author: BOYCE, J.

text:
    MESEROLE et al. v. SOUTHWESTERN LIFE INS. CO.
    (No. 1347.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1918.)
    Insurance <&wkey;367(2) — Life Insurance — Construction of Policy.
    Under life policy providing that, after the second policy year, the -company may loan a stated sum, subject to deduction of all premiums for the current year or existing indebtedness, and that failure to repay the loan shall not avoid the policy until the total indebtedness exceeds the loan value, that if, after expiration of second policy year, any premium is unpaid, it will be paid out of the loan value, if in excess of indebtedness, and that, if default is made in payment of premiums for three full years, the policy should be extended for two years and six months, if there was no indebtedness on the policy, where insured failed to pay the third premium, which was paid from the loan value of his policy, and he died shortly after the fourth premium became due, when the loan value in excess of the indebtedness was less than enough to pay the fourth premium, there could be no recovery on the policy, which lapsed on default for more than one month in payment of the fourth premium.
    Appeal from District Court, Scurry County ; W. W. Beall, Judge.
    Action by Dora E. (Elliott) Meserole and husband against the Southwestern Life Insurance Company. Judgment fbr defendant, and plaintiffs appeal.
    Affirmed.
    Cullen C. Higgins, of Snyder, for appellants. Cockrell, Gray, McBride & O’Donnell, of Dallas, for appellee.
   BOYCE, J.

This suit was brought by appellants, Dora E. (Elliott) Meserole, joined by her husband, against the appellee, Southwestern Life Insurance Company, on a policy of insurance issued by said life insurance company on the life of James Madison Elliott, in favor of the said Dora E. (Elliott) Meserole. The only question in the case is as to whether the policy had lapsed at the time of the death of James Madison Elliott, by reason of nonpayment- of premiums as hereinafter stated. The policy was for $!,- 000, dated January 18, 1013, and provided i'or the payment of an annual premium of $30.05 in advance on January 18th of each year. The first two premiums — that is, those due January IS, 1913, and January 18, 1914 —were paid in cash. No payment of the premium becoming due January .18, 1915, was made by the insured, and the company, un■der the automatic loan provision of the policy, hereinafter copied, loaned on the security of policy the sum of $31.63, being the annual premium of $30.05 due and interest on same for one year in advance, and thus paid the premium for said year beginning January 18, 1915. This indebtedness was not repaid by the insured, and no payment was made of the premium becoming due on January 18, 1916. The insured died on June 6, 1916. The court below found that the policy had lapsed.

The following provisions of the policy will control the decision of the question thus presented:

I. Premiums. This insurance is' granted in consideration of the payment in advance of the annual premium of $30.05 on or before the 18th day of each January during the .continuance of this contract. * * * Except as herein provided, the payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable.

IV. Settlement. Upon any settlement under this policy all indebtedness to the company on the policy and all indebtedness of the holder of the policy to the company and also any unpaid portion or installment of the full premium for the current policy year shall be deducted from any sum payable by the company.

V. Loan and Nonforfeiture Provisions— Loans. At any time after the second policy year when the policy shall be in force, the company will loan upon proper assignment of the policy, and upon sole security thereof, all or any part of the sum stated in column 1 of the table on the third page hereof, subject to the deduction of all premiums for the current year and all existing indebtedness to the company on the policy. The loan shall bear interest at the rate of five per cent, per annum payable in advance to the end of the current policy year and annually in advance thereafter, failure to repay any such loan or to pay interest thereon shall not avoid the policy until the total indebtedness to the company thereon shall equal or exceed its loan value.

Automatic) Continued Insurance. If at any time after the expiration of the second policy year, and while this policy is in full force, any premium or installment of premium shall not be paid or settled in any other way within the time allowed by this policy for its payment the company, acting for that purpose for .the legal holder of the policy, shall pay such premium or installment of premium then due out of the loan value of the policy, provided that such loan value, as shown by the table on the third page hereof, in excess of all indebtedness to the company then existing thereon, shall be then sufficient to pay such premium or installment of premium, together with the interest below mentioned, and provided that the company shall not theretofore have received at its home office written instructions from the policy holder not to do so. The sum so paid, together with the interest thereon, shall constitute a loan upon the sole security of- this policy to the legal holder thereof, and shall bear interest at the rate of five per cent, per annum, and, together with all other indebtedness to the company thereon, shall constitute a first lien upon the policy. Interest shall be payable in advance for the period covered by each successive premium, and the current installment thereof shall be included by the company in each such loan. Such loan may be repaid at any time, but failure to repay it shall not avoid the policy until the total indebtedness thereon shall equal or exceed the loan value of the poicy.

Other Nonforfeiture Provisions. If default shall be made in the payment of any premium or premium note after payment of premiums for three full years (there being no default if such premium has been paid under the automatic continued insurance privilege above described), then—

1. Without any action, on the part of the insured, this policy shall be extended as a policy of paid-up' term insurance (without loan or surrender value) for the full amount thereof and for such a term, beginning at the due date of the unpaid premium, as that the net value thereof shall equal the net value of the paid-up term insurance stated in column 2 of the table on the third page hereof, less all existing indebtedness to the company on the policy. Or—

*$*$&&*

The reserves on this policy and all the net values above mentioned will be computed in accordance with the American Experience Table of Mortality, and interest at the rate of three and one-half per cent, per annum.

Table of Loan and Nonforfeiture Values [referred to above].

If there be no indebtedness upon the policy, the loan and nonforfeiture values available at the expiration of each policy year up to and including the twentieth will be as stated in the following table. Policy years date from January 18, 1913.

The court found, there being no statement of facts in the record, that:

“The net value of the term insurance provided for in the said policy at the end of the third year, computed in accordance with the American Experience Table of Mortality, and interest at the rate of 3% per cent, per annum, amounted to $27.75.”

It is not contended that the “loan value” of the policy, at the time of the default in payment of the fourth premium was sufficient to continue the policy longer by an automatic loan. The loan value after the payment of the fourth premium would have been $49, from which would be deducted an existing indebtedness of $31.63, leaving only $17.47 that might be loaned and applied in payment of said fourth premium, and which was, of course, not sufficient to pay said annual premium then due. But appellants’ contention on this appeal, variously presented, is that after payment of three premiums, as stated, the policy was not subject to lapse upon failure to pay the fourth premium, but by reason of the automatic extension provisions of the policy was automatically extended for a period of two years and six months, and, the insured having died within said period, recovery could be had on the policy, with proper deductions for indebtedness due it under the provisions for “settlement” quoted above.

We cannot, however, concur in .this construction of the policy. If it was the intention to provide that, after the payment of premiums for three full years, default in further premium payments would not forfeit the policy, but it would be automatically extended for the full period of time provided in column 2 of the table referred to above, and irrespective of any indebtedness, section 1 of the clause “Other Nonforfeiture Provisions” should have reacl, “Without any action on the part of the insured, this policy shall be extended as a policy of paid-up term insurance, without loan or surrender values, for the full amount thereof, and for such a term as stated in column 2,” etc., and the reference to existing indebtedness, as actually contained in said section 1 of said clause, and the further reference to the method of computing the net values by reference to the American Experience ’Table of Mortality, would have been unnecessary and improper. But the actual provisions of the policy seem plain to us and absolutely inconsistent with this construction insisted upon by appellants. The “Table of Nonfor-feiture Values” is preceded by the statement that such values are available “if there be no indebtedness upon the policy.” And paragraph 1 of the clause “Other Nonforfeiture Provisions” provides that upon default in payment of premiums the automatic extension should be “for such a term beginning at the due date of the unpaid premium as that the net value thereof shall equal the net value of the paid-up term insurance stated in column 2 of the table on the third page hereof [referring to the table which we have copied in part above], less all existing indebtedness to the company on the policy.” It seems clear to us, under these provisions, that in case of default in payment of premiums, if there be existing indebtedness against the company, the value of the term insurance, as provided in the tables as applicable to the number of years the policy has been in force, should be computed in accordance with the American Table of Mortality ; from this value the indebtedness due on the policy should be deducted, and the policy then extended for such term as that such balance would • purchase insurance for the face of the policy, computed according to said American Experience Table of Mortality. Since the court found that the net value of the term insurance at the end of the third year was $27.75, and since there was an existing indebtedness against the policy of $31.63, nothing was available under these provisions for the purchase of an extended term of insurance, and the policy lapsed when default was made for more than one month in payment of the fourth annual premium.

The holding results in overruling all of appellants’ assignments, and the case will be affirmed.

HUFF, X, not sitting, serving on committee of judges at Austin.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    INTERNATIONAL ELECTRIC CO. v. SANCHEZ et al.
    (No. 6042.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.
    Rehearing Denied June 12, 1918.)
    1. ELECTRICITY <&wkey;19(5) — PERSONAL INJURY— Proximate Cause — Evidence.
    ■ Evidence held to show that act of defendant electric company, in sending a heavy current over a wire known to- be uninsulated and within easy reach, was the proximate cause of the death of plaintiffs’ intestate.
    2. Electricity &wkey;>19(10) — Injuries—Knowledge of Defects.
    Where an electric company knew that the insulation was burned off of a wire on the promises of a user,.beyond its meter, and sent a current over the same of such voltage as to cause death to a person coming in contact therewith, the jury was authorized to find that it was negligent.
    3. Electricity <&wkey;16(7) — Personal Injury-Proximate Cause — Intervening Efficient Cause.
    The fact that the owners of the building knew of the uninsulated condition of a wire and failed to remedy the defect cannot be held such an intervening cause of the death of one coming in contact therewith as to require a finding that the negligent act of the electric company in sending a high voltage current over the wire after knowledge of its condition was too remote.
    4. Electricity <&wkey;19(12) — Personal Injury —Contributory Negligence.
    Where deceased had no knowledge of the existence of an uninsulated wire and stepped upon a parapet in a building, which act involved no danger had the wire not been there, and he was not then trespassing to any appreciable invasion of the rights of any other person, he was not guilty of contributory negligence as a matter of law.
    Appeal from District Court, Maverick County; Joseph Jones, Judge.
    iSuit by Francisca Bernal de Sanchez and others against the International Eleqtrie Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Sanford & Wright, of Eagle Pass, for appellant. David E. Hume, of Eagle Pass, and Lewright & Douglas, of San Antonio, for appellees.
   MOURSUND, J.

The appellees, surviving widow and children of Pedro Sanchez, deceased, filed this suit in the district court against International Electric Company, appellant, to recover damages resulting from the death of Pedro Sanchez, alleging in substance that appellant was engaged in generating electric current for light and power purposes in the city of Eagle Pass, and in furnishing such current to the residents of the city; that one of the customers was the Lyman Drug Company, engaged in the business of selling, among other things, ice cream and soda water; that the premises occupied by said drug company were wired so as to utilize' the electric current for lighting purposes, power for operating fans, and turning ice cream freezers, etc.; that an electric wire taking current furnished by appellant into the building occupied by said drug company became damaged by fire and the insulation of the wire was burned off, thereby exposing the live wire and rendering same dangerous to persons on or about the premises, and that some of the supports were burned away, thereby allowing the wire to sag and hang so low as to be within the ordinary reach of a standing person; that appellant knew of these conditions and of the danger incident thereto; that notwithstanding this knowledge the appellant failed to inspect, repair, and replace the wire, but continued to furnish current thereon for use in the building; that the appliances and equipment of appellant permitted the electrical current so furnished over said wire to be of a dangerous voltage and in excess of that reasonably necessary for light and power requirements of the drug company; that the deceased, Pe'dro Sanchez, went upon the premises of said drug company for a lawful errand, to wit, to purchase some flavoring extracts from the drug company, and while there and so engaged he came in contact with this exposed electric wire and was. killed by the shock.

The defendant pleaded the general denial, and specially pleaded in substance, that the electrical equipment on said premises, and at the place where the deceased lost his life, was installed, owned, and controlled by the drug company; that the ownership, control, and dominion of the equipment of appellant extended to the meter at the edge of the premises ; that all this equipment, including the place where deceased came in contact with the wire, was beyond the meter; that the deceased was guilty of contributory negligence, in that at the place where he received his injury the wire was elevated to. the extent that it was beyond the reach of a man standing on the ground or passageway; that a person on said premises pursuing a lawful errand, such as plaintiffs alleged, would not come in contact with the wire; that deceased exceeded the scope of any invitation he may have had and elevated himself, above the ground or passageway by stepping upon a parapet wall (which wall was constructed and used for no other purpose than to protect the sides of a stairway leading into the basement, and no one had ever used or been permitted to use the same for the purpose of standing thereon, and any one so doing assumed the attitude of a trespasser), or that deceased elevated himself in some other manner unknown to defendant, and in so doing exceeded the scope of any invitation he may have had; that it was only after the deceased had elevated himself as herein alleged that he came in contact with the wire; and that in so doing he was guilty of contributory negligence, contributing as a proximate cause of Ms injury.

The case was submitted on special issues, in answer to which the jury found that defendant had notice before the day of the death of Sanchez that the wire with which he came in contact and which caused his death was uninsulated; that defendant was negligent in permitting electricity to be transmitted over the uninsulated wire; that said negligence was the proximate cause of the death of Sanchez; that the wire was not a part of the electrib supply system of defendant; that Sanchez was not guilty of contributory negligence in getting in contact with the wire; that the wire was high enough above the ground and passageways to be perceptibly beyond the reach of a man of the height of deceased while passing under the wire; that deceased stepped upon the parapet wall and came in contact with the uninsulated wire on account of elevating himself in such manner; and that Ed. Watkins installed'the wiring for ,T. B. White at the place where deceased was killed. The damages were assessed at $4,000, apportioned among the several plaintiffs. The court entered judgment upon such verdict, awarding to each plaintiff the sum awarded in the verdict.

By the first assignment it is contended that the evidence does not support the finding that the negligence of defendant was the proximate cause of Sanchez’s death. As the jury by its verdict established as a fact that the wire was high enough above the ground to be perceptibly beyond the reach of a man of deceased’s height, and that deceased stepped upon the parapet wall and came in contact with the uninsulated wire on account of doing so, appellant’s theory is that such facts as a matter of law establish that any failure to repair the wire or negligence in sending electric current through the same could not have been the proximate cause of the injury, because defendant could not have foreseen that a person would probably be injured thereby under circumstances similar to those surrounding deceased at the time. Of course the facts found by the jury must be taken as true, and the question is whether the evidence as a whole, taking such facts as true, fails to support the finding that the negligence of defendant was the proximate cause of the injury. The determination of the question involves the consideration of all the evidence bearing on the question, and the weight to be attached thereto, and, as suggested by our Supreme Court, the question is generally one for the jury. The two facts established by the verdict of the jury cannot be given conclusive force, for they leave undetermined the issue whether it should have been foreseen as probable that some person would stand upon the parapet and come in contact with the wire. The accident occurred in a much-used passageway; the parapet .wall was in this passageway, with an ice crusher upon it, and a sink for general washing purposes in close proximity, and stairways leading into the basement and to the upper story were also in this region. The parapet wall was low, only 12, inches above the level of the landing at the rear door of the drug store, and the top step of the adjacent basement stairway and only 19 inches above the ground. The danger was so apparent that employes working in the drug store had tied the wire higher, using a string which did not hold it long, and it again sagged. Mr. White testified that he stood on the parapet dozens of times. This would show that it was easy to get on the parapet, but the way in which it was constructed and its dimensions show that persons would probably step upon it. In fact, White referred to it as a little walk, but quickly corrected this by saying it was not a walk and he did not know the technical name for it. The evidence shows that such a parapet, at a place much frequented, would very probably be used, either for the purpose of seeing at a distance, or idly with no particular purpose in view. The wire was sagging and the insulation had burned off, and reasonable prudence would have dictated to appellant that in view of the little parapet there was great danger of some one coming in contact with the wire. In view of all the testimony, we conclude the jury was authorized to find that the negligence of appellant was thq proximate cause of the death of Sanchez,-notwithstanding the fact that he stepped upon the parapet.

Appellant makes the following contention under the second, third, and fourth assignments:

“It appearing from the undisputed evidence as well as from the special verdict that the electrical equipment at the place where the deceased received the shock had been installed and was owned and controlled by the Lyman l>rug -Company, and, notwithstanding any knowledge appellant may have had of the fact that the insulation had been burned off the wire at this place, the appellant owed no duty to repair the wire and could not be held guilty of negligence in delivering current through the meter to' this equipment; it appearing from the evidence that all the facts and circumstances were known to the Lyman Drug Company and to ,T. B. AVhite, the owner thereof.”

As the appellant company knew the insulation bad been burned off of the wire, and sent a current over the same of such voltage as to cause death to a person coming,in contact therewith, the jury was authorized to find that it was negligent. Curtis on Electricity, § 417; Smith v. Middlesboro, 164 Ky. 46, 174 S. W. 773, Ann. Cas. 1917A, 1164; Hofman v. Leavenworth, 91 Kan. 450, 138 Pac. 632, 50 L. R. A. (N. S.) 574. The fact that the owners of the building knew of the condition of the wire and failed to remedy the defect cannot be held to be such an intervening cause of the death of Sanchez as would require a finding that the negligent act of appellant was too remote. In view of appellant’s knowledge of the condition of the wire it was negligent in sending a high voltage current over it, and there was an unbroken connection between such negligence and the death of Sanchez.

By the fifth assignment appellant complains of the finding that Sanchez was not guilty of contributory negligence, and submits the following proposition:

“The evidence is uneontroverted that in stepping upon the parapet deceased exceeded the scope of his invitation and was therefore a trespasser, and was guilty of contributory negligence as matter of law, because the evidence failed to show anything to excuse him from the blame of contributory negligence; on the contrary, it affirmatively appears that the circumstances did not excuse him from the blame of contributory negligence.”

No objection was made to the submission of the issue of contributory negligence, nor was the peremptory instruction asked on the theory that contributory negligence was shown as a matter of law. But, aside from this, it appears to us that the jury’s finding in answer to the issue whether Sanchez was guilty of contributory negligence is supported by the evidence. The statements referred to under the assignment contain no evidence tending to show that Sanchez had any knowledge of the existence of the wire or that he was guilty of negligence in coming in contact therewith, unless such negligence be shown by the sole fact that after coming out of the drug store on a business errand he stepped upon the parapet. The theory appears to be that he exceeded the scope of his invitation by such act and became a mere licensee, and that if it be established that he became a mere licensee it follows as a matter of law that he was guilty of contributory negligence. The act of stepping upon the parapet, whether for the purpose of seeing at a distance, or whether in idle sport, was not an act which involved any danger had the wire not been there, and it was not a trespass such as amounted to any appreciable invasion of the rights of any other person. There was nothing in such act of stepping on the parapet from which want of care could he deduced as a matter of law. The rules governing the question have been well stated in sections 97 and 98 of Shearman & Redfield (6th Ed.) on the Law of Negligence, and we think it is clear that when such rules are applied to the facts of this case it cannot be held that Sanchez was guilty of contributory negligence as a matter of law. As pointed out by the author referred to, the question whether defendant owed any duty to persons in Sanchez’s situation which it had neglected to perform is an entirely different matter from that of contributory negligence.

There being no merit in the three contentions urged in the brief, the judgment will be affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    FARMERS’ & MERCHANTS’ STATE BANK OF BALLINGER v. CAMERON et al.
    (No. 842.)
    (Court of Civil Appeals of Texas El Paso.
    May 9, 1918.
    Rehearing Denied June 6, 1918.)
    1. Usury i&wkey;137 — Statutory Penalties — “Payment.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4982, providing for the recovery of double the amount of usurious interest paid, taking by creditor under sale by virtue of a mortgage in satisfaction of the usurious portion of the debt was a payment, entitling mortgagor to recover.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Payment.]
    2. Appeal and Error <5&wkey;690(2) — Matters' Reviewable — Assignments of Error..
    Assignments of error in admitting evidence cannot be considered where the bills of exceptions do not disclose what the evidence objected to was.
    3. Mortgages <&wkey;292(3) — Purchase op Mortgaged Property — Assumption op Debt-Personal Liability.
    Where creditor under a trust deed bought at a trustee’s sale, and for the purpose of protecting its title, purchased a prior mortgage which had been assumed by the grantor in the trust deed, it is entitled to be subrogated to the senior lien, but the land is the primary fund for its payment, and such mortgage must be first foreclosed, after which it may have judgment for any deficiency.
    Appeal from District Court, Runnels County ; Jno. W. Goodwin, Judge.
    Action by S. M. Cameron and others against the Farmers’ & Merchants’ State Bank of Ballinger. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Jno. I. Guión and M. C. Smith, both of Ballinger, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, and R. B. Truly, of Ballinger, for appellees.
   HARPER, C. J.

This is a suit to recover the statutory penalty for collecting usurious interest, based upon the following allegations: D. A. Cameron, Sr., and D. A. Cameron, Jr., and S. M. Cameron executed their joint note for $10,530, with 10 per cent, interest, payable to the Farmers’ & Merchants’ State Bank of Ballinger, dated March 31, 1914, payable January 1, 1915, secured by deed of trust of even date, upon certain lands, containing provisions for sale in case of failure to pay the note and interest; that thereafter the note became due and unpaid, and defendant bank requested the trustee to sell the lands. After advertisement, the trustee sold for the purpose of paying the balance due, which was alleged to be the full amount of the note, less credits to the amount of $1,-106.60; that all of the lands were sold and bid in by the defendant bank for $8,750, being the highest bid, and deed was executed. Said amount was credited upon the note. That said note ($10,530) was made up of money loaned as hereafter stated, and usurious interest thereon carried forward into it from previous renewal notes, and interest carried into them in advance from date of maturity. Here follows a complete description and history of each note, overdrafts, etc., giving its date and amount, the amount of usury in each note, overdraft, etc., showing how the totals make up the $10,530 note. And further allege that at the time of the execution of the latter note there was .in fact due only $5,007.35, and that the balance was usurious. Appellees represent that by the sale of said property, on April -6, 1915, the appellants collected from the appellees and D. A. Cameron, Jr., $5,007.35, principal money actually due, and the further sum of $3,742.65, usurious interest, to wit, $7,485.30; and, in the alternative, if the court should hold that they were not entitled to recover said penalties, sought to recover the difference between the amount of said bid, $8,750, and the amount of actual indebtedness due, to wit, said sum of $3,742.05. The defendant pleaded general demurrer and numerous special exceptions, and by cross-action asked for judgment for note, and interest which was prior lien upon certain tracts of the land sold and purchased by appellants. By many assignments and propositions appellant charges error in overruling its general demurrer and special exceptions to plaintiff’s petitions, original and supplemental. The petition clearly sets up the facts which constitute usurious interest, and the amount of such interest, and the amount of unpaid principal of other notes and overdrafts incorporated in the latter note.

The question then arises, Does the petition charge a payment? The statute (artide 4982, Vernon’s Sayles’), provides for a recovery of double the amount of usurious interest paid, and no penalty is fixed for a charge of such. Clayton v. Ingram, 107 S. W. 880. The allegation is that, the appellant having a mortgage upon certain lands to secure the payment of the $10,530 note, caused the trustee to make sale thereof in accordance with the provisions of the mortgage, and of law, and that, appellants being the highest bidder, having hid $8,750, their bid was accepted, and deed to the land executed by the trustee to it, and the amount credited upon the note, and that this constituted payment of usurious interest to the amount of the difference between $5,007.35 lawfully due and the amount of the hid.

Appellant contends that, this being an involuntary payment, by reason of the fact that it was a sale under mortgage, the debt- or may not thereafter elect to set up that the proceeds of the sale was applied to the usurious portion of the debt, in order to place himself in a position to sue for the penalty, because the title passes by virtue of the valid portion of the debt, and not the invalid portion, and that the bid is equivalent to no bid at all, to the extent of the usury. It is true that purchaser obtains title by virtue of the valid portion of the debt, and to maintain a suit to set aside the sale the debtor must have tendered the amount of the valid portion of the debt (Hemphill v. Watson, 60 Tex. 679), hut we have no such case here, but, to the contrary, have a sale of $15,000 worth of property purchased at trustee’s sale by the creditor for a valid debt of only $5,-007.35, with a credit of the amount of the bid upon the note, which constitutes a taking of property for the usurious portion of the note; and it seems to us that, if, where property is voluntarily taken in payment of a usurious debt, it is the basis for a suit for the statutory penalty (Stewart v. Briggs, 190 S. W. 221), surely the statute must apply to a taking under sale by virtue of a mortgage in satisfaction of the usurious portion of the debt Eor had the trustee been instructed to sell sufficient land to satisfy the lawful portion of the note, evidently a much less acreage should have been sold.

Certain assignments charge error in admitting evidence over the objection of appellant; are overruled because the bills of exceptions do not disclose what the evidence objected to was.

The twentieth, twenty-first, and twenty-second urge that'the court should have rendered judgment for it upon the cross-action as an offset.

R. A. Terry and wife, being the owner of certain of the tracts of land sold by the trustee above noted, April 8, 1908, executed a deed of trust upon them to the British American Mortgage Company for $3,000. In January, 1910, said Terry and wife conveyed said tracts to appellees, who assumed the indebtedness. In July, 1912, appellees entered into a written agreement for the extension of time of payment of the note to the mortgage company. The appellant, after the sale by the trustee, and deed executed to. it to the lands, for the purpose of protecting its title, purchased the entire indebtedness of the mortgage company, and the latter thereupon assigned to appellant the note, etc., and its mortgage. Upon this showing, appellant in cross-action, asked personal judgment against appellees for the amount.

Under these facts, the appellants would be entitled to be subrogated to the rights of the senior lien. Bank v. Walker, 187 S. W. 725; K. & Bro. v. Willard, 191 S. W. 195. But under the case of Harris v. Masterson, 91 Tex. 171, 41 S. W. 482, the lands in question became a primary fund for the debt, and appellant’s remedy is to first foreclose his lien, and if, by sale, the lands do not satisfy the claim evidenced by the senior mortgage, it may have a personal judgment for the unsatisfied portion of the debt.

Affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests, and Indexes


author: HALL, J.

text:
    SOUTHERN COMMERCIAL & SAVINGS BANK v. COMBS et al.
    (No. 1230.)
    (Court of Civil Apoeals of Texas. Amarillo.
    May 22, 1918.)
    1. Bills and Notes t&wkey;342 — Bona Fide PURCHASERS — Purchase from Maker — In-dorsement of Payee — “Due Course of Trade.”
    Where one acquires negotiable paper from the maker thereof, even before maturity, which bears the indorsement in blank of the payee, the note is not acquired in due course of trade, and such purchaser takes it, not as a bona fide holder, but subject to all outstanding equities.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Due Course of Business.]
    2. Bills and Notes <&wkey;524 — Bona Fide Purchasers — Evidence.
    Evidence held to show that' defendant bank did not acquire notes in suit in good faith and in due course of business.
    3. Appeal and Error' &wkey;>1170(3, 7) — Scope of Review — Matters not Necessary to Decision.
    Questions on appeal as to sufficiency of pleadings, admission of evidence, and depositions are immaterial, where no prejudice resulted, in view of rule 62a (149 S. W. x), prohibiting a reversal of judgment on the ground of error of law unless the appellate court is of the opinion that the error amounted to a denial of rights reasonably calculated to cause the rendering of an improper judgment.
    Error from District Court, Dallam County; D. B. Hill, Judge.
    Suit by Mrs. Laura E. Combs and husband against L. E. Finley, the Southern Commercial & Savings Bank, and others. Judgment-lor plaintiffs, and defendant Bank brings error.
    Affirmed.
    Yeale & Lumpkin and Kimbrough, Underwood & Jackson, all of Amarillo, for plaintiff in error. Tatum & Tatum, of Dalhart, for defendants in error.
   HALL, J.

Mrs. Laura E. Combs, joined by her husband, filed this suit in the district court of Dallam county against L. E. Finley, Ike Levingston, J. L. Callahan, J. L. Newell, and Southern Commercial •& Savings Bank, alleging in substance that defendants in error were the owners of certain land and personal property situated in Dallam county, Tex.; that they were induced by the fraud of Finley, Levingston, and one Steffins, the agent of Levingston, to convey said property to one J. L. Callahan; that thereafter within a short time Callahan conveyed said property to Levingston in consideration of seven notes, executed by the said Levingston to Callahan, one in the sum of $5,000 and the other six for $150 each, and to secure the prompt payment of said notes Levingston, joined by his wife, executed a deed of trust upon said property; that Southern Commercial Savings Bank, with notice of the fraud perpetrated upon said defendants in error, purchased said notes. The transaction is set out at great length in the pleadings, and the prayer is that the deed conveying the property to Callahan and the deed from Callahan to Levingston, together with the deed of trust executed by Levingston and wife to Newell as trustee, be canceled and held for naught; that the cloud thereby cast upon the title of defendants in error be removed and that they have judgment for costs. Plaintiff in error bank answered by general and special exceptions, general denial, and by special answer alleged that it was an innocent purchaser for value before-maturity of the notes mentioned; that it purchased the same on or about November 30, 1914, in due course of trade; that the consideration given therefor being that said bank at the instigation of the defendant Stef-fins and the defendant Levingston loaned to the defendant Levingston the sum of $3,500, and took said notes from the defendant Stef-fins as collateral security for the note executed by the defendant Levingston; that said bank exercised ordinary care to ascertain the value of said notes as well as the security given for them, thereby obtaining said notes and deed of trust as collateral security for its loan.of $3,500 to Levingston. By way of cross-action plaintiff in error bank sought to recover upon its said note for $3,500, and by virtue of the provisions in deed of trust declared the $5,000 note and the six $150 notes all due by reason of a failure on the part of the makers to pay the first note of $150, and prayed for judgment upon all of said notes, for a foreclosure of its pledgee’s lien on the collateral notes, and for foreclosure of the deed of trust upon the property in Dallam county. Upon a trial before the court without a jury there was judgment for defendants in error in accordance with the prayer of the petition and awarding a writ of possession. It is conceded by plaintiff in error that the evidence is sufficient to show that Levingston and Finley obtained the deed from Mrs. Combs by fraud, but it is insisted by plaintiff in error that it is an innocent purchaser for value before maturity of said notes and as' such purchaser should be protected. Under this contention the inquiry is, Does the record contain evidence to support the judgment of the court against plaintiff in error?

The ruléis established in this state that where one acquires negotiable paper from the maker thereof, even before maturity, which bears the indorsement in blank of the payee, the note is not acquired in due course .of trade, and such purchaser takes it, not as a bona fide holder, but subject to all outstanding equities. Texas Land & Mortgage Co., Ltd., v. Cooper et al., 67 S. W. 173, and authorities there cited; Smith v. Cooley, 164 S. W. 1050 (writ of error denied). It was shown that W. A. Kammerer was the cashier of plaintiff in error bank and resided in St. Louis, where it seems the fraud was perpetrated. He testified that he made the loan to Levingston which was secured by the $5,000 note and the deed of trust in question; that the $5,000 note was signed by Ike Levingston and wife, M. R. Levingston, payable to the order of J. L. Callahan, and indorsed in blank by Callahan; that about four or five days before he made the loan on November 30th Steffins came into the bank with Levingston; that “Steffins made the arrangements, did the talking,” and said that he had a $5,000 note and deed of trust on some land in Texas, and wanted to know “if the note and deed of trust were put up back of the note signed t>y Levingston if the bank would lend money on it”; that when Steffins and Levingston came to the bank Steffins gave witness the notes and papers, witness drew up the $3,500 collateral note, which Mr. Levingston signed, and the amount was credited to Levingston’s account. It further appears that Einley and Steffins were employed by Levingston as his •agents, to assist him in disposing of some unprofitable laundry property which Levingston owned in St. Louis, and that this transaction is a part of their-effort along that line.

J. E. Edwards, a witness for defendant in error, testified that he saw W. A. Kammerer in the bank in St. Louis on the morning of March 8th; that in a conversation with Kam-merer the witness explained the matter to him and that Kammerer said he had investigated the value of the land, but had left it to Levingston; that he knew nothing about Callahan; and that he got the notes from Ike Levingston and was holding them as collateral for Levingston’s debt. The witness Ed-1 wards further stated that Kammerer told him that he held the papers in the bank in escrow before the deal was consummated, and that Einley, Levingston, and Steffins left them hi there together with a bill of sale of the laundry, and that the deal was made in the early, part of November, the papers remaining there until the first of December. Witness Edwards repeated his statement that Kam-merer told him Levingston had delivered the notes to him, and did not say anything about Steffins having delivered them; - that the bill of sale to the laundry was held for Einley; and that the notes and deed of trust were held for Levingston.

This evidence, when considered in connection with other testimony in the record, not necessary to be set out here, is sufficient to warrant the court in concluding that the bank did not acquire the notes in question in good faith and in due course of business. The slightest degree of diligence in making inquiry would have enabled Kammerer, as an officer and representative of the bank, to learn of the fraud out of which the notes originated. Determination of the question presented by the first two assignments practically decides the entire controversy.

There are a number of other questions relating to the sufficiency of the pleadings, admission of evidence, and deposition testimony which become immaterial in view of what has heretofore been said under rule 62a (149 S. W. x).

These assignments are all overruled, and the judgment is affirmed.

I-IIJFF, O. J., not sitting, being absent in Austin assisting committee of judges.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    OWEN, et al. v. SMITH.
    (No. 854.)
    (Court of Civil Appeals of Texas. El Paso.
    May 2, 1918.
    Rehearing Denied June 6, 1918.)
    1. Appeal asd Error <&wkey;107B6) — Harmless Error — Failure to File Findings and CONCLUSIONS.
    Since the right of a party on proper demand to have finding's of fact and conclusions of law filed in a case tried without a jury is one given by statute, the court on appeal cannot say that the failure to make them, or, having made them, to file them in time, is harmless error.
    2. Appeal and Error 4 ,^>527(2) —■ Scope of Kb view.
    Findings of fact and conclusions of law not filed within the time required by law cannot be considered on appeal.
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    Action by L. C. Smitli against Huts Owen and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Walker & Burleson, of San Saba, for appellants. J. H. McLean, of Llano, for appel-lee.
   WALTHALL, J.

L. C. Smith brought this suit in the district court of San Saba county against Huts Owen and Jim P. Kelley to recover on a note for $937.63, the note being given in extension of the balance due on two former notes of defendant’s; said two former notes being secured by a chattel mortgage on steers.

The steers were sold by appellants, defendants below, and the proceeds placed in the San Saba National Bank, against which appellants checked, among other things, for the purchase price of 112 head of heifers, thereby exhausting the bank account, and leaving unpaid the balance due on said two former notes for which the renewal note sued on was given. .J. E. Odiorne, who at that time had charge of the business affairs of the bank, realizing that the bank had permitted the security fund to be misapplied, had appellants to execute the renewal note and a chattel mortgage on the 112 head of heifers, with the promise to appellants that he (Odiorne) would try to get Smith to carry same, and which Smith did accept upon the representation by Odiorne that 50 head of said heifers would be shipped out in a few days, and the proceeds applied as a credit on said note. A few days after the execution of the renewal note and the mortgage on the heifers, upon the representations made by Odiorne to appellants to the effect that Smith was not satisfied with said arrangement, and that the heifers would have to be shipped out and sold, appellant Kelley sold his equity in said heifers to Odiorne and the bulk of said heifers were then shipped to market and sold.

Appellants admit the execution and delivery of the renewal note and mortgage, and hy cross-action alleged substantially that Odiorne was the agent of Smith in the transaction of the renewal note and mortgage; that at the time they executed the note and mortgage on the heifers they informed Odi-orne that if they could hold said cattle for 60 days they had said cattle sold for $39.50 per head; that in a few days after the renewal note and the mortgage was made Odiorne informed appellants that Smith had instructed him that he did not make loans on heifers and that the cattle would have to be shipped to market; they further alleged that the statements so made by Odiorne were false and fraudulently made for the purpose of inducing them to turn said cattle over to Smith. Tiiejy .ullage that they protested against shipping the cattle; that the market had declined and that said cattle then shipped would lose money; but believing tne said statements to be ti-ue, and that Smith had so instructed, they were induced thereby to let said cattle be shipped. They allege a loss of $8.30 per head. Appellee denied the allegation of fraud and false statements.

The case was tried without- a jury, and judgment was rendered for appellee. Appellants, by demand entered of record, requested the trial court to file findings of fact and conclusions of law. The judge filed findings of fact and conclusions of law, but not within the time required by the statute. The failure to file such findings and conclusions is made the ground of the first assignment of error. An agreed statement of facts approved by the court was filed, and the contention of appellee is that the failure to file the findings and conclusions in time is harmless and not a proper ground for reversal.

There is a clear conflict in the evidence on more than one material issue from which the trial court might have arrived at either conclusion on the issues tendered. In approving the bill of exceptions to the failure to file conclusions of fact and law, the trial judge states that such findings and conclusions were prepared in due time, but that on account of being engaged in the trial of a murder case in another county he failed to send his findings and conclusions to the clerk within the time required, and states that he did not refuse to file same, but that his attention was not called to the matter of such filing, and that while engaged in the trial of the murder case the matter of such filing was forgotten. We make this statement in justice to the trial judge, and to show that it was through no fault of appellants that the findings and conclusions were not duly filed.

The cases involving the question presented are not altogether harmonious. We think we need not enter into an extended discussion of the question but refer to the following cases which present the views entertained by this court: Wood et ux. v. Smith, et al., 141 S. W. 795, Bloch v. Bloch, 190 S. W. 528, and cases there referred to.

As said hy Mr. Justice Higgins, in the case last above noted:

“It is a right granted by the statute, and we are unable to say that the failure to comply with the request is not harmful in such cases.”

Findings of fact and conclusions of law not filed within the time required by law cannot be considered on appeal. Standard Paint & Wall Paper Co. v. Rowan, 158 S. W. 251; Houston Oil Co. of Texas v. Ragley McWilliams Lumber Co., 162 S. W. 1183. Appellants have the right to have the trial court, who had witnesses before him, pass upon and make findings upon the two material controverted issues of fact tendered in the case, viz. agency and false and fraudulent representations of the alleged agent. The assignment must be sustained.

Reversed and remanded.
      tg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SCHOELLKOPF SADDLERY CO. v. CRAWLEY.
    (No. 7963.)
    (Court of Civil Appeals of Texas. Dallas.
    May 18, 1918.
    Rehearing Denied June 15, 1918.)
    1.' Highways <&wkey;177 — -Negligence—Speed.
    Although the violation of the law regulating the speed of automobiles operated on highways is negligence per se, and is punishable criminally, yet such negligence is not actionable for damages unless it was the proximate cause of the injury.
    2. Appeal and Error <&wkey;1064(4) — Haemless ERROR — INSTRUCTIONS.
    An. instruction that “violation of the speed law is not in itself negligence, but becomes so when it is the proximate cause of the damage,” held inaptly expressed, though not likely to mislead the jury, and therefore harmless.
    3. Negligence <&wkey;122(3) — Contributory Negligence — Burden of Proof.
    Where defendant pleaded contributory negligence of the plaintiff, he assumed the burden ,of proving it.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by J. E. Crawley against the Schoell-kopf Saddlery Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Spence, Haven & Smithdeal and W. J. Rutledge, Jr., all of 'Dallas, for appellant. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.
   RAINEY, C. J.

“This suit was filed by J. E. Crawley against G. II. Schoellkopf Saddlery Company in the county court of Dallas county at law, Dalias county, Tex., to recover damages alleged to have been sustained by the plaintiff by reason of a collision between an automobile of the plaintiff, driven by him, and an automobile driven by an agent of the defendant, which collision is alleged to have taken place upon the county road, known as Richardson pike, in Dallas county, Tex., alleged to have been caused by the negligent operation of the automobile being run by and in control of the defendant’s agent. The specific prayers were for the sum of $72.90, alleged to have been required to repair plaintiff’s automobile, the sum of $90, alleged t.o have been the reasonable value of the use of said car during the period it was out of commission, and the sum of $450, alleged to have been the difference in market value of plaintiff’s automobile before and after the collision. “In addition to the demurrers in defendant’s answer, the defendant pleaded in defense a general denial, and for special answer that the plaintiff was guilty of careless and negligent operation of his automobile and thereby caused the collision, and also that the plaintiff was guilty of violating the speed laws of the state of Texas, and was guilty of contributory negligence. And the defendant asked in cross-action for the sum of $58.17, which was the amount defendant paid for the reasonable repair 'of its automobile after the collision.” This accident was a collision between two autos on the Richardson pike leading from Dallas about 8:30 or 9 o’clock at night. One, a Ford, was being driven by W. B. Thornton, a traveling man working for appellant, who was returning to Dallas after a trip out in his territory, and who was then within 6 or 7 miles of Dallas. At the point of collision there was a hill, and the road curved and then sloped in both directions. Appellee was driving a six-cylinder Saxon, and had four passengers with him going from Dallas to Farmersville. The collision damaged both cars, but hurt none of the occupants. The evidence sharply conflicts as to the negligence of each, which caused the accident, and it was an issue for the determination of the jury. Verdict and judgment were rendered for plaintiff for $162, and against defendant on its cross-action. Plaintiff entered a remittitur of $72, leaving the judgment for $90, from which this appeal was taken by appellant.

The first error assigned complains of the third paragraph of the court’s main charge, which reads as follows:

“Violation of the speed law is not in itself negligence, but becomes so when it is the proximate cause of the damage.”

It is contended:

“That said paragraph of the charge is contrary to the law of this state, in that the violation of the criminal statute limiting the speed of automobiles on public highways to a speed of 18 miles per hour is negligence per se, contrary to the declaration of said paragraph of said charge, all as shown by defendant’s bill of exception No. 8.”

We are of the opinion that -under the law the violation of the act of the Legislature regulating the speed of autos operated on highways is negligence per se, and is punishable criminally, hut such negligence is not actionable for damage unless it was the proximate cause of the injury. The said paragraph of the charge was inaptly expressed, but we think it was not calculated to mislead the jury; therefore it was harmless. Railway Co. v. Ison, 37 Tex. Civ. App. 219, 83 S. W. 408; Railway Co. v. Nixon, 52 Tex. 19; Railway Co. v. Nycum, 34 S. W. 460.

The second assignment of error presented complains of the court’s refusal to give the following special charge, to wit:

“You are instructed that the laws of the state of Texas provide: ‘That no person in charge of an automobile or motor vehicle on any public road, street or driveway, shall drive the same at any speed greater than is reasonable and proper, having regard to the traffic and use of the public road, street or driveway by others, or so as to endanger the life or limb- of any person thereon,’ and if you believe and find from the evidence in this case that the plaintiff, J. E. Crawley, at the time of the accident herein complained of, was driving his automo-. bile on a public road at a speed greater than was reasonable and proper, and without having regard to the traffic and use of said public road by others, or if you believe and find from the evidence that he was so driving his automobile as to endanger the life or limb of any person on said public highway, then I charge you that the plaintiff, ,7. E. Crawley, was guilty of contributory negligence as a matter of law as the same is defined in the main charge.”

There was no error in refusing this charge. The charge assumes that as a matter of law it would be contributory negligence in violating the automobile speed law in operating an auto on a highway, whether or not such violation was the proximate cause of the injury. The court did not err in refusing the requested charge No. 3, for said charge contains practically the same error as is contained in No. 2, and therefore subject to the same objection.

The fourth assignment is:

“The court erred in paragraph 11 of the main charge in which the jury is charged that ‘the burden is on the defendant to prove contributory negligence on the part of the plaintiff, if any, for the reason that the plaintiff, while on the witness stand, made admissions, which admissions were to be determined by the jury as to whether or not the same constituted negligence and for the court to so instruct the jury would be upon the weight of the evidence, as shown by defendant’s bill of exception No. 11, filed herein.”

The appellant pleaded contributory negligence on the part of appellee, and therefore assumed the burden of proving it. The appel-lee did not plead it, nor did his evidence show contributory negligence so as to change the burden of proof; therefore there was no error in the court’s charge. The court charged the jury, in effect, that if both parties were guilty of negligence to find for neither. The jury adopted the theory of appellee’s evidence and found accordingly.

The judgment is affirmed.

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


author: SWEARINGEN, J.

text:
    PARLIN & ORENDORFF CO. et al. v. GLOVER et al.
    (No. 6026.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 8, 1918.
    Rehearing Denied June 12, 1918.)
    1. Sales &wkey;>219(2) — False Representations —Title.
    If the purchaser of wagons in a financial statement to the seller misrepresented either his interest in the business or the liabilities and assets and deceived the seller, title to the wagons did not pass to the purchaser.
    2. Sales <&wkey;221 — False Representations— Title op Pueoiiasers prom Buyer — Bona Fides.
    If defendants were partners with a purchaser of wagons under a false statement of assets or interest, from plaintiff, and afterwards purchased the wagons from such person, they were not innocent purchasers.
    3. Trial t&wkey; 143 — Direction op Verdict.
    Where the evidence is conflicting upon material issues pleaded, direction of verdict is erroneous.
    Error from District Court, Hays County; Frank S. Roberts, Judge.
    Action by the Parlin & Orendorff Company and others against F. D. Glover and another. Judgment for defendants, and plaintiffs .bring error.
    Reversed and remanded.
    B. M. Cape, of San Marcos, and U. F. Short, of Dallas, for plaintiffs in error. R. E. Mc-Kie, of San Marcos, for defendants in error.
   SWEARINGEN, J.

Plaintiffs in error, Parlin & Orendorff Company, a corporation, filed this suit against Frank D. Glover and Cullen Crews, defendants in error, to recover a carload of Bain wagons, alleged to have been obtained by McMeans from plaintiffs in error through fraud. Plaintiffs in error had the property sequestered while possession was claimed by defendants in error, Glover and Crews. A jury was impaneled to try the cause, and special issues requested by plaintiffs in error to be submitted to the jury. Upon the conclusion of the testimony, the court instructed a verdict for the defendants in error, and rendered judgment thereupon that defendants in error recover against plaintiffs in error and the sureties on the replevin bond, E. O. Tennison and Guy Simpson, the sum of $1,140. Parlin & Orendorff Company and the two sureties prosecute this appeal.

The issues indicated by the following facts were sufficiently made by the pleadings: From the evidence it appears that F'. D. Glover and Cullen Crews launched A. ju. Mc-Means in the mercantile business in San Marcos in February, 1897, by furnishing him with $7,500 in cash. Before the store was opened for business, McMeans ordered the wagons, here involved. Upon receipt of the order, plaintiffs in error required a written statement by McMeans of his financial condition. In compliance with the demand, McMeans, in a writing signed by him, stated that he was the sole owner of the business, and that his assets exceeded his liabilities as follows: Assets: Stock of merchandise, $8,-500; cash in bank, $2,000; home, $3,000. Total assets, $13,500. Liabilities: Current accounts for merchandise, $3,000; surety on-note secured by mortgage, $150. Net assets subject to execution, $7,350. Believing this statement to be true, and relying-thereon, plaintiffs in error sold the wagons on credit. Had McMeans’ statement not shown that the liabilities were only 40 percent, or less, of the assets, plaintiffs in error-would not have sold the wagons on credit. This financial statement made by McMeans-was false. There is no conflict in the testimony concerning any of the facts so far-stated. The conflict in the testimony renders, it uncertain which particular fact in the-financial statement is falsely stated. There is testimony that McMeans did not owe Glover and Crews anything, but that they were partners in the business to be conducted in the name of I-I. A. McMeans. They contributed the cash capital of $7,500, and McMeans contributed his services. The profits were to be divided equally between the three.

If the jury determined from this testimony that there was a partnership of the-three doing business under tlie name of H. A.. McMeans, then the financial statement, made by McMeans to procure tbe wagons, was not false as to the liabilities and assets, but was; false because it failed to truly state the partnership. If the statement did truly state the ownership of the business, then it falsely stated the liabilities. In either event, the fact is, the statement was false, and plaintiffs in error were deceived thereby, and title to. the wagons, because of this false statement,, never passed into MeMeans.

Then again there is conflict in the testimony relative to the fact asserted by defendants in error that they were innocent purchasers, for value, of the wagons from McMeans; for there is testimony that defendants in error were partners of McMeans, and testimony that they were not. If they were partners, they were not innocent purchasers from McMeans. Farther, upon the issue of innocent purchasers, there is this other material conflict in the evidence: There is evidence that the bill of sale was executed to defendants in error by McMeans for the sole consideration of using all the assets to pay ail the indebtedness incurred in the said mercantile business. Parlin & Orendorff Company’s claim was a part of tbe indebtedness, and was never paid.

The fourth and fifth assignments complain of the court’s peremptory instruction to find for defendants in error and refusal to submit the issues made by the foregoing facts, based upon appropriate pleadings, to the jury for determination. In our opinion the evidence is conflicting upon material issues pleaded, and it was the duty of the trial court to submit such issues to the consideration of the jury. The court’s direction of a verdict under the circumstances oí this case was error. Ater v. Rotan Grocery Co., 189 S. W. 1106; G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329. The fourth and fifth assignments are sustained.

The first three assignments contend that the trial court committed error in its order oyerruling three special exceptions to allegations in the third amended answer of defendants in error.

After consideration, we conclude that there is no merit in either of the first three assignments, all of which are overruled.

The judgment is reversed, and the cause is remanded.

FLY, C. X, entered his disqualification, and did not sit in this case.
      ¿SssPor other oases see same topic and KEY-NUMBER in .all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GREEN et al. v. HALL et al.
    (No. 853.)
    (Court of Civil Appeals of Texas. El Paso.
    April 18, 1918.
    Rehearing Denied June 6, 1918.)
    1. Appeal and Error ¡&wkey;759 — Matters Reviewable — Assignments oe Error.
    Ruder Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ- St. 1914, art. 1612), providing that the assignments of error in the motion for new trial shall constitute the assignments of error, the appellate court will not consider assignments which have been reconstructed or are incorrectly copied in the brief, and present the questions raised in a new light.
    2. Appeal and Eebob &wkey;>294(l) Matters Review able — Savin g O b jection .
    The correctness of the court’s action in rendering a judgment in accordance with the verdict cannot be questioned on the ground that a finding was unsupported by the evidence where no move was made to set aside the verdict.
    3. Appeal and Erboe <&wkey;>1003 — Findings oe Fact — Prepondebanoe oe Evidence.
    The mere fact that a jury finding may seem to be against a preponderance of the evidence does not authorize the appellate court to set it aside.
    Appeal from District Court, San Saha •County; N. T. Stubbs, Judge.
    Suit by C. TV. Hall and another against C. R. Green and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Walker & Burleson, of San Saba, and F. G. Morris and Jno. L. Dyer, both of El Paso, for appellants. Flack & Flack and Walters •& Baker, all of San Saba, for appellees.
   HIGGINS, J.

On November 28, 1914, W. X Moore, by written instrument, leased to C. R, Green a tract of land upon which marble was located. Tbe lease provided that it ¡should become null and void if a quarry was not established on the land within two years from January 1, 1915, from which good, marketable marble was being taken in paying quantities. Thereafter Moore forfeited the lease for alleged failure to establish a quarry upon the land within the time limited from which good, marketable marble was being taken in paying quantities. Moore then leased the land to C. W. Hall.

This suit was brought to recover the land by Moore and Hall against Green and sub-lessees of tbe latter. The case was tried before a jury upon special issues. The jury found that the defendants had not established a quarry upon the land within 'two years from January 1, 1915, from which good, marketable marble in paying quantities was being taken. Findings were also made in response to other issues submitted, but they were irrelevant, and it is not necessary to state same. '

Upon the findings made judgment was rendered in favor of Hall and Moore. Motion for new trial was filed and overruled. Subsequent to tbe adjournment of court assignments of error were filed. Such assignments do not relate to any action or ruling of the trial court or judge, occurring subsequent to the rendition of the judgment, the filing of which is authorized by district court rule 101 (159 S. W. xi).

Appellants present in their brief five assignments, copies of assignments, filed as stated, subsequent to adjournment of the trial court. The first four assignments so presented in the brief are neither true nor substantial copies of any assignments in the motion for new trial. They are entirely reconstructed, and present the questions raised in a different light from that in which they were presented to the trial court in the motion for new trial.

By chapter 136, Acts 33d Leg. p. 276 (Vernon’s Sayles’ Ann. Giv. St. 1914, art. 1612), it is provided that the assignments in the motion shall constitute the assignments of error. We have no authority to disregard the plain meaning of this legislative provision, and it has been repeatedly beld that the courts will not consider assignments which have been reconstructed, or are incorrectly copied in tbe brief. For the reasons indicated, the assignments cannot be considered. Edwards v. Youngblood, 160 S. W. 288; Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35 ; Coons v. Lain, 168 S. TV. 981; Watson v. Patrick, 174 S. W. 632; Oil Co. v. Crawford, 184 S. W. 728; Irrigation Co. v. Buffington, 168 S. W. 21; Ruth v. Cobe, 165 S. W. 530.

The fifth assignment is so near a true copy that we have decided to consider same upon its merits, though we would be well warranted in refusing so to do. This assignment in substance is that the court erred in rendering judgment for the plaintiffs, because tbe preponderance of the evidence shows that within two years from January 1, 1915, there was established on the land a quarry from which good, marketable marble was being removed in paying quantities. And in support of this assignment tbe proposition is presented that, where the verdict of the jury is clearly against the preponderance of the evidence, it will be reversed on appeal, though the trial court has refused to set it aside.

There are two answers to this assignment. In the first place, the jury has made an adverse finding upon this issue, and it was not error for the court to render judgment in accordance with such finding. It could not properly render any other judgment. If the finding was unsupported by the evidence, it was appellant’s duty to attack the verdict, and move to set it aside. They cannot question the correctness of the court’s action" in rendering a judgment in accordance with the verdict. Scott v. Bank, 66 S. W. 485; Crawford v. Wellington, etc., 174 S. W. 1004; Hayes v. Pur. Co., 180 S. W. 149; Ins. Co. v. Jesse French P. & O. Co., 187 S. W. 691; Ins. Co. v. Burwick, 193 S. W. 165.

Furthermore, the mere fact that the finding may seem to be against a preponderance of the evidence does not authorize this court to set it aside. For the rule upon this subject, see Insurance Co. v. Fulghum, 177 S. W. 1008; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railway Co. v. Schmidt, 61 Tex. 282; Zapp v. Michaelis, 58 Tex. 275; Railway Co. v. Patterson, 173 S. W. 273. Under the evidence in this case, we do not think this court would be warranted in setting aside the finding of the jury, and reversing on that ground.

We have considered the first four assignments presented in the brief for the purpose of ascertaining whether they present fundamental error which would require reversal, though not properly assigned, and are of the opinion that they do not.

Affirmed.

       — ,Tnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    NATIONS v. WILLIAMS.
    (No. 6043.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 8, 1918.
    Rehearing Denied June 12, 1918.)
    1. Contracts <@=^211 — Construction—Time as Essence of Contract.
    If it is desired to make time of the essence of the contract, the intention must be clearly manifested.
    2. Contracts <&wkey;805(3) — Delivery of Goods —Time—Waiver. ,
    Where under a contract to redeliver films and lobby display within 10 days, they were delivered later to one authorized by the contract to receive them, who accepted the films and money for the lobby display, which acceptance was not repudiated by the owner, time was waived.
    3. Contracts <&wkey;237(2) — Validity—Consideration.
    Where a contract for the right to exhibit a motion picture was rescinded by a contract to return the films and lobby display, the other party to return a cow that had been given in part payment for the right, the new contract was supported by valid consideration.
    4. Costs <&wkey;231(3) — Award—On Appeal or Certiorari.
    Where judgment was rendered for plaintiff. in the justice court and upon certiorari plaintiff again obtained the same judgment, but defendant obtained a judgment on a counterclaim not given him below, there was no error in assessing costs of county court to plaintiff under Rev. St. 1911, art. 2046, providing for assessment of costs on appeal or certiorari.
    Appeal from Bexar County Court; John H. Clark, Judge.
    Suit by D. W. Williams against John Nations and another in the justice court. Dismissed as to the other defendant. Judgment for plaintiff. The cause was removed to the county court upon certiorari, where judgment was rendered for plaintiff and for defendant on a counterclaim. Defendant appeals.
    Affirmed.
    Ben H. Kelly, of San Antonio, for appellant. I-Iarris & Newton and McCollum Bur-nett, all of San Antonio, for appellee.
   FLY, C. J.

This suit originated in the justice’s court, where appellee sought to recover of appellant and John Freeman a Jersey cow, or $75, her value. In that court appellee obtained judgment for the cow as against appellant, Freeman having been dismissed from the suit, and appellant in a cross-action for the value of certain films and “lobby display” recovered. $18 against appellee, which judgment was set aside and afterwards judgment by default taken against appellant. By writ of certiorari the cause was removed from the justice’s to the county court. In the latter court a jury was waived and judgment was rendered in favor of appellee for the cow, her value being fixed at $75 and in favor of appellant for $18, the value of a certain display.

It appears from the statement of facts that on October 6, 1914, a written contract was entered into between appellant and appellee whereby in consideration of $1,110.05, of which sum $125 was cash and a note for $985.65, appellant sold to appellee the right to exhibit, show, or illuminate a certain motion picture known as the “Dimmit County Smugglers,” in the state of Louisiana. Ap-pellee exhibited the picture in that state, hut the people thereof did not respond with their cash with sufficient constancy and enthusiasm, and appellee, on November 30, 1914, signed an agreement, appended to the original contract, that the contract was forfeited, and he agreed to return “the films and lobby display” within 10 days to appellant or Freeman “at the Grand Rooms in San Antonio, Tex.” The films were returned to Freeman in February, 1915, and he accepted them, and also accepted $12 for the “lobby display,” which was not returned. Appellant bound himself to return the Jersey cow which had been delivered to him as $75 on the cash payment of $125. It was in evidence that the films were ready for delivery early in January and were held awaiting the return of the cow. The cow was to be delivered by appellant in San Antonio. It wa^ about 30 days after the contract was signed that appellant was informed that the films were ready for him in San Antonio.

There was no evidence tending to show that appellant desired to have the films at once, and there is nothing to show that time was of the essence of the contract. There was no provision in the contract that it should be void if the films were not returned in 10 days. If it is desired to make time of the essence of the contract, the intention must be clearly manifested. Kirchoff v. Voss, 67 Tex. 320, 3 S. W. 548; Telephone Co. v. Huntington, 104 Tex. 350, 136 S. W. 1053, 138 S. W. 381.

Not only was there no manifestation of the desire to make time of the essen'ce of the contract, but the films were delivered to Freeman, who was authorized by the contract to receive them, and he did receive them and accepted $12 in payment of the value of the “lobby display” that had been lost. Appellant was informed of the act of Freeman and did not repudiate it, and did not return the money to appellee. There was a waiver of the 10 days’ time, even if it had been of the essence of the contract, and he is estopped to set up the 10-day clause in the contract.

The return of the cow for the return of the films was a sufficient consideration for the new contract. Appellee saw that he could not realize any profit from the films, and upon representing this fact to appellant it was agreed to abrogate the original contract, and their mutual agreement was supported by a valid consideration. Foley v. Storrie, 4 Tex. Civ. App. 377, 23 S. W. 442; Craig v. Barreda, 200 S. W. 868.

The case of Grimm v. Williams, 200 S. W. 1119, decided by this court, does not militate against the ruling in this case as to the time of performance of the contract. In the cited case there was an agreement to pay a certain sum not later than a certain date, and when not paid on that date the person to whom it was to be paid declared the contract rescinded. In this case the condition was waived and the execution of the contract allowed to proceed.

The cross-assignment complains of the action of the court in assessing the costs of the county court against appellee because the appeal was from a judgment by default. The fact remains, however, that appellant obtained a judgment against appellee in the county court which was not given him in the justice’s court, and under the terms of article 2046, Bevised Statutes, there was no error in assessing the costs of the county court against appellee. The cross-assignment is overruled.

None of the assignments of error is well taken, and the judgment will be affirmed.
      ^xcFor other cases see same topic and KEY-NUMBER in all ICey-Numbered Digests and Indexes