author: MOURSUND, J.

text:
    MARTIN v. JOURDANTON MERCANTILE CO.
    (No. 5645.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 5, 1916.)
    1. Fraudulent Conveyances &wkey;>298(l) — Action to Set Aside — Sufficiency of Evidence.
    In a suit for damages from the conversion of two mules, etc., alleged to he the property of the plaintiff, evidence held not to sustain a finding that a sale by defendant’s debtor to plaintiff was made with intent to defraud his creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 892; Dec. Dig. <&wkey;> 298(1).]
    2. Tboveb and Oonveesion <&wkey;40(6) — Evidence — 'Value of Peopeety.
    In an action for conversion defended on the ground of the fraudulent conveyance of property to plaintiff by defendant’s debtor, where there was no evidence of the value of the property at the time of the conveyance, its value was not shown to exceed the amounts of the three debts canceled on its sale to plaintiff.
    [Ed. Note. — For 'other cases, see Trover and Conversion, Cent. Dig. §§ 241-243; Dec. Dig. &wkey;40(6).]
    3. Fraudulent Conveyances <&wkey;121 — Rights of Purchaser.
    A creditor could lawfully purchase of his debtor sufficient property to pay the debt due him and to pay off the claims of a lien creditor and another creditor.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 385-391; Dec. Dig. &wkey;121.]
    4. Fraudulent Conveyances <&wkey;208 —Setting Aside — Value of Property.
    Where it did not appear that a debtor’s sale was made with intention to pass absolute title, future creditors could not set it aside on the ground that more than was reasonably necessary to pay the debts provided for in the transaction was conveyed.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 631, 633; Dec. Dig. <&wkey;>208.]
    5. Fraudulent Conveyances <&wkey;>298(4) — Action to Set Aside — Evidence.
    In a suit for damages for the conversion of mules, etc., wherein defendant contended that any sale to plaintiff by its debtor was in fraud of creditors, evidence held insufficient to show the debtor’s intent to shield his property from future debts.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 895; Dec. Dig. <&wkey; 298(4).]
    6. Fraudulent Conveyances <&wkey;208 —Record — Effect.
    When a conveyance has been promptly recorded, creditors whose claims arise thereafter cannot attack it as fraudulent.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent Dig. §§ 631, 633; Dec. Dig. <&wkey;208.]
    Appeal from Atascosa County Court; Walter E. Jones, Judge.
    Suit by George M. Martin against the Jourdanton Mercantile Company. Judgment for defendant, and plaintiff appeals.
    Reversed, and cause remanded.
    R. R. Smith, of Jourdanton, for appellant. W. M. Abernethy, of Jourdanton, for appel-lee.
   MOURSUND, J.

George M. Martin sued the Jourdanton Mercantile Company for $545, as actual damages suffered by reason of the conversion of two mules, one horse, and three hogs, alleged to have been the property of plaintiff. Plaintiff also sought to recover $400 as exemplary damages. Defendant answered by general denial, and a special answer to the effect that the property in question was not owned by plaintiff or in his possession when seized, on or about March 9, 1914, by the sheriff by virtue of a valid writ of attachment issued out of the justice’s court of precinct No. 1 of Atascosa county; that at said time said property was owned by and in possession of Lon W. Marshall; that said property was sold by the sheriff by due course of law and the proceeds or a part thereof applied to the satisfaction of a valid judgment which defendant had obtained and held against said Lon Marshall. Defendant further alleged that, if there ever was a sale by Lon W. Marshall to plaintiff of the property described in his original petition, such sale was only pretended and simulated, and made with the intention of hindering, delaying, or defrauding the creditors of said Marshall; that at the time of the said pretended sale, if any was made, said Marshall was notoriously insolvent and was being hard pressed by his creditors, and this fact was well known to plaintiff, or at least plaintiff had knowledge of facts and circumstances sufficient to give an ordinarily cautious man notice and place him upon inquiry as to the fraudulent intentions of said Marshall in making the sale. These allegations were denied by plaintiff. The trial resulted in a verdict and judgment for defendant

Appellant contends that a verdict should have been instructed for him for the actual damages sued for.

On November 28, 1912, S. B. Hethcock obtained a- judgment in the district court of Atascosa county against Lon W. Marshall for $568.33, with 10 per cent, interest thereon from date of judgment, and for foreclosure of a mortgage lien on certain horses, mules, vehicles, harness, tools, etc. On December 27, 1912, said judgment was corrected so as to include in the list of property covered by the lien four wagons and six double buggies which had been omitted by mistake in drafting the first judgment. On December 14, 1912, Lon W. Marshall executed to Martin a bill of sale, whereby, for the recited consideration of $700 to him paid and the assumption of the mortgage lien thereon, he sold to Martin the personal property described in said corrected judgment. This bill of sale was filed on December 14, 1912, and duly recorded. Martin testified that the $700 mentioned was paid by Ms paying a $185 debt of Marshall and canceling a debt due him by Marshall for the remainder. Heth-cock, on January 7, 1913, sold and transferred such judgment to plaintiff, Geo. M. Martin, in consideration of $773.33.

On January 18, 1913, Martin executed a power of attorney authorizing Marshall to sell said property for cash or “approved bankable paper” to be deposited to Martin’s credit at Atascosa County State Bank. On February 18, 1913, Martin and Marshall executed a “lease contract” by which Marshall leased from Martin for one year a portion of the animals and vehicles described in said judgment.

The statement of facts contains two writs of attachment, one issued and levied on January 21, 1914, and the other on January 23, 1914, issued out of justice’s court of precinct No. 1, Atascosa county, in causes Nos. 700 and 702, styled Jourdanton Mercantile Company v. Eon Marshall, and both levied upon the property described in plaintiff's petition.

The two mules and sorrel horse sued for by plaintiff are mentioned in the lease contract. The three hogs are not mentioned therein. The testimony of Martin and Marshall was to the effect that the mules sued for are two of those described in the judgment and bill of sale. The horse and hogs were obtained in exchange for some of the property described in the judgment and bill of sale. It appears from Marshall's testimony that, after the execution of the lease contract, he purchased a portion of the property therein described from Martin for $200 after taking the benefit of the bankruptcy law. Both Martin and Marshall testified positively that the property sued for was owned by Martin. The evidence fails to show that the Jourdanton Mercantile Company was a creditor of Marshall’s at the time of the sale by him to Martin of the property, and in fact fails1 to show when such company became a creditor, or that it ever became a creditor, because such indebtedness cannot be inferred from the mere fact that it brought two suits against him and procured the issuance of an attachment in each suit. The evidence also fails to show that Marshall, at the time he executed the bill of sale, had any other creditors than Hethcock, Martin, and the one whose claim was paid by Martin, and fails to show that Hethcock had any other claim than the one assumed by Martin.

Appellee has called our attention to a statement in the corrected judgment in favor of Hethcock, to the effect that the judgment of November 28, 1912, be corrected in so far as it relates to the personal property, but “in no respect to affect the remaining part of said decree relating to real property and fixtures.” In copying the original judgment, the portion relating to real estate was omitted. We fail to see how the statement above quoted can be accepted as proof that there was a forclosurei of a lien upon Marshall’s real property as stated by appellee. But if there was, the fact remains that there is no evidence from which it could be found that the land was of insufficient value to pay the judgment. Marshall took the benefit of the bankruptcy act, but the record does not disclose when he made his application, and it cannot be inferred that it was on account of debts existing at the time the bill of sale was made. Appellee, to substantiate its contention that Martin knew that Marshall was insolvent, quotes from Martin’s testimony as follows:

“I did not think that I would lose anything on the deal, and partly, though I did not mention it to him, to help Lon Marshall.”

Martin knew that Marshall was financially embarrassed, of course, for he knew he was unable to pay Hethcock, and that his property would be sold under an order of sale to satisfy such debt, and he decided to help him by buying the property; there being no danger of loss. But this testimony does not show that Martin knew of any creditors whose interests would be affected by his purchase of the property. We do not see how the evidence can be said to support a finding that the sale was made with intent to defraud creditors1, and that Martin knew of or was chargeable with notice of such intent, when the evidence fails to show any creditor at that time whose interest was affected by the sale.

It is also to be noted that the value of the property was not shown to exceed the amounts of the three debts provided for iu the sale to Martin, for there is no evidence of the value of the property at the time of the conveyance. Oppenheimer v. Halff & Bro., 68 Tex. 413, 4 S. W. 562. The only evidence relied on by appellee on this issue is that showing the amounts for which portions of the property were sold at various times after such sale.

There can be no doubt that Martin could lawfully purchase sufficient property to pay the debt due him, and also sufficient to pay off the claims of the lien creditor and the creditor whose claim for $185 was paid by Martin. Frees & Son v. Baker, 81 Tex. 216, 16 S. W. 900, 13 L. R. A. 340; Sanger Bros. v. Colbert, 84 Tex. 668, 19 S. W. 863; Thompson v. L. & G. N. Ry. Co., 45 Tex. Civ. App, 285, 100 S. W. 197; Elser v. Graber, 69 Tex. 222, 6 S. W. 560; Shoe Company v. Partridge, 82 Tex. 329, 18 S. W. 310. The evidence fails to show that Marshall was to benefit by the transaction at the expense of his creditors, for it does not show that he got anything at all out of the deal, except the satisfaction of canceling the indebtedness due by him to three persons.

In the case of Maffi v. Stephens, 49 Tex. Civ. App. 359, 108 S. W. 1010, relied upon by appellee, this court said:

“It is probably true, also, that when a debtor conveys property to pay a creditor, but conveys more than is reasonably sufficient for the purpose, the setting aside of the conveyance will be solely for the benefit of his creditors he had at the time of the conveyance, provided the conveyance was made with the intention to pass absolute title to the property as distinguished from an intention to shield it, or a part of it, from creditors. If there exists the latter intent in such a transaction, future creditors, as well as existing ones, may have the conveyance set aside as fraudulent.”

In this case the evidence fails to sustain a finding that the sale was merely simulated, and we do not find any contention in appellee’s brief to that effect. As the evidence does not justify a finding that the sale was not made with intention to pass absolute title, future creditors could not set it aside, upon the ground alone that more than was reasonably necessary to pay the debts provided for in the transaction was conveyed. But, as has been pointed out, the evidence fails to show that more than was reasonably necessary was in fact conveyed.

Appellee did not plead that the conveyance was made with intent to shield his property from future debts, and the evidence is insufficient to show such intent. The rule laid down in the cases of Dosche v. Nette, 81 Tex. 289, 16 S. W. 1013, Cole v. Terrell, 71 Tex. 550, 9 S. W. 608, and Hives v. Stephens, 28 S. W. 707, cannot be applied.

In addition, it is stated that as a general rule when a conveyance has been promptly recorded creditors whose claims arise thereafter cannot attack the conveyance as fraudulent. Lewis v. Simon, 72 Tex. 470, 10 S. W. 554; Matula v. Lane, 56 S. W. 112; Lehmberg v. Biberstein, 51 Tex. 457; Hodges v. Taylor, 57 Tex. 199; Bavouset v. York, 18 Tex. Civ. App. 428, 46 S. W. 61.

The remaining assignments, except the fburth, relate to the sufficiency of the evidence and must be sustained for the reasons above set out. The fourth complains of the failure to give a special charge, which would have had the same effect as a peremptory instruction if it had been given and followed by the jury. Upon another trial the facts will be more definitely developed, and it would serve no useful purpose to prolong this discussion.

The judgment is reversed, and the cause remanded.
      <@s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    THORNTON et ux. v. DANIEL et al.
    (No. 541.)
    (Court of Civil Appeals of Texas. El Paso.
    March 30, 1916.
    Rehearing Denied April 20, 1916.)
    1. Appeal and Error &wkey;>1170(8) — Harmless Error — Oral Charge — Directed Verdict.
    Under Court of Civ. App. rule 62a (149 S. W. x) providing that no case shall be reversed for error at the trial unless the appellate court shall be of the opinion that it was reasonably calculated to cause the rendition of an improper judgment, or probably prevented the appellant from making a proper presentation of the case to the appellate court, orally instructing a verdict does not require a reversal unless the failure to instruct in writing and to give plaintiffs’ attorney an opportunity to examine the charge and to make his objections and exceptions as required by Rev. St. 1895, arts. 1970, 1971, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970, 1971), prevented a proper presentation of the case on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543; Dec. Dig. &wkey;> 1170(8).]
    2. Warehousemen &wkey;>24(2) — Loss of Goods - — Fire.
    Where a warehouseman delivered the goods intrusted to him for storage to another in whose warehouse they were burned, the latter is liable if the fire was caused by his negligence; the liability not being dependent upon whether the delivery of the goods to him was a conversion by the first warehouseman.
    [Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. § 49; Dec. Dig. &wkey;>24(2).]
    3. Warehousemen &wkey;>34(5) — Loss of Goods —Fire—Negligence—Evidence.
    The mere fact that plaintiffs’ goods were destroyed by fire in a warehouse does not necessarily show negligence by the warehouseman.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 76, 77; Dee. Dig. <&wkey;34 (5).]
    4. Pleading <&wkey;149 — Admissions — Actions Against Warehouseman — Cross-Complaint.
    Where plaintiffs, whose goods were burned while they were in the warehouse of another to which they had been sent by the original warehouseman sued both warehousemen, the answer of the first, which denied the negligence alleged by plaintiff, and then in case there should be recovery against him filed a cross-action against the second warehouseman, in which he adopted the plaintiffs’ allegations as to the negligence of the latter, is not an admission by the former as against plaintiffs of the negligence alleged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 301; Dec. Dig. <®=»149.]
    5. Warehousemen <&wkey;34(7) — Loss of Goods —Evidence—Negligence.
    Evidence from which it could be inferred that a fire which was apparently extinguished by the fire department before it injured plaintiffs’ goods in a warehouse was started by the negligence of an employé of the warehouseman is not sufficient to show negligence as the cause of a fire in the warehouse three or four hours later which destroyed plaintiffs’ goods.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 79; Dec. Dig. <¿m34(7).]
    6. Warehousemen <&wkey;34(5) — Actions Against — Burden of Proof — Negligence.
    Where plaintiffs pleaded that their goods were burned in defendant’s warehouse, the burden is on them to prove that the fire was caused by the warehouseman’s negligence.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 76, 77; Dec. Dig. <&wkey;>34 (5).]
    7. Warehousemen <&wkey;24(2) — Actions • Against — Conversion—Removal.
    Where a warehouse receipt was silent as to the place of storage, but there was uncontra-dicted testimony for plaintiff that it was orally agreed that the goods should be stored in a particular warehouse, it was a conversion for the warehouseman to have them removed to a warehouse belonging to another, and, if they were there burned, the original warehouseman is liable to the owner, regardless of the second warehouseman’s negligence, and it was error for the trial court to instruct a verdict for the first warehouseman because of plaintiff’s failure t‘o establish negligence.
    •' [Ed. Note. — Por other cases, see Warehouse-men, Cent. Dig. § 49; Dec.'Dig. <&wkey;>24(2).]
    Appeal from El Paso County Court; W. D. Howe, Special Judge.
    Action by A. L. Thornton and wife against R. L. Daniel and others. Judgment for defendants on a directed verdict, and plaintiffs appeal.
    Reversed and remanded as to defendant Daniel, and affirmed as to the other-defendants.
    G. L. & Atlas Jones, of El Paso, for appellants. A. R. Grambling, C. W. Croom, and John L. Dyer, all of El Paso, for app.ellees.
   WALTHALL, J.

Appellants, A. L. Thornton and wife, brought this suit in the justice court, and by appeal it was tried in the county court at law, to recover of appellees, R. L. Daniel, E. L. Peyton, and John M. Wyatt, for goods destroyed by fire, and alleged that R. L. Daniel was engaged in the private warehouse business in El Paso, and that, as such warehouseman, he received from appellants for storage in his warehouse for hire certain household goods, described, stating their values. Appellants allege two separate and distinct deliveries of the goods to Daniel, one on March 20, 1912, and one in February, 1913; that when said goods were received for storage it was agreed that Daniel was to store them in his- warehouse; that at some time unknown to appellants and without the consent of either of them Daniel removed said goods from his warehouse and stored them in a warehouse owned and operated by appellees Peyton and Wyatt, doing a similar business in El Paso; that while the goods were stored in the warehouse of Peyton and Wyatt they were destroyed by fire.

Appellants alleged that Daniel, Peyton, and Wyatt and each of them failed to use the ordinary care required of them by law for the safe keeping and safe storage of said goods, in that they stored said goods in the Peyton and Wyatt warehouse, which was an old, worn building constructed principally of wood, easily destroyed by fire, was- dark, unequipped with lighting appliances, and was unfit and unsafe for the purposes of a warehouse for household goods;' that they employed unskilled, incompetent, and careless warehousemen to store, handle, and inspect property stored therein, and that at the time of the fire that destroyed-the building and goods Peyton and Wyatt caused an inexperienced and incompetent workman and employé, to go into said warehouse to remove some property when there were- no lights in said warehouse and no lantern - or other lights provided, and that said employé then negligently struck a match or other combustible matter while looking for said property and while surrounded by packing and other highly inflammable material, and thereby negligently set fire to said packing and said building; that Peyton and Wyatt failed to use ordinary care in failing to subdue and put out said fire after it originated, but permitted it to smolder and again start to the extent that it completely destroyed the building and appellants’ goods.

Appellee Daniel admitted the fact of receiving the goods for storage, but denied that at that time he was engaged in the warehouse business, b-ut alleged that it was his custom, known to appellants, that he would restore goods received by him at a suitable storehouse, and did store them with Peyton and Wyatt,. then , conducting a warehouse which was a reasonably safe place to store goods, and that in doing so exercised ordinary care. He denied the negligence complained of, filed a cross-action against Pey-ton and Wyatt, and for the purpose of his cross-action adopted the allegations of negligence pleaded by appellants, and prayed that, if he should be liable in any way, he have judgment over and against Peyton and Wyatt. Peyton and Wyatt answered by demurrer and denial of the facts alleged in the petition and in the cross-action of Daniel. The trial was to a jury, and after appellants’ evidence was heard, on motion of ap-pellees, the court orally instructed a verdict in favor of appellees, to which appellants objected and excepted. Appellants in due time filed their motion for a new trial, which was heard and overruled, and appellants gave notice and perfected their appeal.

Appellants’ first assignment is to the action of the court in orally instructing the jury. Article 1970, as amended by chapter 59, p. 113, Acts 33d Leg., provides in part as follows:

“In all civil cases the judge shall, unless the same be expressly waived by the parties to the suit, prepare and in open court deliver a written charge to the jury on the law of the case.” Vernon’s Sayles’ Ann. Giv. St. 1914, art. 1970.

Article 1971, as amended by the same chapter as above, provides in part as follows:

“The charge shall be in writing and signed by the judge.” Vernon’s Sayles’ Ann. Giv. St. 1914, art. 1971.

The trial judge orally instructed the verdict. Was it reversible error to orally instruct the verdict? In McAllen et al. v. Alonzo et al., 46 Tex. Civ. App. 449, 102 S. W. 475, the Fourth Court of Civil Appeals said:

“If the peremptory instruction to find for defendants had been warranted by the law and evidence, we would not likely perceive any harm in giving the instruction orally, though the statute requires charges to the jury to be in writing, and it is thought best in every instance'to be governed by it.”

To the same effect is Schwartzlose v. Mehlitz, 81 S. W. 68. It seems to us that, whatever error there was in giving a peremptory instruction orally, - it would not lead to a reversal, unless it is, apparent that it may have injuriously affected appellants’, cáse. Berry v. Railway Co., 72 Tex. 620, 10 S. W. 726. It is true that under the present law as amended by the Thirty-Third Legislature (chapter 59), in addition to the requirement that the charge shall be in writing, the charge must be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, and objections not so made and presented shall be considered waived; yet we think it still follows that, unless it is apparent that a failure to extend the opportunity to examine and present objections to the charge injuriously affected appellants’ case, the mere giving of an oral charge would not be reversible error. Under rule 62a (149 S. W. x), unless the appellate court shall be of the opinion that by giving, an oral charge amounted to such a denial of the rights of appellants as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court, the judgment should not be reversed on the ground merely that the peremptory charge was not in writing.

Appellants refer us to Rex v. James, 131 S. W. 248, to sustain their proposition that their contract with Daniel to store and the fact that he did store their goods in his warehouse and the removal by Daniel, without their consent, of the goods to the warehouse of Peyton and Wyatt, where the goods were destroyed by fire, constitutes a cause of action against him as a depositary bailee. In that case Rex deposited his goods with Heyck as warehouseman. Later Heyck sold his warehouse in which the goods were stored to James, who received the warehouse with the goods therein, and in turn sold the warehouse and delivered the warehouse and Rex’, goods to Miller, who converted the goods to his own use. The appellate court said that Heyck received the goods under circumstances making him liable as a depositary bailee, and held that Heyck and James were guilty of negligence in the delivering of goods to Miller in the absence of evidence that Miller was a responsible person and in view of Miller’s announced purpose of disposing of the goods. Under Rex v. James and under Roberts v. Yarboro, 41 Tex. 453, and Nelson v. King, 25 Tex. 663, it seems to be settled in this state that appellants could sue and recover the property or its value from Peyton and Wyatt had there been negligence or a conversion of the goods by them, although they are not parties to the contract of bailment. If by negligence of Peyton and Wyatt the goods were destroyed by fire, we think appellants could recover of Peyton and Wyatt. The liability of Peyton and Wyatt to either Thornton or to Daniel would depend upon the question of their negligence,- and not merely upon the question of Daniel’s conversion by delivery of the goods to them.

Appellants alleged that Daniel, Peyton, and Wyatt were guilty of negligence, and stated the grounds which, if proved, would possibly constitute negligence vel non. This brings us to the only real issue of fact in the ease, not including the question of fact in the storage contract with Daniel: Was the evidence sufficient to justify the court in submitting the issue of negligence to the jury? The bare fact that the goods were destroyed by fire does not necessarily show the negligence charged.

Appellants suggest that Daniel’s answer and cross-action admitted negligence. Daniel denied the paragraph in plaintiffs’ petition alleging negligence. This denial put plaintiffs to the proof, although Daniel, for the purpose of his cross-action against Peyton and Wyatt, and only in the event plaintiffs recover judgment against him, adopted appellants’ allegation of negligence. Bauman v. Chambers, 91 Tex. 108; 41 S. W. 471; Silliman v. Gano, 90 Tex. 637, 39 S. W. 559, 40 S. W. 391. We think Daniel’s admission of the fact of negligence only conditionally— that is, only in the event the proof should entitle appellants to recover against him— in view of his previous denial of negligence, could not be taken as an admission of the fact of negligence even as against himself. To hold otherwise would destroy Daniel’s right to file inconsistent pleas. We do not understand Bosse v. Cadwallader, 86 Tex. 344, 24 S. W. 798, as holding differently.

The appellants in their brief do’ not quote nor refer us to the evidence of any witness which, in our opinion, tends to establish any of the grounds of negligence charged, and we have found none in the statement of facts, other than the one hereinafter discussed. There is no proof that the warehouse was old, worn, or principally constructed of wood. It was equipped with electric lights and fire extinguisher. No proof was offered on the issue that the building was unfit for the purposes of a warehouse, or, if unfit, that -such condition was conducive to fire, nor on the issue that the labor used was unskilled, nor that there was present any combustible material other than that used in wrapping the goods stored. There is no evidence at all as to whether appellees did or did not exercise diligence to prevent the fire to again start and grow after the fire department apparently put out the first fire.

There is only one issue of negligence charged upon which there is even a semblance of proof. Appellants and Daniel charged that one of the employés of Peyton and Wyatt struck a match while looking for some property stored in the warehouse, and by so doing caused the fire. The witness Bagley was the only witness who testified on that issue. He wanted to remove some goods he had stored, and Peyton called a Mexican helper to go with witness to locate and point out the goods. Bagley’s goods were stored on the second floor and close to the stairway. Bag-ley said:

“The room itself was as light as an ordinary room. Goncerning what I did there and what the employé did in hunting for my goods on that occasion, * * * I was looking for box No. 14. I could not place the box, and in going through them we came to some boxes in this corner near the stairway where there was not sufficient light to read the numbers on the boxes. I endeavored to turn one box, but had difficulty, so I called the Mexican to move the box so X could see if it was box No. 14. I stepped out and went around to the other side of my furniture to look there while he was getting the box out. In probably a minute or less he called to me, ‘Eire!’ As soon as he called my attention to this I saw there was a small fire running up the back of some furniture; the furniture having been wrapped in excelsior and paper, so that it was highly inflammable. * * * X knew of no noise that was made just prior to the fire that would indicate a fire being started. Just before the fire the Mexican went to the place where I had just been to move out this box, he understanding what X was after; that I was endeavoring to find this number. I cannot state what the Mexican did; I know the events before and after; I saw no direct movements of the Mexican. * * * My eyesight is perfectly normal, but I could not see the box number when I was looking for it. As to what I saw or heard, as to how he told me what the number of the box was, I left him and was on the other side of the pile of furniture, probably about as far as the length of the jury box, and he called me the number of the box, and immediately after that some exclamation that conveyed to my mind that there was fire. * * * As to whether I heard any noise just before I saw the blaze, I heard nothing aside from what he said when lie called my attention to the fire. There was no fire there while I was looking at it, and no light. by which the box could have been seen. ⅜ * * xhe first I knew of the fire was the flame in my goods. I suppose legally I have no personal knowledge or information as to what caused the fire. I did not see what caused it. I did not hear what caused it. * * * I was several feet away, and the furniture was piled between me and the fire. * * * I did not see any fire before the Mexican got there. I was in exactly that place before the fire. I was away about a minute or a minute and a half, just enough to walk around the pile looking on the other side. I did not have anything to do with starting that fire.”

The fire department was called, and apparently extinguished the fire. Appellants’ goods were not injured or burned by that fire. About 3⅛ or 4 hours thereafter a second fire occurred. As to the second fire the witness Bagley said:

“Apparently, the fire was from the inside of the building. I do not know anything about the origin of the second fire.”

The second fire is the one which destroyed appellants’ goods. Bagley is the only witness that testified as to the origin of the fire. Appellants insist that, where the evidence shows the delivery of the goods to the warehousemen and the goods are destroyed by fire, a prima fade case of negligence is made, and the duty to explain the origin of the fire and excuse themselves from negligence is with the warehouseman. The cases we have examined are in conflict on the point. In Kight v. Wrightsville, etc., R. R. Co., 127 Ga. 204, 56 S. E. 363, and Wardlaw v. South Carolina Ry. Co., 11 Rich. (S. C.) 337, it is held that one acting in the capacity of warehouseman must show how the fire occurred, and if this is not shown the warehouseman might be held liable for the loss. We think, however, the weight of authority is that the bailor has the burden of showing that the warehouseman was guilty of negligence where the proof shows a loss of the goods by fire, as a presumption of negligence does not arise from the mere occurrence of fire. Our own courts have held that the warehouseman is not liable for the loss of the goods unless it be proved that the loss was occasioned by the negligence of the warehouseman, and the burden of proving the negligence is upon the bailor. T. & P. Ry. Co. v. Capps, 2 Willson, Civ. Cas. Ct. App. § 36, and cases there cited; also G., H. & S. A. Ry. Co. v. Smith, 81 Tex. 479, 17 S. W. 133.

In Texas & Pacific R. R. Co. v. Morse, 1 White & W. Civ. Cas. Ct. App. § 414, the court said:

“Where the proof shows a total default in delivering the goods, or a failure to account for their nondelivery, a prima facie case of negligence is made out, and the burden of proof is there shifted to the defendant to rebut this prima facie negligence by evidence that the loss did not happen in consequence of his neglect to use all that care and diligence that a prudent or careful man would exercise in relation to his own property. * * * In this case the loss of the goods was accounted for when demanded by appellants showing they had been destroyed by fire, and the burden was upon the plaintiff to show that the fire was the result of want of ordinary care on the part of defendant or its em-ployés.”

Appellants and Daniel allege the removal of the goods by Daniel from his warehouse and the storage in a warehouse owned and operated by Peyton and Wyatt, and that while so stored all of said goods were burned in said warehouse of Peyton and Wyatt. These allegations had the effect to relieve Peyton and Wyatt of allegation and proof that they were warehousemen, and that, as such warehousemen, they had the goods stored and the destruction of the goods while in their warehouse by fire. As to Peyton and Wyatt there was no issue of fact tendered either by appellants or Daniel except the question of negligence in the destruction of the goods while in their warehouse, unless they can be charged, under the pleading and proof, with Daniel, in whatever there might be of a conversion of the goods, if any, by the wrongful transfer from Daniel’s warehouse to that of Peyton and Wyatt. There is nothing in the pleadings and proof to suggest a wrongful act on their part,- other than the allegation of negligence in the destruction of the goods by fire. Under the above authorities the burden of proof on the issue of negligence was on appellants as to Daniel, and on appellants and Daniel as to Peyton and Wyatt. Failing to discharge that burden, there was, it seems to us, no error in instructing the jury as to Peyton and Wyatt. We have arrived at a different conclusion, however, as to Daniel. The written contract for the storage of the first delivery of the goods is an ordinary receipt for the goods for storage at owner’s risk of damage by fire, for .which appellants agreed to pay $1 per month storage. However, appellants alleged in their petition that when Daniel received the goods it was understood and agreed between the Thorntons and Daniel that Daniel was to store said goods in his own private warehouse, and that he wrongfully stored them in the warehouse of Pey-ton and Wyatt. On the first delivery of the goods for storage A. M. Thornton testified, without objection, that he went to Daniel’s office and arranged with him to take the goods from his office and put them in his (Daniel’s) warehouse. Mrs. Thornton testified that she called up Mr. Daniel or some one in his office and instructed him to get the goods (the second delivery) at Mrs. Van Epps’ which she had instructed Mrs. Van Epps to turn over to him, and to store them with the other goods he had of hers on Myrtle avenue. Mrs. Van Epps testified that she gave Mr. Daniel the instruction she had from Mrs. Thornton and that they .were to be stored in Mr. Daniel’s warehouse. While the receipt for the goods did not mention the place where they were to be stored, the evidence is uncontradicted that the agreement between appellants and Daniel was that the goods were to be stored in Daniel’s warehouse on Myrtle avenue. The record does not show a written contract or receipt for the second consignment of goods delivered. The uncontradicted evidence is that all of the Thornton goods were urst stored in Daniel’s warehouse on Myrtle avenue, and thereafter, without the knowledge or consent of the Thorntons, transferred to the warehouse of Peyton and Wyatt, where they .were destroyed by fire.

Daniel offered no evidence on the facts alleged by him in his petition. Under the case of Rex v. James, supra, Daniel having received the goods under a contract to store them in his own warehouse, and having actually stored them in his own warehouse under said agreement, was a depositary bailee, and any transfer of the goods by him to any place for storage other than his own warehouse, without the knowledge and consent of appellants, is in legal effect a conversion of the goods. To the same effect is Sims v. Chance, 7 Tex. 569; Barnett v. Tonnies (Mo. App.) 180 S. W. 1000; Cooley on Torts (3d Ed.) pp. 1132, 1133, holding that the bailee is bound to keep within the terms of his bailment. A contract is a matter of arrangement of the parties to it, and one of the parties cannot, without the consent of the other, substitute something else in its stead, even though the one substituted is more beneficial to either or both of the parties.

Our conclusion is that the trial court was in error in instructing the jury to find for the defendant Daniel. We are of opinion that Daniel, by his action in intrusting the possession of the goods to another warehouseman and placing the same in a warehouse other than his own, breached' his contract of bailment, and is liable for the destruction of the goods by fire in such warehouse, regardless of any question of negligence.

We therefore affirm the case as to Peyton and Wyatt, and reverse and remand as to defendant Daniel.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    HOUSTON NAT. EXCHANGE BANK et al. v. SCHOOL DIST. NO. 25, HARRIS COUNTY.
    (No. 7235.)
    (Court of Civil Appeals of Texas. Galveston.
    April 3, 1916. )
    1. Statutes <&wkey;181(l) — Construction.
    The controlling' consideration in construing a statute is the ascertainment of the intention of the Legislature, which, when ascertained, must be given effect, when not inconsistent with the organic law of the state.
    [Ed. Note. — F°r other cases, see Statutes, Cent. Dig. § 259; Dec. Dig. c&wkey;181(l).]
    2. Statutes &wkey;>225 — Construction — Legislative Intent.
    To gather the legislative intention in enacting a particular statute, the courts are not confined exclusively to a consideration of it, but may look to other legislation in pari materia.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 302, 303; Dea Dig. ⅞⅝=»225.]
    3. Schools and School Districts <&wkey;18 — Control oe Funds bt County Auditor-Statute — “Funds eor the Use oe, or Belonging to, the County.”
    Under Rev. St., art. 1476, providing that it shall be the duty of the auditor to have a general oversight of all the books and records of all the officers of the county, district, or state who are authorized or required by law to receive or collect any money, funds, fees, or any other property for the use of or belonging to the county, a county auditor has no supervision of the funds of a common school district of the county, a supervision which is given school officers, such as trustees, superintendents, etc., named in the general statute governing the public free schools of the state; funds of a school district not being “funds for the use or belonging to the county.”
    [Ed. Note. — For other cases, see Schools and School Districts, Gent. Dig. §§ 25-33; Dec. Dig. <&wkey;>18.]
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by Ed. F. Pickering and others, composing the Board of School Trustees of Common School District No. 25 of Harris County, against the Houston National Exchange Bank and others. From a judgment for plaintiffs, the named defendant and another appeal.
    Affirmed.
    Sewall Myer and Fisher, Campbell & Amer-man, all of Houston, for appellant H. L. Washburn. Otto Taub, of Houston, for appellant Houston Nat. Exchange Bank. Jno. C. Williams, of Houston, for appellee.
   LANE, J.

Ed. F. Pickering, J. W. Culpep-per, and James Foster, composing the board of school trustees of common school district No. 25, Harris county, Tex., hereinafter called “school district,” brought this suit against the Houston National Exchange Bank, hereinafter called “bank,” Harry L. Washburn, auditor of Harris county, and others whose names are unnecessary for the purposes of this opinion. The real purpose of the suit was: First, to restrain H. L. Washburn, as county auditor, from in any manner interfering with the affairs of said school district No. 25, and from further claiming and asserting any authority to act as auditor of said school district; second, to restrain said bank from paying warrants audited and signed by said Washburn as auditor; and, third, to compel said bank, as depositary of the funds of said school district, to pay all warrants legally drawn against the funds of said school district, without requiring same to be approved or audited by said county auditor, H. L. Washburn.

It is provided by article 1467 of the Revised Civil Statutes, known as the “Auditor’s Act,” that:

“It shall be the duty of the auditor to have a general oversight of all the books and records of all the officers of the county, district or state, who are now, or who may hereafter be, authorized or required by law to receive or collect any money, funds, fees or other property for the use of or belonging to the county.”

It is conceded by all parties to the suit that the only question presented for decision is: Are the funds of said school district, “funds for the use of, or belonging to, the county,” as that term is used in the act of the Legislature creating and defining the duties of county auditors, as above set out?

The trial court determined the issue presented in favor of the plaintiff and granted the relief prayed for, and from the judgment rendered H. L. Washburn, auditor, and said depositary, bank, have appealed.

As the only question to be decided is, What did the Legislature mean by the use of the words, “money, funds, fees or other property for the use of, or belonging to the county,” found in that section of the auditor’s act above quoted? it becomes necessary to examine not only the several sections of said act, but also the law constituting the whole machinery of the law governing the public school affairs of this state so as to reach an intelligent conclusion. It would be an unprofitable waste of time to enter into a lengthy discussion as to whether school funds are county funds or state funds. The important inquiry is: What money, funds, fees, and other property the Legislature intended to place under the oversight of the county auditor? The controlling inquiry is: What was the intention of the lawmaking power? To ascertain the intention of the lawmaking power is the end and aim of-all rules of statutory construction, and, when ascertained, to give to it effect, when not inconsistent with the organic law of this state, is th'e duty of all courts. To gather that intention, the courts are not confined exclusively to the consideration of the immediate statute in question, but may look to other legislation in pari materia. If we do so in this case, we find that the same Legislature that passed the auditor’s act, approved April 22, 1905 (Acts 29th Leg. e. 161), had just seven days prior thereto passed a general law covering in every detail the legal machinery governing the public free schools of this state which, in every instance where school funds and property are mentioned, expressly gives the supervision of such funds and property to certain school officers named therein; such as trustees, superintendents, etc. This school law was approved April 15, 1905, just seven days prior to the approval of said auditor’s law; both passed by the same Legislature at the same session. Surely in th’e light of the fact that this school law, which covers or is meant to control and govern such important matters as our public free schools, was passed and approved only seven days prior to the passage and approval of the auditor’s law, under discussion, it cannot be concluded or reasonably contended that it was the intention of the Legislature to repeal or nullify any provisions of said recently passed school law by the passage of said auditor’s law. On the contrary, the intention of the Legislature evidently was that such power or authority, where it had been granted to the school officers, should remain there. If the county auditor has such control over the school funds, by virtue of the auditor’s law, as contended by appellant, many of the vital provisions of the public free school law would be nullified, and the usefulness of the entire machinery of the law concerning and governing public free schools would be seriously impaired, if not effectually destroyed. Such result could not have been the intent or purpose of the Legislature which passed both of the laws under discussion. To hold that such was the intention of the lawmakers would convict them of inexcusable folly.

Our Supreme Court, in the case of Webb County v. School Trustees, 95 Tex. 131, 65 S. W. 878, held that all school funds are state funds, and that the counties in the state, in holding such funds, hold them as trustees, and that the free schools are the beneficiaries; that, when the commissioners’ court has seen that the available school funds are paid to the county treasurer for maintenance of the schools for the current year, it has discharged the county from further liability for the same; that thereafter the county school superintendent has control thereof, subject only to the supervision and direction of the state superintendent, and they are no longer subject to the control of said commissioners’ court; that the county superintendent of public instruction was a state officer, and that, the state having assumed the functions of maintaining public free schools for the education of the children throughout its domain, the counties were recognized with reference to that business merely as subdivisions of territory, and some of their officers as proper agents for the administration of affairs relating to the public free schools; that such officers, with respect to such affairs, act for the state and not for the county ; that this is true even as to officers who in other respects are county officers in fact as well as in name. The court, in rendering its opinion in said ease, says:

“Our organic law, in the article devoted to the subject of public education, contains this emphatic declaration: ‘A general diffusion of knowledge being’ essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the state to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.’ Constitution, art. 7, § 1. This devolves the duty of establishing and maintaining public free schools upon the Legislature, and shows that the function of such establishment and maintenance was to be performed by state agencies. Sections 2 and 5 of the same article provide that certain funds and property, including one-half of the unappropriated public domain, shall constitute a public free school fund] Section 5 also declares, in effect, that the annual income derived from the permanent fund, together with the tax provided for in section 3, shall constitute the ‘available school fund of the state, by which is meant the fund which may be appropriated annually to the maintenance of the schools.”

Quoting then from section 6 of said article of the Constitution with reference to lands granted the several counties of the state for educational purposes, the court calls attention to that provision which says that said lands, or the proceeds thereof when sold, shall be held by said counties alone as a trust for the benefit of the public schools therein, and says that the several funds so provided for the respective counties were to supplement the portion of the general available fund of the state which should be set apart to the respective counties and to be appropriated solely for the support of the schools established by the state.

The soundness of the opinion just quoted, as. well as what we have already said, will hardly be seriously questioned if we consider the law approved April 15, 1905 (Acts 29th Leg. c. 124), for the management and control of the affairs of the public free schools of the state, in connection with the auditor’s law, now under discussion, approved April 22, 1905, relating to auditing the finances of the county. Article 2824 gives the school trustees of the common school district absolute control over all the affairs of the district, “subject to the rules and regulations of the county and state superintendents.” Article 2822 provides that the trustees of school districts, and their successors in office, shall be a body politic and corporate in law, etc., may contract and be contracted with, sue and be sued, etc. Article 2752 provides that the county superintendent of public instruction shall have, under the direction of the state superintendent of public instruction, the immediate supervision of all matters pertaining to public education in his county.

Since the enactment of the above article, a county board of trustees has been created by law, and by article 2849g of Vernon’s Sayles’ Ann. Civ. St. 1914, they are made a •body corporate, etc. As evidencing the Legislature’s recognition of the fact that the public free schools of Texas is a matter under the supervision of the state, and entirely disconnected with county affairs, they provided by article 2849f:

. “All rights and powers pertaining to the public free schools of a county that have heretofore been vested in the commissioners’ court and that are not prescribed in this act, shall hereafter be vested in the county school trustees,” etc.

Article 2849j provides:

“All appeals from the decision of the county superintendent of public instruction shall lie to the county school trustees, and from the said county school trustees to the state superintendent of public instruction, and thence to the state board of education.”

Article 4510 (Rev. St. 1911) prescribes the duties and powers of the state superintendent of public instruction, and, among other things, says:

“He shall hear and determine all appeals from the rulings of the decisions of subordinate school officers, and all such officers and teachers shall conform to his decisions, unless they are reversed by . the state board of education. He shall prescribe suitable forms for reports required of subordinate school officers and teachers, and blanks for their guidance in transacting their official business and conducting public schools,” etc.

Article 2773 provides that all treasurers receiving or having control of any school fund, etc., shall on or before the 1st day of October of each year file with the state superintendent of public instruction an itemized report in duplicate of the receipts and disbursements of the school fund, etc., which reports shall be on the prescribed form furnished by the Department of Education, etc., and provides further:

“The state superintendent in examining any report may call for vouchers and make such investigation of the correctness and legality of the different items as he may deem necessary.”

Article 2756 provides that the county superintendent shall approve all vouchers legally drawn against the school fund of his county, etc.

We thus see that the duties that appellant Washburn claims he is to perform with reference to common school districts had, before the enactment of the county auditor law only seven days theretofore, been assigned to the state and county superintendents of public instruction, with the assistance of the county school board, and that every act of the district school trustees called in question is subject to review and revision by said bodies. Article 2729 provides the method by which the state boa'rd of education shall make up the apportionment of the state school fund to the several counties and districts of the state. Article 2769 provides what the county treasurer shall do when receiving notice from the state superintendent of the amount apportioned to the school fund of his county. Article 2755 provides what ■ the county superintendent shall do when he receives the certificates showing the apportionment to his county. Article 1460, which provides for the creation of the office of county auditor, provides that he shall receive an annual salary “of $2,400.00 to be paid out of the general fund of the county upon the order of the commissioners’ court.” No part of the burden of said office is to be borne by the school funds. Article 1461 provides that the auditor shall be appointed by the judges of the county and district courts, or courts having jurisdiction in the county, and that the action of appointing said auditor shall be reported by the county judge to the commissioners’ court in regular or special session, which shall have said appointment entered upon the minutes of the court. Article 1464 provides that he may appoint an assistant to act in his stead, who may discharge the duties of his office during his absence or unavoidable detention; said appointment to be made with the consent of the county judge. Article 1465 provides that he may appoint additional clerical help when needed, with the consent of the county judge or of the commissioners’ court. Article 1468 gives the auditor continual access to and the right to examine the books, accounts, reports, and vouchers of any of the officers, and “also the orders of the commissioners’ court relating to the finances of the county.” Article 1473 reads as follows: “The auditor shall see that the law is strictly enforced.” Article 1484 provides that the auditor shall not audit any claim or account for supplies or material for the use of the county, or any of its officers, unless they have been legally made, and there is attached thereto a requisition signed by the officer ordering the same and approved by the county judge. Article 1492 provides that the auditor shall prepare an estimate of all the revenue and expenses and annually furnish the same to the commissioners’ court, and that the court shall carefully make a budget of all apportionments to be set aside for the various expenses of the county government in each branch and department. Article 1476 provides that he shall prescribe and prepare the forms to be used by all persons in the collection of county revenues, funds, fees, and all other moneys, and the mode and manner of keeping -and stating their accounts; also, the mode and maimer of making their annual report of office fees collected and disbursed and the amount refunded to the county, etc. This article is in direct conflict with the school law of Texas if the auditor has oversight of the common school districts, because as an incident thereto he must have oversight over the county school superintendent as well. Article 1480, auditor’s law, says:

“Supplies of every kind, road and bridge material, or any other material, for the use of said county, _ or any of its officers, departments or institutions, must be purchased on competitive bids, the contract to be awarded to the party who, in the judgment of the commissioners’ court, has submitted the lowest and best bid.”

And it provides further that the auditor shall advertise, etc., for said bids, and that the county auditor shall furnish copies of all bids received to the county judge and to the commissioners’ court, and that unless they are satisfactory to the county judge or commissioners’ court, it shall be the duty of the auditor to reject said bids and re-advertise, etc.

A careful study of these articles leads us to the conclusion that, if the auditor’s law was intended to apply to the common school districts, then the whole system of school laws were thereby practically abolished and repealed by implication. The commissioners’’ court, and not the trustees of the district, must be satisfied with and direct the auditor to accept the bid. The auditor accepts the bid and thereby closes the contract, destroying the power conferred upon the board of trustees, “to make all contracts,” etc., and the state and county school superintendents lose their, power of revision and control.

Article 1481 provides that all bills and accounts must be filed in ample time for the auditor to examine and approve the same before the meeting of the commissioners’ court, and that no account shall be paid until the same has been examined and approved' by the county auditor, thereby taking from-the county superintendent of public instruction the authority to approve vouchers,, and by inference, at least,, requiring them to go before the commissioners’ court with the auditor’s approval before they can be-paid. In fact, Anderson v. Ashe, 99 Tex. 447, 90 S. W. 874, and Yantis v. Montague-County, 50 Tex. dv. App. 403, 110 S. W. 162, each hold that the auditor’s approval is a condition precedent to the exercise of' jurisdiction over the claim by the commissioners’ court.

Article 1477 of the auditor’s law says:

“I-Ie shall have the power to adopt and enforce-such regulations, etc., as he may deem essential to the speedy and proper collections, checking and accounting of the revenues and other funds- and fees belonging to the county.”

Article 1478 says:

“All deposits that are made in the county treasury shall be upon a deposit warrant issued by the county clerk in triplicate,” etc., “the-treasurer shall retain the original; the duplicate shall be signed and returned to the county clerk for the county auditor, and the triplicate signed- and returned to the depositors,” etc.

We feel that it is useless to quote further from the auditor’s act in order to show that the funds over which he is given an oversight and control are strictly county funds,, and are not school funds, and that it is apparent therefore that the Legislature did not intend to include the school funds in the-term “money, funds, fees or other property for the use of, or belonging to the county,” found in article 1467 of the auditor’s law. The authorities cited by appellant are not inconsistent with this view or with the views of the Supreme Court in the Webb County Case, above quoted.

Article 1484 says:

“He shall not audit or approve any claim against the county, unless the same has been contracted as provided by law, nor any account for the purchase of supplies or material for the use of said county, or any of its officers,” etc.

While article 1473 says: “The auditor shall see that the law is strictly enforced.”

“These expressions, together with similar expressions throughout the law, show that the auditor is clothed with the power and authority to inquire, not only into the question of whether or not the voucher is in proper form, but into the legality of each and every step taken by the officer who made said contract.

In Oge v. Froboese, reported in 66 S. W. 688, our Court of Civil Appeals, speaking through Justice Fly, on the question of whether or not the county treasurer was liable for misapplication of school funds, says:

“To sustain this suit, it must necessarily be held that the county treasurer, in his disbursement of the available county school fund, is-clothed with the power and authority to inquire, not only into the legality and validity of every warrant or voucher drawn on him by the school superintendent, but to go back of it, and inquire into and decide upon the legality of any apportionment made by such superintendent. This would be an extraordinary power to invest in any officer, involving, as it would, the power to discontinue, for a time at least, the machinery provided for the education of the children of the state, by withholding the money necessary for carrying on such machinery. To invest a county officer with such weighty authority, there should be some express statutory warrant or sanction. Grants of power to public officers are subject to a strict interpretation, and are construed as conferring those powers only which are expressly imposed or necessarily implied. Meachum, Pub. Off. par. 511. The enforcement of this rule is necessary for the protection of public interest, and must be kept in view in the consideration of the acts of public officers.” ■

As further evidence that the Legislature did not intend to include the school funds in the phrase of the auditor’s law, in question, as county funds, they had only a few days prior to the passage of said auditor’s act, by articles 2760 and 2761, provided that a child might be transferred from a school district in one county to an adjacent district in another county, and that such child’s portion of the school fund may be transferred to such adjacent district in said other county; such transfer to be made by the county school superintendent, upon the application of the parent of said child. Such provision is inconsistent with the contention of appellant, either that the Legislature intended to speak of the school fund, as funds for the use of or belonging to the county, or that the county auditor was to exercise oversight of such funds.

Having definitely reached the conclusion that the county auditor has no authority to exercise any oversight or supervision over the school funds, we hold that the trial court did not err in granting the orders prayed for, and therefore the judgment of the trial court is affirmed.

Affirmed.
      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    HOUSTON & T. C. RY. Co. v. LEWIS.
    (No. 7458.)
    (Court of Civil Appeals of Texas. Dallas.
    April 15, 1916.)
    1. Damages <&wkey;113 — Personal Property.
    When personal property is damaged or partially destroyed, or impaired in value, the measure of damages is ordinarily the difference between its value before the injury and immediately thereafter, together with any reasonable expenses incurred and the value of any time spent in reasonable efforts to preserve or restore the property.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 90, 91, 279, 280; Dec. Dig. &wkey;
    2. Damages <&wkey;113 — Personal Property.
    The fundamental and controlling principle as to damages allowable for injury to personal property is that the injured party shall have actual pecuniary compensation for the injury received, so that he may be placed as near as may be in the condition which he would have occupied but for the injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 90, 91, 279, 280; Dec. Dig. &wkey; 113.]
    3. Carriers <&wkey;>135 — Carriage oe Goods — Damages.
    In a suit for damages to $1,000 bushels of shipped corn, it is error to allow recovery of damages, although actually suffered, of 18½ cents on every bushel, where plaintiff admitted that after the shipment his customer accepted and paid for 367½ bushels at the full price agreed, although the customer claimed damages, but plaintiff does not state the amount or whether it was paid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603½-604⅛; Dec. Dig. <&wkey;>135.]
    4. Judgment <&wkey;256(l) — On Trial — Coneormity to Verdict.
    The verdict of the jury on all issues of fact constitutes the sole basis for the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446, 454; Dec. Dig. &wkey;j256(l).j
    5. Judgment <&wkey;256(7) — On Trial —Conformity to Verdict — Interest.
    It is error to award 'a successful suitor interest upon the amount of his recovery where the issue of interest was not submitted to or determined by the jury.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 453; Dec. Dig. <&wkey;>256(7).]
    6. Appeal and Error <&wkey;185(l) — Jurisdiction — Necessity of Objecting in Lower Court to Jurisdiction.
    Jurisdiction of county court may be made an issue for the first time on appeal in the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1168,1170-1176; Dec. Dig. <&wkey;185(l).]

      7. Justices oe the Peace &wkey;> 141(4) — Appellate Jurisdiction oe County Court.
    The appellate jurisdiction of the. county-court cannot exceed in amount the jurisdiction of the justice court in appeals from the latter.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 473; Dee. Dig. 141(4).]

      8. Dama&es <&wkey;68 — Interest.
    In a suit for damages to personal property, interest is not recoverable eo nomine, but as damages.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 141-143; Dec. Dig. &wkey;68.]
    9. Courts <&wkey;169(4) — Limited Jurisdiction— Amount Involved.
    Where interest from the time of accrual is claimed as damages, to ascertain whether the amount sued for does not exceed the jurisdiction of the trial court there must be added to the amount sued for the interest calculated to the time of filing the pleading.
    [Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 419, 420, 429-436; Dec. Dig. &wkey; 169(4).]
    10. Justices oe the Peace <&wkey;188(3) — County Court’s Appellate Jurisdiction.
    Where a case was removed from justice court to county court for trial de novo, and there the petition was amended and recovery of an amount and interest thereon which totaled $214.88 was asked, held the county court was without jurisdiction .to render a judgment for any amount over $200.
    [Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. § 724; Dec. Dig. <&wkey;> 188(3).]
    11. Evidence <&wkey;552 — Examination oe Experts — PI ypothetical Questions.
    If witnesses as to difference in market value of corn before and after the injury are experts, they may give their opinions upon hypothetical questions.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2368; Dec. Dig. &wkey;552.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by A. S. Lewis against the Houston & Texas Central Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Smith, Robertson & Robertson and Paul A. McDermott, all of Dallas, for appellant. W. G. Miller and Short & Field, all of Dallas, for appellee.
   RASBURY, J.

This suit was commenced in justice court against appellant and other carriers to recover damages for injuries to a shipment of corn.' By the pleadings in justice court a general charge of negligence in transportation and resulting damages in the sum of $15S.22 was charged, for which amount there was recovery against appellant. On appeal to the county court appel-lee amended his pleadings twice, but, since it .will be necessary to specifically consider the amendments in discussing the issues, further statement of the pleading is unnecessary at this juncture. The case was submitted to a jury upon special issues of fact, and the findings of the jury which are supported by the evidence are, in substance, that appellee delivered to appellant 1,000 bushels of corn in good condition of the then market value of 18½ cents per bushel for transportation and delivery to appellee’s customer Brogdon at Bryan, which consignment appellant accepted, that appellant was 14 days in transporting the shipment to destination, which was an unreasonable time, and that, due to such delay, the corn when delivered was in a damaged condition, and that the difference in value of the com in the condition in which it would have arrived had it been transported within a reasonable time and the condition in which it was delivered was 18½ cents per bushel. Upon such findings the court awarded judgment for appellee for $215.65, of which sum $185 was for damage to the com, the remainder for interest. Prom such judgment, this appeal was taken.

The first assignment, in effect, is that the judgment is excessive, because the undisputed evidence shows that appellee’s loss was upon only 632½ bushels of corn, and not upon the entire 1,000 bushels. This assignment must be sustained. According to appellee, he shipped 1,000 bushels of corn to Brogdon, and according to all of the testimony and the findings of the jury the entire 1,000 bushels were damaged, the extent of the damage being 18½ cents per bushel, which would, in the absence of other facts, entitle appellee to $185, the amount allowed by the trial judge on the jury’s findings. However, according to appellee’s admissions, Brogdon retained 367½ bushels of the corn, and paid aiipellee the market or agreed price of 88½ cents per bushel, which reduced ap-pellee’s loss to 18½ cents on 632½ bushels, or $117.01. Appellee does state that Brogdon claimed damages on the amount he retained, lie did not, however, testify the amount claimed or whether the claim was paid. If any amount was paid to Brogdon, -appellee knew it and .would undoubtedly have claimed it. The general rule is that, when personal property is damaged or partially destroyed or impaired in value, the measure of damages is ordinarily the difference between its value before the injury and immediately thereafter, together with any reasonable expense incurred and the value of any time spent in reasonable efforts to preserve or restore the property. T. & P. Ry. Co. v. Levi, 59 Tex. 674; Arbuckle Bros. v. Everybody’s Gin & Mill Co., 148 S. W. 1136. While the foregoing are correct and general rules, it is also true that the fundamental and controlling principle is that the injured party shall have actual pecuniary compensation for the injury received, so that he may be placed as near as may be in the condition which he would have occupied but for the injury sought to be redressed. Jones v. George, 61 Tex. 345, 48 Am. Rep. 289; St. Louis & S. P. I-ty. Co. v. McDurmitt Grain Co., 87 S. W. 355. Thus, while it appears from the evidence that the entire 1,000 bushels were damaged, it also appears that appellee was .able to dispose of a portion of the damaged com at its full market value, and to that extent, applying the rule of compensation, his damages were decreased, and he was not therefore entitled to recover on the whole 1,000 bushels.

By the second assignment of error it is urged that the court erred in awarding appellee interest upon the amount of his recovery, on the ground that the issue of interest was not submitted to the jury. This assignment must also be sustained. Ap-pellee did seek the recovery of interest by his pleadings, but that issue was not submitted to the jury, and hence no finding by the jury that appellee should recover interest. The court awarded interest on the damages allowed by the jury on the theory, we presume, that the legal rate being fixed by law, and the jury having found the amount of the damage, interest, being a matter of computation, would follow as matter, of law. Such view is incorrect, however. No rule is better settled than that the verdict of the jury on all issues of fact constitutes _ the sole basis for the judgment. Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881. It is as well settled that an issue of fact not submitted to the jury cannot be found by the court. Therefore interest, being recoverable in this proceeding only as part of the damages, and never allowed eo nomine, not only must be sought by the pleading, but found by the jury, as any other fact. St. L. S. W. Ry. Co. of Texas v. Addison, 96 Tex. 65, 70 S. W. 200. The cases cited have been uniformly followed, and the citation of further authority will serve no good purpose.

Under the third assignment it is urged that the court erred in not sustaining appellant’s exception to appellee’s second amended original petition, on the ground that said petition disclosed a cause of action which the county court on appeal from the justice court was without jurisdiction to determine, for the reason that the amount in controversy was more than was originally cognizable in the justice court. An inspection of the bill of exceptions reserving the objections to the action of the court hardly raises the question of jurisdiction, but, since it has been uniformly held that jurisdiction may be made an issue for the first time in this court, we will consider the issue as presented in the brief. Appellee commenced his suit in justice court April 17, 1918, and his pleadings were, in substance, that on February 14, 1912, at St. Joseph, Mo., he delivered to appellant for transportation to Bryan, Tex., a car of corn of the probable value of $750, which appellant, by negligent delay in transporting, damaged $158.22, for which sum he prayed judgment, with interest Upon trial appellee recovered judgment for $158.22, with interest thereon from entry of judgment Appellant removed the case to the county court for trial de novo. In that court on June 3, 1914, appellee amended, but in substance repeated, the allegations and prayer of the petition originally filed in the justice court. On December 2, 1914, appel-lee again amended, and in substance alleged that he delivered the ear of corn to appellant February 27, 1912, at Dallas, Tex., in good condition for transportation to Bryan, Tex., which in the usual course should have been transported in 48 hours, but which appellant negligently delayed for 24 days, or until March 23d, and as a result of which said car of com, containing 1,000 bushels, was damaged 18½ cents per bushel, or $185, for which amount, with interest, judgment was prayed. The rule in cases appealed from justice court to the county court is that the appellate jurisdiction of the county court cannot exceed in amount the jurisdiction of the justice court. Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294; St. Louis S. W. By. Co. of Texas v. Berry & Slauter, 177 S. W. 1187. According to ap-pellee’s amended original petition, enlarging his original claim, but not, as argued by counsel for appellant, asserting a new cause of action, the prayer was for $185, with interest. The bare prayer for interest makes it uncertain whether it was intended as a prayer for interest after judgment, as was the case in the judgment in the justice court, or for interest on the amount of the damages from the time of the accrual thereof. However, after trial in the county court contention was for the latter claim, which was allowed. Similar claim is made on appeal, and accordingly we so construe the pleading. As we have said, in a suit for damages to personal property interest is not recoverable eo nomine, but as damages. That being true, in order to ascertain the amount in controversy, to the amount sued for must be added the interest sought to be recovered at the time when claimed. Schulz v. Tessman & Bro., 92 Tex. 488, 49 S. W. 103; Ft. Worth & B. G. Ry. Co. v. Mathews, 169 S. W. 1052. The amount claimed-in the amended petition upon which the suit was tried was $185. Interest on that amount at 6 per cent, from the date the cause of action accrued, which was in no event later than March 23, 1912, to the time of filing the pleading on December 2, 1914, is $29.88, and which, added to the sum sued for, totals $214.88, an amount not cognizable in the justice court, and, as a consequence, in excess of the appellate jurisdiction of'the county court Missouri, K. & T. Ry. Co. of Texas v. Hughes, 44 Tex. Civ. App. 436, 98 S. W. 415. Accordingly we hold that the county court was without authority to render the judgment it did render, and that in eases removed from justice court to county court by appeal the county court may in no event render judgment, in such cases as the instant <3ne for an amount not originally cognizable in the court a quo.

The seventh, eighth, and ninth assignments complain of the testimony of as many witnesses who gave their opinions concerning the difference in the market value of the corn in its original good condition and the condition in which it was after it had germinated as result of heating. If these witnesses were experts, they could give their opinions upon hypothetical questions as other experts are permitted to do so.

The fourth, fifth, and sixth assignments attack the sufficiency of the evidence to sustain the verdict and judgment, which are unimportant in view of the disposition to be made of the appeal.

For the errors indicated, the judgment is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.
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author: RAINEY, C. J.

text:
    FARMERS’ & MERCHANTS’ STATE BANK OF TEAGUE v. SETZER.
    (No. 7549.)
    (Court of Civil Appeals of Texas. Dallas.
    March 18, 1916.
    Rehearing Denied April 29, 1916.)
    1. Gabnishment <§=»164— Indebtedness to GABNISHEE — SUFFICIENCY OF EVIDENCE.
    In garnishment proceedings against a hank, evidence hold insufficient to justify finding that, when the debtor placed a note for $1,320 in the hank for collection, there was no understanding that, when collected, the proceeds should be applied to the indebtedness due from him to the bank.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 302; Dec. Dig. ⅛=>164.]
    2. Gabnishment <®=j105 — Effect.
    The effect of service of garnishment on a bank was to impound in its hands for payment ■of plaintiff’s debt such sum or effects as the debtor had in the bank; plaintiff standing in no better position toward the funds than the debt- or, and being entitled to them subject to reduction by any sum owing the bank from the debtor.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 216; Dec. Dig. <®=ol05.]
    3. Gabnishment <§=3130 — Relation Between Bank and Depositor — Application of Deposit.
    Where a bank collected a note due a depositor and credited the proceeds to him on his account, the bank had the right on being garnisheed by a creditor of the depositor, to apply the deposit to the payment of the depositor’s indebtedness then due it.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 255-259; Dec. Dig. <®=ol30.]
    Appeal from District Court, Freestone County; A. M. Blackman, Judge.
    Garnishment proceedings by E. G. Setzer against the Farmers’ & Merchants’ State Bank of Teague. From a judgment for plaintiff, defendant appeals.
    Reversed, and judgment rendered for defendant.
    Boyd & Bell and D. T. Garth, all of Teague, for appellant. W. E. Terrell, of Teague, for appellee.
   RAINEY, C. J.

Appellee caused a writ of garnishment to issue against appellant by virtue of a claim owing by F. G. Traynham ' to appellee for $950. Appellant answered that it was not indebted to Traynham in any sum, nor had any effects in its hands belonging to him, but, on the other hand, Traynham was indebted to.it in the sum of $3,000, which sum was past due and unpaid at the time of the service of the writ of garnishment, and asked for $50 attorney’s fee. Appellee controverted the answer of appellant and charged that Traynham had a deposit to his credit in appellant bank of $1,320, and that he owned shares of stock in said bank estimated at $2,500, and prayed judgment. A trial was had before the court without a jury, and judgment was rendered against the appellant for $970, and costs of suit, from which judgment this appeal is taken.

On January 13, 1915, the writ of garnishment was issued ancillary to a suit brought by appellee against Traynham on a note due by Traynham in the district court of Freestone county, and the writ was served on the same day. That case was tried in April, 1915, and judgment rendered against Trayn-ham, and during the same term of court judgment was rendered against appellant in the garnishment proceedings.

Traynham was a regular patron of appellant bank. On December 29, 1914, Trayn-ham, according to his testimony and that of two other witnesses, placed in the bank a land note due him for $1,320, principal and interest, for collection, which when collected was to be credited on his indebtedness to the bank. Traynham’s note to the bank was then held in Galveston as collateral security then owing by appellant bank. The bank collected said $1,320, but, not having possession of the Traynham note, placed said amount to Trayn-ham’s credit on a card, intending to transfer said credit to Traynham’s note when received by them from Galveston. The bank used a card system in keeping its accounts, and placed the amount of collection on said card until about January 27, 1915, when the balance, $1,081.34, due by said card account was transferred as a credit to Traynham’s note due the bank. After Traynham deposited the note for $1,320 he continued to patronize the bank, and drew several checks which the bank paid, until January 8, 1915, when the balance per the card was $1,283. On January -21, 1915, the bank paid a note due by Traynham for $202.55, and charged same to him on the card. Under the system of bookkeeping, the card system, there was no other method known by them for the keeping of their accounts straight under the circumstances, than keeping Traynham’s account as it was. The bank’s bookkeeper and one other witness testified that they never heard of Traynham’s contract to apply the proceeds of said note when collected, nor was there any instruction to him that same was to be so applied. At the time of the service of the writ of garnishment Traynham did not own any shares of stock in the bank.

The court found that at the time Trayn-ham placed his note in the bank for collection there was no understanding that the proceeds were to be placed as a credit on the notes held by the bank against him; and it further held that the bank was indebted to Traynham in a greater amount than the claim of Setzer, which entitled Setzer to judgment against the bank for his claim.

We are of the opinion that the trial court was not justified under the evidence in finding that at the time Traynham placed the note for $1,320 in the bank for collection there was no understanding that, when collected, the proceeds were to be applied to the indebtedness due by him to the bank. The president and vice president of the bank and Traynham all testified that such was the understanding. The bookkeeper and some other employs testified that they did not personally know of such understanding, and that no instructions to that effect had been given them. The testimony of said employes, together with the manner of keeping such fund and paying the checks of Traynham, was evidently what the trial court based his judgment on. The testimony was not of sufficient probative force for such basis. The ■bank had the right to continue doing business with Traynham and the paying of money for Traynham and charging it to his account should not weigh against the bank, unless it had funds belonging to Traynham subject to garnishment. The effect of the service of garnishment was to impound in the hands of the bank for the payment of Setzer’s debt such sum or effects as Traynham may have had therein, but he had no such. Setzer by his writ of garnishment stood in no better position toward said funds than Traynham, and surely it cannot be said that he could have demanded of the bank that it pay over to him said funds.

In Cyc. vol. 20, p. 1060, the principle is stated thus:

“Plaintiff seeking to subject a debt due to the principal defendant acquires no greater right by the service of a writ of garnishment than that which defendant could have asserted and enforced in an action against garnishee, and the fact that garnishment process has been served on the garnishee places him in no worse position and under no gr-eater liability than he would have been in or under had action at law been brought against him by defendant.” Ellison v. Tuttle, 26 Tex. 283; Burns v. Lowe, 161 S. W. 942; Neely v. Bank, 25 Tex. Civ. App. 513, 61 S. W. 559.

The bank held Traynham’s notes amounting in the aggregate to about $3,000, and the same were due and unpaid, and it had the right to apply as a credit on said notes any amount that it held of Trayn-ham’s; said amount being much less than the amount then due the bank. Aside from the fact as to whether or not there was an understanding that the proceeds of the Traynham note when collected were to be credited on his indebtedness, we think the appellee was not entitled to recover. By the collection of the note and the crediting of the proceeds to Traynham’s account, as per the card, as between him and the bank the relation of debtor and creditor was created, and the right of the bank had accrued at the time the writ was served to apply said deposit to the payment of Traynham’s indebtedness then due it. Gin Co. v. Bank, 89 Tex. 147, 33 S. W. 862.

“The principle is well settled that the garnishee or trustee may retain in his hands out of the funds of the principal defendant an amount equal to all sums of which he might legally avail himself by way of set-off, by any of the modes allowed, by either the common or statute law, if the action were brought by defendant himself against such garnishee or trustee.” 20 Oyc. 1077.

The evidence clearly shows that, had Traynham sued the bank to recover th-e said deposit, he could not have maintained his action, for the reason that the bank would have the right to set off said claim against the indebtedness due it.

Prom the evidence adduced, we think the court erred in holding that the bank was indebted to Traynham, and the judgment against the bank will be reversed, and judgment here rendered for appellant, together with costs.
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