text:
    SANDS v. SEDWICK.
    (No. 8095.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 13, 1915.
    Rehearing Denied March 6, 1915.)
    1. Venue <§=70 — Application eor Change-Contest.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1913, providing that where application for change of venue is made the same shall be granted, unless the credibility of the applicant, or the truth of the fact set out, is attacked by affidavit, and if attacked, the issue shall be tried, and where defendant’s application for a change of venue was opposed by plaintiff, supported by his affidavit alone, denial by the court of the application was proper.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 122-126; Dec. Dig. <§=570.]
    2. Animals <§=544 — Poisoning Stock — Civil Action — Evidence.
    In an action for poisoning stock, where plaintiff’s mules and horses were found dead in his pasture, their tracks leading to deposits on the ground of sulphur, mixed with some white powder, it being admitted that the animals were poisoned, and the evidence strongly tending to show that they were poisoned by the sulphur and powder, evidence that a tin bucket, containing such a mixture, was found on defendant’s premises, was admissible, the question whether the mixture was poisonous or was the same mixture as was found in the pasture being for the jury.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. <§=544.]
    3. Animals <§=544 — Poisoning Stock — Civil Action — Evidence.
    In an action for poisoning stock, evidence that tracks were seen leading from defendant’s premises to plaintiff’s pasture, where the stock was found dead, and returning towards defendant’s residence, was admissible, though no attempt was made to show that the tracks were made by the defendant; any objection going to the weight of the evidence, not to its admissibility.
    [Ed. Note. — For other cases, see Animals, Cent- Dig. §§ 115-122; Dec. Dig. <§=544.]

      4. Animals <S=44 — Poisoning Stock — Civil Action — E vidence.
    In an action for poisoning stock, where evidence that defendant, when first informed that plaintiff charged him with committing the act, called plaintiff a-- Jew, - rascal, etc., was not inadmissible as being a mere exhibition of temper on the part of one first informed of a charge against him.
    [Ed. Note. — -For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. <§=44.]
    5. Appeal and Error <©=215, 544^-Reserva-tion op Grounds op Review — Objection.
    Where defendant reserved no bill of exceptions, and did not even object to the giving of a charge to the jury concerning exemplary damages, -lie could not predicate error thereon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1.309-1314, 2412-2415, 2417-2420, 2422-2426, 242S, 2478, 2479; Dec. Dig. <©=215, 544.]
    6. Appeal and Error <©=1068 — Exemplary Damages.
    In an action for poisoning stock, where defendant admitted that the animals killed were of the reasonable value claimed in the petition as found by the jury, and where the jury found merely a nominal sum above the value of the stock as actual damages, if the court’s charge on the subject of exemplary damages was erroneous, the error was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. <©=1068.]
    7. Animals <®=44 — Poisoning Stock — Sufficiency op Evidence.
    In an action for poisoning stock, evidence held to sustain payment for plaintiff.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. <©=44J
    Appeal from District Court, Shackelford County; W. J. Oxford, Judge.
    Action by John F. Sedwick against Frank Sands. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Thorp & Reynolds, of Throckmorton, and A. A. Clarke, of Albany, for appellant. Walter L. Morris, of Albany, for appellee.
   BUCK, J.

This suit was brought by ap-pellee against appellant for damages alleged to have been caused by appellant’s placing poison in the pasture of appellee for the purpose of poisoning appellee’s stock, whereby nine head of mules and three head of horses belonging to appellee died. Appellee claimed $975 actual damages and $1,000 exemplary damages. The suit was tried at the April term, 1914, of the district court and resulted in a judgment for the appellee for $975 actual damages and $25 exemplary damages.

In the course of the trial appellant, through his counsel, admitted that the animals were poisoned, and that they were of the value alleged in plaintiff’s petition, but denied that appellant placed the poison in appellee’s pasture or had any connection with the poisoning of the stock.

In his first assignment appellant complains of the action of the court in permitting the plaintiff to contest the application and motion of defendant for a change of venue; the written contest filed by plaintiff in opposition to defendant’s motion for a change of venue being supported by plaintiff’s affidavit alone. Appellant urges that the law contemplates that the contest must be supported by the affidavit of some compurgator other than the party to the suit himself. Article 1912, Vernon’s Sayles’ Tex. Civ. Stat. provides:

“A change of venue may be granted in any civil cause upon application of either party, supported by his own affidavit and the affidavit of at least three creditable persons, residents of the county in which the suit is pending,” for certain designated causes.

Article 1913 provides:

“Where application for a change of venue is made in conformity to the requirements of the preceding article, the same shall he granted, unless the credibility of the persons making the application for a change of venue, or their means of knowledge, or the truth of the facts set out in the said application, are attacked by the affidavit of a credible person; and. if such application is thus attacked, the issue thus formed shall be tried by the judge, and the application granted or refused, as the law and the facts shall warrant.”

Prior to the amendment of 1893, article 1272, now 1913, read as follows:

“Where application for a change of venue is made in conformity to the requirements of the preceding article, the same shall be granted unless it appears to the satisfaction of the judge, upon proof made before him, that the persons making the affidavit are not credible persons.”

As the law then existed, the only issue to be determined by the judge in passing upon an application for a change of venue when made in compliance with the statutory requirements was as to the credibility of the persons who supported by their affidavit the application. But, as will be seen by comparing the amended article with the old, the trial court may now consider, in addition to the question of the credibility of the affiants, “their means of knowledge, or the truth of the facts set out in said application,” and if these questions are properly put in issue by a controverting affidavit of “a credible person,” then the issue thus formed shall be tried by the judge and the application granted or refused, as the law and the facts shall warrant. Since in the determination of these issues no probative force is given to such affidavits, whether made in behalf of the applicant or in behalf of the adverse party, and since such affidavits are not admissible in evidence at all (Cotton v. State, 32 Tex. 614; Winkfield v. State, 41 Tex. 154; Farley v. Deslonde, 58 Tex. 590), it would appear that the application and the answer thereto constitute merely verified pleadings upon the issue of a change of venue. The statute provides the charateter of verification to be made by the applicant, but fails to stipulate as to who shall verify the answer thereto, except that the affidavit must be made by a “credible person.” In Dunn v. State, 7 Tex. App. 600, the affidavit in resistance to the application of defendant for a change of venue was made by tbe district attorney, and the defendant excepted to the sufficiency of said affidavit on the ground that the district attorney was not a resident of the county of the trial, was not acquainted with the people in the county, and had no knowledge of the sentiment or feeling prevailing therein as to the defendant’s case, and no means of knowing of the existence of the prejudice complained of; that he was not a disinterested witness, and in the nature of his office was not a proper person to make said affidavit, and the defendant prayed that the affidavit be stricken out, which motion was by the trial court overruled. The article of the Code of Criminal Procedure with reference to a change of venue was at that time as follows:

“The credibility of a person making an affidavit for change of venue, or their means of knowledge may be attacked by the affidavit 'of a credible person, and the issue thus formed shall be tried and determined by the judge and the application granted or refused as the law and the facts shall warrant.” Article 583.

The court in its opinion, after referring to the fact that the article above quoted was a recent enactment and was, in effect, an amendment of and an addition to, what had before been provided on the subject of change of venue, when asked by a defendant in a criminal prosecution, said:

“Now by reading the former law * * '* and considering it in connection with the recent enactment, to our minds the intent of the Legislature in the enactment of the later article is apparent. Whilst it is provided in article 578 that a change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavits of at least two credible persons, residents of the county where the prosecution is instituted, for either of two causes mentioned in the article— and there are .but two causes on account of which a change of venue will be granted on the application of a defendant — it directs that the court shall determine the truth and sufficiency of the cause set out in the defendant’s application, but prescribes no definite rule by which the court shall be guided in determining the truth and sufficiency of the defendant’s application; and this defect in article 578, in our opinion, the Legislature intended to supply by the enactment of article 583. To our mind, article 583 was intended to and does provide for the formation of an issue to be tried by the court on the application, in that it authorizes the state, on affidavit of a credible person, to attack the credibility of the persons making affidavits for a change of venue, or their means of knowledge. In other words, the issue tendered the state by the defendant in his application may be accepted by the state, by proposing to show to the court either one of two things — that the persons who made the affidavit were not credible' persons, or that they did not possess the necessary means of knowledge as to the facts to which they had deposed, and these means are provided for in the later article of the Code. It is not provided in this article that an issue is to be formed as to the truth and sufficiency of the application, nor indeed was it necessary, as article 578 provided for that by requiring the judge to judge of them; but if it is' intended to make an issue as to the credibility of the persons, or the means of knowledge of those who swear for the change of venue, then, by article 583, this may be done by attacking either by the affidavit of a credible person.
“With regard to the present case, we are of the opinion that the affidavit of a district attorney put in issue both the truth and the sufficiency of the application, and as well as the credibility of the persons who made the affidavit for a change of venue, or their means of knowledge, that it is competent for the district attorney to make the affidavit, and that the court did not err in overruling the exceptions of the defendant on either ground of exception.”

We find no authority supporting this assignment, and we are cited to none by the appellant, and we do not believe that the trial court erred in permitting the plaintiff to contest the application and motion of defendant for a change of venue upon a written contest filed by plaintiff and supported by his affidavit alone, and we hold that the plaintiff in this case is a “credible person” under the terms of said article 1913, and therefore the first assignment is overruled.

In his second assignment the appellant complains that the trial court erred in refusing and overruling his application for a change of venue—

“because the testimony of the witnesses placed upon the stand by the plaintiff himself upon the question of a change of venue showed clearly that there is that amount and degree of prejudice against the defendant in Shackelford county such as to render it next to impossible for him to obtain a fair and impartial trial in said Shackelford county,” etc.

The trial court allowed considerable latitude in the introduction of testimony upon this issue, and while the evidence is conflicting, we think that it is amply sufficient to sustain the court’s action, and therefore the second assignment is overruled.

In his third assignment appellant complains of the action of the court in allowing the witness Henry Herron to testify, over the objection of the defendant, that he found on the premises of the defendant a can or tin bucket containing sulphur, or something that looked like sulphur, with some white stuff mixed with it, because, as claimed by appellant, it was not shown that the can or bucket contained poison of any kind, and was calculated to prejudice the minds of the jury against the defendant. The evidence shows that appellee’s stock were found dead in one of his pastures, about a mile or a mile and a half from appellant’s home; that near to where they were discovered dead there were found on the ground deposits of what appeared to be sulphur mixed with some white powder, and that leading from such deposits to where the various stricken animals were found dead were tracks, tending to show that, after partaking of this mixture, the animals walked to where they were later found. It was admitted that the animals were poisoned, and the evidence very strongly shows that they were poisoned by eating of this substance, and we think it was certainly admissible to show that on appellant’s premises shortly after the discovery of the dead animals there was found a receptacle with a mixture in it apparently of the same kind and character as that found in ap-pellee’s pasture. As to whether or not this mixture was poisonous, whether or not it was the same mixture as found in the pasture, were questions for the jury, and the objection to this testimony goes rather to the weight thereof than to its admissibility. The assignment is overruled.

In his fourth assignment the appellant complains of the admission of testimony on the part of William Biggs, to the effect that he found tracks leading from and toward the defendant’s premises in the direction where the stock were found dead and returning in the direction of the defendant’s residence; “it not being shown that the tracks were made by the defendant, or any attempt made to show that the tracks fitted or corresponded with the tracks of the defendant.” For the reasons given in discussing the third assignment, this assignment is overruled.

In his fifth assignment appellant complains of the action of the court in admitting the testimony of certain witnesses, to the effect that when the sheriff and his deputy went to the house of the defendant shortly after the alleged poisoning of the stock, and after defendant had been informed that plaintiff charged him with this offense, he, the defendant, cursed and abused plaintiff by calling him a - - Jew, - rascal, etc. Appellant insists that this was a mere exhibition of temper of one charged of crime by another when first informed of such charge, and was no evidence of any malice antecedent to the alleged commission of the offense. We do not believe there is any merit in the assignment, and it is overruled.

In his sixth assignment appellant alleges error in that part of the court’s charge wherein the question of recovery of exemplary damages is submitted to the jury, in that the charge does not limit the amount of exemplary damages that the jury could find to the amount set up and prayed for in the petition. There does not appear to be any bill of exceptions reserved by appellant to the giving of said portion of the court’s charge, or even objection made thereto, and therefore we cannot consider this assignment; but if we were to do so, in the light of the fact that it was admitted by the defendant that the stock killed were of the reasonable value of the amount claimed in the petition and found by the jury, and also that the jury found merely a nominal sum as such damages, we cannot see how any possible injury could have accrued by reason of the charge in the form given.

In his seventh and last assignment appellant urges that the evidence is insufficient to support the verdict. While it is true that the evidence is entirely circumstantial, we feel that it is amply sufficient to sustain the verdict. It was admitted that the stock were poisoned, and the evidence strongly sustains the contention that they were poisoned by partaking of the mixture which was found deposited in appellee’s pasture; that there were tracks leading to and from this place where the deposit was found, and that such tracks led in the direction of appellant’s home; that appellant, bore intense ill will towards the appellee, abused him, and applied to him various names and epithets, both before and after the alleged poisoning of the stock; that he refused to receive appellee’s check in payment for some stock that one of appellee’s employes was proposing to buy from the appellant for appellee; that the deposits found in the pasture seemed to be a mixture of sulphur and salt and some other whitish substance; that there was found on appellant’s premises a bucket containing apparently the same kind of mixture; there was found at appellant’s house several pounds of arsenic, and the stock had died from arsenic poisoning; that appellant seemed to bear a grudge against the appellee because of the fact that the former had in the latter’s pasture some 50 or 60 acres which had been separated from the larger inclosure originally by a fence, but that this fence had disappeared in some way, and appellant charged some one with having stolen it, and this charge was made during the conversation with appellee’s foreman, in which appellant abused appellee and declined to receive his check; that in talking to a neighbor and in- reply to a remark “that it was hard to be charged with poisoning a neighbor’s mules,” appellant said:

“Well, I don’t know; John F. Sedwick is a damned rascal, and the only way to reach some people is through their pocketbook.”

It was further shown that appellant had, at least on one occasion, about two weeks before the poisoning of the stock, expressed his utmost disregard for mules in general, and remarked that the “mule was the meanest animal I ever saw, and that every damned one of them ought to be killed.” Enough of the facts as supported'*by the evidence is hereinabove given to show the character and trend of the evidence upon which the jury found the defendant guilty of poisoning his neighbor’s stock, and we are not prepared to say that the trial court erred in refusing to grant appellant a new trial.

The judgment is hereby affirmed.
      ©=AFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©3>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J. BUCK, J.

license: Public Domain

text:
    FUNKHOUSER v. CAPPS.
    (No. 3082.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 30, 1915.
    Rehearing Denied March 6, 1915.)
    1. Contracts <S=>121 — Contracts between Stockholders — Validity.
    A contract, binding plaintiff to pool Ms stock in a newspaper corporation with the stock of defendant and A. on condition that their stock will represent more than 50 per cent, of the outstanding stock, that plaintiff shall have the editorial and business management of the paper jointly with another, and that in the event of a failure to agree on any material point plaintiff, defendant, and another will settle differences, ' and binding defendant to purchase the stock of plaintiff on his services becoming unsatisfactory or on his desiring to sell, is contrary to public policy under Vernon’s Say les’ Ann. Oiv. St. 19Í4, arts. 1154, 1159, requiring the directors to elect officers, and conferring on the directors the general management of the affairs of a corporation, because the purpose of the contract is to place the control and management of the corporation in three individuals and to give plaintiff a lucrative position with the corporation.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. § 504; Dec. Dig. <®=^121.]
    2. Contracts ®=o137 — Contracts between Stockholders — Partial Invalidity.
    The court, in considering the contract as a whole, cannot say that the primary purpose thereof was a contract for the sale and purchase of stock in the corporation, and the invalidity of the provisions for the pooling of the stock and the assumption of the management of the corporation renders invalid the stipulation for the sale and purchase of the stock.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. §§ 701-712; Dec. Dig. <®=>137.]
    3. Contracts <®=»137 — Invalidity in Part— Effect.
    The rule that, where the lawful part of a contract can be separated from the balance, the unlawful part will be rejected and the lawful part enforced does not apply where the consideration entering into the valid part is tainted with the invalidity of the consideration on which the invalid parts are founded.
    [Ed. Note — Por other cases, see Contracts, ‘Cent. Dig. §§ 701-712; Dec. Dig. @=»137J
    Buck, J., dissenting.
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by W. J. Punkhouser against William Capps. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short, Wm. D. Evans, and David B. Trammell, all of Pt. Worth, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

Appellant complains of a judgment against him upon the following contract:

“Pt. Worth, Texas. July 5, 1912.
“Mr. Wm. Capps, Pt. Worth, Texas — Dear Sir: In keeping with my conversation with you to-day, I beg to submit the following proposition :
“I agree to pool my stock in the Record Co. with that of yours and Mr. Armstrong under the following conditions:
“(1) I must be convinced that by including my stock there will be represented more than 50% of the outstanding stock of the Record Company.
“(2) In the event the control of the Record Company is secured in this way, Mr. McCaleb, or some one else to be determined upon in the editorial department and myself, shall jointly have the editorial and business management of the paper and in the event of our failure at any time to agree upon any material point pertaining to the editorial or business management of the paper; then you are to constitute a third party, and we three together will settle all such differences.
“(3) To guarantee my stock interest in the Record Company, you agree that if at any time my services should become unsatisfactory or I should desire to sever my connection with the company, to pay me upon demand, three times the par value for the twenty (20) shares of Record Co. stock which I now hold, and the amount paid by me, plus earned and unpaid dividends for any additional stock which I may have acquired.
“(4) In the event of a sale of the controlling interest in the Record Co. which includes our stock, I am to receive one-fifth (½) of the proceeds of such sale after deducting for the stock held by you, Mr. Armstrong and myself at the price of two dollars and fifty cents ($2.50) for each dollat of par value thus represented.
“The acceptance of this proposition by you acknowledges it as a contract as binding upon each of us as though written in strictly legal form and technically correct.
“Respectfully submitted, W. J. Punkhouser.
“Accepted: Wm. Capps.”

Appellant sued for the enforcement of the terms of the third paragraph of the contract, alleging, in substance, that he had severed his connection as business manager of the Record Company (a corporation), and that the defendant, Capps, refused to accept and pay for the plaintiff’s stock, as agreed upon in said paragraph of the contract. Appellee Capps defended on the ground that the contract was void as against public policy, and the court so rendered its judgment.

We are of the opinion that the contract made the basis of the plaintiff’s suit plainly manifests that one of its purposes was to place the control and management of the affairs of the Record Company in three individuals, to wit, W. H. Punkhouser, McCaleb (or some other person to be selected in his place), and the defendant, Capps. Another purpose as plainly manifested was to place the plaintiff, Punkhouser, into a lucrative position with the Record Company. We think neither of these purposes can be upheld. Article 1154, Vernon’s Sayles’ Tex. Civ. Stat., provides that:

“The directors or trustees shall choose one of their number president, and shall appoint a secretary and treasurer and such other officers as they may deem necessary for the corporation.”

Article 1159 provides that:

“The directors or trustees shall have the general management of the affairs of the corporation,” etc.

And any agreement having for its end a defeat of the control and management of a corporation as prescribed in the wisdom of the Legislature must be condemned. By the terms of the contract the appellant was not only to secure a position, but in such position he, together with Mr. McCaleb and Capps, were to secure and assume the absolute editorial and business management of a great newspaper, irrespective of the qualifications of either party for the office, or of the rights, opinions, or desires of any other stockholder or director. As if to place this intention beyond doubt, the closing sentence of the second paragraph provides that if there be a material difference at any time between the plaintiff and McCalob, then the defendant was to constitute a third party and “we three together will settle all such differences.” The Legislature as we have seen, has wisely seen fit to require the management of the affairs of a corporation to be submitted to directors or trustees selected by the stockholders', and the contract otherwise providing, cannot be approved. In the other respect the contract must be held invalid. As said in 2 Cook on Corporations (7th Ed.) § 622a, p. 1837:

“A contract in regard to elections in private corporations is not legal if it provides that a lucrative corporate position shall be given to one or more of the parties to the contract. Thus an agreement of a large stockholder holding a majority of the stock that, upon the purchase and absorption of plaintiff’s business by the corporation, the plaintiff should be engaged for a term of years as vice president and general manager of the corporation at a specified salary is contrary to public policy and is void.”

We deem it unnecessary to swell our opinion with a quotation of other authorities on this point. We think it sufficient to say that the rule stated in the quotation from Cook is well supported. See Withers v. Edmonds, 26 Tex. Civ. App. 189, 62 S. W. 795, which is very closely in point. See, also, Guernsey v. Cook, 120 Mass. 501; Gage v. Fisher, 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557; Scripps v. Sweeney, 160 Mich. 148, 125 N. W. 72, and authorities cited in these cases.

Appellant urges, however, that we should disregard the invalid parts of the contract to which we have referred, and establish the particular paragraph upon which he sues, to wit, paragraph 3, alleged to constitute the agreement for the purchase of appellant’s stock. It is true that standing alone this paragraph might constitute a sufficient contract to support the action, and it is a rule of law that whenever the unlawful part of the contract can be separated from the rest, the unlawful part will be rejected and the remainder established. Haswell v. Blake, 90 S. W. 1125; St. L., I. M. So. Ry. Co. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467. We, however, do not feel prepared to hold that the paragraph of the contract declared upon is so separated from and independent of the other paragraphs of the contract as to authorize the adoption of the rule invoked. This rule can in no case be enforced where the- consideration which enters into the valid portion is tainted with the invalidity of the consideration upon which the invalid parts of the contract are founded. In the language of Mr. Parsons (1 Parsons on Contracts, 457):

“If any part of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act, or an illegal promise, although he may have connected with this act or promise one which is legal.”

Again, as said in the case of Bishop v. Palmer, 146 Mass. 469, 16 N. E. 299, 4 Am. St. Rep. 339:

“The law visits a contract founded on such a consideration with a positive condemnation, which it makes effectual by refusing to support it in whole or in part where the consideration cannot be severed.”

So in the case of Hazelton v. Sheckels, 202 U. S. 71, 26 Sup. Ct. 567, 50 L. Ed. 939, 6 Ann. Cas. 217, by the United States Supreme Court, it was said:

“Every part of the consideration goes equally to the whole promise, and therefore, if any part of it is contrary to public policy, the whole promise falls” (citing numerous cases).

In the ease of Wegner Bros. v. Biering & Co., 65 Tex. 506, Mr. Justice Robertson, among other things, on the subject under consideration said:

“If a debtor, in payment of an account for $100, and in consideration that his creditor will refrain from a duty or do an illegal act, executes his note only for the amount of the account, the note is nevertheless void. The good consideration has no virtue to cure the bad, but the bad corrupts the whole.”

Viewing the contract as a whole, it cannot be said that its primary purpose was a contract for the sale and purchase of stock in the corporation. Eor aught that appears on the face of the contract, the agreement of the defendant to purchase appellant’s stock was influenced in a greater or less degree by appellant’s agreement to assume position and control of the editorial and business management of the company. The least that can be said is that it is by no means clear that appellant’s engagement to pool his stock and to assume control over the editorial and business management of the company was not the consideration, in part at least, for the defendant’s promise to take appellant’s stock. There is no means of determining how much of the defendant’s obligation declared upon rests upon the illegal consideration. In such case the paragraphs may not be separated, but the contract as a whole must be condemned.

We conclude, therefore, that the contract sued upon is void altogether because of a violation of public policy. The judgment of the court below is accordingly in all things affirmed.

BUCK, J.

(dissenting).

I concur in the conclusion reached in the majority opinion that the provisions contained in the second paragraph of the contract are unenforceable, and that thereby the contract becomes void, as against public policy, if the terms of the contract are such that the consideration moving from appellee to appellant as contained in said second paragraph may not be rejected, and yet leave a contract with all the essentials to make it valid. As it seems to the writer, the only consideration moving from appellant to appellee was the promise of the former to pool his 20 shares of stock with the stock owned by Capps and Armstrong. In consideration of his doing this, appellant stipulated that appellee should do or promise to do certain things, to wit:

First. Capps must convince Mm that by such pooling oí stock more than 50 per cent, of the entire outstanding of the company’s stock would be represented.

Second. That he (Funkhouser) was to have with said company a position of emolument and authority.

Third. That in the event of the discontinuance of his services, Funkhouser was to receive from Capps three times the par value of the stock held by the former. .

Fourth. That in the event of the sale of the controlling interest in the Record Company, he was to receive one-fifth of the proceeds of such sale, after deducting the price of the stock held by appellee, Mr. Armstrong, and appellant.

If we eliminate the consideration moving to Funkhouser as set forth in the said second paragraph entirely, we still have left the full consideration moving to appellee, and a sufficient consideration moving to appellant. In Haswell v. Blake, supra, the Court of Civil Appeals, Fifth District of Texas, cites with approval the following language by the Supreme Court of Iowa in the case of Osgood v. Bauder, 75 Iowa, 550, 39 N. W. 887, 1 L. R. A. 655:

“If one of two considerations of a promise be void merely, the other will support the promise, but that if one of two considerations be unlawful, the promise is void.”

It is not contended by appellee, nor is it held by the majority of this court, that the consideration set forth in said second paragraph. is unlawful, but that at most it is merely void and nonenforceable. There is nothing in the contract that would justify the conclusion that any consideration inured to appellee by virtue of the stipulations contained in said second paragraph. The consideration is all moving to appellant, and he demands, as one of the prerequisites to his promise to do the one thing demanded of him, that appellee insure him this position clothed with the authority mentioned. That appellant could have waived entirely this requirement, without in any way affecting the consideration inuring to appellee, it is believed is apparent. There is nothing in the terms of the contract that justify, in my opinion, the conclusion that appellee attached any importance to appellant’s taking the position with the Record Company, and the tenure of said position was left entirely discretionary with either party, while appellant did attach importance to said position, and especially as to the authority with which he would be endued while he so held it. But it is evident that the main consideration in favor of appellant, as stipulated by him, was the pecuniary advantage to be derived in the sale of his stock at a stated valuation, in the event of the discontinuance of his services with said company.

That the considerations mentioned in paragraph 2 and the one mentioned in paragraph 3 are separable, and distinct I believe to be without doubt. If so, the contract should stand, with the invalid consideration eliminated. Haswell v. Blake, supra; Railway Co. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467, and the cases there cited. In the last-named case the Supreme Court of Arkansas uses this language:

“But if we assume that this stipulation is void because it is contrary to public policy, it may be eliminated without affecting the remainder of the contract; for it is separate and distinct from, and independent of, the other promises of the railroad company, which are legal, and the whole contract is founded upon one lawful consideration, the services of appel-lee. If, therefore, it be illegal, it is void, and the remainder of the contract is valid; the rule in such cases being that ‘where the consideration is tainted by no illegality, but some of the promises * * * are illegal, the illegality of those which are bad does not communicate itself to or contaminate those which are good, except where, in consequence of some peculiarity in the contract, its parts are inseparable or dependent upon one another.’ But appellee is not seeking to enforce the article as to arbitration (the one held to be invalid). He has abandoned that and now asks for compensation for the damages occasioned by his discharge.”

It is so in tMs case. Appellant has abandoned any claim- based upon the second paragraph, and relies upon failure of specific performance on the part of the promise of appellee as contained in the third paragraph. It is the opinion of the writer that he is entitled to a trial, upon this issue, and that the trial court erred in sustaining appellee’s general demurrer to appellant’s petition, and judgment of the trial court ought to be reversed and the cause remanded for a new trial.
      (grzaFor other coses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    BLASSINGAME v. CATTLEMEN’S TRUST CO.
    (No. 8179.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 23, 1915.
    Rehearing Denied March 6, 1915.)
    1. Courts <©=>474 — Concurrent Jurisdiction — Priority.
    Ordinarily, where two courts have jurisdiction of the parties and the subject-matter, the one first acquiring jurisdiction will retain it to the exclusion of the other.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1228; Dec. Dig. <®=474.]
    2. Abatement and Revival @=4^-Pending Action — Plea in Abatement.
    A prior suit pending between the same parties, involving the same cause of action, abates the subsequent suit, when properly interposed by plea in abatement.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dec. Dig. <S=>4.]
    3. Abatement and Revival <©= 17 — Penden-cy of Prior Suit — Abatement.
    A plea of pending action between the same parties, involving t'he same cause of action, is available only as one in abatement and not- in bar.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 123-136; Dec. Dig. <®=17.]

      4. Abatement and Revival <S==>80 — Other Action Pending — Objections—Waiver.
    Where a defendant in an action on a note did not appear and answer though duly cited, and did not prosecute a writ of error sued out to review a judgment' against him, the court on motion "will affirm on certificate as against the objection that defendant had, prior to the action, instituted a suit in another court to cancel the note for fraud.
    [lid. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 10, 15, 17; Dec. Dig. ⅛=>80.]
    Error from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by the Cattlemen’s Trust Company against J. M. Blassingame. There was a judgment for plaintiff, and defendant brings error.
    Affirmed on certificate.
    J. W. Payne, of Ochiltree, and Newton P. Willis, of Canadian, for plaintiff in error. A. 1-1. Kirby, of Abilene, for defendant in error.
   CONNER, C. J.

Defendant presents a transcript of the proceedings in the district court of Tarrant county, from which it appears that the Cattlemen's Trust Company of Ft. Worth, on the 24th day of April, 1914, instituted its suit against J. M. Blassingame to recover upon a promissory note for $750, with interest and attorney’s fees as therein specified ; that thereafter, on the 15th day of June, 1914, the plaintiff trust company was awarded a judgment against J. M. Blas-singame for the total sum of $S69.40, being the principal, interest, and 10 per cent, attorney’s fees on the note above referred to. The judgment recites that “the defendant J. M. Blassingame, though duly cited by personal service to appear and answer herein, came not, but wholly made default, and, it appearing to the court that the plaintiff’s demand is liquidated and proved by an instrument in writing,” judgment was awarded as before stated. Afterwards, on September 12, 1914, J. M. Blassingame filed his petition for a writ of error and supersedeas bond in due form, and on the same day the citation in error was duly served. The writ of error was not prosecuted, however; J. M. Blassingame not having filed a transcript of the proceedings in this court at any time. The Cattlemen’s Trust Company thereupon, on the 22d day of December, 1914, filed the motion to affirm on certificate now under consideration, with a prayer for the assessment of 10 per cent, damages as provided by the statute.

The proceedings for an affirmance of the judgment in accordance with the motion are, in all things, regular, and it is quite clear that the appellee, the Cattlemen’s Trust Company, is entitled to the relief it prays for, unless it be defeated by an answer to the motion that appellant, Blassingame, filed in this court on January 6, 1915. The substance of this answer, so far as material to state, is that prior to the institution of the suit in the district court of Tarrant county, a suit urns instituted by Blassingame in Ochiltree county, where Blassingame resided, to cancel for fraud the note which was the foundation of the suit in Tarrant county. It is further asserted in the answer to the motion that the case in Ochiltree county came to trial upon the issues therein made, and that Blassing-ame recovered judgment canceling the note, from which judgment the appellee herein, the Cattlemen’s Trust Company, has duly prosecuted an appeal to the Court of Civil Appeals for the Seventh judicial district, where said appeal 'is now pending. The answer to the motion is not verified, but the prayer is that:

“The motion to affirm on certificates be dismissed, and that this court take such steps as seem proper to ascertain its jurisdiction and that they take no further jurisdiction hereof by reason of the matters outside the record by which the parties themselves have abandoned this writ of error, and in the alternative, should your honors not see fit to dismiss said motion and judgment, then appellant prays that you postpone judgment thereon until after judgment be rendered in said appeal from Ochiltree county by the Court of Civil Appeals of the Seventh Supreme Judicial District of Texas.”

In verification of the pleadings, however, appellant attaches as an exhibit to his answer to the motion a certified copy of his amended original petition as filed in the district court of Ochiltree county. From the file mark on this amended original petition it appears to have been filed on the 19th day of October, 1914. A copy of his original petition is not attached, so that we have no means of determining when the suit in Ochil-tree county was first instituted, except that in the amended petition referred to it recites that it is filed “in lieu of his original petition filed herein April 16, 1914.” Assuming, however, the fact to be as stated in appellant’s answer to the motion to affirm, that the suit in Ochiltree county was filed prior to the filing by appellee of its suit in Tarrant county, and assuming also that the two suits are substantially identical in the sense that a judgment in one case could be pleaded as a bar in the other, we yet do not understand that the matters so charged affect the jurisdiction of this court or constitute a sufficient answer to the motion to affirm. Ordinarily, of two courts having jurisdiction of the parties and of the subject-matter, the one first acquiring jurisdiction will retain it to the exclusion of the other, and this court has held that a prior suit pending between the same parties involving the same cause of action, when properly interposed by a plea, will abate the subsequent suit. See Sparks v. Nat. Bank of Commerce, 168 S. TV. 48. Such plea, however, is one in abatement and not in bar, and must, to be available, be specially pleaded. Appellant failed to avail himself of this defense in the district court of Tarrant county, notwithstanding he had been duly notified to appear and answer. We see, therefore, no way in which we may properly give effect to the several matters set up in the answer to the motion to affirm. As it appears to us, whatever ol relief, if any, that appellant may be entitled to by reason of the facts referred to, must be awarded by courts of original, and not by one of purely appellate, jurisdiction.

We conclude that appellee is entitled to have its judgment affirmed on certificate against appellant and the sureties on his su-persedeas bond, with costs' and 10 per cent, damages as prayed for.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    FLYNN v. J. M. RADFORD GROCERY CO. et al.
    (No. 8088.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 30, 1915.
    Rehearing Denied March 6, 1915.)
    1. Appeal and Error <©=>1001 — Review — Findings.
    It is the rule on appeal not to set aside a jury’s findings, where the testimony is reasonably sufficient to support the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <©=>1001.]
    2. Homestead <S=57 — Business Homestead —Sufficiency op Evidence.
    Evidence, in an action on notes, held sufficient to sustain a finding that property for the price of which the notes were transferred by the payee was not the payee’s business homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 83-85; Dec. Dig. <©=>57.]
    3. Mortgages <©=>32 — Deed or “Moktgage.”
    Where the intent of parties to a transfer, purporting on its face to be a deed, was that title should pass, with the privilege of repurchase by the transferror, instead of providing a mere security for his debts, the transfer was not a “mortgage,” notwithstanding the parties may also have understood that as a result the ultimate payment of the debt was to be assured.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. <©=>32.
    For other definitions, see Words and Phrases, First and Second Series, Mortgage.]
    4. Husband and Wife <©=>267— Community Peopeety — Transfers by Husband.
    Community property, not constituting a homestead, may be conveyed or mortgaged by the husband alone.
    [Ed. Note.- — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. <©=>267.]
    5. Appeal and Error <©=>1170 — Harmless Error — Findings.
    Where there was evidence to support a finding that a transfer was a deed and not a mortgage, and whether it was a deed or mortgage was immaterial, in view of the transfer-ror’s right to convey or mortgage it, and where, if it was a mortgage, it did not appear that its value was in excess of the debt to be secured, error, if any, in a finding that it was a deed was not so material as to require a reversal, as rule 62a for Courts of Civil Appeals (149 S. W. x) forbids reversal for error at the trial unless such a denial of right as is reasonably calculated to cause a wrong judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-^4545; Dec. Dig. <©=>1170.]
    6. New Trial ⅛=> 103 — Newly Discovered Evidence.
    Newly discovered evidence, general in its character, and relating wholly to an immaterial issue, did not require the granting of a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. <©=>103.1
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

    Action by the J. M. Radford Grocery Company against the Bangs Mercantile Company, E. H. Flynn, and others. Judgment for plaintiff, and defendant Flynn appeals.
    Affirmed.
    Scarborough & Hickman, of Abilene, and Arch Grinnan, of Brownwood, for appellant. Kirby & Davidson, of Abilene, for appellees.
   CONNER, C. J.

The appellee instituted this suit against the Bangs Mercantile Company, and the members composing that firm, E. H. Flynn and A. E. Duff, and also C. W. Gill, to recover upon two promissory notes given by said Gill to said mercantile company each for the sum of $750 and each reserving a vendor’s lien on the property described in the plaintiff’s petition. The defense was, so far as necessary to state, that the Bangs Mercantile Company was indebted to the ap-pellee company in the sum of about $1,500, and that to secure the same, appellant and his partner, A. E. Duff, conveyed to C. W. Gill, a collecting agent of appellee, the property described in the petition, taking therefor the said Gill’s promissory notes, which were immediately assigned to appellee, and which are the notes sued on in this case. Appellant alleged that at the time of the transactions indicated the property in question constituted his business homestead, that he was the head of a family, and that his wife had not joined in said conveyance to Gill. The case was submitted to a jury upon the following special issues and one other not necessary to notice, viz.:

“First. Was the deed from the Bangs Mercantile Company to C. W. Gill intended by the parties thereto as a deed of conveyance or as a mortgage ?”

To which the jury answered:

“Deed of conveyance.”
“Second. Was the property the business homestead of E. H. Flynn at the time the deed to Gill was executed?”

To which the jury answered:

“Was not business homestead of E. H. Flynn.”

Upon the verdict so rendered the court entered a judgment for the plaintiff in the suit in accord with the prayer of its petition, and E. H. Flynn has prosecuted this appeal.

The sufficiency of the evidence to support the verdict on the issue of homestead vel non is challenged in the first assignment of error. While the evidence is not entirely satisfactory, yet after a careful review, we feel unable to disturb the verdict. The testimony of appellant would undoubtedly have supported a verdict in his favor. He testified, in substance, that he bought the lot in the village of Bangs, upon which he erected a business house some time thereafter, in the year 1901 or 1902; that from the time stated until the conveyance to Gill he occupied the premises as a place of business; that he is now using the storehouse as an office as city tax collector—

“we were using a part of it as a grocery store when this deed was made; there were two buildings on the lot, I was using one of the buildings at the time the deed was made. The deed was made in April, I believe, or May, and in the latter part of May we opened up a grocery store in the other building, the one that we were not occupying, so then we occupied both buildings on the lot. I never intended to abandon that in any way as a homestead. I went into the business as a member of the partnership early in the year 1910. We bought goods from Radford on credit. At the time we made this deed to Mr. Gill I was in my storehouse, the house involved in this controversy. Q. Isn’t it a fact that at the time you made the deed to this piece of property Robertson and Wilson were occupying this building? A. There were two buildings, and they were occupying one, and we were occupying the other.”

It is further shown without dispute that appellant was the head of a family, and that his wife did not join in the conveyance to Gill.

A. E. Duff testified that the only property the firm had at Bangs was the property conveyed, and that at the time of the conveyance it was not occupied by the Bangs Mercantile Company, but by Robertson and Wilson. “Nor was Mr. Flynn occupying it.” In answer to the question of how many buildings were on the lot Mr. Duff testified:

“There was an old warehouse at the back end of it, I believe; and if it was there at that time, we were occupying it and using it in connection with our business.”

That the warehouse was later torn down and built south of the other store.

“I don’t remember whether that warehouse was on that property when he deeded to Mr. Gill, but if it was, we were using it. * * ⅜ At the time Flynn and I sold the building to Mr. Gill we were in the mercantile business in another house. The other house that I am speaking of was nearly south but a little west from the other house facing the street and running south in front of us. This other building faced the north.”

The date of the deed to Gill was April 12, 1911, and appellee offered in evidence a letter from appellant dated 5/15/11, addressed to C. Gill, referring to the property as “your house here that Messrs. Robertson and Wilson were occupying when you bought same from us,” and offering to lease the same for a term stated at $15 per month. The proposed lease was later executed by the Bangs Mercantile Company “per E. H. Flynn.” On September. 30th thereafter the lease was renewed. On January 19, 1912, the Bangs Mercantile Company, per Flynn, wrote the Rad-ford Grocery Company a letter, in which it was stated, among other things:

“If it will suit you, we would like to buy back our storehouse that we sold to Mr. Gill. We can pay no cash on it, but we will give two notes, one due in the fall of 1912 and one in 1913. This will give you the Y. L. notes that you may handle to your advantage. * * * Please let us hear from you about the purchase of the storehouse.”

Appellee also offered a financial statement submitted to the appellee company by the Bangs Mercantile Company, dated December 21, 1911, in which the assets of the Bangs Mercantile Company was, among other things, stated as “E. H. Flynn, homestead; A. E. Duff, homestead; one-half interest in store building $950.” Mr. Flynn testified that the homestead referred to in the statement related to his residence, and that the one-half interest in the store building mentioned related to “the building that the larger class of mercantile company was carried in that we bought from Martin.”

It has long been the rule on appeal not to set aside a jury’s findings where the testimony is reasonably sufficient to support the verdict. Moore v. Rogers, 84 Tex. 1, 19 S. W. 283. The Supreme Court, in passing upon the question of the sufficiency of the evidence to sustain the verdict, adopts the following rule:

“We must reject all evidence favorable to the plaintiffs in error and consider only the facts and circumstances which tend to sustain the verdict, and if the jury, in an honest and impartial effort to arrive at the truth, might have reached the conclusion embodied in this verdict, this court cannot set it aside.” Cartwright v. Canode, 171 S. W. 696.

In the light of this rule, it cannot, we think, be said, as asserted in the assignment under consideration, that the verdict on the homestead issue is contrary to the uncon-tradicted evidence. The evidence as a whole is susceptible of the construction that at the time of the conveyance of the property in controversy to Gill, Flynn and the Bangs Mercantile Company were occupying and doing business in an altogether different building. It is true that it also tends to show that at the time of said conveyance there was a building on the back end of the lot in controversy, which doubtless was the second building Mr. Flynn testifies was on the lot, and that this warehouse was used in connection with the mercantile business conducted by the Bangs Mercantile Company in the business house purchased from Martin, but the size of the warehouse, its adaptability to the uses made of it by the Bangs Mercantile Company, or the extent of such use, is not shown. It cannot be said that a slight and wholly indefinite use, if any, of this old warehouse on the back end of the lot conveyed to Gill establishes without dispute the homestead character of the entire lot. No reservation of the warehouse was made in the deed to Gill, nor was any claim then made, nor until long after of its homestead character. On the contrary, appellant a number of times thereafter referred to the property in controversy in terms indicating, not only an absolute conveyance, but absolute ownership, of the entire property. The trial judge had the opportunity to observe the manner of the witnesses in giving their testimony, and having, upon a consideration of the whole case, overruled appellant’s motion for rehearing, we think, as before indicated, that the assignment under consideration should be overruled.

Appellant’s second assignment of error is to the effect that “the undisputed evidence” shows that the conveyance to Gill constituted a lien or mortgage. Mr. Duff testified that:

“When we sold that property the way I understood it we were selling that whole property where the store building was as far back as it came. ⅜ ⅜ * We deeded that to Mr. Gill is the way X understood it and that was my intention when X signed that deed. * ⅜ * X know that I signed, and I understood that it was sold, and we got credit for it. ⅜ * * Pie [Mr. Flynn], explained it to me that we were selling Mr. Gill the property and getting credit for it.”

G. W. Gill testified, in substance, that he bought the property, took the deeds, and gave his notes, and that the notes were assigned to the Radford Grocery Company in payment and settlement of the like amount of the indebtedness of the Bangs Mercantile Company to Radford. He denied ever saying to Flynn that the deed and notes in controversy was a mortgage. Among other things, Mr. Flynn testified that:

“I told Gill that it was our homestead, the only business homestead I had, and it was not for sale, and he said it would suit him better to take a straight transfer to the property; that he could handle it better that way, I told him that would be all right, with the understanding that he would give me a written agreement that he would transfer the property back to us when we repaid the $1,500 we were owing Radford Grocery Company: that he agreed to do.”

Mr, Flynn also testified to other circumstances tending to show that the real transaction was for the purpose of securing the indebtedness due to the Radford Grocery Company.

But if the method adopted in fact amounted to a conveyance, as the deed on its face purports to be, and as Mr. Duff’s testimony indicates, the agreement of Gill to reconvey upon the condition that the Rad-ford debt was paid would not necessarily create a mortgage, notwithstanding the ultimate effect of the transaction might have been the satisfaction of the debt. In other words, if the real intent and purpose of the parties to the transaction was that title should pass with the privilege of repurchase on Flynn’s part, instead of thereby providing a mere security for the Radford debt, the deed was not a mortgage, notwithstanding the parties may also, in a general way, have understood that as a result the ultimate payment of a debt was to be assured. Martin v. Hafer, 124 Mich. 226, 82 N. W. 1053; 13 Cyc. 645, par. B.

It seems to us that the evidence is susceptible of such a construction, but if not, we cannot think the issue of such materiality as, under the operation of rule 62a (149 S. W. x), makes it our duty to reverse the judgment. If the property conveyed to Gill was community real estate of Flynn and wife, as is asserted in appellee’s brief and not denied, and if it did not constitute appellant’s homestead, as established by the verdict, then it could be conveyed or mortgaged by the husband alone, and whether the deed to Gill was either the one or the other would seem to be immaterial, in the absence of any proof, and none was offered, nor does the evidence so suggest, that the property is of a value in excess of the debt for which appellant is undoubtedly liable, even according to his own theory of the case; for, if a mortgage, foreclosure proceedings would, under the circumstances, doubtless result in appellant’s loss of the property. Ky-nard & Boyd v. Tucker, No. 8042, 171 S. W. 1086, and Braun v. Hickman, No. 8055, 176 S. W. -, by this court not yet officially published.

The only remaining assignment complains of the action of the court in overruling the motion for a new trial on the ground of newly discovered evidence, but this evidence relates wholly to the issue of whether or not the conveyance to Gill was intended as security for the Radford debt. The newly discovered evidence is only general in its character, and relating, as it does, wholly to an Issue that we deem to be immaterial, we do not feel disposed to disturb the trial court’s action on that subject.

All assignments are accordingly overruled, and the judgment affirmed.
      <gsoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes