author: RAINEY, C. J.

text:
    HULL et al. v. EIDT-SUMMERFIELD CO.
    (No. 7906.)
    (Court of Civil Appeals of Texas. Dallas.
    March 16, 1918.
    Rehearing Denied June 23, 1918.)
    1. Parties <a=>26 — Misjoinder of Parties Defendant — Petition.
    In a suit upon an oral contract for commissions brought against a father and son, acting jointly in combining their lands and entering into a written contract of exchange for an entire consideration, and who were to receive a -'joint deed to the other party’s entire tract of land, and who both agreed to make a warranty deed to a certain tract if the title could be obtained, there was no misjoinder of parties defendant.
    2. Action <§=>50(5) — Misjoinder.
    In such case there was no misjoinder of causes of action.
    3. Brokers <§=>82(1) — Action for Commissions — Petition—Value of Lands.
    In such action an exception to the petition because not alleging the value of the lands to be exchanged was not well taken.
    4. Exchange of Property <⅜=>5 — Title to Land — Repudiation of Contract.
    Where the title to a tract was secured by parties to a contract for an exchange of properties within the time limited in the contract of trade, and the other party was willing to accept it, there was no ground for the first parties to repudiate the contract.
    5. Brokers <&=63(1) — Exchange of Properties — Liability for Commissions.
    Where defendants listed their land with a real estate broker for sale or exchange, and it procured a party ready and able to make an exchange and with whom defendants did contract to exchange lands, which contract was breached by defendants without sufficient cause, they became liable for the customary commissions.
    6. Brokers <§=571 — Action for Commission— Amount of Judgment.
    W'here it appeared that after the signing of the contract of exchange it was understood between the brokers and the defendants that the customary commission of 2½ per cent, on the valuation of the lands traded by the respective parties was to be the basis of the commission, a judgment against defendants on such basis was proper.
    7. Brokers <3=>65(4) — Representing Both Parties.
    There was no error in the real estate broker’s representation of both parties where defendants knew of his acting for both parties in making an exchange, and where no act of the broker was charged to have been wrongful or dishonest, and where nothing was done by it except to bring the parties together. .
    Appeal from District Court, Dallas County; Kenneth Eoree, Judge.
    Suit by the Eidt-Summerfield Company against R. P. Hull and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Muse & Muse and W. D. Cardwell, all of Dallas, for appellants. Spence, Haven & Smithdeal, of Dallas, for appellee.
   RAINEY, C. J.

Appellees brought this suit against appellants to recover commissions, alleging that they were real estate brokers, for the sum of $775, on .account of having effected a contract of exchange of the lands with one Harry Sigel; the lands of both parties being situated in Dallas county and duly described in the petition.

Appellants plead a misjoinder of parties defendant, general and special exceptions, general denial, and fraudulent representations as to the amount and character of the land owned by Sigel. Supplemental pleadings were subsequently filed by both parties. A jury being waived, the cause went to trial before the court, judgment being rendered in favor of appellees for $775, from which judgment this appeal is prosecuted.

Conclusions of Facts.

Appellants listed their land with appel-lees for sale or .exchange. Appellees found one Harry Sigel, who proposed to exchange his ranch of 919 acres with appellants. Ap-pellees brought Sigel and appellants together, and a contract of exchange was agreed upon, which contract was in writing and signed by R. P. Hull, Will Hull, H. Sigel, and Mrs. S. B. Hull. When the contract was made-Will Hull, asked, “What commission will we owe you boys?” Appellees replied, “The customary commission on your part of the valuation of the land.” Mr. Sigel spoke up and said, “Will you pay your part and I will pay mine; the boys have worked hard on this deal, and we will pay them whatever is right; you pay your part, and I will pay my part on my land, and you pay yours.” Nothing further was said by Will Hull. The customary fee in such cases is for each man to pay 2½ per cent, on his valuation at which he bought it in.

The original and supplemental contracts contained the following clauses:

“Witnesseth: That for and in consideration of the mutual agreements, obligations, and covenants by each made to and with the other said parties, have bound themselves as follows;
“Said R. P. Hull and Will Hull agree and obligate themselves to convey by general warranty deed to Harry Sigel the following described real estate clear of incumbrance: Being 310 acres or more as follows: 87½ acres known as the Wunderlich tract, 122½, acres known as the Woods tract, and 108 acres out of the Sol Dixon survey, known as R. P. Hull’s homestead of 104 acres and 4 acres of Will Hull’s homestead, and all improvements thereon — and the execution by the said R. P. Hull and Will Hull of one note in the sum of $5,000.p0, which is secured by tbe land conveyed to them by tbe said Harry Sigel hereinafter described and due and payable May 1, 1919, and bearing 7 per cent, interest per annum payable annually.
“In consideration of tbe above and foregoing agreements and obligations on tbe part of tbe said E. P. Hull and Will Hull, tbe said Harry Sigel agrees to convey the following described property free of incumbrance except the aforementioned $5,000.00 note; being 919 and 42/ioo acres, or more known as tbe T. Jones survey, about 3½ miles southwest of Cedar Hill, known as tbe Harry Sigel tract, and all improvements thereon.
“Said deferred payment is to be evidenced by a vendor’s lien note executed by E. P. Hull and Will Hull and secured by a vendor’s lien expressly retained in said deed and by a deed of trust containing power of sale together with the usual covenants as to default, taxes, insurance, etc., upon said property.
“Said Sigel and said E. P. Hull and Will Hull are to furnish authentic abstract each to the above-described property which they each agree to convey. Should said abstracts not show good title in the respective parties, either party shall have a reasonable time, not to exceed 30 days, in which to make said title good. Should either party not be able to make said title good within said time, then this contract to be void.
“Said parties agree that should abstracts show good title in the respective parties, they shall within 30 days of delivery of said abstracts close the deal as above described, at which time they shall each deliver a general warranty deed conveying the said property in fee simple.
“All taxes are to be paid up to and including the year 1913 by each party on the land which he agrees to convey.
“Taxes for the year 1914 are to be prorated up to and including date or delivery of deed.
“It is hereby agreed between E. P. Hull, Will Hull, and Harry Sigel that, if the said E. P. Hull and Will Hull shall not be able to obtain general warranty deed evidencing title in them to the 122½1 acres known as the Woods tract within 30 days from date from Scott Bros., then they shall have a reasonable length of time in which to furnish same, not to exceed 90 days.”

The valuation put on the Sigel tract was $36,000 and for the Hulls’ land $31,000.

Conclusions of Law.

(1) The first, second, third, and fourth assignments of error complain of the overruling of special exceptions to appellees’ petition, all of which, in effect, urge that there is a misjoinder of parties defendants and causes of action, and that the petition does not allege the value of the lands to be exchanged. We are of the opinion that none of the exceptions are well taken. The contract for commissions was an oral one between the parties. It was made between appellees and E. P. Hull and Will Hull, father and son, who acted jointly in combining their different tracts of land, and who entered into a written contract of exchange with Sigel for an entire consideration and was to receive from Sigel a joint deed to his entire tract of land; nothing being said by either of the Hulls as to the value of their separate interests. Besides, both agreed to make a warranty deed to the Woods tract of 122½ acres, if a title could be obtained. 6 Euling Case Law, § 246; 9 Cyc. 653, 663-667.

(2) The evidence showing that the title to the Woods tract had been secured by the Hulls within the time .limited in the contract of trade, and that Sigel was willing to accept it, there was no ground for the Hulls to repudiate it.

(3) The appellants having listed their land with appellees for sale or exchange, and appellees having procured a party who was willing, ready, and able to make an exchange of lands, and with whom the appellants did contract to exchange lands, which contract was breached by appellants without sufficient cause, they became liable to appellees for the customary commissions, which was 2½ per cent, of the valuation of the land.

(4) There was no error in the amount of the judgment, $775, that being 2½ per cent, of the valuation placed on the Hull land by them.'1 After signing the contract of exchange it was the understanding between appellants and appellees that the customary commission was to be the basis, that is, 2½ per cent, on the valuation placed on the lands traded by the respective parties.

(5) There was no error in the appel-lees representing both parties, as appellants knew of appellees’ acting for both parties in making the exchange. There is no act of appellees that is charged as being wrongful or unfair or dishonest. The contract of exchange was made between appellants and appellees. Nothing was done by appellees, except to bring the parties together.

The judgment is affirmed.
      <S=»For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    BEAUMONT, S. L. & W. RY. CO. v. DANIELS.
    (No. 374.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 27, 1918.
    Rehearing Denied June 19, 1918.)
    1. Eailkoads <§=>17 — Liability fob Acts of Station Agent.
    The station agent of a railroad, in circulating a rumor that plaintiff had stolen the overcoat of a newsboy on a train, cannot be said to have acted as representative of the railroad, or within the scope of his employment.
    2. Eailkoads <§=>212 — Eeceivership—Teemj-nation — Liability to Pay Judgment fob Tort.
    Where the federal court which appointed receiver for a railroad ordered the property turned back to the railroad conditionally on its taking all of the benefits and assuming all of the obligations created under the receivership, the railroad was under obligation to pay a judgment for damages predicated on the tort of a servant of the railroad while in the hands of the receiver.
    3. Libel and Slander <§=>121 (2) — Excessive Damages.
    Where a railroad’s conductor slandered plaintiff, a respectable and honorable man, by imputing to him the tlieft of an overcoat from a train, verdict for plaintiff for $500 against the railroad cannot be set aside as excessive; no improper conduct of the jury being shown, and the compensation for humiliation and mortification suffered by a passenger by reason of insult or slander being within the peculiar province of the jury, as there is no legal measure of damages for such wrong.
    Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Action by T. E. Daniels against the Beaumont, Sour Lake & Western Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 195 S. W. 625; 186 S. W. 383.
    Andrews, S'treetman, Bums & Logue, of Houston, for appellant. Marshall & Harrison, of Liberty, for appellee.
   BROOKE, J.

This was an action for damages for humiliation and mortification, brought by appellee against the appellant. Judgment was rendered in the trial court for appellee. The cause was tried with a jury in the district court of Liberty county, on August 16, 1917. The jury, under instructions from the court, returned a verdict for the plaintiff for the sum of $500. Upon the verdict of the jury the court entered judgment against the Beaumont, Sour Lake & Western Railway Company for the sum of $500. Defendant filed motion for new trial, which motion was overruled by the court. The case is now duly before this court for review.

The plaintiff’s petition shows that the transactions out of which the claimed damages were alleged to have arisen center around the disappearance of an overcoat owned by a butcher boy selling his wares on a train being operated over the Beaumont, Sour Lake & Western Railway Company’s tracks between the stations of Beaumont, Jefferson county, and Hardin, Liberty county, Tex., on November 18, 1914. It is alleged that plaintiff was a passenger on said train on that date, going from Beaumont to Hardin, and that a few days after said date plaintiff received at Hardin a telegram reading as follows:

“Houston, Texas, 11/19/14. J. E. Daniel, Constable, Hardin, Texas. Please deliver my overcoat to conductor train number four going east Friday a. m. without fail. N. Boccaro, Conductor Fuel.”

It is alleged that, while said telegram was addressed to J. E. Daniel, it was intended for and delivered to T. E. Daniels, the plaintiff, who was at that time a constable. The sending of this telegram is made the basis for an allegation of damages on the theory that it carried with it slanderous implications of theft, and that the defendant would be liable therefor. There are further allegations that the station agent at Hardin circulated “in and around Hardin, and to divers people, that the plaintiff had stolen an overcoat from N. Boccaro on defendant’s train on November 18th.” This is made the basis of a claim for damages on the theory that such would import liability on the defendant. It was further alleged:

“Now, plaintiff further shows the court: That on the 24th day of November, 1914, he had occasion to be a passenger upon defendant’s train on a trip from said Beaumont to Hardin. That on said occasion said conductor, Fuel, was in charge of and operating said train, and said N. Boccaro was upon said train plying his business and trade as a news agent and butcher boy. That when said conductor took up plaintiff’s transportation, just after he (plaintiff) boarded said train at Grayburg, on defendants’ road, and the car in which plaintiff was riding was crowded with people, the conductor said to plaintiff, ‘What did you do with that overcoat you got the other night?’ Plaintiff advised him that he had never gotten an overcoat, and knew nothing about an overcoat, and the conductor then and there said in a loud, insulting, browbeating, and bullying manner: ‘You got that butcher boy’s overcoat the other night. You stole it that night, and you had better dig it up, or we will give you some trouble. We know too much about that coat.’ All of which was said in an insulting, loud, browbeating, and bullying manner, and caused plaintiff much mortification and humiliation; said conversation having taken place in the presence of a crowded car, most of the people whom plaintiff did not know. That plaintiff was a passenger on said train, and he had a right to be treated courteously and respectfully while he behaved himself and conducted himself as became a passenger. That he did conduct himself in a proper and gentlemanly manner, and plaintiff was entitled to courteous treatment by said conductor and by all employes, and was entitled to protection by said conductor from employes, passengers, or other people having a right to be on said train, or engaged in a business on said train. That said charge made by the conductor was false and slanderous, and has damaged plaintiff to the extent of $5,000.”

The defendant answered by general demurrer and general denial.

The record shows that on November 18, 1914, Boccaro was acting as newsboy on what was known as the Frisco west-bound train, running from New Orleans, La., to Houston, Tex., passing through the city of Beaumont, and thereafter through the station of Hardin; that on that date said Boccaro had an overcoat and same disappeared; that the telegram previously copied herein was sent by Boccaro; and that he signed his name and the name of conductor, Fuel, thereto. No evidence was introduced that the station agent circulated in and around Hardin that the plaintiff had stolen an overcoat from Boccaro, and there is nothing to even suggest that any such rumor could be traced to defendant. If it could be said that there was any evidence that the rumor was circulated by the said agent, it positively cannot be said that, in circulating such rumor, he acted in any sense as the representative of the defendant, or within the scope of his employment by it. It is further shown that T. E. Daniels was a passenger on the easL bound Frisco train on November 24, 1914. The train was in charge of Conductor Fuel, and N. Boccaro was on the train on that date as a newsboy. It is also shown that a conversation took place between the plaintiff and said newsboy. Plaintiff testified as follows:

“The conductor took up my fare on the night of the 24th. When he came to me, I handed him my pass; he just looked at it. I handed him my transportation. He just looked at it, and says, ‘What did you do with that butcher boy’s coat you taken off the train the other night?’ And I told him I hadn’t taken any butcher boy’s coat off the train. He said, ‘Yes, you did.’ I said: ‘No, sir; I never taken any butcher boy’s coat.' I said: T had this one, this is the only coat I had. I had my overcoat on.’ He says, ‘Yes, you did, you taken that butcher boy’s coat off.’ He said, ‘You never had any coat at all when you got on the train, and you taken one off.’ He says, ‘You had better dig that coat up.’ He says: ‘We are going to give you trouble. We know too much about it.’ He said that they knew too much about the coat, said I had better dig it up. I told him I hadn’t got it. I told him — he said they were going to give me trouble about it, and I told him to go ahead and do it. He said, ‘You stole the butcher boy’s coat off of the train that night.’ He turned around and walked off then. After that, on the train, the butcher boy, Boccaro, approached me and asked me what I had done with the coat. I told him I hadn’t had his coat. He says: ‘Yes, you did. You got my coat down from out of the rack and wrapped a little boy up in it when you got on the train.’ I told him I had not. I said, T wrapped him up in my coat.’ He says, ‘OK no, you didn’t,’ says: ‘You got my coat and taken it off the train when you left. You stole it.’ I told him he was a damned liar. He turned around and walked off.”

He further testified:

“When they accused me of stealing the coat, I was coming from Beaumont. I got on the train at Grayburg. I was in the smoker. I think I sat somewhere along about the middle of the car. The conductor was the first one of the train crew that I saw after I got on the train; that was when he came to take up my transportation. I had not seen or talked to any other member of the train crew before that. I had previously received a telegram, the one that you introduced in evidence, and understood from the wire that it related to a coat which somebody had thought had been taken off the train, and somebody had thought I had gotten it. I did not know what the telegram meant, I did not know whether it was a mistake, or what it was. I told the agent at the time that they was bound to be mistaken. I did not know anything about the butcher boy’s coat. I knew that there was a coat involved, and I knew the parties were interested in it. When I got on the train, I did not undertake to find these people and make any explanation in any way whatever. If they had given me time, I would, as I intended talking to them about it. I intended to explain. I do not know whether it was an honest mistake, or what it was.
“I cannot explain to the jury how a man who did not know my name or what I was would be wiring about a coat unless he honestly thought I had it. I would say that you are correct in asserting that if I had thought of that I would want him to get straight on that. Now, as to whether or not it would have occurred to me that ‘the next time I see that man I am going to find out what is wrong here,’ and notwithstanding the fact that I did not make any effort at all when I was on the train to do so, the only answer I can make is that I did not have time. The train had not gone any distance after I got on it before the conductor came to me. He was in the negro coach, and coming on through just after the train started. I had not gone down to the station at any time to try to see them. I had not been around the
station at all, only the day I got the telegram, the morning I left Beaumont. I was away from home the biggest part of the time. I did not write a letter to either one of them, nor did I offer to send a collect wire to them. I did not phone or telegraph them. I just told the agent there, Mr. Strophner, to tell them I knew nothing about the coat; I had to go to Batson that night, and I could not meet the train.
“ ‘Q. Now, there you have a situation where a man in wiring you about a coat, apparently thinking you took it off, no intimation he thought you were trying to steal it, in the telegram; you get on the train, and he comes to you and has a conversation with you about it, in which he. tells you about it, and I want to know if it was not a real friendly conversational way that he said it. A. No, sir.’
“He said, T saw you take that coat off the rack and put it on that little boy.’ Afterwards he said to me: T thought that was all right. I did not object to that.’ The butcher boy told me, T had no idea you were going to take the coat off until I saw you getting off with it.’ It is not a fact that that was about all he told me, except that he asked me to get his coat for him. He told me he saw me cover up the little boy in the coat; that I got it out of the rack. Says, ‘I thought you would put it back when you got through with it.’ Said, T never thought anything about it until I saw you get off the train with it.’ Says, ‘Then I thought you had stolen my coat.’ On the 18th of November, when I had the little boj with me, it was a little bit chilly, and it was a good idea to spread something over that little boy on the train, which I did. It was my coat which I had.. I say that I had a coat with me, and brought it all the way with me from Beaumont. I got tangled up at the station in Beaumont in catching my train, and caught the wrong train, and had to go back to the station and catch the other one.”

And further:

“The conductor in the conversation with me mentioned the fact that the coat he saw me get off with was a lighter coat than the one I had on at the time apparently, the night of the 18th. In other words, that was his contention. The coat I say I put over the little boy and got off with that first night was the same coat I had the second night. That is my contention.”

It is complained in the first assignment that the court erred, to the prejudice of the defendant, in overruling and in not granting the request for a peremptory instruction in favor of defendant in response to the grounds therefor as shown in defendant’s bill of exceptions No. 1, reading as follows:

“That neither the allegations nor the evidence raised any obligation upon the Beaumont, Sour Lake & Western Railway Company to assume and pay off a judgment for damages predicated upon torts of the receiver; there being* nothing to indicate a decree of the federal court fixing-such a liability and responsibility upon the railway company.”

Under this assignment are two propositions, as follows:

(1) “There can be no recovery against a railway company for the torts of one appointed by a federal court having' jurisdiction as receiver of said railway company after the discharge of the receiver by said federal court, unless it is alleged and proved that: (a) Earnings were spent for betterments by the receiver; or (b) there was an assumption by the railway of responsibility for the acts of the receiver; or (c) the order discharging the receiver expressly made the property returned to the railway company subject to the claims for which the railway company is sought to be held.”
(2) “There was no proof of earnings spent for oetterments by the receiver of the Beaumont, Sour Lake & Western Railway Company, no proof of assumption of liability by the railway for the acts of the receiver, and the order of the federal court under which the property was returned by the receiver to the railway company does not make the railway company liable for torts of the receiver, but only makes the railway company liable for certain contractual obligations, and therefore there can be no recovery against the Beaumont, Sour Lake & Western Railway Company by the plaintiff for an alleged tort of the receiver of the Beaumont, Sour Lake & Western Railway Company.”

In the case of St. Louis, Brownsville & Mexico Ry. Co. v. Elbert Webber, 202 S. W. 519, recently reported, and which involved the identical proposition here urged, this court, in passing upon the same, used the following language:

“It appears that the receivership was a friendly one, wherein the defendant appeared, waiving time, and consented to the appointment of Frank Andrews as receiver, to take over and operate its premises, and that it was pursuant to this consent action that such receiver was appointed, to wit, on July 5, 1913.
“It further appears that by the defendant’s application for discharge of the receiver, filed April 14, 1916, under oath of its vice president, J. S. Pyeatt, it appeared that the defendant had financed and provided for the payment or taking care of the various demands against it, so that the receivership had accomplished its purpose, and that it then, as a means of getting the property returned to it, stated to the court that it was ‘ready and willing to assume and able to pay all obligations incurred by said receiver of every kind whatsoever, and, that, with this offer of payment, it requested and prayed that the property be delivered to it by order of the court,’ subject to such terms and conditions as the court may impose, to secure the payment of the receiver’s obligations and the performance of the receiver’s contracts incurred by said receiver as such while administering the property of said railway company.
“It appears further that, by the order discharging the receiver, it was directed that all of the defendant’s properties, rights, franchises, privileges, and immunities, and all claims, demands, accounts, notes, and bills of every kind and character, whatsoever and wheresoever situated, be delivered to it, and that the defendant so receiving back such property, its successors and assigns should ‘take all of the benefits and assume all of the obligations’ created by certain contracts entered into by the receiver under orders of the court, and should ‘especially assume all of the obligations of said receiver’ and should ‘pay off, satisfy, and discharge, according to their terms, tenor and effect, all receiver’s certificates,’ and should ‘especially assume all of the obligations assumed by said Frank Andrews, receiver, under a certain specified contract with the Guaranty Trust Company of New York, trustee, for the purchase of equipment.’
“It seems that by such order of discharge the court stripped itself of every item of property that could be made available for payment of the plaintiff’s claim, and retained jurisdiction only in the event the defendant failed to make payment of any amount which it ‘has assumed to pay, pursuant to the provision hereof, as and when the same shall hereafter become due and payable,’ so that, if the plaintiff’s cause of action was not within the terms of the decree, there was no pi’ovision made for payment
of such claim by reserved jurisdiction or otherwise.
“After the defendant had given its receipt, on May 27, 1916, to the receiver for ‘all the properties, rights, franchises, privileges, and immunities of every kind and character whatsoever, held, claimed or possessed by him as receiver,’ it passed at a regular meeting of its board of directors a resolution, to wit, June 6, 1916, whereby, in recognition of its obligation to pay such demands as the obligation in question, it formally acknowledged receipt from said receiver of all such property, and bound itsilf to him in the words, ‘and the said Frank Andrews, as receiver as aforesaid, is hereby released and relieved from all liability, claims, demands, and actions of every kind and character whatsoever, in so far as the St. Louis, Brownsville & Mexico Railway Company has the power to grant such release.’ The plaintiff’s cause of action arose out of and during the aforesaid receivership of Frank Andrews of the properties of the defendant, or negligence chargeable to such receiver towards a servant, and is an unpaid liability of such receiver.
“Nothing in the federal court’s order in this case granting a .discharge of the receiver and the redelivery of the property held by the receiver hints at or suggests any immunity of the defendant from the recovery adjudged against it in this case by the court below, but, on the contrary, provides for the liability here asserted.
“In our judgment, the recovery was proper against the défendant, under its assumed liability.”

The assignment is overruled.

The second assignment of error complains that the verdict of the jury in the amount thereof is grossly excessive, and evidences, not a fair and impartial consideration of the testimony, but sympathy for the plaintiff, or bias and prejudice against the defendant, or some other improper motive.

The appellee, so far as shown by the evidence, was a respectable and honorable man, and the law presumes him to be of good character. The charge against him was, if true, defamatory of his character and good name. There has been shown, so far as this record shows, no improper conduct of the jury. The compensation for damages for the humiliation and mortification that a passenger suffers by reason of bqing insulted or slandered is within the peculiar province of the jury. There is no legal measure of damages for such wrongs.

A careful examination of the record discloses that the appellant has had a fair and impartial trial, and there is no error manifest in this record which would cause this case to be reversed.

The judgment of the lower court is therefore in all things affirmed.
      <S=>E°r other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    CAMPBELL v. CASTLE et al.
    (No. 1999.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1918.)
    1. Trespass to Try Title <§=>35(1) — Defenses — Pleading.
    In trespass to try title, defendant, claiming by limitations, cannot show that the title was in a third person by limitation, not haying so pleaded.
    2. Trespass to Tex Title <§=33 — Pleading— Sueeiciency.
    In. trespass to try title, allegations by defendant that he and those under yvhom he “holds by priority of contract in interest claim-, ing to have good and perfect right and title théreto, has had and held peaceably said lands and adverse possession of same, cultivating, using, and enjoying the same 'for a period of more than 10 years,” amounted to' no more than an assertion that defendant had perfected title by his own occupancy or use in privity with others, and not that title stood in a third person by virtue of the statute of limitations.
    3. Adverse Possession <§=110(4) — Pleading —Issue. <

    Under allegation amounting to mere assertion that defendant had perfected title by adverse possession, he could not show that the property had been conveyed to him by another who had been in adverse possession, where it appeared that if the statute of limitations had operated-at all in the grantor’s favor it had operated long enough to perfect title in him.
    Appeal from District Court, Smith. County; J. R. Warren, Judge.
    Suit by B. I. Castle and others against Elisha Campbell. Judgment for plaintiffs, and the defendant appeals.
    Affirmed.
    Appellees, ail of whom were heirs and some of whom were also assignees of heirs of J. M. Castle, who died in 1893, were the plaintiffs in the court below, and appellant was the defendant. The suit was commenced January 25, 1917. It was to try the title to and the right to possession of a tract of land in Smith county. The plaintiffs alleged that the title they owned was by virtue of the statute of limitations of five and ten years. Appellant disclaimed as to all the land sued for except about six acres, as to which he pleaded “not guilty,” and also that appellees ought not to have maintained their suit for the same against him, because, he averred:
    “That he, and those under whom he holds by priority of contract and interest, claiming to have good and perfect right and title thereto, has had and held peaceably said lands and adverse possession of same, cultivating, using, and enjoying the same for a period of more than 10 years after plaintiffs’ cause of action accrued and before the commencement of this suit.”
    The trial court being of the opinion, after hearing the testimony, that it appeared as a matter of law that appellees owned the land, instructed the jury to find in their favor. The appeal is from a judgment based on a verdict in accordance with the instruction.
    E. Y. Hughes, of Tyler, for appellant. Simpson, Lasseter & Gentry, of Tyler, for ap-pellees.
   WILLSON, O. J.

(after stating the facts as above). Appellant insists that the trial court erred when he Refused to instruct the jury to find in his favor and instead instructed them to find in appellees’ favor, because, he says, it did not appear that the title to the land was in appellees, and it did appear that the title was in one Cross.

We thinh it sufficiently appeared that the title was in appellees, unless the statute of limitations of ten years had operated to devest it out of them and vest it in Cross. Whether the statute had operated so as to accomplish that or not, we will not determine; for in the absence, as was the case, of pleadings to that effect on the part of appellant, he was not entitled to assert it as a reason why appellees should be denied the recovery they sought against him. Miller v. Gist, 91 Tex. 335, 43 S. W. 263. We do not agree that the effect of the allegations in appellant’s answer set out in the statement above was to charge the title to be outstanding in Cross by virtue of the statute. Those allegations we think amounted to no more than an assertion that appellant had perfected by his own occupancy or use thereof in privity with others the inchoate title such others had acquired to the land by operation of the statute. When the facts in Ragon v. Craver, 127 S. W. 1087, are kept in mind, the holding of this court in that case is not inconsistent with the view taken above of the pleadings in this case. In that case there was testimony showing that the defendant D. C. Ra-gon as an heir of his father, B. C. Ragon, owned the title (if any there was) in the latter by virtue of the statute of limitations. In the instant case there was no testimony showing that appellant had acquired the title (if any there was) in Cross by virtue of said statute.

It follows from the view taken of the case that the judgment should be affirmed, unless the trial court erred when, on objection interposed by appellee, he refused to permit appellant to prove by the witness Cross (who it was asserted, had acquired the title thereto by operation of the ten years’ statute of limitations) that he verbally sold the land in dispute to appellant and placed him in possession thereof. We agree with the trial court that the testimony was inadmissible because incompetent. It appeared that, if the ten years’ statute of limitations had operated at all in Cross’ favor, it had operated long enough to perfect title in him. Therefore the purpose of the testimony was not to connect possession by appellant of the land with that by Cross in an effort to show that an inchoate title in the latter had been perfected by .continued adverse possession of the land by. the former. The purpose was to show that a title perfect in Cross by operation of the statute had passed from him to appellant. It way not pretended that the case appeared from testimony already before the court, or could be shown by testimony producible, to be within' any exception to the rule that land cannot be “convoyed from one to another, unless the conveyance be declared by an instrument in writing subscribed and delivered by the party disposing of the same, or by his agent thereto authorized, by writing.” Vernon’s Statutes, art. 1103; Oil Co. v. Gore, 159 S. W. 924; Allen v. Allen, 101 Tex. 362, 107 S. W. 528. The argument in appellant’s brief indicates he thought the court excluded the testimony because of the statute of frauds. Appellant insists that Gross alone had a right to urge that statute as a reason why testimony showing a yerbal conveyance of the land should not be heard. According to the view we take of the matter, it need not be determined whether the right to urge the statute of frauds was personal to Cross or-not; for we do not think that statute was applicable to the case. The case made by the testimony showed a prima facie title in appellees. Hence they were entitled to judgment, unless it appeared that appellant had a better title or that the title was in Cross and that appellant was entitled' to assert that it was. Appellant did not show, nor offer to show in any way sanctioned by law, that he had a better or any title to the land; and not having pleaded it, he was not entitled to show that the title was in Cross or to claim anything on account of the fact if it was.

We think there is no error in the judgment. Therefore it is affirmed.
      ©csiFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      @=Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    JOHN CHURCH CO. et al. v. MARTINEZ.
    (No. 7904.)
    (Court of Civil Appeals of Texas. Dallas.
    March 30, 1918.
    On Motion for Rehearing, June 22, 1918.)
    1. Corporations <S=>409 — Lease—CONTRACT-LIABILITY.
    Where an Ohio company organized a company in Texas for transacting its business in that state, and appointed an agent and general manager therefor, and such agent leased a building for a term, the Ohio corporation was represented by the agent, and its liability for rent was the same as if it- had done business, in its own name.
    2. Fraudulent Conveyances <§=>47 — Stock in Trade — Lease—Lien—Statute.
    Rev. St. 1911, art. 3970, relating, to validity of lien attempted to be given upon any stock goods daily exposed for sale, has no application to the parties to a lease giving the lessor a lien upon tlie lessee’s goods for rent.
    3. Landlord and Tenant <§=>254(⅛) — Landlord’s Lien — Extent.
    Where a building was leased in 1913 for a ten-year term, and the tenant vacated the building -in February, 1916, the landlord’s lien upon the tenant’s goods placed on the premises existed only to the end of that year.
    4. Landlord and Tenant <§=>195(2) — Vacation of Premises by Tenant — Reletting by Landlord.
    Where a lessor under the terms of the lease, in case of the tenant’s breach, was to release the premises for the best obtainable rent upon the lessee’s account, he was bound to rent it for the remainder of the term, to ascertain the amount of the deficiency, in order to bind the lessee for the deficiency remaining due at the end of any yearly period.
    On Motion for Rehearing.
    5. Landlord and Tenant <§=>232 — Breach by Tenant — Amount of Damage.
    On the lessee’s breach of a lease for ten years and its vacation of the building, the lessor could recover only the amount of rent that had become due at the date of trial, excluding the rent to become due thereafter, until a showing of the value of the unexpired lease and as to whether the 'building had been relet for the lessee’s account, as required by the lease.
    Appeal from District Court, Dallas County; E, B. Muse, Judge.
    Proceeding by P. P. Martinez commenced by suing out a distress warrant before a justice of the peace -against the John Church Company of Texas, for an indebtedness for rents, which warrant was levied on certain personal property situated in the building and returned to the district court, whereupon the John Church Company filed a claimant’s oath and bond and took possession of such property, and plaintiff filed his petition in the district court against the John Church Company of Texas and the John Church Company of Ohio, and the Western Indemnity Company, .as surety on the claimant’s bond. Judgment for plaintiff and for the foreclosure of his lien and against the Indemnity Company, and defendants appeal.
    Reformed and affirmed.
    George -Sergeant, E. B. Perkins, and W: B. Hamilton, all of Dallas, for appellants. Spence, Haven & Smithdeal, of Dallas, for appellee.
   RAINEY, O. J.

Appellee commenced this proceeding by suing out a distress warrant before a justice of the peace, precinct No. 1, Dallas county, against the John Church Company of Texas, for an indebtedness for rents of a building amounting to $15,000, which warrant was levied on certain pianos situated in said building and returned to the district court The John Church Company filed a claimant’s oath and bond and took possession of said property. Appellee as plaintiff filed his petition in the district court’against the John Church Company of Texas, incorporated under the laws of Texas, and the John Church Company, a corporation incorporated under the laws of Ohio, and the Western Indemnity Company as surety on the J.ohn Church Company’s claimant’s bond, alleging default in the payment of rents of said building by virtue of a lease contract in writing made between appellee and the John Church Company, said contract being signed by the “John Church Co. of Texas, Lessee, C. R. Schermerhorn, Gen. Mngr.,” who were the agents of the John Church Company, that said building had been vacated, and that the rents were due and unpaid, and that the John Church Company had secreted the property or moved it out of the state and same had been converted by. the John Church Company. The John Church Company answered by general and special exceptions, general denial, and specially denying that the John Church Company of Texas and C. R. Schermerhorn was its agent. That the two corporations are separate, one being incorporated under the laws of Ohio and the other under the Texas laws; that they are distinct, neither owning stock in the other, and are under separate management and control, etc.; that said pianos were held by the Texas company which were shipped to it under consignment, and the property levied on, except one piano, was not the property of the John Church Company of Texas. The indemnity company answered by general exception; that it was only surety on the claimant’s bond for $5,300, and asked relief as such. Appellee filed a supplemental petition, containing general and special exceptions and general denial, and specially pleaded that the John Church Company was the undisclosed principal of the John Church Company of Texas and of C. R. Schermerhorn in the conduct of the piano business in Dallas, and also pleaded estoppel against the John Church Company. A trial resulted in a judgment in favor of appellee against the John Church Company for the foreclosure of its lien, and against the indemnity company on its bond for $2,205, from which this appeal is taken.

Conclusions of Fact.

The John Church Company is incorporated under the laws of Ohio and located at Cincinnati. In 1906, in order to avoid the franchise tax of this state and to do business in Dallas it procured the organization and charter of the John Church Company of Texas under the laws of Texas, with a capital stock of $5,000, which was divided into 50 shares, which were issued to persons principally in its employ, 44 shares to Frank A. Lee and to six others, three living in Cincinnati, Ohio, and three living in Dallas, Tex. The stock was issued to said parties as trustees of the John Church Company, and for which neither party ever paid a cent. The John Church Company paid the said $5,000, and it owned and now owns all the stock in the said the John Church Company of Texas. Said Frank A. Lee is the president of appellant, and also president of the Texas concern. The record fails to show any stockholders’ or directors’ meeting after 1909. In 1906, the appellant made a written contract with the - John Church Company of Texas and with one Chapman in Cincinnati, Ohio (who signed as secretary), to come to Dallas and to receive and sell pianos on consignment. Chapman resigned and a Mrs. Walker was placed in charge of the business. The John Church Company of Texas having no officer, director, or stockholder in the state of Texas, Mrs. Walker was in charge of all the property when in 1913 C. R. Schermerhorn came to Dallas and received all the property from her, and taking charge of the business, he having been employed by appellant to come to Texas and look after its business, appellant paying his salary and the expenses of his salesmen. He was in charge for about three years. When he first came to Dallas he entered into a contract with appellee for the lease of a building, as follows:

“The State of Texas, County of Dallas: This agreement of lease made this the 3d day of June, 1913, by and between P. P. Martinez, lessor, and the John Church Company, lessee, witnesseth: That the said P. P. Martinez do ⅜ ⅞ * jjy . these presents lease and demise unto the said the John Church Company, the following described property, to wit, lying and being situated in the city and county of Dallas, state, of Texas, and being the two-story brick building No. 1818 Main street, for the term of ten (10) years from the 1st day of July, 1913, to be occupied by pianos, and not otherwise, paying therefor the sum of thirty-three thousand ($33,000.00) dollars, payable two hundred and fifty dollars ($250.00) the 1st of each month for the first five years, and three hundred dollars ($300.00) the 1st of each month for the other five years, in advance, upon the conditions and covenants following:
“First. That the lessee shall pay the rent each month m advance as aforesaid, as the same shall fall clue.
“Second. That the lessees shall take good care of the property and its fixtures, and suffer no waste; and shall at their own expense and cost, keep said premises in good repair; keep the plumbing work, closets, pipes and fixtures belonging thereto in repair; and keep the water pipes and connections free from ice and other obstructions, to the satisfaction of the municipal and police authorities during the hereby granted term of ten years, and at the end or other expiration of the term, shall deliver up the demised premises in good order and condition, natural wear and tear and damages by fire and the elements only excepted. That the lessees shall pay the water tax imposed on the hereby leased premises in each and every quarter as the same shall become due, during the hereby leased term of ten years. That no improvements or alterations shall be made in or to the hereby demised premises without the consent of the lessor in writing. All improvements made by the lessees to belong to the lessor at the expiration of the hereby granted lease of ten years.
“Third. That the lessees shall promptly execute and fulfill all the ordinances of the city corporation, applicable to said premises, and all orders and requirements imposed by the board of health and police departments, for the correction, prevention and abatement of nuisances in, upon and connected during the said term at their own expense.
“Fourth. That the lessees reserve the right to assign this agreement or underlet the premises, or any part thereof (except to negroes or for business deemed extrahazardous on account of fire), or make any alteration in the building or premises (except as may be mentioned above), without the consent of the lessor in writing; or occupy, or permit or suffer to be occupied, for any business or purpose deemed extrahaz-ardous on account of fire.
“Fifth. That the lessees shall in case of fire give immediate notice to the lessor, who may, at his option, thereupon cause the damage to be repaired forthwith, but if the promises be by the lessor deemed so damaged as to be unfit for occupancy, or if the lessor shall decide not to rebuild, the lease shall cease and the rent shall be paid to the time of the fire.
“Sixth. That in ease of default in any of the covenants, the lessor may declare the lease forfeited at his discretion and he or his agent or attorney shall have the right to re-enter and remove all persons therefrom, or he or his agent or attorney may resume possession of the premises and relet the same for the remainder of the term at the best rent agent may obtain for account of the lessee, who shall make good any deficiency. Omission to declare lease forfeited for any breach will not prevent a subsequent exercise of said discretion. And the lessor shall have a lien as security for the rent aforesaid upon all the goods, wares, chattels, implements, fixtures, furniture, tools and other personal property which are or may be put on the demised premises.
“Seventh. That the lessor reserves the right to cancel this lease within three (3) years by giving the lessees sixty days’ notice and paying them four thousand ($4-000) dollars. And at any time after the said first three years, by giving them sixty days’ notice, and paying them three thousand ($3,000) dollars in the event he sells the property.
“In testimony whereof, the parties to this agreement have hereunto set their hands in duplicate, the day and year above written.
“[Signed] P. P. Martinez, Lessor.
“The John Church Company “of Texas, Lessee.
“C. R. Schermerhorn, Gen. Mngr.”

In negotiating for the contract Schermer-horn represented to appellee that he was acting for the John Church Company, and ap-pellee, believing such representations, acted upon same, and knew nothing of the John Church Company of Texas.

We conclude that the John Church Company of Texas was incorporated and its charter procured by the John Church Company for its own interest, and was, from the beginning, managed and controlled by the John Church Company.

Opinion.

The appellant the John Church Company contends that it is not liable on the contract sued on in this case and presents the following proposition:

“In a suit against a private eorpoi-ation, duly incorporated and chartered under the laws of Texas, upon a written rental contract, where the pleadings allege and the evidence shows the existence of the corporation, and the contract offered in evidence shows to have been executed by the corporation, and where the evidence shows that the corporation occupied the leased premises for a time and paid the rents, but aft-erwards vacated the premises, the court is not authorized, under such pleadings and evidence, to adjudge and decree that such corporation has no legal existence, and to render judgment for indebtedness created under the contract against another corporation which has consigned goods to such tenant corporation.”

The judgment of the court does not decree the forfeiture of the charter of the John Church Company of Texas, hut does adjudge that the appellant, the John Church Company, is liable for the acts of the said the John Church Company of Texas and C. R. Schermerhorn, the agents of the John Church Company. That the facts fully establish the liability of the John Church Company and its surety, the Western Indemnity Company, we entertain no doubt, for they show that the John Church Company organized the John Church Company of Texas and managed and controlled it for the purpose of transacting the business of the John Church Company in Texas, and had appointed O. R. Schermer-horn agent and general manager for the Texas corporation. “When one corporation makes use of another [corporation] as its instrument through which to transact its business, the principal corporation is really represented by the agents of the subcorporation, and its liability is the same as if it had done business in its own name.” Buie v. Railway Co., 95 Tex. 51; Railway Co. v. Wells, 24 Tex. Civ. App. 304, 58 S. W. 842. The principle stated by Mr. Justice Brown in the Buie Case governs this case, and is as follows:

“The authorities cited fully sustain the proposition that when one corporation makes use of another as its instrument through which to perform its business, the principal corporation is really represented by the agents of the subcor-poration, and its liability is just the same as if the principal corporation had done the business in its own name.”

The contention that there was no valid lien existing on the pianos situated in the leased building for the payment of rent, as said property was exhihited for daily sale, under article 3970, R. S., is not tenable, as said article has m? application to the parties to the contract of lease.

Clause 6 of the contract sued on provides:

“That in case of default in any of the covenants, the lessor may declare the lease forfeited at his discretion and he or his agent or attorney shall have the right to re-enter and remove all persons therefrom, or he or his agent or attorney may resume possession of the premises and relet the same for the remainder of the term at the best rent agent may obtain for account of the lessee, who shall make good any deficiency. Omission to declare lease forfeited for any breach will not prevent a subsequent exercise of said discretion.”

■Shortly after the rented building wag vacated the appellee took charge of the rented premises and notified the John Church Company’s agent as follows:

“Dear sir: As agent of the John Church Company, please be advised that I, as lessor under the terms and conditions of the lease contract dated third day of June, 1913, covering the two-story building known as No. 1818 Main street, in the city of Dallas, Texas, shall relet the said building for the remainder of the term of said lease contract at the best rent obtainable for the account of the John Church Company and shall look to the John Church Company for the payment of any deficiency.
“Tours truly, P. P. Martinez.”

Under this clause appellee was not authorized to recover for the rents remaining due and unpaid after the time of trial, for the reason that there was no testimony showing the value of the unexpired lease after that time. Under the terms of the lease ho was to lease the building and the lessee was to make good the deficiency, and we cannot tell what the deficiency will he until the term has expired. The rental contract being for ten years, there are several years until the lease expires. The building was vacated in Eebruaiy, 1916, and the lien existed until the end of the year 1916. Allen v. Brunner, 33 Tex. Civ. App. 128, 75 S. W. 821; Low v. Laundry Machinery Co., 160 S. W. 136. So there was no error in foreclosing the lien upon the goods seized under the distress warrant; said property belonging to the John Church Company.

Complaint is made of the size of the verdict. The judgment was for practically the full amount of the remaining term of the ten-year rental contract unpaid. The appellee having taken possession of the building, he was bound to rent it for the remainder of the term for account of the John Church Company, in order to ascertain the amount of the deficiency in order to bind the appellant for the deficiency remaining due at the end of any yearly period. Seed Co. v. Hexter, 167 S. W. 749.

Under the evidence appellee was entitled to judgment for $4,125, with a foreclosure of his lien. Under the contract and law his lien existed only to the end of the year 1916. The judgment rendered wasi for $15,475, which was an excess of $11,350, for which the judgment should have been rendered in •this case. The judgment will be reformed and here rendered for $4,125, an¡l the appel-lee will be remitted to such remedy as he may have, without prejudice for the remaining rents to become due.

Reformed and affirmed.

On Motion for Rehearing.

Both appellant and appellee have filed motion for rehearing. The appellant complains, in effect, that this court erred in holding that the evidence showed any liability at all on the part of the John Church Company for the acts of the John Church Company of Texas. We are still of the opinion that the John Church Company is responsible for the payment of the amount due on the lease contract, but we are of opinion that we erred in fixing the sum due at $4,125, at the date of trial, when it should have been for $3,175, for which last amount appellee is entitled to judgment with foreclosure of his landlord’s lien, and the judgment of this court will be modified in that respect.

As to appellee’s motion for rehearing we are not satisfied with our former holding in reducing the amount of the judgment and disposing of the rents which hadi not matured. We still adhere to our holding that the John Church Company is responsible for them, but are of the opinion that the evidence was not such that the judgment for the full amount was justified, as the testimony of appellee does not show positively the length of time he had leased the building to the music company for the full term, nor is there any testimony showing the value of the lease for the unexpired term, if the building had not in fact been relet for that time, which would form an equitable basis for the proper judgment; and we see no reason why this cannot be done by proper pleadings and evidence upon a retrial of that issue or branch of the case. We therefore change the judgment heretofore rendered by us, by affirming in parti and reversing and remanding in part the judgment of the lower court; that is, we'affirm the judgment to the extent of '$3,175, being the amount of rent that had become due and payable at the date of the trial, and the foreclosure of the lien; and we reverse and remand as to the rents to become due and not included in the $3,175, for the purpose of enabling the appellee, if he so desires, to show whether or not the rented building has been leased, under the terms of his contract with the John Church Company for unpaid time of the original lease, and in the event it has not been so relet, to show the value of said unexpired lease, so that judgment may be rendered upon this branch of the case in accordance with the facts.

       65 S. W. 27, 55 L. R. A. 861.

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


author: JENKINS, X

text:
    GULF, C. & S. F. RY. CO. v. KRIEGEL.
    (No. 5930.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 27, 1918.
    On Motion for Rehearing, May 15, 1918.)
    1. Appeal and Error ®=^655(3) — Record — Statement of Facts — Striking Out.
    A statement of facts containing • 40 pages, 30 per cent, of which consists of questions and answers, and much of which is unnecessary repetition and testimony as to undisputed facts, is in violation of Rev. St. 1911, art. 2070, requiring such statement to be succinct without unnecessary repetition, and district court rule 78 (142 S. W. xxiii), - requiring statement to be condensed, and wifi be stricken.
    2. Appeal and Error ⅞==>554(2) — Record-Statement oe Facts — Necessity.
    Appeal will not be dismissed on the ground that there is no statement of facts, but will be entertained so that court may ascertain if any of the assignments of error can be sustained without such statement.
    On Motion for Rehearing.
    3. Appeal and Error <S^>655(3) — Record — Statement oe Facts — Unnecessary Matter.
    Where a rule requiring statements of facts to be in condensed form -has been violated for years, the court will not strike out a statement for violation thereof without having given the party so violating the rule warning that it was to be enforced.
    Appeal from District Court, Bell County; F. M. Spann, Judge.
    Action by Fred Kriegel against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Motion to strike out statement of facts and to dismiss the appeal. Motion to strike out the statement of facts sustained. Motion to dismiss the appeal overruled.
    On motion for rehearing judgment striking out statement of facts set aside.
    J. P. Dewald, of Pendleton, and Ward & Evetts, of Temple, for the motion. W. W.

      Hair, of Temple, Terry, Cavin & Mills, of Galveston, and Lee, Lomax .& Smith, of Et. Worth, opposed.
   JENKINS, X

Appellee has filed a motion to strike out the statement of facts herein because the same is not in compliance with the statute and the rules adopted by the Supreme Court relating to that subject.

We sustain this motion. The 40 pages of the statement of facts filed herein consist, to the extent of fully 30 per cent., of questions and answers. None of these questions and answers are necessary to a proper understanding of the testimony of the witnesses.

Counsel for appellant states, in reply to the motion - to strike out the statement of facts, that he boiled down the stenographer’s report about two-thirds. Granting this to be true, it does not follow that the statement of facts is such as is contemplated by the statute and the rules.

The statute (article 2070, R. S.) reads in part:

“The party appealing shall prepare, or cause to be prepared,” from the transcript filed by the official shorthand reporter (the testimony in question and answer form), “a statement of facts in duplicate, which shall consist of the evidence * ⅜ ⅞ upon the trial, both oral and by deposition, stated in a sueoinet manner, without unnecessary repetition,” etc. (Italics ours.)
Rule 78 (142 & W. xxiii) for the district and county courts is as follows:
“Neither the notes of a stenographer taken upon the trial, nor a copy thereof made at length, shall be filed as a statement of facts; but the statement made therefrom shall be condensed throughout, in accordance with the spirit of the foregoing rules on this subject,” etc.

The spirit of the foregoing rules may be understood by the following excerpt from rule 72 (142 S. W. xxii):

“Where the evidence adduced upon the trial of a cause is sufficient to establish a fact or facts alleged by either party, the testimony of witnesses ⅜ ⅜ * should not be stated or copied in detail into a statement of facts, but the facts thus established should be stated as facts proven in the case.”

To illustrate the violation of this rule in the instant case: This is a suit to recover damages for alleged false imprisonment. Plaintiff alleged that he was arrested without a warrant, at a given time by one Sam Kirby, who took him before one R. L. Cooper, a justice of the peace of Bell county; that said Kirby at said time was employed as a watchman by appellant, and was acting in making such arrest in the scope of his employment; that a charge was filed against him before said justice of the peace for trespassing; that said justice of the peace fined him $1, and costs amounting to $9.70.

To this appellee answered that said Kirby was at the time of such arrest a policeman of the city of Temple, and that appellant had violated an ordinance of the city •of Temple, and that he pleaded guilty before said justice of the peace.

■All of these facts were established by the uneontradicted testimony, and should have been stated “as facts proven in the case.” But, instead of so doing, the • greater part of the 40 pages of the statement of facts consists of the testimony of witnesses to establish such' facts. The controverted facts in the case, as shown by the record, are very few, and the testimony in reference thereto could easily have been stated in a half dozen pages.

A statement of facts containing testimony as to undisputed facts and the unnecessary repetition of such testimony is not peculiar to this case. On the contrary, it is, and for years has been, almost a daily occurrence in statements of facts filed in this court, of which we have often felt inclined to take notice on our motion under authority of rules 53 and 53a (142 S. W. xv) for the government of this court, and notice is here now given to whom it may concern that we do not promise to refrain from doing so in the future.

For years there has been a demand, coming from all parts of the state, for reformin matters of judicial procedure. We doubt not that some legislation on this subject is needed. But in the meantime there would be less cause of complaint if the present rules on this subject were followed. By so doing it is our opinion, based on experience, that statements of facts could be reduced an average of 50 per cent. Also, if the rules with reference to transcripts were adhered to, records on appeal could be very materially reduced. Whatever may be the difference of opinion as to needed legislation on this subject, there is no room for doubt that reform is greatly needed as to the manner in which statements of facts and records are made up on appeal. Our trouble in this respect is not so much the fault of our present system, as the flagrant violation of the rules governing the same.

Referring again to the ¡statement of facts in the instant |case, Jw’hat is marked as page 40 thereof consists of an immigrant contract of appellant with the brother-in-law of appellee. This contract is perhaps immaterial to any issue in this case. The fact of its existence ■ and its contents was not disputed on the trial. If it was necessary to refer to it at all, the substance of its contents, in so far as they could have any possible bearing on, this case, could have been stated in a few words. But, instead of so doing, the entire contract, consisting of two printed pages in type so small as to be almost illegible, is inserted. It is printed in red ink, and it would imperil any one’s eyesight to read it.

We have written what we have written, not only because the facts of this case justified it, but primarily in the hope that what we have here said may lead to a more strict observance of the rules, and thereby save costs to litigants, and facilitate tlie work of courts of appeals.

We overrule the motion to dismiss the appeal. A statement of facts is not necessary to give this court jurisdiction. It will be time enough to consider whether any of the assignments of error can be sustained without a statement of facts when the ease is submitted.

Motion to strike out the statement of facts sustained. Motion to dismiss the appeal overruled.

On Motion for Rehearing on Judgment Striking out Statement of Facts.

On a former day of the present term we sustained a motion to strike out the statement of facts in this case, for the reason that it was not in compliance with the rules in such case made and provided.

Appellant has filed a motion for rehearing on this judgment, in which, among other things, he quotes from our opinion herein to the effect that the rule with reference to the statement of facts has been flagrantly violated for years in this court, and without any action being taken thereon on our part, and says that we ought not make him and his client the victim of our determination to enforce this rule, without any warning having been given.

We concede that there is some justice in this plea, and we therefore grant the motion for rehearing, and set aside our judgment striking out the statement of facts. We do not, however, withdraw our warning as to statements of facts of this character in the future.

Motion granted, and judgment striking out statement of facts set aside.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    TEXARKANA & FT. S. RY CO. v. WILSON.
    (No. 381.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 14, 1918.)
    1. Evidence 142(1) — Value or Animal-Cost or Other Animals.
    In action against a railroad for injury to a mare, it was error to admit testimony offered by plaintiff to give a basis for arriving at the market value of his mare that the witness had paid for certain horses that he owned as piuck as $125; it not being shown that the animals owned by such witness were of the same kind or character as that of plaintiff, nor when or where the witness purchased his animals.
    2. Appeal and Error 1050(1) — Harmless Eeroe — Evidence.
    The rule that the introduction of incompetent evidence is harmless where sufficient legal evidence is introduced to sustain the verdict applies only where the trial is before the court, it being presumed that only competent evidence is considered by the court, but no such presumption being indulged in where improper testimony on a material issue is admitted in a case tried before a jury.
    3. Damages @=»105 — Killing Stock — Measure.
    The measure of damages recoverable against a railroad for injuring an animal is the difference between the market value at the time of injury in the vicinity, if»there is such a value, or, if not, the market value in the nearest vicinity, and such value immediately after injury.
    Appeal from Orange County Court; D. O. Bland, Judge.
    Action by C. W. Wilson against the Texar-kana & Ft. Smith Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Orgain, Butler & Bolinger, of Beaumont, for appellant. O. R. Sholars, of Orange, for appellee.
   HIGHTOWER, C. J.

This suit was commenced in one of the justice’s courts of Orange county by the appellee, C. W. Wilson, against the appellant, Texarkana & Ft. Smith Railway Company, for the recovery of damages. It was claimed by the appellee that the appellant railway company had negligently struck and injured a mare, the property of appellee, and that on account of such injury the mare was rendered valueless, and damages were prayed in the sum of $125. Judgment by default was had against appellant in the justice’s court, and appellant appealed the case to the county court of Orange county, and upon trial de novo in that courn judgment was again rendered in favor of appellee for the sum of $125, from which last judgment appellant has brought the case to this court for review. *

Without discussing them, we overrule all assignments of error made by appellant down to the sixth, and that assignment we are compelled to sustain. This assignment, in effect, complains of the action of the trial court in admitting in evidence, over the objection of the railway company, certain evidence relative to the issue of market value of the animal in question. The witness whose evidence in this connection was admitted was Oil Stephenson, and he was permitted, over the objection of appellant, to testify, substantially, that he paid for certain horses that he owned as much as $125, and the purpose of the plaintiff in offering this evidence was to -give the jury a comparison or basis for arriving at the market value of the animal of the plaintiff alleged to have been injured. The objection to this testimony was, substantially, that it was not competent or proper to prove the market value of the animal in question in this suit by the price paid for animals owned by the witness Stephenson, because it was not shown that the animals owned by the witness Stephenson were of similar character and kind as the animal in question, nor was it shown when such prices were paid by the witness for the animals; but such objections were overruled by the trial court, and the witness Stephenson was permitted to state the prices paid by him for such animals as he owned, some of which he still owned at the time of the trial, and, as abdve stated, he testified that he paid as much as $125 for some of his animals.

After a careful consideration of the record in this case, we have arrived at the conclusion that there is nothing in the record to show that the animals owned by the witness Stephenson were of the same hind or character as the' animal of the plaintiff in this case, nor was it shown when the witness Stephenson purchased his animals, or where, and without such showing .clearly such testimony was inadmissible on the isshe of market value in this case, and the court was therefore in error in admitting same. . Railway Co. v. Droddy, 114 S. W. 902, and authorities there cited.

The appellee, while not admitting that error was committed as complained of in this assignment, submits the counter proposition that, if the matter there complained of was error, still the same was harmless, because, as stated by the appellee, another witness, O. W. Burton, Jr., testified to the market value of the animal in question, and fixed her market value at $125 at the time of her injury, and that therefore there was sufficient legal evidence upon which to render the verdict in favor of appellee, and this court should not reverse for the error in admitting the evidence of the witness Oil Stephenson.

With reference to this proposition, it will suffice to say that the rule contended for by appellee in this connection is not applicable where the trial is had before a jury, but only so where the trial is before the court, it being presumed that the court, in arriving at his conclusions, would not consider illegal or improper testimony, but such presumptions have never been indulged where the case was tried before a jury, and improper and clearly incompetent and inadmissible testimony on a material issue has been admitted. And, further, we will add that the evidence of the witness O. W. Burton, Jr., if it can be said that it fixes the market value of the appellee’s animal at the time it was injured at any amount, still it could not be claimed that the evidence of this witness is conclusive on that point, because it is shown by the record that, while he testified that the market value of the animal in question was between $100 and $125 at the time of its injury, nevertheless he made a written statement prior to the trial to the effect that the market value of such animal was $65 or $70. The burden of proof was upon the plaintiff to establish the market value of the animal in question at the time of its injury in the vicinity thereof, if there was such a value, and, if not, its market value in the nearest vicinity thereto, and then show the difference between the market value just before the injury find immediately thereafter, if there was such value, but if there was no market valué, then the actual value before and after the injury and the measure of damages would be the difference in such values.

.Since the case must be reversed, we will briefly mention a complaint made by the seventh assignment of error. It is to the effect that the court erred in submitting special issue No. 6 to the jury, which issue was;

“From the evidence in this case, what do you believe is the damage to the mare of said plaintiff at the time and place she was injured?”

As claimed by appellant, this issue submits an improper, or at least an unintelligible, measure of damages. We think that the proper rule for assessing damages. in this case, in the event plaintiff should be found entitled to recover upon another trial, would be to ascertain the market value of the animal in question at the time and place of the injury, if such animal so injured was rendered useless and of no value, and render judgment in favor of the plaintiff therefor; but, if the animal still had a market value after the injury, then the plaintiff would be entitled to recover the difference in the market value of the animal prior to the injury and the market value after the injury; but, if it should be shown that there was no market value in the vicinity where injured, then the market value in the nearest market would be the criterion by which to measure damages; but, if it should be shown that there was no market value in a neighboring locality, then the measure of recovery would be the actual value of the animal in question.

While it is not mentioned by way of assignment of error, we notice in the charge of the court following the special issues submitted this instruction to the jury:

“Gentlemen of the jury, you are instructed •that the proper criterion of assessing damages for injury to stock is the difference of the value of the stock at the time it was injured and at the time of the trial as shown by the evidence.”

We merely call attention to this matter in view of another trial. This instruction was erroneous in that portion at least which instructs the jury that the measure of damages would be the difference in value at the time of the injury and at the time of trial. Where the difference in the market value of an animal is sought to be recovered, the measure would be, on the question of market value, the difference in such value immediately before and immediately after the injury, regardless of when the trial might be had.

• For the error pointed out in admitting the testimony of the witness Oil Stephenson complained of the judgment of the trial court is reversed, and the cause is remanded for a new trial.
      @=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    W. C. BIGGERS & CO. v. HAMMER.
    (No. 7967.)
    (Court of Civil Appeals of Texas. Dallas.
    May 25, 1918.
    Rehearing Denied June 22, 1918.)
    Sales @=379 — Place oe Delivery.
    Where contract of sale of cotton by farmer to cotton buyers mentioned no place for delivery of the cotton, but specified it was to be delivered f. o. b. cars, the inference was that it was deliverable at the nearest railroad shipping point.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    .Action by W. O. Biggers & Co. against C. Y. Hammer. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wm. O. Morrow and H. G. Hart, both, of Hillsboro, for appellant. J. E. Clarke, of Hillsboro, for appellee.
   RAINEY, C. J.

On or about June 21, 1916, appellant and appellee entered into the following contract, to wit:

“Mr. C. Y. Hammer, Bynum, Texas — Dear Sir: This confirms sale made by you to-day, personally of twenty-five bales of cotton, basis middling, at 12½ cents per lb. f. o. b. cars, subject to compress weight. Cotton to be delivered at any time before December 1, 1916. Differences to be the prevailing differences at the time of delivery.
“Good middling, prevailing c. on middling.
“Strict middling, prevailing c. on middling.
“Middling 12⅛⅜ even.
“Strict low middling, prevailing off c. middling.
“Low middling, prevailing c. off middling.
“Strict good ordinary prevailing c. off middling.
“Good ordinary prevailing c. off middling.
“Tinges, prevailing c. off white cotton.
“Contract with W. C. Biggers & Co. Waxa-hachie, Texas. 1
“Yours truly, O. Y. Hammer.”

Appellants were cotton buyers and doing business at Waxahachie, Ellis county, Tex., and appellee was a farmer living at or near Bynum, in Hill county, Tex. The cotton was not received by appellants by or on December 1, 1916, and they sued appellee to recover their damages for his failure to deliver same, which was alleged to be the difference between that contracted to be paid for the cotton and the price cotton had reached on the date of delivery, which was about $906.

Appellee answered by general exceptions, general denial, and specially, in effect, that he was ready, willing, and able to deliver the cotton on or before December 1, 1916; that the cotton was to be classed at Bynum before delivery; that at no time before the date of delivery did the appellants demand said cotton or in any wise offer to come to Bynum or to send a representative to classify said cotton before it was to be delivered to the railroad company for delivery; and that on or about December 1, 1916, the time of delivery was extended for one month, and on the 18th of December appellee offered to deliver said cotton, which offer was refused.

Special issues were submitted to a jury to which answers were returned, and judgment was rendered by the court in favor of appellee.

The evidence shows that appellant during the fall of 1916 and before December 1, 1916, wrote and telephoned to appellee and suggested, in effect, that, as cotton was rising in price and liable to go higher, to save himself from loss he had best make a delivery or pay the difference on the contract, to which appellee never replied. Appellant never went to Bynum or to appellee’s residence or sent a representative to receive the cotton at any time. The jury found, in answer to a question submitted by the court, that ap-pellee was ready, willing, and able to deliver the cotton on December 1, 1916. There is no place mentioned in the contract for the delivery of the cotton. It specifies that it is to be delivered f. o. b. cars, and as Bynum was the nearest place it will be inferred that it was to be delivered there.

We conclude that under the contract and evidence the appellant is not entitled to recover for a breach to deliver the cotton. The appellants were not present, nor did they have a representative present, at Bynum at any time to receive the cotton, or to close up the trade by paying for same, or in any manner arranging for its delivery. Appel-lee had the right to be paid for the cotton, or at least to have an understanding as to how he was to be paid, and where, and to whom it was to be shipped, and, the appellants not being present and seeing to these matters, the appellee being ready, willing, and able to make a delivery 'on the day fixed, the contract for delivery cannot be charged with a breach by appellee.

The judgment is therefore affirmed.


text:
    PARKER v. PARKER.
    (No. 375.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 12, 1918.
    Rehearing Denied June 19, 1918.)
    1. Divob.ce @=⅞48 — Grounds — “Condonation.”
    “Condonation” is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offending spouse shall thereafter treat the injured party with conjugal kindness.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Condo-nation.]
    2. Divorce @=o51 — 'Grounds—Condonation.
    Condonation is not absolute, but is based upon the repentance of the guilty party, and conditioned upon nonrepetition of the offense and future kind treatment; a violation of it in either respect reviving the original offense.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by Beulah M. Parker against C. J. Parker for divorce. Erom a decree for complainant, defendant appeals.
    Affirmed.
    Crook, Lord, Lawhon & Ney, of Beaumont, and J. A. Pelt, of Sour Lake, for appellant. W. R. Blain, of Beaumont, for appellee.
   BROOKE, J.

This is a suit for divorce, the grounds of which are that there was an alleged assault and alleged false charges of marital infidelity, and various acts of ill treatment extending over two or three years, and finally leading to a permanent separation. It was relied upon by the appellant that these matters alleged and proven were forgiven, and that the offense or offenses were condoned.

The proposition is urged by the ap-pellee that a condonation is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offending spouse shall thereafter treat the injured party with conjugal kindness, and a breach of the condition works a revival of the original offense; and her second proposition is that condonation is not absolute, but is based upon the repentance of the guilty party and conditioned upon nonrepetition of the offense and future kind treatment, and a violation of the condition in either respect revives the original offense.

In the case of Nogees v. Nogees, reported in 7 Tex. 538, 58 Am. Dec. 78, the following language is used:

“ ‘It is clear that the effect of renewed matrimonial cohabitation, on causes of divorce, arising from cruelty, or outrages, has not been prescribed by statute; and we may with propriety recur to the doctrines of the common law, as received in the Ecclesiastical Courts in England, on the subject. Reconciliation in that law is technically termed “condonation” ; and it does not constitute, under all circumstances, a perpetual bar against complaint for antecedent offenses. Condonation is defined to be a conditional forgiveness, that does not take away the right of complaint,' in case of continuation of the injury, which operates,as a revivor of former wrongs. By the ecclesiastical law, fresh acts of adultery, or fresh acts of cruelty, will revive former acts of adultery or cruelty. In West--meath v. Westmeath, 4 Eccl. R. 490, it is said that “the force of condonation varies according to circumstances.” The condonation, by a husband, of a wife’s adultery, still more, repeated reconciliations after repeated adulteries, create a bar of far greater effect than does a condonation by a wife of repeated acts of cruelty, committed by a husband. In the former case, the husband shows himself not sufficiently sensible to his own dishonor and to his wife’s contamination, and reconciliations, often repeated, amount almost to a license to her future adultery, so as to form nearly an insuperable and immovable bar; but the forbearance of the wife, and her repeated forgiveness of personal injury, in hopes of softening the heart and temper of her. husband, and under the feelings of a mother anxious to continue in the care and nurture of her children, are even praiseworthy, and create but a slight bar, removed by the reasonable apprehension of further violence.’ Erom these doctrines, it appears that condonation operates a bar only where there is no further ill treatment, where the offending party discharges his duty according to the marriage obligations, or where the injured party is treated with that kindness and affection due to the conjugal relation. If there be fresh cruelty or outrage, the former acts will be revived, and the impediment, raised by the reconciliation removed. It is scarcely necessary to say that, by the statute, in suits for divorce, brought for cause of adultery, if the injured party, having knowledge of the criminal fact, shall admit the guilty partner into conjugal society or embraces, such con-donation will operate as a good defense, and perpetual bar to the suit. But this effect of reconciliation ha-s not been extended beymnd causes for adultery; and rales and doctrines of the ecclesiastical law, so far as they are applicable, and especially when their justice and good sense demand our assent, must be enforced.”

The doctrines here announced by the Supreme Court will justify, under the facts in this case, the judgment of the lower court. Therefore the judgment of that court is in all things affirmed.
      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    JOHNSON et al. v. HOLLAND.
    (No. 2004.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 13, 1918.)
    Husband and Wife ®=^85(6) — Married Women’s Notes — Consideration—Husband’s
    Antecedent Debt.
    A married woman is not liable on a note executed by her where the consideration was her husband’s previous debt to the payee.
    Appeal from Rusk County Court.
    Action by C. E. Holland against Jim Johnson, Sr., Annie Johnson, and Jim Johnson, Jr. From a judgment for plaintiff against defendant Annie Johnson alone, said defendant appeals.
    Reversed and rendered as to appellant.
    The suit is by the appellee on. a promissory note. Jim Johnson, Jr., pleaded his minority as a defense, and Annie Johnson her cover-ture. Jim Johnson, Sr., pleaded non est factum.
    On March 30, 1914, Annie Johnson and son Jim Johnson, Jr., signed and delivered to the plaintiff the note sued on. Jim Johnson, Jr., was under 21 years of age, and Annie Johnson was a married woman at the time of signing the note. Her husband, Jim Johnson, Sr., did not sign the note. It was proven:
    “That the plaintiff was in the mercantile business at Overton, Tex., in 1912, 1913, and 1914; that Jim Johnson, Sr., Annie Johnson, Jim Johnson, Jr., and other members of the family bought goods, wares, and,merchandise from the plaintiff in 1912, 1913, and up to March 30, 1914; that the goods, wares, and merchandise consisted of groceries, dry goods, clothing, feed stuffs, and shoos, and that such articles of merchandise were necessary for the family and for Annie Johnson and her children; that such items as were sold were charged to Jim Johnson, Sr., on the books kept by plaintiff; that in the month of November, 1913, this open account was in amount $187.40; that on March 30, 1914, it was for $187.40; that on March 30, 1914, Jim Johnson, Sr., was away from his wife, Annie Johnson; that Annie Johnson and her minor son Jim Johnson, Jr., on March 30, 1914, bought a horse from the plaintiff to he used hy them in the.year 1914 for the purpose of making a crop, and that they agreed to pay plaintiff for this horse the sum of $75; that they also agreed to pay $100 of the old account, and that ho then prepared a note for $175 to embrace $100 of the old account and $75 for the purchase price of the horse; that after this note was made out by plaintiff it was signed by Annie Johnson and Jim Johnson, Jr.; and that this is the note on which the suit is based. The consideration for the note was to cover part of the old account owing to O. E. Holland by Jim Johnson, Sr., to cover the purchase price of the horse and to cover future advances that Annie Johnson and Jim Johnson, Jr., might buy at plaintiff’s store. The note should be credited with $75, the value of the horse, which the plaintiff took back.”
    Annie Johnson testified:
    “That she and Jim Johnson were married about 20 years ago; that they were living together as husband and wife in 1912 and 1913; that in October, 1913, her husband got a job on a section gang in Houston and went there to work; that he came back in 1916; that while he was at his work in Houston he sent her $25 to $30 every month; that he at various times sent her groceries and other things; that they were not separated or divorced.”
    The court rendered judgment for plaintiff against Annie Johnson for the amount of the note, less $75, and that plaintiff take nothing against Jim Johnson, Sr., or Jim Johnson, Jr. The defendant Annie Johnson appeals.
    Jones & Chamness, of Henderson, for appellant. H. E. Elorey and C. E. Holland, both of Overton, for appellee.
   LEVY, J.

(after stating the facts as above). The evidence establishes the facts that Annie Johnson, the appellant, is a married woman, not separated nor divorced from her husband, and that the consideration for the note was a previous debt due to appel-lee by the husband of appellant. A married woman is not liable on a note executed by her where the consideration was a previous debt due the payee from her husband. Red River National Bank v. Ferguson, 192 S. W. 1088; Dry Goods Co. v. Carter, 52 Tex. Civ. App. 294, 113 S. W. 782; Bank of Tinkham, 195 S. W. 880; Akin v. Thompson, 196 S. W. 625. The appellee testified, and there is no other evidence, “that such items as were sold were charged to Jim Johnson, Sr., on the books kept by plaintiff.” This in connection with the further circumstances makes the debt that of Jim Johnson, Sr. Menard v. Schneider, 48 S. W. 761; Stro-ter v. Brackenridge, 102 Tex. 386, 118 S. W. 634.

The judgment against Annie Johnson is reversed; and judgment is here rendered in favor of appellant, Annie Johnson, with costs of the trial courts and of appeal. The judgment in favor of Jim Johnson, Sr., and Jim Johnson, Jr., not being appealed from, will remain undisturbed.
      feaPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes