author: HIGGINS, J.

text:
    IOWA CITY STATE BANK v. FRIAR.
    (No. 331.)
    (Court of Civil Appeals of Texas. El Paso.
    April 23, 1914.
    On Rehearing, June 4, 1914.)
    1.TRIAL (§ 139) — PEREMPTORY INSTRUCTIONS —When Authorized.
    A peremptory instruction for defendant may not be given on his uncorroborated testimony, proving facts material to his defense. '.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    2. Bills and Notes (§ 344)— Bona Fide Purchaser — Notice of defenses.
    A purchaser of a series of notes, who has notice that the same have a common consideration arising out of the same transaction, is chargeable with notice of all defenses existing between the original parties, and takes the notes subject thereto if any of them are past due.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 866-868; Dec. Dig. $ 344.]
    3. Bills and Notes (§ 344) — Bona Fide Purchaser — Notice of Defense.
    Notes, identical in every respect, except as to their serial numbers and maturity dates, but containing no recital that they arose out of the same transaction or were based on a common consideration, disclosed on their face facts to charge a purchaser with notice that they had a common consideration arising out of a single transaction, and where at the time of the purchase one of them was due, he was not a bona fide holder.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 866-868; Dec. Dig. § 344.]
    4. Bills and Notes (§ 357) — Innocent Holder — Collateral Security.
    An innocent holder of a note as collateral, to which there is a valid defense against the payee, is protected only to the amount of the debt for which it is held as collateral.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dee. Dig. § 357.]
    5. Bills and Notes (§ 497) — Innocent Holder — Collateral Security.
    An innocent holder of a note as collateral, to which there is a valid defense against the payee, has the burden of showing that his debt is unpaid, and the amount due thereon, and the recovery must be restricted to the amount so shown.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dee. Dig. § 497.]
    Harper, C. J., dissents.
    On Rehearing.
    6. Appeal and Error (§ 1170) — Harmless Error — Erroneous Instructions.
    Where no issue was made on the trial as to a fact assumed in an instruction as true, based on the uncorroborated testimony of a party, the error in the instruction, because assuming the fact, was not material, and, under Courts of Civil Appeals rule 62a (149 S. W. x), must be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from El Paso County Court; A. S. Eylar, Judge.
    Action by the Iowa City State Bank against W. S. Friar. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    O. W. Croom and A. R. Grambling, both of El Paso, for appellant. Goldstein & Miller, of El Paso, for appellee.

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

   HIGGINS, J.

Appellant, a banking institution of Iowa Oity, Iowa, brought suit on three notes, which read:

First:
McD. 5-17-12 , 3758 3826
Iowa Oity, Iowa, Sep. 27, 1911.
Six months after date, for value received, I or we promise to pay to the order of the Royal Company of Iowa Oity, Iowa, at El Paso, Texas, thirty-four and 08/100 dollars $34.06, without interest.
No. 28781B P. A. K.
Name: W. S. Friar.
B. R. Address: El Paso, Texas.
. 2100 Myrtle Ave.
Second:
McD. 5-27-12 3758 B 3826
Iowa Oity, Iowa, Sep. 27, 1911.
Eight months after date, ,for value received, I or we promise to pay to the order of the Royal Company, of Iowa City, Iowa, at El Paso, Texas, thirty-four and 06/100 dollars $34.06, without interest.
No. 287810 P. A. K.
Name: W. S. Friar.
Address: El Paso, Texas.
2100 Myrtle Ave.
Third:
McD. 7-25-12 , 3758 O 3826.
Iowa City, Iowa, Sep. 27, 1911.
Ten months after date, for value received, I or we promise to pay to the order of the Royal Company, of Iowa City, Iowa, at El Paso, Texas, thirty-four and 06/100 dollars, $34.06, without interest.
No. 28781D P.A.K.
Name: W. S. Friar.
Address: El Paso, Texas.
2100 Myrtle Ave.

It held the notes as collateral to secure payment of a $2,000 note of Franklin Price Company, dated May 29, 1912. This $2,000 note was given in renewal of a prior note of same company in sum of $2,000, dated November 29, 1911, due in six months after date. M. F. Price and P. E. Lyon are partners residing and doing business in Iowa City, Iowa, under two firm names, viz., the Royal Company, in which capacity they are named as payees in the notes sued upon, and Franklin Price Company, in which capacity is executed the note to appellant bank, and to secure payment of which the collateral notes are held. The $2,000 note of November 29, 1911, evidenced a loan of that amount, and to secure its payment, the notes of Friar and- various other parties, aggregating $2,-282.57, were deposited as collateral. Upon maturity some of the collateral notes had been paid, but how much thereof the record does not disclose. Evidently, therefore, the renewal note of $2,000 covered in part at least money loaned upon date of its execution, as well as money originally loaned upon the date of the original note. The three notes sued upon were of a series given to cover the purchase price of merchandise sold by the Royal Company to Friar, and, as between the original parties, his testimony shows that the consideration for the notes had failed. A peremptory instruction was given, in response to which verdict was returned and judgment rendered in defendant’s favor.

The plea of failure of consideration is based upon an agreement upon part of the Royal Company to exchange any merchandise purchased by appellee remaining on hand after same had been displayed for sale in his store for 90 days. Appellee testified that he had displayed the goods in his store for that length of time, and he had then on hand goods valued at $106.46, invoice price, which he offered to exchange, and which the Royal Company refused to do. Aside from Friar’s own testimony, we find no evidence in the record to support his contention that he had displayed the goods as the contract required, and that the value of those unsold at invoice price amounted to the sum stated. Friar was an interested witness, and the jury might have disbelieved his testimony in the particulars indicated. The peremptory instruction was improperly given, since it necessarily assumed as a fact matter material to his defense, and proven only by his own uncorroborated testimony. Gonzales v. Adoue, 56 S. W. 548; Turner v. Grobe, 24 Tex. Civ. App. 558, 59 S. W. 585; Ins. Co. v. Villeneuv, 29 Tex. Civ. App. 128, 68 S. W. 203; Ry. Co. v. Lucas, 148 S. W. 1149; Thomas v. Saunders, 150 S. W. 769.

The error indicated requires a reversal, and in view of retrial a brief statement will be made of what is conceived to be the correct legal principles applicable to the facts presented.

The purchaser of a series of notes, who has notice that the same have a common consideration arising out of the same transaction, is charged with notice of all defenses existing between the original parties, and takes the same subject thereto, if any of the notes are past due at the time of purchase. Harrington v. Claflin, 91 Tex. 294, 42 S. W. 1055; Ferguson v. Wiede, 46 S. W. 392; Lybrand v. Fuller, 30 Tex. Civ. App. 116, 69 S. W. 1005; Bank v. Ricketts, 152 S. W. 649; Kampmann v. McCormick, 99 S. W. 1147; Norwood v. Leeves, 115 S. W. 53.

In the cases referred to the notes contained recitations showing that they arose out of the same transaction, and had a common consideration which is not contained in the series here sued upon, but to any reasonable mind, an inspection of these notes would at once have suggested that they were part and parcel of the same transaction. They are identical in every respect except as to their serial numbers and maturity dates, and the sequences of these add further evidence of their nature in this respect. While they have no recitation to disclose that they arose out of the same transaction and are based upon a common consideration, yet they otherwise bear unmistakable evidence thereof, and it would indeed be a very stupid purchaser who would not so assume from an inspection of the notes alone. We hold that the notes alone contained evidence sufficient to place the hank upon notice of their character in this respect. This being true, and one of the notes being past due upon the date of the renewal note and loan, the status of the bank as an innocent purchaser must depend upon the original loan and note made November 29,1911. The testimony of appellant’s cashier discloses that some of the collateral to secure the original note had been paid when the renewal note was taken, but there is nothing to indicate with any degree of certainty whatever how much remained due thereon.

The innocent holder of a negotiable note as collateral security, to which there is a valid defense against the original payee, is protected, but only to the extent of his interest—the amount of the debt for which it is held as collateral. Wright v. Hardie, 88 Tex. 653, 32 S. W. 885; Harrington v. Claflin, 91 Tex. 294, 42 S. W. 1055; Van Winkle Gin Co. v. Bank, 89 Tex. 147, 33 S. W. 862; Wharton v. Bank, 153 S. W. 699.

And the burden of proof rests upon such innocent holder of collateral negotiable paper, the consideration of which is shown to have failed, to show that his debt is unpaid and the amount due thereon, and his recovery should be restricted to the amount so shown. Wright v. Hardie and Harrington v. Claflin, supra.

As to the original loan and note upon which its status, as a bona fide holder rests, the bank has failed to discharge this burden.

In Harrington v. Claflin, supra, Claflin & Co., were the innocent holders of certain notes of Harrington, which were secured by lien attempted to be fixed upon homestead property. The notes were held as collateral to secure payment of a debt of Lessing, Solomon & Rosenthal. In bar of the foreclosure proceedings the homestead character of the property was pleaded. In discussing the rights of the parties Justice Brown said:

“If the court had submitted the issue and the jury had come to the conclusions above stated, it would have been their duty to find a verdict for the defendants, because there is no evidence to show that the debt to which the notes stand as collateral security has not been paid, and if it has not been paid, there is nothing- to show how much remains unpaid upon it, nor does it appear from the evidence that it is necessary for Claflin & Co. to collect these notes in order to satisfy their debt against Lessing, Solomon & Rosenthal. It appearing that the maker of the notes had a good defense against the payees, it devolved upon the assignees of the notes, who hold them as collateral security, to make proof of the facts stated, that is, that the debt secured by these notes has not been paid, how much is due upon it, and what other security they hold out of which it might he paid without injury to them and by which the homestead of the makers of the notes would he protected. In this connection we will state that the undisputed evidence shows that Claflin & Co. received the entire stock of goods which belonged to the firm of Lessing, Solomon & Rosenthal, also an amount of cotton which belonged to their debtors, from H. Kempner, for which they felt justified in advancing the sum of $62,000, and in addition thereto they received the notes sued on as collateral. What other property they held to secure their debt does not appear. They should have made the proof which would show them equitably entitled to enforce these notes and the Uen upon this land in order to protect themselves.’’

Applying the rule there enunciated, it would seem to be necessary for appellant to further show the status of the additional collateral which it holds, and make the proof which would show it equitably entitled to enforce these notes in order to protect itself.

Reversed and remanded.

Chief Justice HARPER dissents.

On Rehearing.

This cause originally was reversed because the court’s charge assumed as a fact matter proven only by the uncorroborated testimony of Eriar. The authorities firmly establish the rule that an instruction is erroneous which assumes as a fact matter which has been proven only by the uncorroborated testimony of an interested witness, but upon further consideration the conclusion has been reached that it should not be regarded as a rule of such absolute and universal application as in all instances of its violation to require reversal. City of San Antonio v. Rollins, 127 S. W. 1166, 1173; Ry. Co. v. Stone, 125 S. W. 587.

From a consideration of the entire record, it is apparent that no issue was made upon the trial respecting the matters testified to by Friar and assumed as true in the court’s charge, and in such case it would seem that the error of the court is not material, and shóuld not be treated as ground for reversal; especially so in view of the provisions of rule 62a (149 S. W. x), recently adopted.

Accordingly, the motion for rehearing is granted, and the judgment of the lower court affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    GREEN v. GREEN.
    (No. 5296.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 20, 1914.)
    Marriage (§ 54)—Putative Marriage— Separation-Division of Property.
    Where plaintiff and defendant lived together as husband and wife and accumulated property, she being under the honest belief that she was such, when, in fact, they were never legally married, she was entitled on separation to an award of one-half of the property acquired during the existence of the putative marriage.
    [Ed. Note.—For other cases, see Marriage, Cent. Dig. §§ 93-103, 105, 106, 109; Dec. Dig. § 54.)
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

      Action by Sallie Green against James J. Green. Judgment for plaintiff, awarding her one-half of the property acquired by the parties during the existence of a putative marriage, and defendant appeals.
    Affirmed.
    Jackson & Dickson, of Houston, for appellant.

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

   FLY, C. J.

This is a suit for divorce and to partition community property, instituted by appellee. The cause was tried without a jury, and judgment was rendered that the parties were never legally married, but that the lots of land were acquired while they “were living together as man and wife, and were acquired by their joint labors, she being in the honest belief that she was his wife.” The divorce was refused, but one-half the property was decreed to appellee.

There are no assignments of error in the record, and no motion for a new trial was filed. There is no basis for the so-called assignment of error found in the brief, which seeks to complain of a finding of the trial judge. There is no fundamental error apparent of record. The right of the innocent wife to one-half of the property acquired during the existence of the putative marriage is well established by decisions of the appellate and Supreme Courts of Texas. Barkley v. Dumke, 99 Tex. 150, 87 S. W. 1147; Railway v. Robertson, 103 Tex. 504, 121 S. W. 202, 131 S. W. 400, Ann. Cas. 1913A, 231; Chapman v. Chapman, 16 Tex. Civ. App. 383, 41 S. W. 533; Lawson v. Lawson, 30 Tex. Civ. App. 43, 69 S. W. 246. We must, in the state of the record, presume that the facts sustain the recitals in the judgment.

The judgment is affirmed.


author: TALBOT, J.

text:
    BURNS v. TEXAS MIDLAND R. R. et al.
    (No. 7121.)
    (Court of Civil Appeals of Texas. Dallas.
    May 16, 1914.
    Rehearing Denied June 6, 1914.)
    1. NEGLIGENCE (§ 23) — ACTS OR OMISSIONS Constituting — Attractions for Children.
    It could not be said that a boy was attracted or allured to the local office of a railroad and a telegraph company by a loaded pistol in an unlocked drawer or other condition of the premises, so they should have foreseen an accidental shooting in the absence of the agents, where it was not shown that he knew the pistol was there.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 33, 34, 129; Dec. Dig. § 23.]
    2. Negmgence (§ 22) — Weapons—Right to Keep.
    A railroad and a telegraph company had a right to keep a loaded pistol in their local office for the protection of the money and property kept therein.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 31, 32; Dec. Dig. § 22.]
    3. Master and Servant (§ 304) — Torts of Servant — Liability oe Master.
    A railroad and a telegraph company were not liable because a boy in their employ got a loaded pistol, kept in an unlocked drawer of their private office, while temporarily left in charge by the agents, and shot another boy in play, where, though he had previously got the pistol out without permission, he had never before been known to use it in play.
    [Ed. Note. — For other cases, see Master and Sérvant, Cent. Dig. §§ 1226-1229; Dec. Dig. § 304.]
    4. Master and Servant (§ 302) — Injuries to Third Persons — Scope of Employment.
    A railroad and a telegraph company were not responsible for the act of a boy in their employ, while temporarily left in charge of the office by the agents, getting out a pistol kept in the office and shooting another boy in play; his conduct being the reckless, malicious sport of a bad boy, and in no way connected with defendants’ business.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by Audie Burns, by his guardian, George Burns, against the Texas Midland Railroad and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Lee R. Stroud and Wynne & Wynne, all of Kaufman, for appellant. Dashiell & Coon, of Terrell, and N. L. Lindsley and E. G. Sen-ter, both of Dallas, for appellees.

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

   TALBOT, J.

This action was brought by the appellant, Audie Burns, through his guardian, George Burns, against the appel-lees, Texas Midland Railroad and the Western Union Telegraph Company to recover damages for personal injuries alleged to have been received as the result of being shot with a pistol by Albert Watson. A general demurrer to plaintiff’s petition was sustained by the court, and the case dismissed. From this judgment the plaintiff appealed, and assigns as error the action of the court in sustaining the general demurrer.

The petition, omitting formal parts, is as follows:

“Audie Burns, a minor about 13 years of age, by his father. Geo. Bums, duly appointed and qualified as his guardian by the probate court of Kaufman county, who with his father both reside in Kaufman county, Tex., in the city of Kaufman, here amend plaintiff’s last petition herein, filed the 28th day of December, 1911, with leave of the court, and makes the Western Union Telegraph Company a party defendant with Texas Midland Railroad; and, complaining of the Texas Midland Railroad and of the-Western Union Telegraph Company, the plaintiff says that the Texas Midland Railroad is and was, when the injury herein complained of occurred, a railroad corporation incorporated under the laws of Texas, operating its railroad through Kaufman and other counties in this state, and has and then had its office and local agents, Pat Hammond and W. A. McWilliams, in said ticket office at Kaufman, Tex., by and through which agents it was in part operating said railroad and said office for its exclusive benefit as a railroad company, that said Western Union Telegraph Company was also duly incorporated under the law and was and is a telegraph corporation operating its line lot telegraph, with offices and equipment in said office in Kaufman, Tex., and in Kaufman and other counties; and plaintiff alleges and believes, and therefore charges the fact to be, that said McWilliams was also the local agent of the Western Union Telegraph Company, and that the boy Albert Watson was an agent of said telegraph company, both of whom occupied said office and performed duties for defendant Western Union Telegraph Company; but what other agent or agencies said Western Union Telegraph Company had operating and assisting in operating its line of telegraph aforesaid and its equipment in and connected with said office in Kaufman this plaintiff is not fully advised and does not further know than that it was operating its said telegraph through agents and agencies and through the agents aforesaid; upon information and belief plaintiff says and charges that said lad Albert Watson was also the agent of the Texas Midland Railroad.
“Now for cause of action plaintiff says that heretofore, on the 20th day of May, 1911, defendant Texas Midland Railroad and said Western Union Telegraph Company had money then and usually had property then and usually belonging to them ih said ticket office, used as the office of both defendants; and by and through their agents aforesaid and agencies aforesaid acting for them and each of them in their own behalf, in the line of their duty, had a right to keep and did keep in said office for the protection of their rights, moneys, and property a loaded pistol, which they had a right to keep and did keep in said ticket office so used by them and each of them in Kaufman, Tex.; but defendants and each of them then and there kept the said pistol in a negligent and wrongful way and manner, and kept it negligently accessible to children and to the child Audie Bums' and to the child Albert Watson, and others who were allowed to frequently visit said office; the said Albert Watson being very young, reckless, and a disobedient boy, and actually then and there employed by defendants in and as an occupant of said office by the Western Union Telegraph Company and by a codefendant, the railroad, and as a servant of the railroad. Now plaintiff further says that while the agents and employés of the defendants were out of the office, and the same was unguarded by the defendants, and was left open to small boys, the said Albert Watson and the child Audie Burns and another child went to or near said office as they had a right to do and had been usually permitted and licensed to do, and their employs, Albert Watson himself, went into said office; that the said pistol was then loft exposed and accessible to said children and to Albert Watson in said office and in a low, unfastened drawer, and that said office and its surroundings, together with its contents, as well as the dangerous pistol, were all unusually attractive to such children and where they would likely go, and where the boys and children named were likely to get and play with said pistol and to snap it at each other and to accidentally discharge the same with great danger, as defendants and their agents aforesaid well knew, and ought to have known; that the Watson boy, as defendants and their agents and employés acting for both and each of them, well knew, and ought to have known, was an indiscreet and reckless boy and was in said office a great deal, in fact was and had been by defendants kept employed there, and had before that gotten said dangerous pistol and handled the same without permission, and was likely to do so again;' that on the date aforesaid, and while the plaintiff, Audie Burns, and other children were at or about the door of said ticket office or near thereto, the agents of both and each defendant negligently went away from said office and depot grounds, leaving said dangerous and deadly pistol accessible to all said children; that the railroad agent, Pat Hammond, was 'away up in town, quite a distance from the office; that W. A. McWilliams, the agent and telegraph operator, was also out and gone away from the office and depot grounds,, and in another part of town; that Hammond had first gone away, and when said McWilliams left he knowingly left all said children there at or near the open door of the office with said Watson, whom he knew had gotten the pistol before, and defendants wholly failed to care for and guard the said pistol or to exercise any care to prevent its doing damage or being caused to do damage; that one of said children, Albert Watson, then and there got said pistol out and was snapping it at these other children, and thus frightening them away from the office and chasing them around outside, and had been told by defendants and their agents to keep persons out at such times as they would be gone away from the office, and was thus using the pistol in part to keep said children away and out of the office by frightening them; that Albert Watson then went back into the office with the loaded pistol, which on that occasion was partly loaded and partly unloaded, and sat down on a desk in the office, with pistol in hand; that Audie Burns then came near said office door and looked into it through an opening, when Albert again attempting to snap the pistol at him, it fired, the ball entering the front part of Ms head and passing back through the brain and coming out at the back of his head, which caused him to drop as if lifeless and the brain to protrude and come out from his forehead, from which he suffered great shock and pain and injury for a long time, and from which his brain and physical system, health, and constitution are permanently injured and weakened, as well as his mind, all to his damage at least $10,-000; that the conduct of the defendants in leaving such dangerous and deadly weapon habitually exposed in said office, their keeping said negligent boy Watson for a long time in contact therewith, their permitting and licensing small boys and plaintiff to visit said office and the place where he got injured, their leaving their attractive office and their deadly pistol within their easy access, their going away from depot and grounds to other parts of town, with no one in charge but the lad Watson, their failure to turn the keys on the drawer holding said pistol, their leaving their office door unlocked and the bunch of small boys there, their retaining for a long time said negligent, reckless, and disobedient boy in their office, their permitting the public to frequent said office and sit and loiter therein, their failure to exclude plaintiff and other small boys instead of entertaining them, and the other fact's recited, all constituted great and concurrent negligence on the part of both defendants in bringing about the serious calamity and injury here complained of, whereby the defendants, acting together in their negligence, and their failure to warn plaintiff, or his parents who lived conveniently close, and failure to use a high degree of care to prevent injury from the extrahazardous and deadly pistol, has laid them liable unto plaintiff because of injuries and his mental anguish and fear of death, in the sum named.
“Wherefore plaintiff, Audie Burns, prays that defendants be cited to answer this suit, and that, upon a fair and final hearing, he have judgment for his damages $10,000 and for cost of suit.”

We are of opinion the court correctly ruled on the demurrer, and that the assignment should he overruled. The petition, as contended by appellees, fails to show any attraction or allurement which could have induced the plaintiff to make the premises of the defendants a playground. The pistol with which the injury complained of was inflicted was kept by defendants in an unfastened drawer in their office, but it does not appear that plaintiff knew it was there and, with a view of securing possession of it, went ■ upon defendants’ premises.

It is alleged by plaintiff that defendants had money and property in their office and had the right to keep in said office, for the protection of said property, a loaded pistol. This we think correctly states the rights of defendants, and we are unable to see how the temporary absence of the agents, Hammond and McWilliams, from defendants’ office, a private one, can subject defendants to a charge of negligence, because a boy in their employ takes a pistol from an unfastened or unlocked drawer and intentionally or mischievously or wantonly shoots a boy or person on the outside of the office.

The allegations of the petition are. insufficient to show that the boy Albert Watson was charged with any duty to the defendants, •as an employs, which gave him control of the pistol, or authorized him to shoot the plaintiff. On the contrary, the allegations of the petition, as we understand and construe them, affirmatively show that the act of Watson in shooting the plaintiff was committed in reckless sport and not in the furtherance of any business of the defendants or either of them. According to the allegations of the petition, the plaintiff was standing on the outside and looking into the office when he was shot, and was not attempting to enter the office or to molest the property of defendants; the boy Watson had just before this gotten the pistol and had been chasing plaintiff around on the outside of the office, snapping the pistol at him in boyish sport; Watson then went back into the office and sat down on a desk with the pistol in his hand; the plaintiff then came near the office door and looked through the. opening; Watson, in continuation of the reckless, boyish sport, begun on the outside, attempted to snap the pistol at him again, when it fired, shooting the plaintiff in the head. It does not appear that these acts of Watson were within the scope of his employment or in furtherance of the master’s business. It is alleged that the boy Watson, prior to the occasion in question, had gotten possession of the pistol and handled it without permission, but it is not alleged that he or any other boy had ever gotten the pistol out of the drawer with the knowledge of defendants, or either of them, and used it in play. Nor is it shown that anything occurred before the unfortunate accident in question which should have caused defendants to anticipate that some child might probably be injured similarly to the way in which plaintiff was injured by leaving the pistol in an unlocked drawer.

The facts alleged do not, we believe, make a case in which the doctrine of the turntable cases is applicable, nor can the rule of re-spondeat superior, under the facts and circumstances alleged, be invoked. It cannot be said, it occurs to us, that the allegations of plaintiff’s petition are sufficient to show that he may have been lured to the office of defendants by the pistol left in the unlocked drawer or any other condition of defendants’ premises, and that defendants should therefore have foreseen that he or some other child might be injured by the loaded pistol. And the act of Watson, resulting in plaintiff’s injury, was in no way related to the business of defendants, or either of them. The petition describes his conduct as the reckless, malicious sport of a bad boy.

The case is not ruled by those decisions involving the liability of one who negligently left explosives where they could be found or taken by children, or who sells an explosive to a young child, knowing that it has no experience or knowledge of its use, nor by those in which it has been held that the master was liable, where the shooting was done while the servant was in the execution of his master’s commands, and similar cases. Our conclusion is that the facts alleged fail to show that the act of the boy Watson in shooting the plaintiff was the result of actionable negligence on the part of the defendants, and that the judgment of the court below should be affirmed. It is therefore accordingly so ordered.

Affirmed.


text:
    RESERVE LOAN LIFE INS. CO. v. BENSON et al.
    (No. 5299.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 20, 1914.)
    1. Principal and Agent (§ 22) — Evidence op Agency — Admissions—Declarations.
    In an action on a note given to the agent of an insurance company for the first premium on á policy, the application for which was rejected, and transferred by the agent to plaintiff, in which the maker prayed for judgment against the insurance company for any sum due on the note, where it was not only proved that the alleged agent was the agent of the company, but it was, in effect, admitted by the company in its answer, his declarations that he was the company’s agent were admissible.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.]
    2. Appeal and Error (§ 1050) — Harmless Error — Admissions op Evidence.
    In an action on a note given to an insurance agent in payment of the first premium on the policy, the application for which was rejected, and transferred by him to plaintiff, in which defendant asked judgment against the insurance company, the error-, if any, in admitting the agent’s declarations that he was the company’s agent was harmless, where the witnesses testifying to such declarations further testified that he took their notes for the first premiums, and that the company sent policies to them, since, if he was authorized to take notes in cases accepted, he must have been authorized in all cases.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1008, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Insurance (§ 198) — Rejection op Application — Premiums—Liability of Company.
    That a rejected applicant for insurance, who had given the agent his note for the first premium, allowed the agent to apply to -another company for insurance did not cancel the first company’s debt for the money received by its agent.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 457-467; Dec. Dig. § 198.]
    4. Judgment (§ 16) — Default — Right of Party in Default to Judgment.
    A party against whom a defendant by a cross-action sought to recover judgment, who did not enter an appearance, was not entitled to a judgment in his favor, if the cause of action alleged against him was not subject to general demurrer.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 22, 24; Dec. Dig. § 16.]
    5. Pleading (§ 147) — Cross-Action—Sufficiency of Pleading.
    A cross-action must contain allegations which, given every reasonable intendment, would justify evidence of facts essential to be shown to obtain a judgment.
    [Ed. Note. — For other cases, see Pleading, Dec. Dig. § 147.]
    6. Judgment (§ 101) — Default—Pleading to Sustain — Gross-Action.
    In an action on a note by an indorsee, defendant alleged that the note was given to an insurance agent in payment of a premium on a policy, the application for which was rejected, and prayed judgment against the insurance company for any sum due on the note. The insurance company by a cross-action alleged that defendant was a negro; that the agent had no authority to take an application from a negro or to take his note; but that he did so, and cashed the note, and gave a part of the proceeds to E. as a commission for aiding in getting the application with the understanding that no commission was allowed on rejected applications. Held, that the allegations of the cross-action would not support a default judgment against R., since, if the agent had no authority to receive the application, he had no authority to employ R. to assist him in getting the application, or to agree to give him a part of the premium, and the company was therefore not a party to the contract between the agent and R., and could receive no benefit therefrom.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 16S-170; Dec. Dig. § 101.]
    7. Judgment (§ 101) — Default — Pleading to Sustain — Cross-Action.
    In determining the sufficiency of the allegations of a cross-action to support a default judgment against a third party, the evidence on the trial of the action against defendant could not aid the pleadings in the cross-action.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. § 101.]
    8. Appeal and Error (§ 877) — Haemless EIrror — Judgment in Favor of Party in Default.
    Where the allegations of defendant’s cross-action did not justify a default judgment against a third party, it could not complain of a judgment in favor of the third party on the ground that he had not answered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-8572; Dec. Dig. § 877.]
    9. Insurance (§ 198) — Agent’s Authority —Constructive Knowledge.
    A negro who applied for insurance in an Indiana corporation and gave his note for the first premium to the agent, was not charged with notice that the company’s constitution and by-laws provided only for the insurance of white people.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 457-467; Dec. Dig. § 198.]
    Appeal from Bee County Court; T. M. Cox, Judge.
    Action by the First State Bank of Skid-more against J. E. Benson and others. From a judgment in favor of the other defendants, the defendant Reserve Loan L-ife Insurance Company appeals.
    Affirmed in part, and reversed and dismissed in part.
    Chas. Troy and H. Snodgrass, both of Bee-ville, for appellant Beasley & Beasley and J. Ed. Daugherty, all of Beeyille, for appel-lees.

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

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

   FLY, C. J.

The First State Bank of Skid-more sued J. E. Benson on a promissory note for $243, payable to George W. Walker or order, indorsed by Walker to tbe bank. Benson admitted the execution, and that it was before maturity, for a valuable consideration, indorsed and delivered to the bank, and further alleged that he had executed the note to Walker, who was the agent of appellant, in payment of a premium on a life policy for $5,000, that his application was rejected, and no policy was obtained by him, and he prayed that appellant be made a party, and that he have judgment against appellant for any sum due on the note. Appellant denied the authority of Walker to take a note for the premium or to take an application from a negro, Benson belonging to tbe negro race; that Walker had been instructed by it to repay the money, and that he had paid $177.-60 to the bank which should be credited on the note, that the remaining $65.40 had been paid Frank Russek, for his assistance in procuring the policy, and prayed for judgment against him for that amount. The cause was tried without a jury, and judgment was rendered in favor of the First State Bank as against J. E. Benson for the sum of $138.02, in favor of the latter as against appellant for the same sum, and that appellant recover nothing from Frank Russek. This appeal was perfected against Benson and Russek by appellant.

The first and second assignments of error complain of proof of the declaration of Walker that he was the agent of appellant. It was not only proved that Walker was the agent of appellant, but it was, in effect, admitted by appellant in its answer. There is no denial that Walker was its agent to solicit insurance, and Ms agency was shown by the fact that several parties applied through him for insurance and obtained policies. The declarations were admissible under the facts in this ease, but, if they had not been, they could not have injured appellant. The witnesses not only testified that Walker represented himself to be appellant’s agent, but that he took their notes for the first premiums, and appellant sent the policies to them. If he was authorized to take notes for the first premium in cases accepted, he must have been authorized in all cases.

The fact that Benson may have allowed Walker to apply to another company for insurance did not cancel appellant’s debt for money received by its agent. If a policy in another company had been obtained, and Benson had accepted it in lieu of his money, there would be some ground for appellant’s contention, but no policy was obtained, and appellant’s agent did not return Benson’s money.

The record in this case fails to show that Russek answered in the court below, and in the motion for new trial appellant alleged as a reason why the judgment in favor of Russek was erroneous the fact that he had not answered in the cause. We must conclude, therefore, in spite of judgment being rendered in his favor, that- he did not enter an appearance in the lower court, and consequently was not entitled to a judgment in his favor, if a cause of action is alleged against him in appellant’s cross-action which is not subject to general demurrer. That is, the cross-action must. contain allegations which, given every reasonable intendment, would justify evidence of facts essential to be shown in order to obtain a judgment. Wood v. Galveston, 76 Tex. 126, 13 S. W. 227; Kimmarle v. Railway, 76 Tex. 686, 12 S. W. 698.

In the answer of appellant it was alleged that Walker had no authority to take the application from a negro, and that Benson was a negro; that Walker had no authority to take the note from Benson, but that he did so, and cashed the note and gave $65.-40 to Frank Russek as a commission for aiding in getting the application from Benson with the understanding “that no commission was allowed on rejected applications.” If it be true, -as alleged by appellant, that Walker had no authority to receive the application, he had no authority to employ any one to assist him in getting the application, and had no authority from appellant to make an agreement to give him a part of the premium. The allegations of the answer make out a contract between Walker and Russek to which appellant was not a party, and from which it could receive no benefit. To the allegations alone we must be confined, in ascertaining whether the pleadings would justify a judgment by default. No information can be used aliunde the pleadings, and, under that test, the answer would not have justified a judgment by default. Kimmarle v. Railway, herein cited. We cannot by any reasonable intendment read into the answer that Walker was acting for appellant in his contract with Russek, because his authority to take any action in regard to the Benson application is expressly denied, and, while it appears from the evidence that Walker was acting as the agent of appellant in taking the application, that cannot be looked to in aid of the pleading. It follows, if the pleadings did not justify a judgment by default against Russek, that appellant has no cause to complain of any judgment in favor of Rus-sek, on the ground that he did not answer. Appellant does not claim that there should have been a judgment of dismissal as to Russek, instead of one in his favor, nor that a judgment should have been rendered in its favor against Russek, but merely that judgment should not have been rendered in his favor in the absence of an answer.

In the fourth assignment of error it is not claimed that there was any privity between appellant and Russek, or that Russek agreed to return the commission to Walker or appellant, but that he agreed to return it to Benson.

Not only was it alleged in appellant’s answer that Walker was not authorized to solicit insurance from a negro, but that its constitution and by-laws provided for the insurance of white people only, and that every person dealing with it was charged with knowledge of that fact. We fail to see how a Texas negro, although, as alleged by appellant, he “knew that he was a negro,” could have any idea that an insurance company hailing from Indianapolis, Ind., would refuse to insure a man made a citizen by amendments to the federal Constitution which were favored and voted for by the state of Indiana. There is no testimony tending to show that appellant did not insure persons of the negro race, and of course Benson could not be charged with a knowledge of something which did not exist.

The judgment is affirmed, except as to Rus-sek, and, as to him, it is reversed and dismissed.


author: TADBOT, J.

text:
    SCOTT et al. v. WATSON et al.
    (No. 7126.)
    (Court of Civil Appeals of Texas. Dallas.
    May 16, 1914.
    Rehearing Denied June 6, 1914.)
    1. Vendoe and Purchaser (§ 284) — Remedies oe Vendor^ — Actions—Evidence—Directed Verdict.
    Evidence in an action on a vendor’s lien note or, in the alternative, for recovery of the land held to warrant a directed verdict for defendants on the ground that the note and land were not owned by plaintiffs, but had been allotted to another joint owner with plaintiffs in a parol partition.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 796-799; Dee. Dig. § 284.] ,
    2. Partition (§ 5) — By Act of Parties — Pa-rol Partition.
    A parol partition of lands is valid, since each tenant in common or joint owner holds an interest in the entire land, and to partition it is for each to surrender his interest in the part allotted to the others, which is not considered a conveyance of land within the statute of frauds.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. § 5.]
    3. Partition (§ 5) — By Act of Parties — Pa-rol Partition.
    Where R., W., and S. sold land, reserving a vendor’s lien, and R. and S. orally agreed ■with W.’s widow that she should have the notes and their two-thirds interest in the land for her one-third interest in another tract, in pursuance of which the notes were delivered to her, and she signed a deed for the other tract, the transaction constituted a parol partition.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. § 5.]
    4. Eeauds, Statute of (§ 68) — Real Property — Partition.
    The statutes prohibiting the conveyance of land or an interest therein by parol have.no application to a partition of lands, as the title is already in the party to whom allotted.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 109, 110; Dee. Dig. § 68.]
    5. Vendor and Purchaser (§ 261) — Remedies op Vendor — Then—Assignment.
    An ordinary transfer . of a vendor’s lien note to a stranger to the title of the land does not carry, with it the superior title of the vendor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674r-686, 688-695; Dec. Dig. § 261.]
    6. Partition (§ 9) — Act op Parties — Operation and Effect.
    Where, in the partition of land, the facts show that it was the intention of the parties that their entire interest should pass to one of them, or there could have been no other reasonable purpose, the law will carry out such intent, whether fully expressed in words or not.
    [Ed. Note. — For other cases, see Partit,' u, Cent. Dig. §§ 26-32; Dee. Dig. § 9.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by H. C. 'Scott and another against Geo. H. Watson and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    W. R. Bishop, of Athens, for appellants. Richardson, Watkins & Richardson, of Athens, for appellees.

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

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

   TADBOT, J.

This suit was brought by the appellants, H. C. Scott and J. R. Reierson, against the appellees, George H. Watson, O. B. Watson and B. M. Coker, on the 8th day of August, 1913, to recover on a promissory note for the sum of $300, and interest, payable on or before October 1, 1907, and to foreclose a vendor’s lien on the tract of land described in plaintiffs’ petition, or, in the alternative, to recover the title and possession of said land. The petition alleges, in substance, that on and prior to the 25th day of November, 1905, Reierson, Wood & Scott was a mercantile firm composed of the said J. R. Reierson, J. C. Wood, and H. C. Scott; that on said 25th day of November, 1905, the said Reierson, Wood & Scott, being the joint owners thereof, sold and conveyed by deed the land in controversy to the defendants Geo. II. Watson and O. B. Watson; that the note sued on was given in part payment for said land; and that a vendor’s lien was retained in both said note and said deed to secure the payment of said note, which defendants have failed and refused to pay.

The petition further alleges that plaintiffs, on January 1, 1913, were lawfully seised and possessed of said land, holding the same in fee simple; that on said date the defendants entered upon the same and ejected plaintiffs therefrom, and unlawfully withholds from them the possession of said land to their damage in the sum of $1,500. The prayer was for judgment for their debt and foreclosure of the vendor’s lien, or that they have judgment for the title and possession of said land, for writ of possession, and general relief. The defendants pleaded a general demurrer, not guilty, and specially the statute of limitation, and that plaintiffs did not own the note sued on, or any part of it; that said note was sold and transferred by plaintiffs, in so far as they held any interest in the same, to Mrs. Ella Wood, and its payment secured to her by the indorsement of plaintiffs, and that, when said note became due, it was paid off and discharged in full and canceled, and that, after its transfer to Mrs. Wood, plaintiffs have never had nor held any right, title, or interest therein, nor in the land sued for; that the said J. C. Wood, husband of Mrs. Ella Wood, died in January, 1906, leaving a will by which his wife, Mrs. Ella Wood, was made the independent executrix and sole legatee of his estate, and that said will had been duly probated; that the copartnership firm of Reierson, Wood & Scott, at the date of the said J. O. Wood’s death, owned the note sued on and four other notes of like character, given by the defendants George H. Watson and O. B. Watson to said firm for the purchase money of the land in controversy; that in January, 1906, after the death of the said J. C. Wood, plaintiffs and the said Mrs. Ella Wood entered into and made a partition of a portion of the said co-partnership property, by which the plaintiffs became the sole owner of 160 acres of land in Henderson county, Tex., known as the S. A. Jordan pre-emption, and belonging to said copartnership property, and the said Mrs. Ella Wood became the sole owner of the said five vendor’s lien notes, with -the vendor’s lien ’on the land in controversy; that such partition was fully executed and acted upon by said parties, and, at the request of the plaintiffs, the said Ella Wood joined with plaintiffs in the execution and delivery of a'deed conveying said 160 acres of land to one Page and wife, for the benefit of said plaintiffs, the consideration for such conveyance being $2,400, which plaintiffs received and appropriated to their own use, and that the said Mrs. Ella Wood in turn became the owner of said five vendor’s lien notes, including the one involved in this suit, and all of the interest that plaintiffs theretofore had in and to the land for which said notes were given; that all of the title theretofore held by said plaintiffs in and to said notes and land was by said partition divested out of plaintiffs and invested in tbe said Mrs. Ella W'ood; and that at no time since said date have the plaintiffs, or either of them, ever had any right, title, or interest in or to said notes, lien, or land.

The defendant Coker, further answering, says that he bought the land described in plaintiffs’ petition from Mrs. Ella Wood October 22, 1910, and received a deed therefor, which was recorded in Henderson county, Tex.; that he paid a valuable consideration for said land without any knowledge of any lien against the same; that he bought the same in good faith, took possession, and made valuable improvements thereon, and is now the owner and holder of said land in fee simple. By supplemental petition plaintiffs specifically denied the allegations of defendants’ answer, and averred that they indorsed the note sued on to Mrs. Wood, but that, after the same became due, they paid it to Mrs. Wood, and that she transferred and delivered said note to' them, and since that time, January 30, 1908, said note has been the property of plaintiffs. They alleged that they were the owners of a two-thirds undivided interest in the land in controversy and prayed a recovery therefor. The case went to trial October 1, 1913, and, upon the conclusion of the evidence, the court instructed the jury to return a verdict in favor of defendants, which was done, and judgment entered in accordance therewith, and plaintiffs appealed.

The first assignment of error is, in effect, that the court erred in instructing a verdict in favor of the defendants, because there was evidence showing that the note sued on had never been paid: that plaintiffs were grantors in the deed conveying the land in question, and received said note as a part of the consideration for such conveyance; that both said note and deed retained a vendor’s lien on said land to secure the payment of said note; that plaintiffs had never released said lien or parted with the “higher legal title to said land” ; and that defendant Coker bought said land with knowledge, both actual and constructive, of the existence of said note and the lien on said land. We differ from this view of the evidence in important particulars, and believe the assignment should be overruled. The trial court instructed the jury that the facts showed that the note sued on was barred by the statute of limitation, and that defendants’ title was superior to that of plaintiffs.

That the note was barred by limitation there can be no doubt, and we believe the court’s interpretation of the evidence bearing upon the other phase of the case and his conclusion of its legal effect, is correct. It is fully settled that a parol partition of lands is valid in this state. It is said that it is upheld, “not so much upon the ground of estoppel, as because there is nothing in our statutes of frauds that prohibit a conveyance by parol of an interest in real estate.”- Wardlow v. Miller, 69 Tex. 395, 6 S. W. 292. In the case cited, as is well understood, it is pointed out that tenants in common (or joint owners, as were plaintiffs and Mrs. Wood) hold an interest in the entire land to which their cotenancy extends, but neither owns any particular portion of it to the exclusion of his cotenant; that to partition the land so as to give to each an exclusive ownership of a designated portion in severalty is for each to surrender his interest in the portion allotted to the others; and that this release of interest is considered by our courts not to be a conveyance of lands within the meaning of the statutes of frauds. See, also, Stuart v. Baker, 17 Tex. 418; Shannon v. Taylor, 16 Tex. 413; Gibbons v. Bell, 45 Tex. 417; Johnson v. Johnson, 65 Tex. 87.

The evidence shows that J. R. Reier-son, J. 0. Wood, and H. C. Scott, composing the mercantile firm of Reierson, Wood & Scott, owned the land in controversy. On November 25, 1905, they sold and conveyed said land to Geo. H. Watson and O. B. Watson in consideration of their five promissory notes of $300 each, bearing interest at the-rate of 10 per cent, per annum from maturity, the note herein sued on falling due “on or before October 1, 1907.” The vendor’s lien was expressly retained in said notes and in the deed made to the Watsons to secure their payment. In January, 1906, J. O. Wood died, leaving a will by which his wife, Mrs. Ella Wood, was made the independent executrix and sole legatee of his estate. At the time of J. O. Wood’s death the said firm of Reierson, Wood & Scott owned, besides their stock of goods, the 160 acres of land mentioned in the pleadings. Some time after Wood’s death, and perhaps iñ April, 1906, Reierson and Scott, who were then carrying on the former mercantile business of Reier-son, Wood & Scott, had an opportunity to purchase a lot of dry goods and pay for the same by conveying to the owner of said goods the said 160-acre tract of land. With a view of making this trade, Reierson and Scott began negotiations with Mrs. Wood to secure her interest in the said 160-aere tract, she then being the owner of the interest formerly held by her husband in the land which had been sold to the Watsons, and in the notes given by them for said land, and in the said 160-acre tract. Mrs. Wood placed her business in the hands of her brother, H. D. Pickens, who was authorized to act for her in the negotiations mentioned. This being known to Reierson and Scott, they, through J. R. Reierson, called up Pickens over the telephone and informed him they had an opportunity to trade the 160-aere tract for a stock of goods, and proposed that Reierson and Scott would give their two-thirds interest in the land or notes involved in this suit for Mrs. Wood’s one-third interest in the 160-acre tract Pickens, acting for-Mrs. Wood, refused this proposition, telling Reierson that he did not know the Watson boys (payers of the five $300 notes) to be good, and that the land which had been sold to them could not possibly be worth more than $900. This statement seems to have been repeated several times, resulting finally in Pickens, for Mrs. Wood, agreeing that, if Reierson and Scott would secure the payment of the first two of the five vendor’s lien notes executed by the Watsons by their in-dorsement of said two notes, she would accept liis proposition, telling him at the same time that the land for which the notes were given was not worth more than $900, and that he would take the notes, believing that Mrs. Wood would have to take back the land. Thereupon Reierson and Scott indorsed the first and second of said five notes, and delivered all of said notes to Mrs. Wood, and she in turn signed and executed with Reier-son and Scott, at their request, a deed conveying to Page the 160-acre tract of land for which Reierson and Scott got the stock of goods they wished to buy. The first note indorsed by Reierson and Scott was paid by the Watsons, but they failed to pay the second one, and upon demand of Mrs. Wood Reierson and Scott paid it, and the note by the party representing Mrs. Wood was marked paid. When Mr. Scott, who paid this note, discovered that it had been marked paid, he requested that such indorsement on it be rubbed out, stating as a reason for such request that the payment of the note “is a clear loss to us as it stands, and we may some day get something out of those Watson boys.” The word “paid” was about half rubbed out, and the note, without any written transfer or indorsement whatever of Mrs. Wood or any one acting for her, handed over to Mr. Scott. As contemplated, when Mrs. Wood took the five vendor’s lien notes, the Watsons failed and refused to pay all of said notes, except the one first falling due. They were insolvent, and on the 27th day of March, 1909, they deeded the land for which the notes were given to Mrs. Wood, and she on October 22, 1910, for a consideration of $900, $100 cash, and a vendor’s lien note for $800, due October 15.1911, conveyed said land to the defendant Coker. Prom these facts it appears that Mrs. Wood became the sole owner of one portion of the common property of herself and Reierson and Scott, and Reierson and Scott, or their vendee, Page, the sole and separate owner of another part. By the transactions related the segregation of the property dealt with became complete, Mrs. Wood thereby “no longer owned any interest in the 160-acre tract, and Reierson and Scott no longer owned any interest in the notes and land taken by Mrs. Wood.” By the written indorsement of the two notes, demanded by Mrs. Wood, before she would consent to and accept such a division of the joint property mentioned, the division thereof was made equal, which would not have been, it seems, without such indorsement if' the notes were not paid by the Watsons and she was compelled to take back the land. The wisdom of this demand is verified by the conditions which subsequently confronted her. The Watsons refused to pay the notes; she was compelled to take back the land, and only got in a sale of it $900, and of that amount only $100 cash. Mrs. Wood got no interest whatever in the stock of goods received by Reierson and Scott for the 160-acre tract of land. Pickens testified that Mrs. Wood gave her one-third interest in said 160 acres for Reierson and Scott’s interest in the notes or the 120-acre tract sold to the Wat-sons, and, in answer to the question, “If Mrs. Wood did not give her interest in the land [160-acre tract] for the notes. Reierson said: ‘It might be that me and Scott agreed to take that land out there [the 120-acre tract], or what it brought for our interest in the notes. It might have been that way; I don’t know whether it was or not; I don’t really understand the proposition.. Probably it was that way. After we sold the land [160 acres] to Mr. Page, me and Mr. Scott got these goods, and Mrs. Wood did not get any interest in that stock of goods.’ ” A consideration of the testimony as a whole leads almost irresistibly to the conclusion that at the time of the transactions involved in this controversy the parties had in mind the absolute transfer to Mrs. Wood of the five vendor’s lien notes and the vesting in her of ‘ such title as remained in Reierson and Scott by reason of the executory character of the contract of sale of the land to the Watsons. It is true the plaintiff Scott said, “I think my understanding about it was that the note wasn’t carried out, and that we were just taking up an indorsed note, and of course I didn’t think it ought to be marked paid,” but we do not believe this alters the case-. The evidence, as a whole, plainly shows an intention to effect a parol partition of the respective properties that passed from the one party to the other, and such was the legal effect of such transactions. As a result of the understanding, agreements, and consummated or completed contracts of the parties, Mrs. Wood’s interest in the 160-acre tract of land passed to Reierson and Scott, or to their vendee, Page, which is, the same thing for the purposes of a decision of the question under consideration, and their entire interest in the notes and 120-acre tract sold to the Watson brothers passed to Mrs. Wood.

The statutes, as we have seen, which prohibit the conveyance by parol of land, or an interest in land, have no application, because the title is already in the joint owner, whether it be the legal, equitable, or paramount title that remains in the vendor in anexecutory contract for the sale of land until the purchase money has been paid.

That an ordinary transfer of a vendor’s lien note to a” stranger to the title of the land for which the note was given does not pass or carry with it the superior title of the vendor is clear and unquestioned in this case, but Mrs. Wood held such title to the extent of the interest of her deceased husband in the entire 120-acre tract sold to the Watsons, and, in the partition made with Reierson and Scott, such superior or paramount title as they held passed to and vested in her without any writing to that effect or mention made of the transfer of such title.

Where, as argued by counsel for appellees, in the partition of land the facts show that it was the intention and purpose of thé parties that the entire interest of the joint owners should pass to one of them, or where there could have been no other reasonable purpose, the law will carry out the intent of the parties, whether the same was fully expressed in words or not. What appellants’ rights might have been as indorsers of the note sued on, had suit been brought before the note was barred by limitation, we need not stop to inquire. Nor is it necessary to discuss their second assignment of error, which is that the court erred, for the reasons therein stated, in not instructing a verdict in favor of appellants for two-thirds of the land in controversy. This assignment raises practically the same questions presented by the first assignment, and what we have already said disposes of it against appellants.

Believing the proper judgment has been rendered, it is affirmed.


author: RASBURY, J.

text:
    JOHNSTON v. WESTERN UNION TELEGRAPH CO.
    (No. 7124.)
    (Court of Civil Appeals of Texas. Dallas.
    May 16, 1914.
    Rehearing Denied June 6, 1914.)
    1. Telegraphs and Telephones (§ 68) — Delay in Delivery of Message — Mental Anguish.
    Where the addressee of a telegram reading, “Mother died 6:30 p. m.,” had it not been delayed in delivery, would have responded thereto, requesting that the funeral be postponed until his arrival, it would have been postponed, and he would have attended it, the telegraph company was liable in damages for his mental anguish due to his failure to attend the funeral, though, had the telegram been delivered promptly, he could not have attended the funeral unless postponed, since the telegraph company ought, in the usual course of events and general experience, to have foreseen and anticipated such contingencies.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    2. Telegraphs and Telephones (§ 73) — Delay in Delivery — Questions for Jury.
    That the addressee of a telegram informing him of his mother’s death, which was delayed in delivery, had received another telegram shortly before advising him that she was paralyzed and speechless, but had not gone to see her, merely made a question for the jury whether in fact he experienced mental anguish from the delay, and did not show, as a matter of law, that he would not have attended the funeral had the telegram been delivered promptly.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. § 73.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by P. A. Johnston against the Western Union Telegraph Company. Judgment for defendant on demurrer, and plaintiff appeals.
    Reversed and remanded.
    Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellant. N. L. Lindsley, of Dallas, for appellee.

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

   RASBURY, J.

Appellant sued appellee to recover damages for mental anguish due to the negligence of appellee in failing to deliver him a telegram announcing the death of his mother. A general demurrer was sustained to the appellant’s petition, and judgment on the facts alleged entered for appel-lee, from which this appeal is taken.

The facts briefly stated, and in substance as set out in the petition, and upon which recovery was sought, are ns follows: Appellant resides in the city of Dallas. Appellee received at Garner, N. C., for delivery to appellant the following telegram:

“Garner, N. C. December 25th, 1912. P. A. Johnson, Dallas, Texas. Mother died 6:30 p. m. [Signed] H. Rand.”

This telegram was delivered to appellee’s agent at Garner, to whom the charges for transmission were paid, and who was informed of the facts and circumstances requiring the speedy transmission and delivery thereof. Appellant’s place of residence in Dallas was known to appellee, and it had, on December 21, 1912, delivered a telegram from H. Rand to appellant, relating to the same matter, at his residence in Dallas, addressed to P. A. Johnson, although appellant’s correct name was Johnston. The above telegram was received by appellee at its Dallas office at 7:02 o’clock p. m., December 25, 1912, at which time appellant was at his residence in Dallas. It was not delivered until January 11, 1913. The person referred to in the telegram was appellant’s mother, and the one signing it was his brother-in-law. Appellant’s mother resided at Garner, N. 0., and she was buried December 26, 1912, at 4 o’clock p. m., and of which he was not advised until he received a letter to that effect on the same day the telegram was delivered. If the telegram had been delivered promptly, appellant could not have reached Garner before the burial. If it had been promptly delivered, however, he could and would have departed for Garner the night of December 25, arriving there December 27, 1912, and could and would have responded to the telegram, requesting that the funeral be postponed until his arrival; and pursuant to such request it would have been postponed until his arrival, and he would haye attended same. But by reason of appellee’s- failure to deliver the telegram lie was prevented from attending his mother’s funeral, in consequence of which he suffered, and will hereafter suffer, great pain and mental anguish', to his damage $2,900. Appellee did not exercise ordinary care to deliver the telegram.

Thus the only issue is, of course, the action of the trial judge in sustaining the general demurrer, which admitted the truth of the facts we have related, hut which facts, in the opinion of the court, were insufficient to show in appellant a legal right to recover the damages sought. Such right, in view of the facts related, depend upon the application of the rule announced by our Supreme Court in Western Union Telegraph Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58, reaffirmed in Western Union Telegraph Co. v. Motley, 87 Tex. 41, 27 S. W. 51, and applied in Western Union Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 983, and Western Union Telegraph Co. v. Swearingen, 97 Tex. 295, 78 S. W. 492, 104 Am. St. Rep. 876, to facts not unlike those in the instant case. In the case first cited the Supreme Court, after noting that the liability of telegraph companies in failing to deliver telegrams is to be ascertained by the same rules that apply in case of breaches of other contracts, and after citing that rule, say, as applied to cases similar to the instant case, that “the wrongdoer shall be answerable for all the injurious consequences of his tortious act which, according to the usual course of events and general experience, were likely to ensue, and which therefore, when the act was committed, he may reasonably be supposed to have foreseen and anticipated,” and it is not necessary “that the injurious result will certainly follow from the breach of contract or tortious act, but it must be such as might be anticipated as a probable consequence” of the act. In the Linn Case, from which we have just quoted, it was said that a telegram addressed to Linn, and signed “Kate,” announcing that “Grace” was seriously ill, “was sufficient to notify the telegraph company that ‘Grace’ was related to the plaintiff, and of the consequence to plaintiff of failure to deliver it.” In like manner the telegram in the instant case addressed to appellant, stating, “Mother died 6:30 p. m.,” was sufficient to notify the appellee that “mother” was related to appellant, and of the consequences which would ensue to appellant by a failure to deliver it. What we have just quoted from the Linn Case is, in our opinion, all that case decides affecting the instant case for the reason that the facts are readily distinguishable. Linn sued upon a telegram announcing the serious illness of his sister, and sought to recover on the ground that, had the message been promptly delivered, he would have telegraphed to the husband of Grace of his intention to take the next train in order to visit her in her illness, and that, upon receipt of -such telegram, her husband would have postponed the funeral of his sister until his arrival, who died subsequent to the message announcing her illness. In holding that Linn could not recover, the Supreme Court said the facts were too remote for the company to have reasonably foreseen and anticipated the consequences alleged to have resulted, since the company could not understand from “Grace’s” serious illness that she would die and prevent Linn from attending her funeral, or that “Grace’s” husband, also unknown to the company, upon receiving a message from Linn that he was coming to visit his sister, would postpone a funeral not to be inferred from the message, since such postponement depended upon the death of his sister, which was uncertain, upon Linn’s answer that he would come, which depended upon his own will and his surroundings, and many other cogent reasons cited by the court. In the instant case, however, the facts are different, since the telegram sent to appellant did not announce the serious illness of- his mother, but her death, followed by the further fact that he would and could have arranged to postpone the funeral and attended same if the message had been delivered. The Supreme Court did not have such a case before it in the Linn Case, although it did hold in that case that a telegram announcing the serious illness of a relative imported notice to the company that the one seriously ill might die, and that a failure to deliver the telegram might deprive the one addressed of being present at the funeral. Later, however, there was before it a ease involving what is here contended for by appellant as the correct rule of law upon a state of facts similar with those in the instant case, with one difference, • which will be noticed later. We refer to the Swearingen Case, supra. In that case it appeared that Swearingen’s married son was killed, and a message signed by his son’s wife was sent to him, reading: “Come. Frank is dead.” The message was not delivered, and those in charge of the funeral, assuming that Swearingen was not coming, buried the body. If the message had been delivered, Swearingen would have replied that he was coming, and the burial would have been deferred until his arrival. Swearingen sued and-recovered, and, when the case reached the Second Court of Civil Appeals, that court certified to the Supreme Court whether or not the damages recovered were too remote under the rules already cit ed. The Supreme Court held they were not and that the point was ruled by the decision in Western Union Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982, and that such rule was not in conflict with the holding in either the Linn or Motley Cases, supra and was distinguishable from the holding in Western Union Telegraph Co. v. Stone, 27 S. W. 144. Thus it will be seen that recovery may be had in cases where it appears as a fact that the addressee in the message, if it had been promptly delivered, would have had the funeral postponed íd order to attend same, even though the message was received at a time that would have made it impossible for him to have been present at the actual time of such funeral, and that, under the obligations of appellee to forward the message promptly, it ought, in the usual course of events and general experience, to have foreseen and anticipated such contingencies. Then the question arises: Does the use of the word “come” in the telegrams in the Swearingen and Norris Cases in any respect vary the application of the rule in the Instant case? We think not. In the Linn Case, in addition to the holding that the «contents of the message were sufficient to notify the company that Linn had a serious interest in the condition of Grace, it was further held, as we have said, that:

“It also notified the defendant company that the person mentioned might die, and that plaintiff might, by a failure to deliver the message, be deprived of being present at her funeral.”

Tbat holding is approved and reaffirmed in the Swearingen Case. Thus it will be seen that the rule announced in all of said cases is not based literally upon the language of the messages, but upon the legitimate and natural deductions. to be drawn from the facts stated-therein, and the consequent acts or steps which men would ordinarily' take in such cases, based upon the usual course of events and general experience in such matters. The telegram in the instant case bore the information that the one named therein as “mother” was related to appellant, and that his interest in her was serious. It did not say, as in Western Union Telegraph Co. v. Stone, 27 S. W. 144, that the day of burial had been set for such time as to make it impossible for appellant to attend, and as a consequence excuse the failure to deliver, but left that question open, and it seems to ús, “in the usual course of events and general experience,” it should have been foreseen and anticipated that appellant would desire to attend the funeral of his mother, -and make arrangements for the very matter obviously left unarranged for by those sending the telegram. As much, in effect, wasjsaid in the Linn Casé, since the court there held that, when the message announced the serious illness of a relative,. the company should have foreseen her probable death and the inability of the plaintiff to attend the funeral on failure to deliver the message. If,; then, a message announcing serious illness imports notice of .probable death, and that the addressee will desire to attend the; funeral, it can hardly be argued that a message announcing the death of a nearby relative does not import notice to the company that the addressee will desire to attend the funeral, and that the time and arrangement of the funeral is purposely left open in order that he may in turn communicate his wishes. That such matters should be foreseen and anticipated under the rule Is held In Western Union Telegraph Co. v. Caldwell, 126 Ky. 42, 102 S. W. 840, 12 L. R. A. (N. S.) 748, on the ground , that they are natural and to be expected, “when measured by the ordinary rules of human experience, and judged by the standards that regulate the conduct of people generally.” In like manner it is held by the Supreme Court of South Carolina in Hughes v. Western Union Telegraph Co., 72 S. C. 516, 52 S. E. 107, under facts in substance identical with those in the instant case, that the company under the general rule is bound to take notice that “in the case of a near relative the probability is that the addressee will follow the promptings of nature and respond to the message, and, if possible, at once set out to attend the sick bedside or the funeral, as the case may be.” The use of the word “come” in such cases, it occurs to us, imports no more than the rule itself writes into every message announcing the death of a near relative, when it says that the company shall foresee and anticipate that men will do that which they usually and generally do in such cases, and that usually and generally they take such steps as appellant says he would have taken had the telegram been delivered. To so hold is not, we believe, to extend the rule in force .in this state as argued by counsel for appellee. To say that such a message, to come within the general rule, must contain the word “come” or its equivalent is to say that persons act as they generally and usually do only when invited to do so, and would tend to narrow rather than extend the rule.

Nor do we think that the case of Western Union Telegraph Co. v. White, 149 S. W. 790, determines the issue in this case. As we understand the opinion in that case, it holds that the only theory upon which plaintiff could recover was that she could have arrived for the funeral on the day set, without reference to a postponement, for the reason, as indicated by the court, that “the evidence-tends to show that, because of the mutilated condition of the body and the conditions of the weather, it would have been very difficult, if possible, to preserve the body in proper condition for burial after” the day set for burial, and the allegation that plaintiff would have had the funeral postponed was, for that reason, immaterial.

The fact that appellant, as shown by appellee’s defensive pleading, prior to his mother’s death, had received another telegram advising him that his aged mother was paralyzed and speechless, and had not gone to see her, and from which appellee argues it could not have been contemplated by the sender of the message that appellant would arrange to attend the funeral, involves, of course, a question of fact for the consideration of the jury in determining whether appellant in fact experienced the menta1: anguish alleged, and which we may not consider in determining the action of the trial court in sustaining the general demurrer.

We conclude the general demurrer was improperly sustained, and accordingly the judgment of the court below is reversed, and cause remanded for another trial not inconsistent with the views here expressed.

Reversed and remanded.