Calvin Johnson. When I arrived at Calvin Johnson’s house, I sent for Calvin to come to the house, and when he came I advised him that an operation was necessary on Will Allen’s wife, and told him I would not perform the operation unless he would agree to pay for the same, and he promised me that he would pay for the operation. There was no one present when this conversation took place except myself, Calvin Johnson, and Calvin Johnson’s wife. I after-wards performed the operation on Will Allen’s wife, for which I charged Calvin Johnson $100, and made some other visits to her and furnished her medicine, making the total amount, including the operation, $117.50. This amount is due me by Calvin Johnson, and he has never paid me anything on it.” On cross-examination he further testified: “The substance of the conversation that I had with Calvin Johnson at the time I sent for him to come up to the house, and before the operation was performed, and before I did any medical service for Will Allen’s wife, was that I told Calvin Johnson that I would not do any work or perform the operation on Will Allen’s wife and look to Will Allen for the pay because he was a transient negro, going from one sawmill to another, and he (Cálvin Johnson) told me to go ahead and perform the operation, and if Will Allen did not pay for it he would. Calvin Johnson never did at any time promise in writing to pay this debt.” Appellant objected to this testimony and asked the court to withdraw it from the jury because it showed that “the defendant Calvin Johnson did not bind himself primarily to pay said debt but only to become security therefor, and said promise, being verbal and not in writing, would not bind the defendant Calvin Johnson legally to pay said debt.” The motion to have this testimony withdrawn from the jury should have been sustained. It is well settled that the defense of the statute of frauds is available under a general denial if interposed by seasonable objection to testimony. International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93. This testimony conclusively shows that appellant’s promise to pay for the services rendered by appellee to his daughter was a collateral and not an original undertaking. The appellee’s statement on cross-examination that appellant promised to pay for the operation “if Will Allen did not” is not in conflict with his statement on direct examination that appellant “promised that he would pay for the Operation” but explains said statement by showing the form of the promise and the condition attached thereto. Taking his testimony as a whole, there is no issue as to the character of the promise and undertaking of the appellant. 1-Ie only became security for the payment of the debt by Will Allen, and his promise, not being in writing, is unenforceable. Article 3965, Revised Statutes 1911; Rentfro v. Lancaster, 10 Tex. Civ. App. 321, 31 S. W. 229; Loftus v. Ivy, 14 Tex. Civ. App. 701, 37 S. W. 766; Nichols v. Dixon, 85 S. W. 1051.

Ollie Strode, a witness for plaintiff, testified that he had plaintiff’s account for collection and saw the appellant .in regard to it. The witness was then asked by plaintiff’s counsel what appellant said to him as to whether or not he would pay the account. To this question the witness answered: “He told me to get all I could out of Will Allen, and he would pay the balance.” Appellant objected to this question and answer on the ground, in substance, that they only showed a promise on the part of appellant to pay plaintiff’s claim made after the services had been performed and, not being in writing, was not binding on appellant. This objection was overruled, and the testimony admitted. Appellant at the close of the testimony asked the court to instruct the jury that they could not consider the above testimony of the witness Strode as evidence of liability on the part of appellant for the payment of plaintiff’s account. This charge was refused. We think this testimony was subject to the objection that it only showed a promise on the part of appellant to pay the debt of the defendant Will Allen, and such promise, not being in writing, created no liability on the part of appellant. This objection, however, was not made to its introduction. The fact that the promise to pay was made after the service was performed might render it void for want of consideration but would not make such promise obnoxious to the provisions of the statute of frauds, and the court did not err- in refusing to exclude the testimony on the objection made.'

On the issue of appellant’s claim for damages for wrongfully suing out the attachment against him, he testified: “On the 10th day of October, 1911, when Dr. Tindall (ap-pellee) made the affidavit for attachment in this ease, I was either in the town of Apple-by or on my way from home to said place. The writ of attachment was levied on two mules that I was driving in the town of Ap-pleby. These mules were at that time reasonably worth on the market $400. At that time, and at no other time during my life, have I secreted myself in any manner to avoid the service of the ordinary process of law. On the 10th day of October, 1911, or any time just prior thereto, covering a period of several months, I had not been away from home except to go to Appleby, where Dr. Tin-dall lives, or to come to Nacogdoches, about 12 miles away. At the time Dr. Tindall made this affidavit for attachment, and at the time the writ of attachment was levied, I owned in my own name,’outside,of my homestead, 273 acres of land, most of which was in cultivation. The reasonable market value of this land was $10 per acre. My deed to this land was on record at the time the affidavit for attachment was made by Dr. Tindall in the county clerk’s office of Nacogdoches county, Tex. I also owned on the 10th day of October, 1911, eight head of mules and horses, and the six head outside of the two mules levied upon were reasonably worth on the market $S00. I also owned and had on hand at the time .the affidavit was made for this attachment, to wit, on October 10, 1911, 13 bales of cotton, which was reasonably worth on the market $50 per bale. There was no lien or incumbrance of any kind on the 273 acres of land or on the stock or cotton.”

On this issue appellee testified as follows: “Calvin Johnson lives about three miles from Appleby (the place where I live), and we both lived that close together at the same places on the 10th day of October, 1911, when I made the affidavit for attachment in this suit against Calvin Johnson. I was sworn to that affidavit by the justice of the peace on the 10th day of October, 1911, and I swore in that affidavit that ‘Calvin Johnson and Will Allen secrete themselves so that the ordinary process of law cannot he served upon them.’ At the time I swore to this statement in the affidavit, I had made no investigation with reference to the whereabouts of Calvin Johnson to determine whether or not this statement was true. I had no information from any source upon which to base this statement. I did not know at the time I made this affidavit whether Calvin Johnson was then at home, just three miles away from Appleby, or whether he was then in the town of Appleby. I did see Calvin Johnson in the town of Appleby within an hour or so after I made this affidavit. The writ of attachment was levied on two mules of Calvin Johnson, in the town of Appleby, within an hour after I made the affidavit, and Calvin Johnson himself was driving the mules. I had no reason whatever to believe, at the time I made this affidavit, that Calvin Johnson was secreting himself to avoid the ordinary process of law. I further swore in the affidavit for attachment that I (plaintiff) ‘would probably lose my debt unless such attachment issued.’ I did not know at that time how much land Calvin Johnson had subject to execution and had made no investigation to determine this. I did not know whether he had six head of horses subject to execution or not, and made no investigation to find out. I did not know whether he had 13 bales of cotton on hand at that time subject to execution or not, and made no investigation to find out. I did know that Calvin Johnson was well fixed and owned considerable property. I did not go to the real estate records of this county to see how much more.”

The evidence shows that appellant sustained actual damages by reason of the levy of the attachment, and the jury found a verdict in his favor for such damages in the sum of $2.50. The court in his charge only submitted the issue of actual damages and refused special charges requested by the appellant submitting the issue of exemplary damages. The evidence before set out clearly raises the issue of exemplary damages, and the court should have submitted that issue to the jury. Biering v. Bank, 69 Tex. 599, 7 S. W. 90; Parks v. Young, 75 Tex. 278, 12 S. W. 986; Willis Bro. v. McNatt, 75 Tex. 69, 12 S. W. 478; Farrar v. Talley, 68 Tex. 352, 4 S. W. 558.

Appellant’s plea in reconvention filed in the county court does not allege in terms that the attachment was sued out “without probable cause,” but it alleges facts which, if true, show that no probable cause existed, and is sufficient to entitle him to recover exemplary damages.

The agreement recited in the justice court judgment did not preclude appellant from asserting his claim for damages on the trial in the county court.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: ' TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MARTIN.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 29, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Damages (§ 132) — Excessive Damages— Amputation oe Foot.
    A verdict of $10,500 to a brakeman earning $100 a month for the loss of his foot, the attendant pain and mental anguish, the diminution of his earning capacity, and his loss of time and medical expenses, was not so excessive as to indicate passion or prejudice in the jury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    2. Teial (§ 194) — Instructions—Weight oe Evidence.
    In a brakeman’s action for injuries, an instruction that if, while discharging his duties, he attempted to get upon the train by stepping upon a step upon the tender provided by defendant, and that when he stepped upon it his foot slipped and he was caught under the wheels and injured, and that if such step was made of wood which had worn so that it did not present a square surface, but slanted downward and made it easy to slip therefrom, and dangerous to use in attempting to board the tender, and that its maintenance in such condition was negligence, proximately causing the injury, plaintiff could recover, was not objectionable as a charge upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dee. Dig. § 194.]
    3. Master and Servant (§ 293) — Action eor Injuries — Instructions—Negligence.
    Nor was such charge objectionable as authorizing a verdict in favor of plaintiff, _ even though the defendant had exercised ordinary care to equip the tender with a proper step and to keep the same in repair.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.]
    4. Master and Servant (§ 278) — Action eor Injuries — Sufficiency oe Evidence — Condition oe Step.
    In a brakeman’s action for injuries, evidence held sufficient to show that on account of use and wear the outer top edge of a step on a tender had worn off, so that instead of presenting a square edge on top it slanted downward.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    5. Master and Servant (§ 286) — Action eor \ Injuries — Question eor Jury — Negligence.
    Whether the wearing down of the step of a tender, so as to slant downward instead of presenting a square edge on top, made it more likely that one’s foot would slip therefrom, and whether the maintenance of the step in such condition for the use of employés was negligence, were questions for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    6. Master and Servant (§ 278) — Action eor Injuries — Question eor Jury — Scope oe Employment.
    In a brakeman’s action for injuries by slipping from a worn step on the tender as he was attempting to board after opening a gate, evidence held sufficient to show that at the time of his injury he was in the discharge of his duty.
    [Ed. Note. — For other cases, see Master .and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    7. Master and Servant (§ 278) — Action, eor Injuries — Sufficiency oe Evidence — Step Provided eor Use of Employes.
    In such action, evidence held sufficient to show that such step on the tender was provided for the use of employés in going upon the tender and train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    8. Appeal and Error (§ 742) — Assignments of Error — Sufficiency of Statement.
    An assignment of error, not followed by a sufficient statement of the evidence tending to support it, as required by Courts of’ Civil Appeals Rule 31 (142 S. W. xiii), is not entitled to consideration.,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    9. Trial (§ 255) — Instructions—Requested Instructions.
    An error of omission in the court’s general charge should be supplied by a request for a correct special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    10. Trial (§ 242) — Instructions—Confusing Instructions.
    In a brakeman’s action for injuries by slipping from a worn step on the tender, a charge that, unless the jury found the existence of all the facts enumerated in a previous paragraph of the charge, to return a verdict for defendant, objected to on the gound that whereas defendant was entitled to a verdict unless the step was negligently maintained and was the proximate cause of the injury, irrespective of the jury’s belief of the other matters submitted in the charge, was not confusing.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.]
    11. Appeal and Error (§ 1170) — Ground for Reversal — Instructions—Facts Presented.
    A charge correct in law, which directs a verdict for the defendant on the finding of certain facts, is not ground for reversal, though the defense could be sustained by a finding of fewer facts than were embraced in the hypothesis.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dee. Dig. § 1170.]
    12. Appeal and Error (§ 216) — Objection Below — Necessity of Request for Instructions.
    Such a defect is one of omission, unavailable in the absence of a requested charge.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.]
    13. Appeal and Error (§ 1033) — Party Entitled to Complain — Error Favorable to Party.
    In a brakeman’s action for injuries, a charge that plaintiff could not recover unless the jury should find from a preponderance of the evidence the existence of all the facts enumerated in a previous paragraph of the charge, if erroneous as submitting facts about which there was no dispute, was favorable to defendant, so 'that it could not complain thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.] •

      14. Trial (§ 296) — Instructions—Cure of Ebror — Assumption op Reason.
    In a brakeman’s action for injuries from slipping from a step on the tender, a charge that plaintiff in entering defendant’s service assumed the risks ordinarily incident thereto, but not those growing out of the defendant’s negligence, if objectionable as stating an abstract proposition of law, yet when considered with a special charge for defendant that if plaintiff was injured, and his injury was the result of a risk otfSinarily incident to the character of his employment, he could not recover, correctly submitted that issue.
    [Ed. Note. — For other cases, see Trial. Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    15. Trial (§ 252) — Instructions—Applicability to Evidence.
    In a brakeman’s action for injuries, where it appeared that he had lost all the time between the injury and the trial, that he had been earning from $100 to $115 per month, that a part of his foot was amputated so that he had been unable to earn anything, and that he had intended to continue as a brakeman, a charge that, in estimating the damage, the reasonable value of the time lost in consequence of his injury might be considered, was not inapplicable to the evidence.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    16. Trial (§ 203) — Instructions—Conformity to Issues.
    Where two or more grounds of negligence are alleged as the basis of the plaintiff’s action, and the court submits the case only upon one of them, the other ground of negligence is thereby withdrawn from the jury’s consideration, and the defendant is not entitled to have any special charge relating thereto read to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.]
    17. Master and Servant (§ 110) — Action por Injuries — Charge—Negligence.
    In view of Rev. Civ. St. 1911, art. 6713, requiring railroads to equip their engines and tenders with foot stirrups, and in view of defendant’s nonperformance of such duty, its requested instruction, that it was not required to maintain foot stirrups upon its engines or tenders, was properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 214, 214%; Dec. Dig. §

    18. Trial (§ 260.) — Requested Instructions —Given Instructions.
    Special charges requested by defendant were properly refused, where the subject-matter thereof had been sufficiently charged in the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    19. Negligence (§ 101) — Contributory Negligence — Effect.
    In view of Rev. Civ. St. 1911, art. 6649, providing that plaintiff’s contributory negligence shall not absolutely bar his recovery, but should merely diminish his damages proportionately to his negligence, a requested charge that, if plaintiff was guilty of contributory negligence, he could not recover, was properly refused.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 85,163, 164; Dec. Dig. § 101.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by F. M. Martin against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. V. L. Shurtleff, of Hillsboro, and W. F. Ramsey and Chas. L. Black, both of Austin, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For ether eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   ' TALBOT, J.

F. M. Martin brought this suit against appellant to recover damages, alleging, in substance, that on the 7th day of December, 1912, he was in the employ of appellant in the capacity of brakeman and working on one of its trains then being operated between Corsicana, in Navarro county, Tex., and Hillsboro, in Hill county, Tex.; that when this train reached a point near the station of Mertens, in 1-Iill county, where appellant’s road crosses the .railroad of the International & Great Northern Railway Company, it became necessary and was the duty of plaintiff, as appellant’s brakeman, to open a gate situated and maintained on appellant’s right of way, and then to get back upon appellant’s said train; that in attempting to get back upon the train, the same being then in motion, he stepped upon a step, attached to the front end of the tender, which was provided by appellant for the use of its servants and employe's in getting upon said tender and train; that when the plaintiff, in his effort to go upon said train, stepped upon said step, his foot slipped from the same, resulting in one of his feet being caught underneath the wheel of the train and injured ; that his said foot was mashed and mangled, cut and torn in such a way that it was rendered necessary to amputate a large portion thereof; that such operation was attended with great pain, mental anguish, etc., and his capacity to labor and earn money for all future time is greatly diminished; that at the time of the injury he was earning $100 per month, and that he had lost time and would continue to lose the same, which is reasonably worth $100 per month, and had expended $50 for drugs and medicine. Plaintiff alleged that, at the time of the accident, the defendant railway company was engaged in intrastate commerce, and that it was its duty, under the laws of the state of Texas, to provide said tender with a good and sufficient foot stirrup and to keep the same in proper repair; that defendant failed to provide and keep and maintain such stirrup upon said tender, but provided and maintained a step of a different kind, which was insufficient and more unsafe and rendered the hazard of slipping from said step and being injured much greater than it would have been if the same had been a foot stirrup; and that the failure to have said tender properly equipped with a foot stirrup was negligence on the part of the defendant and the proximate cause of plaintiff’s injury. Plaintiff further alleged that, if he was mistaken in the allegation that defendant’s train was engaged in intrastate commerce, then the same was engaged in interstate commerce, and that under the laws of the United States it was the duty of defendant to have said tender equipped with a good and sufficient foot stirrup, etc., and that the failure to do so was negligence and the proximate cause of plaintiff’s injury. Plaintiff also alleged that the defendant was negligent in maintaining the step in a dangerous and unsafe condition for the use of persons attempting to use it; that the step was of wood, had grown old and rotten and worn in such a way that the same slanted and did not present a square surface or edge,' but slanted downward and rendered it more likely and very easy for one’s foot to slip, which condition and negligence caused the injury; that the defendant was negligent in maintaining the step at a height from the ground which rendered it difficult and dangerous to use; and that it maintained only one step, instead of two, which negligence caused the injury; that the defendant was negligent in not bringing its train to a full stop before crossing the International & Great Northern Railroad track; that, - if it had done so, plaintiff could have boarded the train while it was not in motion, which negligence and failure plaintiff alleged caused his injury.

The defendant .answered by general demurrer, special exceptions and general denial, and specially pleaded that the plaintiff was acting in violation of the rule of the defendant when he attempted to hoard said train at the time and place he did; that under the rule of defendant he was required to board the rear end of the train, and in attempting to board the train in violation of the rule, and while the train was in motion, plaintiff was guilty of contributory negligence ; that it was the custom and the plaintiff’s duty to board the train at the rear, and in failing to do so he was guilty of contributory negligence .and ought not to recover; that the plaintiff’s injury, if he was injured, was caused from attempting to board defendant’s train while it was in motion; and that by reason of his employment he assumed the rj'sk of injury. Plaintiff filed a supplemental petition, replying to defendant’s answer, in which he pleaded a general demurrer, a general denial, and specially that, if the defendant promulgated the rule mentioned in its answer, the same was never known to the plaintiff, or made known to him in any manner whatever; that if such rule had been promulgated it had never been enforced or obeyed; that it was systematically and customarily disobeyed and never followed by any of its employés; and that thereby the rule had been abrogated. The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $10,500, and, defendant’s motion for a new trial being overruled, it appealed.

The first and second assignments of error aré grouped, and assert, respectively, that the undisputed evidence shows that there was no negligence on the part of the defendant, and that the verdict of the jury is excessive. Waiving any objection that might be urged to a consideration of these assignments on the ground that they are too general and cannot be grouped because presenting different and distinct questions for decision, we hold the evidence was sufficient to show negligence on the part of appellant, and that the verdict, while large, is not so excessive as to indicate that the jury were influenced in arriving at the amount awarded by passion, prejudice, or other improper motive.

The court, after properly defining negligence, instructed the jury in the second paragraph of the main charge as follows: “Now if you believe from a preponderance of the evidence that on or about the 7th day of December, 1912, the plaintiff, F. M. Martin, was a brakeman in the employ of the defendant, and that, while in the proper discharge of his duties as such brakeman, he attempted to get upon defendant’s train by stepping upon a certain step located upon the tender of said train, and that said step was provided by the defendant company for the train, and that when the plaintiff stepped upon the said step his foot slipped from same, and on said account his foot was caught underneath the wheel of said train and was injured as alleged in his petition; and if you further believe from a preponderance of the evidence that the said step was made of wood, and the said wood had grown old and worn in such a way that the same did not present a square surface or edge for one to step upon, and that the same slanted downward and rendered it more likely and very easy for one’s foot to slip from said step, and that by reason of such condition, if such conditions there were, the said step was made dangerous and unsafe for the use of persons in attempting to use it in the manner the plaintiff was using it; and if you further believe from a preponderance of the evidence that said step was so maintained by the defendant at the time plaintiff was injured, and that the maintenance of same in such condition, if you find it was so maintained, was negligence, and that as the direct and proximate reisult of such negligence, if any, plaintiff was injured in the manner alleged in his petition — you will find for the plaintiff, unless you find for the defendant under other instructions given you.” Appellant contends that this charge is erroneous because: (1) It is upon the weight of the evidence; (2) because it submits to the jury the issue as to whether or not the plaintiff was in the discharge of his duty at the time he attempted to board the defendant’s engine, there being no evidence that such was his duty; (3) because it submits the issue as to whether or not the step in question was provided by the defendant company for the use of its employés in going upon the tender and train, there being no evidence to authorize the submission of such issue; (4) because it submits the issue as to plaintiff’s getting upon defendant’s train by stepping upon a certain step located upon the cab of the train in question, whereas, there is no evidence that any step was attached to the cab of said train; (5) because it submits the issue as to .plaintiff’s stepping upon a step and slipping from a step maintained on the tender of said train, when there was no evidence that any step was (so maintained; (6) because it submits the issue of whether or not the said step slanted downward and rendered it easy and more likely than otherwise for one’s foot to slip from the same, when there was no evidence in the record authorizing the submission of such issue; and (7) because the charge authorized a recovery on behalf of plaintiff, even though the defendant had exercised ordinary care to equip the engine or tender with the proper step and to keep the same in repair.

The charge of the court is not subject to the criticism that it was upon the weight of the evidence, authorized a verdict in favor of the plaintiff even though the defendant had exercised ordinary care to equip the tender with a proper step and to keep the same in repair, and submitted the issue as to plaintiff’s getting upon defendant’s train by stepping upon a step attached to the cab of the train in question. As will be observed, the paragraph of the charge assailed said nothing about a “step located upon the cab of the train,” but only to the step attached to the tender, and required the jury to And, in order to return a verdict in favor of the plaintiff, that the defendant had equipped the tender in question with a step made of wood, and that it had grown old and worn in such a way “that the same slanted and rendered it more likely and very easy for one’s foot to slip from said step, and that by reason of such condition * * * the said step was made dangerous and unsafe,” etc., and that the maintenance of such a step was negligence, and such negligence the proximate cause of plaintiff’s injuries. It conclusively appeared that the tender was equipped with a wooden step and not with a foot stirrup, and there was ample evidence to raise the issue that said step did not present a square surface, but that it was worn and slanted in such a manner as rendered it more likely that a person’s foot would slip therefrom when used to board the train than if the step presented a square unworn surface- or edge. Plaintiff testified: “That step was just a plain board step, not a foot stirrup. I think the step was about six inches wide and about 16, perhaps 18, inches long. The only thing I noticed with reference to the condition of the step at the time I attempted to board it was that it was rounding, not square. It was worn. The edge of the step was rounding and did not present a square surface. A foot stirrup is made of iron. It would be impossible for your foot to slip from a foot stirrup. It could not slip from the side. It does not wear off rounding like wood.” W. A. Harrison testified: “When this step, which was taken off of engine 192, and which was on the engine on the day that Mr. Martin slipped from it and was injured, was turned out of the shop and was first put on that engine, this top edge was not as rounding at it is at this time. It was just about as square as the bottom edge. The wear on it caused the rounding condition which I find here now.” It appears from the statement of facts that this step had been taken off the engine and was exhibited before the jury, and, moreover, that a picture had been taken of the engine with the step on it, and that these were exhibited before the jury and the trial court. The picture was referred to in their testimony by several of the witnesses. The objection, therefore, that there was no evidence to warrant the submission of this issue, is without merit.

Prom the evidence quoted it is clear that on account of use and wear the outer top edge of the step had worn off, and that, instead of presenting a square edge on top, it showed a rounded edge which necessarily caused the step to slant downward toward the front.

Now, whether the step in this condition made it more likely that a person’s foot would slip therefrom than if the step presented a square unworn surface or edge, and whether the maintenance of the step in such condition for the use of its employés was negligence, were questions of fact for the determination of the jury.

That the evidence was abundantly sufficient to warrant the conclusion that the plaintiff, at the time he slipped and received the injuries complained of, was in the discharge of his duty, and thafthe-step in question was attached to the tender and provided for the use of defendant’s employés in going upon said tender and train, there can be no question. Plaintiff testified that at the time of the injury he was a brakeman -in the employ of defendant; that he was injured at or near Mertens, Tex., where the defendant’s- line-crosses the line of the International & Great Northern Railway Company; that there was. a gate across the track; that this gate was. always closed over one of the tracks; that when a train wanted to cross the employéswould pull the gate around over the other track; that no one was kept there to move-the gate; hut that it was the duty of train brakemen to operate it when their trains approached. He further testified that on the morning of the injury it was closed against his train, and that under such circumstances it was the duty of the brakeman to get off the train and open it; that that was the custom. on all defendant’s trains; that on tlie morning of the injury they did some switching about a quarter of a mile from the crossing, putting some cars in on a siding; and that when the engine came onto the main track again to go back and get the train it was only about a hundred yards from the switch; and that it was then the custom for one of the brakemen to get off and open the gate while the engine went back after the ttain to bring it up; that he got off and swung the gate across the International & Great Northern track; and that, while he was doing this, the engine, as usual, went back after the train to bring it through the gate; that when the engine had gone back to the train it was about a half mile from the gate; and that always when they started they never stopped in coming through the gate, but went right on into the town of Mertens, west of the gate; and that when it came through the gate it always had up some speed probably five or six miles per hour; that he walked back toward the engine after opening the gate so he could catch it at a good place, and before it got to running too fast; that he caught the engine on the step provided on the tender; that this step was on the right-hand side and toward the front of the tender ; and that, when he caught the handhold and lifted himself onto the step, his foot slipped off of it and he was injured. He further testified that the step was not provided with a foot stirrup, and that its edge was rounded off by use, and it did not present a square surface for the foot; that a foot stirrup was a contrivance such as a saddle stirrup, and that one’s foot could not slip off of it; that it was necessary for him to get on the engine at the time he did because they had some cars to set out at Mertens, and because he knew that the train would be going faster if he waited for the rear of the train and then got on. Defendant introduced a rule showing that the proper position of the rear passenger brakeman was on. the rear of his train. The evidence is undisputed that Martin was not a rear passenger brakeman. The train was a mixed train, and it appears without dispute that Martin had nothing to do with the passengers. It was his duty to assist with the freight cars. In this connection appellant makes the following statement in its brief of the evidence: “The undisputed evidence shows that the step was made of wood, and that on or about the 7th day of December, 1912, the plaintiff was a brakeman in the employ of defendant, and that he attempted to get upon defendant’s train by stepping, and that the step was provided by defendant company for the use of employés in going upon the tender and train, and that the plaintiff’s foot slipped, and that on said account his foot was caught underneath the wheel of the train.”

Appellant’s fourth assignment of error relates to the question of contributory negligence and is not followed by a sufficient statement of the evidence tending to support the same as required by rule 31 (142 S. W. xiii) and is not entitled to consideration.

The error complained of, however, is one of omission in the court’s general charge, and the omission should have been supplied by a correct special charge requested by defendant.

Appellant’s fifth assignment of error presents a question raised by its third assignment, just discussed, and is disposed of by what we have already said.

The sixth assignment complains of the third paragraph of the general charge, which informs the jury that, unless they find from a preponderance of the evidence the existence of all the facts enumerated in the second paragraph of the charge, to return a verdict for the defendant. The complaint appears to be that many of the things submitted in the third paragraph of the charge were undisputed, and the jury were bound to believe their existence, and under said charge, if the jury believed the existence of any of said admitted things, they could not find for the defendant, whereas, the defendant was entitled to a verdict unless they believed that the step in question was negligently maintained and that such was the' proximate cause of the injury, irrespective of whether they believed or did not believe the other matters submitted in said charge; that said charge is confusing and improperly presents the defendant’s theory of the case. The charge is substantially a correct application of the law to the facts, is not confusing, and, nothing-appearing indicating that the jury was misled by it, was not affirmative error.

In Railway Co. v. Haberlin, 104 Tex. 50, 133 S. W. 873, it is held that a charge correct in law, which directs a verdict for the defendant on the finding of certain facts, is not ground for reversal though the defense could be supported by a finding of fewer facts than were embraced in the hypothesis submitted ; that such a defect is one of omission unavailable in the absence of a requested charge. Likewise, in Railway Co. v. Hill, 95 Tex. 629, 69 S. W. 136, our Supreme Court, following Railway Co. v. Wood, 69 Tex. 679, 7 S. W. 372, and Railway Co. v. Brown, 78 Tex. 402, 14 S. W. 1034, held that a charge which grouped conjunctively facts establishing distinct defenses and authorized a finding in favor of the defendant only on the establishment of all such facts, there being nothing in the record to indicate that the jury was misled by the charge, was not affirmative error; that the defect was one of omission which should have been corrected by a request for instructions submitting the defenses disjunctively.

Touching the proposition that the charge is objectionable because it submitted to the jury matters of fact about which there was no dispute under .the evidence, it may be said that if this be true the error, if any, was favorable to appellant, and it has no just ground of complaint on that score. As argued by appellee’s counsel, the charge in the respect referred to may have been prejudicial as to the appellee, since it instructed the jury that, unless appellee had proved certain things in said charge enumerated, he could not recover, whereas, in fact he had proved those things by the undisputed evidence. At all events, the error, if error at all, was not of such a character as was calculated to cause the jury to render a verdict which they otherwise would not have rendered.

The court charged the jury that “when plaintiff, F. M. Martin, entered the service of the defendant company, he assumed the risks and dangers ordinarily incident to the service in which he was engaged, but he did not assume any risks growing out of the negligence of the defendant, if there was such negligence.” This charge is objected to on the ground that it merely states an abstract proposition of law without applying it to the facts in evidence. If the charge was objectionable for the reason claimed, which is not admitted, yet when considered in connection with special charge No. 9, given at the request of appellant, it sufficiently and correctly submitted the issue of assumed risk. In said special charge No. 9 the jury were instructed that if they believed from the evidence that plaintiff was injured, and that his injury was th'e result of a risk ordinarily incident to the character of his- employment, to find for defendant.

The eighth assignment complains of that portion of the court’s charge on the measure of damages wherein the jury were told, in effect, that in estimating plaintiff’s damages to take into consideration the reasonable value of the time lost by him in consequence of his injuries. It is claimed that this portion of the charge was error because there was no evidence authorizing a finding that plaintiff had lost any time as a result of his injuries. Clearly, this view of the evidence is incorrect. Plaintiff testified that he was injured on the 7th day of December, 191-2; that he had lost all the time since the day he was injured to the date of the trial of this case; that at the time he was injured he was earning from $100 to $115 per month; that a portion of his foot was amputated; and that he was not at the time of the trial, and had not been since he received his injuries, able to stand on his foot, and had not been able since the accident to earn anything. I-Ie further said: “I had been employed as a brakeman from October 1, 1912, up to the time of my accident and intended to continue in that line of employment.”

The ninth and tenth assignments of error complain, respectively, of the court’s refusal to charge the jury, as requested by appellant, that under the laws of the United States and the laws of the state of Texas defendant was not required to maintain foot stirrups upon its engines, tenders, or trains; that the steps provided and maintained on the engine in question complied with the laws relating to safety appliances; and that if the jury believed the defendant used ordinary care to keep such steps in a good state of repair, to find against the plaintiff on these issues. The court did not err in refusing to give these charges. The failure of the defendant to equip its train with foot stirrups was not submitted to the jury as a ground of negligence upon which a recovery could be based. It is a well-settled rule of practice in this state that where two or more grounds of negligence are alleged, as the basis of the plaintiff’s action, and the court submits the case to the jury only upon one of those grounds, the same constitutes a sufficient withdrawal of the other ground or grounds of negligence from the consideration of the jury, and the defendant is not entitled to have any special charge relating to the question withdrawn read to the. jury. Railway Company v. Ames, 94 S. W. 1112; Railway Company v. Archambault, 94 S. W. 1108. But in the instant case the court went further and gave, at the instance of appellant, an instruction to the effect that all grounds of negligence alleged and not expressly submitted to the jury, and all evidence relating to such grounds, were withdrawn from their consideration, and that they would only consider such issues as were submitted in the charge. The special charge, the refusal-of which is made the basis of the tenth assignment, was an incorrect statement of the law. Under the laws of the state of Texas, it is made the duty of railway companies to equip their engines, cars, and tenders with foot stirrups, and the evidence was undisputed that this duty had not been performed by appellant. Article 6713, Rev. Civ. St. 1911.

Nor did the court err in refusing to give the special charges requested by appellant and made the basis of assignments of error Nos. 11, 12, 13, and 14, because, if for no other reason, the court, in the general charge or special charges requested by appellant, had already sufficiently instructed the jury on the subjects to which said refused charges relate.

The special charge referred to in the twelfth assignment was properly refused for the additional reason that it was erroneous, in that it instructed the jury in effect that if they should find that plaintiff did certain things, and that in doing them he was guilty of negligence, and such negligence caused or contributed to his injury, to find for the defendant, whereas, under the law of this state, although the jury might have believed the plaintiff was guilty of contributory negligence, the same would not bar his right of recovery absolutely, but would merely diminish the damages suffered by him in proportion to the- amount of negligence attributable to him. Article 6649, Rev. Civ. St. 1911.

The other assignments of error are not followed by a sufficient statement, as required by rule 31, showing the evidence requiring the giving of the charges, the refusal of which is complained of, and will not be considered. Some, if not all, of them, however, have been disposed of against appellant by what we have said heretofore.

The evidence supports the verdict, the law of the case was fairly charged, and, no reversible error appearing, the judgment is affirmed.


author: McMEANS, J.

text:
    WILSON et al. v. CARTER.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 1, 1913.)
    1. Municipal Corporations (§ 14) — Organization — Population — Territory — Statutes.
    Sayles’ Ann. Civ. St. 1897, art. 386a, provides that no city or town having less than 2,000 inhabitants shall be incorporated under the general charter act with a superficial area of more than two square miles. RelA, that a city could not be legally incorporated under such section so as to include more than two square miles of territory in which there was less than 2,000 population, and an attempt having been made to do so, the defect was not cured by a resolution of the city council attempting' to reduce the area by eliminating the excess over two square miles.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 34-39; Dec. Dig. § 14. --]
    2. Municipal Corporations (§ 15) — Organization — Territory — Excess — Relinquishment.
    Sayles’ Ann. Civ. St. 1897, art. 386b, enacted in 1895, providing for the relinquishment of territory in excess of two square miles illegally brought within the limits of a certain organized city, applies only to cities incorporated prior to 1895.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 40; Dec. Dig. § 15.)
    3. Municipal Corporations (§ 15) — Organization — Proceedings — validation — Statutes.
    Sayles’ Ann. Civ. St. 1897, art. 386c, validating the incorporation of cities which had included within the territory sought to be incorporated more than two square miles, where their various city councils had restricted the limits to prescribed bounds, only applied to cities which had so acted prior to the adoption of the act in 1897, and had no effect on a city so incorporated' in 1911.
    [Ed. Note. — For other cases, see’ Municipal Corporations, Cent. Dig. § 40; Dec. Dig. § 15.]
    4. Municipal Corporations (§ 15) — Organ-izatio n — Defects—Statutes .
    Rev. Civ. St. 1911, art. 776, validating the organization of cities which have included within their territory more than two square miles, etc., had no application to a city subject to such defect incorporated in April, 1911, but the corporation of which had been dissolved by an election prior to the taking effect of the act in September, 1911.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 40; Dec. Dig. § 15.]
    5. Municipal Corporations (§ 17) — Defective Incorporation — Corporation De Facto.
    Where the proceedings for incorporation of a city of less than 2,000 inhabitants were in- ' valid because more than two square miles of territory were included in violation of Sayles’ Ann. Civ. St. 1897, art. 386a, but the city elected officers who assumed to act for it and in the regular discharge of their assumed duties incurred debts, the city became a corporation de facto, so that on the subsequent dissolution the court was authorized to appoint a receiver to collect its assets and pay debts.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 34-39; Dec. Dig. § 17.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Suit by Mark M. Carter against Charles Wilson and others. From an order appointing a receiver for the City of Dayton in Liberty County, defendants appeal.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellants. Carter & Wilson, of Dayton, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

This is an appeal from an order of the district judge of the Ninth judicial district, made in vacation, appointing a receiver for the city of Dayton, in Liberty county. The appointment was made on the petition of Mark M. Carter, the appellee, who alleged in substance that the city of Dayton had been duly incorporated on the 17th day of April, 1911, under chapter 11, tit. 18, Revised Statutes of Texas, as containing more than 1,000 and less than 2,000 inhabitants, and that the corporation was thereafter abolished by an election duly held on the 29th of August, 1911, and that during the existence of the corporation it incurred debts, and that he was its creditor to the amount of $302.25. Charles Wilson and W. B. Jones, by permission of the court, intervened and resisted the appointment of a receiver, pleading that there never was a valid incorporation of the so-called city of Dayton for the reason that the city, as attempted to he incorporated, included a superficial area of more than two square miles, and further that under the facts the city of Dayton was never a de facto corporation and had no authority to incur indebtedness.

On the issues thus joined the following facts were proved: That on the 10th day of February, 1911, an election was held by qualified voters in the town of Dayton, to determine whether or not the town’ of Dayton should be incorporated under title 11, c. 18, of the Revised Statutes of the State of Texas, as a city having more than 1,000 and less than 2,000 inhabitants. All prerequisites and formalities were duly and legally complied with save and except that the proposed area or territory of the proposed city embraced and included 400 acres in excess of two square miles. That all qualified voters living in said territory participated in said election. That thereafter the city council ascertained that more than two square miles was included within its limits, and by an ordinance or resolution passed reduced the area or territory of title said city of Dayton to two square miles. And that thereafter the said city of Dayton, acting through its duly elected and qualified city officers, proceeded to exercise the functions of a city under title 18, c. 11, of the Revised Statutes of the State of Texas, until the 29th day of August, 1911, on which date an election was duly held, having been ordered by the county judge of Liberty county, Tex., for the purpose of abolishing said city of Dayton, and the qualified voters of the said city of Dayton, by a majority of votes abolished said city of Dayton as an incorporated city under title 18, c. 11, of the Revised Statutes of the State of Texas, and upon the result of said election having been duly declared by the county judge of Liberty county, Tex., the said city of Dayton ceased to exercise any functions of an incorporated city. The evidence further showed that the applicant, Mark M. Carter, is a creditor of the said city of Dayton, in the sum of $302.25, and that there is approximately $1,-100 indebtedness due and owing by said city of .Dayton, incorporated as aforesaid, which includes the $302.25 due the applicant, Mark M. Carter. The said indebtedness was contracted during the time said city of Dayton was operating and acting as a city. It is further proved that the interveners herein, Charles Wilson and W. B. Jones, are residents of the original incorporation and the reduced incorporation of the said city of Dayton, and owned real estate within the limits of the original incorporation and the reduced incorporation subject to taxation, and that they' are qualified voters under the Constitution and laws of the state of Texas.

We will not consider appellants’ assignments of error in detail.

The city sought to be incorporated had a population of less than 2,000 inhabitants and included a territory of more than two square miles; and the incorporation of this area was not authorized by article 386a, Sayles’ Civil Statutes. After the attempted incorporation, the city council of Dayton caused a survey to be made, and, upon ascertaining that the area included 400 acres more than two square miles, attempted to reduce the area by eliminating therefrom the 400 acres improperly included. This was not authorized by law. Article 386b, Sayles’ Civil Statutes, provides for the relinquishment of territory in excess of two square miles; but this article was adopted in 1895, and permits such action by only those cities that were theretofore incorporated. In 1897 the Legislature adopted an act (Acts 1897, e. 59; Rev. Civ. St. 1911, art. 776) validating the incorporation of cities which had, at the time of incorporation, included within the territory sought to be incorporated more than two square miles, but where city councils had theretofore restricted the limits to the prescribed bounds. Sayles’ Civil Statutes, art. 386c. Manifestly this act did not authorize such action on the part of the city council of Dayton after its attempted incorporation in April, 1911. The same may be said of the validating act of 1897, brought forward in Sayles’ Statutes as article 386e. All of these validating acts were re-enacted by the Thirty-Second Legislature in the act adopting the Revised Civil Statutes of 1911; but this act did not go into effect until September 1, 1911 (Rev. Civ. St. 1911, p. 1721, § 19), which was after the election by which the corporation of Dayton was declared abolished. The facts thus standing, the incorporation of the city of Dayton with a territory exceeding two square miles was without the authority of law, and the attempted reduction of the territory was not authorized by the statutes and did not cure the invalidity of the original incorporation. But notwithstanding the irregularity or invalidity of the corporation, a mayor, city council, and other officers were elected, and these officers assumed to act for the city, and in the regular discharge of their assumed duties incurred debts, among others being the one due the appellee. As said by this court-in City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 441, an exactly similar case: “The election to determine whether the city should be incorporated, the result of that election, the organization and election of officers of the corporation, and the assumption of such officers to act for it, created a corporation de facto” — citing White v. Quanah, 27 S. W. 840; Ewing v. Commissioners’ Court, 83 Tex. 663, 19 S. W. 280. We quote further from the opinion: “Even if a municipality has been illegally constituted, the state alone can take advantage of the fact in a proper proceeding instituted for the purpose of testing the validity of its charter. When the question arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law and recognized by the state as such. Graham v. City of Greenville, 67 Tex. 67, 2 S. W. 742; City of El Paso v. Ruekman, 92 Tex. 89, 46 S. W. 25. During the existence of the corporation it incurred debts, which are not questioned as being such as that the corporation could have made had it had a legal existence. By an act approved April 13, 1891 (Laws 22d Leg. p. 95, c. 77), it is provided that; ‘When any corporation is abolished as provided in the preceding article, or if any de facto corporation shall be declared void by any court of competent jurisdiction, or if the same shall cease to operate and exercise the functions of such de facto corporation, all the property belonging thereto shall be turned over to the county treasurer of the county, and the commissioners’ court of the county shall provide for the sale and disposition of the same and for the settlement of the debts due by the corporation, and for this purpose shall have power to levy and collect a tax from the inhabitants of said town or village, in the same manner as said corporation would be entitled to under the provisions of this chapter.’ It seems that before the adoption of this act the property of the citizen could not be subjected to the payment of the debts incurred by a de facto corporation. But since its passage a municipal corporation which is brought into existence by the voluntary action of persons living in the territory sought to be incorporated, by reason of its being a town or city in fact, might be made liable for the debts of what is termed the de facto corporation. Ewing v. Commissioners’ Court, 83 Tex. 666, 19 S. W. 280. The reason given for the rule in the case cited is that, by the net of incorporating with knowledge of the terms of which the law permitted them to do so, the citizens might be held to voluntarily assume the payment of the debts of the de facto corporation. The city of Carthage was •sought to be incorporated subsequent to the adoption of the act in question, and it was then a city in fact which might have been legally incorporated, and it was therefore at least a de facto corporation, and the property of its citizens was liable for the debts incurred by it. This being true, the act of 1905 (Acts 1905, p. 325, c. 134) authorized the district court of Panola county to appoint a receiver of the abolished corporation on the petition of any creditor, and upon a showing, which was made in this case, that the property owned by the city was not of sufficient value to pay all claims legally established against it, to yearly levy a tax upon all real and personal property situated within the limits as previously incorporated, sufficient to discharge the same, not to exceed the rate allowed by existing law for such purposes in said city.”

We do not think it would be profitable to add anything to what is said in the opinion from which we have quoted at such length. We think there was no error in the appointment of the receiver under the facts stated, and that the judgment should be affirmed and has been so ordered.

Affirmed.


author: HODGES, J.

text:
    AUTREY v. COLLINS.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 24, 1913.
    On Motion for Rehearing, Dec. 18, 1913.)
    1. Libel and Slander (§ 112) — Actions for Libel — Sufficiency oe Evidence.
    Evidence, in an action for libel in publishing a statement during plaintiff’s campaign for state senator, that he had not paid a certain note given by him to defendant 'held to ■sustain a finding that the debt evidenced by the note had been satisfied at the time, and that both plaintiff and defendant so considered it.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 325-341; Dec. Dig. §

    2. Bills and Notes (§ 429) — Payment.
    A note for $200 was satisfied and discharged if the maker afterwards presented to the payee a bill for $200 for services in satisfaction of the note and requested that the note be returned, and the defendant impliedly acquiesced in such means of payment, though the note was not returned.
    [Ed. Note. — For other cases, see Bills and • Notes, Cent. Dig. §§ 2168-2172; Dec. Dig. § 429.]
    3. Appeal and Error (§ 499) — Bill of Exceptions — Exclusion of Evidence.
    A bill of exceptions to the exclusion of evidence, which does not state what the objection to the evidence was, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    On Motion for Rehearing.
    4, Appeal and Error (§ 835) — Rehearing —Questions Considered.
    An objection to an instruction, in an action for libel, that it erroneously submitted certain publications as a ground for recovery because the petition did not justify such submission cannot be first raised in a motion for rehearing on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. § 835.]
    Appeal from District Court, Tyler .County; W. B.- Powell, Judge.
    Action by Y. A. Collins against R. L. Au-trey. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. A. Mooney, of Woodville, and Lane, Wol-ters & Storey, of Houston, for appellant. J. A. Harper and Joe W; Thomas, both of Woodville, V. A. Collins, of Beaumont, and H. W. Vaughan, of Texarkana, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

The appellee sued the appellant to recover damages, both actual and exemplary, resulting from certain alleged libelous publications made by the appellant concerning the appellee, during the race of the latter for the state Senate in 1910. We here copy from appellant’s brief the substance of the allegations of the petition:

“Plaintiff alleged that he was a practicing attorney residing at Beaumont; that on or about September 1,1905, defendant employed him in a certain suit, involving the title to a tract of land in Hardin county, Tex., in which the defendant was' interested; that in pursuance of his employment, he, in company with the defendant, made a trip to Sherman, and upon his return to Houston from Sherman, on December 5, 1905, procured a 15-day loan of $200 from the defendant, and executed therefor his promissory note, due 15 days after date; that in further pursuance of his employment he made two trips to Louisiana, and gathered sufficient evidence to ultimately defeat the action; that upon the completion of the work contemplated by his employment he rendered to the defendant a bill for his services about December 15, 1905, in the sum of $200; which he alleged to be reasonable, and which he also alleged was in full settlement and satisfaction of said $200 note; that the defendant never returned the note to him, and did not thereafter demand payment of the same; that the $200 represented by the said note ■was the amount he charged the defendant for the services rendered, and said amount was all the defendant had ever paid plaintiff for said services.

' “It was further alleged that the plaintiff was a candidate for the office of state senator from the Fourteenth senatorial district of Texas, in'the primary election held July 23, 1910; that the defendant wickedly and maliciously, intending to injure him in his good name, fame and credit, and to bring him into public scandal, infamy, and disgrace amongst his neighbors and all good and worthy citizens of said senatorial district, and to cause him to be suspected and believed by his said neighbors and other citizens to have been guilty of dishonesty and unfit for the office to which he aspired, published and circulated, or caused to be published and circulated, in the counties which comprised said district, certain libelous matter, as follows, to wit:

“ ‘His Bluff Is Called.
“ ‘At San Augustine, on the sixth day of July, 1910, Collins said in a speech that if it could be proven that he owed a saloon keeper or brewery any money .he would withdraw from the race. He is now called on to prove that it has been paid or make good his bluff.
“ ‘ “$200.00 Houston, Texas, Dec. 5, 1905.
“ ‘ “Fifteen days after date, for value received, I, we, or either of us, promise to pay to the order of R. L. Autrey, two hundred dollars at their office in Houston, Texas, with eight per cent, interest per annum from date until paid.
“ ‘ “And in the event default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection, or suit is brought on the same, then an additional amount of ten per cent, on the principal and interest of this note shall be added to the same as collection fees. This note is one of a series of notes, and in event default is made in the payment of this note at maturity all remaining notes shall be and become due at once at the option of the holder.
“ ‘ “No:-Due-. Y. A. Collins.
“ ‘ “Address.”
“ ‘R. L. Autrey is secretary and manager of the Houston Ice & Brewing Company of Houston, Texas. Collins has never paid this note and it is now in the possession of Beaumont Enterprise.- He cannot produce one single circumstance of proof that he ever paid it.’
“Also:
“ ‘Bulletin No. 2.
“ ‘Collins Borrows from Brewery.
“ ‘In 1905 Collins approached R. L. Autrey, secretary and managing officer of the Houston Ice & Brewing Company of Houston, Texas, and from him borrowed $200.00, giving his personal note; which note is long since due and'unpaid.’
“Also:
“ ‘Houston Ice & Brewing Co. Incorporated 1901. Manufacturers of Richilieu Beer. High Class Beers Exclusively. Houston, Texas, July 13, 1910. Mr. H. B. Whitmeyer, Cleveland, Texas — Dear Sir: Tour letter of July 11th, addressed to the Houston Ice & Brewing Co., has been received by me. Mr. V. A. Collins owes me $200.00 on a note loaned him in 1905. This note is past due long ago and not paid. Yours truly, R. L. Autrey. A — RH.’
“Also:
“ ‘Houston, Texas, July 19th, 1910. J. J. Fenn, Cleveland, Texas. Y. A. Collins has never paid me anything on his note, and never rendered any bill or wrote anything claiming anything. There are other parties interested in the suit involved in some oil lands residing in Beaumont, who must have paid Collins. I know he went to Sherman, Texas, but know nothing of any other service in connection with the suit, and he never claimed to offset the note with his services. R. L. Autrey.’
“It was alleged that by each of said publications the defendant meant, and it was understood by all persons who read said statements to mean, that the statements so published and distributed by the defendant were true; that in addition thereto the defendant gave said note to one P. I. Hunter and other persons, who exhibited the same to the public as a genuine existing note; that each of said publications was distributed by means of and in the form of pamphlets, letters, and telegrams, and by exhibiting the note, as herein-before stated.”

Then follow allegations as to the damages sustained.

The principal defense relied on was the truth of the matter published. The trial before a jury resulted in a verdict in favor of the plaintiff for $1,000 actual damages and $500 as exemplary damages.

The first assigned error is based upon the refusal of the court to give the following special charge: “You are instructed that if plaintiff executed his note to the defendant for money borrowed, payment of same could not be made or offset by services rendered by the maker thereof, unless such payment or offset was agreed to by the owner thereof. If, therefore, you believe from the evidence that plaintiff executed his note to defendant for $200 and afterwards sought to pay same with services as an attorney, such services would not in law amount to payment of said note without being agreed to by defendant, and you are therefore instructed that the note of plaintiff to defendant for $200 has not been paid.” Applying this charge to the testimony, it in effect amounted to a peremptory instruction to return a verdict for the defendant.

The appellee testified as follows: “I reside in Jefferson county, Tex., where I have been engaged in the practice of law since 1901, at Beaumont. I was in the active practice in 1905. There was pending, during that year, in the federal court at Beaumont, a suit involving title to a tract of land in Hardin county. It involved the Frank Mil-home 177-acre tract of land at Batson. I bought this tract from old man Jos. Le Bleu, of Calcasieu parish, La., for Mr. Autrey, or it was represented to me it was for Mr. Autrey, and I took the deed in Mr. Autrey’s name. * * * Soon after there was a suit brought in the federal court involving Mr. Autrey’s title. We bought from old man Joe Le Bleu, who was the owner, as we construed the law, and the title was adverse to Mr. Autrey’s title. The deed showed to have been made by Little Joe Le Bleu himself, and the question involved in the suit, and about the only question, was whether the Little Joe Le Bleu deed was adverse to Mr. Autrey’s deed. The suit had been pending some time before I got into it. I do not know how long I had known Mr'. Autrey before. I went to Houston to see Mr. Autrey about this suit some time after it was brought. Mr. Autrey and I went to his attorney’s office, and I told his attorney, Mr. Jesse Andrews, of the firm of Baker, Botts, Parker & Garwood, all I knew about the heirship of Little Joe Le Bleu, and all that came to me from my investigation when I purchased the land for Mr. Autrey, and I am not sure, but I think it was while I was there in Houston that his attorney requested me to make this trip to Sherman to get a modification of certain orders that had been made by the court. Mr. Autrey and I did not go to Sherman together. He came back from Sherman when I did. We were on the train together all of the day from Sherman to Houston. It was when I got back to Houston, in Mr. Autrey’s office, he requested me to make the trip to Louisiana with reference to the forged deed, and I said I had been out of my office several days, and I would have to have some money before I could go over there, and I gave him my' 15-day note, and borrowed from him $200, and I went to Louisiana and made this investigation.” After detailing his services in connection with his claimed employment by Mr. Autrey on the two trips to Louisiana, he further testified: “In a few days, I don’t remember just what time, how long afterwards, I inclosed Mr. Autrey a bill for my services in that case. I don’t know whether he ever received it or not. I sent it in a letter. I mailed it and sent him a bill for $'200 for my services in the suit. I stamped the letter and mailed it. I never heard from Mr. Autrey from that day until this note was published here' during the campaign in 1910. He never sent the note back, and I had forgotten about the existence of the note. * * * Some time during the month of January, 1906, I rendered Mr. Autrey a bill for $200 for my services in the federal court case, and I never heard from Autrey and the note until that day, when Mr. Hunter exhibited it in San Augustine. * * * I paid that note in doing some of the best legal services I ever did in my life for a man in connection with a suit of Allen against Smith et al. in the federal court at Beaumont, the same suit about which I went to Sherman and to Louisiana, and in which the photograph referred to was taken. I am a practicing attorney, and I thought $200 a very reasonable fee for the services rendered by me in that suit. If my fee wasn’t paid, as above stated, I never received any pay for my services. Mr. Autrey never made any demand for the payment of that note after I rendered those services. I never saw him in person, nor received a scratch of a pen from him from the time I rendered him a bill for my services until the time I came out for the state Senate. * * * I rendered Mr. Autrey a statement for the amount of $200. I don’t know whether he received it or not.” On cross-examination he testified: “It is my recollection that I made a trip to Sherman, and the $200 paid for my trip to Sherman and the trip to Louisiana. Mr. Autrey came back from Sherman with me, and while in Houston at that time he loaned me the $200. We did not discuss at that time when and how this $200 teas to he paid. He did not make any reference at the time that he was due me something for the Sherman trip. * * * Mr. Autrey himself got me to go on that trip at Houston. I am not sure whether the arrangement was made in Mr. Autrey’s office or in Jesse Andrews’ office. Mr. Autrey defrayed my expenses .on that trip, but the matter of expenses was not formally discussed. I don’t remember that it was discussed at all as to who was to pay me. My mission on the trip to Lake Charles was to procure evidence of the forgery of a deed antagonistic to Mr. Autrey. * * * After the suit in the federal court was dismissed, I rendered my bill for $200 to Mr. Autrey, and have received no reply, and I did not then, nor at any time, make further demand for the note. Since the publication of the note I ‘ have not made demand of Mr. Autrey for it, and as to my preference to take chances on the libel suit, I thought I had the right in court. When I presented my bill to Mr. Autrey I requested the note to be returned, but in these 4y2 years I did not have the note, and I had not thought about it.”

In this state of the evidence it would have been improper for the court to have given the charge requested. While it is true the evidence conclusively shows that the note was not in fact paid in money and surrendered or marked “Paid,” there was testimony from which the jury might have con-eluded that the obligation evidenced by the note had been satisfied, and that each party to the transaction so considered it. If the letter which appellee says he wrote to the appellant was received by the latter, and its terms tacitly agreed to, that would have amounted to a satisfaction of the debt — in legal effect a payment' — and the note should have been canceled or surrendered. The jury had a right to believe that the letter was written and properly addressed and mailed as testified to by the appellee, and that in due course of time it was received by the appellant at its destination. They also had a right to infer, from the failure of the appellant to thereafter present the note, or to in any manner demand payment, for more than four years after its maturity, that he had acquiesced in the terms of the communication above referred to, and had agreed to the settlement of the debt in the manner there proposed. It is seldom that one person will hold the subsisting obligation of another to pay money till it is barred by the statute of limitation, without making some effort to enforce its collection. It is not claimed by the appellant that the appellee was insolvent, or that there was any practical hindrance in the way of enforcing the collection of the note. So far as the record discloses, nothing existed which would excuse its presentation and a demand of payment, except the counterclaim referred to by the appellee. The first notice given of the continued existence of the note, after the lapse of more than four years, was its promiscuous circulation for the purpose of injuriously affecting the reputation and standing of the appellee in the senatorial district where he was a candidate for office. From all of these facts the jury had a right to reach the conclusion they did.

The court committed no error in the charges complained of in the second, third, and fourth assignments. The particular objections there made appear to be directed against the action of the court in submitting to the jury the issues of fact, upon the ground that there was no evidence to authorize it.

The last assignment of error complains of the ruling of the court in excluding certain proffered testimony. The bill of exceptions fails to state what the objection to this testimony was, and for that reason it will not be considered. Ry. Co. v. Gage, 63 Tex. 568; G. C. & S. F. Ry. Co. v. Pearce, 43 Tex. Civ. App. 387, 95 S. W. 1133.

The judgment of the district court is affirmed.

On Motion for Rehearing.

The only question presented in appellant’s motion for rehearing which was not considered in the original disposition of the case refers to a paragraph of the court’s charge in which the court permitted the jury to consider publications made in the Beaumont Enterprise as a basis of liability. It is claimed that there were no allegations in the plaintiff’s original petition which justified the submission of those publications as a ground of recovery. A more careful perusal of the petition has convinced us that the objection is not well taken. While in the main that instrument specifies in detail other characters of publication of the offensive documents, there are sufficient general allegations concerning the publications to include those specified in the charge. Moreover, this objection is not tenable because it is raised for the first time in the motion for a rehearing. It does not appear that it was called to the attention of the trial court or of this court in the original submission of the case.

The motion is overruled.


author: WILLSON, C. J.

text:
    STANDLEY v. CURREY et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 13, 1913.)
    1.Justices of the Peace (§ 36) — Actions— Jurisdiction.
    An action for $137 rent due from defendant, as plaintiff’s tenant, is within the jurisdiction of the justice court; the rule estopping a tenant from disputing the title of his landlord rendering the question of title immaterial.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 83-97; Dee. Dig. § 36.]
    2. Landlord and Tenant (§ 61) — Obligations of Tenant.
    A tenant is estopped to deny the title of his landlord.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 151, 152, 187-196; Dec. Dig. § 61.]
    3. Justices of the Peace (§ 141) — Actions— Appeal.
    In determining the jurisdiction of the county court upon an appeal from the justice’s court, averments in plaintiff’s supplemental petition, filed in answer to defendant’s plea to the jurisdiction first filed in the county court, cannot be considered.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. § 141.]
    Appeal from San Jacinto County Court; • Jno.. C. Browder, Judge.
    Action by J. Standley against Zack Currey and others. From a judgment dismissing the action in the County Court on appeal from a justice’s court, plaintiff appeals.
    Reversed and remanded.
    Wm. McMurrey and F. O. Fuller, both of Cold Springs,, for appellant. J. M. Hansbro, of Cold Springs, and Dean, Humphrey & Powell, of Huntsville, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

The suit was commenced in. a justice court by appellant as plaintiff. He sought a judgment against appellee Zack Currey for the sum of $137 as the value of one-fourth of crops grown by said Currey as his tenant on land described in his complaint. Currey and appellee Cleveland, who,- it seems, voluntarily made himself a party defendant, answered, denying they were appellant’s tenants. A trial in the justice court resulted in a judgment that appellant take nothing by his suit, and that defendants recover of him the costs of the suit. In the county court, to which appellant appealed, appellees filed a plea in which they alleged that neither of them was ever appellant’s tenant, but that appellee Cleveland was the owner of the land under a deed or deeds made by appellant, and that the crops grown thereon were grown by appellee Currey as his (Cleveland’s) tenant. They then alleged “that,” quoting, “the question of title to said premises is in controversy in this suit, by reason whereof neither the justice court, in which this suit originated, nor this court on appeal has any jurisdiction to determine the issues involved in this suit.” The court sustained this plea and, on the ground that he was without jurisdiction to try it, dismissed the suit.

The sole purpose of appellant’s suit, as commenced in the justice court, being to recover $137, the sum alleged to be due to him from appellee Currey as his (appellant’s) tenant, as the rent of the land, it is clear that court had power to hear and determine it. The issues in that court made by the pleadings were: (1) Did the parties occupy the relationship of landlord and tenant? (2) If they bore that relationship to each other, what was the sum, if any, due by Currey to appellant as rent? As a result of the rule which estops a tenant from disputing the title of his landlord to the leased premises, it was not necessary to the recovery appellant sought that he should prove that he owned the land. 18 A. & E. Enc. Law, p. 420; Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562; Hintze v. Krabbenschmidt, 44 S. W. 39. For, if Currey occupied the relationship of tenant to appellant, the latter was entitled to recover any sum due to him by Currey as rent, whether he (appellant) owned the land or not.

Appellees’ contention in support of the action of the trial court is that it appeared from the face of the pleadings that the main issue in the suit was one of title to the -land. This contention is based on allegations in a supplemental petition filed by appellant (in reply to an averment in appellees’ plea to the jurisdiction of the court that Currey was not the tenant of appellant but of Cleveland, who, they alleged, owned the land under a deed made by appellant), charging that the execution of the deed from him, under which Cleveland claimed title, was procured by means of a fraud practiced on him by Cleveland. Appellant did not ask that the deed referred to be canceled, or for any relief, because of the fraud practiced on him as he alleged. The character of his suit was not changed by the allegations in the supplemental petition. It remained as it was commenced, a suit solely for the purpose of recovering a debt of $137 which he claimed was due to him from Currey. Such being its nature, the justice court had power to hear and determine it in the first instance, as stated before, and we think it is clear the county court on the appeal to it had power to do likewise.

The judgment is reversed, and the cause is remanded for a new trial.