text:
    PECK v. LOUX et al.
    (No. 7451.)
    (Court of Civil Appeals of Texas. Dallas.
    April 8, 1916.
    Rehearing Denied May 13, 1916.)
    1. Principal and Agent @=>123(10) — Power of Agent — Compeomise of Debts — Evidence.
    Where the defense to suit upon a note and to foreclose a land lien securing it was that the agent of plaintiff had accepted a conveyance of the land in payment of the debt, evidence held insufficient to show that the agent had the authority to accept such conveyance as payment, where no similar transaction or authority in his dealing with the principal over a period of years was shown.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. § 429; Dec. Dig. @=>128(10).]
    2. Evidence @=>317(7) — Hearsay — Statements of Agent.
    Where there is no proof of agent’s authority to accept a conveyance of land securing a debt in payment of the debt, testimony of one to whom the agent conveyed such land that the agent, who had since died, stated that the land had been taken in payment of the debt, is inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1180; Dec. Dig. @=>317(7).]
    3. Evidence @=>317(7) — Heaksay—1Transac-tions with Agent;
    Where there is no proof of agent’s authority to accept a conveyance of land securing a debt in payment of the debt, testimony of the-debtor of a conversation with the agent, who has since died, in which they agreed to have the debt paid by conveyance of the land, is inadmissible as hearsay.
    [Ed. .Note. — For other cases, .see Evidence, Cent. Dig. § 1ÍS0; Dec. Dig. @=>317(7).]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Abbie E. Peck against G. T. Loux and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    McReynolds & Hay, of Sherman, for ap-peilánt. Brame & Brame and Jones & Has-sell, all of Sherman, for appellees.
   TALBOT, J.

Mrs. Abbie E. Peck, the appellant, instituted this suit on December 10, 1912, against the appellees, G. T. Loux and wife, Helen E. Loux, and J. B. Savage, on a promissory note for $1,100, dated July 5, 1905, signed by G. T. Loux and Helen E. Loux, payable to the order of A. B. McKean five years after date, bearing interest at maturity at 8 per cent, per annum, and providing for 10 per cent, on the amount as attorney’s fees in case of legal proceedings thereon; the same having been indorsed and transferred by A. B. McKean to appellant. The note was secured by deed of trust on real estate situated in Grayson county, Tex., which was executed by the appellees G. T. Loux and Helen E. Loux to J. D. Haizlip, trustee. Judgment was sought for the amount due on the note, including attorney’s fees, against appellees G. T. Loux and Helen E. Loux, together with foreclosure of lien on the land as against all of the appellees; it ■being alleged that the property described in the deed of trust had subsequent to the execution and recording thereof been conveyed subject to said lien by G. T. and Helen B. Loux to J. D. Haizlip, and by J. D. Haizlip to the appellee J. B. Savage; that the note was wholly unsatisfied, and had been placed in' the hands of attorneys, and suit instituted thereon after default. Appellees in their respective answers filed admitted the execution of the note and the deed of trust on the land as alleged by appellant, the transfer of the land by G. T. and Helen Loux to J. D. Haiz-lip and by J. D. Haizlip to J. B. Savage, but denied liability on the note and appellant’s right to recover thereon, alleging, in substance, that J. D. Haizlip had for a long time prior and subsequent to the execution of the note and deed of trust acted as the general agent of appellant in Grayson conny, Tex., having authority to act for appellant as her agent in lending money on real estate security and collecting the same; that the land described in the deed of trust had been conveyed to J. U. Haizlip, as agent and trustee for appellant or the holder of the note sued on, in consideration of the cancellation and discharge thereof, and without other consideration ; that J. D. Haizlip had authority as general agent to bind appellant by his acts, or, if he had no such actual authority, the same was implied, and that appellant was estopped to deny the same, because she had for a long time publicly and notoriously held him out as having such authority, and appel-lees believed that he had su.ch authority, and were thereby induced to deal with him as such agent; that Haizlip made demand on appellees Loux and wife for payment of the note, and they, at the solicitation of Haizlip, had conveyed to him the land in settlement and satisfaction of the note, ati the time. of the transaction receiving from Haizlip a receipt releasing them from further liability.

Appellee J. B. Savage further alleged that J. D. Haizlip represented to him that the note sued on had been paid, but a release had not been obtained and recorded on account of his negligence; that he would communicate with the holders of the note and secure a release; that, relying upon such representations, he purchased the property from Haiz-lip, paying a valuable consideration therefor, but demanded that said agreement with reference to the securing of release be incorporated in the deed, whereupon the statement was by Haizlip written in the deed, which appellee “supposed to be, and relying upon its being,” a statement that the debt had been paid, and that a release would be secured.

Appellant by supplemental petitions expressly denied the authority of J. D. Haiz-lip to' act as her agent, either general or special; denied that he had acted or was authorized to act as her agent in the transactions with appellees; denied that the land was conveyed by appellees Loux and wife to Haizlip, as trustee, agent, or representative of the holder of the note, or in satisfaction of same; and alleged that Haizlip, in purchasing the land, acted for himself alone, taking deed in his own name. Appellant further denied that Haizlip was clothed with authority, either real or apparent, to act as her agent or to collect said money, or to accept a conveyance of the land in settlement thereof; denied that- she had ever held him out to the public as her agent as alleged by appellees, or that Haizlip had ever represented himself to have such authority or held himself out as her agent as alleged by ap-pellees, or that appellees dealt with him under such belief. She further alleged that Haizlip, in fact, bought the land subject to the lien securing note sued on, and that Savage purchased from Haizlip subject to said lien in full knowledge of its existence and recognition of its validity, relying on Haizlip’s agreement to discharge the note and secure release of the lien, as recited in the deed to Savage. Appellees by supplemental answers denied all affirmative matters pleaded by appellant in her supplemental petitions.

The case was submitted to the jury on special issues, and upon the findings made judgment was rendered that appellant take nothing and that appellees recover their costs.

A. B. McKean, to whom the note was made payable, lived in the city of Troy, state of Pennsylvania, and the appellant, Mrs. Peck, also maintained her residence at said city, but lived a great deal of the time with her son-in-law at Lafayette, Ind. Mrs. Peck had been a widow since 1900, and her business in a large measure had been transacted by the said McKean. J. D. Haizlip, who is named as trustee in the deed of trust given by G. T. Loux and wife to secure the payment of the note sued on, in his lifetime lived at Sherman, in the state of Texas. A large part of his business was the loaning of money for the said A. B. McKean, and, through the said McKean, for Mrs. Peck. Prior to 1900* and during the lifetime of her husband, the said Haizlip had transacted such business for the husband of Mrs. Peck. At different times during the years intervening between 1900 and the death of the said Haizlip he (Haizlip) made loans for A. B. McKean, and, through the said A. B. McKean, for Mrs. Peck, and had received money at various’ times and remitted the same to A. B. Mc-Kean for Mrs. Peck from parties whose notes were held by Mrs. Peck when said notes were not in his possession. McKean testified, however, that Haizlip was not authorized by Mrs. Peck or by him to make such collections. The money loaned on the note in question was the property of appellant, Mrs. Peck, and the note was taken and made payable to the order of the said A. B. McKean by mistake, and by the said McKean assigned and transferred without recourse to Mrs. Peck. The deed of trust executed at the time of the execution of the $1,100 note sued on secured said note, and also five .other notes for $88 each, said last-named notes maturing respectively one, two, three, four, and five years after date, and, according to the recitations in the deed of trust, appeared to be the annual interest of 8 per cent, on said $1,100 note for the years it was to run. All of these transactions were had with J. D. Haizlip. The money loaned, however, was furnished by the said A. B. McKean, and was the money of appellant, Mrs. Peck. On the 11th day of February, 1910, there was due and unpaid, principal and interest, on the note in controversy, $1,500, and the appellee G. T. Loux testified that on that date he and his wife deeded the land upon which the deed of trust was given to secure the payment of said indebtedness to the said J. D. 1⅞⅛ iip for the sole consideration of the cancellation of said indebtedness. The consideration expressed in the deed of the said Loux and wife conveying said land to the said Haizlip, however, is $1,000, and said deed recites:

“This deed is made to said J. D. Haizlip subject to our indebtedness against said above-described land held by A. B. McKean, amounting at this date as shown by the mortgage records of Grayson county, Tex.”

On May 25, 1010, the said J. D. Haizlip conveyed the said land to appellee J. B. Savage for an expressed consideration of $3,250, and Savage testified, in substance, on direct examination, that Haizlip told him that Loux’s indebtedness had been paid and satisfied by Loux and wife deeding to him (Haizlip) the land upon which the said deed of trust was given, but that he (Haizlip) had negligently failed to get a release of said indebtedness and deed of trust lien; that the note was in the hands of McKean, and that he would within 90 days procure a release of the same; that he asked Haizlip to place in the deed that he was to secure a release in 90 days; that he believed the representations of Haizlip that the note had been paid, and first learned that it was claimed that it had not been paid when he received the citation served on him in this case. On cross-examination he testified, among other things, in substance, that Haizlip told him that Loux had fallen down in his payments, and that he (Haizlip) had bought the place from Loux to pay off the debt; that he (Haizlip) had agreed with Loux to pay the debt off; and that he had released Loux. He further said:

“I was not satisfied with that, and wanted it put in the face of the deed that Haizlip was to pay the note off and get a release. It was the understanding that he was to pay off this note and get a release within 90 days. It was at my request that Haizlip was to put in the deed that he was to get a release in 90 days. 'Ihat Haizlip wrote in the deed, ‘I am to pay off and discharge a mortgage held on the above land by A. B. McKean and procure a release of same in 90 days,’ and until I read that I never had heard of Mrs. Abbie E. Beck. I did not know that she was holding this note.”

The deed from Haizlip to Savage has the following recitation:

“I am to pay off and discharge a mortgage on the above land held by A. B. McKean and procure a release of same in 90 days.”

The deed from Loux and wife to J. D. Haizlip was recorded in the deed records of Grayson county, Tex., on the 14th day of February, 1910, and the deed from Haizlip to J. B. Savage was so recorded the 1st day of June, 1910. According to the testimony of G. T. Loux, which seems to be uncontra-dicted, no demand was made on him for the payment of the note sued on or interest notes after February 11, 1910, the date of the Loux deed to Haizlip, until after the death of Haizlip. After Haizlip’s death, and in July, 1912, A. P. McKean and W. S. Potter, attorney for Mrs. Peck, were in Sherman, Tex., and while there Mr. Brame, attorney for ap-pellee Savage, presented a release of the note sued on and asked McKean to execute it. McKean looked over the release and asked Brame about the note, and Brame told him that he knew nothing about it; that he had never seen it, but had been informed that it had been paid. McKean said he thought he had the note among his papers somewhere and would talk the matter over with Mr. Potter; that the Haizlip estate had complicated their affairs a great deal, and he hoped to do something about the note before he left Sherman. Brame saw McKean a day or two after that conversation, but nothing was said or done about the release of the note, and the release was never executed. The correspondence between McKean and Haizlip with reference to their business matter and with reference to the matter in controversy was not preserved by McKean. According to the testimony offered in behalf of the appellant, J. D. Haizlip negotiated the loan and had the note and deed of trust involved in this suit executed and forwarded to A. B. McKean at Troy, Pa. When Haizlip had a loan that he desired to negotiate for any of his clients he would submit the same for McKean’s consideration, and, if McKean had the money and considered the loan desirable, he would purchase the same. Such was their course of dealing in all the transactions that occurred between them. Haizlip was not authorized to' act for appellant, Mrs. Peck, in the transaction involved in this suit or similar transactions, except as authorized by McKean. No business relations existed between appellant and J. D. Haizlip except through McKean. McKean made loans for her, collected interest and principal, and accounted to her from time to time. He had no power of attorney from her to make the loan here in question, but general authority to act as her agent. He had authority to collect money for appellant on notes or other obligations, but he had no authority to take deeds for land in payment of such obligations, and never had taken any. J. D. Haizlip had no authority from appellant, Mrs. Peck, or from McKean, to collect notes in money for appellant or to take a conveyance from Loux and wife for the land in payment of the note sued on, or to take a conveyance of land from any one in payment of any loan, and he never took such a conveyance for such purpose unless he did so from Loux- and wife in settlement of the note sued on and the unpaid interest due thereon. When notes were due McKean sometimes sent them to Haizlip, who would collect in money and remit, but otherwise he had no authority to collect either in money or any other character of property. He had no authority whatever, written or oral, to take the deed from Loux or to release any lien held either by appellant or McKean, and neither the appellant nor McKean had any knowledge of the transaction between G. T. Loux and wife and J. D. Haizlip in which Loux and wife executed to Haizlip a deed dated February 11, 1910, conveying tlie land described in the deed of trust given to secure the note sued on until after Haizlip ⅛ death and a short time before this suit was brought. Neither Haiz-lip nor Loux communicated with McKean or Mrs. Peck, the appellant, in any manner whatever about the transaction. The note sued on at the time of that transaction was in the possession of McKean or appellant, and had never been in the possession of Haizlip for collection, and he had no authority to collect it either in money or land.

The assignments of error need not be stated and discussed seriatim. The main contention of appellant is, in effect, that the judgment of the district court should be reversed because there was no evidence introduced showing that she, or A. B. McKean for her, had ever placed the note sued on in the hands of J. D. Haizlip for collection or conferred on him any authority, either actual or ostensible, to accept a conveyance of the land, described in the deed of trust given to secure the payment of said note, in payment or satisfaction of the same, or that said note had otherwise been paid off and discharged. On the other hand, the contention of the ap-pellees is, in substance, that the said Haizlip had at least the implied power to cancel the note by accepting a conveyance of the said land, and also that by reason of the long agency of Haizlip, the manner in which he was permitted to deal with those for whom he had loaned money, appellees were warranted in dealing .with him as one who had such power, and therefore appellant was es-topped to deny such power. Appellees further contend that the circumstances of the case, as brought before the jury in the trial thereof, were sufficient to sustain the finding of the jury that appellant knew that the conveyance of the land had been made by Loux and wife to Haizlip, and are such as to sustain all the findings of the jury, which were in every respect favorable to appellees.

We do not, after a very careful consideration of all the evidence, agree with the contentions of the appellees, but concur in the contention of the appellant to the effect that the evidence is insufficient to show that either she or A. B. McKean as her agent ever conferred on' J. D. Haizlip authority, either actual or ostensible, to accept a conveyance of the land on which there was a lien to secure the payment of the note in question in payment of said note. Without such power being so conferred, he was not authorized to receive the conveyance from Loux and wife in payment of the note sued on. If it should be admitted that Haizlip was the agent of appellant and had authority to collect the note sued on in money .when it became due, the evidence is not of such probative force as to justify the conclusion that he had either express or implied authority to accept a conveyance to himself of the land in settlement thereof. His authority to place loans for appellant and McKean when directed so to do and to take notes evidencing such loans conferred no power to collect such notes, if at all, by taking a conveyance of land in payment of the same, and we are unable to see anything in the nature of Haiz-lip’s agency or appellant’s habits of dealing with him, as disclosed by the evidence, from which such power or authority could be implied. In all their dealings there had been no similar transaction, or, if so, it was not shown by the evidence. McAlpin v. Cassidy, 17 Tex. 450; Belton Compress Co. v. Belton Brick Mfg. Co., 64 Tex. 337; Western Brass Mfg. Co. v. Maverick, 4 Tex. Civ. App. 535, 23 S. W. 728. If the probative force of the testimony “be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony in legal contemplation falling short of being ‘any evidence.’ ” Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. No express authority being shown for J. D. Haizlip to. receive a conveyance of the land in satisfaction of the note in suit, and no sufficient circumstances appearing from which authority could be implied, the findings of the jury upon all the questions submitted relating to that issue which were favorable to appellees, and necessary to form the basis of the judgment rendered, and which are attacked by appellant on this appeal, find no support in the evidence, and the acceptance of the conveyance by Haizlip was not binding on appellant, did not operate to discharge the note, and appellant’s motion for a new trial should have been grantetd.

The court permitted the appellee Savage to testify, over the objections of the appellant, that J. D. Haizlip told him that 6. T. Loux did not pay the interest on the note sued on as it fell due, and that he had sold the land to him in order to pay off said note and interest, and that it .was through his (Haizlip’s) negligence that a release of the note and lien on the land had not been obtained ; that the note sued on had been paid by Loux deeding the property back. In view of the insufficiency of the evidence to show either express or implied authority on the part of J. D. Haizlip to accept a conveyance of the land in question in payment of the note sued on, we think this testimony was inadmissible. In the state of the evidence now before this court the testimony was hearsay, we think, and should have been excluded. The court also permitted the ap-pellee G. T. Loux to testify, over the objection of appellant, that he got behind with the payments on the note sued on, and that he went to J. D. Haizlip and told him that he wanted to “deed the land over in payment of that note in full, which amounted to about $1,500,” and that Haizlip agreed to accept the deed, and that he made it; that he paid off and settled the note that way. Appellant also complains of the admission of this testimony, and, for the reason given above in holding that the testimony of Savage should not have been admitted, we think this testimony was not admissible. In the absence of authority on the part of Haizlip to receive a conveyance of the land in satisfaction of the note, the transaction between Loux and Haizlip, appellant not being present, and not being a party to the same, .was a transaction between third parties, and the statements in relation thereto hearsay and inadmissible. Whether this testimony and the testimony of Savage which we have held to be incompetent shall become admissible upon another trial will depend upon the sufficiency of the testimony upon that trial to show that it was within the scope of Haizlip’s authority as agent of appellant to receive in satisfaction of the note sued on the conveyance of the land from Loux.

What we have said practically disposes of all the material questions raised, or, if not, those not disposed of will not probably arise on another trial.

For the reasons indicated, the judgment of the court below is reversed, and the cause remanded.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    GRISHAM v. GRISHAM.
    (No. 8367.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 15, 1916.)
    1. Divorce <§£=>149 — Power of Court — Jury Case — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4033, providing that in a divorce suit the decree shall be rendered upon satisfactory evidence upon the verdict of a jury or the judgment of the court affirming the material facts alleged in the petition, the judge may refuse to render judgment for divorce if the evidence, is not satisfactory to himself, even though it' is a jury case.
    [Ed. Note. — For other cases, 'see Divorce, Cent. Dig. §§ 496 — 498; Dec. Dig. <§£=>149.]
    2. Divorce <§=184(6) — Appeal—Reversal— Insufficiency of Evidence.
    Appellate courts may reverse a judgment granting a divorce where the case is tried before or without a jury, because, in their opinion, the evidence is insufficient to sustain the material allegations alleged and necessary.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 572; Dec. Dig. <§=184(6).]
    3. Divorce <§=>184(6) — Appeal—Reversal oe Trial Court.
    An appellate court may reverse the judgment of the trial court refusing a decree of divorce and grant plaintiff a divorce on the facts.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 572; Dec. Dig. <§=184(6).]
    4. Divorce <§=149 — Special Verdict — Effect-Statutes.
    Under Const, art. 1, § 15, art. 5, § 10, touching trial by jury, Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 19S4a, 1986, touching the submission of a cause upon special issues and the conclusiveness of a special verdict, and under article 4633, providing that in all suits for divorce the decree of the court shall be rendered upon satisfactory evidence upon the verdict of a jury, and, if a jury has not been demanded, upon the judgment of the court affirming the material facts alleged in the petition, the court, where the jury has found by special verdict that the necessary facts constituting legal grounds for divorce are wanting, may not disregard its verdict and grant a divorce to either party.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 496 — 498; Dec. Dig. <§=149.]
    5. Divorce <§=151 — Setting Aside Verdict —Power of Court.
    The court, in a divorce suit, may set aside the verdict of the jury before judgment.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 509-513; Dec. Dig. <§=151.]
    6. Divorce <§=151 — Disregard of Verdict —Power of Court.
    The court, trying a divorce suit, may grant new trial after judgment entered upon the jury’s verdict.
    [Ed. Note. — For other eases, see Divorce, Cent. Dig. §§ 509-513; Dec. Dig. <§=151J
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Suit for divorce by Myrtle Grisham against W. P. Grisham. From a judgment granting defendant a divorce on his cross-plea, plaintiff appeals.
    Judgment reversed, and cause remanded.
    T. R. Boone, of Wichita Falls, for appellant. W. F. Weeks, of Wichita Falls', for ap-pellee.
   BUCK, J.

This is a divorce suit filed by appellant. It will be necessary to consider only one question presented. The cause was submitted to the jury on special issues; the questions and answers thereto being as follows:

(1) “Was the defendant, W. P. Grisham, guilty of cruel treatment towards plaintiff, Myrtle Grisham, of such a nature as to render their further living together as husband and wife insupportable? Answer yes or no.
“No.”
(2) “Was the plaintiff, Myrtle Grisham, guilty of cruel treatment towards defendant, W. P. Grisham, of such a nature as to render their further living together as husband and wife insupportable? Answer yes or no.
“No.”
(3) “Is the plaintiff, Myrtle Grisham, a suitable and proper person to have the care, custody, and control of the minor child, Erma Lucile Grisham? Answer yes or no.
“Tes.”
(4) “Is the defendant, W. P. Grisham, a suitable and proper person to have the care and custody and control of the minor child, Erma Lucile Grisham? Answer yes or no.
“Tes.”
(5) “Considering only the best interest of the child, Erma Lucile Grisham (and nothing else), in whose care, custody, and control should this child be placed?
“Answer: Her father and mother.”
(6) “Did the defendant transfer to the First National Bank of Electra the sum of $340 out of the homestead insurance money for the purpose of defrauding the plaintiff? Answer yes or no.
' “No.”
(7) “(a) Did W. P. Grisham, B. B. Greever, or D. T. Cross fraudulently transfer to A. N. Treece $525 of the furniture insurance for the purpose of defrauding the plaintiff, Myrtle Grisham? Answer yes or no. If you answer yes, then state which one or ones.
“No.
“(b) Was the transfer, if any, of this fund made for a valuable consideration? Answer yes or no.
“Yes.”
(8) “(a) Did W. P. Grisham and B. B. Greever fraudulently transfer to D. T. Gross $251 of the furniture insurance for the purpose of defrauding the plaintiff, Myrtle Grisham? Answer yes or no. If you have answered yes, -then state which one or ones.
“No.
“(b) Was the transfer, if any, of this fund made for a valuable consideration? Answer yes or no.
“No.”
(9) “Did W. P. Grisham, B. B. Greever, D. T. Cross, T. M. Hoxie, and the First National Bank of Electra, Tex., or any of them conspire together and fraudulently transfer to themselves and to others $850, the homestead insurance or any part thereof, for the purpose of defrauding the plaintiff? Answer yes or no. If you answer yes, which ones and how much?
“No.”
■ (10) “(a) Did W. P. Grisham, B. B. Greever, and T. P. Grisham conspire and fraudulently transfer to T. P. Grisham the tailoring and pressing shop and one buggy and horse, for the purpose of defrauding the plaintiff out of her rights therein? Answer yes or no.
“No.
“(b) Was this transfer, if any, made for a valuable consideration? Answer yes or no.
“Yes.”
(11) “Were all of the assignments above mentioned made, if they were made, for the purpose of paying the community debts of the plaintiff and defendant? Answer yes or no.
“No.”
(12) “If you have said that all of such assignments were not made to pay community debts, then state which of them, if any, were made to pay community debts. (If you have answered issue No. 11 in the affirmative, then you need not answer this question.)
“$525 to A. N. Treece.”
(13) “What, if any, community property is now owned by W. P. Grisham and Myrtle Grish-am?
“Answer: Order to B. B. Greever $251. Gash not accounted for, $268.12. Two houses, and lots, Woodruff Heights, Electra, Texas. One homestead lot, Electra, Texas. One piano.”
(14) “What amount of community debts, if any, is now owed by W. P. Grisham and Myrtle Grisham?
“Balance due on piano.”

Whereupon the court, without setting aside the verdict of the Jury and without hearing further testimony, granted a divorce to defendant on his cross-plea. Plaintiff has appealed, and has assigned error to the action of the court in so doing.

The Constitution of Texas (article 1, § 15) provides:

“The right of trial by jury shall remain inviolate. The Legislature may pass such laws as may be needed to regulate the same and to maintain its purity and efficiency.”

Article 5, § 10, Id., reads in part as follow's:

“In the trial of all causes in the distinct courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury.”

Article 1984a, Vernon’s Say les’ Texas Civil Statutes, provides for the submission of a cause upon special issues raised by the pleadings and the evidence in the case. Article 1986, Id., provides:

“A special verdict found under the provisions of the two preceding articles shall, as between the parties, be conclusive as to the facts found.”

It has been held that where a cause has been submitted on special issues, the trial court is not authorized, in rendering judgment, to disregard the finding of the jury on a material issue, even though such finding has no support whatever in the testimony. Scott v. F. & M. Nat. Bank, 66 S. W. 485. It has also been held that a special verdict, though comprising many findings, shall be one verdict, and no material part of it can be set aside for want of sufficient evidence to sustain it without setting it all aside. Casey-Swasey Co. v. Manchester Fire Assur. Co., 32 Tex. Civ. App. 158, 73 S. W. 865. It has been further held that the trial judge may, on motion, set aside the jury’s findings as a whole, and grant a new trial, but he cannot set aside part of them, substitute his own for those set aside, and thereupon render judgment. Arkansas Fertilizer Co. v. City Nat. Bank, 137 S. W. 1179.

Article 4633, Vernon’s Sayles’ Texas Civil Statutes, provides in part that:

“In all suits and proceedings for divorce from the bonds of matrimony, the defendant shall not be compelled to answer upon oath, nor shall the petition be taken as confessed for want of answer, but the decree of the court shall be rendered upon full and satisfactory evidence, upon the verdict of a jury, if a jury shall have been demanded by either party, and, if not, upon the judgment of the court affirming the material facts alleged in the petition.”

The courts have construed the use of the expression, “upon full and satisfactory evidence,” as giving to the trial judge the authority to disregard the verdict of a jury favorable to the relief prayed for, and to refuse to enter a decree granting such divorce. The judge may refuse to render a judgment for divorce if the evidence is not satisfactory to’ him, even though it be a jury case. Moore v. Moore, 22 Tex. 237; Haygood v. Haygood, 25 Tex. 576; Ingle v. Ingle, 131 S. W. 241; Wright v. Wright, 50 Tex. Civ. App. 459, 110 S. W. 158.

Appellate courts may reverse a judgment granting a divorce, where the case is tried before or without a jury, because in their opinion the evidence is insufficient to sustain the material allegations alleged and necessary. Lohmuller v. Lohmuller, 135 S. W. 751; De Fierros v. Fierros, 154 S. W. 1067. Or the appellate court may reverse the judgment of the trial court refusing the decree of divorce, and grant plaintiff a divorce on the facts. Jernigan v. Jernigan, 37 Tex. 420.

But we have not been cited to any case, and we have found none, holding that where the jury has found that the necessary facts constituting the legal ground for divorce are w’anting, that the court may disregard their verdict and grant a divorce to either party. Of course, the court may set aside the verdict before judgment, or grant a new trial after judgment, or he may disregard the verdict of the jury to the effect that the necessary facts entitling the plaintiff to a verdict exist, and refuse the divorce. But we do not believe that the court may disregard the verdict of the jury, and especially on special issues, which affirmatively finds that neither plaintiff nor defendant has just grounds for divorce, and proceed on his own motion to enter the decree granting the divorce, either to the one or to the other. We think the provision of the statute that “the decree of the court shall be rendered upon full and satisfactory evidence,” and the decisions- of our appellate courts hereinabove cited, merely emphasize the insistence of the law that no dissolution of the bonds of matrimony shall be granted for trivial causes, or unless the party seeking such relief shall definitely and unequivocally bring himself within the statutory requirements provided. Though our law regards the marriage relation as being based upon a civil contract, yet the interests of society, the welfare of the children who are the fruits of the marriage relation, demand that such relation shall not be lightly regarded nor dissolved except for good and sufficient cause, rendering the further continuance of it a source of manifest danger or unhappiness to one or the other of the parties thereto. The permanence of the marriage relation is essential to the happiness, well-being, and virtue of society.

While the evidence in this case may have justified the court in granting a divorce to either party, according as credence was. given to the testimony of the one or the other, yet the jury, to whom the issues of fact were submitted, have found against either conclusion. Until that verdict is set aside, we believe the court is precluded from entering a judgment decreeing a divorce to either party. To hold otherwise, we believe, would be to render nugatory the provisions of the statutes cited and quoted.

For the reasons indicated, the judgment of the trial court is reversed, and the cause remanded.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    FEAGINS et al. v. TEXAS MACHINERY & SUPPLY CO.
    (No. 7457.)

    (Court of Civil Appeals of Texas. Dallas.
    March 18, 1916.
    On Rehearing, May 13, 1916.)
    1. Evidence <§=*131 — Relevancy — Similar Facts.
    In an action on notes given in payment of an engine, where one of the issues raised by defendants’ pleading and evidence was that the engine had failed to develop sufficient power to operate the gin outfit at the necessary speed to properly separate the lint from the seed as guaranteed by plaintiff, evidence in .rebuttal of defendants’ evidence in support of such issue that a witness had a gin plant substantially the same as that of defendants,’ constructed by the same factory, and operating the same type of engine sold to the defendants, and that such engine had for three years furnished satisfactory power for operating his gin plant, in view of the similarity in all essential particulars, was admissible, subject to the court’s discretion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 399-402; Dec. Dig. <@=*131.]
    2. Sales <@=* 181(5) — Evidence — Relevancy.
    In such action testimony of a farmer who had two bales of cotton ginned by defendants as to what kind of a turnout he got from those bales of cotton, to show that the turnout was poor, in that the quality of lint was not what it should have been, and resulted from the failure of the engine to furnish sufficient power to speed the gin, in connection with testimony that speed in operating gins produces a greater quantity of lint and that speed or lack of speed would not alone cause a poor turnout in the quantity of lint but that the condition of the cotton and the soil on which it was grown contributed to that result was inadmissible as the inference would be only that the gin was run at too slow a speed and not that it did not have power to run at a greater speed.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 480; Dec. Dig. <§=*181(5).]
    3. Evidence <@=*317(10) —Hearsay —Power oe Engine.
    In such action testimony of a witness who was operating a competing gin that defendants’ former customers told him that they brought their cotton to his gin because they got a poor turnout at defendants’ gin, due to the insufficient power of the engine, was hearsay and properly excluded.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1183; Dec. Dig. <@=*317(10).]
    4. Evidence <§=*242(1) — Action eor Price-Admissions oe Agent.
    In such action, where defendants’ bookkeeper was one of those elected by defendant to be present when the engine was tested to observe the amount of fuel consumed to determine whether plaintiff was within its guaranty as to cost, and where he was present, his statement in writing, as a part of the report of the others present, that the fuel consumed by the engine was less than that guaranteed in the contract, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 893; Dec. Dig. <@=*242(1).]
    5. Trial <@=*352(4) — Action eor Price — Special Issues.
    In an action on notes given for the price of an engine sold for use in defendants’ cotton gin, ■where defendants set up that. the engine never performed as guaranteed by the contract and as claimed by plaintiff, that plaintiff agreed to disregard the former test and to thereafter test the engine, at which time it failed to develop the power guaranteed, and where plaintiff denied the making of any new contract or a surrender of any rights under the original contract or test, but admitted the single demonstration after the original test in order to satisfy defendants, and where there was evidence in support of the pleading and the reply, the submission of an issue as to whether the later test was merely a demonstration in an effort to settle the differences arising out of the contract was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 840; Dec. Dig. <@=*352(4).]
    6. Sales <@=*441(3) — Action eor Price — Guaranty — Sueeiciency oe Evidence.
    Evidence in an action on notes given for an engine sold the defendants for use in its cotton gin held to sustain the finding that the engine could operate the gin as guaranteed.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1279, 1280; Dec. Dig. <@=*441(3).]

      7. Appeal and Error <§=>750(4) — Question of Fact — Review.
    An assignment that there was no evidence in the record to sustain a finding of the jury requires the Court of Civil Appeals to examine the evidence and determine whether there is contained therein testimony which will support the verdict and judgment.
    [E'd. Note. — For other eases, see. Appeal and Error, Cent. Dig. § 8079; Dec. Dig. <§=>750(4).]
    8. Appeal and Error <§=>981 — New Trial <§=>99 — Discretion of Trial Court — Motion for New Trial — Newly Discovered Evidence.
    A motion for a new trial on the ground of newly _ discovered evidence is addressed to the trial judge’s sound discretion, and his action thereon will not be reviewed, unless it affirmatively appears that he has abused such discretion.
    [Ed. Note. — For other cases* see Appeal and Error, Cent. Dig. § 8876; Dec. Dig. <§=>981; New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. <§=>99.] ■
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the Texas Machinery & Supply Company against N. B. Feagins and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    John H. Sharp, of Ennis, and Crane & Crane, of Dallas, for appellants. Hiram F. Lively and Burgess, Burgess, Germany & Chrestman, all of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellee sued appellants upon two promissory notes aggregating $2,-294.25, executed by appellants and payable to appellee, seeking judgment for the principal, interest, attorney’s fees, and foreclosure of lien upon an engine in payment of which the notes were given. Appellants admitted execution of the notes and the lien, but alleged that the consideration therefor had failed. In connection with such plea it was alleged that the engine was guaranteed to be of good material, to furnish sufficient power to operate a four 70 saw Continental cotton gin plant in a steady and reliable manner, so that the saws used in the. gins would maintain a specified and necessary speed, and at a specified cost, in consideration of which appellants, in addition to executing the notes, paid appellee $764.75 in cash and $200.20 on freight when the engine was installed, upon the fraudulent representation by appellee that the engine had been tested and would do its guaranteed work. Appellants also alleged, in effect, that the engine failed to do the work it was guaranteed to do, and that after the engine failed so to perform its work a new contract was entered into between the parties in which it was agreed that the engine would be tested anew, and, if it failed to perform, the notes would be canceled and all payments refunded, and that it did on the last test fail to meet the guaranty. Prayer was that the notes and lien be canceled and appellants recover the cash items paid. Appellee, in response, to appellants’ pleading, averred i that the engine had been tested and unconditionally accepted by appellants under the provisions of a contract between the parties, and denied the making of the new contract, as well as the other affirmative matter pleaded by appellants. There was trial by jury, to whom the court referred for their determination special issues of fact. Upon the findings of the jury judgment was for appel-lee. Hence this appeal.

The sale of the engine to appellants and the execution of the notes originated in a written contract and specifications between the parties. The contract and specifications are not in dispute, but it is necessary to an intelligent understanding of the issues that their salient and material provisions be stated. By the contract, which is dated July 12, 1912, appellee sold appellants, at an agreed price, an engine known as horizontal type N 60 brake horse power, designed for cotton gin service, to be delivered, erected, and tested in appellants’ plant in Alsdorf under the superintendence of a competent engineer furnished by appellee at the expense of appellants. The engine was guaranteed to be of good workmanship and material, and when properly installed to furnish needed, steady, reliable power for operating a four 70 saw Continental cotton gin plant to normal capacity at a specified operating fuel expense, using either gasoline, kerosene, or distilled oil as fuel. After test, hot to exceed five days, appellants, if the engine performed according to guaranty, were to give appeliee unconditional written acceptance of same. Notes, being the ones sued on, were to be executed, secured by lien upon the engine. The contract also recited that it covered all matters relating to the sale and excluded any oral changes or modifications thereof.

The engine was installed September 14, 1912, but for reasons unnecessary to enumerate could not be tested at that time. On September 28, 1912, however, the agreed test was made at which time appellants signed .and addressed to appellee a memorandum stating:

“Mr. J. S. Curtis, erecting engineer, has properly installed and tested the machinery covered by the contract between Texas Machinery & Supply Company and Feagins & Atwood, dated July 5, 1912¡ and has demonstrated that said machinery is in accordance with and has operated according to the specifications and guaranty set forth in said contract, and is now operating successfully and is accepted.’’

In addition to the foregoing appellants introduced testimony tending to support the allegations of the defense, and the appellee introduced testimony tending to dispute such allegations. The evidence so introduced was sufficient to have supported a finding of the jury either way.

The first assignment of error challenges the action of the court in admitting testimony. Appell.ee, in rebuttal of the evidence introduced by appellants in support of their defensive matter, offered E. S. Brack as a witness, who testified, in substance, that he had had an .experience of fifteen years in ginning cotton, and had for four years been conducting a gin on the line of Hunt and Delta counties. He further testified that his gin plant was substantially the same as that of appellants in reference to the number of stands, size and number of saws, and other details, and was constructed by the same factory that constructed appellants’ outfit, and that he operated same with the same type of engine that was sold to appellants and manufactured by the same concern. He then testified that said engine had for three years furnished satisfactory power for operating his gin plant. One of the issues raised by appellants in their pleading and evidence was that the engine sold them failed to develop power sufficient to operate the gin outfit at the necessary speed to properly separate the lint from the seed. The contention, presented from several angles, is that in rebuttal of such defense it is improper to admit proof that another engine, identical in all respects and a product of the same factory, did, at another place, furnish sufficient power to operate a plant substantially similar in all respects to the plant of the one for which it was claimed it was insufficient. The character of evidence here objected to has been much inveighed against by the courts and text-writers, and cannot be said to be regarded by either favorably, and yet the sum of the discussion may be said to be that it is admissible at the discretion of the trial judge, subject to review in case of abuse. 17 Cyc. 274, 276, pars. 1, 2. The same authority states the rule as to the relevancy of similar occurrences to be:

“That a fact existed or event occurred at a particular time cannot be shown by evidence that another fact existed or event occurred at another time unless the two facts or occurrences are connected in some special way, indicating a relevancy beyond mere similarity in certain particulars. Such relevancy is found where similarity in all essential particulars is shown to exist. Evidence of other facts or occurrences are then admitted, provided the court deems this course a wise exercise of its administrative discretion.” 17 Cyc. 283, 284.

On the precise issue in the instant case other jurisdictions have held the testimony inadmissible. Lander v. Sheehan, 32 Mont. 25, 79 Pac. 406; Fox v. Harvester Works, 83 Cal. 333, 23 Pac. 297; Stockton v. Glen Falls Ins. Co., 121 Cal. 167, 53 Pac. 565; Murray v. Brooks, 41 Iowa, 47. The tendency in this jurisdiction is in the opposite direction. Southern, etc., Engine Co. v. Adams et al., 169 S. W. 1143. The purport of the case last cited is that within limitations the evidence is admissible. The fact that the limitations are narrow makes the evidence none the less admissible when within the limitations. We have recited the substance of the evidence, and it occurs to us that the surroundings and conditions under which the engine was tested as to its power were similar, as said in the rule in Cyc., “in all essential particulars,” and, being so, was proper occasion for the trial court to “exercise its administrative discretion” and admit the evidence for whatever probative value it possessed. The only difference in surroundings and conditions was the fact that one plant was in Ellis county and the other on the border line of Hunt and Delta counties, which fact was obviously not an essential particular. For the reasons stated, we are constrained to -overrule the assignment.

The next assignment complains of the exclusion of testimony. The witness Boren testified that he was a farmer, and that during the year 1912, when appellants’ gin was being operated by the éngine sold by appel-lee, he had two bales of cotton ginned by appellants, whereupon counsel for appellants inquired: “Tell the jury what kind of a turnout you got from those bales of cotton.” Upon objection the witness was not permitted to answer the question. Appellants expected to prove by the witness that the turnout was poor, in that the quantity of lint was not what it should have been, and that it resulted from the failure of the engine to furnish sufficient power to speed the gins. ¡The contention, in effect, is that it was competent to prove insufficient power in the engine by a poor turnout in the quantity of the lint. And in such connection there was testimony that speed in operating gins produces greater quantity of lint. Whether the engine had, in fact, the guaranteed horse power was a material issue, and any testimony tending to establish that issue was admissible. But would proof of a poor turnout have tended to prove that the engine did not, in fact, possess the guaranteed horse power? We conclude not. The fact deducible from the evidence tendered is that insufficient lint was produced, and that result was due to the fact that the gins were run at too slow a speed. Not that the engine did not have power to run at a greater speed. Thus the expected statement of the witness in the last analysis did not tend to prove the material fact in issue, since it did not appear that the witness had any actual knowledge of the power of the engine or that the engine was running at full power when his cotton was ginned. Further, it was in evidence without dispute by witnesses from both sides that speed or lack of it would not alone procure a poor turnout in quantity of lint, but that the condition of the cotton and the soil upon which it is grown sometimes contributed to the result. Hence the statement that it resulted from an inherent lack of power in the engine, in view of the several causes that may have contributed to the result, was a conclusion of the witness.

The next assignment also complains of the exclusion of testimony. Appellants offered to prove by the witness Davis, who was operating a competing gin, that certain former customers of appellants brought their cotton to the competing, gin and stated to Davis that the reason they did so was because they got a poor turnout, due to the insufficient power of the engine. The proffered tsstimony was excluded, and the court’s action in that respect is challenged. The witness did not profess any knowledge of the matters sought to be elicited. They were' imparted to him -by others, and he sought only to repeat their statements. Hence the evidence was hearsay, and as a consequence properly excluded.

At trial the court admitted in evidence the following:

. “Alsdorf, Tex., 9/2/12.
‘Tex. Mach. & Supply Co., Dallas, Texas.— Gentlemen: The 60 H. P. Eairbanks-Morse engine ran to-day using as fuel three parts distillate to one of headlight oil. The temperature was kept at 135 deg. by closing the valve on the pump suction line. The cooling town is O. K. P. S. Allen, Engineer.
“The fuel consumed by the above engine was less than that guaranteed in the contract.
“J. E. Dodson, Bookkeeper.
“The speed of the stands and the fan was O. IC M. H. Preddy, Ginner.”

This statement was secured by apipellee’s agent, Curtis, at the time the engine was tested under the written agreement, and those signing, according to the testimony of Curtis, were the chosen representatives of appellants present at that time, Allen as engineer, Preddy as ginner, and Dodson, the bookkeeper, to see that appellee’s agent came within the limit specified in the contract as to the consumption of fuel. To that portion of the statement signed by Dodson appellants objected in the court below, and it is urged here that it was inadmissible because an un-sworn ex parte statement of Dodson and hearsay as to appellants. We conclude the statement was admissible. It is practically undisputed that Dodson was one of those selected by appellants to be present when the engine was tested, his particular duty being to observe the amount of fuel consumed in order to determine whether appellee was within the limitations of its guaranty, and that he was present in such capacity with the knowledge and consent of appellants, and made the record or statement in his representative capacity as a part of the report of the others present in other capacities and concerning which no objection is made.

The next assignment complains of the action of the court in submitting to the jury special issue 4a, which inquired whether the test of the engine made in October or November, 1913, was merely a demonstration of the same in an effort to compromise and settle the differences of the parties arising out of their contract, etc.

Among other defensive matter urged by appellants was the claim that the engine never did perform’ as guaranteed by the contract, though appellee claimed that it did, and that in July, 1913, they approached appellee for an adjustment of their differences, at which time appellee agreed, on the ground that it desired friendly relations and satisfied customers, to treat the contract as of that date, and thereafter demonstrate the efficiency of the engine, disregarding the former test, 'and did thereafter test same, at which time it failed to operate the plant as guaranteed, because of insufficient power, immediately after which appellants notified ap-pellee in writing to repossess itself of the engine which it refused to do, etc. Appellee, in response to such plea, denied the making of any new contract or receding from its rights under the original contract or the test held thereunder. Appellee admitted making a simple demonstration of the engine after the original test for the purpose of satisfying appellants, and alleged that at that time the engine met the guaranty in all respects. Such is the pleading of the parties on the point under discussion. We have examined the statement of facts, and it contains evidence offered by appellants in support of their plea, contradiction of such evidence by witnesses for appellee, and evidence in support of the appellee’s claim as to the true purpose of the demonstration or test under discussion. Por the reason that no purpose will thereby be served, we do not include the evidence' in this opinion. There being no other objection to the special issue save that it is not supported by the pleading or the evidence, and it appearing as matter of fact that it is so supported, it becomes our duty to overrule the assignment.

The seventh and eighth assignments, in effect, raise the issue that there is no evidence in the record to sustain the finding of the jury that the engine sold appellants could efficiently operate the gin stands it was guaranteed to so operate. The effect of such an assignment, it has been repeatedly held, is to require this court to examine the evidence and determine whether there is contained therein testimony which will support the verdict and judgment. We have carefully considered the evidence bearing upon the issue so raised, and have reached the conclusion that there is evidence sufficient to sustain the verdict and judgment. We might in deference to counsel collate and analyze the evidence in support of our conclusion, but to do so would conserve no useful purpose, since our duty is to reach a conclusion from an inspection of the evidence as distinguished from a statement of the evidence itself.

It is next urged that the court erred in refusing to grant appellants a new trial on the ground that they discovered after trial that the evidence of Brack, witness for ap-pellee, was false. This witness, as will be seen from our discussion of the first issue in the case, testified, in substance, that he was an experienced ginner, and that for four years he had been conducting a gin substantially similar to appellants, and that his engine, which was the same type of engine sold appellants and a product of tine same factory, furnished satisfactory power, etc. In support of the motion on the ground stated was the affidavit of R. L. Cornelius, of Hunt county, who deposed that he heard Brack say that he discarded the gas engines in his gin because “they would not pull four gin stands each fast enough to gin much cotton,” and the affidavit of E. B. Looney, of Hunt county, who deposed, in effect, that the gasoline engines operated by Brack in his gin never gave satisfaction, and that his gin lost customers during 1912 and 1913 because of delay caused by same, and in 1913 he discarded said engines and installed steam engines so as to hold his patronage, and that affiant, a patron of said gin for 14 years, having ginned there sometimes as many as 192 bales of cotton, would have been forced to go elsewhere if better power had not been installed. The issue thus raised is, in effect, a request for a new trial on the ground of newly discovered evidence, since proof of any false statement by Brack could have been offered upon trial had its alleged falsity been known. Under the rule stated in House v. Filgo et al., 163 S. W. 373, we conclude the action of the court in the respect stated is not error.

We have considered the eighth and tenth assignments of error, and, because we are of opinion that they fail to show reversible error, they are overruled.

The judgment is affirmed.

On Rehearing.

We have carefully considered the motion for rehearing in this case, and conclude we should adhere to our original decision in the matter. The testimony of the witness Brack was, we believe, in view of the pleading, admissible and supported by the authority cited, and in further support of which we cite Wilson v. Avery Co., 182 S. W. 884.

The motion for rehearing is accordingly overruled.
      ©=*For other cases see same topic and KEY-NU&IBBR in all Key-Numbered Digests and Indexes

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


author: SPEER, J. BUCK, J.

text:
    TEXAS GLASS & PAINT CO. v. DARNELL LUMBER CORP. et al.
    (No. 7395.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 27, 1912.
    On Rehearing, April 8, 1916.
    Rehearing Denied May 6, 1916.)
    1. Appeal and Error <S&wkey;512 — Record—Jurisdiction- — 'Transcript.
    The finding of the trial judge on appeal from a justice of the peace that the suit was filed and tried in the justice court, and an appeal duly perfected to the county court, does not supply the omission of the justice court’s transcript, and is not a sufficient showing that the county court acquired appellate jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. <&wkey;512.]
    2. Appeal and Eeeoe <&wkey;635(2) — Record— Correction — Conflict of Rules.
    Under Court of Civil Appeals rule 1 (142 S. W. x), providing that on receipt of the transcript by the clerk of the court he shall determine whether jurisdiction of the court is shown, and, if not, notify the attorney for the appellant, who shall have a reasonable time in which to amend the record, and rule 22, as amended (142 S. W. xii), requiring the appellant to prepare the transcript in accordance with the rules, the appellant should be given an opportunity to perfect the record before ruling that the county court had no jurisdiction of the appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2776, 2829; Dec. Dig. <&wkey; 635(2).]
    3. Appeal and Error <&wkey;501 (2)-Record-Exceptions.
    In an action by the buyer and consignee of two pieces of plate glass against the seller and shipper and the carrier, where the carrier’s exception to the allegations in the petition as to price paid for the glass shipped in place of that damaged on the ground that it was not a proper measure of damages as to it was sustained, the Court of Civil Appeals, in the absence of an exception by the appellant, the seller, noted of record and presented in an assignment to the sustaining of the exception, could not consider the correctness of the court’s ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2301; Dec. Dig. &wkey;>501(2)J
    4. Pleading <&wkey;387 — Conformity to Pleadings.
    A party asking affirmative relief must lay a predicate for the relief sought in the pleadings, and, to entitle him to such relief, the proof must sustain the allegations.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1300-1304; Dee. Dig. &wkey;3S7.]
    5. Carriers <&wkey; 136 — Action for Damages— Tlea Over in Directed Verdict.
    In an action by the buyer and consignee of two pieces of plate glass against the seller and the carrier to recover amount paid for a third shipment after one of the pieces had been broken, where the shipper’s pleading over against the carrier did not allege any negligence of the carrier and there was no proof thereof in the agreed statement of facts, instructing a verdict against the shipper and in favor of the carrier was proper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 478, 596-598; Dec. Dig. &wkey;136.]
    6. Sales <&wkey;413 — Breach of Contract — Action for Damages — Pleading.
    In such action, where the buyer’s pleadings alleged the sale of the glass to be delivered at its place of business for a stipulated sum, which allegations were not denied, and where the agreed statement of facts showed a purchase as alleged, and that, when the box was opened, one of the pieces of glass was broken and worthless and was refused, and that upon notification by the buyer the seller shipped another piece of glass at an invoice price, which the buyer paid, the buyer, whose action was predicated upon the seller’s contract for safe delivery, would be entitled to recover the contract price, without reference to the seller’s negligence in packing the glass for shipment.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1166-1169; Dec. Dig. &wkey;413.)
    7. Sales <&wkey;420 — Breach of Contract — Action for Damages — Pleading — Directed Verdict.
    In such action, where the buyer’s allegation that the glass was broken in shipment before it reached the buyer’s place of business was not denied, and there was no allegation or proof that such breakage occurred subsequent to its arrival, a directed verdict for the buyer against .the seller was proper.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. § 1202; Dee. Dig. &wkey;>420.]
    Appeal from Tarrant County Court; Charles T. Prewitt, Judge.
    Action by the Darnell Lumber Corporation against the Texas Glass & Paint Company and the Gulf, Colorado & Santa Fé Railway Company, with plea by the Texas Glass & Paint Company for judgment over against the Railway Company. Judgment for plaintiff against the Texas Glass & Paint Company, and for defendant Railway Company against the plaintiff .and its codefendant, and the latter appeals.
    Judgment affirmed.
    Alexander, Power & Ridgway, of Ft. Worth, for appellant. Turner & Bradley, L. M. Levy, Lee & Lomax, and W. D. Smith, all of Ft. Worth, for appellees.
   SPEER, J.

This is an appeal from a judgment of the county court of Tarrant county for civil cases in an action in which the sum of $136.03 is in controversy. There is nothing in the transcript to show that the county court of Tarrant county for civil cases ever acquired jurisdiction over the cause and its judgment therefore is reversed, and the cause remanded for another trial. There is in the transcript an agreed statement o£ the ease and the facts proved, in which agreement it is stipulated that the suit originated in the justice’s court, precinct No. 1, Tarrant county, and resulted in a judgment in favor of the plaintiff against the defendant, and that the defendant railway company appealed to the county court of Tarrant county for civil cases, filed its appeal bond, as required by law, and that the transcript of the judgment from the justice’s court was duly filed in said county court, but the transcript contains no other evidence of these facts, and for the reasons given in American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714, these recitations are insufficient. The statute (Rev. St. 1S95, art. 1014) provides that in all cases of appeal or writ of error to the Courts of Civil Appeals the trial shall be on a statement of facts, or agreed statement of the pleadings and proof, etc. But it is nowhere provided that such agreement may take the place of those jurisdictional facts which are required by other provisions of the statute to be shown in the transcript; the “agreed statement” contemplates only the “pleadings and proof.”

Reversed and remanded. See Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618.

On Rehearing.

BUCK, J.

On December 21, 1910, the ap-pellee Darnell Lumber Corporation, a corporation, instituted this suit in the justice court of Tarrant county, Tex., against the appellant, Texas Glass & Paint Company, a corporation, and the appellee Gulf, Colorado & Santa Fé Railway Company, a corporation, to recover damages in the sum of $136.-03. Before trial was had the plaintiff amended, asking a judgment for only $125.-53, and made the following pleading: On or about the 16th day of March, 1910, the Darnell Lumber Corporation purchased from the Texas Glass & Paint Company, of Dallas, Tex., two certain pieces of plate glass, to be delivered to the lumber corporation at Ft. Worth, at an agreed price of $210, or $105 each. Upon the arrival of the glass in Ft. Worth one piece was found to be broken, and being thereby rendered valueless, was refused by the consignee. Thereafter, upon notification of the one glass having been broken, the Glass & Paint Company shipped another piece of glass to replace the one that had been broken in the original shipment, for which the Darnell Lumber Corporation paid $125.53; the additional charge having been made by the Glass & Paint Company because it did not have in stock glass of the dimensions ordered, and it was necessary to take a larger piece of glass and cut it in size to suit. The Darnell Lumber Corporation paid for both pieces of glass, the one broken and the one ordered to replace the broken one. It was further alleged in plaintiff’s petition that the defendants, both the Glass & Paint Company and the railway company, undertook to deliver to plaintiff the glass heretofore described, and, “so far from delivering the said goods in the condition in which they had agreed to deliver the same, delivered said goods in a condition which totally destroyed their value, as the same was broken and shattered; that therefore defendants became liable to plaintiff for said amount so paid by plaintiff.”

In the justice court judgment was rendered for plaintiff against both defendants for $125.53, and judgment in favor of defendant glass and paint company against the defendant railway company for a like amount The railway company appealed to the county court In the county court the Glass & Paint Company did not deny selling the glass in controversy, nor that according to the terms of the contract it was to be delivered to plaintiff at Ft. Worth, but pleaded orally only, in part as follows:

“The Texas Glass & Paint Company allege that we packed the glass in the proper and usual manner of packing glass for such shipments. Two men who have had several years experience packed this glass, experienced in the business, and they did everything that was proper to do to protect it in the shipment and deliver it in good condition to the Santa Fé Railway Company in Dallas; * * ⅜ put it in the car in proper condition for shipment to the Darnell Lumber Company at Ft. Worth, Tex. We ask further, though, that if in case you should find a judgment against us jointly with the Santa Fé Railway Company for the amount sued for that you should give the Texas Glass & Paint Company a judgment over against the Santa Fé Railway Company for whatever amount is found against the two; that we are not liable, and did everything that was proper in forwarding it to the railroad company, and then we ask that we be recompensed for the loss of that glass which would be what we would be entitled to if we delivered it in good condition.”

The railway company excepted to the allegations in plaintiff’s petition as to the efforts made or prices paid to replace the broken glass on the ground that it was not a proper measure of damages as to it, being special in its nature, and the railway company not being liable for such damages, in any event in the absence of notice at the time the contract of shipment was made, which exception was sustained by the court. For special answer it alleged contributory negligence on the part of the plaintiff and its codefendant, Texas Glass & Paint Company, in that “the glass was improperly and insufficiently crated for shipment, the box being too large, and not sufficient packing around said glass to prevent the glass from coming in contact with the sides of the box,” and that “if the glass was broken while in possession of this defendant that the breaking of said glass was due to the inherent defects or weakness of the glass itself, and was not due to improper handling on the part of this defendant.”

Judgment was rendered for plaintiff against the Texas Glass & Paint Company for the amount prayed, and in favor of the railway company against the plaintiff and against its codefendant, the glass and paint company. The Texas Glass & Paint Company appealed.

On April 27, 1912, the judgment of the court below was reversed and remanded for a new trial in an opinion by Associate Justice Speer because the record did not contain a transcript of the proceedings in the justice court, and, in the opinion of this court, such omission would necessitate the judgment rendered. Thereafter there were filed in the order mentioned the following motions: First, a motion for rehearing by ap-pellee railway company; second, a motion to certify by appellee railway company ; third, a motion for rehearing by Darnell Lumber Corporation; fourth, a motion for certiorari by Darnell Lumber Corporation; fifth, a motion to retax costs by Darnell Lumber Corporation. Action on all of these motions was deferred pending the answer of the Supreme Court on certified questions in the case of Patrick v. Pierce, 183 S. W. 441, from Parker county. In this certificate a similar condition of the record as to the justice court transcript was presented, and the following questions were propounded to the Supreme Court, to wit:

“(1) Is the finding of fact by the trial judge that the suit was filed and tried in the justice court, and an appeal duly perfected to the county court, a sufficient showing that the county court acquired appellate jurisdiction?
“(2) If the above question be answered in the negative, was it erroneous for the Court of Civil Appeals to consider the appeal without first suggesting to the appellant the absence of any showing that the county court had acquired appellate jurisdiction of the suit, and, according to him, an opportunity to correct the record?”

In answer to the certified questions above set out the Supreme Court on March 25,1916, held, in substance: (1) That the finding of the trial judge did not supply the omission of the justice court transcript; and (2) that the appellant should have been given an opportunity to perfect the record before it was ruled that the court had no jurisdiction of the appeal — citing Wells v. Driskell, 105 Tex. 77, 145 S. W. 333; Rule ¾ (142 S. W. x) governing courts of Civil Appeals; Rule 22 (142 S. W. xii), as amended in H. & T. C. R. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 369. With reference to rule 22 the Supreme Court says:

“This amendment, as stated in the opinion of Associate Justice Ramsey, was for the purpose of meeting the court’s departure in a number of cases from the rule originally announced in Ross v. McGowen, 58 Tex. 603; and under it, when read in connection with the opinion, it is plain that no correction of the record for any purpose is permissible after the submission of the cause.
“The judgment of the county court in the present case was rendered July 28, 1911, at a time, therefore, when both rules were in force. It is evident that the two rules are in conflict. As applied to this case, the appellant, under rule 1, was entitled to an opportunity to perfect the record so as to evidence the court’s jurisdiction before his appeal was disposed of (Wells v. Driskell); whereas, under amended rule 22, it was incumbent upon him to discover the omission, and his right to supply it was lost upon the submission of the case. Under this state of conflict in the rules, we think the question should be resolved in favor of the appeal. It is therefore held that the appellant should have been given an opportunity to bring the justice court transcript before the court by means of writ of certiorari before the appeal was acted upon and the cause remanded on account of the jurisdiction of the court not being shown; and the writ should now be allowed.”

In accordance with the holding of the Supreme Court, as hereinabove set out, in Patrick v. Pierce, supra, the following orders will be made by this court, to wit: (1) The motion of appellee Gulf, Colorado & Santa Fé Railway Company for rehearing will be granted and the order and judgment of this court of date April 27, 1912, reversing and remanding, will be set aside; (2) appellee railway company’s motion to certify will be overruled; (3) appellee Darnell Lumber Corporation’s motion for rehearing will be granted; (4) appellee Darnell Lumber Corporation’s motion for certiorari will be granted, and the clerk will be ordered to file the transcript of the proceedings in the justice court, which in due form was presented in connection with said motion for certiorari, and which motion is concurred in by all parties litigant. Consideration of the remaining motion, to wit, appellee Darnell Lumber Corporation’s motion to retax costs (in the event its other two motions should be overruled), will be deferred at present and disposed of later in the course of this opinion.

We will now proceed to consider the assignments presented by appellant, Texas Glass & Paint Company. Appellant’s first and second assignments of error are directed: First, to the action of the court in directing a verdict for the defendant Gulf, Colorado & Santa Eé Railway Company against the appellant; and, second, directing a verdict for the defendant railway company. As before noted, the appellee railway company excepted to the allegations made in plaintiff’s petition as to the price paid for the glass, on the ground that it was not a proper measure of damage as to it, and the exception was sustained by the court. There was therefore no allegation of any amount for which the railway company was sought to be held, or could be held, liable to either plaintiff or appellant. In the absence of an exception by the appellant noted of record and presented to this court in an assignment to the action of the trial court in sustaining the railway company’s exception, we cannot here consider the question of the correctness of the court’s ruling, but it will be noted that the appellant’s cause of action, if any, against the railway company, was for negligence in the transportation of the glass which was broken, while the plaintiff’s cause of action against the appellant arose under an alleged contract for delivery at Ft. Worth of said glass. A party asking an affirmative relief must lay a predicate for the relief sought in his pleadings, and to entitle him to such relief the proof must sustain such allegations.

In this ease there was neither allegation of negligence on the part of the railway company in appellant’s pleadings, nor proof in the agreed statement of facts. The only proof offered by the plaintiff was as to the contract price of the glass, and this proof was by the court limited in its application to the appellant. It was not admitted for any purpose as against the appellee railway company. Since appellant neither by allegation nor proof supported any cause of action against the appellee railway company, it follows that the trial court did not err in instructing a verdict against the appellant and in favor of the railway company as to appellant’s plea over. See Galveston Electric Co. v. G. & W. Ry. Co., 58 Tex. Civ. App. 427, 123 S. W. 1140; McGreal v. Wilson, 9 Tex. 426; Fordtran v. Ellis, 58 Tex. 252; Dupuy v. Burkitt, 78 Tex. 338, 14 S. W. 789.

With reference to the propriety of tne instructed verdict in favor of the plaintiff and against the appellant, it is sufficient to say that in plaintiff’s pleadings it alleged the sale of the glass by the appellant to be delivered to plaintiff at Ft. Worth for a stipulated sum, and on appellant’s part there was not even a general denial of plaintiff’s' allegations. The agreed statement of facts shows the purchase of the glass as alleged in plaintiff’s petition and upon the terms therein set out; that when the box was opened at Ft. Worth the glass was broken and smashed to such an extent that it was' of no value to the plaintiff company, and it was refused; that upon notification by Darnell Lumber Corporation of the condition in which the glass was received the appellant company shipped another piece of glass at the invoice price of $125.53; and that plaintiff paid for both pieces of glass. Plaintiff’s cause of action against the appellant being predicated upon a contract for safe delivery at Ft. Worth, and no question being made as to its right to recover, if at all, the price for the second glass, its right of recovery would not depend upon a showing that appellant was negligent in packing or preparing the glass for shipment, but it would be entitled to recover the eoiltract price paid without reference to such negligence. Therefore we are of the opinion that appellant’s first and second assignments must be overruled.

The third assignment urges error in the action of the court in giving a peremptory instruction for plaintiff against the appellant. In the absence of even a general denial on the part of appellant of the allegations in plaintiff’s petition that the glass was broken in shipment—that is, before it reached Ft. Worth—and in the absence of any allegation or plea on the part of appellant to the effect that such breakage did occur subsequent to the arrival of the shipment at Ft. Worth, and in the absence of any proof that such breakage occurred subsequent to the delivery at Ft. Worth, the court was authorized to give an instructed verdict, and the assignment is overruled.

Other assignments attack the ruling of the court in excluding certain testimony on the part of appellant’s witnesses to the effect that' said witnesses loaded in appellee railway company’s car at Dallas the shipment “in good condition,” and that “the glass was sound and safe after we loaded it on the car,”' etc. But because of the absence of sufficient pleadings on the part of appellant to entitle it to recover against the appellee railway company, and because of the condition of appellant’s pleadings with reference to the claim of plaintiff against it, as before discussed, we are of the opinion that the questions presented in these other assignments' become immaterial, and therefore the assignments are overruled.

All assignments having been overruled, the judgment of the trial court is in all things affirmed, and the costs of this appeal are, in compliance with the prayer of the appellees, and the motion of appellee Darnell Lumber Corporation, heretofore mentioned, taxed against the appellant; and it is so ordered.
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