author: HUFF, O. J.

text:
    AMEND et al. v. JAHNS et ux.
    (No. 922.)

    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 16. 1916.
    On Rehearing, April 5, 1916.)
    1. Husband and Wipe <@=>131(4) — Separate Estate of Wife — Actions — Burden of Proof.
    Where the wife, seeking to save certain lands from execution levied by the husband’s creditors, claimed that they were her separate lands, the burden was upon her to show what part, if any, of the land was paid for from her separate funds, in the absence of proof of which it would be presumed the property was that of the community.
    TEd. Note. — For other cases, see Husband and Wife, Cent. Dig. § 477; Dec. Dig. <@=>131(4).]
    2. Husband and Wife <@=>133(7) — Separate Estate of Wife — Evidence—Sufficiency.
    Evidence held to support a finding that the husband gave live stock and its increase to the wife, so as to defeat the lien claim of the husband’s creditors to land purchased with its proceeds.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 491; Dec. Dig. <@=>133(7).]
    3. Husband and Wife <@=>49% (8) — Separate Estate of Wife — Gifts—Evidence.
    While mere branding cattle in the wife’s name is insufficient to prove gift thereof to her, it is evidence which may be considered with the facts that the original stock was the wife’s, that the husband branded the increase for her, and would not sell them without her consent, which she gave on condition that the proceeds should be invested in land for her, which land she selected, and is sufficient to show a gift of the increase as well as its proceeds.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 254; Dec. Dig. <@=>49%(8).]
    4. Husband and Wife <@=>133% — Separate Estate of Wife — Evidence.
    Evidence held sufficient to carry to the jury the issue whether land claimed by the wife to be exempt from husband’s creditors was her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Dec. Dig. <@=>133%.]
    5. Husband and Wife <@=>133(1) — Separate Estate of Wife — Evidence.
    Evidence held to show that certain horses wore of the separate estate of the wife, so that their issue and proceeds were exempt from the husband’s creditors.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 487, 493; Dec. Dig. <@=> 133(1).]
    6. Husband and Wife <@=>266 — Separate Estate of Wife — Evidence.
    The husband may give or convey to the wife community property, and thereby make it her separate property, when it is not done in fraud of creditors, so that, where such gift was made prior to the time at which plaintiffs became creditors of the husband, the gift of community personalty to the wife was valid as against them.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 925-928; Dec. Dig. <@=> 266.]
    7. Husband and Wife <@=>121 — Conveyance to Wife — Husband’s Note for Price.
    Where the wife’s separate funds were used in a cash payment on the land, and the husband signed the note for the deferred payment, taking the land in the wife’s name under agreement that the note should be paid from her funds, the equitable title to the land vested in her, and she could defend against the lien claim of subsequent creditors of the husband.
    [Ed. Note — For other cases, see Husband and Wife, Cent. Dig. §§ 432, 435-441; Dee. Dig. <@=>121.]
    8. Appeal and Error <@=1068(5) — Harmless Error — Refusal of Instructions.
    Where the jury found that the whole of land claimed by the wife as exempt from the husband’s creditors had been paid for with her separate funds, it was not prejudicial error to refuse to submit the issue of the proportion paid by the wife.
    [Ed. Note. — For othor cases, se.e Appeal and Error, Cent. Dig. § 4230 f Dec. Dig. <@= 1068(5); Trial, Cent. Dig. § 475.]
    On Rehearing.
    9. Husband and Wife <@=121 — Separate Estate of Wife — Mingling of Funds — Effect.
    The mere fact that the husband mingled the wife’s separate money with his would not defeat her title to land purchased therewith.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 432, 435-441; Dec. Dig. <@=121.]
    10. Fraudulent Conveyances <@=95(5) — Gift to Wife — Validity.
    Subsequent creditors cannot attack a gift of stock to the wife on the ground that it was only in pursuance of an antecedent agreement which is invalid, where it was actually a gift of things in esse.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 268, 209; Dec. Dig. <@=95(5).]
    11. Husband and Wife <@=121 — Separate Estate of Wife — Wi-iat Property may be Held Separate.
    The mere fact that land purchased with proceeds of wife’s separate personal property was school land, and the purchase money on a deferred payment was due that fund, would not affect the wife’s right to hold it in severalty if it was paid for from her funds.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 432, 435-441; Dec. Dig. <@=121.]
    Appeal from District Court, Sherman County ; D. B, Hill, Judge.
    Action by W. S. Amend and others against George D. Jahns and wife. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    R. E. Stalcup, of Dalhart, W. I. Gamewell, of Stratford, and B. K. Goree and H. A. Turner, both of Ft. Worth, for appellants. Stahl & Elliott, of Stratford, and Crudgington & Works, of Amarillo, for appellees.

      Application for writ of error pending in Supreme Court.

   HUFF, O. J.

This is an action brought by the appellants to foreclose a judgment lien upon section No. 44, block 3-T, of the Texas & New Orleans Railroad Company, situated in Sherman county, alleged by them to be the property of their judgment debtor, George D. Jahns. Mrs. Nettie V. Jahns, the wife of George D. Jahns, intervened in said suit, alleging that the property was her separate property, and asked that it be decreed to her as her separate estate, and that the cloud created by the abstracting of appellants’ judgment be removed. There are several parties to this suit, and the pleadings are rather complicated, but the above will be a sufficient-statement to understand the issues presented in this court, and discussed by us.

The first assignment in this case is that the trial court erred in refusing to instruct a verdict for the appellants. The first proposition thereunder is to the effect that the burden was on Mrs. Jahns to show what part, if any, of the cash payment on the land was her separate funds, and, if not so established, the amount would be regarded as having been paid out of the community. Second, that the burden was on appellee to show that she had obligated herself to pay the deferred payment out of her separate estate, and that it was so paid, and, if not all, what portion thereof; and if not so shown, the deferred payment would be regarded as a community obligation. If the affirmative of either one of these propositions was shown by the appellee, then it would have been error to instruct a verdict for the appellants, and the trial court would have been justified in refusing the charge on that ground.

Before the land was purchased and the deed executed by Amend to George D. Jahns, the husband, it was agreed by Jahns and wife that when her cattle and horses were sold, the money received therefrom should be placed in land for her separate use, and upon this condition she agreed to their sale. She went with her husband from their home in Gray county, to Sherman county, to look at the land. It appears that two sections were purchased at the same time by Jahns. The section in question the wife, when she looked at it, selected for her section, and this land, both husband and wife testified, her separate funds paid for. The consideration paid for this land was $900 bonus, $500 cash, and one note for $400, signed by the husband alon-e. The $500 paid down, it is testified by both husband and wife, was the proceeds of the sale of 16 head of cattle claimed by the wife, the price for which the cattle sold was $20 per head, aggregating $320, and three head of horses belonging to the wife, for the sum of $2S0, making a total received for the horses and cattle, $600. At the time of the marriage between Jahns and wife, the wife had 8 head of cattle and 6 head of horses, which were given her by her father before her marriage, and which also consisted of the increase from the original stock given her by her father up to the time of her marriage, which was some time in 1902. The land was purchased in September, 1905. The three horses first sold were part of the original stock given by Mrs. Jahns’ father, and which she owned at the time of her marriage. The cattle sold, the proceeds of which went into the land, were in part the original stock and in part the increase therefrom after marriage. The evidence in this case shows that the husband owned cattle of his own, which he ran in one brand and that the wife had a separate brand, which was used to designate her cattle. Th-e testimony shows that the wife looked after the branding of the increase from her cattle and saw to it that her brand was placed thereon; that it was understood that the increase was not to he mingled with the husband’s cattle. He would not sell them, and did not do so without her consent, and when he did sell them, it was upon the condition that the proceeds be placed in land for her, and she selected the land into which it should be placed. The cattle and horses were sold,-and the proceeds hold in the bank in the name of the husband, to be used in paying for the land for her, and at the same time he also sold his cattle and land owned by him, in Gray county, and after paying his debts, had remaining about $1,000, which sum he paid for a section of land in Sherman county, purchased by him at the time the land in question was purchased. It is shown by the husband and wife that it was agreed at the time and before the deed that the deferred payment of $400 should be paid from proceeds to be derived from the sale of the wife’s remaining horses. The husband, shortly after their marriage, gave his wife two colts, which she owned and held at the time the land in question was acquired. When the note for the land fell due, the husband borrowed money from a bank to pay it, and secured the bank with a mortgage on his wife’s horses and some of his own. After-wards, under their agreement, when the land was purchased, the husband sold some of the wife’s horses for $360, and applied on the debt in the purchase of the land, and the balance due thereon was paid by cheek on the balance of the fund in the bank from the sale of the cattle of the wife, and the three first horses. It is explained by both husband and wife that some of the colts from the horses were not branded with the wife’s brand for the reason that they did not desire to scar them. They both testified that these horses given by the father and the two colts by the husband, together with the increase, was the property of the wife, and was the property that paid for the land, together with the cattle. We believe the facts in this case were sufficient to authorize the jury to find that the husband gave the increase of the cattle from the original stock to the wife.

While perhaps the mere branding of the-cattle, as was held in Rhodes v. Alexander, 19 Tex. Civ. App. 552, 47 S. W. 754, will not be sufficient to prove the gift, yet we think it is nevertheless evidence of such fact, and may be considered with other circumstances. The jury’s verdict ought not, we think, be set aside on that account. In this case the original stock was the separate property of the wife when she married her husband. The husband branded the increase for the wife, would not sell them without her consent, and she consented to sell on condition that the-proceeds should be invested in land for her, and she selected the land into which the proceeds were placed, and the land thereafter was regarded as her property. This, we believe, evidences a gift of the increase, as well as the proceeds therefrom.

The three first horses sold were of the original stock. We believe it is reasonably certain that the cash payment was out of the wife’s separate estate. The court would have been unauthorized to instruct a verdict for the appellant on that ground.

We believe the evidence will support a finding that the horses were the separate property of the wife. They were set apart and designated as such by both the husband and wife. The wife controlled the sale of them to the extent that the proceeds, when sold, must be paid on the land. The husband agreed thereto, and all the facts indicate that the increase of the original eight head of horses was given to the wife.

In this case it is shown at the time of the gift, the appellants were not the creditors of George Jahns, and therefore were in no way interested in the transaction had between the husband and wife; in fact, the evidence in this case shows that the judgment lien sought to be foreclosed was obtained on a warranty contained in a deed given in the sale of the land by Jahns, which was purchased at the time the land in question was acquired. It is the settled rule, as we understand it, in this state, that the husband may give or convey to his wife the community property, and thereby make-it her separate property when it is not done in fraud of creditors.

The deferred payment on the land, evidenced by the note of the husband, was paid by the separate funds of the wife, under an agreement of the husband and wife at the time the land was acquired. This, we think, vested in her the equitable title to the land, and she could defend against the lien sought to be established by subsequent creditors and lienholders. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381; Bevy & Oo. v. Mitchell, 52 Tex. Civ. App. 189, 114 S. W. 172; Carter v. Bolin, 30 S. W. 1084; Cavil v. Walker, 7 Tex. Civ. App. 305, 2G S. W. 854.

It is not deemed necessary to discuss the question whether the land held by the husband in his name was under' an express trust, or whether it was a resulting trust. If the land was purchased under an agreement that the land should be for the wife’s separate estate, we see no reason why, when so purchased, the equitable title would not vest in her under an express trust, especially so when the property given to her paid the purchase price for the land.

The second assignment will be overruled, for the reasons heretofore given. The third assignment is overruled. We think the trial court’s charge fully covered the issue here sought to be given in the requested

charge. The verdict of the jury renders the assignment and the refusal of the requested charge immaterial, for the reason that they found the entire consideration for the land was paid out of the separate funds of the wife. The exact amount was thereby ascertained. They did not find that she paid only a portion out of her separate estate, and therefore there was no necessity of finding the exact proportion paid out of her separate property, and the amount paid from the community estate. The charge of the court, however, as given, we regard as a clear presentation of the rules governing this case, and which were sought in the specially requested charge by appellants.

The fourth assignment is overruled for the reasons first above given.

The ease will be affirmed.

On Rehearing.

The evidence in this case, as stated in the original opinion, warranted the jury in their finding as to the cattle, 16 head of which were sold at $20 per head, making a total of $320, and three head of horses at $280, totaling $600. There can be no question but the horses were the separate property of the wife at the time of this sale. It appears these cattle were sold to the mother of the husband, together with some of his cattle — about 30-odd head in all. He took his mother’s note for $250. It is now asserted there is no evidence of the gift of this $250 by the husband to the wife. The husband had $600 of her money. The wife testifies specifically that her husband promised her, when they were selling out their property preparatory to the move, “If I would let him sell my stock, that he would let me have some land.” She looked at the land for herself, “and I selected this section that I still own;” and they sold the horses for $280, and that his mother paid $250, on the cattle, wihch was placed in the bank, and later the mother finished paying on the cattle, and paid that into the bank; that she intrusted to her husband all the proceeds of the cattle, and left to him the details of investing the money; that he sold the stock with her consent and deposited it, and she selected what she wanted done with the money. The evidence, if believed by the jury, established an agreement between the husband and wife that the proceeds from the cattle and horses should go towards paying for the land for her. The land should be hers, and that she selected it.

The fact that the husband mingled her money with his did not defeat her title to the proceeds from the sale. The fact that for part of it he took his mother’s note for $250, which was afterwards paid, did not defeat her right to the proceeds from the sale of the cattle, if they were hers. If the $600 was hers, and her husband held it as hers and for her, and made the first payment on the land out of it, to that extent the land was purchased with her separate money. Three horses were hers without question. The increase of the cattle shows a gift to the wife. They were set apart and designated as such by her husband as they increased. This shows it was not a mere agreement to change the law governing community rights, but it was a gift of property in esse. It was not such by virtue of an antecedent agreement alone, but by setting them aside to her separate use and as her property at the time. Speer on Marital Rights, § 116. The antecedent agreement made before the increase, the subsequent agreement, the agreement to place the proceeds in the land, the selection of the land, the intention expressed at the time and afterwards, authorized the jury to find it was then the understanding to make a gift of the community interest in the cattle, as well as the proceeds therefrom. Subsequent creditors, such as appellant and who were such years after this relation had been fixed by the agreement between the husband and wife, will not be permitted to attack the gift on that ground alone. Cavil v. Walker, 7 Tex. Civ. App. 305, 26 S. W. 854; Jordan v. Mareentell, 147 S. W. 357; Cone v. Belcher, 57 Tex. Civ. App. 493, 124 S. W. 149.

As to the horses which wore sold to pay the deferred payment, the same rule above set out will apply. Although there was a deferred note, it was expressly agreed between the husband and wife, when the land' was purchased, that such deferred indebtedness should be paid out of the proceeds from the sale of the wife’s horses. The evidence shows the debt was finally so paid. This vested her with the entire estate in the land.

The fact that the land was school land, and that the purchase money due that fund, will not affect the matter, as we understand the husband could so contract that the interest should be the separate property of the wife, except as to existing creditors at that time. Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383.

The motion will be overruled.
      <@=>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURX, J.

license: Public Domain

text:
    BRIGGS-WEAVER MACHINERY CO. v. PRATT.
    (No. 7442.)

    (Court of Civil Appeals of Texas. Dallas.
    March 11, 1916.
    Rehearing Denied April 8, 1916.)
    1.Trial <@=>352(1) — Presentation op Issues.
    In a salesman’s action for compensation due under an oral contract, where defendant claimed that his employment was under a written contract, the court’s statement in its formal presentation of the issues that plaintiff was suing upon an alleged oral contract, reciting its exact terms with reference to salary and commissions and how and when both were earned and payable, and that the defendant denied that, and said the contract was a written contract, omitting any reference to the terms of the written contract as pleaded, was not objectionable as confusing the jury or leading them to believe that the written contract alleged by defendant was not an issue in the case, as it was necessary to recite the terms of the oral contract, that the jury might, if finding for plaintiff, find in accordance with its provisions, and not necessary to state the provisions of the alleged written contract, since, if the jury believed that it was the true contract of payment, the verdict in view of a plea of payment, would be for defendant, without reference to its terms.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 840; Dec. Dig. <@=5352(1).]
    2. Appeal and Error <@=>1062(1) — Harmless Error — Presentation oe Issues.
    Such presentation, if objectionable, as confusing the jury or leading them to believe that the written contract alleged by defendant was not an issue in the case, was harmless, where the first interrogatory was whether plaintiff had an oral contract with defendant, or whether it was the written contract alleged by defendant.
    [Ed. Note. — For other 'cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <§=> 1062(1).]
    3. Trial <@=>350(4) — Special Issues — Function.
    In a salesman’s action for compensation under an oral contract, wherein defendant claimed that his employment was under a written contract, the refusal to submit defendant’s requested special issue as to whether defendant on or about a certain date mailed plaintiff a contract in writing covering his employment was not error, though a dependent issue as to whether plaintiff accepted such contract should have been given, under the rule that the function of special issues is to have the jury determine from the evidence the existence of the material facts sought to be established by the respective parties.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 829; Dec. Dig. <@=>350(4).]
    4. Trial <@=>351(5) — Requested Issues — Submitted Issues.
    In such action, refusing to submit defendant’s requested special issue was not error, where the court by its first interrogatory asked the jury whether plaintiff had an oral contract with defendant, reciting its terms, or whether he was employed under the written contract set out in the defendant’s pleading.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dec. Dig. <@=>351(5).]
    5. Pleading <@=>177 — Admission—Statute.
    In a salesman’s action for compensation under an oral contract, where defendants in a paragraph of its answer alleged facts which, if true, constituted an acceptance by plaintiff of the alleged written contract of employment, and in a subdivision of such paragraph charged that such contract had been delivered to plaintiff, and that he entered the service of defendant thereunder for the year involved, plaintiff’s reply denying the existence of the written contract and asserting the oral contract sued upon, and specifically denying each paragraph of defendant’s pleading setting up the written contract, save the subdivision in reference to which he admitted receiving from defendant such written contract, but denied that ho accepted it, was a sufficient denial under the Practice Act, as amended in 1913 (Acts 33d Beg. c. 127), and since repealed (Acts 34th Beg. c. 101), in force at the trial, requiring'a reply to affirmative allegations of the answer to either admit or deny them or deny any knowledge or information in reference thereto sufficient to form any belief concerning them.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 354, 355; Dec. Dig. <@=>177.]

      6. Principal and Agent <§=>89(9) — 'Compensation— Question por Jury — Acceptance oe Written Contract.
    In a salesman’s action for compensation under an oral contract, where defendant pleaded that the employment was under a written contract, held, that whether plaintiff accepted the alleged written contract and acted thereunder was for the jury.
    [Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 216, 238; Dec. Dig. <@=> 89(9).]
    7. Trial ¡@=>85 — Evidence Admissible in Part — Scope oe Objection.
    An objection to evidence admissible in part should separate the admissible evidence from that which is inadmissible, and, unless it does so, the admission of the irrelevant evidence will not constitute reversible error.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. <@=>S5.]
    8. Witnesses <@=>39S(1) — Impeachment—Contradiction.
    It is always competent for a party to contradict his adversary’s witness by showing the facts to be otherwise than as testified to by him, and so discredit the witness.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1267; Dec. Dig. <@=>398(1).]
    9. Appeal and Error <@=>1048(6) — Harmless Error — Examination oe Witnesses — Repetition oe Testimony.
    In a salesman’s action for compensation and salary under an oral contract, where defendant pleaded his employment under the terms of a written contract, and where defendant’s president on his direct and cross-examination denied the execution of the oral contract alleged by plaintiff, and where a deposition of the president’s former stenographer taken in behalf of plaintiff, in which he detailed a conversation between plaintiff and defendant’s president tending to support plaintiff’s contention, was not used, and the stenographer testified in person, the cross-examination of defendant’s president by reading the conversation as first detailed by the stenographer in his deposition and inquiring whether it occurred, which the witness denied, while not approved, because presenting the testimony of the witness to the jury twice, once by deposition and once orally, so as to give it undue prominence, was not so prejudicial as to warrant a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145; Dec. Dig. <@=> 1048(6).]
    10. Witnesses @==>398(2) — Impeachment — Contradictory Statement — Predicate,.
    In such case the statement taken from the deposition was proper and sufficient as a predicate for the contradiction of the testimony of defendant’s witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1274; Dec. Dig. <@==>398(2).]
    11. Witnesses <@=>374(2) — Credibility—Hostility.
    In a salesman’s action for compensation and salary under an oral contract, where defendant set up his employment under a written contract, a letter from defendant to another company which had inquired about the capability of the plaintiff, whom it contemplated employing, which was unfriendly to and biased against plaintiff, was admissible, as the bias or unfriendliness of a material witness toward a litigant may be shown as affecting the weight to be given the witness’ testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1202; Dec. Dig. <@=>374(2).]
    12. Appeal and Error <@=>882(8) — Party Entitled to Allege Error — Admission oe Evidence.
    In such case the defendant, which proved the contents of the letter by its president before it was offered by plaintiff, was in no position to complain of its admission.
    [Ed. Note. — For’other cases, see Appeal and Error, Cent. Dig. §§ 3597, 3598; Dee. Dig. <@=> 882(8).]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Clarence E. Pratt against the Briggs-Weaver Machinery Company, with cross-action by defendant. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Burgess, Burgess, Germany & Chrestman, of Dallas, for appellant. Israel Dreeben, of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURX, J.

Appellee sued appellant in the court below to recover a sum of money alleged to be due appellee as agreed compensation for personal services. There was trial by jury, to whom were referred certain special issues of fact. Upon the answers of the jury the court rendered judgment for appellee, from which entry this appeal is prosecuted.

Briefly stated, and without attempting to follow their mutations, the pleadings were as follows: Appellee alleged that he was employed by appellant as traveling machinery salesman for the year 1913 by oral agreement between the parties by which appellee was to receive a salary of $3,600, of which $125 was payable monthly, the balance at the expiration of the year, with the further understanding that appellee was to receive the additional sum of 5 per cent, of all sales in excess of $25,000 on which appellant realized a profit. No claim was made for the additional compensation, but it was alleged that appellant had only paid $1,375 of the agreed salary of $3,600, leaving a balance of $2,225, for which amount judgment was rendered upon the finding of the jury.

Appellant, while admitting appellee’s employment for the period and in the capacity stated, denied such employment was under the oral agreement alleged by appellee, but was, on the contrary, under a written one, by which appellee was to receive $1,500, payable $125 per month, together with the additional compensation of 5 per cent, on all sales in excess of $35,000, provided the profit on. such sales was sufficient to warrant the commission, and that he earned no commissions, and that his agreed salary had been paid, save $125,. which was tendered. Appellant also sought by cross-action to recover of ap-pellee $500 alleged overpayment on 1912 commissions, during which year appellee was in its employment. Verdict and judgment were against appellant on its cross-action.

Some issues arise on the pleading which require a more specific statement 'in that respect, and in considering the issues we will when necessary make such further statement. It may also be said for the purpose of this appeal that evidence was adduced by both sides to the controversy in support of the allegations in their pleading sufficient to sustain verdict either way.

The first issue presented is that the manner in which the trial court presented the issues made by the pleading and evidence preliminary to propounding to the jury the questions of fact to be determined by them was calculated to lead the jury to believe the contract relied upon by appellant was not an issue in the case, and to confuse them in that respect. In propounding questions of fact to the jury for their determination, the court preceded the questions with a formal statement of the nature of appellant’s suit and appellant’s defenses thereto. In such statement the court recited that appellee was suing upon an alleged oral contract, stating its exact terms with reference to salary and commissions and how and when both were earned and payable. In referring to appellant’s defenses the court said, “The defendant denies this, and says the contract was a written contract,” omitting any reference to the details of the written contract concerning salary and commission and payment thereof, as pleaded by appellant. Such omission, however, did not, in our opinion, either confuse the jury or lead them to believe that the written contract alleged by appellant was not an issue in the case. The issue in the ease and the one the jury surely understood to be the controlling one was whether appellee was employed under the oral contract upon which he sued or upon the written contract under which appellant defended; and it was necessary to recite the precise terms of the alleged oral contract relied upon by appellee in order that the jury might, in case their verdict was for appellee, find in accordance with its provisions. It was not in like manner necessary to furnish the jury with the details of the written contract in ease the jury should find for the defendant for the reason that its terms were immaterial, since, if the jury believed that the written contract was the true one, verdict would have been for appellant without reference to its terms, due to the fact that appellant claimed it had paid appellee in full thereunder, save $125, which was tendered in court.

It may further be said that, if the manner of presenting the issue is susceptible of the criticism directed against it, such action was harmless, since it appears that the jury were required to determine precisely whether the oral or written contract was the true one. By the first interrogatory the jury were asked whether appellee had an oral contract with appellant for the year 1913, stating its terms, or whether it was the written one as alleged by appellant in its pleading. It is thus clear that, whatever the jury may have thought concerning the intention of the court to ignore the written contract, as disclosed by the preamble to his charge, all doubts were dispelled when they were required to pass directly upon the question.

The next issue presented is the action of the court in refusing to propound to the jury two special issues submitted by appellant as follows:

“(4) Did defendant, on or about September 24, 1912, mail to Pratt a contract in writing, covering Pratt’s employment by defendant for the year 1913?
“(5) If you have answered question No. 4 ‘Yes,’ then did plaintiff accept said contract?”

The trial court did not, in our opinion, err in refusing to submit special issue four. All authority is agreed that the true function to be attained by special issues is to have the jury determine from the evidence the existence or not of the material facts sought to be established by the respective parties. One of the material, if not controlling, facts to be found by the jury in the instant case was whether appellee was employed under the contract alleged by him or under the one alleged by appellant. Consequently it is clear that, even though special issue 4 had been submitted, and the jury had found that appellant did mail the contract to appellee, it would not have established the fact upon which it bore, since mailing the contract would in no respect establish that appellee accepted it or agreed to its terms. Question 5, however, was pertinent and material, and presented to the jury a material and controlling issue, and, in the absence of any substantial presentation of such issue, the failure to submit the issue would have been error.

The court did, however, present the precise issue, and in a manner as fair and impartial as did the refused charge. It is to be borne in mind that it was claimed by appellee that he was employed under the oral contract alleged by him, while it was maintained by appellant that he was employed under the written contract alleged by it. Consequently the issue was which was the true contract? In submitting the issue thus made the court by his first interrogatory inquired of the jury whether appellee had with appellant for the year 1913 an oral contract, reciting its terms, or whether it was the written contract set out in the pleadings of appellant. Here in one question was fairly put the issue made by both parties, because in answer to the question the jury was compelled, in making its answer, to find that the true contract was either oral or written. True, it would have been correct to have submitted the requested issue, but it would have been further necessary to make the presentation complete for the court to have also submitted affirmatively, or in the same manner, the issue of oral contract; and it would have been error for tile court to have refused to do so, since obviously it always lias been the rule, applied both to cases submitted upon a general charge or upon special issues, that all issues of fact made by the pleading and sustained by the evidence must be affirmatively submitted to and determined by the jury. For the reasons stated, we conclude that the court did not err in the respect stated.

The nest issue is based upon the refusal of the trial court to instruct the jury to consider the written contract as the true one between the parties. This issue arises upon the Practice Act, as amended in 1913 (Acts 33d Leg. c. 127), and since repealed (Acts 34th Log. c. 101). The ground upon which the charge was predicated was the alleged failure of appellee to specifically admit or deny plaintiff's allegation that said written contract had been delivered to him. Appellant by its first amended original answer alleged in paragraph 5 thereof facts which, if true, constituted an acceptance by appellee of the alleged written contract. Subdivision 5 of said paragraph charged that such contract had been delivered to appellee, and that appellee entered the service of appellant thereunder for the year 1913. In reply to such pleading appellee denied, first, the existence of the written contract at all and asserted the oral one sued upon. Then he denied specifically each paragraph of appellant’s pleading setting up the written contract, save subdivision 5, wherein it was charged that he received it. In reference to this issue he admitted receiving from appellant in the fall 1912 the written contract, but denied that he accepted it or that it was consummated between him and the appellant. By the amended Practice Acts in force at trial of this case appellee, as plaintiff below, was required in replying to the affirmative allegations of appellant’s answer to either admit or deny them or deny any knowledge or information in reference thereto sufficient upon which to form any belief concerning them. That appellee complied with the statute we think clear. Every material fact was denied, except receipt of the written contract, which was admitted. But such admission did not entitle appellee to the requested instruction, because accompanying the admission of the receipt of the contract was a denial of its acceptance or consummation, which raised an issue of fact for the determination of the jury, one of the purposes sought to be attained by the repealed act Accordingly we feel constrained to overrule the assignment.

It is next urged by two assignments that the court erred in refusing to withdraw from the consideration of the jury the evidence of appellee adduced in support of his plea just stated that, while he received the contract mailed him by appellant in the fall of 1912, he refused to accept its provisions, and in that connection to instruct verdict for appellant.' In the midst'of the trial and upon cross-examination appellee testified that he never at any time received a written contract from appellant covering his employment for the year 1913; further, that the contract which appellant alleged was mailed to him, and which he admitted by his pleading he received in the fall of 1912, was, in fact, a contract intended to cover his compensation for the years 1911 and 1912, which had been in dispute between him and appellant. Appellant’s contention is, in effect, that having admitted receiving the contract, and not having denied that it was for the year 1913, but only that he did not accept its terms, his testimony should have been excluded, and verdict instructed for appellant. Waiving the fact that the testimony sought to be excluded was elicited by appellant on cross-examination for the evident, but entirely proper, purpose of showing a variance between appellee’s sworn answer and his testimony, and thereby reflecting against ap-pellee any consequent inconsistency, we nevertheless conclude the court’s action in refusing to peremptorily instruct verdict for appellant was correct. As we have said at another place, judgment against appellee could not properly be entered upon the pleading alone, because, without reference to the real facts, the issue of fact tendered by the pleading of appellant had been squarely met by the pleading of appellee, and there was in appellee’s pleading no admission of fact which could have supported an instructed verdict for appellant. In short, the admission was that the contract pleaded by appellant had been received, but not accepted or agreed to by appellee. It then became an issue of fact to be affirmatively proven by appellant to the satisfaction of the jury that appellee did accept same and did perform his duties during the year 1913 under its terms and provisions. The fact that appellee admitted receiving, but not accepting, a contract alleged by appellant to be one for the year 1913, and on cross-examination testified that it was as matter of fact for the years 1911 and 1912, would in no respect change the situation that the issues tendered by the pleading were met, and that appellant was bound to prove the affirmative issues so met. The contradiction or variance developed between appellee’s sworn pleading and his evidence was, of course, a matter of comment for counsel and consideration by the jury, and bore upon the credibility of the witness and the weight to be given to his testimony, rather than the right of appellee to maintain at all his suit upon the oral contract.

The next issue presented is the action of the court in admitting in evidence certain letters written by appellee to appellant and some written by appellant to appellee. In reference to this issue we have carefully examined the correspondence sought to be excluded, and, in our opinion, some of it is highly self-serving, and some irrelevant. Other portions of the correspondence are, however, clearly admissible. The objection was made to the correspondence as a whole, save, perhaps, in one instance, but in that exception a portion of the particular letter was admissible as relevant. The rule in such cases is that the objector should in his objections to the admission of mixed relevant and irrelevant testimony separate the admissible evidence from that which is Inadmissible, and unless he does so the admission of the irrelevant will not constitute reversible error. Railway Co. v. Gallaher, 79 Tex. 685, 15 S. W. 694; Railway Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894.

J. C. Weaver, appellant’s president, testified on direct and cross examination denying the execution of the oral contract alleged by appellee. On file in the cause was the deposition of A. C. Reed, formerly Weaver’s stenographer, taken on behalf of appellee, in which Reed detailed a conversation he heard between appellee and Weaver which tended to support appellee’s contention. The deposition was not used in evidence; Reed being present testifying in person. On cross-examination of Weaver counsel for appellee read the conversation as detailed by Reed in his deposition, and inquired of Weaver whether it as matter of fact occurred. The witness declared it did not. The proceeding related was objected to by counsel for appellant, and the contention is made that it was prejudicial to appellant, in that it was the means of presenting the testimony of the witness to the jury twice, once by deposition, and once orally, and hence gave same undue prominence. It is always “competent for a party to contradict his adversary’s witness by showing the facts to be otherwise than as testified to by him, and thus discredit the witness.” 40 Cyc. 2765. It is also proper and necessary to lay a predicate for the contradiction, and the statement taken from Reed’s deposition was proper and correct as such predicate, and .was not objectionable because wanting in essentials. While we do not approve the statement of counsel preceding putting the alleged conversation between Weaver and appellee that it was the statement of another witness, at the same time the impropriety is not, in our opinion, sufficient to warrant a reversal of the case. We would not be authorized in holding that the jury, because a witness was permitted to testify to the same fact twice, would for that reason alone accept his statement as true, notwithstanding another witness contradicted him on the issue to which he testified.

The next and last issue arises upon the action of the court in admitting in evidence a letter by appellant to Murray Iron Works Company of Burlington, Iowa, inquiring concerning the capabilities of appellee, whom the inquiring company contemplated employing, and the answer of the latter thereto. It is unnecessary to set out the contents of the letter. Its purport as a whole may be said to be unfriendly towards appellee, and was sufficient to support a finding of the jury that Weaver was biased against appellee. Appellant earnestly maintains that it was irrelevant and prejudicial. It may have been prejudicial, but it occurs to us that it was not irrelevant. It is a settled rule that the bias or unfriendliness of a material witness towards a litigant may always be shown, since the existence of such a state of mind affects the weight to be given to the testimony of such witness. Wentworth v. Crawford, 11 Tex. 132; Evansich v. Railroad Co., 61 Tex. 27; Trinity Dumber Co. v. Denham, 88 Tex. 203, 30 S. W. 856; Cox v. M., K. & T. Ry. Co., 20 Tex. Civ. App. 250, 48 S. W. 745; Houston, etc., Ry. Co. v. McCarty, 40 Tex. Civ. App. 364, 89 S. W. 805; 40 Cyc. 2656.

Further, appellant is not in a position to complain of the admission of the letter, for the reason that appellant proved its contents by its witness Weaver before it was offered by appellee. On cross-examination of Weaver counsel for appellee handed him the letter for identification. The witness identified the letter as one written by witness, its president, for appellant. Appellee did not then offer the letter in evidence. On redirect examination counsel drew from the witness orally the contents of the letter, together with the motives of the witness in writing it. Subsequently the letter was offered by appellee and admitted in evidence.

Finding no reversible error in the record, the judgment is affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    LAW SPRINKLE MERCANTILE CO. v. HAUSE et al.
    (No. 5614.)
    (Court of Civil Appeals of Texas. Austin.
    March 15, 1916.
    Rehearing Denied April 12, 1916.)
    1. Chattel Mortgages <@=>22 — Validity — Future Advances.
    A chattel mortgage to' secure future advances is valid and binding on the parties.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 68; Dec. Dig. <@=>22.]
    2. Chattel Mortgages <@=>138(1) — Rights of Mortgagee — Execution Purchaser.
    Property including a mule was mortgaged to secure future advances to make a crop. Thereafter the mule was sold under execution against debtor. At that' time the remaining property was more than sufficient to discharge any advances made. The mortgagee continued to make advances and then prayed foreclosure of the mortgage on the mule. Soli, that though Rev. St. 1911, art. 3744, permits a creditor, to levy on mortgaged property, yet, as it provides such levy shall be subject to the mortgage, and as the mortgagee under penalty of breach of contract was bound to continue making advances, the mortgagee took priority over the purchaser at execution sale.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 229, 231-236; Dee. Dig. <@=>138(1); Mortgages, Cent. Dig. § 325.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by the Law Sprinkle Mercantile Company against E. Hause and Arthur Cobb. From a judgment for the last-named defendant, plaintiff appeals.
    Reversed) and remanded.
    Morrison & Lewis, of Cameron, for appellant. Chambers & Baskin, of Cameron, for appellee.
   RICE, J.

Appellant, a private corporation, brought this suit against appellee Hause to recover a balance on a note and to foreclose its mortgage on certain mules and other personal property secured thereby, and against Arthur Cobb, on the ground that he had converted one of the mules so mortgaged to his own use, praying a foreclosure against him on said mule. John M. and J. D. Hefley Company, a private corporation, intervened, alleging that it had purchased the mule in question at execution sale against E. Hause and had sold it to Cobb, warranting title thereto. Cobb answered, admitting* his possession of the mule in controversy, having bought the same at said execution sale, but claimed that his title thereto was superior to appellant’s mortgage lien, because the mortgage was given for future advances, and that at the time of the levy of the execution appellant had not advanced to Hause the full amount mentioned therein, but had only advanced him the sum of $45, and at that time the other property covered by the mortgage was of sufficient value to have paid appellant what Hause then owed it, and asserted that,, after notice of such levy to appellant, it was not protected by said mortgage as to future advances.

There was a nonjury trial in which judgment was rendered in favor of appellant against Hause for the sum of $261.65 and interest, with foreclosure on all of the mortgaged property except the mule in question, and as to it awarded judgment in Cobb’s favor, quieting his title thereto, and decreeing that the Hefley Company go hence without day, from which judgment appellant has prosecuted this appeal.

The facts show that on January 3, 1914, Hause executed and delivered to appellant his note for the sum of $300, due on or before September 15, 1914, and to secure the same, as well as all other advances that might be made to him by appellant during said term, he mortgaged to it his entire crops of the year 1914, as well as certain stock, including the Cobb mule, the mortgage declaring that it was given in order to secure the payment of the above indebtedness and the amount of such other advances, whether of money, merchandise, or other property, that might be made to him by appellant, or their assigns, during the year 1914. This mortgage was forthwith filed for record with the county clerk of Milam county.

On December 29, 1913, the Hefley Company recovered a judgment against Hause for $44.-51 and costs of suit, upon which an alias execution was issued and levied on the 13th of January, 1914, by the sheriff upon said mule, and after legal notice the same was sold at public auction and purchased by the Hefley Company on the 26th day of January, 1914, the execution and sale being in all respects regular. On the 13th of January, 1914, the Hefley Company notified appellant that said mule had been seized under execution, at which time Hause was indebted to appellant in the sum of $43.10, which indebtedness was incurred after the 3d of January, 1914. The property mortgaged by Hause, other than the mule seized under execution, was on January 3d, and is now, amply sufficient to satisfy the sum of $43.10, then due by Hause to appellant; but the balance of the mortgaged property which remained on hand when judgment was rendered in behalf of appellant was not sufficient to satisfy same. The Hefley Company purchased said mule at the execution sale and thereafter sold it to Arthur Cobb.

The appellant brought this suit against Hause during the February term, 1914, of the county court, and Hause filed his appearance thereto at said term. The court found that when the mortgage was given on the 3d of January, 1914, appellant agreed to furnish Hause supplies to make his crop for that year, and that after said levy and execution sale the appellant did proceed to furnish Hause the further sum of $522.47 in supplies to enable him to make and harvest said crop, and that all the payments by Hause to appellant thereon were the proceeds of said crop which had been begun by Hause before the levy of said execution; and further found that such supplies were necessary to enable Hause to make the crop, and that he could not have made it without said advances; but it further found that if appellant had immediately ceased furnishing Hause supplies when notified of the levy of the execution, there was enough property described in the first-mentioned mortgage to have paid the debt for advances which had been made up to that time. It was likewise shown that E. Hause was totally insolvent, and that the mortgaged property was not sufficient to satisfy appellant’s debt.

By its first assignment appellant urges that the court erred in failing to award it a foreclosure of its mortgage on the mule in question, for the reason that the same was acquired and forthwith duly recorded before the levy of the execution under which Cobb claimed, when the value of the property subject to his mortgage was insufficient to pay its debt, insisting by its proposition thereunder that'when it and Hause entered into the agreement whereby it bound itself to,furnish him supplies for the year 1914, in order to enable him to make a crop, and as security for such contemplated advances, he gave appellant a mortgage on certain stock, each party had a right to demand of the other compliance therewith; and a third party, at a later date and before the expiration of the contract, could not, by levying execution on such mortgaged property and giving notice thereof, deprive appellant of the right to make further advances under its mortgage, with the right to look to the mortgaged property as security therefor. While the contention of appellee is that appellant, after the notice of the levy was given -it, had no right to make further advances to Hause, and if it did, was not protected by the mortgage.

Both of these contentions find support in the authorities. In this state it is no longer an open question that a mortgage may be given to secure future advances. See Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684. The court found that appellant agreed to furnish Hause during the year 1914 all advances and supplies necessary to enable him to make a crop for said year, and that it had furnished such advances and supplies. Under said agreement was it protected in so doing? Its mortgage was duly executed and forthwith recorded prior to the levy. In Jones on Mortgages, vol. 1, § 373, it is said:

“The rule that a mortgage for definite advances has priority in all cases has strong support in recent discussions. Notwithstanding all the distinctions and refinements which have been introduced into the law of this subject by the many conflicting adjudications upon it, there is strong reason and authority for the rule that a mortgage to secure future advances, which on its face gives information enough as to the extent and purpose of the contract, so that any one interested may by ordinary diligence ascertain the extent of the incumbrance, whether the extent of the contemplated advances be limited or not, and whether the mortgagee be bound to make the advances or not, will prevail over the supervening claims of purchasers or 'creditors, as to all advances made within the term of such mortgage, whether made before or after the claims of such purchasers or creditors arose, or before or after the mortgagee had notice of them. If the mortgage contains enough to show a contract between the parties, that it is to stand as a security to the mortgagee for such indebtedness as may arise from the future dealings between the parties, it is sufficient to put a purchaser or incumbrancer on inquiry, and if he fails to make it, he is not entitled to protection as a bona fide purchaser. Such a mortgage is considered as good against subsequent incumbrances to the full amount of the advances provided for, and the mortgagee is held to have a right to rely upon it, and to make such advances without regal’d to what other incumbrances may afterwards have been put upon the property.”

To the same effect is Witczinski v. Everman, 51 Miss. 841; 5 Ruling Case Law, pp. 420, 421, § 51; Divver v. McLaughlin, 2 Wend. (N. Y.) 596, 20 Am. Dec. 663; Lovelace v. Webb, 62 Ala. 271; Cob-bey on Mortgages, vol. 1, § 143. For other authorities discussing the subject, see Willis v. Sanger, 15 Tex. Civ. App. 655, 40 S. W. 229; Groos & Co. v. Chittim, 100 S. W. 1006.

It would be an anomaly to hold, we think, that appellant, being bound under the agreement to furnish Hause all necessary future advances to make the crop, and y,et say that the Hefley Company, by reason of the notice of the levy, could prevent appellant from relying upon said mortgage to secure it for so doing. If under the obligation imposed by the agreement above referred to, appellant is bound to furnish all necessary advances, thereby giving to Hause the power to enforce compliance therewith, then we think it follows that appellant would have the' legal right to enforce Its mortgage on the property covered thereby, in order to secure such advances. Being bound to comply with its obligation entered into prior to the levy, a third party, such as the execution creditor in this case, could not be allowed, by levy upon the mortgaged property, to prevent appellant from complying with its contract and holding-the mortgaged property as security therefor.

Nor do we think appellant’s right is in any sense restricted or abridged by reason of article 3744, R. S. 1911, which permits a creditor to levy upon mortgaged property, because such statute provides that such levy and sale must be subject to said mortgage. This, we take it, means it must be subject to the mortgage in all respects, so that the purchaser must be held to take the property subordinate to the right already fixed by the mortgage. In the instant case Hause, we think, by virtue of the agreement, had the right to demand a compliance with its terms, and require appellant to furnish all supplies that might be necessary to enable him to make a crop during the year 1914; and that a failure so to do on the part of appellant would have given him a right of action for breach of contract; and, so believing, we hold that it was appellant’s duty under the law, irrespective of such levy and notice, to continue to furnish supplies to Hause in accordance with the terms of the agreement; and, having done so, as found by the court, it was entitled to a foreclosure on all the property mortgaged to secure it in so doing, for which reason we hold that the court erred in failing to render judgment in its behalf foreclosing the mortgage on the mule.

We therefore reverse the judgment, and remand the case for a new trial not inconsistent with the views herein expressed.

Reversed and remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    PATTERSON et al. v. KIRKPATRICK et al.
    (No. 1589.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 15, 1916.
    Rehearing Denied March 28, 1916.)
    1. Brokers <@=>78 — Real Estate Brokers —Right to Commission in Money.
    Where landowners, employing realty brokers to sell their property, contracted to pay such brokers a commission in cash if they secured a purchaser for cash, and in the purchase-money notes if the sale should be on credit, and such brokers sold for notes, which the landowners thereafter sold to a third person, such sale, though the owners intended to repurchase the notes and deliver them to the brokers, rendered the owners hable in assumpsit for the brokers’ commission in money, since, where a debtor fails to abide a stipulation to deliver a specific article, the neglect or omission operates to make the original promise to pay compensation an absolute engagement for the payment of money.
    ^ [Ed. Note. — For other cases, see Brokers. Cent. Dig. § 99; Dec. Dig. <@=78.]
    2. Brokers <@=89 — Real Estate Brokers— Right to Commission in Money.
    Realty brokers, who contracted with landowners to sell for a commission payable in the purchase-money notes if such were taken, to whom the landowners, after sale on credit, tendered the commission in notes, which were refused, were not entitled to recover a money judgment for commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 130; Dec. Dig. <§=>89.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Suit by T. B. Patterson and others against Lee Kirkpatrick and others. From a judgment for defendants, plaintiffs appeal.
    Judgment reversed and rendered for plaintiffs.
    The appellants, real estate brokers, sued the appellees to recover reasonable commissions for services rendered in effecting the sale and exchange of two tracts of land. The appellees pleaded, as material to state, that it was agreed and understood “that any commission earned or received by the plaintiffs upon said transaction would be collected out of the proceeds of the notes received in the transaction, and that defendants have never denied the plaintiffs’ right to collect their commission, out of said notes, but deny any agreement to pay them any commission, or obligate themselves to do so, in any other way.” The appellants, by supplemental petition, averred that appellees had sold and disposed of the notes received as a part of the consideration for the exchange of the lands, and were estopped from now claiming and asserting that they are not liable in money for the commissions. Appellees made reply that they had tendered and offered to deliver the notes to appellants in discharge of the debt, and that they had refused them? and that thereafter appellants had disposed of them, but were able to secure their return and deliver and transfer them in furtherance of the agreement.
    The evidence establishes that appellees listed two separate tracts of land with appellants Patterson, Deal & Turk for sale or trade, and that they found a separate purchaser for each tract. The land did not sell for cash. The purchasers assumed the mortgage indebtedness then against the land, and executed notes for the difference, except in the 91-acre tract there was also paid $100 cash. According to the evidence of appellants, they were to be paid for their services a reasonable commission in cash, and appellees had paid them only $20. Appellants testified, and it was not disputed, that a reasonable commission on the 199%-acre tract was $693, and a reasonable commission on the 91-acre tract was $295.75, less the $20 paid. The appellees did not dispute the fact that appellants rendered the services in disposing of the land, but claimed that the agreement respecting compensation was:
    “If the land sold for money, we would pay the commission in money; if it sold on credit, they (appellants) would have to take part of the notes which we received in payment of the land.”
    The jury made the findings, on special issues, that appellees agreed to pay appellants a reasonable commission “out of the proceeds of sale if by notes commission in said notes,” and that the aggregate amount of $968.75 as claimed by appellants was a reasonable amount. It appears that appel-lees tendered and offered to deliver to the appellants part of the notes obtained on each tract as payment of the debt owing them, but that the appellants refused to accept same. After appellants refused or declined to take tne notes as pay, the appellees, according to the undisputed evidence, sold to a third person the notes obtained on the sale of the 199%-acre tract. It does not appear that the appellants have sold and do not own the notes obtained on the sale of the 91-acre tract. It does not appear whether or not the land notes, or any of them, are due and payable. The sale of the 91-acre tract was a separate and distinct transaction, it appears, from the sale of the 199%-acre tract.

      Tlie court rendered judgment on the verdict in favor of appellees.
    Wear & Frazier, of Hillsboro, for appellants. Morrow & Morrow, of Hillsboro, for appellees.
   LEVY, J.

(after stating the facts as above). According to the evidence, the only controversy between the parties was respecting the mode of payment of the commissions earned by appellants in effecting the sale. The jury made the finding that it was the understanding of the parties that appellees might make payment of the compensation for the services of appellants in notes obtained as consideration for the sale of the lands. And the evidence conclusively, even admittedly, shows that appellees had sold and delivered to a third person all the notes obtained from the sale of the 199%-acre tract. The fact of the sale by appellees of the notes mentioned has the legal effect attaching, it is believed, of making the contract of the parties, respecting the sale of the 199%-acre tract, payable in money. It is the rule that, where the debtor fails to abide the stipulation to deliver the specific article, the neglect or omission operates to make the original promise to pay compensation an absolute engagement for the payment of money. Baker v. Todd, 6 Tex. 274, 55 Am. Dec. 775; Chevallier v. Burford, 1 Tex. 503; D'eel v. Berry, 21 Tex. 463, 73 Am. Dec. 236; Ward & Martin v. Lattimer et al., 2 Tex. 245; Grant v. Burleson et al., 38 Tex. 214; Short v. Abernathy, 42 Tex. 94; Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410. And upon the fact of sale of the notes being a legal default the appellants were entitled to demand money and receive it on their petition in assumpsit for services rendered. The purpose and intention of appellees to repurchase the notes and deliver them to appellants would not avail as a defense against a moneyed judgment, for by the sale appellees lost the right to make payment in notes, and such right would not be restored except by express consent of appellants.

It not appearing, though, that appellees have sold the notes obtained for the 91-acre tract, and it appearing, as it does, that they have' tendered them on the compensation owning for that particular sale, the right of appellees to pay such demand in notes and not money would continue, and conseguently appellants would not be entitled to recover a moneyed judgment in this ease for the sale of the 91-acre tract.

The judgment is reversed and here rendered in favor of appellants for $693, and this judgment to be without prejudice to enforce rights if legally .necessary, respecting the agreement for compensation for sale of the 91-acre tract. The appellees will pay all costs.
      ^s?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    ALAMO AUTO SALES CO. v. HERMS.
    (No. 5627.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 15, 1916.
    On Motion for Rehearing, April 12, 1916.)
    1. Sales <&=>38(1) — Buyeb’s Right to Rescind — In juey.
    Where the purchaser of a motor truck failed to show injury by fraud, if any, in the seller’s representations as to the capacity of the truck, he was not entitled to rescind.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 65; Dec. Dig. <®^38(l).j
    2. Sales <&aol26(l) — Buyer’s Action to Rescind — TIme.
    The buyer of an auto truck, even if the seller fraudulently represented its .capacity, after using it for six or seven months and negligently and recklessly injuring it, had no right to rescind the contract of purchase.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 313, 315; D'ee. Dig. @^126(1).]
    3. Sales <@=»52(7) — Buyer’s Action to Rescind — Verdict.
    In a suit to rescind an executed contract for the purchase of a motor truck on the ground of the seller’s misrepresentations as to its capacity, verdict for plaintiff held without support in the evidence.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 149-144; Dec. Dig. <§=>52(7).]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by 'Chris Herms against the Alamo Auto Sales Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Terrell, Walthall & Terrell, of San Antonio, for appellant.
   FLY, O. J.

This is a suit to rescind a contract of purchase of a motor truck brought by appellee against appellant, and for the cancellation of six notes aggregating $650, and to recover $900 already paid on the purchase price of the truck. The ground of rescission was that the truck was represented to be a one-ton truck, and would with safety and ease carry 3,000 pounds, and’ that the representation was false. The cause was submitted on special issues to a jury, and on the answers thereto judgment was rendered that appellee recover of appellant $900, less the sum of $111.90, with 6 per cent, interest for the cancellation of the notes and a chattel mortgage on the truck. The truck was adjudged to appellant. The effect of the judgment was a rescission of the entire contract.

The evidence shows that appellee bought a motor truck from appellant, under representation that it was a one-ton truck. A number of the notes given for the purchase money were paid, and, after using the truck for seven months or more, it was then concluded by the appellee that he would rescind the sale. The truck was bought on February 4, 1916, and he used it until August, when he broke a spindle and carried it to the shop of appellant. Appellee never contemplated a rescission of tlie contract until appellant refused to allow Mm to take tlie truck from tlie shop until lie paid a certain account. He stated:

“If I could have agreed with them on the open account, I would have taken the car out.
I would know exactly then what I could haul on it, 2,000 pounds.”

The evidence showed heyond controversy that the rescission was sought because ap-pellee did not want to pay his account to appellant. TMs he stated time and again in his testimony. He stated:

“I was told that I would get a ton truck, and it did have that. The truck pulled 2,500 pounds all right.”

There was no evidence tending to show that the truck would not transport all that appellant represented that it would. Appel-lee testified that it would haul as much as 3,000 pounds.

It was alleged in the petition:

“That prior to and at the time of the sale to, and purchase by, this plaintiff of said truck, the defendant, acting through its duly authorized agents and representatives, represented to this plaintiff that the said truck was a one-ton truck. That this plaintiff explained to the agents of said defendant the purposes and uses which his business required and demanded the truck should serve, and as an inducement to this plaintiff to purchase and take the truck, which he did purchase and take, the said defendant, through its said representatives, and who were by it fully authorized, and who were acting in the apparent scope of their authority, represented to this plaintiff that the truck was rated as a one-ton truck, but that it would, with safety and ease, carry 3,000 pounds.”

The testimony of appellee showed that the truck was rated as a one-ton truck, and that it would carry 3,000 pounds. While he stated that the catalogue showed that the maximum capacity of the truck was 2,000 pounds, he never objected to it on account of its lack of power, but because he did not want to pay the account To escape payment of the account he sought a rescission of his contract. He wanted a truck that would haul 20 cans of milk, and he did not testify that the truck failed to haul that number of cans. He obtained exactly what he contracted for.

If there had been any fraud in the representation as to the capacity of the truck, the evidence failed to show that appellee was injured thereby, and he would not on a misrepresentation which did not damage him be entitled to rescind the contract. Lemmon v. Hanley, 28 Tex. 226; Bremond v. McLean, 45 Tex. 17; Moore v. Cross, 87 Tex. 557, 29 S. W. 1051.

If the testimony had shown that there was fraud in the representations as to the truck, it cannot be said that appellee, after using the truck for six or seven months, and had injured the veMele very much, would have the right to go into a court of equity and demand a rescission. He made no offer to reimburse appellant for the use of the machine and for the injuries recklessly and negligently inflicted on it.

The time that appellee used the truck before offering to return it was utterly unreasonable if he had discovered any fraud at or near the time when he purchased it. He found nothing, however, at fault with the power of the truck, which hauled any and all things he desired to transport, and there is not one word of testimony that tends to show that the truck would not do everything that appellant said it would. It was only after the amount of the account was demanded-of him that he obtained a catalogue and ascertained that it stated that the truck’s moving capacity was from 1,500 to 2,000 pounds. It in no way contradicted the representation that the car was a one-ton truck. Appellee testifies that it would transport more than a ton. He obtained all he contracted for, and his contract will not be rescinded. There was an utter absence of testimony to sustain the answers of the jury, and a verdict should have been instructed for appellant.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit, and that appellant recover of ap-pellee the sum of $844.08, with interest at 8 per cent per annum on $770 of that amount from January 17, 1915, and at 6 per cent, per annum on the sum of $74.08, being the amount of the open account, from the same date, and all costs in this behalf expended.

On Motion for Rehearing.

The judgment on the open account will be corrected so as to be for $111.90, instead of $74.08, and a chattel mortgage lien will be foreclosed on the truck in favor of appellant. Except as herein mentioned, the judgment will remain as originally rendered by this court.
      <§n»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CARVER BROS. v. MERRETT et al.

    (No. 1556.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. Venue <§=>27 — Suit .by Bona Fide Holder of Account — Statute.
    Under Rev. St. 1911, arts. 1830, 1842, providing that no inhabitant of the state shall be sued out of the county in which he has his domicile, except in certain cases, and that several obligors to any contract may be joined, a bona fide holder for value of an account could bring suit thereon against a bank, assignor and guarantor of the account, jointly with the parties primarily liable thereon, in the county of the residence of the bank, though the parties primarily liable were resident elsewhere.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 41; Dec. Dig. <@=>27.j
    2. Judgment <§=>589(2) — Bab—Recovery upon Tort and Contract.
    The assignor of an account could not recover thereupon, and also for a tort growing out of the same transaction, as it would constitute a double recovery.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 1062-1065, 1101; Dec. Dig. <@=> 589(2).]
    3. Venue <@=58 — Suit foe Conveksion — Statute — “Trespass. ’ ’
    Under Rev. St. 1911, art. 1830, subd. 9, providing that, when the foundation of a suit is some crime, offense, or trespass for which a civil action in damages may lie, the suit may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile, where the agent of a copartnership converted securities at Titus county which the partnership had pledged with a bank, and which the bank had returned temporarily to the agent for the special purpose of making up his accounts, the as-signee of the bank could sue the copartnership in Titus county, though such copartnership was resident elsewhere, for damages for the conversion, since a pledgee may maintain an action of trover against his pledgor for a conversion of collateral which the former has returned to the latter for a special purpose, while the act of the copartnership’s agent was a “trespass” within the statute; the taking and appropriating having been intended, and not merely negligent.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. <©=38.
    For other definitions, see Words and Phrases, First and Second Series, Trespass.]
    4. Pleading <@=3111 —Plea of Privilege — Burden of Proof.
    In a suit for conversion, plaintiff was bound to overcome a plea of privilege by proof that the conversion was committed in the county of suit.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. <S=3lll.]
    5. Appeal and Error <@=>1170(9) — Harmless Error — Instruction—Rule of Court.
    Under rule 62a of the Court of Civil Appeals (149 S. W. x), prohibiting reversal for harmless error in a suit for conversion, where defendants pleaded privilege, a charge technically incorrect in placing the burden of proof respecting the plea on the defendants, but practically putting the burden of proof on plaintiff, did not warrant reversal.
    [Ed. -Note. — For other eases, see Appeal and Error, Cent. Dig. § 4543; Dec. Dig. <@=> 1170(9).]
    6. Judgment <@=>256(5) — Support by Verdict.
    In suit by the assignee of a bank which guaranteed collection against it and its debtor, where, under the charge peremptorily directing verdict against the bank for plaintiff, the bank having confessed liability on its guaranty before the jury could find for the bank against the other defendants, they were required also to find for plaintiff against both the bank and defendants, the action of the court in entering judgment for plaintiff against the defendants other than the bank upon a verdict that the jury found for the plaintiff on the merits of the case against the bank, and further found for the bank against the other defendants, was proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 451; Dec. Dig. <@=>256(5).]
    7. Principal and Agent <§=3159(1) — 'Tort of Agent — Con versio n ,
    Where the agent for dealer's in cotton, acting within the scope of his authority, obtained from the bank with which they had been pledged by the dealers cotton tickets to make a list, and thereafter refused to deliver possession of the tickets to the bank, the dealers were liable to the bank for damages occasioned by the refusal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 599-605; Dec. Dig. <&=» 159(1).]
    8. Principal and Agent <@=3193 — Diability for Agent’s Tort — Question for Jury.
    In suit by the assignee of a bank against the bank and cotton dealers whose agent converted from the bank cotton tickets pledged by the dealers, whether the bank was negligent in letting the agent have access to the tickets was a question for the jury.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 721%-726; Dec. Dig. <§=3 193.]
    9. Principal and Agent <§=3193 — Liability for Agent’s Tort — Question for Jury.
    In suit by the assignee of a bank against the bank and cotton dealers whose agent converted from the bank cotton tickets pledged by the dealers, whether the agent, in securing possession of the tickets, was acting within the scope of authority actually conferred upon him, held for the jury.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 721%<-'¡’26; Dec. Dig. <§=3
    10.Principal and Agent <@=399 — Scope of Authority.
    . Where cotton dealers advised a bank that P. would “represent us in your city,” the bank had the right to construe the language to mean that the dealers had authorized P. to do everything usually, customarily, or necessarily done by a nonresident cotton buyer’s local agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 254 — 261; Dee. Dig. <§=3 99.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Suit by John Merrett against Carver Bros., a copartnership, and another. From a judgment for plaintiff, the named defendants appeal.
    Affirmed.
    See, also, 155 S. W. 633, 174 S. W. 929.
    The suit is by appellee, Merrett, seeking to recover the sum of $1,773.39 against appellants, a copartnership, and the Merchants’ & Planters’ National Bank. The petition alleged that Carver Bros, were during the fall of 1911 cotton merchants, with their residence and principal place of business in Collin county, Tex., and operating and buying and selling cotton throughout many counties in Texas, including Titus county; that on September 27, 1911, a contract was entered into between Carver Bros, and the bank by the terms of which the bank agreed to pay for cotton bought by them through their agent and representative, and Carver Bros, ■agreed and promised to refund to the bank any and all sums so advanced, together with 10 per cent, interest per annum, and the costs of yardage and weighing; that during that season the bank paid out $67,417.31, including interest, and that Carver Bros, had repaid $65,646.28, leaving a balance of $1,-773.39 still due the bank; that the bank transferred and sold this account to plaintiff, and guaranteed its payment. A second count of the petition alleges substantially that the bank held as collateral and as a pledge to secure the payment of the account of. $1,773.-39 44 hales of lint cotton, property of Carver Bros., and of the value of $45 per bale, which was represented by cotton tickets issued by Hammond & Culver and in the possession of the bank; that the agent of Carver Bros, came into possession of the cotton tickets and cotton while acting in the scope and apparent scope of his authority and in the course of his employment, to prepare shipping lists, make reports, and cheek the cotton, and after getting possession of the cotton tickets and cotton for the temporary purpose such’ agent and Oarver Bros, failed and refused to return the same, and appropriated and converted the cotton and tickets; that this was done in Titus county; that the bank sold and transferred this claim for damages to plaintiff, and guaranteed its payment. The bank by its answer admitted liability as a guarantor of the account and the claim for damages, and prayed for judgment over and against; Carver Bros, for the same judgment that might be rendered against it. Appellants, Carver Bros., first answered by plea of privilege to be sued in the county of their residence. A jury being demanded, the plea of privilege was submitted to the jury along with the merits of the case. Subject to the plea of privilege appellants answered that they were not liable for the 44 tickets nor indebted in the sum sued for; that they had received only. 1,432 bales of cotton and cotton tickets from the bank; that the bank was not authorized to pay for any cotton except with the cotton tickets attached; that the bank was negligent in respect to the cotton tickets, causing damages to appellants to the amount sued for; and in offset. A jury rendered a verdict against appellants’ plea of privilege and against appellants for damages.
    The facts proved on the trial show that Carver Bros, reside at Earmersville, Collin county, Tex., and were during the years 1911 and 1912 engaged in buying and selling cotton. In September, 1911, Oarver Bros, addressed the following letter to the cashier of the Merchants’ & Planters’ National Bank of Mt Pleasant:
    “Dear Sir: This will introduce to you Mr. J. W. Pierce, who will represent us in your city, and we hope he will be able to buy some cotton on the streets for us, and we would like for you to pay for cotton bought by him for us with tickets attached for us, and we will ship out and give you exchange on either Sulphur Springs or Pittsburg. We do not know whether it is your custom or not to figure the tickets on street cotton for the buyer. If you will do this, we will appreciate it, and it will also help Mr. Pierce. Any favors shown' him will be greatly appreciated by us.”
    The bank agreed to this proposal, and entered into an agreement with Carver Bros, to the effect that they would pay for such cotton as' J. W. Pierce would buy for the account of Carver Bros, when Pierce placed with or caused to be placed with the bank tickets issued by cotton weighers showing the weight of the cotton and the price to be paid therefor. It appears without dispute that these tickets were to remain with the bank as collateral security for the money advanced in paying for the cotton. Pierce then began buying cotton for the appellants, and during the season purchased a large number of bales, all of which seem to have been paid for by the bank. Pierce himself had no interest in the cotton. In buying the cotton his custom was to give to the seller a slip of paper or ticket on which was noted the weight, price paid, and the weigher’s number. He also noted the letters “O. K.” and signed his initials. These slips were presented to the bank by the seller, and the amount called for was paid and charged to Oarver Bros. It was Pierce’s duty at stated intervals to make reports to his employers of the amount and quality of cotton bought by him. He was also expected to ship out certain quantities and grades of cotton as directed by his employers. Por the purpose of performing these duties he was given access to the tickets held by the bank. 1-Ie used them in making up his invoices to be sent to Ms employers, and was also permitted to use them in making out shipping lists, and, for the purpose of obtaining the bales from the weigher, was allowed to withdraw the tickets corresponding to the cotton he desired to ship. When shipped he would deliver to the bank, in lieu of the tickets taken out, bills of lading. These were attached to drafts upon the purchasers; and in that way the bank was reimbursed for advances made. This manner of doing business continued until some time in December, when, for reasons not disclosed, Pierce quit the service of the appellants, and was succeeded by an agent named Walter. Walter, in behalf of the appellants, in connection with the officers of the bank, checked up the number of tickets the bank had on hand, and found that 44 of them were missing. The evidence indicated that Pierce had appropriated the tickets. Testimony was introduced by the bank showing that none of the employes who had access to the tickets had appropriated any of them. ■ There was also testimony tending to show that the officers of the bank exercised proper care to safely keep the tickets, and that no person had an opportunity to appropriate them except Pierce. Pierce, it appears, received the benefit of 30 bales of the cotton, and Oarver Bros, received no benefit therefrom except the sum of $400 paid by the insurance company. It appears that it was necessary, in the handling of Carver Bros.’ cotton at Mt. Pleasant, that certain charges of yardage, weighing, and storing should be paid for, which was done by the bank at the instance and request of Oarver Bros.’ agent.
    The evidence authorized the findings that Pierce obtained possession temporarily of the ■cotton tickets and cotton held as collateral security by the bank, in furtherance of the service of Carver Bros., and within his authority of agency so to do, and then converted the same, and that the collaterals were h'eld by the bank to secure a debt due by Carver Bros, in the sum of $1,773.39, and that the bank was not guilty of negligence in handling the tickets or cotton. The bank transferred its claim for damages against Carver Bros, to appellee, Merrett, who resided in Titus county, and in the transfer guaranteed the payment of the claim.
    S. P. Pounders and J. M. Burford, both of Mt. Pleasant, for appellants. T. C. Hutch-ings, of Mt. Pleasant, and L. E. Keeney, of Texarkana, for appellee.

      Application for writ of error pending in Supreme Court

   LEVY, J.

(after stating the facts as above). By the first, second, and third assignments of error, which may be Here considered conjointly, the appellants urge that the legal effect attaching to the evidence respecting the ground of venue is to deny the legal right to appellee, Merrett, to bring suit against the appellants in Titus county, and that they were entitled to have the case transferred for trial to the district court of Collin county, the county of their residence. It is believed that the assignments must be overruled. Appellee, Merrett, sued the appellants in two counts: (1) Upon an account for money advanced and paid by the bank; and (2) for damages laid in conversion in Titus county of collateral security pledged to the bank to secure the payment of the account. The bank was joined as a party, and sued as assignor and guarantor of both the account and the claim for damages. Being a bona fide holder for value of the account, as appellee Merrett claims he was, he may bring the suit thereon against the Bank, as assignor and guarantor of the account jointly with appellants, who were primarily liable on the account, in the county of the residence of the bank, which was in Titus county. Article 1842, R. S.; article 1830, subd. 4, R. S.; Improvement Co. v. Bank, 136 S, W. 558, and authorities there cited. But it is entirely immaterial and unnecessary to decide in this appeal, it is believed, the question of whether or not the transfer of the account to appellee, Merrett, was real and in good faith for value, for the charge of the court did not permit nor authorize a recovery against appellants upon the account, but only for damages, for the tort of conversion. And the charge of the court made the venue of the suit in Titus county dependent upon the sole ground of the tort’s being committed there and appellants’ being responsible therefor. The charge in respect to venue is:

“If you find from the evidence that said Carver Bros., and each of them, were resident citizens of Collin county, Tex., at the time this suit was filed, and have been continuously, and are now, and were not then nor have been since residents of Titus county, you will find for the | defendants Carver Bros., unless you find for the plaintiff against them on one or the other of the next following paragraphs of this charge.”

The next two paragraphs following allowed venue in Titus county upon a finding that there was a ■ conversion of the collateral security by appellants through their agent and representative in Titus county within the scope of the agency, and upon a finding that the bank did not negligently permit the agent to abstract the security. The charge would therefore seem to show that the court himself concluded that venue did not lie in Titus county against the appellants on the account, or that election was made by appellee to rely for recovery only upon the count for tort. The appellee may not recover upon both the account and the tort, for it would be double recovery, and it was a case that appellee should elect to recover upon one of the counts. So eliminating, as the present record does, any question of venue respecting that count in the petition on simple account for money advanced and paid, the precise question would be whether the suit was maintainable against appellants in Titus county, as the proper county of venue, for damages for the alleged conversion of the securities. Article 1830, subd. 9, allows suits to be brought in the county “where the trespass was committed,” when “the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie.” Jones’ Pledges and Collateral Securities (2d Ed.) § 45, lays down the rule as follows:

“A pledgee may maintain an action of trover against his pledgor for a conversion of collater-als which the former has returned to the latter for a special purpose. * * * After the special and temporary purpose for which a pledge has been redelivered to the pledgor has been accomplished, the pledgee may recover it or its value by action.”

See, also, 2 Cooley on Torts (3d Ed.) pp. 859, 866.

That sufficiently shows that a civil action in damages may lie in the facts. And it is believed that “trespass,” as .meant by the statute and defined by the cases, includes the act of conversion here present. Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618; Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645; Ward v. Odem, 153 S. W. 634. In a conversion the taking and appropriating are intended, and not merely negligent. And withholding lawful possession of the pledgee is, while it continues, an injury by force, constituting it a trespass on possession of the owner. 2 Cooley on Torts (3d Ed.) p. 839. Thus all the elements of a “trespass,” as defined, are present, and, further, the criminal statutes make punishable the taking and appropriating of property pledged from the pledgee entitled to possession. Articles 1335, 1336, 1332, Cr. Stat. of 1911. Consequently, if “trespass,” as used in the statute, could only be regarded as comprehending matters legally kindred to “offense or crime,” which are the words associated with it in the sentence, the conversion here by the agent would be within the class of “trespass” intended by the statute pertaining to venue. This would be in line with, rather than opposed to, the rule of construction followed in Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, Ann. Cas. 1914B, 368. It is quite true that the appellants themselves could not be held criminally responsible for the trespass here. But appellants, acting through an agent, were, in legal principle, bound to see that no one suffered legal injury through the agent’s wrongful act done in their service within the scope of the agency. The agent committed the act and wrong in Titus county. The injury done to appellee and the bank by the act or wrong was in Titus county. And upon the ground of being made legally chargeable with the conduct of their agent, acting within the real or apparent scope of his authority, the appellants could be sued for the damages, it is thought, in the county where the trespass was committed. Connor v. Saunders, 9 Tex. Civ. App. 56, 29 S. W. 1140; Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331. The question of whether the act was committed by the agent within either the real or the apparent scope of his authority was a matter of ultimate decision here for the jury, and their finding that it was in either respect would fix venue on the principal where the trespass was committed.

While the charge was not technically correct in placing the burden of proof respecting the plea of privilege on the appellants (Holmes v. Coalson, 178 S. W. 628), yet, it is concluded, the error does not in the record warrant reversal; for the charge practically put the burden of proof on the plaintiff. The charge required, the jury to find for appellants on their plea “unless you find for plaintiff on one or the other of the next following paragraphs.” Rule 62a (149 S. W. x).

The verdict of the jury reads:

“We, the jury, find for the plaintiff on the merits of the case against the defendants Merchants’ & Planters’ National Bank to the amount of $1,773.39. We further find for the said Merchants’ & Planters’ National Bank over against Carver Bros, to the amount of $1,-208.77.”

The point is made by proper assignments that the verdict did not authorize a judgment in favor of plaintiff, Merrett, against Carver Bros, as was entered by the court. The manner in which the issues were submitted and the jury directed the verdict necessarily involved a finding on the liability of appellants in favor of appellee, and should be so construed. The charge peremptorily directed the jury to return a verdict against the bank in favor of appellee. This was proper because the bank confessed liability on its guaranty of the claim for damages assigned by it to plaintiff. And the charge further directed the jury as follows:

“If you find for the plaintiff on the merits of the case against the defendant Merchants’ & Planters’ National Bank and defendant Carver Bros., you will further find for the bank against Carver Bros, the amount so found and stated in your verdict.”

Thus before the jury could find for the bank against the appellants they must also find for plaintiff against both the bank and appellants. And finding, as the jury did, that appellants were liable to the bank, necessarily includes in the verdict a finding of fact that appellants were liable in damages for the tort. The appellants being primarily liable, and the bank having assigned and guaranteed to plaintiff the claim for damages, as shown by the pleadings and charge, the finding of fact that appellants owed the bank damages in the sum found legally operated to be a finding of liability in favor of plaintiff. A like contention based on a similar verdict was overruled in McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 S. W. 229; and we see no reason why a different ruling should be made in this case. The instant question is not analogous to the cases cited by appellants. A verdict against a partnership authorizes a judgment against the members thereof that have been cited or answered.

If Pierce, acting within the scope of his authority as the agent of appellants, obtained possession of the cotton tickets for the purpose of making a cotton list, and thereafterwards refused to deliver possession of the tickets to the bank, appellants, we conclude, would be liable to the bank for damages, and consequently appellee for damages occasioned by such refusal. The possession of the tickets by Pierce under these circumstances would legally operate to be the equivalent of the possession of appellants, and Pierce’s refusal to return them to the bank would be the equivalent of appellants’ refusal to do so. And it is not thought, as appellants insist, that it conclusively appears that Pierce, in securing possession of the tickets, was not acting within the scope of authority actually conferred upon him by appellants. According to the letter of appellants to the bank introducing Pierce to the bank officials, such bank officials were advised that' Pierce would “represent us [appellants]' in your city.” The bank had the right, it is believed, to construe the language to mean that appellants had authorized Pierce to do everything usually, customarily, or necessarily done by a nonresident cotton buyer’s local agent in the transaction of his principal’s business. 1 Clark & Skyles’ Agency, § 194. There was evidence going to support a finding of fact that it was usual and customary for such agent to ship out cotton purchased for his principal, and there is evidence to support a finding that it was necessary for such agent to have possession of the tickets representing the cotton to be shipped, in order to list and ship out the cotton. As to whether or not the bank was negligent in letting Pierce have access to the tickets was a question for the jury. And the evidence presents, it is thought, an issue of fact, requiring decision, by the jury, respecting the several matters urged by appellants both in defense of liability and in offset. It is therefore concluded that the court did not err in refusing to peremptorily instruct a verdict for appellants, and assignment of error No. 9 is overruled.

We have considered the remaining assignments, and overrule each of them upon the ground that no such error appears as would require a reversal of the judgment.

Affirmed.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes