author: CONNER, C. J.

text:
    JACKSON et al. v. McALLISTER et al.
    (No. 8538.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 7, 1917.
    Rehearing Denied May 12, 1917.)
    1. Mandamus <&wkey;143(2) — Laches — Control of Commissioners’ Court — Road Bonds.
    Where, after district road bonds had been issued, approved by the Attorney General, and registered by the comptroller, under Rev. St. 1911, arts. 628, 631, 632, the commissioners’ court, on petition of a controlling number of the voters of the district, made an order determining that the bonds could not be sold at par, repealing the order authorizing their issuance and canceling the bonds, mandamus would not lie, nearly five years after the original election, to compel reissuance of the bonds on the ground the rescinding order was without authority, the recor-d showing that the Attorney General canceled and withdrew his approval of the bonds after their cancellation, and being silent as to whether he would reapprove them if again issued, and whether the roads, etc., within the district.were as they existed at the date of the original election.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 285.]
    2. Highways <&wkey;165 — Powers of Commissioners’ Court.
    By Rev. St. 1911, art. 2241, as to powers of commissioners’ courts over public roads and highways, such courts are given general jurisdiction.
    3. Counties <&wkey;182 — Bonds—Power of Commissioners’ Court.
    Where district roads bonds are issued under Rev. St. 1911, arts. 628, 631, 632, the commissioners’ court, as incidental to the express power over roads given by article 2241, and the “control” and “custody” of the bonds given to the court by article 632, has power to determine the manner and methods to be adopted in order to effect a sale, and when it is not reasonably possible to sell them at par.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 285.]
    Appeal from District Court, Johnson County; O'. L. Lockett, Judge.
    Mandamus -by J. W. McAllister and others against B. J. Jackson and others. Judgment for plaintiffs, and defendants appeal.
    Reversed, and judgment entered.
    Walter & Baker and S. C. Padelford, all of Cleburne, for appellants. Ramsey & Odell and Kugle & Warren, all of Cleburne, for ap-pellees.
   CONNER, C. J.

On June 4, 1912, 126 resident property taxpaying voters residing in a certain defined territory in Johnson county presented to the commissioners' court of that county, pursuant to the terms of article 628 of our Revised Statutes, a petition for an election to be held in said district to determine whether or not bonds of such district should be issued in the sum of $75,000 for the purpose “of constructing, maintaining, or operating macadamized, graveled or paved roads and turnpikes in said district, or in aid thereof,” and “also as to whether or not a tax shall he levied upon the property of said * * * defined district * * * for the purpose of paying the interest on said bonds and to provide a, sinking fund for the redemption thereof.”

On the same day said petition was duly heard and considered by said commissioners’ court, and an order was duly entered calling for the election as prayed for to be held by the qualified voters in said district on July 18, 1912. The order described the district by metes and bounds, designated the place at which the election should he held, appointed a manager for the election, etc., and the clerk of the commissioners’ court was ordered to issue and have published a notice of the election, as provided by law.

The notice of the election was duly published, and the election, so far as the record shows, was duly held a,t the time and place designated in the order, after which, on July 22, 1912, as appears from- an order then duly entered at a special meeting of the commissioners’ court, the returns of the election were duly canvassed, and it was found that there were cast at said election 232 votes, of which 163 were cast “for the bonds and tax” and 69 were cast “against the bonds and tax.” The order further recites that, it having appeared to the court that the proposition to issue said bonds and levy said tax had been sustained by a two-thirds majority of the qualified taxpaying voters at said election, the said defined district be constituted road district No. 2 of Johnson county, to have “all the corporate and other rights as such permitted and allowed by law.”

On August 15, 1912, at a regular meeting of said court, an order was duly entered providing for the issuance of the-bonds, fixing the rate of interest, adopting the form of the bonds, and levying a tax of 54 cents on each $100 valuation of taxable property in said district to provide for the payment of interest and the creation of a sinking fund for the redemption of the bonds. Thereafter, in accordance with said order, said bonds were duly issued, dated October 1, 1912, signed by the county judge of Johnson county, countersigned by the county clerk and registered with the county treasurer of said county. Later said bonds were submitted to the Attorney General of Texas for his approval and on April 11, 1913, a certificate was duly executed by him to the effect that said bonds had been submitted'to him, and that, after careful examination, he found, among other facts, the following:

“That said road district No. 2 was, at the time o-f the passage of the order authorizing the issuance of said bonds, legally established; that the order authorizing the issuance of said bonds was in proper form and legally passed; that •said bonds are in proper form, and in accordance with the order authorizing their issuance, and nil the requirements of the law under which they were issued had been complied with;” that it was his judgment, and he so found, that said bonds were issued in conformity with the statutes and laws of the state of Texas; and that they were valid and binding obligations upon said road district No. 2 of Johnson county, Tex.

On June 8, 1913, said bonds were presented to the comptroller of the state of Texas for registration, and by him duly registered. On June 9, 1913, the day following the date on which said bonds had been registered by the comptroller, an order was entered by the •commissioners’ court of Johnson county, Tex., reciting that it had on that day heard a petition of 235 property taxpaying citizens and ‘quálified voters of said road district No. 2, requesting the court to repeal and cancel the •order of the court for the issuance of said bonds; that non© of said bonds had been sold, and that said commissioners’ court had been unable to sell the same, or any of the ■same, at par and accrued interest, and that it was the opinion of the court that the same could never be so sold, and that after due ■consideration of said petition it was accordingly ordered that the order of August 15, 1912, authorizing the issuance of said bonds, be repealed, and that said bonds be destroyed and the taxes collected for the purpose of paying the interest on said bonds and creating a sinking fund for the same be refunded to the taxpayers who had paid their taxes. None of said bonds were ever sold, but in accordance with the order last referred to, all •of the same were marked “canceled,” and are now in the custody of the county treasurer of Johnson county.

On September 6, 1915, the appellees in this •case presented- to the commissioners’ court of Johnson county a petition for the reinstatement and reissuance of said bonds. The petition was signed by J. W. McAllister and 134 •others. On September 14, 1915, it seems that this petition was considered by the commissioners’ court, and by that court a.n order was made to the effect that the petition for the reissuance of said bonds had been duly considered, but that, it appearing to the •court that a majority of the qualified taxpaying voters of road district No. 2 were opposed to reissuing said bonds, the petition was denied. Thereupon the appellees, resident taxpaying voters residing within the limits of road district No. 2, instituted this suit against B. Jay Jackson, as county judge and the four county commissioners, county clerk, and county treasurer, of Johnson county, and against said road district No. 2, for a, mandamus tó compel the reissuance of said bonds, on the ground that the order of the commissioners’ court, purporting to rescind the order authorizing the issuance and the attempted cancellation of said bonds, was without authority, null, and -void. The ap-pellees by petition alleged in detail the facts upon which the petition was based substantially as hereinbefore set out.

The appellants J. T. Steward and ten others obtained leave of the court to intervene in the cause as property taxpaying resident voters of said district, and joined with the other named appellants in filing an amended answer in which, briefly stated, the defendants, besides the general denial, specially denied that road district No. 2 had been duly incorporated, and attacked the regularity and validity of all of the proceedings preceding the election hereinabove mentioned, alleging that the petition for the election had been fraudulently procured and presented without notice .to the defendants; that the defendants had no notice of the election; that their property was so situated as to not be benefited by the improvement of any road in the district; that the court prior to the election had not decided whether roads or turnpikes should be constructed, maintained, or operated in said district, and hence that the voters did not know specifically the purpose for which bonds were to be issued, etc. The defendants further pleaded that, after the bonds had been issued and approved by the Attorney General and registered by the comptroller, the commissioners’ court had offered and advertised them for sale, after due and reasonable notice; and, after all due and proper efforts were made to sell the same by the county judge, it was found that they were unable to do so at par. The answer further set up the petition and order of cancellation, etc., as hereinbefore recited.

The court sustained numerous special exceptions to the answer, and upon a hearing of the evidence peremptorily instructed the jury to find for the plaintiffs, which the jury did, and it was thereupon decreed that the order of the commissioners’'court canceling its previous order for the issuance of the bonds, be set aside and adjudged to have been made without authority. The judgment further decreed that the county judge and the commissioners, naming them who constituted the commissioners’ court of Johnson county—

“pass an order and enter same upon the minutes of said court, rescinding and canceling said order or resolution of date June 9, 1913, and that the defendant road district No. 2 of Johnson county, Tex., and the defendants, the commissioners’ court of .Johnson county, Tex. (again naming the members of the court), are ordered and directed to reissue the bonds of said road district No. 2 of Johnson county, Tex., to be dated October 1, 1912, in the sum of $75,-000, of the same dertomination, bearing the same rate of interest, and otherwise substantially the same as the bonds heretofore issued by and for and in behalf of said, road district No. 2 of Johnson county, and attempted to be canceled by said order above referred to.”

It was further ordered that after the re-issuance of the bonds as directed in the judgment the same be signed by B. Jay Jackson, county judge, and attested by E. E. Metz, as county clerk of Johnson county, with the seal of the commissioners’ court of Johnson county impressed thereon, and that the bonds be registered by the county treasurer. The judgment further directed that the commissioners’ court should levy a tax on all of the taxable property located in said road district No. 2 for the year 1916 and years subsequent thereto, for the purpose of paying interest and creating a sinking fund for the payment of the bonds. It was further ordered that the bonds be submitted to the Attorney General for his approval and to the Comptroller of Texas for registration, as provided by law, after which the bonds should be offered for sale to the highest bid- der for cash, after due notice, as required by law, for not less than their par value, and it was, ordered that the writ of mandamus and such other writs and processes as might be necessary to secure the execution and compliance with the terms of the decree be issued as against all the defendants, and that the plaintiffs recover all costs.

From the decree so entered the defendants have duly appealed to this court, and present some 47 assignments of error.

In the view we have taken of the case we deem it unnecessary to discuss and determine the many questions so interestingly and ably presented in the briefs of counsel. For the most part these questions relate to the validity of the proceedings which antedate the original order declaring the result of the election in said road district No. 2, and ordering the issuance of the bonds and the levy of the tax as determined by the election. The statute (article 631) provides that if after the result of an election of the kind is known, it shall appear to the commissioners’ court of the county that a two-thirds majority of the vote cast at such election were in favor of the issuance of bonds, then it shall be the duty of said commissioners’ court, as soon thereafter as practicable, to issue said bonds on the faith and credit of the county, or of the defined district within which the election was held. But it must be observed that the case presented is not one where the commissioners’ court under such circumstances have refused to issue bonds. In the case before us the bonds were in fact issued, were in fact presented to and approved by the Attorney General, and registered with the comptroller, as required by law. Thus far no complaint is made in behalf of appellees of the proceedings of the commissioners’ court; on the contrary, appellees affirm that all of these proceedings, regardless of the objections urged by. appellants, were in all things regular and lawful. It further appears from allegations and from the evidence that between the date of the issuance of the bonds, viz. on October 3., 1912, and the date upon which the bonds were canceled, as complained of, to wit, on the 9th day of June, 1913, the county judge, by correspondence with dealers in such securities and perhaps otherwise, made efforts to sell the bonds, but was unable to sell or secure an offer therefor at par, as was specifically required by article 632 of the Revised Statutes. Said article also specifically requires that:

“Such bonds, when so issued, shall continue in the custody of, and under the control of the commissioners’ court of the county in which they were issued.”

The' record also shows that after the cancellation of the bonds under consideration by the commissioners’ court of Johnson county, the Attorney General of Texas canceled and withdrew his approval thereof, and the record is entirely silent as to whether or not he would reapprove said bonds in event they were again issued,-as required by the order of the district court. The record is also silent whether the roads, if any, and the other conditions, whatever they were, within road district No. 2, are at this time as they existed at the date of the election stated. The question, therefore, with which we are confronted is, not whether the commissioners’ court could in the first instance arbitrarily refuse to issue the bonds, but whether at this time, some 4 years and 8 months after the original election, we shall approve the judgment ordering their reissuance. We think not.

The statute (Revised Statutes, art. 637) provides that for the purposes intended the defined district accepting provisions of the law by voting the tax authorized shall be “made and created a body corporate, which may sue and be sued in like manner as counties.” The law gives no express definition of its purposes or powers, and designates no other person or body than the commissioners’ court to act for or in any manner represent the corporate body thus established. On the contrary, the chapter relating to the subject merely commits to the commissioners’ court the duty of issuing the bonds, of retaining their custody until sold, and of making the proper disposition of the funds, etc. By other statutes the commissioners’ courts are specially given power to “lay out and establish, change, and discontinue public roads and highways.” See article 2241, p¿r. 3. The jurisdiction thus given is general. Allen v. Parker Co., 23 Tex. Civ. App. 536, 57 S. W. 703; Howe v. Rose, 35 Tex. Civ. App. 328, 80 S. W. 1023; McCown v. Hill, 73 S. W. 851; Gaines v. Newbrough, 12 Tex. Civ. App. 466, 34 S. W. 1048. -If then the fact was, as there is evidence tending to show, that the bonds theretofore issued could not be sold at par, and if the further fact was as recited in said order of cancellation that more than two-thirds of the qualified voters of road district No. 2 appeared before them and sought the cancellation of the bonds, then must it be said that the commissioners’ court and the Attorney General were wholly without, discretion or power to meet the sitúa' tion? Was the commissioners’ court under all of tlie circumstances to remain supine and undertake to retain the bonds in their negotiable form so as to present the possibility'of reaching, an innocent third person? Or may the court under conceivable circumstances enter an order canceling the bonds? We are of the opinion that it cannot fee said that no such power existed. It is true there is no provision in the law so authorizing, hut the commissioners’ court is undoubtedly the governing body for county business, and the only designated body for the control of road district No. 2. The commissioners’ court have been given express power and general j urisdiction over the roads of the county and of the precincts; it can order the laying .out, the opening, or discontinuance of such roads, and, as it seems to us, it will be unreasonable to infer that under all circumstances the people of a given district or of a county would be wholly helpless. It may fairly be implied, we think, that the power to sell, together with the express inhibition of the statute to not sell such bonds below par and but for cash, invested the commissioners’ court with such incidental power and discretion as was necessary to determine the manner and methods to he adopted in order to effect a sale and just when and under what conditions it was no longer reasonably possible to meet the statute by a sale for cash at par.

If such a power under any reasonable state of facts exists, then their judgment and discretion in the premises is not the subject of control by writ of mandamus, and the order of cancellation under consideration would, in such case, be in the nature of a judgment, mere errors or mistakes in which are not reviewable, unless power to review is provided, or unless it affirmatively appeared that the power and discretion of the commissioners’ court had been arbitrarily exercised. See Callaghan v. Salliway, 5 Tex. Civ. App. 239, 23 S. W. 837; Matlock, Miller & Dycus v. Smith, 96 Tex. 211, 71 S. W. 956. To illustrate, possibly with more clearness, the view we have, let it be supposed that it was shown to the commissioners’ court upon the date of the order of cancellation that in fact the returns of the election theretofore held were false; i. e., that no election had in fact been held, or that the majority was the reverse of that shown in the returns. It may be said that in a case such as instanced the proper remedy would be by contest of the election, but if this be admitted, would a trial court be required by mandamus to direct a revocation of an order of cancellation, the facts being undisputed, merely because the commissioners’ court had taken a short cut to the same end? We cannot think so.

It is suggested by appellees in their brief that the qualified voters of road district No. 2 could have nullified the proceedings resulting in the issuance of the bonds in question by an election duly ordered and held for that purpose. But for what reason were such voters confined to such method? No statute is pointed out that so provides. Indeed the statute having direct reference to the subject, as before indicated, gives the power to a defined class of citizens in a defined district to create an incorporated district. The purposes of the corporation are not declared. But evidently, as must be implied, the purposes relate to the general subject of the making or improvement of public roads in the incorporated district, and must be confined thereto. And, as also mentioned before, the express power given to the class of voters or to the corporation when formed are very few. The qualified voters may, in the manner provided, create the corporation. The corporation when formed may sue and be sued. In all things else relating to the powers of the corporation the law is silent. Such a corporation seems to be anomalous. But it may not be inapt to liken it to a political entity or body in the nature of a free democracy in which the qualified voters and the corporation may, in all things, within the scope of the purposes for which the body was organized, take any action or adopt any method not forbidden by law that may be deemed necessary for the general welfare. If, therefore, it be assumed that the election as originally ordered and held was in all things regular, then by the terms of the statute road district No. 2 became a corporation with power to sue and be sued, and in the absence of restriction — and there is none in the statute — had the inherent power to guard its vital interests and to appoint agents, if necessary, or certainly to instruct designated agents, to perform its will. What insuperable objection, therefore, can be assigned to the action of the controlling number of the constituent legal voters of road district No. 2 in voicing their will by petition, rather than by an election, and in selecting the commissioners’ court to execute that will? We confess that we cannot advance any sufficient reason why, under the circumstances of this case, the action thus taken by the qualified voters of road district No. 2 and the commissioners’ court of Johnson county in canceling the bonds in question was so denuded or deprived of all vitality and validity as to require the issuance of the writ of mandamus as herein sought. It is said in 10 Cyc. 1097:

“If the means employed are reasonably adapted to the ends for which the corporation was created, they come within its implied or incidental powers, although they may not be specifically designated by the act of incorporation. The meaning is that, except where expressly restócted by charter or statute, corporations take, by implication, the right to use all reasonable modes of executing their express powers which a natural person might adopt in the exercise of similar powers. ‘They must have a choice of means adapted to ends, and are not to be confined to any one mode of operation.’ ”

In another part of the same authority (10 Cyc. p. 353) it is said:

“By the principles of the common law, every corporation aggregate possesses the inherent power to make all necessary rules and regulations for its government and operation, although such power may not be expressly conferred in its charter, in the statute of its creation, or in any other statute. It is regarded as a power that is included in the grant of the capacity of being a corporation. It is generally said to be ‘an incident to a corporation.’ ”

As before noted, the statute (article 632) commits the custody of the bonds after their issuance to the control of the commissioners’ court until sold, and particularly limits the power of sale to a sale for cash “at not less than their par value.” We cannot think that it is within the meaning of the statutes relating to the subject that it was ever contemplated that they should retain custody and control of the bonds in negotiable form for a period without limitation awaiting a time when the bonds could be sold for par. To so construe the law is to say that after the issuance of the bonds and after an unsuccessful effort to sell them at par, the commissioners’ court may retain the bonds for an indefinite number of years and then, without further notice to the people of the district or county, proceed at once to sell the bonds, regardless of whatever changes may have taken place in the district or in the condition of the people. The centers of the population may have altogether changed, or the district possibly become depopulated, or the roads in the district already sufficiently improved by the citizens under the general road laws, or the roads under the lawful orders of the commissioners’ court may have been wholly discontinued. Some discretion, therefore, lies in the commissioners’ court, as it seems to us, to recognize such facts and meet such conditions. As we may have already noted, no proof was offered below in behalf of ap-pellees that if reissued the bonds would now be approved by the Attorney General, without which they would not be valid and could not be sold for par. We are not inclined to adopt the contention of appellees that we must so infer. The commissioners’ court, as the legal representatives of road district No. 2 and of Johnson county, steadfastly refused to reissue the bonds, and we cannot think upon the showing made that their judgment at this late day should be disturbed. If the conditions of road district No. 2 and of the people therein are at this time such as to make it desirable for the issuance of bonds for the improvement of roads in that district, as provided in that law, it can be readily so determined by another election with proceedings as before.

We, therefore, conclude that the judgment of the district court directed to the commissioners’ court of Johnson county should be set aside, and judgment here entered that ap-pellees take nothing by their suit.
      <@=>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests ana Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    AMERICAN BONDING CO. OF BALTIMORE, MD., v. FOUNTAIN.
    (No. 5877.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 13, 1917.)
    1. Guardian and Wabd <&wkey;175 — Bond—Default before Execution.
    The surety on a guardian’s bond is not liable for a misappropriation before its execution, not being made so by its terms.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 600-606.]
    2. Evidence <&wkey;54 — Presumption on Presumption.
    Pyramiding surmises and presumptions is not permissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 74.]
    3. Guardian and Ward <&wkey;182(6) — Surety— Money in Guardian’s Hands — Evidence.
    Regarding liability of surety on guardian’s bond, any presumption that money presumed to have been received by guardian before giving of bond, under sale approved by court, continued in his possession till it was given would be overcome by conjecture from fact proved that between such dates the guardian had no money of his own, and spent for his own use approximately the amount of such purchase money.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 65A-657J
    4. Guardian and Ward <&wkey;182(6) — Surety-Liability for Notes — Evidence.
    Any presumption that a guardian had notes belonging to the ward established no liability against his surety, an outstanding debt belonging to the ward not being assets in the guardian’s hands to charge him; negligence or fraud not being shown.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 654r-657.]
    5. Homestead &wkey;jl42(l) — Liability for Ancestor’s Default as Guardian.
    Homestead descending from father to children cannot be offset by surety on bond of father as guardian of children; but otherwise as to all other property so descending.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 271-273, 277-280.]
    6. Guardian and Ward <@=^173 — Surety—Interest after Guardian’s Death.
    Regarding liability of surety on guardian’s bond, no interest can be charged against the guardian after his death.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 576-588.]
    Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Action by J. L. Fountain, guardian of Charlotte Sanders and others, against the American Bonding Company of Baltimore, Md. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Doremus, Butler & Henderson, of Bryan, for appellant. J. G. Minkert, of Bryan, for appellee.
   SWEARINGEN, J.

This is a suit by appel-lee, J. L. Fountain, guardian of the persons and estate of minors, against the appellant, a surety on the bond 'of a prior guardian, the father of the minors, for a devastavit of $3,-000, committed by the father as guardian during the life of the bond sued upon. The suit was tried .by the court without a jury, and judgment was rendered against the defendant surety for $1,500, the penalty limited by the bond.

Appellee substantially alleged the appointment of the father as guardian-and the execution of the bond by the appellant; alleged that $1,500 cash and $1,500 in vendor’s lien notes belonging to the estate were in the hands of the guardian at the time the appellant’s bond was. executed and accepted; that this $3,000 was misappropriated by the guardian while the bond was in force; that the guardian was dead and his estate insolvent. Appellant answered by plea in bar, general demurrer, special exceptions, and general denial, and, liberally stated, specially answered that no waste occurred; that the misappropriation, if any, occurred during the life of the first guardian’s bond, given July 20, 1909, on which appellant was not a surety; that the second bond, on which appellant was surety, was executed July 20, 1910; that no part of the $3,000 was in the hands of the guardian at the time the second bond was executed nor afterwards, and no misappropriation made thereof while appellant’s bond was in force. Appellant alleged that valuable assets were received by the minors by inheritance from their deceased father’s estate, the value of which should be allowed as an offset against' any liability that might be adjudged against appellant.

The facts are that after the death of the mother of the minors, their father, J. D. Sanders, qualified as guardian of the persons- and estate of his minor children, and as such received 24 acres of land and some other property not alleged to have been wasted, belonging to the minors by virtue of inheritance of their mother’s separate estate. As s-aid guardian, Sanders executed a bond dated July 20, 1909, but appellant was not a surety on that bond. On July 31, 1909, the guardian filed application to sell at private s-ale the 24 acres of land, fully described in the application. The court ordered the sale. The guardian reported to the court that the sale was made October 19, 1909, for $3,000. One-half, or $1,500, to be paid in cash and balance secured by three vendor’s lien notes of $500 each, bearing 8 per cent, interest from date of note October 19, 1909, payable annually; the first note to mature October 19, 1910, the second, October 19, 1911, the third, to mature October 19, 1912. This sale was by the court confirmed and guardian ordered to make the deed and receive thereafter the cash payment and the three notes. There is no evidence that the deed was ever made or that the cash was ever received by the guardian. There is no evidence that the three "notes mentioned were ever executed by the purchaser or received by the guardian. On the 10th day of November, 1908, prior to petition for guardianship, J. D. Sanders bought 243 acres of land for $6,000. He paid therefor $2,000 in cash and executed his three promissory notes for the unpaid portion of the purchase price. The first note was for $1,500, with 8 per- cent, interest payable annually, and matured January 1, 1910. Tlio second note was also for $1,500, interest same as first, and matured January 1, 1911. Tire third note was for $1,000, and matured January 1, 1912. All three of the notes were secured by vendor’s lien. Sanders made his home on this land thus purchased, and continued to use it as his homestead until his death July 12, 1911. Sanders- left little property besides the honiestead and $710 in money. Whether this was one-half or all of the money left by Sanders is left uncertain. On July 20, 1910, the guardian executed a new bond, with appellant as surety. The first bond was canceled by order of the court upon proper application and the new one ordered, which second bond is the basis of the suit before us. The deed from Castle to Sanders, conveying the land subsequently used as homestead, recites that the first note for $1,-500 with interest was due January 1, 1910. A release of the two vendor’s lien notes for $1,500 each was executed by the payee in the notes, and is a link in the chain of title of the minors to the homestead. That release was introduced in evidence. The release states that J. D. Sanders paid the $1,500 and interest due January 1, 1910, on that date, January 1, 1910. The release was executed in 1912. The evidence does not disclose that Sanders had any money of- his own with which to pay the note on January 1, 1910. The record does show that Sanders sold the property of his minors on the 19th of October, 1909, and was ordered by the court to make a deed and thereupon receive $1,500 in cash and three certain notes. On November 29, 1909, Sanders bought an interest in a small piece of land and paid $175 for it.

Eor convenience, we will give our view of the law of this cas-e as made by the facts of record first, and will give such detailed treatment of the various assignments as may be necessary later.

Appellant executed the second bond, which became effective July 20, 1910, and by the terms of that bond became liable only for prospective misappropriations. Moore v. Hanscom, 103 S. W. 669; Freedman v. Vallie, 75 S. W. 322; Love v. Keowne, 58 Tex. 200; Cole v. Crawford, 69 Tex. 127, 5 S. W, 646; Hetten v. Lane, 43 Tex. 288; Barry v. Association, 67 Tex. 250, 3 S. W. 261; Ætna Indemnity Co. v. Gallaspy, 101 Miss. 703, 57 South. 980, 39 L. R. A. (N. S.) 961, and note; 2 Brandt, Guaranty and Surety, § 654; 12 Ruling Case Law, § 52.

In view of this rule of law, it is important to ascertain from the evidence when the $1,-500 cash from the sale of the wards’ land was actually received by the guardian and exactly when it was misappropriated. If misappropriated prior to execution of the second bond, there can be no liability against the appellant surety on that bond. Id. There is no direct evidence that the guardian actually did receive the $1,500 at any time. In obedience to the order of confirmation of sale, the guardian should have executed a deed to the land and received the $1,500 cash October 19, 1909. Whether he did or not is left unanswered by the evidence. The purchaser may have failed to pay the money, and may not have received the deed. But presuming that the guardian did deliver the deed and did re'eeive the $1,500 in cash on October 19, 1909, the next inquiry is, What did he do with the money? As guardian, he was required to invest the money upon a formal order of the probate court. Moore v. Hanscom, 101 Tex. 300. There is no evidence of such an order or investment. From the record it may be conjectured that.the guardian may have received the $1,500 October 19, 1909.

The record does not disclose that Sanders, the guardian, had any money or property of his own at that time other than his homestead and other property of small value. The evidence discloses that on November 29, 1909, Sanders paid $175 for land for himself, and that on January 1, 1910, he paid the $1,500 Casjie note and two years’ interest at 8 per cent., amounting to $240. These payments, aggregating $1,915, made by Sanders for his own benefit, within two months of the time he should have received the $1,500 ca'sh for his wards, coupled with the fact that Sanders is not shown to have had any money of his own at that time or later, creates a surmise that he did collect the $1,500 for his wards, and that surmised fact creates the inference that he misappropriated that same money by investing it, without an order of court, in land, and by having the title to that land put in him individually, and not as guardian. If the guardian did collect this money for his ward in October, 1909, and did use it for himself in November, 1909, and January 1, 1910, the misappropriation occurred during the life of the first bond, made July 20, 1909, and prior to the execution of the second bond, which did not become effective until July 20, 1910.

There is no evidence that the guardian had this $1,500, which he may have collected in October, 1909, for the wards, on hand or in his possession on July 20, 1910, when the appellant bound itself by the second bond. Appellee evidently relies upon the presumption that moneys that may have been collected on October 19, 1909, were still in the possession of the guardian July 20, 1910, and that the burden rested upon appellant to overcome this presumption by proof of a prior misappropriation. Hetten v. Lane, 43 Tex. 288, 289. This presumption that the guardian had the money July 20, 1910, when the second bond was made, because it was surmised that he collected it in October, 1909, surmised because presumed that the guardian executed and delivered the deed in accordance with the confirmation of sale, seems to be a case of piling surmise upon a surmise, itself piled upon a presumption. Such pyramiding of surmises and presumptions is not permitted by law. Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064; Moore v. Hanscom, 103 S. W. 673; Lawson on Presumptive Ev. 569, rule 118.

Moreover, the presumption that the guardian had in his possession in July, 1910, his wards’ money, which he should have collected in October, 1909, is destroyed by the proven fact that the' guardian had no money of his own during that time and yet between October 19, 1909, when he should have collected the wards’ money, and January 1,1910, about two months, he spent for his own use $1,915. These proven facts authorize the inference that Sanders misappropriated his wards’ money November 29, 1909, and on January 1, 1910, long prior to the time when appellant’s bond became effective. The facts in evidence are sufficient to destroy the presumption that the money was on hand when the bond of July 25, 1910, took effect.

We must therefore hold that the evidence fails to show that the misappropriation was made during the life of the bond signed by appellant. It appears more than probable that the misappropriation actually occurred while the first bond was in force, but this is only a plausible conjecture, sufficient, however, to destroy the presumption, which, being destroyed, leaves the case without any evidence of record to sustain the trial court’s finding of fact that the guardian had the $1,500 on hand when the appellant’s bond took .effect, and leaves appellee’s allegation to that effect without the support of any evidence.

To repeat, the direct testimony shows that the guardian was going after the $1,500 cash, and was going in “good form,” but fails to show he actually got it. The testimony next shows' the guardian with no money of his own, paying out $1,915 in cash in one and two months after the date he was found in pursuit of his wards’ money. This fact that the guardian had approximately the sum he expected to get. for his wards may justify the inference that he actually got his wards’ money at the time we lost sight of him going after it. If this inference is indulged, and it therefore be conceded that the guardian received his wards’ money because found later with the money, then it follows absolutely and necessarily that he misappropriated his wards’ money by buying with that money land for himself. These purchases occurred prior to the execution of the appellant’s bond.

This disposes of the alleged misappropriation by the guardian of the $1,500 cash during the life of appellant’s bond, but leaves (undisposed of the allegation of misappropriation of the three notes for $500 each,' dated October 19, 1909, and payable October 19, 1910,' 1911, and 1912, respectively. The allegation is that the guardian had these three notes in his possession on July 20, 1910. The statement of facts wholly fails to show that such notes were ever made or ever delivered to the guardian. If any such notes were made and delivered, as contended by appellee, they may have been made to Sanders individually. There is no proof of this; it is merely a conjecture, while appellee’s contention may be classed as an inference. But it is useless to discuss the relative value of conjecture and inference, because the record fails utterly to show that Sanders ever at any time collected any of the three notes or any part of them; and, until collected, these notes cannot be charged against the guardian who was the principal on the bond; consequently cannot be charged against the surety on the bond. The rule is thus announced in Townsend v. Hunger, 9 Tex. 312:

“An outstanding debt due to the decedent is not assets in the hands of his executor or administrator to charge him, where there has not been gross negligence, or the delay in collecting it has not been collusive, fraudulent, or unreasonable.”

Erom this rule thus stated it follows that the presumption that the guardian had the three notes on hand July 20, 1910, when appellant’s bond became effective, fails to establish a liability against the surety on that bond, for the reason that the guardian cannot be charged with the value of the notes; negligence or fraud being neither alleged nor proven. Especially would that rule apply to the facts of this case, because two of the notes did not mature until long after the death of the guardian, which occurred July 12, 1911, whereas the second note did not mature until October 19, 1911, and the third October 19, 1912.

The evidence wholly fails to sustain the allegation that the guardian misappropriated the value of the three notes during the life of appellant’s bond.

The foregoing opinion is based upon the propositions presented to us by the sixth assignment of error, which, being sustained, necessitates the reversal of the judgment. Because it appears that the evidence was not fully developed on the trial, and appears probable that it can be, the cause will be remanded.

The fourth assignment charges the court with error because it did not allow the value of the homestead inherited by the minors from their father’s estate as an offset against the charges by the minor against their father for devastavit while guardian of their estate. This assignment is overruled.

The Supreme Court, in the case of American Bonding Co. v. Jessie Logan, 106 Tex. 306, 166 S. W. 1132, has definitely announced the rule that the homestead inherited by the heirs of the guardian cannot be used to offset a liability of the guardian and his surety for devastavit of the wards’ estate by the guardian, even though the guardian was the father of the wards, where the homestead continues to be used after the death of the father, by the widow and minor children as in this case. It is also the rule that all property left by the guardian, except the homestead, descends to the heirs charged with his debts, and should be used to offset any liability of the appellant.

The first, second, third, fifth, eighth, ninth, tenth, eleventh, eighteenth, nineteenth, and twentieth assignments are overruled without discussion because the merits of the propositions thereunder do not justify further elaboration.

The seventh assignment cannot be considered because it violates the rules prescribed for this court.

The twelfth, thirteenth, fourteenth, fifteenth, and sixteenth all present rulings of the court upon matters within its discretion, and no errors will probably be again made in reference thereto upon another trial, for which reason we overrule them.

The seventeenth assignment is sustained. This assignment is that the court erred in concluding as law that the highest legal rate should be charged against the guardian from the time of collecting his wards’ money in 1909 until the date of trial in 1913, notwithstanding that the .guardian died July 12, 1911. No interest can be charged against the guardian after his death. Freedman v. Vallie, 75 S. W. 322.

Reversed and remanded.
      <£=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHICAGO, R. I. & G. RY. CO. v. JENKINS.

    (No. 8555.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 31, 1917.
    Rehearing Denied May 12, 1917.)
    1. Appeal and Error <&wkey;1051(l) — Review-Harmless Error.
    In an action against a connecting carrier for damages to an interstate shipment of mules, objection to the admission of hearsay evidence that defendant’s employé had stated that defendant’s train had gone and left plaintiff’s stock was immaterial, where the fact was indisputably shown by other evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166.]
    2. Carriers <&wkey;230(3) —, Carriage oe Live Stock — Jury Question.
    Whether delay was required by a necessity, if any, for a change of cars or, because of a want of due care, held for the jury.
    [E'd. Note. — For other cases, see Carriers, Cent. Dig. § 962.]
    3. Carriers <&wkey;228(3) — Carriage oe Live Stock — Evidence—Admissibility.
    Objection to the evidence that one car of plaintiff’s mules was unloaded at a connecting point on the line of a subsequent carrier, and thereby probably damaged, is without merit, where other evidence on part of. plaintiff tended to show that upon his arrival at such point he particularly instructed defendant’s agent in charge of the delivering train to unload at other stockyards which were well provided for with facilities.
    4. Carriers &wkey;>219(l) — Carriage oe Live Stock — Negligence in Unloading.
    Defendant would be liable for the consequences of its failure to observe directions given by plaintiff to unload in certain stockyards due to its negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 950.]
    5. Carriers <&wkey;228(3) — Carriage oe Live Stock — Liability oe Initial Carrier — Admissibility oe Evidence.
    Under Interstate Commerce Act Feb. 4,1887, c. 104, 24 Stat. 379, making the initial carrier liable for negligence on the part of any of the carriers, evidence of the negligence of a connecting carrier is admissible as against the initial carrier.
    6. Appeal and Error <&wkey;204(2) — Review-Evidence.
    In an action for damages to an interstate shipment of live stock, a connecting carrier cannot complain on appeal of the admission of evidence of the negligence of a subsequent carrier, admissible as against the initial carrier, where such connecting carrier made no request to limit such evidence after the initial carrier was relieved by the peremptory charge of the court.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1260, 1261, 1280.]
    7. Carriers <&wkey;218(5) — Carriage oe Live Stock — Limitation oe Liability — Validity —Consideration.
    In an action for damages to an interstate shipment of mules, where a 'shipping contract made with the initial carrier, limiting liability of the carrier, was not executed in consideration of a grant of a lower rate, whatever presumption might arise from the terms of the contract, the provision that in event of total loss liability should be limited to $100 per head was not binding.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696.]
    8. Carriers i&wkey;219(8) — Carriage oe -Live Stock — Limitation oe Liability.
    As defendant connecting carrier was not a party to such contract, and required the plaintiff to enter into another and different’ contract not shown on this appeal to contain the limitation invoked, such carrier cannot take advantage of the limitation of liability.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 951.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Suit by J. V. Jenkins against the Chicago, Rock Island & Gulf Railway Company ana ;others. Judgment for plaintiff, and named defendant appeals.
    Affirmed.
    John Speer, of Bowie, and Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. W. S. Jameson and Paul Donald, both of Montague, Hoover & Dial, of Canadian, and J. A. Templeton, of Ft. Worth, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

The appellee instituted this suit against the Pecos & North Texas Railroad Company, the Atchison, Topeka & Santa Fé Railway Company, and the Chicago, Rock Island & Gulf Railway Company to recover damages to a shipment of two cars of mules from Plainview, Tex., a point on the Pecos & North Texas Railway, to Windsor, Va. It was alleged that the shipment was negligently delayed and roughly handled, causing the death of one mule and a depreciation in the value of the others, to his damage in the sum of 81,970.

The defendant the Chicago,' Rock Island & Gulf Railway Company, pleaded the general denial; that it handled the shipment to the end of its line, and there delivered it to its next connecting carrier, and that if the stock were damaged thereafter, such subsequent injury was not chargeable to it; that the shipment was a movement of interstate commerce, and it was handled under a written contract containing stipulations which will be hereinafter referred to controlling the' defendant’s liability.

The case was tried on January 20, 1916, and a verdict and judgment rendered in the plaintiff’s favor for $1,650 against the Chicago, Rock Island & Gulf Railway Company and in favor of the other two companies named pursuant to the instruction of the court.

The mules were shipped from Plainview and transported from that point over the Pecos & North Texas Railway to Amarillo, Tex., and there transferred to the Chicago, Rock Island & Gulf Railway, and by that company transported to Memphis, Term., and from Memphis.they were transported over connecting lines of railway to Windsor, Va., the final destination of the shipment. The transportation from' Plainview to Amarillo seems to have been with due ■ care and de-spatch, but at Amarillo the mules were transferred by the Chicago, Rock Island &-Gulf Railway Company from the cars in which the shipment began to other cars, which were alleged not to be in dye order. There was also a delay at that place from about 8:45 of the evening of November 18, 1913, to a little after the same time of the evening of the next day, of which complaint is made. There was also evidence of other delays and injuries to the mules because of rough treatment, unloading in muddy pens, etc., on the part of the Chicago-, Rock Island & Gulf Railway Company, which will be later more particularly noticed.

The record-has been carefully considered, but we have found nothing in the proceedings that constitutes prejudicial error, or that we think requires extended discussion. The objection on the ground that it was hearsay to- the statement of an employé of the Santa Fé Company at Amarillo that the Rock Island’s train had gone and left his stock is immaterial, in that the fact embodied in the statement was indisputably shown by other evidence. Moreover, the evidence was to the effect that the mules in question,, after.a short run from Plainview, arrived in Amarillo, as stated, at 8:4.5 p. m.; that the schedule time for the departure of the regular freight train for Memphis over the Chicago, Rock Island & Gulf Railway was about 9:15 of the same evening; that upon the arrival of the mules in Amarillo the Rock Island was immediately notified of' their arrival. A little later the plaintiff went to the station of the Gulf, Colorado & Santa Fé Railway Company and requested a second notification. The agent of that company, after communication over the telephone, made the statement to the plaintiff complained of. As stated, it is undisputed in the evidence that the daily freight which left Amarillo- for Memphis on the evening or night of November Sth did leave the plaintiff’s mules in Amarillo, notwithstanding the notification of their arrival. there in time, or in apparent time, to have forwarded them by that train. Whether this delaj^ was required by a necessity, if any, for a change of cars, or, on the contrary, because of a want of due care, were questions for the jury, and the declaration complained of seems to have been a part of the transaction that arose spontaneously and without design.

The objection to the evidence that one car of the plaintiff’s mules was unloaded at Memphis on the line of the Louisville & Nashville Railway Company, and thereby probably damaged, is without merit, in that other evidence on the part of the plaintiff tended to show that upon his arrival at Memphis he particularly instructed the agents of the appellant company in charge of the delivering train to unload his stock for feed, water, and rest at the Union Stockyards at that point, which were well provided with facilities for1 such purpose. This was not doné on the part of appellant but, on the contrary, they were placed in the pens of the Louisville & Nashville Railway Company, a connecting carrier; such pens being Very muddy and without facilities to properly feed, water, and rest the animals. There was evidence tending to show that the failure on the part of appellant to observe the directions given to unload in the Union Stockyards was due to negligence, and hence appellant would be liable for the consequences. Moreover, at the time of the introduction of this evidence the initial carrier was a party to the suit, and,, as such, -under the Interstate Commerce Law, liable for negligence on the part of any of the carriers. Therefore, as against the initial carrier, at least, the evidence was admissible and no request in behalf of appellant was made to have the evidence limited to that carrier.

And the suggestion last made is also, we think, an answer to the appellant’s objection to the plaintiff’s testimony to the effect that when his mules arrived at Windsor they were in a famished condition, and he took them to the country and bought feed and fed them until they -got into better condition. As against the initial carrier the evidence, as stated, was evidently admissible, and after such initial carrier was relieved by the peremptory charge of the court, no request on the part of appellant was made to limit the evidence. Moreover, the court specifically charged the jury, among other things, that they-could not assess any damages against appellant which was not occasioned by its own negligence proximately causing the injury. And nothing in the record is pointed out from which it can be said that the jury in any way assessed damages against this appellant in violation of the court’s charge.

The evidence of plaintiff’s qualification we think sufficient to authorize him to speak on the question of the value of the mules in Windsor had they arrived in the usual good condition of such shipments, and the further objection that the value of the one mule shown to have died in transit should have been limited from $150, as stated by the plaintiff in his evidence, to $100, as provided in a clause of the written contract of the initial carrier, may be answered in two ways: First, as shown in effect by the trial- judge in his explanation to appellant’s bill of exceptions on this point, the shipping contract of the initial carrier, Pecos & North Texas Railway Company, was attacked by the plaintiff, both in his pleadings and evidence, and it affirmatively appears that the contract was not executed in consideration of a grant of a lower rate. Therefore, whatever presumption might otherwise be held to arise from the terms of the contract, it cannot be said that there was binding force in the provision that in event of a total loss the defendant’s liability should be limited to $100 per head. Second^ it affirmatively appeared that upon tlie arrival of the plaintiff’s mules at Amarillo for a further shipment of his mules over the line of the appellant railway company he was required to enter into another and different contract not shown on this appeal to contain the limitation invoked. Appellant therefore is not in a favorable attitude to insist upon a provision of the contract to which it was not a party and upon which it specifically declined to continue the shipment. T. & P. Ry. Co. v. Leatherwood, No. 8517 in this court (not for publication).

We find nothing requiring particular notice in the remaining assignments. We think the charge of the court was not erroneous in the particulars in which it has been criticized, and that the charge on the whole was all that appellant was entitled to demand under the evidence.

It is accordingly ordered that all assignments of error be overruled, and the judgment affirmed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes