author: HIGHTOWER, C. J.

text:
    KIRBY LUMBER CO. et al. v. BRADFORD HICKS LUMBER CO.
    (No. 399.)

    (Court of Civil Appeals of Texas. Beaumont.
    April 24, 1918.
    Rehearing Denied May 15, 1918.)
    TENANCY in Common <&wkey;45 — Conveyance by ■ One Tenant-Right or Gbantee Against Cotenants — Injunction.
    Notwithstanding the rule that where a tenant in common conveys to a stranger a specific part of the common lands without consent of his cotenants, ineffectual to prejudice their rights, a court of equity, on partition proceedings, will give effect to the deed, and confirm in the stranger title to such portion, where, on learning of all the facts, it is shown partition can so equitably be made, the stranger cannot in an independent suit, pending partition suit by the tenants in common, have those not joining in the deed to him, of a strip for a railroad, enjoined from interfering with his exclusive possession for construction and operation of the road, on allegation that on partition the specific portion, attempted to be conveyed to him, can be allowed and confirmed in him, without injury to the tenants not joining in the deed; this being a denial of the right of all tenants to possession in all portions of the land; a determination in advance of the partition proceeding that partition can be so made; an embarrassment of the partition proceedings; and in effect another partition proceeding.
    Appeal from District Court, Tyler County; J. Llewellyn, Judge.
    Suit by the Bradford Hicks Lumber Company against the Kirby Lumber Company and others for injunction. Judgment for plaintiff, and- defendants appeal.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue and Kennerly, Williams, Lee & Hill, all of Houston, for appellants. Fisher, Campbell & Amerman, of Houston, Greér & Nall, of Beaumont, and Coleman & Lowe, of Woodville, for appellee.

       For opinion on motion for supplementary findings, see 203 S. W. 922.

   HIGHTOWER, C. J.

The nature and result of this suit, as stated in the brief filed by appellants herein, is found to be substantially correct, and is as follows:

On March 2, 1918, the appellee, Bradford Hicks Lumber Company, presented at Conroe, Tex., to Hon. J. Llewellyn, judge of the district court of Tyler county, Tex., a petition praying for an injunction against Houston Oil Company of Texas, and all the other appellants here, whom it is not necessary to name, as well as their agents, servants, and employés, restraining and enjoining them from in any manner interfering with appel-lees’ possession of a certain designated portion of three surveys of land in Tyler county, Tex., known as the North, South, and Middle Hooe surveys, over which designated portions of said surveys appellee, Bradford Hicks Lumber Company, was alleged to be desirous of constructing a tram railroad track. Upon said petition, Hon. J. Llewellyn, on the date same was presented to him, indorsed his fiat, granting said injunction without notice to appellants, and without affording them an opportunity to be heard, and said petition, with the fiat of said judge indorsed thereon, was filed with the clerk of the district court of Tyler county, Tex., on March 6, 1918.

On March 15, 1918, appellants filed with the district clerk of Tyler county, Tex., their appeal bond, whereby they perfected an appeal from the order of said judge, and at the same time filed in said district court of Tyler county certain ássignments of error, challenging the correctness of the action of Judge Llewellyn in granting said injunction. Thereafter, on March 16, 1918, appellants filed in this court a transcript of the record prepared by the clerk of the district court of Tyler county, and their appeal is now before this court for hearing and disposition.

We shall not undertake to set out at length the petition of the appellee, upon which the order by Judge Llewelljm in chambers was made, but think it will suffice to state the following material facts, which appear from the petition, and which facts alone are relied upon by the appellee here to uphold the injunction granted in this case:

(1) .It is alleged that appellee, Bradford Hicks Lumber Company, is the owner of the W. S. Brown survey of land in Tyler county, upon which it has just completed the construction of a sawmill for the purpose of manufacturing lumber, and that this Brown survey of land is located just north of three other surveys of land in said county, known as the North, Middle, and South Hooe surveys ; and that appellee is also the owner of all the timber on a league of land known as the George Brown league, in Hardin county, and which lies immediately south of the South Hooe survey, and that appellee is desirous of cutting the timber on the George Brown league in Hardin county, and hauling same to its said sawmill for manufacture into lumber, etc.

(2) It is alleged that in August, 1917, Thomas S. Hughes, Thomas J. Baten, W. D. Gordon, Mrs. Carrie Little, as executrix, and for herself individually, W. S. Parker, and E. C. McLean made a deed to appellee, whereby the sail Hughes, Baten, and others conveyed to appellee, by specific metes and bounds, a certain strip or parcel of land across said North, Middle, and South Hooe surveys, said strip being 50 feet in width and in length sufficient to cross all of said surveys; that the purpose of appellee in purchasing this strip of land across said Hooe surveys was to make it the owner thereof, and enable it to build and construct a tram railroad over said Hooe surveys from its mill on the W. S. Brown survey in Tyler county, to the timber owned by it on the George Brown league in Hardin county, so that it might cut and remove said timber to its said mill; that ap-pellee had commenced the construction of its tram railroad, and at the time of the presentation of said petition to said judge, praying for the injunction herein, had nearly reached the north line of the North Hooe survey with its said tram railroad.

(3) Appellee alleged that at the date of said deed to it from Hughes, Baten, Gordon, Little, Parker, and McLean, they, the said Hughes, Baten, and others, owned jointly with the appellants here the said North Hooe survey and the south half of the South Hooe survey, but that such ownership was as tenants in common, the interests of said owners being undivided in said Hooe surveys; and it is alleged by appellee that in consequence of said deed to it by said Hughes, Baten, and others, tenants in common with appellants here, appellee became the sole owner of said strip of land across said Hooe surveys, and that appellee is entitled to the exclusive possession thereof, for the exclusive operation of its contemplated tram railroad; that said strip of land conveyed to appellee across said Hooe surveys is of no greater value than any other portion of said Hooe surveys, and that appellants’ cotenants, _ Baten, Hughes, and others, owned a much larger interest in said North and South Hooe surveys than was conveyed by their said deed to appellee, and that under such circumstances appellants’ cotenants, Hughes, Baten, and others, had a right to convey to appellee the specific portions of said North and South, Hooe surveys, as they undertook to do by said deed, and that appellee was entitled to construct its tram railroad upon those portions of said surveys so conveyed, and to use the same for its tram railroad purposes, to the exclusion of and without being interfered with by appellants.

(4) It is further shown from the petition that at the time the deed from Hughes, Ba-ten, and others, appellants’ cotenants, was. made to appellee, whereby appellants’ said cotenants attempted to convey certain designated portions of said North and South Hooe, surveys to appellee, a suit for partition had been instituted in Hardin county by the said Hughes, Baten, Gordon, Little, Parker, and McLean against the appellants, in which suit partition of said North and South Hooe surveys is prayed for, as between the said plaintiffs therein and appellants here, but that no judgment of partition had yet been rendered in said partition proceeding, but that, nevertheless, the interest of appellants, as tenants in common with said Hughes, Baten, and others, could be and would be fully and adequately protected in said partition suit in Hardin county, when judgment therein should be rendered, and that such judgment could there be rendered as would give effect to the deed made by said Hughes, Baten, and others to appellee, and confirm in it the specific, portions of said North and South Hooe surveys as were con-' veyed to it by said deed, and that at the same time the interest of appellants could and would be fully protected in said partition proceeding.

(5)It was further alleged in the petition that appellee feared that appellants would interfere with its attempt to construct its said tram railroad across said Hooe survey, and would interfere with its operation of its said tramroad, as appellants had threatened to do, and, if so, appellee would be prevented from manufacturing its said timber, and would be greatly and irreparably damaged, etc.

The prayer of appellee found in the petition was as follows:

“Plaintiff prays that the defendants be cited in terms of law to answer this petition, and that pending the final hearing hereof, your honor do issue his most gracious writ of injunction, restraining the defendants and each of them, their agents, servants and employós, from in any way interfering with or disturbing plaintiff in its possession of that portion of the North Hooe survey and south half of the South Hooe survey described in the deed. from Thomas Hughes and others to this plaintiff, and herein described; that said defendants, their agents, servants and employes, be enjoined and restrained from in any wise interfering with the track or tram-road placed upon the portion of the North Hooe and south half of the South Hooe surveys described in said deed from Thomas Hughes ot al. to plaintiff, and that they be enjoined and restrained from interfering with the operation thereof pending the final hearing of this cause; that your honor do, upon such final hearing, perpetuate said injunction and grant plaintiff such other and further relief, both general -and special, to which it may be entitled hereunder, and as in duty bound it will ever pray.”

The order made by Judge Llewellyn in chambers and without notice to appellants, but requiring them to make a bond in the sum of $1,000, was as follows:

“It is therefore considered, ordered, adjudged and decreed by the court that the defendants [naming them], their servants, agents and employes, be restrained and enjoined from in any way interfering with plaintiff’s possession of that portion of the North and South and Middle Hooe surveys described in plaintiff’s petition, on which it is now engaged in constructing a tram railroad track; and that the clerk of the district court of Tyler county, Texas, issue writs of injunction as provided by law, and that the same be made returnable to the next term of the district court of Tyler county.”

Appellants here assign a number of reasons for which they claim the injunction in this case was improvidently and erroneously granted, in so far as the same relates to the North Hooe survey, and the south half of the South Hooe survey, but we shall only mention the two principal contentions made by appellants.

Appellants’ first contention, in effect, is that since the petition of appellee showed upon its face that appellee could in no event have any greater right in the North Hooe survey and the south half of the South Hooe survey than that of a tenant in common with appellants, appellee was not entitled to have a court of equity, 'by an injunctive writ, in advance of partition, grant any certain designated portion of said surveys so owned in common, to the exclusion of appellants, for the private use and benefit of appellee. In other words, it is the contention of appellants, in effect, that appeEee’s petition upon its face showed no legal or equitable right to the injunction prayed for, and which was granted in this cause, and this contention, we have concluded, must be sustained. As far back as the case of McKey v. Welch, 22 Tex. 390, the Supreme Court of this state, speaking through Chief Justice (Wheeler,, said:

“It appears to be well settled, and upon good reasons, that one joint tenant, or tenant in common, cannot convey a distinct portion of the estate, by metes and bounds, so as to prejudice his cotenant; for, to give effect to such aliena-tions, as against the cotenants of the grantor, would be to create new tenancies in common, in distinct tracts or parcels of the estate, held in common, to the injury of the eotenants. _ As one tenant in common has no right, on partition, to select any particular portion of the land, and insist on having his part set off in that specific portion, so he cannot convey such a right to his grantee.”

This rule, as thus announced,' has been followed by the appellate courts of this state down to date, without a single exception, in so far as we have been able to find, and we do not understand that counsel for appel-lee contended that the rule is otherwise. But, as we understand appellee’s contention here, it is to the effect that a deed by one or more tenants in common, without the acquiescence or consent of other cotenants, conveying a distinct portion of the common estate to a stranger, will be upheld and given effect in equity, where, upon partition proceedings between all the tenants in common of the estate, sudh can be done without injury to the tenants in common, who are not parties to such deed; and appellee says, in effect, that since it is alleged in its petition that upon partition in the suit for that purpose pending in Hardin county, the specific portions of the North and South Hooe surveys attempted to be conveyed to appellee by appellants’ said cotenants, Hughes, Baten, and others, can be allowed and confirmed in appellee, without injury to appellants, Judge Llewellyn, as the district judge of Tyler county, was authorized in this proceeding to make the order which he did, and which has the effect, in advance of an ascertainment of the facts in the suit for partition in Hardin county, to award to appellee exclusive possession of those portions of the North and South Hooe surveys described in said deed of appellants’ cotenants to appellee, and to permit appellee to go ahead and construct valuable improvements thereupon in the shape of a tram railroad, and to authorize its exclusive operation for the private benefit and profit of appellee, to the total exclusion of appellants, and over their protest. After thinking the matter over carefully, we cannot concede that this contention made by appellee,is correct.

We are fully aware of the rule in this state to the effect that where one tenant in common conveys to a stranger a designated portion of the common estate, although such conveyance be without the consent or knowledge of the grantor’s cotenant, a court of equity, upon partition proceedings, will give effect to a deed thus made by one cotenant, and will confirm in the stranger to the estate the title to a specific portion of the same, where, upon hearing all of the facts adduced upon the hearing in the partition proceeding, it can be shown that a partition of the estate can be equitable, made by allowing the stranger to take such designated portion under such ■ deed, and that the interest of the co-tenants, not a party to such deed, can be fully protected in such partition proceeding, by giving effect to such deed. This is a well-established rule in this state, and appellants do not here question its soundness, and if, upon hearing the facts in the partition proceeding in Hardin county, that court should believe and find therefrom' that the designated portions of the North and South Hooe surveys now claimed by appellee under the .deed from Hughes, McLean et al. can be allowed him, and at the same time that the interests of appellants, as cotenants, can be fully protected, after so doing, then, doubtless, that court will so decree, and would be correct in doing so, but we think that to give effect to the order of Judge Llewellyn in this ease, which, in advance of hearing in the partition proceeding, has, in effect, given to ap-pellee the right of exclusive possession of certain portions of the North and South Hooe surveys, as against appellants, and over their protest, and authorized appellee to place thereupon valuable improvements for its own private use and profit, would be not only to deny the rule well established in this state that all tenants in common have a right of possession in all portions of the common estate, but would be also in effect to determine, in advance of the partition proceeding now pending, that appellee should have those specific portions of this common estate claimed by him. We have been unable to find any adjudicated case in this state that could be construed as authority for the order made by Judge Llewellyn in this case, and none of the authorities cited by appellee go to any such extent.

It will be borne in mind that appellee is not a tenant in common in possession of a part of the common estate, and using and enjoying same as such, and whose possession and use is sought to be interfered with and prevented by a wrongful act on the part of appellants, as its cotenants, but the situation here is that appellee desires now to go into exclusive possession of a certain designated portion of the common estate, for the purpose of building and constructing a tram railroad thereon, and to operate the same for its own private use and benefit, to the exclusion of appellants, and the judge’s order has the effect to permit appellee to do this, and we hold that the court was unauthorized, from a legal or equitable standpoint, to make such order.

It is next contended by appellants that the order of Judge Llewellyn was improvidgntly and erroneously made, for the reason that it has the effect to greatly embarrass the partition proceeding now pending in Hardin county between appellants and appellee’s grantors, by bringing new issues into such partition proceeding, and to change the situation and status of the parties, and condition of the common estate, as they existed when the partition proceeding was instituted in Hardin county, and that for this reason Judge Llewellyn should not have granted the order, and we believe that this contention on the part of appellants is sound.

At the time the partition proceeding for this common estate was instituted by appellee’s grantors against appellants, in Hardin county, the simple matter for determination, in so far as the petition here discloses, was merely to divide the interests between the co-owners, and'there was nothing pertaining to any equities claimed by any of them for improvements made upon any portion of the common estate, and no question of the value of improvements placed thereon by any cotenant, would be before the court for consideration, and it would seem that it was and is the right of appellants to have that partition proceeding disposed of and concluded upon the facts as they existed when the same was instituted; but if appellee should be permitted by the judge of the district court of Tyler county to go ahead, in advance of a judgment in the partition proceeding, and construct a tram railroad on designated portions of the common property, it would necessarily follow that the district court of Hardin county would be called upon to take into consideration, in that partition proceeding, these new equities that appellee would claim, or his grantors claim for him, and very probably the partition proceeding would be much more embarrassed and difficult of solution and disposition, by reason of the building and construction of these valuable improvements, and exclusive "appropriation by appellee. And, further, it occurs to us that the effect of this proceeding is really to institute another partition proceeding in Tyler county between appellee here and appellants, which leaves out entirely other co-tenants, in fact, all of appellants’ cotenants under whom appellee now claims, and we hardly see how the district court of Tyier county could proceed to partition this estate between appellants and appellee without appellants’ other cotenants being made parties thereto, and we cannot assume that they will be made parties thereto. It was suggested, however, by appellee in the argument here, that this court ought to assume that the district court of Tyler county will make no order that will be in any way inconsistent with or embarrassing to the partition proceeding in Hardin county, notwithstanding the prayer in the petition of appellee is that the district court of Tyler county, upon final hearing, shall perpetuate the injunction which was granted by the judge in this case.

We have concluded that for the reasons specifically mentioned above, Judge Llewellyn erred in granting the writ of injunction in this ease, in so far as th’e same pertains to the North and South Hooe surveys, and for such error the judgment is reversed, and the injunction, to that extent, is here now canceled and set aside, and all costs of this appeal adjudged against the appellee.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEX, C. J.

license: Public Domain

text:
    BOARD et al. v. EMERSON-BRANTINGHAM IMPLEMENT CO.
    (No. 7922.)
    (Court of Civil Appeals of Texas. Dallas.
    April 20, 1918.
    Rehearing Denied May 18, 1918.)
    1. Chattel Mortgages <@=>277 — Foreclosure — Supplemental Petition — General Demurrer.
    A supplemental petition in reply to defendants’ answer, in a suit on notes and chattel mortgage on machinery given by the purchaser thereof, held sufficient when tested by general demurrer.
    2. Sales <&wkey;168% (6) — Remedies por Breach —Notice.
    Where the seller of machinery stipulated in the contract that the buyers must notify it by registered letter of any defects therein within six days of the first use of the engine, the stipulation was reasonable, and the buyers were bound thereby.
    3. Judgment <&wkey;256(2) — Authority op Court to Enter — Special Verdict.
    Although the trial judge is required to render judgment in conformity to a special verdict, yet where the verdict finds issues in favor of one or the other party, and it finds facts supported by the evidence which clearly entitle one to a judgment, the court should so render judgment.
    4. Sales &wkey;>121 — Acceptance — Time eor Returning Goods — Waiver of Right to Rescind.
    Where the undisputed evidence shows that the defendants used the machinery for several months, after knowing of the defects therein, without offering to rescind, they confirmed the contract of purchase and waived the right to rescind.
    5. Chattel Mortgages <@=>79 — Fraud and Deceit — Evidence.
    Evidence, in a suit upon notes and chattel mortgago given to purchase of machinery, held
      insufficient to show that fraud or deceit was practiced inducing defendants to sign the contract.
    6. 'Sales <&wkey;>418(19) — Breach oe 'Contract.
    Where the seller of machinery did not agree to pay for labor or repairs thereon, the buyer cannot recover therefor.
    7. Sales <&wkey;418(19) — Breach oe Conte act-damages — Speculative Damages.
    In a suit by seller to recover on notes and chattel mortgage given by buyer for purchase of an engine and plows, the defendant cannot recover damages for breach because of defects in machinery, preventing them from plowing for others; the profits thereof being conjectural and speculative.
    8. Sales <&wkey;4X8(19) — Breach op Contract-Damages.
    In a suit for price of engine and plows, the buyer cannot recover damages resulting from inability to plow for others due to defects in machinery, where the buyer did not inform the seller at the time of purchase that he expected to plow for others.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by the Emerson-Brantingham Implement Company against S. J. Board and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Ross & Zumwalt and J. H. Synnott, both of Dallas, for appellants. Spence, Haven & Smithdeal, of Dallas, for. appellee.
   RAINEX, C. J.

Suit was by defendant in error against plaintiffs in error on three promissory notes aggregating $2,000, with interest and attorney’s fees, and to foreclose a chattel mortgage on certain machinery for which said notes were executed as shown by a written contract of sale. Plaintiffs in error denied under oath the written contract, and alleged that the machinery was bought upon a verbal contract, and further, pleaded failure of consideration; that defendant in error made certain warranties which had been breached, and further pleaded for damages. In replication defendant in error set up the written contract, and, among other things, that if said machinery failed to comply with the warranties after six days’ test plaintiffs in error were to notify defendant in error in writing, which plaintiffs in error failed to do; that said machinery was delivered to plaintiffs in error on April 30, 1915, and accepted and was used by plaintiffs in error, who used said machinery plowing their land and threshing their grain, and exercising the right of ownership over it until December 15, 1915, and they could not now be heard to say that it had not been accepted. The case was submitted to a jury on special issues and answers returned. Both sides moved for judgment thereon, and the court found for defendant in error, from which this appeal is taken.

Conclusions of Pact.

Defendant in error is a dealer in farming implements and plaintiffs in error are farmers. Plaintiffs in error entered into a written contract for certain machinery with defendant in error. When plaintiffs in error called for it defendant in error did not have the kind first ordered, and it would require some time to secure it from the factory. Having other kinds in stock plaintiffs in error agreed to take another kind from that Which was first ordered, which was delivered. The notes, mortgage, and contract were all signed and executed, and the plaintiffs in error hauled the machinery home. The machinery purchased was one Big 4-20 Model “D” Gasoline Tractor, and one 2-3G-10 Emerson Disc Plow.

Early in May, 1915, the plaintiffs in error tested out the machinery and the discs furnished, which proved unsatisfactory, and defendant in error was notified and others were furnished by it and accepted by plaintiffs in error, who proceeded to use the machinery without any offer to return it and rescind the trade. They plowed 350 or 400 acres of land for themselves and threshed 8,000 bushels of wheat during 1915 without making any offer to defendant in error to return it, and it was laid up on December 15, 1915. After being in plaintiffs in error’s possession for twenty days they wrote defendant in error, “Our engine and new plow we got last week are doing fine.” Plaintiffs in error knew of the defect in machinery complained of early in May, but continued to use it for their own use until December 4, 1915, when they wrote defendant in error that the tractor had entirely failed and requested defendant in error to repair it.

Opinion.

The first error assigned is to the court overruling the general demurrer toiplaintiff’s: first supplemental petition. Said supplemental petition is in reply to defendants’ answer, which answer, in effect, denies the validity of the notes; also setting up agreements between the parties in relation to the purchase of the machinery, false representations made by plaintiff as to the capacity and quality of the machinery, and a breach of the warranties. The said supplemental petition also pleaded the written contract which was signed by both the plaintiff and defendants, and other matters which render it not subject to a general demurrer. There are 15 objections set forth by defendants as reasons why the general demurrer should be sustained, but if any are good there is enough in the supplemental petition to render it not liable to the general demurrer.

Plaintiffs in error complain in their second assignment of error of the overruling of special exception No. 3. “Said paragraph of plaintiff’s petition pleads that part of the written contract wherein the defendants are required within six days of the first use of the engine to notify plaintiff by registered letter of defects in said engine; tine special exception being that tbe plaintiff should not be permitted to claim or assert as a matter of defense said provision, for tbe reason that tbe limitation shown to be imposed upon defendants with reference to the time witliin which defendants should discover and make known defects in said engine, and limiting such time to six days, is unreasonable, void, and in contravention of the statutes.” Thpre is no error in this ruling of the court, as the validity of said clause in the contract is upheld by our appellate court. Shearer v. Gaar, 41 Tex. Civ. App. 39, 90 S. W. 684; Buffalo Pitts Co. v. Alderdice, 177 S. W. 1044.

The plaintiffs in error’s third and fourth assignments complain of the court for not rendering judgment for them on the findings of the jury. The jury found, in effect, that the warranties failed; that de^ fendant in error was notified after six days’ use that fraud was practiced upon plaintiffs in error and the consideration for the notes had failed. The jury also found that plaintiffs in error discovered the full extent of the defects of the engine sold them by defendant in error before they ceased to use the same in November, 1915; that plaintiffs in error plowed 350 or 400 acres of land and threshed 8,000 bushels of grain. They further answered in the affirmative the following issue:

“If you find that the defendants plowed any ground and threshed any grain with, said machinery in answer to the above question, then state if any of said ground was plowed or any of said grain was threshed after the defendants had learned that the machinery was defective in any of the ways alleged in their answers or testified to by them. Answer: Yes.”

While- the law requires a trial judge to render a judgment in conformity to a special verdict, yet when the verdict finds issues in favor of one or the other party, and it finds facts supported by the evidence which clearly entitles one to a judgment, the court should so render judgment. Should the trial court, under such circumstances, have declared a mistrial and granted a new trial this court would have the power, under the law, to render such judgment as the trial court should have directed. Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607.

Defendant- in error in reply to assignments 3 and 4 submits the two following counter propositions:

“(1) Where vendees of a traction engine use the traction engine in plowing their lands and threshing their grain for a period of more than six months after they had learned of defects in said traction engine, they cannot be heard to say that they have not-accepted said traction engine, because the long-continued use of the traction engine by the vendees is utterly inconsistent with the right of rejection, and consistent only with the claim of title and ownership.
“(2) The findings of the jury established the fact that the plaintiffs in error used the engine in threshing their grain and plowing their land for more than six months after they had discovered the alleged defects in the said engine. They cannot now be heard to say that they have not accepted said engine and cannot refuse to pay the purchase price thereof. The court therefore did not err in overruling plaintiffs in error’s motion for judgment and in granting defendant in error’s motion for judgment.”

The evidence shows without dispute, and was so found by the jury, that plaintiffs in error used the machinery for their own benefit for several months, knowing of the defects, without offering to rescind. By thus acting they confirmed the contract of purchase and waived the right to rescind, and this warranted the trial court in directing a verdict for defendant in error. Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Bancroft v. Implement Co., 194 S. W. 991.

The evidence fails to show any fraud or deceit practiced by defendant in error in procuring the signatures of the plaintiffs in’ error to the contract relied on by it. Plaintiffs in error both swear that they signed the contract; that there were no misrepresentations made by the defendant in error, nor do they make any legal excuse why they did sign it, and of not knowing its contents.

Defendant in error did not agree to furnish the plaintiffs in error any parts or to pay for labor for the repair of said engine. Therefore funds expended by plaintiffs in error on same and the value of labor in repairing same is not recoverable against defendant in error.

The plaintiffs in error are not entitled to recover for damages on account of not being able to do plowing for other people; such damages claimed being conjectural, speculative, imaginery, and uncertain profits.

It was shown in this case, and so found by the jury, that plaintiffs in error did not tell the defendant in error at the time or before they agreed to purchase said engine that they expected to plow for other people, nor how much land they expected to plow. Mills Co. v. Iron Works, 1 Tex. Civ. App. 683, 22 S. W. 1097; Railway Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642.

The judgment is affirmed.
      ©ssEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HIGHTOWER., C. J.

text:
    MURCHISON et al. v. MURCHISON et al.
    (No. 253.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 1, 1918.)
    1. Insurakcb <&wkey;448 — Lire Insurance — Murber oe Insured by Beneficiary.
    Despite Const, art. 1, § 21, and Rev. St. 1911, art. 2465, providing that no conviction shall work forfeiture of estate, the beneficiary named in a life insurance policy, who feloni-ously kills insured to accelerate the due date of the policy and collect the money, cannot recover the proceeds of the policy against the insurance company issuing it.

      2. InsubaNce i&wkey;448 — Life Insurance— Murder of Insured by Beneficiary — Cancellation of Liability.
    A life insurance company’s liability on a policy is not canceled because the beneficiary named in the policy feloniously kills the insured.
    3. Property <&wkey;4 —Life Insurance — Proceeds as Personalty.
    The proceeds of a life insurance policy is in the nature of, or constitutes, personal property.
    4. Descent and Distribution <&wkey;51 — Proceeds of Insurance — Causing Death of Intestate.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2465, providing that no conviction shall work corruption of blood or forfeiture of estate, and that there shall be no forfeiture by reason of death by casualty, and article 2462, providing that in the absence of any child or children or their descendants, the whole of the personal estate of one dying intestate shall pass to his surviving wife, where a wife, the beneficiary of her husband’s life insurance policy, feloniously killed such husband, who died intestate and without children, to accelerate the due date of the policy and obtain the insurance money, the liability of the insurance company to the husband’s estate not being canceled, and the proceeds of the policy being personalty, the wife was entitled to them.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Suit by G. R. Murchison and others against Margurite Murchison and another. Prom judgment of dismissal, plaintiffs appeal.
    Affirmed.
    Mantooth & Collins, of Lufkin, for plaintiffs in error. Denman & Thomas and I. D. Fairchild, both of Lufkin, Blount & Strong, of Nacogdoches, and W. J. Townsend, of Austin, for defendants in error.
   HIGHTOWER., C. J.

This suit was filed in the district court of Angelina county by G. R. Murchison, Dailey Murchison, Ross Murchison, Jr., and Dora Paris, the latter being joined pro forma by her husband, W. B. Paris, as .plaintiffs, against Margurite Murchison and Royal Indemnity Company as defendants; the purpose of the suit being to recover a judgment against the Royal Indemnity Company on a policy of accident insurance issued by said company upon the life of one R. H. Murchison.

It was alleged in the petition that G. R-Murchison was the father, and Dailey Murchison and Boss Murchison, Jr., were the brothers, and said D.ora Paris the sister, of the said R. H. Murchison, who, it was alleged, died on the 14th of April, 1915; and it was further alleged that the said Margurite Murchison was the wife of said R. iff. Murchison at the time of his death. It was further alleged that the said R. H. Murchison left no outstanding debts at the time of his death, and that there was never any administration upon his estate, nor any necessity for any. It was further alleged' that the said R. H. Murchison left no child or children surviving him. It was further alleged that the policy of insurance made the basis of the suit was issued by the Royal Indemnity Company on the 4th day of December, 1914, and was in full force and effect at the time of the death of said R. 0. Murchison. It was further shown by the petition of plaintiffs that said policy provided that upon the death of said R. I-I. Murchison, the proceeds thereof should be paid to the said Margurite Murchison as sole beneficiary. It was further alleged in the petition that the said R. H. Murchison met his death at the hands of his said wife, Margurite Murchison, who feloni-ously killed and murdered him with the intention and for the purpose of securing and obtaining the money which it was provided by the terms of said policy should be paid to her upon the death of said R. H. Murchison.

It was then alleged, substantially, that because of the fact that the said Margurite Murchison did feloniously kill and murder the said R. H. Murchison, she forfeited all right and .interest that she otherwise might have had in and to the proceeds of said policy of insurance as the beneficiary named therein; and, further, it was substantially alleged that because of the fact that the said Margurite Murchison feloniously killed and murdered said R. H. Murchison, she was not only prevented from claiming and recovering from the Royal Indemnity Company the amount of money stipulated to be paid her as beneficiary in said policy, but also that she thereby forfeited any and all right and interest in and to the proceeds of said policy in the hands of said Royal Indemnity Company, and was not, in law, entitled to have said proceeds or any part thereof under the law of descent and distribution of this state, but that plaintiffs, as the father, brothers, and sister of said R. H. Murchison, by reason of such relationship to him, immediately upon the death of said R. H. Murchison became and were entitled to recover of said Royal Indemnity Company the proceeds of said policy still in its hands, as the heirs and next of kin of the said R. H. Murchison. The petition is quite lengthy, and for the purposes of this opinion it is entirely unnecessary to quote the same in full, and we think • that the foregoing substantial statement of the material allegations will be sufficient for the disposition here.

Both the defendants were served and answered, and each interposed a general demurrer to the plaintiffs’ petition, and also each interposed certain special exceptions, which, it is unnecessary to here mention. The trial court sustained the general demurrer interposed by each of the defendants, and some of the special exceptions, and the plaintiffs having declined to amend, their petition was ordered dismissed, and from that order and judgment of the trial court this appeal has been prosecuted.

The action of the trial court in sustaining the general demurrers of defendants has been duly assigned as error in this conrt, and such, assignments and propositions thereunder raise two questions only for the consideration of this court. The first question is this: Can one who is named as sole beneficiary in a life insurance policy, and who feloniously kills the insured for the purpose and with the intention of accelerating the due date of such policy and collecting the money to be paid to such beneficiary thereunder, recover the proceeds of such policy against the company issuing same, in accordance with the provisions of the policy? In other words, can such beneficiary, under such circumstances, recover upon 'the contract of insurance? The Supreme Court of this state has never decided this question, in so far as we have been able to ascertain, but- we are not left in the dark in the matter, because we find that no less eminent authority than the Supreme Court of the United States long ago decided this very question, and the opinion of that great court will be found in the case of New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 600, 6 Sup. Ct. 881, 29 L. Ed. 1000. In that case we find this expression in the opinion of the court:

“It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired.”

It has been a long time, it is true, since the Supreme Court of the United States used the language just quoted, but in -all the years since then that court seems never to have changed its .views on the question. Innumerable cases from that court might be cited, more or less relevant on the point, but it would serve no useful purpose to here mention them, because a decision of the question could not be more squarely made by any court, nor could stronger or sounder reason than is there announced be found. See, also, Schmidt v. Life Ins. Association, 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 141, 84 Am. St. Rep. 323; Filmore v. Life Ins. Co., 82 Ohio St. 208, 92 N. E. 26, 28 L. R. A. (N. S. ) 675, 137 Am. St. Rep. 778; Anderson v. Life Ins. Co., 152 N. C. 1, 67 S. E. 53; Supreme Lodge v. Menkhausen, 209 Ill. 277, 70 N. E. 567, 65 L. R. A. 508, 101 Am. St. Rep. 239; Order of Columbus v. Fuqua, 60 S. W. 1020; Life Ins. Co. v. Shane, 98 Ark. 132, 135 S. W. 837. These are but a few of the authorities which announce the rule that it would be against sound public policy to permit any beneficiary in a life insurance policy, who should feloni-ously take the life of the insured, to recover money due under the terms of the policy; and without discussing the question further, this court is perfectly satisfied with the rule as announced in those cases, and in so far as this court is concerned, nothing short of an express and unmistakable declaration in the Constitution or statutory law of this state, or a decision necessary upon the very point by the Supreme Court of this state, would cause us to subscribe to the doctrine that to permit a beneficiary in any character of insurance policy to recover life insurance money upon the contract itself, after having feloniously killed the insured with the intention and for the purpose of accelerating the due date of such policy and obtaining possession of such money, would not be against the public policy of this state, regardless of what the public policy of some other states may be, as declared by their courts.

It is the contention of appellees in this case that because article 1, section 21, of the Constitution of this state provides that “no conviction shall work forfeiture of estate,” .and because article 2465 of the Revised Statutes of this state provides, substantially, the same, it should be held by this court that the people of this state, both by their representatives in the constitutional convention and in the legislative halls, have declared the public policy of this state to be in favor of permitting such a beneficiary to recover upon the terms of the contract of insurance. We cannot accept the correctness of this contention by counsel. We therefore hold that if the right of Margurite Murchison to the proceeds of the policy in question depended upon the provisions of the policy itself, as a contract, then we would be compelled to hold, and without any reluctance whatever, that the trial court was in error in sustaining the general demurrer of either of the appellees.

The second question, however, for determination, in legal contemplation is this: Assuming the truth of the allegation in plaintiffs’ petition, to the effect that Margurite Murchison feloniously killed and murdered R. H. Murchison for the purpose of sooner obtaining the insurance money on his life, did that fact deprive her of the right as a surviving wife to take the proceeds of the policy after his death, as against the father, brothers, and sister of R. H. Murchison, the latter having left no child or children? This question necessitates a consideration of several articles of our statutes on the subject of descent and distribution:

Article 2465, Yernon’s Statutes, provides:

“No conviction shall work corruption of blood or forfeiture of estate, nor shall there be any forfeiture by reason of death by casualty. * * *"

Article 2469 provides:

“Upon the dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants of such child or children, then the survivor shall be entitled to one-half of said property, and the other half shall pass to such child or children, or their descendants. * * *"

Article 2462 provides:

“Where any person having title to any estate or inheritance, real, personal or mixed, shall die intestate as to such estate, and shall leave a surviving husband or wife, the estate of such intestate shall descend and pass as follows:
“1. If the deceased have a child or children, or their descendants, the surviving husband or wife, shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, _ with remainder to the child or children of the intestate and their descendants.
“2. If the-deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution: Provided, however, that if the deceased have neither surviving father nor mother, nor surviving brothers and sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.”

It is conceded, by both parties to this appeal that the insurance company’s liability on the policy in question would not be canceled because of the fact that Margurite Murchison, the beneficiary named in the policy in question, feloniously killed R. H. Murchison, the insured, and such is the law; and it is further conceded and is the law that the proceeds of the insurance policy in question is in the nature of personal property, or constitute personal property. Therefore, since R. H.' Murchison died intestate, as disclosed by the petition, and since it is the law that the liability of the insurance company was not canceled, even if the beneficiary, Margurite Murchison, did murder the insured, R. H. Murchison, but since, as we hold, Margurite Murchison, by reason of her felonious act in taking the life of her husband, deprived herself of taking the proceeds of this policy as the beneficiary named therein, then the proceeds of this policy became payable, under the law, to the estate of R. H. Murchison. And since, by article 2462 above, in the absence of any child or children of R, H. Murchison, or their descendants, the whole of the personal estate of R. H. Murchison passed to his surviving wife, Margurite Murchison, she became entitled to the same under the statute itself to the exclusion of the appellants in this case.

It seems to be held by the courts in all the states that where a statute of descent and distribution is plain and unambiguous in prescribing how property shall descend and vest upon the death of its owner, such statute must be given effect by the courts, regardless of the fact that the death of the owner was intentionally caused by one to whom, under the statute, his property is made to descend and vest, and there can be no doubt that article 2462 is plain and positive, and leaves nothing for construction by the courts as to how property of a decedent shall descend and vest in this state; and while it is to be regretted that the Legislature of this state has never discovered, or if it has, that it has failed to correct this great injustice, as it seems to us, still, in view of the plain provision of the statute quoted, and what seems to us to be an unbroken line of decisions by courts of last resort in other states on the question, we are constrained to hold that Margurite Murchison, even though she did feloniously take the life of her husband for the purpose of sooner collecting the insurance money upon his life, did not forfeit 'her right thereto, as cast upon her by the statutory law of this state. Hill v. Noland, 149 S. W. 288; Owens v. Owens, 100 N. C. 246, 6 S. E. 794; Carpenter’s Estate, 170 Pa. 203, 32 Atl. 637, 29 L. R. A. 145, 50 Am. St. Rep. 765; Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935, 25 L. R. A, 564; McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 3 L. R. A. (N. S.) 726, 115 Am. St. Rep. 233, 7 Ann. Cas. 973.

Having reached the conclusion that the ap-pellee Margurite Murchison, upon the death of ¡R. H. Murchison, became entitled to the whole of the personal estate left by him, to the exclusion of the appellants herein, it necessarily follows that there was no error on the part of the trial court in sustaining the general demurrer interposed by each of the appellees and its judgment is therefore affirmed.

KING, X, not sitting.
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author: BROOKE, J.

text:
    DURFEE v. CRAWFORD et al.
    (No. 352.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 25, 1918.
    Rehearing Denied May 8, 1918.)
    Judgment <@=^456(1) — Setting Aside — Time to Act.
    Where attorney for several plaintiffs omitted one of them from the amended petition and abandoned her without her knowledge, she could not have the judgment set aside in equity after the expiration of the term of its rendition, if she had knowledge of the judgment before the expiration of such term, in the absence of fraud of adverse parties.
    Appeal from District Court, Harris County; Wm. Master son, Judge.
    Suit by Sophie Durfee against Duke Crawford and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Stanley Thompson, of Houston, for appellant. Barkley & Weems, of Houston, for appellees.
   BROOKE, J.

This is a suit begun in the district court of Harris county in the Fifty-Fifth judicial district of Texas by appellant, Sophie Durfee, in an equitable proceeding brought by her for the purpose of setting aside a judgment in cause numbered 64,-963 on the docket of said court, which said suit was styled Rosa Davis and Sophie Dur-fee v. Duke Crawford, Sr., and Duke Crawford, Jr. The petition alleged, among other things, that the attorney acting for the said Sophie Durfee, plaintiff in said suit, without the knowledge of plaintiff, abandoned her interest in said suit, and by an amended petition left her out of the case, and that she had no representatives of her interest after said amended petition was filed in said suit, and that when the judgment was rendered in said cause No. 64968, Sophie Durfee had no representatives and no pleadings in court to look after her interests, and prosecute her rights to said property, and that without her knowledge or authority, and in her absence, on the 3d day of January, 1916, there was entered of record in said cause a judgment divesting her of her interest and title to certain property, vesting the same in Rosa Davis and Duke Crawford, Sr. Among other things, she averred that she had never agreed to, or authorized any one to agree to, said judgment, and that she was not present at the time it was rendered, and did not know anything of it until a day or two before the petition to set aside the judgment was filed ; that as soon as she learned of said judgment she at once employed counsel for the purpose of bringing and prosecuting this suit. The case was tried before a jury, and after the testimony was closed, the court peremptorily instructed the jury to find for the defendants, and the jury so found.

Appellant has one assignment of error, and that is that the court erred in charging the ■jury peremptorily in favor oil defendant. To this the appellees urge that where a party to a judgment has knowledge, before the expiration of the term of its rendition, and fails to take the proper steps to have the same corrected or set aside, he cannot afterwards maintain a suit in equity for such relief. It seems that the judgment was rendered in the ease of Rosa Davis and Sophie Durfee v. Duke Crawford, Sr., and Duke Crawford, Jr., No. 64963, on January 3, 1916. It is undisputed that appellant knew of the rendition of said judgment less than 20 days after same was rendered, and had consulted with counsel in regard to having the same set aside. The record discloses the fact that the suit to set aside the judgment was not filed until the 6th day of May, 1916, which was more than four months after the judgment had been rendered, and subsequent to the term of court at which the same was rendered. It may be said, upon the proposition as to whether the said judgment rendered on January 3, 1916, in No. 64963 was entered by the consent of appellant, or whether counsel for appellant had authority to represent appellant in the premises, there was a conflict but as before stated, there is no question that appellant knew of the rendition of the judgment within less than 20 days after same was rendered. In the case of McLane v. San Antonio National Bank, 68 S. W. 63, the following language is used:

“Relief in equity cannot be had because of an act or neglect of complainant’s attorney in the management of the original cause, not involving actual fraud. The character of the act or neglect is not material. It may consist of entire inattention to the business intrusted to him, or his failure to appear and plead at the trial, or his procuring witnesses or other evidence, or of any error in the judgment with respect to the pleadings, the evidence, or other material matter involving the management of the case. In all such cases no relief can be obtained _ in equity. * * * In this case the conclusion cannot be escaped that the mistake in the judgment sought to be corrected is the direct result of the negligence of the appellee, or of negligence with which it is chargeable. No diligence whatever is shown to discover the mistake after the judgment was entered, nor is it shown when it became known to appellee. If it was discovered before the court adjourned, it should have been corrected during the term. A party who knows of a material mistake in his judgment during the term at which it was entered, and fails to take the proper steps to correct it, then ought not to bother a court of equity with it afterwards.”

In the case of Bomar v. Parker, 68 Tex. 440, 4 S. W. 607, Judge Gaines uses the following language:

“It seems to us, however, that there is another objection to appellant’s cross-bill which is fatal to bis case. It is an original action, it is true, but one to which attaches the substantial conditions of a motion for a new trial. Such a suit cannot be maintained without showing that the complainant has been prevented from making bis motion during the time of which the judgment sought to be set aside was rendered. Hence if a motion be made and abandoned, it is fatal to a new suit when brought for the same purpose. We think, therefore, that a party who institutes an original action for a new trial occupies no better position than one who makes his motion during the term at which the judgment is rendered, and that he should be held to the diligence of prosecuting his action to a final determination.”

In the case of Harn v. Phelps, 65 Tex. 592, Justice Stay ton used the following language:

“She now seeks to set that judgment aside on several grounds: * * * The reasons for not asking the court to set aside the decree now complained of, at the term at which it was entered, and for delaying action so long, is thus fairly stated in brief of counsel for appellants. * * * Such'results must often occur in the administration of laws necessarily imperfect, through instrumentalities no better than the laws they execute. But when, in the exercise of lawful power, a court has rendered a final judgment, it must be held conclusive between the parties thereto, except in a proceeding appellate in character, unless some ground other than that it is probably unjust is shown, which, under the settled rules of law, is deemed sufficient to authorize a court of equity to re-examine the case. Johnson v. Templeton, 60 Tex. 238; Nevins v. McKee, 61 Tex. 413. To entitle the appellants to the relief now sought, it is necessary that they should show that they were prevented from urging, against the judgment of which they complain, objections which would, or ought to, have prevented its rendition, and that this prevention resulted from fraud, accident, or the action of the adverse party, without fault or negligence on their part. * * The action in which the judgment complained of was rendered was instituted by the appellants, and it was tlioir duty to know what transpired during its progress, and to take steps during the term at which it was rendered to set it aside if unsatisfactory. There is no showing that they were prevented from so doing by fraud, accident, or the act of the adverse party. That a party may be poor is no reason why he should not be held to the same rule of diligence in prosecuting suits instituted by himself as are other persons. The appellants had sufficient knowledge of the land for which they sued to successfully institute and maintain an action in which they obtained a judgment declaring what interest one of them had in each of many tracts of land; and, under such facts, it could not well be held that any sufficient reason is shown why confirmation of the report of the commissioners was not resisted at the term at which it was acted upon.”

Assuming, therefore, that in the instant case counsel for appellant did not have the authority to agree to the judgment that was entered, following the reasoning in the above' cases, this would not be sufficient ground for appellant in this suit to set aside the judgment previously rendered. It would not be sufficient, even for the sake of argument, admitting that appellant had been defrauded, but it must have been shown that th’e fraud was perpetrated by adverse parties. In this case it is not even alleged that the appellees, Duke Crawford, Sr., and Duke Crawford, Jr., were guilty of fraud or misconduct, or that there .was any evidence to the effect that the appellant was prevented from pursuing her legal remedies during the term of court at which the judgment was rendered and entered.

Therefore, upon the consideration of th'e entire record, we are of opinion that there was no error in the trial in the court below, and that the judgment must be, in all things, affirmed.
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author: GRAVES, J.

text:
    EDMONDSON, Co. Atty., v. CUMINGS et al.
    (No. 7539.)
    (Court of Civil Appeals of Texas. Galveston.
    March 28, 1918.)
    1. District and Prosecuting Attorneys <@=» 9 — Suits in Behalf of County.
    Neither Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 366, 368, providing that county or district attorneys could bring actions against officers intrusted with the collection or safekeeping of any public funds, nor any other statute, conferred any right upon a county attorney to bring an action in behalf of a county to restrain the commissioners’ court, county judge, and clerk from allowing officers to buy postage stamps out of county funds.
    2. Counties <s=^217 — Suits by County — Who May Sue.
    Where no statute gives county or district attorneys power to sue in behalf of a county, the commissioners’ court alone has the right to determine whether a suit shall be brought.
    3. Injunction <S=>118(1) — Petition for — Definiteness.
    A petition to restrain a commissioners’ court from allowing county officials to buy postage stamps from county funds, which did not name officers who were going to buy stamps nor the amount thereof, was too indefinite to warrant granting of an injunction.
    4. Counties @=»206(1, 2) — Commissioners’ Court — Allowance of Claims — Nature of Decisions.
    Allowance of claims by a commissioners’ court is a judicial act which cannot be revoked at a subsequent term, nor be collaterally attacked, and can only be revised, if at all, by appeal or other appropriate proceedings instituted for that purpose.
    Appeal from District Court, Austin County ; Norman G. Kittrell, Special Judge.
    Suit by J. E. Edmondson, as County Attorney, for himself and in behalf of the county, to restrain G. S. Cumings knd oth-. ers, as members of the Commissioners’ Court, and the County Clerk of Austin County, from allowing county officials to pay for postage stamps out of the county fund. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    J. E. Edmondson, of Bellville, for appellant. Johnson, Matthaei & Thompson, of Bellville, for appellees.
   GRAVES, J.

Appellant J. E. Edmondson, who was county -attorney of Austin county, filed this suit in the district court of that county against- the county judge and other members of its commissioners’ court and its county clerk, alleging that he did so for himself and in behalf of the county, charging that the commissioners' court had formerly allowed, and unless restrained, would in the future continue to allow all the county officers of Austin county to- illegally pay for postage stamps used by them in them official and private business out of the county’s funds, and praying for an injunction to prevent any further such practice.

The general purport of further averments was that large amounts of money are, in violation of law, yearly paid out of the county’s general fund to its officials for postage stamps, which are not named or included in the statute allowing stationery to county officials; that some of these officers have no property subject to execution and their bondsmen are not liable for stamps so furnished them; that neither appellant nor any other taxpayer of the county had any adequate remedy at law to stop or prevent the acts complained of; that the same would be continued, and he and all other taxpaying citizens would suffer irreparable injury, unless the requested injunction were granted. No authority was pleaded or shown for bringing the suit in behalf of the county, no particular officer was named or charged with having used, or being about to so use, any specified sum, nor was there any averment that the action was brought for the benefit of any other taxpayer than appellant.

After a general demurrer, the appellees answered by a number of special exceptions, in substance challenging the sufficiency of the petition, among others, in the following particulars: (a) No authority in the county attorney to bring the suit in behalf of Austin county was shown, (b) No particular county officer was named, nor was it averred that the commissioners’ court had in the past approved, or was threatening in the future to approve, such use of any specific sum of the county’s funds for postage stamps, (c) There was no allegation that the action was brought by the appellant for the benefit of himself and other taxpaying citizens of the county.

Upon a hearing, after overruling a plea to its jurisdiction, the court sustained both the general and special demurrers, and entered its judgment refusing any injunction, from which this appeal is prosecuted.

Under the two assignments presented, appellant insists that his petition stated a cause of action, but we have found ourselves unable to agree with him; it seems to be his position, in answer to the first objection'pointing out the failure to show authority for attempting to bring the suit in behalf of Austin county, that it was sufficient for him to allege himself to be the duly elected, qualified, and acting county attorney. This, however, was neither a quo warranto ' proceeding, nor one against any officer intrusted with the collection or safekeeping of any public funds, which might be filed by the county or district attorney, under articles 366 and 368, Vernon’s Sayles’ Statutes, nor yet one which any other statute conferred the concurrent or exclusive right upon the county attorney to bring; that being so, the commissioners’ court alone had the right to determine whether such a suit should be brought in the name and for the benefit of the county.' Looscan v. Harris County, 58 Tex. 511.

In the second place, there was no such particularity of pleading as is required in applications for injunction. In this respect it has been often laid down:

“ ‘The rule of pleading’ * * * that the statements of a party are to be taken most strongly against him, is reinforced in injunction suits by the further requirement that the material and essential elements which entitle, him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.” City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Land & Cattle Co. v. Board, 80 Tex. 489, 16 S. W. 312; Schlinke v. De Witt County, 145 S. W. 660; Shannon v. Hay, 153 S. W. 360; Weaver v. Emison, 153 S. W. 923.

Measured by the tests given in the cases cited, we think the petition here fell far short of meeting the essential requirements. As our preceding statement has shown, there was no such definite and specific allegation made as that the commissioners’ court was then threatening to approve and allow for payment out of the county’s funds some particular account in a -fixed sum of money, presented to it by a certain named county official for postage stamps used by-him in his official and private business, and asking injunctive relief against 'such impending action; in other words, the petitioner merely anticipates that the commissioners’ court may at some "indefinite time in the future commit an illegal act by approving an unstated account for postage stamps, which may be presented to it by some unnamed county officer; while it is plain, we think, under the quoted rule of pleading, that no court of equity would ever be authorized to grant an injunction upon any such nebulous and blanketlike application, in such circumstances, it would especially lack that power over the ordinary exercise of its jurisdiction by such another court as the commissioners’ court of Austin county was, for not only has it been held that such a court has well defined judicial functions, but further, that its action in allowing and ordering a claim against the county paid is a judicial act, which can neither be revoked at a subsequent term nor collaterally attacked, but must be revised, if at all, by appeal or other appropriate proceedings instituted for that purpose. Busch & Co. v. Caufield, 135 S. W. 244.

It is apparent that, in our opinion, the trial court did not err in sustaining the demurrers, and its judgment is affirmed.

Affirmed.
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