author: RICE, J.

text:
    PEERLESS FIRE INS. CO. v. REVEIRE.
    (No. 5630.)
    (Court of Civil Appeals of Texas. Austin.
    April 12, 1916.
    Rehearing Denied June 28, 1916.)
    1. Trial &wkey;>143 — Question foe Juey— Conflicting Evidence.
    Where the evidence is conflicting, and reasonable minds might differ as to the inference therefrom, the issue is for the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. &wkey;143.]
    2. Trial <&wkey;141 — Question for Juey — Material Issues — Undisputed Evidence.
    Where a number of material issues are involved, some of which are sustained by the undisputed evidence and are within themselves sufficient upon which to predicate a judgment, the court may direct a verdict, notwithstanding the evidence -on the other issues is conflicting.
    [Ed. Note. — For other cases, .see Trial, Cent. Dig. § 336; Dec. Dig. <S&wkey;141.]
    3. Corporations <&wkey;423 — Fraud of Agent— Effect.
    A corporation is bound by and charged with the fraud of its agents.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906; Dec. Dig. <&wkey;>423.]
    4. Fraud <&wkey;9, 16 — Sale of Stock — Matters Constituting Fraud.
    Any false statement of fact that might materially affect the price of the stock of a corporation or the judgment of its purchaser is fraudulent, which statement may consist in suppression of what is true, as well as the assertion of what is false, and where any statement is made at all it must be a fair and full statement of all the material facts.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 8, 15; Dec. Dig. &wkey;>9, 18.]
    5. Corporations <&wkey;80(12) — Sale of Stock-Fraud — Rescission.
    Where the secretary and treasurer engaged in promoting a fire insurance company, to induce plaintiff to purchase stock therein, suppressed the fact that a certain per cent, of the money received from the sale of the stock was applied to the payment of secret commissions of officers and directors, and that a promoter and stockholder was short in his accounts and indebted to the corporation, and represented that it was a going concern and its stock was a fine investment, when in fact it was insolvent, there was such a fraud upon the purchaser as entitled him to a rescission of his contract to purchase stock.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 264; Dec. Dig. &wkey;j80(12).]
    6. Corporations <&wkey;316(l) — Contracts with Director — Validity.
    A director of a corporation cannot enter into any contract with it, or have any personal or pecuniary interest in a contract between it and a third person, and such contract is fraudulent and unenforceable.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401, 1402, 1405, 1406, 1409; Dec. Dig. &wkey;316(l).]
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Suit by J. W. Reveire against the Peerless Fire Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hall Etter and Gross & Street, all of Waco, for appellant. Weatherred, Willis & Cole and Neff & Taylor, all of Waco, for appellee.
   RICE, J.

On the 3d of September, 1912, appellee entered into a contract with appellant, an Arizona corporation, by the terms of which he agreed to purchase 420 shares of its capital stock at §15 per share. In accordance therewith stock was issued to him, and on the 11th of September he executed his note, bearing 8 per cent, interest from date, for $6,500 ($200 of which was for borrowed money), in payment therefor, payable on or before the 1st of January, 1914, which was secured by D. L. Loving’s note of date June 1, 1912, for $6,890, bearing 8 per cent, interest, payable to appellee on or before January 1, 1914. Attached thereto as collateral security was 65 shares of stock in the McKnight-Loving Sundries Company. Prior to the filing of this suit on January 5, 1914, appellant, without the knowledge or consent of appellee, collected the amount due on the Loving note, amounting, principal and interest, to $7,206.75, and applied same in payment of appellee’s note for $6,500, less a small balance, which was turned over to him; and this suit was brought by appellee against appellant on the ground of fraud, for the cancellation of his note and contract, as well as for recovery of the Loving note and stock in the McKnight-Loving Sundries Company attached thereto as collateral, or in the alternative for the reasonable value of the Loving note, etc.

Appellant answered by general demurrer and numerous special exceptions, as well as specific denials of the grounds of fraud set forth in the petition, and the following issues of fact were raised thereby, to wit: Did appellant falsely and fraudulently represent (1) that its stockholders would receive insurance for a premium of 15 per cent, less than that paid by nonstockholders in the company; (2) that it had perfected its organization and was ready to begin business; (3) that it was a Texas corporation; (4) that J. W. Saunders, its secretary and treasurer, intended to invest $50,000 therein; (5) that its stock was a fine, good, and safe investment ; (6) that C. L. Sanger and others were owners of large amounts of its stock? (7) Did appellant fraudulently conceal from appellee the fact that O. L. Sanger, C. H. Cox, and J. J. Durham, officers and directors in said company, had received a certain per cent, of the moneys derived from the sale of stock as commissions thereon? (8) Did 'appellhnt fraudulently conceal from appellee the fact that a spirit of ill feeling existed among its officers and directors to such an extent as would impair the value of its stock? (9) Did appellant fraudulently conceal the fact that there was a shortage in the accounts of one of its officers, which materially impaired its assets and the value of its stock?

Upon the conclusion of the evidence the court directed a verdict in favor of appellee for the sum of $7,587.72, and judgment was rendered in accordance therewith, from wñich appellant has prosecuted this appeal; and the action of the court in this respect is assigned as error, and constitutes the principal question involved herein.

The facts, briefly stated, show that the promoters of appellant company resided at Waco, and its officers were well-known, prominent, wealthy, and influential business men of said city; that O. L. Sanger, O. H. Cox, and J. J. Durham were directors and officers of such company, the first two being president and vice president, respectively, and J. W. Saunders was secretary and treasurer thereof; that in order to induce appel-lee to enter into the contract and purchase stock therein, Saunders represented to him that Sanger, Cox, and Durham were heavy investors in such company and largely interested therein, whereas in truth and in fact Cox and Durham only owned 1 share each of its stock, while Sanger owned only 10 shares; that its officers further represented to him that the stock was a fine, good, and safe investment, and that the company was a going concern, whereas the company was insolvent and had never procured a permit to do business in Texas. It was further shown that appellant, through its officers, represented that its stockholders could obtain insurance therein at a premium of 15 per cent, less than that paid by nonstock-holders, whereas in truth and in fact no such arrangemennts had been made and contemplated, and that they represented that appellant was a Texas corporation. The evidence also shows that Sanger, Cox, and Durham received a certain per cent, as commissions on all stock sold, including that to appellee, which fact was not made known to him. It further appeared that Beckley, a promoter and stockholder in appellant company, was short in his accounts and largely indebted to it, which materially impaired its assets, and this fact was likewise concealed from appellee; that appellee, relying upon such statements, and believing that its officers had made full disclosures as to its business status, as they claimed to have done, entered into the contract and purchased the stock, which he would not have done,' had he known the truth in relation thereto.

It is elementary, we think, and unnecessary to cite authorities on the proposition, that where the evidence is conflicting, and upon which reasonable minds might differ, that it becomes the duty of the court to submit the issue raised to the consideration of the jury. But it is equally as.well settled that, where a number of material'issues are involved, some of which are sustained by the undisputed evidence and are within themselves sufficient upon which to predicate a judgment, the court is authorized to direct a verdict, notwithstanding the fact that the evidence may be conflicting as to others. While the evidence on some of the issues of fraud above outlined was conflicting, yet as to others it was uncontradicted, viz.: (1) That the company was insolvent and not a going concern. (2) It was conclusively shown and admitted that several of its officers, to wit, ganger, Cox, and Durham, received secret commissions on moneys paid for all stock soid, including that of appellee. (3) It was likewise shown that Sanger, Cox, and perhaps Durham, had each represented to appellee as a matter of fact that the capital stock of such corporation was a good, safe, and fine investment, or words to that effect. (4) It was admitted that the prominence, dignity, and financial standing of Sanger, Cox, and Durham, and their alleged large and heavy investments in the company, were urged as one oí the chief inducements to get appellee to take stock therein; (5) that the actual amount of stock owned by them was not disclosed to appellee, and it is not denied that he was deceived thereby; that these facts influenced him to enter into the contract and purchase the stock, relying upon such representations and believing that a full disclosure of the company’s financial affairs had been made to him by its officers.

A corporation is bound by and charged with the fraud of its agents. Cook on Corporations (6th Ed.) vol. 1, § 140. Any false statement of fact that might materially affect the price of the stock or the judgment of the purchaser is fraudulent. Id. § 145. The misrepresentation which entitles a subscriber to his remedy may consist in the suppression of what is true, as well as the assertion of what is false. Where any statement is made at all, it must be a fair and full statement of all the material facts. Id. § 148. See, also, on this subject, Thompson on Corporations (2d Ed.) vol. 4, § 4140.

We think the suppression of the fact that a certain per cent, of the money received from the sale of the stock was applied to the payment of secret commissions of officers and directors of the corporation, as well as the failure to disclose the shortage of Beckley, and the further representation that it was a going concern and its stock a fine investment, when it was in fact insolvent, amounted to such a fraud upon appellee as entitled him to a rescission of his contract. See Hall v. County Nat. Bank, 36 Tex. Civ. App. 317, 81 S. W. 762, and cases there cited, where it is held, as shown by the syllabus, that:

“Where a promoter represents that property can be purchased for the corporation for a certain price, but the price includes commission or profit to the promoter, a subscriber can rescind a note executed for his subscription.”

See, also, Vreeland v. Stone Co., 29 N. J. Eq. 188; West End Realty Co. v. Claiborne, 97 Va. 734, 34 S. E. 900; Caples v. Sims Shipp Co., 57 L. J. Ch. (N. S.) 713; Coles v. Kennedy, 81 Iowa, 360, 46 N. W. 1088, 25 Am. St. Rep. 503; Company v. Muggerridge, 30 L. J. Ch. (N. S.) 242; Savage v. Bartlett, 78 Md. 561, 28 Atl. 414; Zang v. Adams, 23 Colo. 408, 48 Pac. 509, 58 Am. St. Rep. 249; Faulkner v. Robinson, 70 S. W. 990; West End Realty Co. v. Nash, 51 W. Va. 341, 41 S. E. 183; Thompson, Corporations (2d Ed.) vol. 4, § 4146.

The weight of authority seems to be that a director of a corporation can enter into no contract or agreement with it, nor can he have any personal or pecuniary interest in a contract between a third person and the corporation, and that such contract is fraudulent and unenforceable. See Cook on Corporations (7th Ed.) vol. 3, §§ 648, 649. It was the duty of appellant and its officers to act in good faith, ’ and make a full and fair disclosure to appellee of all material facts with reference to the financial status of appellant; and a failure to do so, under the circumstances disclosed by this record, is, we think, such fraud as would entitle him to a judgment rescinding the contract.

We have examined the remaining assignments and regard them without merit. Believing that the undisputed evidence 'justified the court in directing a verdict in behalf of appellee, we overrule the second assignment of error, and direct that its judgment be in all things affirmed.

Affirmed.
      ig^sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    ROBERTS v. HOUSTON MOTOR CAR CO.
    (No. 7212.)
    (Court of Civil Appeals of Texas. Galveston.
    May 13, 1916.
    Rehearing Denied June 1, 1916.
    Additional Opinion, Oct. 10, 1916.
    Rehearing Denied Oct. 19, 1916.)
    1. Judgment &wkey;232(5) — Action for Rescission — Recovery—Damages to Automobile —Pleadings.
    In an action on notes given for the purchase price of an automobile, and to foreclose a chattel mortgage, where the defendant filed an answer and a cross-bill for personal injury to himself and wife by reason of the negligence of the plaintiff’s employé furnished to instruct him in operating the automobile, asking a rescission of the sale and a cancellation of the notes, a recovery for the damages to the automobile, in the absence of an alternative plea and prayer, could not be recovered under the prayer for general relief.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. &wkey;>252(5).]
    2. Damages t&wkey;221 — Personal Injury — Special Issues.
    In such action, where there was no proof of any amount paid or incurred by defendant for drugs for himself and wife, a requested special issue as to the amount which he had spent for doctors, drugs, etc., in the treatment of himself and wife as a result of the injury sustained by them was properly refused in that form.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. &wkey;221.]
    3. Trial <&wkey;261 — Requested Charges — Notice of Omission — Duty to Charge.
    Such special issue, though erroneous, was sufficient to call the court’s attention to the omission in the general charge, and" to require the submission of an instruction upon the material issue of expenditures incurred for doctors, hospital, drugs, etc., under the rule that, when the court fails to charge on a material issue, and a special charge, incorrect, but sufficient to call the court’s attention to the omission, is requested, it should submit a proper instruction on that issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. &wkey; 26Í.]
    4. Trial <&wkey;>286 — Instruction—Scope.
    In such ease, a general charge to ascertain what amount would compensate the defendant for the injury to himself and wife on account of the overturning of the ear would include all injury, past or future, proximately resulting from the alleged negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 700, 701; Dec. Dig. &wkey;2S6.]
    5. Trial &wkey;»2S4 — Instructions—Additional Instruction.
    Where defendant, by not excepting" to a charge, was to be considered as having approved it, as provided by Rev. St. 1911, art. 1971, he was in no position to ask an additional charge, presenting more fully the issues embraced in the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. &wkey;>284.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by the Houston Motor Car Company against Max Roberts, with answer and cross-bill by defendant. Judgment for plaintiff, less an allowance to defendant, and for foreclosure of a mortgage lien upon an automobile, and defendant appeals.
    Affirmed.
    Otto Taub, of Houston, for appellant. E. P. & Otis K. Hamblen, of Houston, for ap-pellee.
   McMEANS, J.

The Houston Motor Car Company brought this suit against the appellant, Max Roberts, on 17 promissory notes executed by appellant to it, aggregating $1,710.12, with interest and 10 per cent, attorney’s fees, and an open account for $12. The notes were given in part payment for an automobile purchased by appellant from ap-pellee, and were secured by a chattel mortgage on the automobile, of which mortgage appellee sought a foreclosure. Appellant filed his answer and cross-bill, in which he alleged, in substance, that on July 17, 1914, he purchased an automobile from appellee, paying therefor $2,210.12; $500 cash and $1,710.12 in notes; that in order to induce appellant to purchase said car, and as a part of the consideration of said purchase, appellant agreed, as was the custom and its policy, to furnish at its expense a capable and skillful person to instruct appellant how to operate, manage, and control said car, and to drive same for appellant until he learned to do so, appellant being wholly ignorant of the construction of the car, and without knowledge concerning its control and operation; that in pursuance of the purchase, agreement, custom, and its policy, appellee furnished one Ostrich, selected by appellee, for the purposes stated, and represented by ap-pellee to be thoroughly capable as an instructor, and safe and skillful as an operator; that said Ostrich gave appellant instructions in operating said car on each of the three days after its purchase; that on the third day, viz. on July 19, 1914, while appellant and his family, including his wife, were in said car, and while said Ostrich was actually driving and operating said ear for appellant’s instruction, said Ostrich drove said car carelessly and negligently, and at an excessive rate of speed, and turned same over, wrecking it and causing its occupants to be thrown to the ground with great force and violence; that as the proximate cause of the negligence of appellee’s agent and em-ployé, appellant and his wife sustained serious bodily injuries; that appellant has reasonably and necessarily incurred the sum of $200 for services of physicians and nurses and hospital fees and drugs, and will likely have to incur further expense in the treatment of his wife, prior to her entire recovery, and that appellant sustained damage to the said car by reason of the wrecking thereof, but does not know the amount of such damage, for the reason that appellee has retained custody and control of same since the wrecking thereof, and the amount in which the car was damaged is peculiarly within the knowledge of appellee; that by reason of the premises, and as a direct result of the injuries sustained by appellant and his wife, he had been damaged in the sum of $7,500. The answer closed with the following prayer:

“Wherefore, premises considered, defendant prays that plaintiff take nothing by its suit; that he have judgment against plaintiff, rescinding said sale and canceling the notes sued upon herein, and for the sum of $500 paid plaintiff in cash at the time of the purchase of said car, together with lawful interest on said sum, and for damages in the sum of $7,700, and for such other and further relief, general and special, in law and in equity, as defendant may show himself entitled to.”

The case was tried before a jury upon special issues, in response to which they found: (1) That at the time of the overturning of the car Ostrich was present as an agent and employs of the appellee for the purpose of showing appellant how to drive the car; (2) that he was driving the car at the time it was overturned; (3) that the car ran into a ditch on account of the negligent manner in which he drove the car; (4) that such negligence of Ostrich was the proximate cause of the overturning of the car and the injury to appellant and his wife; and (5) that the sum of $500 would compensate the appellant for the injuries sustained by appellant and his wife on account of the overturning of the car. Upon these findings the court entered judgment in favor of the appellee for $1,535.68, being the face value of the notes sued on, including, interest to the date of judgment anu 10 per cent, attorney’s fee on such principal and interest, less $500 awarded to the appellant, and for foreclosure of the mortgage lien upon the ' automobile. From this judgment the appellant has presented an appeal to this court.

Appellant’s first assignment of error is as follows:

“The court erred, to the prejudice of defendant, in excluding, over the objection of plaintiff, evidence offered by defendant as to the nature and extent of the damage done to the car, the particulars in which the same was damaged, and the reasonable cost of repairing such damage.”

We think the court did not err in rejecting the testimony offered to prove the extent of the damage done to the car, for the reason that the pleading of the appellant was not such as to make the question of such damage an issue in the case. The prayer was for a rescission of the sale and a cancellation of the notes, and not for such damages as were sustained by the wrecking of the automobile. True appellant alleged that he sustained damages to said car by reason of the wrecking thereof, but a recovery of such damages was not prayed for, unless such a prayer was comprehended in the prayer for general relief; and we think that under the peculiar allegations of the answer and the special relief sought, which, as above stated, was for rescission and cancellation, a recovery for the damages sustained to the automobile would be inconsistent with the case made by his pleadings, and therefore, in the absence of an alternative plea and prayer, could not be recovered under the prayer for general relief. Broussard v. Mayumi, 144 S. W. 320; Crawford v. Stevens, 31 S. W. 79. The assignment is overruled.

The second assignment complains of the refusal of the court to submit to the jury the fourth special issue requested by appellant, which is as follows:

“What amount of money, if any, has defendant reasonably expended for doctor’s, hospital, nurse’s, ambulance, and dz-ug bills, in the treatment of himself and wife, as the result of the injuries sustained by them?”

Upon the issue as to the expenses necessarily incurred by appellant, by reason of the injuries sustained by himself and wife on account of the overturning of the car, the appellant testified as follows:

“I do not know exactly how much money I spent for doctor’s and drug bills, hospital and ambulance bills, thus far, for myself and wife in treating the injuries I sustained on that day, but in the neighborhood of $200. I remember a bill came in — I couldn’t remember the amount, but can tell who paid them, and I expect I can hustle up those bills. You want me to give you an idea of what those items were. Well, as near as I remember, the ambulance people handed me a bill for two removals, of about $15, I think. (Che St. Joseph Infirmary sent in a bill somewhere in the neighborhood of that amount — about $12.50 or $15 I really don’t remember which, as that has been nearly _ a year ago. That is my best recollection of it. Then, I remember Dr. Boney charged me $15. I remember that And Dr. Haley waited on us, off and on, a couple of weeks or so, and I think his bill was over $50 or $60. I don’t remember, as I paid him two or three times. I also paid drug bills, but I couldn’t say how much. I cannot give you any idea how much drug bills I paid; some of it I sent down cash for during the time we were sick, and some we had charged, and I really don’t know what the bills were. I also paid nurses for attending my wife, $25 for the first week; she was there a solid week. These bills I have paid were the reasonable value for the services rendered, according to my idea about it.”

We think that the charge should not have been given in the form in which it was requested. It will be observed that the expense of drug bills was included in the requested charge, but that no proof was made of any amount paid or incurred by appellant in that regard; therefore to have submitted that item would have been without any evidence upon which to base it. Railway v. Cook, 33 S. W. 888.

But in his third assignment appellant contends that, even if he was not entitled to have the fourth special issue submitted to the jury in the exact form presented, the special charge operated as a request to give the jury an opportunity to pass upon a proper element of defendant’s damages; the court having failed in its charge to submit such element of damages to the jury. We think this assignment must be sustained. The court submitted the measure of damages in the following language:
“You will determine and answer what amount, if paid in hand now, will compensate the defendant, Roberts, for the injuries sustained by him and his wife, if any, on account of the overturning of the car.”

Nowhere in the charge were the elements of recovery otherwise stated. It is clear, we think, that the court meant, and the jury must have so understood from the language of the charge, that no recovery could be had except for the personal injuries sustained by appellant and his wife by the overturning of the car, and forbade the jury, by implication at least, to take into consideration the items of expense necessarily incurred by appellant as a result of such injuries, for doctor’s, nurse’s, hospital, and ambulance bills, the evidence having been sufficient to raise the issue of damages in respect of such items.

The special charge, although erroneous in the particulars above stated, was sufficient to call the trial court’s attention to the omission in the general charge, and to require the submission of an instruction upon a material issue raised by both the pleadings and proof. In Olds Motor Works v. Churchill, 175 S. W. 787, the rule is stated to be that:

“When the court fails to charge on a material issue, and a special charge is requested, though incorrect, but sufficient to call the court’s attention to the omission, the court should submit a proper instruction on that issue ; and if proper exception is taken to such failure of the court, and a separate assignment is presented, both in the motion for a new trial in the court below and in appellant’s brief, he may successfully urge the error of omission in the appellate court. But when the court has submitted a correct general presentation of the issue, if either party desires a fuller charge on that issue, he must tender to the court a correct charge, and, upon his failure to do so, he cannot avail himself of the court’s omission.”

The rule is supported by a large number of the authorities cited in the opinion.

In this case the court failed to give to the jury any instruction upon certain material issues of damages, although the issue as to them was raised by the pleadings and proof We think, therefore, that the duty of the court to give such instruction was sufficiently invoked by the tender of the requested charge, and that a failure to charge upon the issue was, under the circumstances of this case, an error' for which the judgment must be reversed.

The appellant requested the court to submit to the jury the following two special issues:

“(2) Will defendant’s wife hereafter sustain any further suffering as a result of injuries sustained by her?
“(3) If you have answered the preceding special issue No. 2 in the affirmative, then answer this: What amount of money would compensate defendant for the suffering that Ms wife will hereafter sustain by reason of the injuries sustained by her at the time of the wrecking of said automobile?’

As before shown, the court in its general charge instructed the jury to ascertain and answer what amount, if then paid, would compensate the appellant for the injuries sustained by himself and his wife on account of the overturning of the car. We have construed this charge to be an instruction to find the amount that would compensate appellant for the personal injuries sustained by him and his wife by the overturning of the car. Necessarily this would include all injuries, past or future, that proximately resulted from the negligent act complained of. The charge was not excepted to by appellant, and must therefore be considered as having been approved of by him. Article 1971, Revised Statutes. In this view he was in no situation to ask an additional charge, presenting more fully the issues embraced in the charge given by the court.

We have examined the other assignments presented by appellant, and conclude that they do not point out reversible error, Por the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

Additional Opinion.

It will be observed, from what was stated in our original opinion, filed herein on May 13, 1916, that the judgment of the trial court was reversed and the cause remanded solely because of the failure of the court to submit, as an element of recovery, certain items of expenses alleged to have been incurred by the appellant, resulting from injuries sustained by himself and his wife by the overturning of the automobile; this court being of the opinion that the proof thereof offered on the trial was sufficient to require the submission of the issue to the jury. Appellant alleged in his cross-bill that these items amounted to $200. Subsequently to the filing of the opinion, and during the last term of this court, the appellee filed in this court a remittitur of so much of the judgment recovered by it as to equal the total sum claimed by appellant in the regard stated, which remittitur was duly entered in this court, the effect of which was to allow appellant the full amount claimed by him for the expenses so alleged to have been incurred by him. As the cause was remanded solely on account of the failure of the court to submit said items to the jury, and as the remittitur has cured the error of the court’s failure to so submit them, and as the case otherwise was correctly tried, it would be a work or supererogation to require the case to be retried in the court below; and for this reason the order of this court, reversing the judgment and remanding the case, has been set aside, and the judgment has been affirmed.

Affirmed.
      <@=s>For other cases see same topic and KEY-NÜMBi. R in all Key-Numbered Digests and Indexes


author: KEY, J.

text:
    DOSS et al. v. CHAMBERS et al.
    (No. 5706.)

    (Court of Civil Appeals of Texas. Austin.
    May 24, 1916.)
    1. Elections &wkey;>255 — Contests — Preservation of Ballots.
    Under Rev. St. 1911, art. 3027, as to preservation of ballots, and article 3028, as to tbeir destruction in the event of no contest within one year after the election, where a contest is brought, although no notice is served on the clerk to preserve ballots and the ballots are destroyed by a janitor, after bringing of the contest and more than a year after the election, they are not legally destroyed.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 231; Dec. Dig. &wkey;>255.]
    2. Elections <&wkey;255 — Contests — Preservation oe Ballots — -Necessity of Notice oe Contest.
    Under such statutes, the contestants may presume that the clerk will preserve the ballots and need not take stops for preservation of the ballots.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 231; Dec. Dig. &wkey;i255.]
    3. Evidence &wkey;>178(2) — Election Contests— Admissibility of Secondary Evidence.
    Where ballots arc illegally destroyed, the contestants may question illegal voters as to the way they voted, under the rule that if it is impossible to produce a written document its contents may be proved by parol testimony, and Rev. St. 1911, art. 3056,' providing that in election contests the rules governing trial of other civil cases shall apply.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 582, 588; Dec. Dig. &wkey;178(2).]
    4. Evidence <&wkey;178(2) — Best Evidence — Parol Testimony.
    That admission of parol evidence gives opportunity for perjury which might be avoided if the documents testified to were introduced affords no ground for departing from the rule that if the document is destroyed parol evidence is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 582, 588; Dec. Dig. <3&wkey;178(2).j
    5. Elections &wkey;>294 — Contests — Conclusiveness of Returns.
    Where ballots are illegally destroyed the returns of the election officials tabulated and declared by the commissioners’ court do not become an official adjudication as to the true result of the election so as to render parol evidence inadmissible where a contest is based on alleged illegal votes, which, if excluded, would chang'e the result.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 288-296; Dec. Dig. &wkey;>294.]
    Appeal from District Court, Milam County ; J. C. Scott, Judge.
    Election contest by E. A. Doss and others against W. W. Chambers and others. From a judgment for plaintiffs sustaining decision of the commissioners’ court, the plaintiffs appeal.
    Reversed and rendered.
    Morrison & Bewis, of Cameron, for appellants. J. W. Garner and E. A. Camp, both of Rockdale, and E. A. Wallace, of Cameron, for appellees.

      For opinion on motions for rehearing, see 1S8 S'. W. 298.

   KEY, J.

Appellants brought this action against the proper county officers for the purpose of contesting a road bond election, and from a judgment in favor of the appel-lees and sustaining the action of the commissioners’ court in declaring the result of the election to be in favor of issuing the bonds, the appellants have brought the case to this court for revision. The case was tried upon an agreed statement as to the facts, which agreement reads as follows:

“(1) That the road bond election described in plaintiffs’ petition was held in the district therein described on the 27th day of May, A. D. 1914, and that the result of said election was declared by the commissioners’ court on the 7th day of June, 1914, and in which said commissioners’ court found that there had been cast in said election 1,013 votes, and that 677 of the same had been cast in favor of the issuance of the bonds and the levy of the tax, and 336 had been cast against the issuance of the bonds and the levy of the tax.
“(2) That afterwards, on the 27th of June, 1914, the contestants, as named in the petition herein, filed their original petition in this court making the county attorney and county judge of Milam county contestees, and that on the same day a due and correct copy of the plaintiffs’ said petition was delivered to the said county attorney and county judge as provided by law.
“(3) It is further agreed that on the day that said original petition was filed, counsel for the contestants verbally notified the clerk of the county court of Milam county that said contest had been filed, and requested that the ballots be preserved for the trial of this cause, and the said clerk agreed to preserve said ballots and undertook to do so, and to that end, he separated the boxes containing said ballots into a separate assembly in a large commodious air-tight vault used by said clerk for the purpose of preserving all ballots of elections, and that aft-erwards, while said clerk was out of the state on his vacation, in the summer of 1915, and after twelve months after said election, the janitor of said building, who had a key to said vault, and in the absence of said clerk, was preparing said ballot boxes for a local option election to be held in Milam county, Tex., on the 4th day of August, 1915, without the knowledge, permission, consent, or acquiescence of either the contestants or contestees destroyed said ballots, and that neither of the parties hereto was apprised of such destruction of said ballots until about the first day of the present term of this court, and that said ballots are not obtainable or in existence, but that the poll lists and returns from the various voting boxes were preserved by the county clerk out of the copies that were filed with him after such election, and that the contestants nor their attorneys did not take any action to obtain from this court any writ, order, or process to preserve said ballots pending the disposition of this cause.
“(4) That at the past two terms of this court the said cause was continued by mutual agreement of tlie parties to await the action of the Court of Civil Appeals and the Supreme Court on the questions of law involved in the case of T. T. Moore et al. v. Commissioners’ Court of Bell County, as reported in 175 S. W. 849.
“(5) That at the present term of this court, witnesses have been examined'for .two days, and the parties, in order to obviate the necessity of further examination of witnesses, have made this agreement.
“(6) It is further agreed by the parties hereto that 14 voters at the voting box at Rockdale voted against the issuance of the bonds and the levy of the tax, and that the balance of said box, amounting to 397, voted in favor of the issuance of said bonds and the levy of said tax.

“(7) It is further agreed that sis witnesses •whose votes are challenged by contestants and who have been placed upon the stand by plaintiffs, and who by their testimony proved that they were illegal voters and that they voted in said election, and when asked by contestants how they voted, the contestees objected for the reason that under the pleading and in the absence of the ballots, the witnesses should not be permitted to testify how they voted in said election. The contestants contend that under the circumstances, said witnesses should be permitted to testify how they voted, and in view of these contentions, it is admitted that there were illegal voters who participated in said election as shown by the pleadings of both parties, and that it would be impossible for the court to determine the true result of said election, unless said challenged voters should be permitted to testify how they voted. To expedite the trial of the cause it is agreed that there is no other evidence within reach, from said returns or otherwise, from which the result of said election can be determined, and that if said challenged voters may testify how they voted in said election, then the evidence will justify a finding for contestants, and that the judgment shall be in their favor; but if the law of this proposition is as contended for by the contestees — that is, that said voters are not permitted to testify under the circumstances of the case as to how they voted — then the judgment shall be entered for the contestees, and the election upheld.

“(8) It is further agreed that in the event the trial court or the appellate courts shall hold with the contestants on the question of law, the judgment shall be for the contestants, otherwise in favor of the contestees. This agreement shall not waive the question of law arising under the demurrers to the pleadings.”

The trial court held, as conclusions of law, that the ballots referred to were legally destroyed, and' that as appellants took no statutory action to have them brought into court and preserved to be used as evidence in this ease, and as no fraud was charged, the result of the election, as declared by the commissioners’ court, was final and conclusive, and could not be impeached and set aside by the oral testimony of the voters, who were conceded to have voted illegally. Broadly speaking, counsel for appellants make two contentions, which are: First, that the written agreement upon which the case was tried shows on its face that enough illegal votes were cast for the issuance of bonds to change the result of the election, and if not, then it was impossible for the court to determine the true result, and therefore the election should be declared void and another election ordered; and, second, that those who voted illegally should have been permitted to testify how they voted. On the other hand, it is contended by counsel for appellees that it is shown by the concluding part of the agreed facts that the agreement was that if it should be held by the courts that illegal voters should be permitted to testify as to how they voted, the judgment should be in favor of the appellants; but if it should be held not permissible for them to do so, the judgment should be for the appellees and they deny that such voters should have been permitted to so testify. The agreement referred to is somewhat ambiguous, but as we have reached the conclusion that if appellees’ construction of it be adopted, nevertheless the ease should be reversed and rendered, we deem it unnecessary to pass upon appellants’ first contention.

It is provided by article 8027 of the ■Revised Statutes that ballots which have been voted shall be securely fastened in a box and delivered toy the proper election officer to the clerk of the county court, “whose duty it shall be to keep the same securely, and, in the event of any contest growing out of elections within one year thereafter, he shall deliver said box to any competent officer having a process therefor, from any tribunal or authority authorized by law to demand such ballot box”; and article 3028 reads thus:

“In the event that no contest grows out of the election within one year after the day of such election, the said clerk shall destroy the contents of said ballot box by burning the same.”

Others articles of the Revised Statutes make provision for contesting elections, including such as the election here involved, one of which (article 3056) reads in part as follows:

“And, as to the admission and exclusion of evidence, the trial shall be conducted under the rules governing proceedings in civil causes.”

We do not agree with the trial court in the holding that the ballots referred to were legally destroyed, nor do we approve the contention urged by appellees’ counsel to the effect that appellants were guilty of negligence because they failed to take any steps to have the ballots removed from the custody of the county clerk and placed in the custody of an officer of the district court in time to have prevented their destruction in the manner disclosed by the agreed statement. By the terms of articles 3027 and 3028, hereinbe-fore referred to, the clerk of the county court was the legal custodian of the ballots; and, having been notified of the existence of the contest, he was not authorized to destroy them until after the contest was terminated, and therefore we hold that their destruction was illegal. We also hold that appellants had the right to presume that the county clerk would perform his duty and have the ballots accessible for the use of the district court when the case was called for trial, and therefore no. duty devolved upon them to take steps to cause them to be removed from the possession of their legal custodian and placed in the possession of some one else.

But this does not dispose of the whole case, and the remaining question is this: It being agreed that illegal votes had been cast, and it having been shown that through no fault of appellants it is impossible to produce the ballots in order to show for which side such votes were cast, is it permissible, over the objection of the contestees, to permit the illegal voters themselves to testify how they voted? It will be observed that the question submitted by the agreed statement, and upon which the decision of the case must turn, is not whether an illegal voter could be compelled to testify if he claimed his privilege not to do so, but whether such witnesses should be permitted to testify, as against the objection of one of the parties to the litigation. Perhaps decisions may be found which hold that if the witness claims his privilege not to give testimony tending to criminate himself, he cannot be compelled to testify that he voted in a particular election. But that question is not involved in this case. It is conceded that illegal votes were cast, and we infer that those who cast such votes were willing to testify as to how they voted, if permitted to do so. Decisions may also be found which hold, upon grounds of public policy, that 'when the law mates provision for secret voting no voter should be compelled, and perhaps some may hold that he should not be permitted, to testify in a contested election as to how he voted. There is another line of cases, supported by strong reasoning, which hold that the statute which provides for a secret ballot was enacted for the benefit of legal voters, and has no application when the object is to ascertain how an illegal voter cast his ballot; and that when that is the fact in issue, neither the public interest nor the welfare of the illegal voter should prevent the ascertainment of that fact by the use of any testimony that may be available. However, counsel for appellees make a plausible argument in support of the contention that since the adoption by this state of what is sometimes called the Australian ballot, parol evidence should riot be received for the purpose of ascertaining how any person voted, whether such vote was legal or illegal. The contention is that the statute has provided a full and complete method for contesting all elections, including the means by which the ballots themselves may be preserved, brought into court and introduced in evidence, and that it was the legislative intent that no other source of information should be resorted to for the purpose of ascertaining how the voter cast his ballot. It is true that the Legislature has undertaken to provide a method by which ballots which have been voted shall be preserved, so as to render them available as evidence in contested election cases. But, as the facts of this case show, the means provided do not always produce that result; and the statute does not declare that no other source of information shall be resorted to. On the contrary, the statute provides that in passing upon the admissibility of evidence offered in such cases, the rules which govern in the trial of Other civil cases shall be applied. R. S. art. 3056. We have adopted the common law in this state, and we apply the rules of evidence wnich pertain to that system of law, except when modified by statute; one of the rules being that when it is impossible to produce a written document in evidence, its contents may be proved by parol testimony, and we see no reason why that rule should not apply in this case. It may be true that such a rule will afford opportunities for interested parties to procure and utilize perjured testimony, but that is not sufficient reason for departing from the rule. In a majority of contested cases, opportunities exist to commit perjury, and in many of them it is difficult, if not impossible, to show that perjury has been committed; and while the rules of evidence have been framed with a view to ascertaining the truth, nevertheless they do not, as a general rule, refuse to permit a witness to testify merely because he may not tell the truth, and the falsity of his testimony cannot be established. Hence we hold that the temptation of parties interested in contested elections to procure and use perjured testimony, and the opportunity of voters whose ballots have been lost or destroyed to furnish such testimony, are not sufficient grounds for excluding that character of testimony when the ballots themselves cannot be procured.

But it is contended on behalf of appellees that when the ballots cannot be procured the returns made by the election officers, as tabulated and declared by the commissioners’ court, becomes, in a sense, an official adjudication as to the true result of the election, and parol evidence is not admissible to impeach such official action. That contention is not sound when, as in this case, the contest is based .upon the fact that illegal votes were cast which, if excluded, would change the result of the election. In other words, if in reaching the result declared and certified by them, the election officers and the commissioners’ court took into consideration ballots illegally east, then it becomes the duty of the court trying the case in which such election is contested to exclude such illegal ballots in determining the true result of the election. In fact that argument, and the one which presents the contention that parol testimony given by the voter is not the best obtainable evidence as to the contents of the ballot voted by him .when the ballot itself cannot be procured, is answered by the last paragraph in the seventh subdivision of the agreed facts, wherein it is stated that:

“There is no other evidence within reach, from said returns or otherwise, from which the result of said election can be determined.”

Accepting the facts therein stated as true, and keeping in mind the rule that there are no degrees in secondary evidence, we hold that it was proper for appellants to introduce parol testimony, whether given by the illegal voter or any one else, for the purpose of showing the contents of the destroyed ballots.

There are some other questions presented in appellants’ brief, but, in view of the disposition tills court makes of tile case, it is unnecessary to decide such other questions.

As authorized by statute, certain county officers were made contestees, and as the statute provides that in such cases no costs shall be taxed against such contestees, we hold that all the costs in this case should be taxed against appellants, who are contestants, and the sureties upon their bonds. Durham v. Rogers, 48 Tex. Civ. App. 232, 106 S. W. 906; Altgelt v. Callaghan, 144 S. W. 1166.

It is ordered that the judgment of the court below be reversed, and judgment here rendered in favor of the appellants, to the effect that the proposition submitted to the voters in the election involved in this contest did not receive the necessary number of legal votes for its adoption; and the commissioners’ court of Milam county is ordered and directed not to issue any bonds predicated upon the result of such election; and it is further ordered that appellants, and the sureties upon their bonds, be taxed with all the costs incurred in this cause.

Reversed and rendered.
      <S^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HARWOOD-BARLEY MFG. CO. v. McCULLOCH.
    (No. 5645.)
    (Court of Civil Appeals of Texas. Austin.
    April 26, 1916.
    Rehearing Denied June 28, 1916.)
    Appeal and Error <&wkey; 765 — Time por Filing Appellant’s Brief — Statutory Requirements.
    Under Rev. St. 1911, art. 2115, requiring an appellant to file a copy of his brief in the district court not less than 5 days before the time of filing the transcript in the court of Civil Appeals, which shall be by the clerk deposited with the papers in the case and notice given by the clerk to the appellee who shall file his brief within 20 days, and rule 39 of the Court of Civil Appeals (142 S. W. xiii), providing that failure of an appellant to file briefs in the time and manner prescribed by the law and rules shall be ground for dismissing the appeal for want of prosecution, where appellant presented a folded paper, not indorsed, to the clerk of the county court for the file mark on January 27th, but took it away and did not return it to the clerk’s office until March 25th, notice being given appellee on March 26th, the case being set for hearing April 5th, there was not a sufficient compliance with the statute, and a motion to dismiss the appeal will be sustained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3100; Dec. Dig. &wkey;765.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action between the Harwood-Barley Manufacturing Company and S. H. McCulloch. From the judgment, the Harwood-Barley Manufacturing Company appeals. On motion to dismiss.
    Motion sustained, and appeal dismissed.
    R. H. Kingsbury, of Waco, for appellant. Nat Harris and Spell & Sanford, all of Waco, for appellee.
   JENKINS, J.

Judgment in this cause was rendered April 27, 1915. The transcript was delivered to appellant’s attorneys August 5, 1915, and filed in this court October 13, 1915. On December 13, 1915, appellant filed its brief in this court. No copy of this brief was served on appellee’s attorney until March 26, 1916. The county clerk of McLennan county certifies:

“That on the 27th day of January, A. D. 1916, Nat Harris, of counsel for appellant in said cause, came into the county clerk’s office and presented a paper folded up, with no indorsement on the back thereof, and requested me to put my file mark on the same. In compliance with this request the following mark was put on the back of said paper: ‘Filed January 27th, 1916, J. W. Baker, Clerk of the County Court McLennan County, Texas, by T. C. Morris, Deputy.’ Immediately thereafter Mr. Nat Harris left the office and carried the paper with him, and said paper has not been in this office since that time until last Saturday, March 25, 1916. This is the only copy of said brief that has ever been presented to this. office. There is no other copy on file or held by this office.”

On March 25, 1916, appellee filed a motion in this court to dismiss the appeal herein, for the reason that no brief had been filed by appellant, as required by the statute and by the rules governing this court, from which we copy as follows:

“(1) This case is set down to be heard by this honorable court for the assignment beginning April .5, 1916, and up to this time appellant has failed to file any brief herein with the county clerk of the county court of McLennan county, Tex., from which said ease was appealed to this honorable court
“(2) The appellee in this cause has not been furnished, either by the appellant or his attorney, with a copy of their brief.
“(3) Because appellant, by his failure to file his brief or to furnish appellee with a copy thereof within the time prescribed by the rules of this court and the statutes governing the same, has deprived the appellee of valuable right, in that appellee has not sufficient time in which to answer, the same having not been filed within 20 days prior to the submission of said cause in this court. Appellee attaches hereto a certificate of the clerk of the county court of McLennan county, and the same is made a part of this motion.”

Appellee also attaches the affidavit of his attorney, showing that he never received a copy of appellant’s brief until the 26th day of March, 1916, and that he had had the county clerk of McLennan county to search his office to ascertain if appellant had filed any brief herein, and had ascertained from said clerk that no brief had been filed in that office prior to March 25th.

It thus appears that appellant technically filed a copy of its brief with the county clerk of McLennan county on January 27, 1916, tat that by reason of the same not being indorsed in such a manner as to indicate what it was, and by reason of the fact that appellant’s attorney who filed the same immediately put the same in his pocket and carried it away and did not return the same to the clerk’s office prior to the 25th day of March, 1916, the spirit of the law upon this subject has not been complied with, for which reason appellee’s motion to dismiss this case is sustained. The statute referred to is as follows:

“Art. 2115. Not less than five days before the time of filing the transcript in the Court of Civil Appeals the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief, which shall be by the clerk deposited with the papers of the cause, with the date of filing indorsed thereon; and the clerk shall forthwith give notice to the appellee or defendant in error, or his attorney of record, of the filing of such brief and that in twenty days after such notice the appellee or defendant in error shall file a copy of his brief with the clerk of said court below, and with the clerk of the Court of Civil Appeals four copies.”

Rule 39 for the government of this court (142 S. W. xiii) is as follows:

“The failure of appellant or plaintiff in error to file an assignment of errors and briefs in the lower court and in the appellate court in the time and manner prescribed by law and by the rules, shall be ground for dismissing the appeal or writ of error for want of prosecution, by motion made by appellee or defendant in error, unless good cause is shown why it.was not done in the time and manner as prescribed, and that they have been filed at such time and under such circumstances as that the appellee or defendant in error has reasonably not suffered any material injury in the defense of the case in the appellate court. In deciding said motion the court will give such direction to the case as will cause the least inconvenience or damage from such failure, so far as practicable.”

It has been held in a number of eases that a failure to comply with the statute above set out is cause for dismissing the appeal. Railway Co. v. Brock, 77 S. W. 953; Hernandez v. Pastran, 140 S. W. 508; Railway Co. v. Hall, 32 Tex. Civ. App. 476, 74 S. W. 778. In Railway Co. v. Holden, 93 Tex. 211, 54 S. W. 751, it was held that this statute was not mandatory, and a failure to comply with the same will not be ground for dismissing an appeal where it appears that no injury has resulted from such failure; but in this case appellee claims that he has been injured in that he did not receive a copy of appellant’s brief until March 26, 1916, and this case being set down for submission for April 5th, he did not have time to prepare his brief. It thus appears that he had only 9 clear days in which to prepare his brief for this court, and we cannot say that his allegation that he did not have time to prepare his brief is not true, since the law has fixed 20 days as a reasonable time granted to appellee in which to file his brief.

Motion sustained, and appeal dismissed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BAILEY et al. v. BAILEY et ux.
    (No. 5649.)
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1916.)
    1. Homestead &wkey;>129(l), 133 — Cancellation of Conveyance — Evidence—Deed oe Mortgage.
    In a widow’s suit to cancel a warranty deed executed by herself and her deceased husband, conveying 10 acres of land out of the northwest corner of their homestead tract, which was never segregated from the tract, except by a marking of the corners, and the grantee’s warranty deed of such tract to the defendant, evidence held to show that the first deed was given for the security of a debt, and that such fact was known to the defendant.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 233, 234; Doc. Dig. &wkey;129(l), 133.]
    2. Homestead <&wkey;115(2) — Conveyance as Security-Constitutional Provisions.
    Under the express provision of Const, art. 16, § 50, a warranty deed to secure a loan executed by husband and wife, conveying part of their homestead was absolutely void, and the grantee took no title thereto, and hence could convey none by his deed thereof.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 186-190; Dec. Dig. &wkey;115(2).]
    3. Homestead <&wkey;122 — Conveyance as Security — Estoppel.
    Where husband and wife entitled to a homestead tract executed their warranty deed conveying a part thereof to secure a loan, and the grantee executed a deed thereof to defendant with the knowledge of the husband and wife, the surviving wife was not thereby estopped from suing to cancel both deeds and to remove the cloud from the title.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. (&wkey;>122.]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Suit by Judy Bailey and others against W. B. Bailey and wife. Judgment for defendants, and plaintiffs appeal.
    Reversed, and judgment rendered for plaintiffs.
    Nunn & Love, of Georgetown, for appellants. A. S. Fisher, Jr., and Richard Critz, both of Georgetown, for appellees.
   RICE, J.

In October, 1902, Harry Bailey

and wife, Judy Bailey, together with their family, owned and were living upon a tract of 120 acres of land out of the Stubblefield survey in Williamson county, where they had resided for many years. On that date they borrowed from E. Hankins $250, and to secure same conveyed to him by warranty deed, duly acknowledged, 10 acres of land out of the Dorthwest corner of their homestead tract, the corners of which were designated and marked, but the 10 acres were never otherwise separated or segregated from the remainder of the tract. In November, 1903, being unable to repay this loan, it was agreed between Harry Bailey and his wife, Judy Bailey, and the defendant W. B. Bailey that the 10 acres of land should be conveyed to said W. B. Bailey, wlio should thereafter own the same in fee simple, in consideration of which said W. B. Bailey agreed to pay and did pay to said Mankins the debt, with interest thereon, due Mankins by Harry Bailey. Pursuant to said understanding, and for the purpose of conveying the title to said tract of 10 acres to said W.. B. Bailey, Harry Bailey and wife, Judy, directed Mankins to execute a deed conveying the same to W. B. Bailey, and, in accordance with such request and direction, Mankins, by warranty deed of date November 28, 1903, did convey the tract in controversy to W. B. Bailey. The entire tract, upon which they lived as a home, including said 10 acres, both before and after the execution of said conveyances, had been cultivated by Harry Bailey and his family, including W. B. Bai-les'. Harry Bailey died about two years before the trial of this suit, and his widow, Judy Bailey, with her family, continued to reside upon said land as their home, including the 10 acres in controversy, which was cultivated in common by the family together with the balance of the tract. After such conveyance by Mankins to him, W. B. Bailey, with the knowledge of his father and mother, claimed said land as his own and paid taxes thereon. Said W. B. Bailey, during all of this time, continued to reside upon the 120-acre tract with his father and mother, assisting in the cultivation thereof with the rest of the family.

This suit was brought by Judy Bailey against W. B. Bailey and wife, Viola, to cancel both of said conveyances to the 10-acre tract, and to remove cloud from title thereto ; the latter asserting title under the facts above set out. The case was tried before the court without a jury, who found the facts substantially as above outlined, and concluded as matter of law, first, that the deed executed by Harry Bailey and wife to E. Mankins was intended as a mortgage, and was invalid either as a mortgage or as a conveyance of said land to the said Mankins, except that said deed conveyed to said Man-kins the bare legal title to said 10-acre tract of land; second, that the execution of the deed by Mankins to W. B. Bailey, under the circumstances set out in the findings of fact, operated as a conveyance of title to said tract of land to W. B. Bailey. Upon such conclusions the court rendered judgment in favor of appellees, from which this appeal is prosecuted; appellants assigning error upon such conclusions of law.

It is clear from the evidence and findings of fact that the deed from Harry Bailey and wife to Mankins was given for the security of a debt, and that this fact was well known to W. B. Bailey. The 10 acres in controversy being a part of the homestead of Harry Bailey and wife, such conveyance, under the Constitution and laws of this state, was absolutely null and void; and Mankins, having no title to said land by reason thereof, could convey none by his deed to W. B. Bailey. The court, therefore, was in error in concluding to the contrary. See article 1.6, § 50, State Constitution; Inge v. Cain, 65 Tex. 75; Hays v. Hays, 66 Tex. 606, 1 S. W. 895; Hoefling v. Thulemeyer, 142 S. W. 102; Hall v. Jennings, 104 S. W. 489.

Notwithstanding such deed was made by Mankins to W. B. Bailey with the knowledge of Harry Bailey and wife, Judy, the latter was not estopped thereby, as contended by appellee. Such facts do not constitute an estoppel. See Speer’s Law of Married Women, § 131, and authorities cited; Johnson v. Bryan, 62 Tex. 623; Huss v. Wells, 17 Tex. Civ. App. 195, 44 S. W. 33; Stone v. Sledge, 24 S. W. 697; McFalls v. Brown, 36 S. W. 1110; Black v. Garner, 63 S. W. 918; Cauble v. Worsham, 96 Tex. 86, 70 S. W. 737, 97 Am. St. Rep. 871.

Believing that the court erred in rendering judgment for appellees, and the case having been fully developed, it becomes our duty to reverse the judgment of the court below, and here render same in favor of appellants, which is accordingly done.

Reversed and rendered.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SOUTHERN UNION LIFE INS. CO. v. WHITE.
    (No. 5625.)
    (Court of Civil Appeals of Texas. Austin.
    May 17, 1916.
    Rehearing Denied June 28, 1916.)
    1. Insurance i&wkey;40O — Like Policy — Incontestability — Fraud.
    Under Rev. ,St. 1911, art. 4741, requiring every policy to contain a clause providing that the policy shall be incontestable after 2 years from its date, except for nonpayment of premiums, a life policy, providing “this policy shall be incontestable after it has been in force one year, providing the premiums have been duly paid,” was not contestable 4 years after it was issued, on the ground that it was obtained by fraudulent representations of the insured as to his health and use of alcoholic drinks.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. &wkey;400.]
    2. Insurance <&wkey;655(2) — Life Insurance-Fraud as a Defense — Beneficiary Participating.
    Where it was not permissible, because of the incontestable clause in a policy of life insurance, to show that the insured committed fraud in obtaining the policy, it was not permissible to show that the beneficiary participated in such fraud.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1677, 1680, 1681, 1685; Dee. Dig. &wkey;055(2).]
    3. Insurance <&wkey;675 — Dife Insurance — Nonpayment of Loss — Penalty—Demand.
    In an action on a life policy, where demand for the payment of loss was not made 30 days before the filing of the original petition, but an amended petition, alleging such demand was filed more than 30 days after demand, plaintiff was entitled to recover the 12 per cent, statutory penalty and attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1805, 1806; Dec. Dig. <&wkey;>675.]
    4. Courts <&wkey;92 — Opinions—Previous Decisions as Controlling — “Dicta.”
    Whatever part of the language of an opinion is not necessary to the decision of a case is “dicta.”
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. <&wkey;92.
    For other definitions, see Words and Phrases, First and Second Series, Dictum.]
    Appeal from District Court, Brown County; John W. Goodwin, Judge.
    Action by Mrs. Mayme Louise White against the Southern Union Life Insurance Company. Judgment for plaintiff and defendant appeals.
    Affirmed.
    G. N. Harrison, of Brownwood, and Gross & Street, of Waco, for appellant. McCartney & McGee, of Brownwood, for appellee.
   JENKINS, J.

On May 23, 1911, the appellant issued a policy, whereby it insured the life of C. B'. White for $5,000 in favor of his wife, the appellee herein. C. B. White, during his lifetime, obtained a loan from appellant, so that if the policy herein sued on is collectable, the amount due when the same matured- was $4,643.60. The insured died February 9, 1915. The plaintiff filed petition herein in the usual form, asking judgment for the amount due on the policy, and also, by amended petition, for 12 per cent, penalty and reasonable attorney’s fees, by reason of the failure of appellant to pay said policy upon demand. The appellant answered, admitting that it issued the policy sued upon, and that said policy contained the following provision:

“This policy shall be incontestable after it has been in force one year, providing the premiums have been duly paid.”

But appellant denied that said policy was ever in force, for the reason that it was obtained by fraudulent representations made by the insured, with reference to the condition of his health and his habits as to the use of alcholic drinks, and further alleged that such fraudulent representations were made with the knowledge of appellee herein, and with the intent on the part of the insured and the appellee herein to procure the unlawful issuance of a policy of life insurance upon the life of the insured, and that such false and fraudulent representations were made with the knowledge and connivance of appel-lee herein, the beneficiary in said policy. To appellant’s answer the appellee interposed a general and special demurrer, both of which were sustained by the court; and upon a trial on the merits before the court, a jury being waived, judgment was rendered for the ap-pellee for the balance due upon the- policy, with 12 per cent, penalty and $500 attorney’s fees, a total of $5,733.15, with 6 per cent, interest thereon from date of judgment.

It is the contention of appellant that, inasmuch as the policy was obtained by means of fraudulent representations, such being admitted for the purposes of the demurrer, the clause of the policy which provided that it shall be incontestable after it has been in force for 1 year has no application, for the reason that the policy was never in force. In Mutual Reserve Fund Life Ass’n v. Austin, 142 Fed. 398, 73 C. C. A. 498, 6 L. R. A. (N. S.) 1064, the policy therein sued upon contained the following clause:

“If this policy of insurance shall have been in continuous force for three years from its date, it shall thereafter be incontestable.”
There was a further provision in the policy that the contract of insurance should not take effect unless the policy was delivered to the insured while he was in good health; and the company sought to defeat the policy on the ground that when it was delivered the insured was not in good health, and therefore the policy never took effect, and consequently could not have been in continuous force for 3 years from its date, nor for any period. The court in reference t.» this contention said:
“Upon the view that the expression ‘in force’ implies that the contract of insurance shall have been of full and binding obligation during 3 years, the clause may well be regarded as self-destructive and deceptive. If we are to read it to mean that, if the policy shall have been incontestable for 3 years, it shall thereafter be incontestable, it is practically meaningless.
“During the first 3 years the policy is contestable upon any one of the express warranties, or upon any one of the conditions inserted by the insurance company for its benefit. These warranties and conditions all relate to the inception of the obligation of the insurance company. It was agreed by the insured that, if any condition or agreement should not be fulfilled, the policy should be null and void. It is the purpose of an ordinary incontestable clause to annul all warranties and conditions that might defeat the rights of the assured. It is said, however, that this is not the ordinary incontestable clause, but a conditional clause novel in character.
“An agreement that a policy shall be incontestable is of no significance unless we assume the existence of grounds for contest in the terms of the contract, or in extrinsic facts. If the policy is not to be regarded as in force during the first 3 years, provided that after 3 years the company is able to show a breach of warranty or of conditions, then this incontestable clause is of no value, save as a deceptive inducement to those seeking insurance. A construction which renders the clause self-destructive and of no avail to the assured is to be avoided. ‘Parties to a contract are always to be supposed to have intended something, rather than nothing, by what they have said.’ * * * To adopt a construction which includes in the agreement to relinquish defenses all the warranties and conditions of the first undertaking is to destroy the second agreement to relinquish defenses. * * *
“The term ‘incontestable’ is of great breadth. It is the ‘policy’ which is to be incontestable. We think the language broad enough to cover all the grounds for contest not specially excepted in that clause. The word ‘policy’ may well be taken to mean a formal document delivered by the company, and containing evidence of an obligation to pay. Such a document so delivered is ordinarily contestable, with reference to questions arising in connection with its delivery and payment of the first premium, as well as with reference to statements contained in the application. * * *
“Upon the face of each policy in suit it was not invalid. Until contested by the company, it had such force as upon its face it purported to have. All of the requirements of the company upon the assured were met by the payment of premiums. The policy was outstanding as a certificate of membership. * * * This policy, until either avoided or proved null and void in its origin, may be regarded as a policy in continuous force.
“The argument that the policy was not in continuous force is predicated upon an extrinsic fact, not appearing upon the face of the policy, to wit, the fact that the assured was not in good health at the date of delivery of the policy. In setting up, or even relying upon, this extrinsic fact, the company is contesting its policy as evidence of its obligation. If the company is at liberty to set up this fact after the lapse of more than 5 years, it is equally at liberty to set it up after the lapse of 40 years. Instead of being an incontestable policy, if we adopt the defendant’s argument, the policy is always contestable. * * * A construction which reads into it as permanent provisions the very conditions which apparently it was designed to terminate makes it, not only inoperative, but exceedingly deceptive; for, while the clause would serve as an inducement to the applicant and remove his unwillingness to accept a policy containing many conditions upon which it might be defeated, the contract would still hold him rigidly to each and every warranty and condition contained in it. Such a result may be avoided by construing the incontestable clause to mean that if the policy does not mature or terminate within 3 years, but during that time is outstanding in the hands of the assured, and is not utterly void on its face, and is not avoided by the company, but is acted upon by both parties as a subsisting contract, it is ‘in continuous force’ within the true meaning of the clause.”

The same contention was made in the case of Mohr v. Prudential Insurance Company, 32 R. I. 177, 78 Atl. 555. In that case, the court, among other things, said:

“The defendant contends, however, that the policies must have had a legal inception in order to sustain an action thereon, and that, before the plaintiff could claim the benefit of the incontestable clause, she must show that all the conditions precedent to the issuance of the policies have been complied with. To this contention it should be said that the policies were issued and were delivered; that the premiums due upon said policies were received by the defendant up to the time of the death of the insured; that the policies were treated by the insured and the defendant as subsisting contracts between them. The policies upon their face purport an obligation on the part of the defendant. To an action to enforce this apparent obligation the defendant interposes the defense that the insured was not in good health at the time of the delivery of the policies. Upon this ground the- defendant is contesting its liability under the policy. Such a contest is within the scope of that clause which makes the policy incontestable after 1 year from its date if all due premiums shall have been paid, without by its terms excluding any ground of defense. To hold otherwise would be to permit such a clause in its unqualified form to remain in a policy as a deceptive inducement to the insured.”

We think the reasoning of the courts in the cases from which the above quotations are made is sound, and that it should be held that the policy herein sued on was in force from the time of its delivery until the death of the assured, a period of about 4 years. See, also, Drews v. Ins. Co., 79 N. J. Law, 398, 75 Atl. 167; Austin v. Ins. Co. (C. C.) 132 Fed. 559.

Article 4741, Rev. -Civ. Stats., requires every policy of insurance to contain a clause that the policy shall be incontestable after a period of not more than 2 years from its date, except for nonpayment of premiums, and further makes it optional with the company to insert exceptions respecting violations of the conditions of the policy relating to naval and military services in time of war. Under this statute it is optional with the company to provide a shorter period than 2 years, in which the policy shall be incontestable, except as stated. We think a proper construction of this statute would prevent the policy herein sued on being contested after a period of 1 year, except for grounds mentioned in said statute. In support of our view as herein expressed that the policy sued on is incontestable, and therefore the court did not err in sustaining the demurrer to appellant’s answer, see Ins. Co. v. Briggs, 156 S. W. 909; Ins. Co. v. Whitehead, 123 Ky. 21, 93 S. W. 609, 13 Ann. Cas. 301; Murray v. Ins. Co., 22 R. I. 524, 48 Atl. 800, 53 L. R. A. 742; Ins. Co. v. Robinson, 104 6a. 256, 30 S. E. 918, 42 L. R. A. 273; Ins. Co. v. McGinnis, 180 Ind. 701, 101 N. E. 291; Ins. Co. v. Snavely, 206 Fed. 20, 124 C. C. A. 154, 46 L. R. A. (N. S.) 1057; Ins. Co. v. McClure, 138 Ky. 138, 127 S. W. 749, 27 L. R. A. (N. S.) 1027; Ins. Co. v. New, 125 La. 41, 51 South. 61, 27 L. R. A. (N. S.) 434, 136 Am. St. Rep. 326.

Appellant makes tlie proposition that the appellee cannot recover for the reason that she participated in the alleged fraud of the insured. It appears to us to be self-evident that if it is not permissible, by reason of the incontestable clause, to show that the insured committed fraud in obtaining the policy, it is not permissible to show that the beneficiary participated in such fraud. Upon this point, see Ins. Co. v. Whitehead, 123 Ky. 21, 93 S. W. 609, 13 Ann. Cas. 301, and Lynch v. Ins. Co., 150 Mo. App. 461, 131 S. W. 148.

Appellant contends that appellee was not entitled to recover the 12 per cent, penalty and attorney’s fees, for the reason that demand for the payment of the policy was not made 30 days before the filing of this suit. The original petition was filed April 22, 1915. Appellant admits in its brief that proper demand for the payment of the policy herein sued on was made on April 14, April 17, and April 20, 1915. At the time the suit was filed the penalties and attorney’s fees were not recoverable, for the reason that demand for payment had not been made 30 days prior thereto. But, on the 26th of May, 1915, more than 30 days after the last demand was made, the plaintiff filed an amended petition, alleging such demand more than 30 days prior to the filing of such amendment, and the appellant’s failure to comply therewith. In Ins. Co. v. Hallum, 32 Tex. Civ. App. 134, 73 S. W. 554, the court said:

“Appellee, in his amended petition, alleged that he had made demand on appellant for the payment of the policy, and that payment had been refused. He claimed and was allowed the statutory damages and a reasonable attorney’s fee. Appellant contends that, he was not entitled thereto, because it appeared that such demand was made after the suit was begun. This statute does not require the demand to be made before the suit is brought, and we think the demand may be made after, and the claim for the statutory penalties set up in an amended petition. R. S. 1895, art. 3071; Ins. Co. v. Sturdivant [24 Tex. Civ. App. 331] 59 S. W. 61.”

A writ of error was denied in this case. In Ins. Co. v. Collins, 149 S. W. 557, the following language was used:

“We sustain appellant’s assignment of error as to so much of the judgment as allowed ap-pellee to recover 12 per cent, penalty and attorney’s fee, for the reason that the evidence, as heretofore set out in the findings of fact, fails to show any demand upon appellant to pay said policy prior to the filing of the suit herein. The decisions in this state have settled the proposition that, in oruer to recover the penalty and attorney’s fee for failure to pay a life insurance policy, demand must be made prior to the filing of the suit.”

That opinion was written by the writer hereof, and illustrates the fact, which has been brought home, doubtless, to every member of an appellate court, that the language used does not always express the holding of the court. With reference to the facts of that case the decision of this court was correct as to the recovery of the penalty and attorney’s fees; but was incorrect in saying that the demand must be made before the filing of the suit; that point was not involved in tnat case. In that case no demand for payment was made at any time. Whatever is not necessary to the decision of a case is dicta. What we should have said in that case was that the decisions in this state have settled the proposition that, in order to recover the penalty and attorney’s fees for failure to pay a life insurance policy, demand must be made upon the company for such payment; and, had the point been involved, we should have added that such demand must be made 30 days before the filing of the petition or the amended petition, claiming such penalties and attorney’s fees.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
      cg^jFor other cases see same topic and KEY-NUMBER in all Key-NumBered Digests and Indexes


text:
    HUNTER et al. v. ABERNATHY.
    (No. 5674.)
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1916.)
    1. Chattel Mortgages <@=»170(1) — ‘“Conversion” — Liability.
    In view of Rev. St. 1911, art. 5660, providing that a chattel mortgagor shall not remove the property from the county or otherwise sell or dispose of it without the consent of the mortgagee, and that if he does, the mortgagee shall 'he entitled to possession and sale for the payment of his debt, any person is guilty of wrongful “conversion’' of property who aids the mortgagor in so disposing of the proceeds thereof as to defeat the mortgagee’s interest therein, and is not exempt from such liability because he is a factor or commission merchant (citing Words and Phrases, First and Second Series, Conversion).
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dee. Dig. &wkey;170(l).]
    2. Chattel Mortgages &wkey;3ll7, 235 — Conver-sión — Interest of Third Party.
    Where defendant gave a mortgage for the first three bales of cotton to be raised upon a farm "during a certain year to secure an indebtedness, and also gave a mortgage on the next three bales to be raised thereon during that year, and thereafter gave a mortgage on cotton to be raised on the farm in that year, and only three bales were raised that year and the first mortgagee's claim had been satisfied, neither the first nor second mortgagee had any interest in the two bales of cotton sold by the mortgagor to defendant, a factor and commission merchant, who remitted the proceeds to the mortgagor.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 202, 496-499, 507; Dec. Dig. &wkey;>117, 235.)
    3. Chattel Mortgages &wkey;>176(l), 177(1) — Conversion — Pleading and Issues.
    In such case, where the mortgagor and the commission merchant to whom the cotton had been shipped, defending as against a third mortgagee, were not claiming under such prior mortgages, they could not insist that the cotton was subject thereto.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 338, 349-350, 477; Dee. Dig. &wkey;17C(l), 177(1).]
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action by M.-C. Abernathy against H. B. Hunter and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Woodward & Baker, of Coleman, for appellants. Critz & Woodward, of Coleman, for appellee.
   RICE, J.

This suit was brought by appel-lee in the justice court against H. B. and J. W. Hunter, to enforce the collection of a promissory note for $125, payable to him, with interest and attorney’s fees. Appellants Goldman, Lester & Co. were made parties defendant on the theory that they had converted two bales of cotton described in the mortgage given by H. B. Hunter to appellee to secure the note. These appellants appealed from the judgment in the justice court against them to the county court, where the case was again tried, and judgment rendered against them for $117.50, $100 for the value of the cotton alleged to have been converted and $17.50 interest. To the pleadings of plaintiff alleging conversion, appellants Goldman, Lester & Co. entered a general' denial. From said judgment appellants have prosecuted this appeal.

The facts, briefly stated, as evidenced by the findings of the court and jury, show that the Hunters executed and delivered the note sued upon to appellee, and that H. B. Hunter, in order to secure it, gave a mortgage to appellee on 60 acres of cotton to be raised during the year 1912 on the Petty farm in Coleman county. Prior to the execution of this mortgage, H. B. Hunter had given a mortgage to one Bell for the first three bales of cotton to be raised on that farm during said year to secure an indebtedness due him, and had likewise given a mortgage on the fourth, fifth, and sixth bales to be raised on that farm during the same year, to Paddle-ford & Son, to secure a debt due them; both of which mortgages were executed and duly recorded before appellee’s mortgage was given and recorded. Only three bales of cotton were raised on this farm during the year in question, one of which was sold by H. B. Hunter to one Stacy, and is not involved herein. The other two bales were shipped by him through E. F. Gordon as agent of Goldman, Lester & Co., factors and commission merchants, to that firm at Houston, who sold same, remitting the proceeds, less their commissions and transportation charges directly to H. B. Hunter. It likewise appears from the evidence that the debt secured by the mortgage to Bell had been paid off.

It is the contention of appellants Goldman, Lester & Co.: First, that as they were factors and commission merchants, and remitted the proceeds direct to H. B. Hunter, they were not guilty of conversion of the cotton, and that the judgment rendered against them was therefore erroneous; second, they likewise insist that the cotton was subject to the prior mortgage liens of Bell and Pad-dleford & Son, for which reason appellee was not entitled to judgment. We overrule both contentions. Any person is guilty of wrongful conversion of property who aids and assists the mortgagor in sp disposing of the proceeds thereof as to defeat the mortgagee’s interest therein; and we do not think he is exempt from the operation of this rule by reason of the fact that he was a factor or commission merchant. See R. S., art. 5660 (3333) (3190B., § 6); Buffalo Pitts Co. v. Stringfellow Hume Hdw. Co., 129 S. W. 1161, 1162; Western Mortg. & Investment Co. v. Shelton, 8 Tex. Civ. App. 550, 29 S. W. 494; Mohr v. Langan, 162 Mo. 474, 63 S. W. 409-416, 85 Am. St. Rep. 503 (cited 2 W. & P. 1569); Ochs v. Pohly, 87 App. Div. 92, 84 N. Y. Supp. 1, 3 (cited 2 W. & P. 1569); 2 W. & P. 1564, and many cases there quoted; 1 W. & P. (2d Series) 1030, and cases there quoted; Jones on Chat. Mtg. § 490.

With reference to the second contention, it is made to appear that neither Bell nor Paddleford & Son had any interest whatever in the two bales of cotton involved in this controversy, since it was shown that Bell’s claim had been satisfied; and, as only three bales of cotton were raised on the farm during 1912 and Paddleford & Son’s mortgage only covered the fourth, fifth, and sixth bales, they therefore had no interest in the cotton in controversy. Besides this, appellants are not claiming under such prior mortgages. See O’Brien v. Hilburn, 22 Tex. 616, 624; Jackson v. Nelson, 39 S. W. 315, writ of error denied; 38 Cyc. 2062.

Finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.
      <§=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FREDERICK DISINFECTANT CO. v. COLEMAN COUNTY.
    (No. 5639.)
    (Court of Civil Appeals of Texas. Austin.
    April 26, 1916.
    On Motion for Rehearing, June 28, 1916.)
    1. Counties <&wkey;114 —Agency oe Sheriff — Liability of County — Purchase for Jail.
    Under Rev. St. 1911, art. 5111, requiring the commissioners’ court to see that the county jail is kept in a clean and healthy condition, etc., it should be presumed, in the absence of its order to the contrary, that the sheriff, declared by Code Or. Proc. 1911, art. 49, to be the keeper of the jail of his county, authorized by article 52 to appoint a jailer to supply the wants of prisoners and required by article 1148 to present his account for expenses for the maintenance of prisoners to each regular term of the commissioners’ court, was the proper agent to represent the county in the purchase of disinfectants necessary for the jail, where the court had made no prior provision for its purchase, so that the county was liable for the purchase price.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 175; Dec. Dig. <&wkey;>114.]
    On Motion for Rehearing.
    2. Counties <&wkey;114 — Power of Sheriff — Purchases for County Jail.
    If when such disinfectants were ordered the county had in the courthouse, and accessible for the use of the jail, an adequate supply, the sheriff had no authority to bind the bounty by his purchase.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 175; Dec. Dig. &wkey;114.]
    Appeal from Coleman Countyt Court; W. Marcus Weatherred, Judge.
    Action by the Frederick Disinfectant Company against Coleman County. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded for new trial.
    J. P. Ledbetter and Woodward & Baker, all of Coleman, for appellant. Snodgrass, Dibrell & Snodgrass and Critz & AVoodward, all of Coleman, for appellee.
   JENKINS, J.

On June 8, 1911, and for a number of years prior thereto, W. L. Futch was sheriff of Coleman county, and it had been his custom to purchase the necessary disinfectants for the jail, for which Coleman county, through its commissioners’ court, had paid. On the date mentioned Futch gave the following order:

“Frederick Disinfectant Company, Mfg. Chemist, Atlanta, Ga. Order No. 299, dated June 8, 1911; sold to Coleman county. Shipped care of AV. L. Futch, at Coleman, Texas. Terms: June, 1912. Shipped January 14, 1912. One barrel insecticide, 60 gallons, at $2 per gallon; 10 gallons Pixoline, at $1.25 per gallon. Signature of buyer: W. L. Futch. Official title: Sheriff. Signature of salesman: Louis Schwartz.”

The articles named in this order were shipped to Futch, and by him received and used in the Coleman county jail. The uncontra-dicted testimony shows that disinfectants and germicides of the character mentioned in this order were necessary to the health of the prisoners confined in the Coleman county jail. On June 13, 1911, the commissioners’ court passed an order, and had the same entered upon its minutes, that thereafter no one would be permitted to purchase disinfectants for the jail or courthouse, except the commissioners’ court.

“Each sheriff is the keeper of the jail of his county.” Article 49, C. C. P. “The sheriff may appoint a jailer to take charge of the jail, and supply the wants of those therein confined.” Article 52, C. C. P.
“At each regular term of the commissioners’ court, the sheriff shall present his account to such court for the expenses incurred by him since the last account presented for the safekeeping, * * * and maintenance of prisoners.” Article 1148, O. O. P.
“It shall be the duty of the commissioners’ court of the counties to see that the jails of their respective counties are kept in a clean and healthy condition, properly ventilated, and not overcrowded, with prisoners, and that they are furnished with clean and comfortable mattresses and blankets sufficient for the comfort of the prisoners therein confined.” Article 5111, R. S.

The duties incumbent upon commissioners’ courts, as provided in article 5111, must be discharged through some agency of the court. In the absence of any order to the contrary, it should be presumed that the sheriff is the proper agent to represent the county in the purchase of disinfectants necessary to keep the jail in a clean and healthy condition. Unlike the case of Germo Manufacturing Co. v. Coleman County, 184 S. W. 1063, decided at the present term of this court, the commissioners’ court of Coleman county had made no provision for the purchase of disinfectants for the jail prior to the purchase of the disinfectants shown above. Such being the fact, we hold that Coleman county is liable upon the account herein sued on, and the judgment of the trial court is therefore reversed, and judgment is here rendered for the appellant for the amount sued on, with interest from the time the same was due.

Reversed and rendered.

On Motion for Rehearing.

We rule against appellee on the main point involved in the motion for rehearing, but have concluded that this court fell into error when it went to the extent of rendering judgment for appellant. We agree with the contention of appellee’s counsel that if, prior to and at the time the disinfectants involved in this case were ordered by the sheriff, the county already had in the courthouse and accessible for the use of the jail an adequate supply of disinfectants, then the sheriff had no authority to bind the county to pay the claim here involved.

Upon that issue the ease may not have been fully developed, and therefore we remand it for another trial upon that issue.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes