text:
    FIRST NAT. BANK OF HEREFORD v. HOGAN.
    (No. 957.)

    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Appeal and Error <©=>1039(2) — Harmless Error.
    In an action for conversion of cattle by levy of attachment, where the petition, as a basis, for exemplary damages, alleged that officers of the defendant corporation, knowing that the cattle belonged to the plaintiff, had maliciously caused them to be seized under the writ and had .procured an order having them sold, all of the officers and agents of the defendant who committed the alleged wrongs having testified at the trial, error in not stating the names in the petition of the defendant’s officers who committed the alleged wrong was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4075; Dea Dig. <¿¿>1039 (2).]
    2. Malicious Prosecution <©=>50 — Pleading —Petition.
    In an action for conversion of cattle by levy of attachment, a petition alleging that defendant, its officers, and agents caused the cattle to be seized maliciously and in wanton and reckless disregard of the plaintiff’s rights, and without probable cause for believing them to be the property of another, was sufficient, without charging facts or acts showing malice, since, where one who has knowledge accepts the benefits of an unlawful levy, or ratifies the malicious acts of his agents in making such levy, malice may be inferred from want of probable cause.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 97; Dec. Dig. <©=50.]
    3. Evidence <©=>208(3) — Judicial Admissions —Pleadings—Subsequent Suits.
    In an action for conversion of cattle by levy of attachment, a paragraph contained in a bill of equity between the same parties thereto, although containing hearsay, opinions or conclusions, was admissible against the plaintiff as admission in another suit.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 715; Dec. Dig. <®=20S(3).]
    4. Evidence <©=>208(3) — Judicial Admissions —Pleadings—Averments on Ineormation and Belief.
    Averments in a pleading are competent evidence in a subsequent suit against the party making them; the fact that the averments are made on information and belief going only to the weight, and not to their admissibility.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 715; Dee. Dig. <©=208(3).]
    Appeal from District Court, Parmer County; D. B; Hill, Judge.
    Action by A. A. Hogan against the First National Bank of Hereford. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Carl Gilliland, of Hereford, Madden, Tru-love, Ryburn & Pipkin, of Amarillo, and Sam G. Bratton, of Olovis, N. M., for appellant. Knight & Slaton, of Hereford, for appellee.

      Application for writ of error pending in Supreme Court.

   HALL, J.

Appellee Hogan sued appellant bank, charging conversion, May 3, 1904, of 321 two year old steers, alleged to belong to appellee; that the conversion was effected by levying a writ of attachment on the cattle, for which he claimed $16,000 actual damages, that being the alleged value of the cattle at the time and place of the levy, and $2,000 exemplary damages. The facts alleged as a basis for exemplary damages were that the officers and agents of appellant company knew the cattle belonged to plaintiff at the time the writ was levied, and that they caused the cattle to be seized under the writ, maliciously and in wanton and reckless disregard of the plaintiff’s rights, and without probable cause for believing that the cattle were the property of Mersfelder, the defendant in the attachment proceedings; that after the suit in which the attachment was issued had been removed to the federal court, subsequent to the levy of the writ, appellant procured an order of the federal court, having said cattle sold, knowing that they belonged to appellee.

Defendant answered by general and special exceptions which will be hereinafter mentioned, general denial, plea of estoppel, and specially that at the time of the levy there was a prior mortgage on the cattle securing two notes in favor of Thomas J. Zook, both dated November 7, 1913, and due on or before May 4, 1914, one of said notes in the sum of $5,000, and the other $5,703.75; that said mortgage indebtedness constituted a valid and subsisting lien on the cattle at the time of the levy, and that no part of it had ever been paid off or satisfied; that all the interest plaintiff had in said cattle was an executory contract to purchase them from W. B. Mersfelder. The case was tried before a jury, resulting in a verdict and judgment against the appellant for the sum of $4,-821.50 as actual damages and $1,500 as exemplary damages.

The first, second, fourth, and sixth assignments of error complain that appellee did not state in his petition the names of the officers and agents of the bank who caused the plaintiff’s cattle to be levied upon by the sheriff of Parmer county; that said pleading did not allege what officers of the bank knew that the cattle were the property of plaintiff at the time of the levy; that it was not alleged what officers of the bank caused the order to be issued by the United States District Judge, after the case was removed to the federal court, and under which order the cattle were sold. The general rule is that in suits against corporations for damages growing out of a tort it is not necessary to allege the name of the agent whose wrongful act caused the damages. Thompson on Corporations, vol. 5, § 5461. We think McMeans, J., in G. & I. Ry. Co. v. Campbell, 108 S. W. 972, announces the proper rule, as follows:

“We are inclined to the opinion that the exception should have been sustained. The cor poration could act only through its agents, and when it is sought to be held liable upon a contract alleged to have been made by it, it seems that it ought to have the right to demand the name of its agent through whom the contract was made, so that it may be able to question his authority and be prepaired to meet the issue with proof. Rice Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698; but we are not prepared to say that the error in refusing to sustain the exception is such a one as to require the reversal of the case as it appears that the appellant had full knowledge as to which of its alleged agents the appellee would undertake to prove made the contract with him, and that such person testified on the trial.”

While this case involves a question of contract, the same principle should control. Judge McMeans suggests that as a matter of good pleading, upon another trial, the name of the agent whom it is sought to prove made the contract should be stated. It appears from the record in the instant case that the officers and agents of the appellant bank, who committed the alleged wrongs, but whose names were not mentioned in the petition, all testified upon the trial, and it is not shown that any injury resulted to appellant by reason of the court’s action in overruling the various exceptions, for which reason we do not think the error reversible.

One paragraph of the petition charges that the defendant, its officers and agents, caused the cattle to be seized maliciously, and in wanton and reckless disregard of plaintiff’s rights, and without any probable cause for believing they were Mersfelder’s property. Appellant specially excepted to the petition, because it did not charge any facts or acts on the part of such officers or agents, which showed malice, etc.; and the third assignment brings the action of the court in overruling this exception, before us for review. In San Antonio & Aransas Pass Ry. Co. v. Kniffen, 4 Tex. Civ. App. 484, 23 S. W. 457, James, C. J., said:

“The court did not err in overruling the exception. The allegation that the act complained of was done unlawfully, wantonly, and maliciously, and with the fraudulent intent to deprive. plaintiff of the value of the coal, was sufficient, without alleging the circumstances showing it to have been so done. Cone v. Lewis, 64 Tex. 331 [53 Am. Rep. 767]; Gross v. Hays [73 Tex. 515] 11 S. W. 523.”

The proposition is urged that in a suit by one party against another for the levy of an attachment on cattle belonging to a third person, where such third person sues for conversion for both actual and exemplary damages, before he can recover for exemplary damages, he must plead and prove that malice existed at the time the levy was made, and the fact that after the levy was made the plaintiff in the attachment suit, through its officers or agents, caused the cattle to be sold under the statute, would not of itself authorize the said third person to recover exemplary damages. The law is that where one, with knowledge of the facts, accepts the benefits of an unlawful and wrongful levy, or ratifies the willful and malicious acts of his agents in making such levy, he becomes liable. Malice may be inferred from want of probable cause. Appellee alleged that, after the suit filed by the bank against Mersfelder had been removed to the federal court, the bank, plaintiff therein, made an application to have the cattle sold as perishable property, knowing at the time that they were the property of the plaintiff; but it is previously alleged that such knowledge existed at the time of the levy. The court did not err in overruling the exception; nor was the petition subject to a general demurrer.

The eighth assignment presents for review the action of the court in permitting appellee, over the objection of appellant bank, to read in evidence paragraph 7 and the amendment thereto contained in a bill of equity pending in the federal court at Amarillo, which said paragraph and amendment are as follows:

“(7) That while said litigation arising in Deaf Smith county, Texas, was still pending, the said First National Bank of Hereford brought suit in the district court of Curry county, New Mexico, seeking to replevy from the said W. B. Mersfelder, as being subject to its chattel mortgage, certain cattle then situate in Curry county, New Mexico, and which were a part of the same herd as those which had been attached in Parmer county, under said writ of attachment hereinbefore referred to; that upon a trial of said cause in said court of Curry county, New Bloxico, the said W. B. Mersfelder, who was the defendant in that suit, and the said A. A. Hogan, who was a witness for said Mersfelder in said suit, both claimed and testified in substance that the said ' cattle which were attached in Parmer county, Texas, had been sold by the said Mersfelder to the said Hogan, and delivered to the said Hogan while they were still in New Mexico, and that Hogan had paid to the said Mersfelder the full purchase price of said cattle, excepting the amount of said note owing by the said W. B. Mersfelder, to the said Thos. J. Zook, vyhich note the said Hogan was to pay off and satisfy, and the satisfaction of said note was to constitute full and complete payment by the said Hogan for the said cattle; that said sale and delivery of said cattle by the said W. B. Mersfelder to the said A. A. Hogan, occurred in the state of New Mexico, and prior to the running of the attachment on said cattle by the sheriff of Parmer county, as hereinbefore stated, and said W. B. Blersfelder in said suit ■stated under oath, as a witness in his own behalf, that he did not make any claims to any of the funds deposited in the registry of this court arising from said marshal’s sale of said cattle attached by the said sheriff of Parmer county, and stated that he had never claimed any interest in said fund.”

Amendment to paragraph 7:

“Plaintiff amends paragraph 7 thereof by adding thereto and at the end thereof the following: And plaintiff therefore says that with the information now in its possession it is informed and believes, and upon such information and belief alleges the fact to be, that at the time of the levy of said writ of attachment heretofore referred to said cattle had in fact been delivered by the said W. B. Mersfelder to the said A. A. Hogan, and at the time of such levy were in truth and in fact the property of the said A. A. Hogan, free from any interest or claims therein on the part of said W. B. Blersfelder, of all of which the said Hogan and Mersfelder then had knowledge and notice.”

The objection urged to the admission of this pleading was that it was hearsay, an opinion, and a conclusion; that it only states what the party who swore to said plea believed to be true from information and belief, stating in the paragraph the information upon which he based said belief. The parties to the bill in equity were also the parties to this action. The rule is settled in this state that a bill in equity, and even an unverified pleading, may be introduced against the complainant as an admission in another suit. Buzard v. McAnulty, 77 Tex. 438, 14 S. W. 139; Austin v. Jackson Trust & Savings Bank, 59 Tex. Civ. App. 155, 125 S. W. 936; Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245.

Appellant contends that the admissions in the bill should not have been introduced, for the reason that the allegations are made upon information and belief. In Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393, it is held that averments in a pleading are competent evidence in a subsequent suit against the party making them, and the fact that the averments are made on information and belief goes only to their weight, and not to their admissibility. Tbe eighth assignment is therefore overruled.

We have reviewed the remaining assignments, together with the authorities cited in support of them, and have concluded that no reversible error is presented.

The judgment is therefore affirmed.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    ROYAL NEIGHBORS OF AMERICA v. HEARD et al.
    (No. 5608.)

    (Court of Civil Appeals of Texas. Austin.
    March 22, 1916.
    Rehearing Denied April 19, 1916.)
    Insurance <§=5815(4) — Actions on Policies— Pleading.
    Under Rev. St. 1911, art. 7093, providing that written instruments shall import a consideration in the same manner as sealed instruments under the common law, and article 1906, providing that the consideration of a written instrument cannot be impeached or put in issue except by sworn pleadings, in an action against a beneficiary association on a written policy, it was not necessary for the plaintiffs to allege in their pleadings that the written contract sued upon was based upon a sufficient consideration.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1998; Dec. Dig. <§=>815(4).]
    Error from District Court, Tom Green County; J. W. Timmins, Judge.
    Suit by Blrs. Cora Heard and another against the Royal Neighbors of America. Judgment for the plaintiffs, and defendant brings error.
    Affirmed.
    Davis, Johnson & Golden, of Dallas, for plaintiff in error. W. A. Anderson and W. E. Taylor, both of San Angelo, for defendants in error.

       Application for writ of error dismissed in Supreme Court.

   KEY, C. J.

Birs. Cora Heard, joined by her husband, T. Bl. Heard, brought this suit against the Royal Neighbors of America, a beneficiary association, doing business in Texas, upon a written contract of insurance for $1,000. Though duly served with citation, the defendant failed to answer, the plaintiffs obtained judgment by default, and the defendant has brought the case to this court by writ of error.

The plaintiff in error, defendant in the court below, presents but one assignment of error, which is that the trial court erred in rendering judgment by default in favor of the plaintiffs in the court below for the reason that the petition upon which the judgment was'rendered failed to allege any consideration supporting the contract of insurance.

With the exception of alleging a consideration, the petition contains all the other necessary averments, and alleges:'

“That on or about the 3d day of January, 1913, Miss Bessie M. Heard made application to the defendant for membership therein for the purpose of taking out a policy of insurance in favor of her mother, Mrs. Cora Heard. That on or about the 10th day of February, 1913, the defendant executed and delivered to Miss Bessie M. Heard a benefit certificate No. 304,549, whereby the defendant promised, obligated, and bound itself to pay to the said Mrs. Cora Heard the sum of $1,000 upon the death of said Miss Bessie M. Heard.”

Thus it will be seen that while the petition does not, in express terms, allege that the contract was in writing, still it describes it in such manner as shows that it was. In this state, by force of statutory law, all written instruments import a consideration in the same manner and as fully as sealed instruments imported under the common law (R. S. art. 7093), and the consideration of such instruments cannot be impeached or put in issue except by sworn plea (R. S. art. 1906) ; and, such being the case, we hold that it was not necessary for the plaintiffs to allege in their pleading that the written contract sued upon was based upon a sufficient consideration (Newton v. Newton, 77 Tex. 512, 14 S. W. 157; Railway Co. v. Wright, 1 Tex. Civ. App. 405, 21 S. W. 80; Warren v. Gentry, 21 Tex. Civ. App. 151, 50 S. W. 1025; Railway v. Pennington, 32 S. W. 706; Railway v. Shirley, 130 S. W. 687). Article 7093, R. S., places all written contracts upon a parity with sealed instruments under the common law, and it is well settled that at common law in suit upon a sealed instrument it is not necessary to allege a consideration. Chitty on Plead, vol. 1, p. 360; Shipp on Common-Law Plead, p. 227 ; 9 Cyc. p. 717; Jones v. Holliday, 11 Tex. 412, 62 Am. Dec. 487. In the latter case, which was decided before article 7093 was enacted, our Supreme Court held that it was necessary to aver a consideration to support a simple contract in writing and not under seal, but in the opinion it is stated that it is not necessary to allege the consideration of a contract under seal, for the reason' that the consideration is implied in the solemnity of the instrument.

Counsel for plaintiff in error rely upon the case of Life Ins. Co. v. Davidge, 51 Tex. 249, which seems to be in point, but as it refers for support to decisions made prior to the enactment of the statute declaring that all written instruments import a consideration, and as no reference is made in that case to that statute, we believe that it must have been overlooked by the Supreme Court. It is a well-settled principle of law that, as a general rule, it is not necessary for a plaintiff in a civil case to plead any fact that he will not be required to prove; and it is obvious, from the provisions of the two articles of the statute referred to, that when a plaintiff brings suit upon a written contract he is not required to make any proof concerning the consideration for the contract.. By the terms of the statute the written instrument imports a consideration, and defendant can 'offer no testimony tending to-show a want of consideration until he files a plea under oath denying the existence of a consideration. This renders it clear that a proper construction of the statute referred to places the burden of proof upon the defendant in reference to the consideration for contracts in writing, and therefore it is not necessary that the plaintiff should make any averment upon that subject.

We recognize and regret the fact that our decision in this case is in conflict with the opinion of the Supreme Court in the Davidge Case, but we are so thoroughly convinced of the correctness of our own decision that we decline to follow that ease, and especially so, as the opinion of the court indicates that the statute hereinbefore referred to was overlooked when that case was decided.

No error has been shown, and the judgment is affirmed.

Affirmed.
      <®=3iror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    RANKIN et al. v. NOEL, County Com’r, et al.
    (No. 5662.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 26, 1916.)
    1. Highways <§=>23 — Opening — Authority os Road Commissioner — Statute.
    Under Acts 27th Leg. c. 49, the road law for Fayette, Frio, and Uvalde counties, where the commissioners’ court of Frio county never ordered the road commissioner of a precinct to open a road of the second class, merely approving and adopting the report of the jury of view as to the laying out of the road, correcting, the part referring to damages, and ordering that all landowners be allowed a sum per acre for all! land taken, later ordering issuance of warrants therefor, such road commissioner had no power to open such a road,-since the statute constitutes-each county commissioner, ex officio road commissioner for his precinct, the agent of the commissioners’ court, and gives him no independent authority.
    [Ed. Note. — For other cases, see Highways,. Cent. Dig. §§ 31-34, 36; Dec. Dig. <§=>23.]
    2. Counties <§=>53 — Contracts — Binding Force — Omission to Record.
    Contracts or agreements made by municipalities are valid and binding only when entered upon the minutes, except that where an order of the commissioners’ court of a county has been passed, the omission' of the clerk to record it will not render it void.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 66-70; Dec. Dig. <§=>53.]
    3. Highways <®=>53(1) — Establishment—Order oe County Commissioners — Necessity eor Vote.
    A mere conference by county commissioners, and a verbal agreement to open a road,, without a vote being taken, does not constitute an order to open the road and is invalid, since-an order must be voted by the commissioners.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 155-158, 161, 162; Dec. Dig. <§=> 53(1).]

      4. Counties <®=o53 — Opening of Road — Order of Commissioners — Sufficiency of* Evidence.
    In mandamus proceedings against a county commissioner, ex officio _ road commissioner for his precinct, to compel him to open a second-class road, a finding that the commissioners’ court of the county made no order that the road he opened was justified, where no such order was slipwn by the minutes; other orders relating thereto being shown.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 66-70; Dee. Dig. ⅞=>53.]
    5. Mandamus ⅞=>151(1) — Necessary Parties.
    In mandamus proceedings against a county commissioner, ex officio road commissioner for his precinct, to compel him to open a second-class road, the landowners affected and the county are necessary parties, so that the county commissioners are properly permitted to intervene.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 291; Dec. Dig. ®=»151(1).]
    6. Mandamus <S=o151(1) — Rights of Persons Not Parties.
    Mandamus will not issue, where it appears that it will affect persons not before the court whose rights have not been determined in a previous suit.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 291; Dec. Dig. <s=»151(l)J
    7. Highways <S=>70 — Order of County Commissioners — Laying Out Road — Alteration — Statute—“Public Road.”
    Where no road has been opened, but merely designated by a jury of view, no work having been done, and no one ever having used it, an order of the commissioners’ court of a' county, setting aside their order that a second-class road be opened, and ordering it laid out in another location, does not come within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6861, providing that no public roads shall be altered or changed except to shorten the distance, unless by unanimous consent of all commissioners, since it was not a “public road” within the statute, which no road can be until it is opened to the public arid passes under the control of the county or state.
    [Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 234, 235, -238; Dec. Dig. <§=» 70.
    For other definitions, see Words and Phrases, First and Second Series, Public Road.]
    8. Highways <&=o53(1) — Roads—Third-Class Road — G-ating.
    Since only a third-class road can have gates erected across it, an order, making it optional with landowners as to whether they shaE gate a road, shows the creation of a third-class road.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 155-158, 161, 162; Dec. Dig. <§=» 53(1).]
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Application for writ of mandamus by W. D. Rankin and others against E. W. Noel, county commissioner, and others. From a judgment refusing the writ, plaintiffs appeal.
    Af-
    firmed.
    Kercheville & Brown, of Devine, for appellants. S. T. Dowe and S. T. Phelps, both of Pearsall, for appellees.
   FLY, C. J.

This is an application for a writ of mandamus by appellants against E. W. Noel, county commissioner of his county, to compel 'him to open a certain second-class road, described therein. It was alleged that on or about May 22, 1914, the commissioners’ court of Frio county passed an order, directing appellee, Noel, who was the commissioner of precinct No. 2, in which the road was ■situated, to open to the public a road of the second class, at least 40 feet wide, beginning at a certain point and continuing to the line of Frio and Atascosa counties; that the commissioners’ court had power to make such order; that under the provisions of a special road law for Fayette, Frio, and Uvalde counties, it became the duty of the appellee, Noel, to. open the road in question; that he had refused so to do; that appellants were parties at interest in having said road opened; and that they had no adequate remedy at law. Noel did not answer, and on appearance day the county judge and three commissioners of Frio county were permitted to intervene in the cause. After hearing the evidence, the writ of mandamus was refused.

Under the terms of the road law for Fayette, Frio, and Uvalde counties, passed by the Twenty-Seventh Legislature (page 96, Laws of 1901), each commissioner of those counties became ex officio road commissioners of their respective precincts, who were empowered—

“under the direction of the commissioners’ court,” to take “charge of aU teams, tools, machinery and appliances, * * * and it shall be their duty, under such rules and regulations as the commissioners’ .courts shall prescribe, to superintend the laying out of new roads or changing of established roads, and the budding or repairing of * * * public roads, the control over all road overseers and such other matters pertaining to public roads and bridges in their respective precincts as the commissioners’ courts may require.” Section .1.

The law in. question does not seek to interfere with the powers and duties conferred upon commissioners’ courts by article 6860, Vernon’s Sayles’ Statutes. In that article it is provided that commissioners’ courts—

“shall have fuE powers and it shall be their duty to order the laying out and opening of public roads when necessary, and to discontinue, or alter any road whenever it shall be deemed expedient as hereinafter prescribed.”

The commissioners’ court is the governing body of each county, and the powers and duties conferred upon that court could not be taken away and conferred upon some member of the court. No attempt was made to curtail the powers of the commissioners’ court by increasing those of a single commissioner, but all his duties are to be performed “under such rules and regulations as the commissioners’ courts shall prescribe” and “as the commissioners’ courts may require.” He is an arm of the court, moved as the court may order and prescribe. No authority has the power to lay out a public road except the commissioners’ court, and when it is laid out, it cannot be opened except by an order of that court. It follows that E. W. Noel had no authority to lay out and open a public road unless such power was conferred upon him by the commissioners’ court of Frio county. That power was never conferred upon him, although it is so alleged in the petition. The statement of facts shows that a jury of view was appointed by the commissioners’ court on October 13, 1013, on a petition for a second-class road, and a report was made by them, and on January IB, 1914, the court approved and adopted the report of the jury of view as to the laying out of the road, but neglected the part referring to damages, and ordered that all landowners, over whose land the road was to pass, be allowed the sum of $20 an acre for all land taken for the road. Afterward, there was an order made to issue warrants to the landowners for sums reported by the surveyor. These are the only orders shown by the minutes of the commissioners’ court, and this court is justified in concluding that no order was ever made by the commissioners’ court to have the road opened, and consequently Noel had no authority to open the road.

The object of this action was to compel Noel to open the road, and no effort was made to obtain a writ compelling the commissioners’ court. To open the road without an order for the opening would have been to force him to act in defiance of the commissioners’ court and contrary to the law of the state. The district court could not compel such action, and on that ground was justified in refusing the mandamus.

The rule formerly prevailed that contracts or agreements made by municipal corporations, county or city, are only valid and binding when entered upon the minutes. This rule has been modified. Fayette County v. Krause, 31 Tex. Civ. App. 509, 73 S. W. 51. The modification is that where an order has been passed, the omission of the clerk to record it will not render it void. If an order is in fact passed by a commissioners’ court, the failure to record it would not affect its validity under our decisions. But it would be necessary to prove the passage of the order before it could have any effect. Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000. A mere conference by the commissioners and a verbal agreement to do a certain thing without a vote being taken would not constitute an order and would not be valid. There must be an order voted by the commissioners. Fayette County v. Krause, herein cited. In speaking of the modification of the rule as set out in Ewing v. Duncan, the Court of Civil Appeals said:

“Whatever may be the extent to which those decisions modify the rule as to the necessity for the entry in the minutes of orders made by a commissioners’ court, they in no way modify the rule that all contracts made by a county, to be valid and binding, must be made by or under authority of an order of the commissioners’ court.”

The testimony of the clerk tends to show .a mere discussion of opening the road, but no vote. Dixon, an interested party, would not swear positively to a vote, and neither would Gore. All other orders were entered on the minutes, and it was singular, if the very important order to open the road was ever passed, that no record of it was ever made. The court was justified in finding that it was not made.

The landowners and the county were necessary parties to the suit, and the court did not err in permitting the commissioners’ court to intervene in the suit. The county had a vita), interest in the suit, and it should not have been compelled to pay damages for a road without being heard in the matter. A mandamus will not be issued where it appears that it would affect persons who are not before the court, and where the rights of those persons have not been determined in a previous suit. Commissioner v. Smith, 5 Tex. 471; Watkins v. Kirchain, 10 Tex. 375; Tabor v. Commissioner, 29 Tex. 508. As said by the court in the last-named case:

“If there were no other objection to the application for the writ of mandamus in this case, the fact that there are other claimants to the land, who are not parties to this proceeding, would furnish grounds for refusing it. The averment that their claims are void will not relieve the matter of the difficulty; for this court will not undertake to adjudicate their claims, whether valid or not, when the claimants are not parties to the suit.”

See, also, Railway v. Jarvis, 80 Tex. 456, 15 S. W. 1089; City of Austin v. Cahill (Tex. Civ. App.) 88 S. W. 536.

James L. Curry testified that the road sought by appellants would go through the middle of his land, and would about ruin it, and that he had not been paid or offered anything for his land by the county. He was vitally interested in the matter of opening the road, and yet he was not a party to the suit. Cowley had a suit for injunction pending to prevent opening the road through his land. He was interested, and yet he was not made a party to the suit.

The order of the commissioners’ court setting aside the former order and ordering the road laid out in another different place does not come within the purview of article 6861, Vernon’s Sayles’ Statutes, which provides that no public roads shall be altered or changed except for the purpose of shortening the distance, unless the change is made by unanimous consent of all the commissioners elected, because no road had been opened. It was not a public road until it was opened for travel. The road in this instance had merely been designated by a jury of view whose report had been adopted, and no work had been done on it, and no one ever used it. It was not a public road within the terms of the articles to which reference is made. There can be no public road until it is open to the public and passes under the control of the county or state. Elliott, Streets and Roads, § 9, p. 12.

The road in question was intended to be of the second class, and the statute defines a second-class road as one—

“clear of all obstructions and not less than thirty feet wide; stumps six inches and over in diameter to be cut down to six inches of the surface and rounded off; and all stumps less than six inches in diameter to be cut smooth with the ground; all causeways to be made at least sixteen feet wide.”

It is not pretended that a hush or tree had been cut or a stone disturbed on the road viewed by the jury, or that any human being has ever used it as a public road. It has never come into existence as a road, but is in an inchoate and dreadful state of “unpreparedness.” Article 6861 was enacted to protect the public from the change of a road that had come into existence, and not from something from which a public road might, in the process of time, be evolved. That the commissioners’ court, which authorized a second-class road, never expected it to develop into its second-class condition is shown by the fact that permission was given to not build fences along it that gates might be placed across it. Says the order: n

“Said road to be and the same is not required to bo laned, but it is left optional with said landowners as to whether they shall gate the road, or lane the same at their expense.”

With those words the road was changed from the second class to the third class, the latter being the only one that can have gates erected across it. And yet in the face of that order appellants sought to compel the commissioner to open up a second-class road. The court did not err in refusing the writ of mandamus.

The judgment is affirmed
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      othér oases see same topic'and KEY-NUMBER in all Key-Numbered Digests'and Indexes


author: HALL, J.

text:
    TEXAS HIDE & WOOL CO. v. EDWARDS et al.
    (No. 959.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1916.
    Rehearing Denied May 10, 1916.)
    1. Sales <®=359(1) — Action foe Price — Sufficiency of Evidence.
    In an action for the price of coal sold and delivered evidence held not to sustain a judgment for the plaintiff.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1056, 1057; Dec. Dig. <@=>359(1).]
    2. Appeal and Error <®=1178(8) — Reversal —Grounds of Reversal — Amendment.
    Appellate courts will not reverse judgments in order that the parties may amend their pleadings to conform to the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4616-4619; Dec. Dig. <§= 1178(8).]
    Appeal from Potter County Court; T. W. McBride, Judge.
    Suit by the Texas Hide & Wool Company against H. P. Edwards and another. Judgment in justice’s court, for plaintiff against defendant Edwards and for Edwards against his codefendant, Bishop, was reversed on appeal, and plaintiff appeals.
    Affirmed.
    Veale & Lumpkin, of Amarillo, and Cooper & Merrill, of Houston, for appellant. Kim-brough, Underwood & Jackson and C. E. Gustavus, all of Amarillo, for appellees.
   HALL, J.

The appellant filed this suit in the justice court of Potter county upon an account for coal in the sum of $141.95. From a judgment in favor of appellant in the sum of $109.88 against appellee Edwards, and that Edwards recover against Bishop the same amount, appeal was taken to the county court of Potter county. • The pleadings in both courts on the part of appellant were oral. Appelle.e Bishop pleaded in both courts orally that the coal was at the hotel at the time he purchased the same and was included in other personal property. The appellee Edwards, in addition to the general issue, pleaded that in the summer of 1912 he contracted with plaintiff for from three to five cars of coal to be delivered through the winter, as he needed it, and called upon plaintiff to so deliver it, and that the coal was not to be delivered except as he should call for it; that he did not request the delivery of this ear of coal, and did not know that the same had been delivered until about January 3, 1913; that about the 28th of December, 1912, appellant’s manager called him over the phone and advised them that, while they had a car of coal which they could deliver to him, yet, as he was not needing it, they would dispose of it to other customers and deliver him a car later when he needed it; that Edwards acquiesced in this arrangement and instructed plaintiff’s manager not to deliver the coal, and that ho did not know when the same was delivered; that he entered into a contract by which he sold the Elk Hotel to his codefendant, Bishop, on the evening of the 1st day of January, 1913, in ignorance of the delivery of the car of coal, if the same had been delivered; that he did not receive any consideration from Bishop in the sale of said hotel for said company, and that by reason of plaintiff’s breach of its agreement in delivering the coal without Edwards calling for it, if the same was so delivered, and in breach of its agreement with defendant Edwards that this car of coal would not be delivered to him until called for, appellant was estopped from claiming the value of said coal.

W. F. Nabor, the manager of appellant company, testified in part as follows:

“Mr. Edwards contracted for five cars of coal, I think, and the same was to be delivered as he needed it or ordered it. The car in question was delivered about December 31, 1912. Mr. Edwards was running the Elk Hotel at the time I put the coal in, and did not advise me that he sold out the same until after the coal was' put in. I think he was out of town when the coal was put in the bin. ⅜ * * I know he was gone [to Lamesa] because I asked him how much coal was needed, and he said to put some in the bin, and when he came back he said: T have sold out; I do not want to pay for that coal.’ He said Bishop got that coal. We were not told when we were putting it in the bin to stop. After Mr. Edwards had told me that he sold out I said I would take it out of the bin at my expense rather than have any trouble, and Mr. Bishop refused to let me take it out. Mr. Edwards told me that he was going to the ranch and said put some coal in the bin if it was needed, just the same as we had been doing when the bin would get low and a car would come in and we would fill the bin. * * * The first time that we knew Bishop had anything to do with the hotel was when this controversy came up about the coal, and he said that he had bought everything there, which was after January 1st. Bishop refused to pay for the coal. It was charged to Edwards. I do not remember exactly what we had delivered before this car had been delivered, as Mr. Edwards ordered it out along through the winter.”

Appellee Edwards testified in part as follows:

•‘It was a summer contract for winter delivery, and the coal was to be delivered as I called for it in the fall or winter, for furnace or steam coal. Just before leaving I was on my ranch in Lynn county, and was at Sweetwater just prior to the 1st of January. I left here on December 27th, and returned on the evening of the 31st of December. I sold out the furnishings of the hotel on the evening I returned to Harry Bishop. * * * Just before leaving to go to Lynn county Mr. Nabor called me over the phone the morning I left, and said he had a car of coal, and before I could say anything he said the laundry wanted it, ‘and you do not need it, and I am going to let the laundry have it, and I will deliver you the next car that comes in.’ I said: ‘All right, Bill; that suits me exactly. I am going away to-day, and I have a matter pending, and that kind of a deal suits me very well. I will tell you about it when I come back.’ I was then on the eve of trying to get out of the Elk Hotel, and I had reference to this, but did not tell him so. I did not tell anybody else so. I did not know that the coal was in the bin until Mr. Nabor told me about it, about the 3d or 4th of January. I had a verbal understanding with him that I was to let him know 10 or 12 days ahead when I wanted a car of coal, and he would order it out. I had told him on previous cars to order me a car of coal out. I had not ordered this car.”

The deposition of W. F. Nabor was offered, as follows:

“I am manager of the Texas Hide & Wool Company. Yes; I hauled and weighed each car of coal delivered to Edwards. The coal was to be delivered to Mr. Edwards as needed and called for.”

Appellee Bishop testified in part:

“The plaintiff at no time claimed to have delivered the coal at the hotel after I took possession of the same, January 1, 1913. I would not let plaintiff take the coal away, for I had bought it from Edwards and paid him for it. I used the coal and other supplies that were in the hotel when I took charge of it.”

A bill of sale was introduced, dated January 2, 1913, whereby Edwards conveyed “all the furniture, fixtures, provisions and all supplies on hand in the Elk Hotel” to one Wayland. It appears from the record that Wayland was buying the property for Bishop. While the evidence is in a measure conflicting, the trial court was authorized to conclude that under the contract no coal should have been delivered until it had been ordered by Edwards. There is no evidence in the record showing that Edwards ordered this particular car, and it was delivered to the hotel even without his knowledge. Appellant asked for judgment against Edwards only. It is insisted that we should reverse the judgment and remand the case, in order to give appellant the right to recover, either against Bishop or against Edwards upon some other theory. The appellate courts have uniformly refused to reverse judgments in order that the parties may amend their pleadings to conform to the evidence. The suit being upon an open account against Edwards alone, no recovery could be had against Bishop. The judgment was affirmed without written opinion, but, on account of an urgent motion for rehearing, we have briefly reviewed the case and given our reasons for our former action.

The motion is overruled.
      (gs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    SAN ANGELO COTTON OIL CO. v. HOUSTON COUNTY OIL MILL & MFG. CO. et al.
    (No. 978.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 26, 1916.)
    1. Venue @=22(1) — Domicile of Codefend-ants.
    Rev. St. 1879, art. 1198, subd. 4 (Vernon’s Sayles’ Ann. St. 1914, art. 1830, subd. 4), allowing suit in any county where any defendant resides, means that, if one who is a proper or necessary party defendant resides in the county in which the action is brought, other defendants residing in other counties may be joined with him.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 35; Dec. Dig. @=22(1).]
    2. Venue @=22(3) — Codefendants—Liability of Agent for Unauthorized Contracts.
    A broker assuming to negotiate a contract for principal is liable to the contracting party for the damages resulting from breach of his warranty of authority; so that suit may be brought against the principal and broker in the county where the latter resides.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 37; Dec. Dig. @=22(3).]
    3. Pleading @=20 — Alternative Allegations — Duplicity.
    A plaintiff who is doubtful about the particular facts he can establish may plead in the alternative without rendering his pleading de-murrable for inconsistency or multifariousness.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 43; Dec. Dig. @=20.]
    4. Principal and Agent @=184(1) — Action against Both.
    In a suit on a contract made by an agent, where his authority to make it is questioned, the agent is a proper party defendant if sued in the alternative as liable in the event of determination that he had no such authority.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 701, 702; Dee. Dig. @= 184(1).]
    5. Sales @=418(2) — Contisact—Action by Buyer — Damages .
    Subject to certain exceptions, when the price has been paid, if the thing purchased is fluctuating in value, the buyer may sue for the highest market value between the date of purchase and the trial of the case.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1175-1179; Dec. Dig. ®=»418(2).]
    6. 'Sales <⅞=*418(2) — CoNth/aot—Action bit Buyer — D amases.
    As a general rule, when the seller refuses to deliver and when the price has not been paid, the damage is the difference between the contract price and the market value at the time and place of delivery.
    [Ed. Note. — Eor other eases, see Sales, Cent. Dig. §§ 1175-1179; Dec. Dig. ®=»418(2).]
    7. Sales ⅞=5⅜18(7) — Contract — Action by Buyer — Damages.
    Where the market was rising, and the seller refused to deliver, and the buyer immediately upon breach purchased the goods in the open market, the buyer may recover the excess paid over the contract price.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. § 1188; Dec. Dig. <8=>418(7)J
    Appeal from Dallas County Court of Law; T. A. Works, Judge.
    Action by the Houston County Óil Mill & Manufacturing Company against the San Angelo Cotton Oil Company and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    Wright & Harris, of San Angelo, for appellant. Hill, Lee & Hill, of San Angelo, and Seay & Seay and Burgess, Burgess, Germany & Chrestman, all of Dallas, for appellees.
   HENDRICKS, J.

The appellee the Houston County Oil Mill & Manufacturing Company sued the San Angelo Cotton Oil Company and the Zimmerman Brokerage Company, claiming that on or about October 31, 1913, it purchased from the Cotton Oil Company six tanks of prime crude oil for delivery the following November, December, and January, in installments of two tanks for each month, at 35-½ cents per gallon; that on account of the repudiation by the cotton oil company of the authority of the brokerage company as agent in selling the oil, and the refusal of said cotton oil company to comply with the contract of sale, appellee was compelled to go into the open market and purchase said oil at the lowest possible price, suing the appellant for the difference between the contract price and the enhanced price it was required to pay for the oil in the open market. The appellee joined the Zimmerman Brokerage Company with the cotton oil company in the suit, filing it in Dallas county, which was the domicile of said brokerage company, upon allegations that in the event it should be determined that the brokerage company acted without authority, appellee have judgment against said brokerage company for the same amount alleged against, the cotton oil company.

The San Angelo Cotton Oil Company, whose domicile is in Tom Green county, interposed its plea of personal privilege, praying for a transfer of said cause to the latter county, which the court overruled. The court’s action in that respect is correct. The statute is (subdivision 4, art. 1198, Revised Statutes 1879 [Vernon’s S'ayles’ Ann. St. 1914, art. 1830, subd. 4]):

“When there are two or more defendants residing in different counties, suit may be brought in any county where any one of the defendants reside.”

Of course, the ground of the cause of action, in order to require a defendant to answer in a county other than its domicile, must be sufficient against the other defendant for the joinder. Railway Co. v. Mangum, 68 Tex. 346, 4 S. W. 617.

“It means simply that, if one who is a proper or necessary party defendant resides in the county in which the action is brought, then other defendants may be joined with him who reside in other counties.”

If both defendants could be properly joined in the particular cause, then within the purview of the statute plaintiff had a cause of action against two defendants residing in different counties, and could sue both in the county of the residence of either.

“A broker who assumes to negotiate a contract in behalf of a principal is liable to the other contracting party for the damages resulting from the 'breach of the warranty of authority.” 19 Cyc. p. 305.

The Supreme Court said:

“We also think that our system of pleading permits a plaintiff who is doubtful about the particular facts he can establish to plead in the alternative, without rendering his pleading de-murrable for inconsistency, or multifariousness.”' Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787.

We can find no case holding that the agent cannot be sued in the alternative as a proper party defendant where the question of the agent’s authority to make the contract is involved. See Harris v. Cain, 41 Tex. Civ. App. 139, 91 S. W. 869; Commercial National Bank v. First National Bank, 77 S. W. 239; Heard v. Clegg, 144 S. W. 1145.

In an early stage of the transaction, bearing upon the alleged purchase of the oil by appellee, the ’ cotton oil company explicitly and vigorously repudiated the alleged authority of the brokerage company in selling the oil to the Houston Company, setting out, in detail in a letter written to both companies the circumstances as it viewed the transaction. In such a condition, whatever appellee may have thought of the real status of the brokerage company’s authority, it could not prophesy whether a court or jury would find that said brokerage company had the authority, and the joinder in the same suit of the brokerage company for the lack of authority, if it existed, as a .precautionary measure, is in line with the. principle-which condemns a multiplicity of suits.

. It is vigorously insisted that appellee invoked, and that the court submitted, a wrong measure of damages in permitting a recovery of $620, the excessive price paid by it for the oil, over and above the contract. price. Appellant does not dispute the price paid, but merely the measure of damages. The testimony of Mr. Self, the manager of appellee, is sufficient to show that upon the dates he purchased said oil he did so at the best price in the ‘open market. The objection is that it should have been alleged, submitted by the court, and determined by the jury that the difference between the price agreed to be paid by the plaintiff for the oil and the fair market value of same in San Angelo, Tex., at the time and place of ■delivery was the criterion.

It is the rule when the price has been paid, if the thing purchased is fluctuating in value, the buyer may sue for the highest market value between the date of purchase and the trial of the case, subject to exceptions not necessary to mention. Randon v. Barton, 4 Tex. 293; Masterson v. Goodlett, 46 Tex. 403; Pace v. Ortiz, 72 Tex. 437, 10 S. W. 541; Wright v. Davenport, 44 Tex. 168.

It is also the general rule when the seller refuses to deliver, and when the price has not been paid, that ordinarily the damage is the difference between the contract price and the market value at the time and place of delivery. Ullman v. Babcock, 63 Tex. 69; McKay v. Elder, 92 S. W. 268; Grant v. Duer, 2 Willson Giv. Cas. Ct. App. § 570.

The record in this case shows that the particular contract was made upon a rising market. The appellee notified the appellant that it had sold the oil when the latter evidenced its repudiation of the contract. Thereafter, upon further insistence by the cotton oil company that the brokerage company had no authority to make such, contract, appellee almost immediately went into the open market, purchasing four tanks of oil for 36½ cents per gallon, and two tanks at 37 cents per gallon. Mr. Self, appellee’s general manager, said:

“From the day of receiving the telegram repudiating the contract until the end of January, 1913, the price of oil advanced most every day, but some days it was stationary with the previous day, but generally the price advanced until it reached 40 cents a gallon and 41 cents a gallon before it turned back again. * * * The price I paid for the oil I had to purchase was the market price of the oil at the time it was purchased.”

This testimony does not seem to be denied. Our analysis of this record is such that, if appellee had alleged and proved the measure of damages contended for by the appellant cotton oil company, the recovery in this particular cause would have been greater than the amount found. If appellee had not purchased oil in the open market for the purpose of fulfilling its contract with its sub-vendee, we have no doubt but that appellant would have interposed a plea and insisted vigorously, with authority to sustain its contention, that the appellee, as a reasonably prudent person, knew that the oil could have been purchased in the open market at a less price, and could have saved some of the damages, measured by the rule now contended for. We are not, of. course, holding that the appellant, the cotton oil company, is charged with liability on account of any notice of any contract appellee had with its subvendee, but, in the condition of the record, the rule applied by the court and invoked by appellee is a saving instead of a detriment to the appellant.

This judgment should not be disturbed, and it is in all things affirmed.
      ©SjFor other cases see same topic and KEY-NUMBER in all ICey-Numbered Digests and Indexes

      <S=3>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    BURCH v. MOUNTS.
    (No. 951.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Execution &wkey;^127 — Levy—'“Possession.”
    Under Rev. Civ. St. art. 3740, providing that a levy upon personal property is made by taking^ possession thereof when the defendant in execution is entitled to the possession, “possession” implies a condition in which not only is one’s dealing with the thing physically possible, but every other person dealing with it is capable of being excluded; the doing of such an open act, susceptible of proof, that the officer would be a trespasser, but for the protection of the writ; a possession according to the character of the goods, not necessarily a manual possession or a removal of the property, after the officer has it in his power or control.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 282-286; Dec. Dig. <&wkey;127.
    For other definitions, see Words and Phrases, First and Second Series, Possession.]
    2. Execution i&wkey;129 — Levy on Cattle — Possession — Statute.-
    Under such provision the sheriff’s levy on a number of cattle made openly, and after notice to the execution debtor, by having the caretaker point out those not belonging to the debtor, by driving them to a point in the inclosure where they might be counted, the brand taken, and a note thereof made, notwithstanding he left them in the inclosure until he could make an additional levy on other cattle, in view of his agreement with the debtor on the same day as to the pasturage, and his removal of them from the pasture on the following day, was a sufficient taking of possession to constitute a valid levy.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 290-304; Dec. Dig. &wkey;129.]
    3. Chattel Mortgages &wkey;>147 — Good Faith —Notice oe Intended Levy.
    The mortgagee in a chattel mortgage of cattle who had been told that a levy was going to be made under an execution against his mortgagor, and who endeavored to get the mortgage executed and filed before the levy, was not an innocent lienholder.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 242; Dec. Dig. <&wkey;>147.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by R. N. Mounts against J. P. Burch and J. H. Bowers. Judgment for plaintiff against defendant Bowers for the principal due on a note, foreclosing a chattel mortgage on cattle against both defendants, with execution against defendant Burch for the sum recovered for conversion of the cattle, and defendant Burch appeals.
    Affirmed in part, and reversed and rendered for defendant Burch.
    Gilliland & Estes and Russell & Dameron, all of Hereford, for appellant. Knight & Slaton, of Hereford, for appellee.
   HUFF, C. J.

The appellee, Mounts, instituted this suit in the district court of Deaf Smith county, against J. P. Burch and J. H. Bowers. He declared on a note executed hy Bowers and secured by a mortgage lien. The note was for $576.50, and the lien sought to be foreclosed on 80 head of cattle; that the mortgage was executed June 21, 1915, and thereafter that Burch caused the cattle to be levied on by the sheriff under an execution and sale, and that Burch refuses to recognize the validity of Mount’s mortgage. He prayed for judgment against Bowers on the note, interest and attorney’s fees, and against Burch for a foreclosure of the mortgage lien, and in the alternative, in the event that it should be found that Burch had removed the cattle from the confines of Deaf Smith county, recover damages for conversion, and for judgment against Burch for the value of the cattle.

Burch answered by general and special exceptions, and at the May term of the district court he recovered a judgment against Bowers for the sum of $2,400, and that on the 19th day of June, 1915, the clerk of the court issued an execution on this judgment and delivered it to the sheriff of Deaf Smith county, who levied on Bowers’ cattle, among which were the cattle described in plaintiff’s petition, and in his mortgage, on the 21st day of June, 1915, at 7:30 o’clock a. m., and thereafter advertised and sold the cattle July 6th, at which sale he became the purchaser and the cattle were delivered him by the sheriff, and other matters not necessary to set out.

The case was submitted to the jury upon special issues, and upon these issues and the jury’s findings the trial court rendered judgment for Mounts against Bowers, for the principal due on the note, together with interest and attorney’s fees, and foreclosed the mortgage lien on the cattle as against him and Burch, and also rendered a judgment that Mounts have execution against Burch for the sum recovered for conversion of the cattle. The judgment is in the alternative in several respects, which we will not discuss, as the case will be disposed of on other grounds. The facts in this case show that J. H. Bowers was indebted upon a promissory note, payable to R. N. Mounts, in the sum of $576.50, dated April 1, 1915, and due October 1st, thereafter. To secure the payment of this note Bowers executed a mortgage on the 21st day of June, 1915, on 79 head of three year old steers, subject to a former mortgage. This mortgage was filed June 21, 1915, at 8:18 o’clock a. m. It appears that on the 19th day of June, 1915, an execution was issued out of the district court of Deaf Smith county, on a judgment in favor of J. P. Burch against J. H. Bowers, for $2,408.15, with interest due thereon; the judgment having been rendered May 20, 1915. The return on the execution shows that it was placed in the hands of the sheriff, R. W. Baird, on the 19th day of June, 1915, at 3 o’clock p. m.; the return thereon further showing that he executed the same by levying and taking into his possession 79 head of three year old steers. The brands on the cattle are described the same as they are described in the mortgage, and it is admitted they are the same cattle. There was also levied on 10 head of two year old steers and 57 yearling steers, not included in this controversy. The 79 head of steers, the return recites, were levied on at 7:30 o’clock a. m., June 21, 1915. The cattle were properly advertised June 25, 1915, to be sold in that county July 6, 1915, at the Prank Bassett place, and that 79 steers and 1 cow were sold at that time and place to J. P. Burch for $5.50 per head, which were delivered to Burch by the sheriff. On the morning of June 21, 1915, the sheriff and Burch, the judgment plaintiff, went east of the town of Hereford and found the 79 head of steers in a one-section pasture. The cattle were scattered over the pasture and some grazing in the creek. The sheriff says he found a man on the place in charge of it, and that he" made two counts of the cattle and did not leave the cattle in charge of any one, but assumed charge of them himself, and appointed no one to take charge of them, but that he saw and counted them and then left them to go to other places and levy on additional cattle; that he did not round them up in a bunch or at that time drive them anywhere, only out of the creek up where he could count them; that he took charge of them himself but did not stay with them. He testifies that he did not go back until the next Tuesday or Wednesday — he was not positive which day. The levy was made on Monday. When he returned he took them off to the Bassett pasture. The yearlings levied on were in a different pasture south of the town, and it appears from his testimony that the sheriff and Bowers went to levy on the yearlings in the afternoon of the day of the levy on the steers. He says he would not be positive that he told Bowers of the levy on the steers, but that he talked to him the Sunday before the levy, telling him that he had the execution and that he possibly took it for granted Bowers knew of the levy, but he does say he told Bowers he had counted the cattle and they were all there. He further testified that in a conversation over the phone with Bowers, on Sunday, that he told Bowers in case he made the levy on the cattle that he wanted to leave the cattle with him, and Bowers said that would be all right. The reason he did not move the cattle at •that time, he thought he had permission from Bowers to leave them there. The reason he gave to Bowers, and to which Bowers assented, for leaving the cattle was that they would do better there than to move them. He moved them afterwards because Bowers requested on Tuesday after the levy that he ■do so. The facts show that the levy on the 79 head was first made, and the nest was on the two year old steers near where the 79 were located. These cattle were all east of the town. The yearlings were the last levied on and were south of town in a different neighborhood. In the afternoon of the 21st of June, Bowers and the sheriff went to levy on the yearlings, and on their return the sheriff testifies they agreed on the pasturage. The cattle were considered in two classes: The charge for the yearlings was to be a cent a day, and the steers 1¼ or 1½ cents per day. The witness further states he went into the pasture and ran the cattle upon the hill and counted them, and at the time he did so made a memorandum of the number from which his return on the execution was afterwards typewritten. He noted the time of the levy by looking at his watch at the time of making it. There was a crippled steer and two cows and a calf in the pasture with this 79 head, which were not levied on. The sheriff called on the man on the place, who appears to have been in charge for Bowers, to point out the cattle not belonging to Bowers, and he pointed out 1 crippled steer, and the milk cattle were not levied on. Bowers testified that he did not agree or give the sheriff permission to leave the cattle in the pasture on Sunday when talking to him over the phone, but says:

“I did not make Mr. Baird a price for the pasturage of these cows until Monday. I told him at that time that I thought a cent a head or 1½ cents would be all right, but if he goes ahead and makes the levy we may make some trade and I will see you further.”

Bowers, by his testimony, shows that he knew that the sheriff had the writ, and that unless he and Burch could settle the judgment the levy would be made, and was told of the writ in the phone conversation by the sheriff. He and Burch met on Sunday, when Burch told him he would levy that day unless he got his money. On Monday morning early he went to the home of Mounts and got him to go to a lawyer’s office where they drew up the mortgage, executing it and filed it with the clerk of the county at 8:18 a. m. Bowers says:

“I got in a hurry to give that mortgage that morning because Mr. Baird had told me that John Burch was going to levy on the cattle or guessed that he would if he and I could not make a settlement.”

He also testified the first time the sheriff told him about the cattle (as we infer he means about the levy) was 3 o’clock in the afternoon as they returned from making the levy on the yearlings. In another place, however, he says the first time that he learned the cattle had been levied on was Tuesday the 22d of June, and that Mounts told him; that he then spoke to Baird and Baird said to him, “I thought you understood it;” that he told the sheriff that he (the sheriff) had not told him so. He also says that he understood Monday morning that Burch and the sheriff had gone to the pasture, but not until he had executed the mortgage. He says also that on Sunday he told Burch he would see him Monday and try to settle the judgment He admits also that he told the sheriff on Tuesday the 22d to move the cattle out of the pasture, where they were when levied upon; that he did this after consulting his lawyers, and that he went with the sheriff on Wednesday to take the cattle out when they were moved to Bassett’s pasture. • Mounts admits that Burch, before the levy, told him (Mounts) about having the execution, and then asked him if he (Mounts) had any lien or mortgage on the cattle, and that he told Burch he had not. Burch then told him he was going to levy on the cattle. After detailing the circumstances of Bowers going to his residence Monday morning and offering to mortgage the steers, because he (Mounts) had that much in the cattle, etc., he further said that he walked in a hurry to the courthouse because he had other business. “My object was to get it here [courthouse] before the writ was levied if I could. I thought at that time the officers went out there to levy the writ Saturday.” He also states that he did not know that the attorneys told him that morning that they were fixing to go out and make the levy, but said, “Burch told me Saturday evening.” Bowers testified he had not seen the cattle since they were sold at the Bassett farm under the execution sale, and Mounts testified he had not seen the cattle since the day of sale. Further than this there is no evidence as to where the cattle were when the suit was brought or since that time.

The trial court submitted two questions to the jury, which, with the answers of the jury, are as follows:

“First. Did Bowers, in conversation over the phone with Sheriff Baird on Sunday, June 20, 1915, agree that in case Baird levied on the 79 cattle in controversy, said Baird might keep said cattle in the pasture where the same was then running after such levy was made? Ans.: No.
“Second. Did C. F. Baird, at the time he counted the said 79 head of cattle in controversy, on June '21, 1915, the first time finished doing so prior to 8:18 a. m.? Ans.: Tes.”

We presume from the answers of the jury, and the facts, the trial court determined there was no legal levy; that is, within the meaning of the statute; the sheriff did not take such possession of the cattle as required. The appellant made a motion that the court render judgment in his favor, which was overruled.

The first assignment is that the court

erred in overruling appellant Burcli’s motion to enter judgment in his favor and against Mounts as to Burch. “A levy upon personal property is made by taking possession thereof, when the defendant in execution is entitled to the possession.” Article 3740, R. C. S. The officer making the levy shall securely keep the property, and if by his negligence injury is sustained by any party interested, he is liable for the value of the property. Article 3746, R. C. S. He is also required by the statutes to have the property upon which a levy is made present at the place advertised for the sale and in view of those attending the sale. Articles 3760-3762. All the requisites of the statute were complied with in this case, unless an immediate removal of the property from the place of levy to the place of sale is required, or there was no such possession as would constitute a levy. Under the facts in this case, was there such possession taken when the levy was made as will answer the statute? “By possession of a thing we always conceive the condition in which not only one’s own dealing with the thing is physically possible, but every other person dealing with it is capable of being excluded. Thus the seaman possesses his ship but not the water in which it moves, although he makes each subserve his purposes.” Rawle’s Bouvier (3d Ed.) vol. 2, p. 2636. “We have seen that the levy is not complete until the sheriff gains control of the property. Although he may not take manual possession, he must be in a condition to do so.” Kneeland on Attachments, § 475. This is illustrated where an officer in attempting to levy on a stock of goods situated in a house where the doors are closed or fastened so as to exclude his entrance, and he does not effect an entrance into where the goods sought to be levied upon are situated. The mere taking charge of the building from the outside is not a levy upon the goods. Lynch v. Payne, 49 S. W. 406; Taffts v. Manlove, 14 Cal. 47, 73 Am. Dec. 610. But if the officer enters and announces his levy by acts and words, the goods are then in his control, even though an inventory is not made of the goods at the time, he will be given a reasonable time in which to make the invoice and to remove the goods. Grove v. Harris, 35 Tex. 320-322; Caldwell v. Fifield, 24 N. J. Law, 150; Hill v. Harris, 10 B. Mon. (Ky.) 120, 50 Am. Dec. 542. This rests upon the fact that the goods must be seen by the officer and in such position that he can subject them to immediate possession. Upon this all the authorities agree. It has been stated in this state that the officers should do such an act as would, but for the protection of the writ, make him a trespasser. Bryan v. Bridge, 6 Tex. 137. In the case of Portis v. Parker, 8 Tex. 25, 58 Am. Dec. 95, it is said:

“The act of possession must be according to the nature of the property. If it be goods, for instance, they should be brought within his view, and be subject to his control; and he may take an inventory of them or perform some open and unequivocal act, in assertion of his title,, which would operate to disturb and divest the possession of the defendant.”

The assertion of the right must be open and susceptible of proof if called in question. It must not be secret so that third parties would be made victims of such secret act. The principles above announced are recognized in Gunter v. Cobb, 82 Tex. 598, 17 S. W. 848. The case of Cope v. Lindsey, 17 Tex. Civ. App. 203, 43 S. W. 29, Id., 91 Tex. 463, 44 S. W. 276, simply holds that a range levy cannot be made on cattle in an inclosure of 1,280 acres. The levy here made was not a range levy and it was not intended to be. “The property sought to be levied upon must be where he can exercise control over it; and he must 'exercise or assume to exercise dominion by virtue of his writ. He must do some act by reason of which he could be successfully prosecuted as a trespasser, if it were not for the protection afforded him by the writ. But in order to make him responsible as a trespasser, it is not essential that he should remove the property nor that he should touch it. It is enough that having the property within his view, and where he can control it, he does profess to levy and to assume control of the property by virtue of the execution and with the avowed purpose of holding the property to answer the exigencies of the writ, for one who, to that extent, assumes dominion over the goods of another, is a trespasser, unless he is justified by a valid writ. ⅞ ⅜ ⅜ The property must be within the power and control of the officer when the levy is made, and he must take it into his .possession in a reasonable time thereafter and in such an open, public, and unqualified manner as to apprise everybody that it has been taken in execution.” Freeman on Execution, vol. 2, § 260, pp. 1453, 1454.

This, we believe, indicates what acts are necessary to make a levy. At the time of the levy it can be conceived that in dealing with the cattle there was a physical possibility that others could be excluded. The cattle were confined in a small pasture and were driven to such a point that they could be counted and their brands taken. The caretaker of. the cattle was called upon to point out those not belonging to Bowers. This he did, and 1 steer and the milk stock were excluded from the levy. The sheriff did not act secretly, but openly, after notice to Bowers that it would be done. He, at the time of counting the cattle and getting their brands, made a note of the number of cattle and the brands thereon. It is apparently urged here because the sheriff did not immediately remove the cattle or place some one there to guard them, or keep them, that it was not a possession then taken. The sheriff, at the time he declared the levy, had the cattle in view, and he professed to levy, and he testifies that he assumed the control and charge of the cattle by virtue of the writ. In entering the inclosure of the defendant, driving the cattle to a point for the purpose of counting them, while armed with the writ, with which he professed to seize the cattle, would, we think, have made the sheriff a trespasser but for the writ. After so seizing them, we do not see how leaving the cattle in the inclosure until he could make an additional levy on the yearlings would release the levy. He had a reasonable time to reduce this levy to actual possession of the cattle. Battle Creek Bank, v. National Bank, 62 Neb. 825, 88 N. W. 145, 56 L. R. A. 124; Boslow v. Shenberger, 52 Neb. 164, 71 N. W. 1012, 66 Am. St. Rep. 487. The afternoon on the day of the levy the sheriff and Bowers agreed to the pasturage on the cattle, and not until the next day, Tuesday, after Bowers had consulted with his attorneys, did he demand that the cattle be moved from the pasture. Bowers, we think, thus recognized that the sheriff had the right to move them, and that he had levied on them. Mounts is not an innocent lienholder; he had been told the levy was going to be made. The evidence shows that both Bowers and Mounts knew the sheriff was going to make the levy. They were in a hurry to get the mortgage executed and filed before the levy. The jury found the act of counting the cattle by the sheriff was 48 minutes before the mortgage was filed. If the sheriff had done nothing else, after finding the cattle and levying on them, but to move the cattle, he could not have gotten the cattle off of the place before the mortgage, and hence Mounts could then have claimed with equal consistency there was no notice by actual possession. He tried to get his mortgage before the levy, but failed. The cattle were moved in a reasonable time. If it shall be required of a sheriff to first round up and pen the cattle before he can make a levy, there would be but few valid levies. When he counts and takes the description of the cattle, followed by actual possession, within a reasonable time, or leaves them in the inclosure of the defendant, under an agreement to pay the pasturage, we see no reason why he has not performed his duty as an officer. After taking charge of them, as did the sheriff in this case, he would have been liable for their escape. The officer in this case had them at the place of sale on the day of sale. It occurs to us all was done in this case necessary to be done. The law ought not to require an unnecessary or an unreasonable thing. It was unnecessary to move the cattle from the inclosure where they were then situated, and it would be unreasonable to require this to be done before a place to care for them had been obtained. When Bowers notified the sheriff he would not keep the cattle, the sheriff then moved them.

We believe the court should have sustained the motion to render judgment for appellant, Burch. This court will therefore render such judgment on the motion as should have been rendered by the trial court. The case will be reversed and rendered in part, and affirmed in part.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IARPER, O. J. WALTHAI/L, J.

text:
    JACKSON v. HOME NAT. BANK OF BAIRD.
    (No. 559.)
    (Court of Civil Appeals of Texas. El Paso.
    April 27, 1916.)
    1. Bills and Notes &wkey;>430 — Payment <&wkey;16 (1) — Extinguishment of Note or Debt by Promissory Note.
    The giving of a promissory note for an antecedent debt or note will not extinguish the latter unless the parties so intend.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1251-1256; Dee. Dig. <&wkey;> 430; Payment, Cent. Dig. § 63; Dec. Dig. &wkey;> 16(1).]
    2. Principal and Surety <&wkey;159 — Notes— Discharge by Renewal — Burden of Proof.
    In an action against the surety on a note, it was incumbent on the defendant to prove the defensive matter that it was agreed between his principal and the payee that a second note, executed by his principal, was given to and accepted by the payee in discharge of the original note.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 428-435; Dec. Dig. &wkey;> 159.]
    3. Bills and Notes <&wkey;499 — Discharge by Renewal — Presumption.
    Where the principal maker of a note executed a renewal, but the original note was not delivered to him in exchange, there is a presumption that it was not the intention of the parties to discharge the original note by delivery to the payee of the new note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1682, 1695-1697; Dec. Dig. &wkey;?499.]
    4. Principal and Surety <&wkey;128(2) — Surety on Note — Extensions of Note — Discharge —Consent.
    A surety on a note who agrees in the body of the note to extensions of time for payment, is not discharged by extensions without his consent.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 359-362; Dec. Dig. &wkey;> 128(2).]
    5. Principal and Surety <&wkey;105(l) — Surety on Note — Discharge by Extension— Binding Agreement — Necessity.
    The mere giving of time to the principal maker of a note without a binding agreement to that effect which postpones the right of action or injures the surety will not discharge the latter.
    [Ed. Note. — For other eases, see Principal and Surety, Cent. Dig, §§ 196, 201, 203-210'; Dec. Dig. <&wkey;10S(l)J .
    6. Appeal and Error <&wkey;1068(3, 5) — Harmless Error.
    In an action on a note, where the trial court would have been justified in instructing a verdict for plaintiff, assignments urging errors in the charge and in refusing charges requested by defendant cannot present reversible error.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4227; Dec. Dig. <&wkey;>1068 (3, 5); Trial, Cent. Dig. §§ 475, 480, 525, 553.]
    Appeal from Callahan County Court; W(. R. Ely, Judge.

      Suit by the Home National Bank of Baird •against P. B. McGee and I. N. Jackson. Prom a judgment for plaintiff, defendant Jackson appeals.
    Judgment affirmed.
    J. W. Moffett, of Abilene, and J. Rupert Jackson, of Baird, for appellant. P. S. Bell, ■of Baird, and A. H. Kirby, of Ft. Worth, for appellee.
   I-IARPER, O. J.

The Home National Bank ■of Baird brought this suit against P. B. McGee and I. N. Jackson on a promissory note, $261.08, interest and attorney’s fees. Defendant McGee offered no defense. I. N. Jackson by answer admitted that he signed .the note, and alleged that he signed as a surety; that the bank knew that he was ■surety when he signed it; that it was due five months after date; that after maturity ■of the note his codefendant, McGee, without •his knowledge or consent, executed his personal note for the amount of the original note, with interest added, which was accepted by plaintiff; that by such acceptance he (Jackson) was released and discharged from liability; that at the maturity of the latter note, his codefendant, McGee, without his (Jackson’s) knowledge or consent, executed and delivered to plaintiff another note for the full amount of the second note, principal •and interest, which was accepted by plaintiff; and that he was thereby released and discharged from liability upon said first note. The bank, by supplemental answer, denied that the notes executed by McGee were accepted in settlement or discharge of the first joint note, and' further plead that •the defendant Jackson authorized plaintiff in writing, to wit, on the face of the note sued upon, to extend the said note without prejudice, etc.

The first assignment of error reads:

“The verdict of the jury is contrary to and against the weight of the undisputed testimony, in this: The testimony in this case shows that defendant P. B. McGee executed and delivered to plaintiff his note on October 11, 1912, to take up and renew and pay off and discharge the note sued on in this case; that T. E. Powell, cashier of plaintiff bank, received said note and told said defendant McGee that he, T. B. Powell, would ask dófendant I. N. Jackson or some other person to sign the note as surety; that on the same day, or within two or three days there■after, said defendant X. N. Jackson told both said T. E. Powell and Ford Driskill, cashier and assistant cashier of plaintiff bank, respectively, that he would not sign said note; that said plaintiff bank held said note until the maturity thereof, viz., October 11, 1913, at which time plaintiff bank notified defendant McGee to come in and pay or renew said note; that said defendant McGee, in response to said notice, came to Baird and executed a renewal note and delivered it to Ford Driskill, assistant cashier of said plaintiff bank, for plaintiff; that said Ford Driskill, assistant cashier of plaintiff bank, ac■cepted said note, and then stamped said first renewal note ‘Paid’ or ‘Renewed,’ and delivered said first renewal note to said defendant P. B. McGee; that plaintiff and its said cashier and assistant cashier knew all the time that defendant I. N. Jackson was surety on said note sued •on in this cause; and that said defendant I. N. Jackson did not know of or consent to said renewals.”

All the testimony upon the i>oints raised by this assignment is as follows:

“$261.08. Baird, Texas, May 11th, 1912.
“Five months after date, I, we, or either of us, promise to pay to the order of the Home National Bank, Baird, Texas, the sum of two hundred and sixty one and 8/ioo dollars, for value received, negotiable and payable without defalcation or discount at the office of the Home National Bank, Baird, Texas, with interest at the rate of. 10 per cent, per annum from date until paid, and an additional amount of 10 per cent, upon principal and interest then due as attorney’s fees, if sued upon or placed in the hands of an attorney for collection. The makers and indorsers hereof hereby severally waive protest, suit, demand, and notice of protest and nonpayment in case this note is not paid at maturity, and agree to all extensions and partial payments, before or after maturity without prejudice to the holder. P. B. McGee.
“I. N. Jackson.
“No. 515. Due October 11th, 1912. P. O. Clyde, it. P. D. 2.”

P. B. McGee testified as follows:

“My name is P. B. McGee, one of the defendants in this suit, and principal maker of the note sued on in this suit, and X. N. Jackson is surety on the note. When said note became due I was not able to pay it, and plaintiff drew up another note, payable in one year, October 11, 1913, and I took the note to I. N. Jackson and requested him to sign it-as surety for me, but Mr. Jackson refused to sign it, saying he was trying to get off of so much paper, or something of the kind. I then took the note back to the Home National Bank and told Mr. Powell, the cashier, that I could not get Mr. Jackson to sign the renewal note, and left it with Mr. Powell and told him he could get Mr. Jackson to sign it, as I had failed and did not feel like requesting him again. When this second note became due, X received a notice through the mail that the note was past due and to come in and pay it, or take care of it, and I came to Baird, and informed the assistant cashier, Ford Driskill, that I was not able to pay the note. Mr. Dris-kill drew up another note, payable in one year, October, 1914, which I signed and delivered to him, and he stamped the old note ‘Renewal’ or ‘Renewed,’ I am not sure which, and delivered it to me. I have lost or destroyed the note, as I made a search for it, and could not find it. I do not usually keep paper of that kind long, and I suppose I destroyed it. This note (referring to a note handed by counsel to him) is the note I last executed and delivered to Ford Driskill. It is for the sum of $329.83, dated October 11, 1913, and due one year after date. This note is for the principal and interest added. Both of the renewal notes, in fact, had the accumulated interest added in. After this suit was filed I requested plaintiff to give me the last renewal note, but plaintiff refused to deliver it to me.”

On cross-examination:

“I have never paid this note sued on unless the renewals were payment, and I still owe the amount. I call the two last notes I signed renewal notes because when a note is renewed it is called a renewal note. I have never paid any of the notes, and I never requested the bank to deliver the note sued on to me. When I renewed the note I left it with Mr. Powell for Mr. Jackson’s signature or some one else acceptable to him. I suppose the matter was in an unfinished state, because it was understood that Mr. Jackson was to sign the note or somebody that the bank would accept. Yes; whenever I pay a note I always call for it.”

The defendant I. N. Jackson testified as follows:

“I am one of the defendants in this suit, and I was surety on the note sued on, which fact the plaintiff knew, and was known to plaintiff at the time I signed the note. About the date of the maturity of the note the defendant F. B. McGee requested me to sign, or shortly after,_ I told Mr. T. E. Powell, cashier, and Ford Dris-kill, assistant cashier, that I would not sign the renewal note, or any renewal note for McGee, and from that time until this day neither Powell, McGee, or any other person has asked me to sign a renewal note for McGee, although I have been in plaintiff bank and have seen Mr. Powell and Mr. Driskell at least a hundred times from October, 1912, to now. X had no knowledge of and did not consent to the renewal or renewals of the note sued in this cause.”

Whilst this assignment suggests the proposition that the extension of the time of payment of the original note, without the knowledge and consent of the surety, operated as a discharge of him as surety, all of his propositions following the assignment urged that he is released and discharged from liability by reason of the fact that the renewal notes executed and accepted were given in full discharge of the original note.

The rule is that the giving of a promissory note for an antecedent debt or note will not extinguish it unless such was the intention of the parties. Johnson v. Amarillo Imp. Co., 88 Tex. 505, 31 S. W. 503.

Being defensive matter, it was incumbent upon Jackson to prove that it was agreed between McGee and the bank that the note or notes called renewal notes were given and accepted in discharge of the original note. Of this there is no proof. Not a word of testimony from any witness that the bank agreed with McGee in consideration of the new notes to discharge the old, but, on the other hand, the facts show that the original joint note was not delivered to McGee, and this raises the presumption that it was not the intention of the parties to discharge the original joint note by delivery of the new note of the principal McGee.

Reverting back to the proposition that the extension of time without the consent of the surety, if the question is presented so as to require us to consider it, the surety agreed in the body of the original note to the extensions, and therefore cannot be heard to complain. Besides, it has long been settled in Texas that the mere giving of time to the principal of a note without a binding agreement to that effect which postpones the right of action or works some injury to the surety will not discharge him from his obligation. Frois v. Mayfield, 33 Tex. 803. There is no pleading or evidence here that any injury was suffered by the extension of time.

As we view the facts above set out, there is no proof that the bank agreed to discharge the original note in consideration of the new, nor was there any such agreement as to extension of time of payment as would work a discharge of the surety; therefore the trial court would have been justified in instructing a verdict for appellee. It therefore follows that the other assignments urging errors in the charge of the court and in-refusing charges requested by appellant could in no event present reversible error.

The assignments are therefore overruled, and cause affirmed.

WALTHAI/L, J.

(concurring). I concur in the disposition made of this case. The trial court in the charge to the jury submitted but one issue, and that to the effect that, if the-jury should find that the hank accepted either of the renewal or extension notes executed by McGee in payment of and in satisfaction of the note sued on, to find for the appellant. The jury found for the appellee on the issue, and the finding is amply supported by the evidence. I am of the opinion that the liability of the surety does not rest upon the question of injury resulting to him by reason of the extension of the date of payment. There is neither pleading nor evidence of injury, but a question of agreement, and thereby waiver. In Red River National Bank v. Bray et al., 105 Tex. 312, 148 S. W. 290, and Benson v. Phipps, 87 Tex. 578, 29 S. W. 1081, 47 Am. St. Rep. 128, the Supreme Court held that, if the creditor enters into a valid and binding contract with the principal for an extension of the time of payment, promising to pay interest during the time extended, such contract will release a surety who does not consent to the extension. The question raised by the issue tendered is: Did the giving by McGee and acceptance by the bank of either or both of the extension notes, in the absence of an agreement that same should be in discharge and satisfaction of the note sued on, have the effect, as a matter of law, to discharge the surety? Under the above authorities the McGee extension notes would have the effect to release the surety, if the surety did not consent thereto. The holding in each of the cases referred to is made on the provision that the surety has not become a party to the transaction by consenting to the extension. Has he consented to an extension? In the note sued on is this provision:

“The makers and indorsers hereof severally waive protest, suit, demand and notice of protest and nonpayment in case this note is not paid at maturity, and agree to all extensions and partial payments before or after maturity without prejudice to the holder.”

This provision in the face of the note is an express agreement by the appellant to the extension of payment. It could have no other application or meaning. It is as much a part of the note as any other provision therein.

I believe that a proper result has been, reached.
      diuwFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes