author: MOURSUND, J.

text:
    MILLS v. FROST NAT. BANK.
    (No. 6133.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 15, 1919.
    On Motion for Rehearing, Feb. 12, 1919.)
    1. Husband and Wife @==>232(1) — Action on Note — Bubden of Peoof.
    Plaintiff suing wife on note has burden of proving that the note was one that a married woman was authorized by law to make.
    2. Husband and Wife @=>155 — Wife’s Con-tbacts — Sepaeate Property — Borrowing Monet foe Investment Purposes.
    Rev. St. 1911, art. 4624, which, prior to amendment, authorized married woman to contract debts for benefit of separate property, conferred no authority to borrow money for investment purposes.
    3. Husband and Wife @=>162 — Contracts of Wife — Incurring Indebtedness — Purchase of Property.
    Under Rev. St. 1911, art. 4624, which, prior to amendment, authorized married woman to incur indebtedness for benefit of her separate property, did not authorize wife to make herself personally liable on contracts assuming the payment of purchase money due on property bought by her.
    4. Husband and Wife @=>162 — Contracts, by Wife — Incurring Indebtedness — Separate Property.
    The mere fact that a wife got the money on her note did not render her personally liable on the note, although it was executed for indebtedness incurred before the authority given by Rev. St. 1911, art. 4624, to a wife to contract debts, for benefit of her separate property wás taken away by amendment of that statute.
    On Motion for Rehearing.
    5. Appeal and Error @=715(2) — Record-Extraneous Matter Shown by Affidavit.
    The Court of Civil Appeals is bound by the record as it appears in the transcript and statement of facts, and extraneous matters shown in affidavit cannot be considered.
    6. Pleading @=248(3) — Amendment of Petition — New Cause of Action.
    In action on note where no fraud is alleged, an amendment to petition showing fraud presents new cause of action.
    7. Appeal and Eeroe @=1177(4) — Disposition — Remand—Defective Pleading.
    Where appellate court sustains exceptions to petition because cause of action has been defectively or insufficiently pleaded, it is proper to remand case to give opportunity to amend; but where amendment would state new cause of action, the case will not be remanded.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Action by the Frost National Bank against Mabel Mills. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    R. H. Ward, of San Antonio, for appellant.
    Clamp, Searcy & Clamp, of San Antonio, for appellee.

      Writ of error denied by Supreme Court March 26, 1919.

   MOURSUND, J.

The Frost National Bank sued Mrs. Mabel Mills on a joint and several promissory note for $9,179.33, executed by her and her husband, E. W. Mills, dated January 22,1917, payable one day after date, bearing 8 per cent, interest, and providing for attorney’s fee of 10 per cent. It was alleged by plaintiff that the note was given for money' borrowed by said Mabel Mills as and for her separate property and was used by her, and that her separate estate got the full benefit of said money. In subsequently filed pleadings plaintiff alleged that the note was the last of several notes renewing a debt evidenced originally by a note for $7,000, dated June 15, 1912, signed by Mabel Mills and her husband, the accrued interest being added in each note; that the money was borrowed by Mrs.' Mills for the use and benefit of her separate estate; that it was deposited to her credit and checked out by her; that it was understood that it belonged to her separate estate, and was to be used for the benefit of such estate, and was to be paid back out of such estate.

Mrs. Mills answered by general denial and special pleas to the effect that at the time each of said notes was executed she was the wife of E. W. Mills, who died prior to the filing of this suit, and that this was known to plaintiff; that the original loan was made to the community estate of herself and husband; that none of said money was used, nor was it represented that it would be used, for the benefit of her separate property; that neither the obligation sued on, nor the original note, was such an obligation as she was authorized and empowered to make as a married woman under the laws of this state.

The trial resulted in a judgment for plaintiff for $11,048.60, together with interest from date thereof at the rate of 10 per cent, per annum.

A married woman did not have the general power to make contracts either at the time Mrs. Mills borrowed the money or at the time she executed the note sued on. At the time she borrowed the money she was expressly authorized by article 4624 (R. S. 1911) to contract debts for the benefit of her separate property; but at the time she executed the note sued on the statute had been amended so as to omit such grant of power, and if such power existed at that time it derived its'existence by implication as an incident to her power of ownership. Red River National Bank v. Ferguson, 206 S. W. 923, opinion by Supreme Court, December 2,1918.

The only inquiry necessary to be made in this ease is whether the original debt was contracted by Mrs. Mills for the benefit of her separate property, there being no contention that it was for necessaries for herself or children, if she had any children. It appears that Mrs. Mills, although a married woman, had been dealing in real estate on quite a large scale, independently of her husband, and was supposed to have been successful; that she borrowed the money for herself, and her husband joined in the note at the request of the appellee, but with the understanding that such act should not affect his line of credit with appellee; that “she said she had a transaction she was carrying on away from here then in which she needed the money, wanted the money for a short time only”; that she never did tell the president of appellee bank, with whom she negotiated for the loan, “specifically what she was going to do with the money”; the money, $7,000, was deposited to her credit, and she drew it out in two checks, one for $5,000, and one for $2,000. Mrs. Mills testified that she and her husband expected to speculate away from San Antonio with the money, and that it was part of $41,000 in cash of which she was robbed “out of Chicago.” Ap-pellee contends the court did pot give credence to this statement, and was authorized to find that her separate property got the benefit of the $7,000. There is no evidence from which the court could find that the money was to be used to improve, benefit, or preserve any property then owned by Mrs. Mills, or that in fact she made such use thereof, if that fact could have the least bearing on the question of liability. The evidence merely shows that she obtained $7,000 of appellee’s money. This is a suit on contract, and not one seeking to recover on the ground that the money was obtained'by means of fraud, and the burden rests on appellee to show that the contract was one a married woman was authorized by law to make. It has been held that money obtained on a joint note of the husband and wife, secured by mortgage of her separate property, if intended to be her separate property and to be repaid by her out of her separate means, is her separate property, at least as between herself and her husband. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381. And there is good authority to the effect that such result can be accomplished, even though the debt is not secured by a mortgage of her separate property. Speer’s Law of Marital Rights, §§ 321 and 371. It does not follow, however, that the contract by which she secured possession of the money would be one which she was authorized by law to make.

The statute authorizing a married woman to bind herself by contract for expenses incurred for the benefit of her separate property conferred no authority to borrow money for investment purposes, any more than to make herself personally liable on contracts assuming the payment of purchase money due on property bought by her. Speer on Law of Marital Rights in Texas, §§ 157 and 172; Red River National Bank v. Ferguson, supra; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 359; Billingsly v. Swenson Land Co., 58 Tex. Civ. App. 67, 123 S. W. 195; Blair v. Teel, 152 S. W. 878; Smith v. Wilson, 32 S. W. 434; Stroter v. Brackenridge, 51 Tex. Civ. App. 170, 118 S. W. 632, Id., 102 Tex. 386, 118 S. W. 634. If she had bought property from appellee, and given her note for $7,000 in payment thereof, she would not have rendered herself personally liable on such note, and she is not personally liable on a note for money borrowed merely because she got the money, nor would it make any difference had it been shown that she bought property with the money.

The judgment is reversed, and judgment rendered in favor of appellant.

On Motion for Rehearing.

Appellee assigns as error our failure to remand the cause for another trial, the contention being that a fraud was practiced by appellant in the procuring of the loan, and in support of this theory many facts not disclosed by the record are shown by affidavit attached to the motion.

This court is bound,by the record as it appears in the transcript and statement of facts, and the extraneous matters shown in the affidavit attached to the motion cannot be considered. This is too well settled to require the citation of authorities. In addition, the facts set up, if they could be considered, have no bearing on the cause of action alleged in plaintiff’s petition. That cause of action is simply a suit upon a promissory note, and no cause of action for fraud is attempted to be asserted. There is no issue of fact to be tried over as to the cause of action alleged in the petition. Our judgment in favor of appellant is based upon the fact that Mrs. Mills was a married woman at the time the original note was given and at the time the note sued on was given, and it is apparent from the evidence that the debt incurred by her and evidenced by the notes sued on was not incurred for any purpose such as would warrant a recovery against her under our statutes. The evidence has been fully developed on the issues made by the pleadings, and it became our duty under the statute, upon reversing the judgment, to render such judgment as the trial court should have rendered. The purpose for which the remanding of the cause for another trial is sought is to amend the pleadings by alleging matters relied on to show fraud on the part of appellant in the procurement of the money. If an amendment, sufficient to show fraud, should be filed, it would, of course, present a new cause of action. Lumber Co. v. Water Co., 94 Tex. 456, 61 S. W. 707; Railway v. Bracht, 157 S. W. 269.

We recognize the rule that when a cause of action has been defectively or insufficiently pleaded, and exceptions thereto are sustained in the appellate court, it is proper to remand the cause in order to give an opportunity to amend, as such opportunity would have existed had the trial court sustained the exceptions; but no case can be found, we are confident, in which it has been held proper to remand a cause in order that a new cause of action may be pleaded. We have heretofore held that a case should not be remanded for such purpose. Bonzer v. Garrett, 162 S. W. 934. See, also, Gregory v. Montgomery, 23 Tex. Civ. App. 68, 56 S. W. 231; Michigan Loan Ass’n v. Atterbury, 16 Tex. Civ. App. 222, 42 S. W. 569; Floyd v. Bankers’ Life Ass’n, 192 S. W. 611; Texas Hide & Wool Co. v. Edwards, 185 S. W. 887; Tillman v. Erp, 121 S. W. 547.

• The motion is overruled.
      ©=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    NORTH AMERICAN ACCIDENT INS. CO. v. HODGE et al.
    (No. 6021.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1919.)
    1. Insurance <§⅝134(2) — Statute Requiring Policy to Contain Entire Contract — Applicability — '“Annual Premium Plan.”
    Defendant accident insurance company, which, under policy sued on, required premium to be paid monthly, was not engaged in the insurance business upon the “annual premium plan,” within Rev. St. 1911, art. 4957, providing that chapter does not apply to companies carrying on business upon such plan, and it was not exempt from articles 4953 and 4955, requiring policy to contain all the terms of the contract, and providing that application may be made a part thereof.
    2. Statutes <3=>167(2) — Codification—Original Act as Controlling.
    Rev. St. 1911 constitutes a mere codification and continuation of laws formerly enacted, and therefore article 4957, which was intended to be a codification of section 65, Acts 31st Leg. c. 108, is controlled thereby.
    Appeal from McLennan County Court; James P. .Alexander, Judge.
    Action by Ellen Hodge and another against the North American Accident Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Scott & Ross, of Waco, for appellant.
    W. L. Eason, of Waco, for appellees.
   KEY, C. J.

Ellen Hodge, and Alice Clark brought this action against the North American Accident Insurance Company, alleging that the latter had issued an accident insurance policy to one Hal Allen; that Virginia Banks was named as beneficiary in the policy in the event of the death of Hal Allen as a result of accident; that Virginia Banks was dead, and plaintiffs were her sole surviving heirs, and entitled to recover upon the policy. There was a nonjury trial, the case being submitted to the court upon an agreed statement of facts, and judgment was rendered for the plaintiffs for $436, and the defendant has appealed.

The agreed statement of facts contains the following stipulation:

“The parties to the above entitled and numbered cause, through their attorneys, hereby agree that the plaintiffs are entitled to judgment against the defendant for the sum of $300, and a $36 penalty and $100 attorney’s fees, making a total of $436, unless the defendant’s defense, as pleaded in sections 2, 3, 4, and 6 of its answer, is sustained.
“If the defendant’s said defense, as pleaded in its answer, is sustained, then the plaintiffs are entitled to judgment for $100.”

•In the paragraphs of its answer referred to in the foregoing agreement, the defendant pleaded the following stipulation in the policy:

“This policy includes the indorsement and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates, in the event that the insured is injured after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation-.”

That plea was followed up with allegations to the effect that the policy showed that Hal Allen was employed as a fireman of a stationary boiler at the time he was insured, and alleges that at the time of the accident, which resulted in his death, he was engaged in an occupation classified in defendant’s manual of classifications as more hazardous than that of fireman of a stationary boiler, namely, that he was carrying furniture from the second story of a building down a flight of stairs, which service was an act or thing pertaining to the occupation of a common laborer, or laborer .not otherwise classified, both of which were classified by the defendant in its manual of classification as more hazardous than that of fireman; and that, therefore, by the terms of the policy, the beneficiaries therein were only entitled to the sum of $100, which the defendant alleged it had tendered and offered to pay to plaintiffs.

Appellant contends that the classification referred to in the contract is shown in its manual, which is a printed booklet, and its schedule of rates, as shown on the back of Hal Allen’s application for insurance. Ap-pellees contend that neither the manual nor schedule of rates constituted a part of the contract of insurance, because the law requires that the policy shall contain the entire contract between the parties, and that some other document, although referred to in the policy, cannot be looked to and considered as a part thereof; and in support of that contention, they rely upon articles 4953 and 4955 of the Revised Statutes, and Insurance Co. v. Gomillion, 178 S. W. 1051, and 179 S. W. 671, decided by this court. Neither the manual of classification nor the schedule of rates was embraced in and disclosed by the face of the policy.

Appellant attempts to avoid the effect of the statute and decision cited by referring to article 4957 of the Revised Statutes of 1911. That article reads as follows:

“Art. 4957. Chapter Does Not Apply to Fraternal Beneficiary Companies. — None of the terms or provisions of this chapter shall apply to, nor in any wise affect, fraternal beneficiary associations as defined by the laws of this state, nor apply to companies carrying on the business of life or casualty insurance on the assessment or annual premium plan, under the provision of this title. Id. § 65.”

Replying to that contention, appellees insist that the article referred to has not been properly codified in the Revised Statutes of 1911, and that the codifiers have omitted a material part of the original statute as enacted by the Legislature in 1909. At the time referred to the Legislature passed a law relating to the subject of insurance, one section of which reads as follows:

“Sec. 65. None of the terms or provisions of this act shall apply to nor in any wise affect fraternal beneficiary associations as defined by the laws of this state, nor apply to companies carrying on the business of life or casualty insurance on the assessment or annual premium plan, under the provisions of articles 3090, 3091 and 3092, Revised Civil Statutes of the State of Texas.” Acts 31st Leg. c. 108.

It is quite certain that article 4957 was intended as a codification of the foregoing section of the act of March 22, 1909, but it will be. noted that section 65 limits the exemptions therein provided for to insurance companies acting under the provisions of articles 3090, 3091, and 3092 of the Revised-Civil Statutes in vogue at that time. Those articles are embraced in the Revised Statutes of 1895, and apply to companies carrying on the business of life and casualty insurance on the assessment or natural premium plan, and not on the annual premium plan, as section 6,5 of the act of March 22, 1909, reads. Counsel for appellees contend that the word “annual” in section 65 was either used inadvertently by the Legislature, or that a mistake was made in transcribing the bill. However that may be, if that construction is not admissible, then it follows that as the words “annual” and “natural” do not signify the-same thing, and cannot be used to express the same thought, appellant is not exempt from the provisions of articles 4953 and 4955, which require the policy' to contain all the terms of the contract between the parties, because section 65 of the act of March 22, 1909, confers no exemption upon insurance companies other than those described in articles 3090, 3091, and 3092, which are therein denominated as companies carrying on business on the assessment or natural premium plan, unless it be that the latter part of the section referred to has been superseded by article 4957, which omits any specific reference to any articles of the Revised Statutes, and substitutes therefor the words, “under the provisions of this title.” Upon that subject, we sustain appellees’ contention to the effect that the Revised Statutes of 1911 are not an enactment or re-enactment of laws then being made by the Legislature, but constitute a mere codification and continuation of laws formerly enacted by the Legislature; and therefore section 65 of the original act of March 22, 1909, must control. Fischer v. Simon, 95 Tex. 239, 66 S. W. 447, 882; Corbett v. Sweeney, 151 S. W. 860; National Surety Co. v. Murphy-Walker Co., 174 S. W. 1001; section 16, Final Title, Revised Statutes 1911; Insurance Co. v. Walker, 94 Tex. 473, 61 S. W. 711.

We think it probable, as contended on behalf of appellees, that the expression “annual premium plan,” as incorporated in section 65 of the act of March 22, 1909, was used by inadvertence, as article 3090 therein referred to uses the expression “natural premium plan,” and the latter expression is brought forward in the codification of that article in the Revised Statutes of 1911. Articles 4791, 4792, and 4793, Revised Statutes of 1911. Furthermore, the proof does not show that appellant was engaged in the insurance business upon the “annual premium plan.” On the contrary, it 'shows that the contract in this case required the premiums to be paid monthly. Hence we conclude that appellant failed to sustain its defense, and therefore the trial court rendered the proper judgment, which will stand affirmed.

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


text:
    RECTOR v. BROWN.
    (No. 5937.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 12, 1918.
    Rehearing Denied Feb. 12, 1919.)
    1. Judgment <©=>614(2) — Merger and Bar-Indebtedness and Lien.
    A judgment of foreclosure in an action by a vendor of land against purchasers of vendee who had assumed incumbrances, the amount claimed in the suit being interest which the vendor had been required to pay on a mortgage to protect his interest as the holder of a vendor’s lien note, and for interest on the note, did not estop him from subsequently suing the vendee for the amount of the note; the vendee not being a necessary party to the foreclosure proceeding.
    2. Vendor and Purchaser <©=>279 — Fore- ’ closure — Necessary Parties.
    Where a vendee sold the land purchased subject to incumbrances, he was neither a proper nor a necessary .party to an action by the vendor to foreclose.
    -3. Estoppel <§=>68(2) — Equitable Estop-pel.
    A vendor who obtained a judgment of foreclosure in an action against purchasers of the vendee who had assumed incumbrances, foreclosure being for interest paid on a mortgage to protect the vendor’s lien note and for interest on the note, and purchased the property at an extremely low price at the sheriff’s sale, and thereafter sold it for a large sum, was not es-topped in equity to subsequently sue the ven-dee for the face of the vendor’s lien note, although the vendee had no knowledge of the foreclosure proceeding.
    4. Estoppel <®=>68(2) — Equitable Estop-pel.
    Where vendor obtained judgment of foreclosure against purchasers from vendee for interest on a vendor’s lien note, and bought at the foreclosure sale for an extremely small amount, and resold for a large amount, that he fraudulently prevented the land from selling at a'fair price was immaterial in an action by the vendor against the vendee on the note, where the vendee did not seek to have the sale set aside, nor claim damages on account of fraud.
    5. Election op Remedies <S=>3(4) — Foreclosure op Vendor’s Lien.
    Where vendor brought ,an action against purchasers of vendee to foreclose, there was no election of remedies, and he could subsequently sue the vendee on an unpaid vendor’s lien note.
    Appeal from Hamilton County Court; Joe H. Eidson, Judge.
    Suit by E. W. Rector against Hugh Brown. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    Dewey Langford and P. M. Rice, both of Hamilton, for appellant.
    Arthur R. Eidson, of Hamilton, for ap-pellee.
   KEY, C. J.

E. W. Rector brought this suit against Hugh Brown, seeking to recover a personal' judgment against him upon a promissory note for $646, interest, and attorney’s fees. The defendant answered by general demurrer, general denial, and special plea, setting up the following facts, as shown by appellee’s brief:

“On October 13, 1911, the appellant conveyed to the appellee 237 acres of land in Hamilton county. The consideration for this conveyance was $2,100, part of the consideration being paid in cash and a loan of $1,000 being procured, the proceeds of which loan was paid to the appellant, and the execution of the note sued on herein for $646, the note being recited in the deed, however, as a $600 note, the deed from appellant to appellee having been executed upon the understanding and agreement that a loan would be procured, and the deed does not recite the .true consideration, the true consideration being $2,100, and the deed recites a consideration of $2,333. Afterwards the land was conveyed by appellee to B. B. Wilson, and Wilson assumed the payment of the mortgage against the land and also the note sued on.
“On December 15, 1013, Wilson conveyed the land to Sears, Sears likewise assuming the payment of the loan and the note. Afterwards Sears conveyed the land to Murphy, but Murphy did not assume the payment of the note or the loan.
“On the 4th of August, 1915, E. W. Rector, the appellant, being the legal and equitable owner and holder of the note, filed suit in the district court of Hamilton county against Hugh Brown, this appellee, Maude-Brown, appellee’s wife, L. L. Wilson and husband, R. K. Wilson, John L. Sears and O. A. Murphy, alleging the execution of a deed from appellant to appellee to the land described in said deed and in the pleadings of the párties to this suit; alleging the execution of the note and the mortgage, and reciting the consideration -for the conveyance from appellant to appellee, and alleging ' that the mortgage of $1,000 was prior and superior to .the note; alleging the execution of certain coupon notes, being interest notes by appellee, and alleging that the appellee and the other defendants in said suit had failed to pay the first coupon which fell due, and that the holder of all of said coupons was threatening to mature all of them; and that appellant, in order to protect his equity in the land, on the 17th of February, 1015, paid said coupon, which was due December 1, 1914, amounting to $89.10, and that by virtue of said payment was in equity subrogated to the rights oí the mortgage company and entitled to a lien on said land. He further alleged that the parties defendant, the maker, nor the persons who had assumed the payment thereof, had not paid the interest on the $646 note, being the one sued on in the present case; and he prayed for judgment for the $89.10, the amount of the coupon he had paid, and the interest on the $646 note, and for attorney’s fees.
“On the 8th of September, 1915, he dismissed his suit against defendant Hugh Brown, defendant B. L. Wilson and R. K. Wilson, and took judgment with writ of inquiry against defendants Maude Brown, John D. Sears and O. A. Murphy, and on the 9th of September, 1915, final judgment was rendered against John B. Sears for the sum of $152, and judgment of foreclosure was rendered against John B. Sears and O. A. Murphy foreclosing the lien on account of the coupon note hereinbefore described, and $58.22, interest and attorney’s fees on the $646 note, the judgment providing for the issuance of an order of sale and directing that if said land shall sell for more than sufficient to pay off and satisfy said sums of money, that the officer be directed to pay the excess to the defendant O. A. Murphy. That an order of sale issued, and said, land! was sold to the plaintiff for the sum of $50, a grossly inadequate price, the land being of the value of $2,500. Deed was made to appellant by the sheriff on the 2d of November, 1915. Afterwards the appellant, in consideration of the sum of $2,100 conveyed the land to Vada Bovelace. That the consideration recited was $2,400, but the actual and true consideration was $2,100. That appellant recited in the deed that there was no other lien against said land except the $1,000 mortgage loan, and he released the lien retained in the deed to secure said $646 note. He also indorsed on the note the following: ‘This note is no longer a vendor’s lien against the land for which it was given in payment.’
“Appellee knew nothing about the suit brought in the district court, and did not know the land was to be sold until after it was sold. Appellant' realized more out of his foreclosure proceedings and the sale of the land than enough to pay the note and the amount of his judgment and the loan against the land. The truth of the allegations of appellee’s answer was in open court admitted. This is shown by the judgment.”

The plaintiff excepted to the plea referred to, which exceptions were overruled, and that ruling is assigned as error. The plaintiff introduced in evidence the note sued upon, and after the ruling referred to was made, he admitted that the facts were as stated in the special plea, and thereupon the court instructed a verdict for the defendant, which was returned, and judgment was rendered thereon in his, behalf, and the plaintiff has appealed.

Opinion.

In the appellee’s special plea referred to, after alleging the facts heretofore stated, he alleged, as a legal conclusion, that appellant was not entitled to recover, because under the facts referred to he was estopped from collecting the note sued on; and, second, inasmuch as he had elected to prosecute to successful termination the suit referred to in the district court, he had exercised his right of election of remedies, and was therefore precluded from maintaining this suit.

Counsel for appellant assert the following propositions of law, each of which is regarded by this court as substantially correct and applicable to this case:

First: “Where the judgment pleaded as an estoppel was based on causes of action wholly different and .distinct from that asserted in the pending suit, and the defendant was not a party to the former suit, there can be no estoppel by record.”
Second: “An estoppel in pais cannot arise except by the acts and declarations of a person by which he designedly induces another to alter his position injuriously to himself, and the following elements must concur: (1) There must have been a representation or concealment of material facts. (2) The representation must have been made .with knowledge of the facts. (3) The .party to whom it was made must have been ignorant of the truth of the matter. (4) It must have been made with the intention that the other party would act on it. (5) The other party must have been induced to act on it.”
Third: “To sustain a plea of election of remedy it must appear that plaintiff had two valid and inconsistent remedies, and that he undertook to enforce one of them.”

We do not deem it necessary to enter upon an extended discussion of the questions of law involved in this case, and stated in the foregoing propositions. As appellee was not a necessary party, and was not in fact made a party to the suit in the district court, and as the subject-matter of that suit was wholly different and distinct from the subject-matter of this suit, it is quite clear that the judgment there rendered could not operate as an estoppel in this case. It is also equally clear that the facts pleaded by appel-lee, and admitted by appellant to be true, do not contitute an estoppel in pais, or an equitable estoppel. If it be conceded -that ap-pellee would have been a proper party to the former suit, he was not a necessary party thereto, and therefore appellant had the right to prosecute that suit to judgment without making him a party; and the exercise of that right cannot form the basis of an es-toppel against appellant. Having obtained a judgment of foreclosure in that suit, appellant had the right to bid on the land when vit was sold by the sheriff, and, having done so and become the purchaser of the land, he is not estopped from the collection of the note because of the fact that the land sold at sheriff’s sale for much less than it was worth and appellant has since sold it for four of five times as much as it cost him. It is not alleged that appellant was in any wise to blame for the land not selling for more than he bid for it, and even if it had been so alleged, it would have been immaterial in this case, because appellee did not seek to have the sale set aside; nor did he claim damages upon the ground that appellant had fraudulently prevented the land from selling for more than it was sold for. When appellant bought the land at that sale he acquired title to it, and it is immaterial that he thereafter sold it for a profit. It is also quite clear that the fact that he bought the land at that sale for less than its value does not create any equity in favor of appellee, and relieve him from his obligation to pay the note.

As to the question of election, it is sufficient to say that when appellant brought the district court suit he had no right to and did not sue for the debt which constitutes the subject-matter of this suit, and therefore he is not estopped upon the doctrine of election. To constitute such an election, the party must have more than one remedy available at the time and applicable to the subject-matter of the subsequent suit, which was not the case when .the former-suit was brought.

Eor the reasons stated, we hold that the trial court should have sustained appellant’s exceptions to appellee’s special pleas; and as he presented no other defense, the judgment of the court below is reversed, and judgment here rendered for appellant for the amount due on the promissory note, which constitutes his cause of action.

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


author: WALTHALL, J.

text:
    BENTON v. TAYLOR.
    (No. 898.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 16, 1919.
    Rehearing Denied, Feb. 20, 1919.)
    1. Appeal and Error <⅜=>395 — Perfection of Appeal-Filing Bond.
    Where bond on a cross-appeal is not filed within the time required, a motion to dismiss the appeal will be’sustained.
    2. Judgment <S=»256(2) — Findings—Conformity.
    In an action on a contract for profits from a sale of cattle where defendant set up a settlement of all partnership matters and that through plaintiff’s fraudulent representations a certain sum had subsequently been paid to plaintiff, for which recovery was sought, held error to fail to allow a recovery of such amount under the special findings.
    Appeal from District Court, El Paso County ; P. R. Price, Judge.
    Action by E. G. Taylor against Annie M. Benton, administratrix of the estate of William Benton, deceased, in which defendant filed cross-action. From judgment that plaintiff take nothing of defendant and that defendant take nothing of plaintiff, defendant appeals and plaintiff cross-appeals.
    Cross-appeal dismissed, plaintiff’s assignments of error on cross-appeal stricken out, and, on defendant’s appeal, judgment reversed and rendered.
    W. M. Peticolas and Hudspeth & Harper, all of El Paso, for appellant.
    T. A. Falvey and Weeks & Owen, all of El Paso, for appellee.
   WALTHALL, J.

E. G. Taylor sued Annie M. Benton, administratrix, alleging that William Benton, her husband, in his lifetime had entered into two certain contracts with him (Taylor), one contract of date 13th day of December, 1913, and one of date 19th day of February, 1914, by the terms of which Benton was to furnish the money, without interest, and he (Taylor) was to furnish his time and with the money furnished buy cattle and place them on his (Taylor’s) ranch near Friona, Palmer county, Tex., and that when the cattle were sold whatever profit was realized, after paying all expenses, was to be equally divided; that while it was agreed that Benton should furnish all the money to pay for all cattle purchased and expenses for their care, except his (Taylor’s) time, should he (Taylor) furnish any money he should he reimbursed therefor out of the money received on the sale of the cattle. Taylor alleged that acting under the two contracts, during the latter part of 1913, and early in 1914, he purchased certain lots of cattle, describing the cattle bought, the amount paid therefor, including the expenses paid on each purchase, amounting in the aggregate to the number of 867 head of cattle purchased, paying therefor the sum of $23,771.74, and that said sum was the total amount of money contributed by Benton to said partnership or enterprise. Plaintiff alleges that he (Taylor) during the fall of 1913, and before the 28th day of September, 1914, paid out, for said partnership, expenses aggregating the sum of $1,S34.50, thereby making the total purchase price of said cattle $25,606.24. Taylor alleges that on the 28th day of September, 1914, Benton sold all of said 867 head of cattle to B. L. Croff for the sum of $40,000 paid to Benton by said Croff. Plaintiff sues to recover of defendant the said sum of $1,834.50 as expenses advanced and paid by him for said partnership, and sues to recover the said sum of $7,196.88 as the profits due him by reason of said partnership on the sale of said cattle. Plaintiff made exhibits of and attached to his petition said two contracts.

Defendant answers by general demurrer, several special exceptions, general denial, and alleged that, by the terms of the said contracts between William Benton and Taylor, the cattle remained the property of Benton, and that Taylor’s only interest, if any, was in the profits; that on September 5, 1914, all accounts, claims, and matters arising under said contracts were settled and adjusted between the parties, in pursuance of which about 404 head of cattle then at Mon-ahans, Tex., and 121 head of cattle en route from Silver City, N. M., were set over and assigned by Benton to Taylor in consideration of his agreement to repay the moneys which had been advanced by Benton for the purchase of said cattle, to evidence which Taylor executed his note for $17,272 with interest, payable to Benton, and secured it by chattel mortgage on the cattle last described and 83 head owned by Taylor individually; that 136 head of yearlings, 300 head of cows, 300 calves, and 10 bulls, then on the Friona ranch, by the terms of said agreement, became the absolute property of William Benton, and plaintiff had no further interest therein, and the said Monahans cattle became the property of Taylor, subject to said chattel mortgage. Defendant denied that on the 28th day of September, 1914, William Benton executed a bill of sale to B. L. Oroff to the cattle on the Friona Ranch, reciting a consideration of $40,000, but says that such bill of sale, if executed, was executed on the 5th day of September, 1914, and recited a consideration of $26,000, and was intended to convey only the 136 head of yearlings, 300 head of cows, 300 head of calves, and 10 bulls for the consideration of one-half interest in certain mining claims in Mexico; that plaintiff knew all about said sale; that plaintiff and said B. L. Oroff fraudulently changed the recited consideration of $26,000 and inserted the consideration $40,-000.

Defendant, as a cross-action, says that about October, 1916, plaintiff, Taylor, being about to pay his said $17,272 note, claimed to defendant that said bill of sale made by William Benton to B. L. Croff, being dated September 28, 1914, had conveyed to Oroff the 121 head of cattle branded “pit” which arrived at the Friona ranch about the' 20th day of September, 1914, and which had, previously, been sold by Benton to Taylor, and that thereby. Taylor had been deprived of their value, and, so falsely representing, He induced defendant to give him a credit on said note of some $7,309.78, when in truth the date of said bill of sale was September 5, 1914, and same could not have affected the 121 head of “PIT” cattle; said cattle having arrived at the Friona ranch after the execution of the bill of sale, and it purporting to convey “all of my right, title and interest to said cattle now on Friona ranch.” Defendant by said cross-action sought to recover said sum of $7,309.78.

The court submitted the case to the jury on special issues, in response to which the jury found:

1. That $25,225 was the total amount of money furnished by Benton for the purchase, transportation, and feeding in course of transportation, of the cattle purchased by Taylor and by him placed on his ranch near Friona, Tex.

2. That $4,164 was the amount of money furnished by Benton for the purchase, transportation, and feeding in course of transportation of the 121 head of cattle purchased by Taylor from - Henry, at or near Silver City, branded “PIT” and placed on the Friona ranch.

3. That $1,834.50 was the total amount of money reasonably and necessarily paid out by Taylor prior to the 28th day of September, 1914, in caring for the cattle purchased with money furnished by Benton, and placed by Taylor on his Friona ranch.

4. The bill of sale executed by Benton to B. L. Croff conveying his right, title, and interest in all stock then owned and had by him on the Taylor ranch, formerly known as the Harris ranch near Friona, was not executed on the 28th day of September, 1914.

5. The true date of the execution of the Benton-Croff bill of sale was prior to the arrival of the 121 head of cattle branded “PIT” at the Friona ranch.

6. (No answer was returned, question ashing market value of the 867 head of cattle in controversy at the Friona ranch on 28th of September, 1914.)

7. $4,164.60 was the market value of the 121 head of cattle branded “PIT,” a part of the 867 head on the Friona ranch, on the 28th day of September, 1914, if said cattle were on said ranch on said date.

7a. Taylor had notice that the 28th day of September, 1914, was not the true date of the Benton-Croff bill of sale.

8. Taylor represented to defendant, Mrs. Benton, as administratrix of the Benton estate, that the Benton-Croff bill of sale was executed on the 28th day of September, 1914, and that it conveyed the 121 "PIT" cattle to Croff.

9 and 10. Mrs. Benton without notice of the falsity of the representation (indicated in question next above), and relying on same as true, allowed Taylor a credit of $4,461.54, on Taylor’s $17,272 note.

On the verdict as above, the court rendered judgment that plaintiff take nothing of defendant, and that defendant take nothing of plaintiff. Defendant gave notice and perfected her appeal.

Plaintiff also claims to have given notice and perfected his appeal.

Having granted Taylor’s motion for certi-orari, and now having the entire record before us, we will consider appellant’s motion to dismiss appellee’s cross-appeal in the light of the record as now presented. Appellee’s notice of appeal on the overruling of his motion for a new trial was given on the 1st day of March, 1918. The record shows that the probable amount of costs in the courts on appeal were fixed by the clerk on the 21st day of March, 1918, and his approval of the bond given by appellee on appeal was entered on the bond of that date. The record further shows that the appeal bond was filed on the 22d day of March, 1918. The appeal bond gives the style and number of the case, but does not describe the judgment rendered other than stating: “On the 25th day of February, 1918, there was a final judgment entered in said cause.”

Appellant moves to dismiss appellee’s cross-appeal on the ground that the bond given on appeal was filed more than 20 days after the action of the court overruling ap-pellee’s motion for new trial, and on the ground that appellee’s bond given on his cross-appeal does not sufficiently describe the judgment. The record shows that appellee resides in El Paso county, and therefore the bond given on his cross-appeal should have been filed within 20 days after notice of appeal is given. The fixing by the clerk of the probable amount of costs, and the approval of a bond on appeal, are separate and distinct official acts of the clerk from that of filing the bond, and each act essential to the validity of the bond. Houston & Texas Central Ry. Co. v. Smith, 97 S. W. 519. The bond filed on the 22d day of March would not be within 20 days, where the notice of appeal was given on the 1st day of March. This court is without jurisdiction on the cross-appeal where the bond is not filed within the time required. The motion to dismiss appellee’s cross-appeal is sustained.

Appellant also moves to strike out appel-lee’s assignments of error on his cross-appeal, on the ground that the motion for a new trial, made the basis of the assignment, was not an amended motion and was not acted upon by the court. There seems to have been no notice of appeal from an order of the court overruling the motion, and the motion does not show to be an amended motion. A former motion for a new trial was overruled, and, from the order of the court overruling that motion, notice of appeal was given; but the motion for new trial, made the assignments of error in the brief on the cross-assignment, seems not to have been acted upon by the court, and, of course no notice of appeal given from an order overruling the motion. The motion is sustained.

Appellant presents two assignments of error. Both assignments are directed to the refusal of the court to give appellant judgment for the $4,461.54 found by the jury to be the credit allowed by appellant on appel-lee’s representation to appellant that the true date of the execution of the bill of sale of the cattle from Benton to Croff was on the 28th day of September, 1914, and conveyed the 121 head of cattle branded ‘TIT.” The full import and force of the assignments can be seen by reference to the issues made in the pleadings and the findings of the jury, and need not be restated here. The jury found all of the facts in favor of Mrs. Benton on such issues as were pleaded and presented to the jury for special findings. The jury found that appellee had reasonably and necessarily paid in caring for the cattle the sum of $1,834.50. While appellant pleaded a settlement and adjustment of all accounts between the parties in pursuance of which certain cattle were sot over and assigned by Benton to Taylor, in consideration of which the $17,272 note was executed by Taylor to Benton, the record does not show that said settlement, if had, included said $1,-834.50. The issue of the settlement and what was included therein is not shown in any findings made by the jury or the court. There is evidence to support each finding as made by the jury. The record presents a fact case. We think we need not state the evidence. The burden on the issue that the $1,834.50 had not been accounted for in the settlement was on Taylor. The issues on which findings were made does not include that fact. We must presume then that the settlement of the Benton-Taylor partnership embraced all partnership matters. The judgment of the trial court on the verdict, we think, should have allowed appellant a recovery against appellee for the $4,461.54, the credit improperly secured by Taylor on the note, ,with 8 per cent, interest thereon and foreclosure of the mortgage lien on the property and as provided in the original mortgage. The judgment therefore is reversed, and here rendered for appellant for the sum of $4,461.54 and interest and foreclosure as prayed for.

Reversed and rendered.
      «gs^For other cases see same topic and KEY-HUMBER in ail Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ANGUS v. BEGGS et al.
    (No. 8088.)

    (Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1919.
    Rehearing Denied Feb. 15, 1919.)
    1. Arbitration and Award <§=>45 — Proceeding to Set Aside Award — Irregular Acts oe Arbitrators.
    While arbitrators’ failure to swear, witnesses before giving their testimony, and to comply with the arbitration agreement was an irregularity, yet where the witnesses were recalled and sworn as to the statements they had made, and no special injury to complaining party is shown, and no fraud, unfairness, or impartiality was participated in by the arbitrators, the award will be considered just and equitable.
    2. Arbitration and Award <S=84 — Hearing — Exclusion oe Party — iSueeicienct oe Objection to Award.
    Where the merits of the decision of arbitrators was not attacked, but defeated party alleged generally that he was improperly excluded from the hearing, and not allowed to cross-examine witnesses, and that if given a fair opportunity he could show want of indebtedness, objection is too general to prevent judgment on the award.
    Appeal from District Court, Dallas County; Kenneth Eoree, Judge.
    Suit by Thomas Beggs and another against Tom Angus, to recover for commission due for building a house, labor, and costs of material, and, pending the suit, the parties agreed to submit the controversy to three named arbitrators. The arbitrators heard the matter, and made an award to plaintiffs, which was contested by defendant, and the court sustained the award by a judgment, from which defendant appeals.
    Judgment affirmed.
    Adams & Stenaris, of Dallas, for appellant.
    Holloway & Holloway, of Dallas, for ap-pellees.

      Writ oí error denied by Supreme Court March. 26,1919.

   RAINEY, C. J.

Appellees brought suit to recover of appellant for commission due them for building a house, labor, and cost of material. During the pendency of the suit the partiés agreed to submit the controversy to three arbitrators, who were named. The arbitrators heard the matter, and awarded to appellees the sum of $1-,367.53, which was contested by appellant, but the court sustained the award, from which this appeal is taken.

The appellant’s first and second assignments of error are to the effect that the court erred in approving the award of the arbitrators and entering judgment thereon in favor of appellees, because the arbitrators failed and refused to conduct the arbitration in accordance with the agreement, in that a large number of witnesses were heard by the arbitrators, and were heard to testify without being sworn or required to affirm, and that the statements of said witnesses were on material issues and influenced the making of said award.

The proposition submitted under these assignments is:

“The arbitration agreement having provided that the testimony of witnesses should be taken upon oath or affirmation, it was a gross irregularity to the material prejudice of the defendant’s rights on the part of the arbitrators to permit plaintiffs to prove their claim against defendant by statements of'witnesses not upon oath or affirmation, and such error was not cured by subsequently recalling the witnesses and attempting to administer to witnesses an oath by one not authorized to administer such oath.”

The agreement entered into by the parties provided, among other things, that the arbitrators werp “to decide all such matters of controversy between the parties hereto; the said arbitrators may proceed in such way as they may see fit, and may examine all papers that may be submitted to them by the parties hereto, and may examine the building and premises referred to, and may examine, as witnesses on oath or affirmation the parties to this arbitration agreement, and such other witnesses as the parties to this arbitration agreement, or the arbitrators may deem advisable to call. The arbitrators will then determine, as between man and man without regard to legal technicalities, the amounts, if any which may be owing by Tom Angus to Thomas Beggs and Robert Beggs on account of the said transaction.”

The evidence shows that labors of the arbitrators were delayed, and were continued for several months before an award was reached. For some time witnesses were not placed under oath or affirmation, the arbitrators not realizing that it was required, but after a large number of witnesses had been examined they were recalled to give further testimony, and were then sworn to the truth of their statements then and in the future. Appellant and some of his witnesses were among the first examined, and were not sworn, nor did appellant make any objection at the time to the oath being not administered, and before the award was finally submitted, at appellant’s request, the arbitrators reopened the case and heard more testimony, and before the award was made he wrote them to make the award in his favor, saying:

“I realize that you gentlemen have been patient and painstaking, and I presume you have done what you thought right and proper.”

Tire failure of the arbitrators to swear tire witnesses before the giving their testimony and to comply with the arbitration agreement of the parties was an irregularity, and as by the after swearing of the witnesses as to the statements made and the subsequent compliance with the arbitration agreement no special injury is shown to have resulted to appellant, and no fraud or unfairness or impartiality is shown to have been participated in by the arbitrators, we have reached the conclusion that" the appellant has not been injured, and the award will be considered as just and equitable.

The third and fourth assignments of error, in effect, complain of the action of the arbitrators in preventing appellant from being present' when witnesses were being examined and not permitting him to cross-examine them, etc., and submit the following proposition, to wit:

“Under an arbitration agreement submitting to three arbitrators tho complicated issues between tho parties, requiring a hearing of a multiplicity of claims urged by the plaintiffs and involving their right to a commission on tho cost of the material and labor in the construction by them of three buildings, and involving the defenses to which defendant was entitled under his general denial and special plea, alleging full payment of said commission, of which tho arbitrators knew absolutely nothing, the action of the arbitrators in excluding the defendant from the hearings when plaintiffs were stating to said arbitrators the items and details as to expenditures on which their commissions were based, and in denying defendant the right to question and cross-examine plaintiffs on all matters pertinent to said claims and issues, were such gross irregularities in said arbitration proceedings as would make it impracticable to have a fair and full hearing on said issues, and would entitle defendant to a rehearing, and was such misconduct on the part of said arbitrators as was reasonably calculated to prejudice the rights of defendant in said arbitration, and resulted in an award against defendant, which he avers is unjust, and it was error for the court to enter judgment on said award.”

Mr. S. B. Scott, one of the arbitrators, testified:

“There seemed to be very acute feeling between the parties, and wo felt that it would be best not to have them together. We arrived at that conclusion from what Mr. Angus said. He seemed to be very much embittered against the plaintiffs, and we discussed the matter of having tho parties present when the others were testifying. Mr. Angus used some pretty rough language in regard to the plaintiffs in the case. * * * \ye concluded that it would be best, as far as possible, to avoid any personal trouble between them not to have them present. There was no objection made to that method of procedure until along towards the latter end of the business.”

Mr. McAleer, another arbitrator, testified:

“When Mr. Angus was asked to absent himself from the hearings he made no objection whatever.”

Mr. Jones, the other arbitrator, testified:

“They knew that they had not been sworn, but I don’t know whether they knew that the other parties had not been sworn or not; but no objection was made to it. Mr. Angus was present when nearly all of his witnesses testified. He made no objection to his own witnesses not being sworn. We had most of them sworn. I have a list of those hero who were sworn and who were not. Those who were sworn were (naming them); and after that we had additional evidence, and, as stated before, we swore them to what they had already given and what they were about to give. The additional evidence was given on behalf of Mr. Angus. The witnesses who were not sworn were Mrs. Angus” and seven others. Those were appellant’s witnesses.

There were 56 items of actual cost of labor and material passed upon by the arbitrators. In appellant’s answer to a petition for judgment on the award not one of these items is challenged, but alleged generally that, if given a fair opportunity under rules, he could show that he is not indebted to the plaintiffs in any sum. No evidence was offered to contradict the finding of the arbitrators as to any item. There is no evidence showing that tho arbitrators acted fraudulently, unfairly, or partially, nor that the award was unjust and showing that it was not due.

We think the charges against the. award are too general, and do not point out particularly enough wherein appellant has been injured.

The judgment is affirmed.
      <5=»Eor otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    QUANAH, A. & P. RY. CO. v. BONE.
    (No. 1446.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 8, 1919.
    Rehearing Denied Feb. 5, 1919.)
    1. Cakriers @=184^-Connecting Carriers— Delay in Transportation — Petition.
    Averment of general notice to railroad company of damages that would result from refusal to seasonably deliver cars to connecting carrier held sufficient averment as to notice to sustain recovery by consignee who was contractor for loss of his own time.
    2. Carriers @=184 — Delay in Transportation-Petition.
    Petition by consignee who was contractor to recover for railroad company’s refusal to seasonably deliver shipments to connecting carrier held not sufficient to warrant contractors recovery for his own loss of time.
    3. Carriers @=1S4t — Delay in Transporta-, tion — Petition.
    Petition by consignee seeking to recover for carrier’s refusal to seasonably deliver to connecting carrier held, in view of former trial, sufficient to warrant admission of evidence as to shipments delayed.
    4. Carriers @=185 (2) — Delay—Evidence.
    In a consignee’s action for carrier’s refusal to seasonably deliver to connecting carrier, evidence that carrier placed derail on tracks connecting with line of connecting carrier held admissible, where carrier denied refusal.
    5. Evidence @=56S(7) — Opinion Evidence-Effect.
    Estimate by plaintiff, who sued carrier for delay in delivering shipment to connecting carrier, as to loss due to lack of proper material on brickwork, held not binding, so charge restricting jury to that amount was properly refused as on weight of evidence.
    6. Trial @=200 (7) — Instructions—Refusal of Requests.
    In action for defendant’s failure to seasonably deliver shipments to connecting carrier, held, as instructions as a whole properly submitted the case, that refusal of requests that no penalty could be recovered for defendant’s failure to deliver in shorter time than that fixed by Railroad Commission was not error.
    7. Pleading @=228 — Exceptions — Pleading Good in Part.
    A general exception to petition seeking to recover from defendant for failure to seasonably deliver shipments to connecting carrier should be overruled, where allegations as to some shipments were sufficient.
    8. Carriers @=184 — Delay—Petition.
    Petition to recover for defendant’s failure to seasonably deliver shipment to connecting carrier held not open to exception on ground of vagueness of allegations as to shipments, in view of former trial.
    9. Appeal and Error @=>221 — Objections to Judgment — General Assignment.
    Where defendant desired to complain of the excessiveness of the judgment because of recovery allowed on account of certain shipments which it was claimed wore not delivered to connecting carrier in reasonable time, held that, under Rules 24, 25, and 26 for Courts of Civil Appeals (142 S. W. xii) and Rule 68 for District Courts (142 S. W. xxii), matter should be distinctly set out to give trial court opportunity to correct error, and general assignment is not enough.
    10. Carriers @=186 — Delay — Damages— Passion or Prejudice.
    In action against railroad for failure to seasonably deliver shipments to connecting carrier, held, that verdict awarding damages for particular shipments did not show passion or prejudice on part of jury.
    Appeal from District Court, Motley County ; J. H. Milam, Judge.
    Action by Ered Bone against the Quanah, Acme & Pacific Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded, unless plaintiff enter remittitur.
    See, also, 199 S. W. 332.
    G. E. 'Hamilton, of Matador, and Jno. P. Marrs, of Qnanah, for appellant.
    Bouldin & Surles, of Matador, for appellee.
   BOYCE, J.

Appellant, Fred Bone, had a contract for the erection of a bank building at Matador, Tex. He ordered certain material — brick, lumber, cement, etc. — -and tools for use in the construction of said building, to be shipped to said place. Such shipments would move over the line of the Quanah, Acme & Pacific Railway Company, the appellant, to its junction with the Motley County Railway Company, at Matador Junction, and thence over said last-named road to Matador. The appellant railway company during this time had some dispute with the Motley County Railway Company, and on account thereof refused to deliver some of these shipments to the Motley County Railway Company, but carried them by said Matador Junction to Roaring Springs, from which point appellant was compelled to haul them by wagon. Other shipments were held by the appellant railway company for a longer time th&i it was entitled to hold them under the orders of the Railway Commission, but were finally delivered to the Motley County Railway Company and transported to Matador. Appellee, on account of being unable to get material while it was thus being held, had to lay off or pay some of his workmen employed on the building, and was unable to proceed with the work in a regular and systematic manner. He sued for and recovered in this suit actual damages thus sustained and penalties of $250 each for twelve shipments held by appellant railway company, in alleged violation of law. This is the second appeal of this case. Q., A. & P. Ry. Co. v. Bone, 199 S. W. 332.

By the first assignment it is complained that plaintiff was permitted, over objection, to testify that on account of the delay in delivery of material he himself had lost 5 days’ time, worth $15 per day, because there were no allegations of damage that would permit the introduction of such evidence, and because it was not alleged that the defendant had notice of such element of damage. The allegation of general notice to the appellant of the nature of the damages that would be suffered by reason of its wrong'was, we think, sufficient in this respect. Q., A. & P. Ry. Co. v. Bone, 199 S. W. 332. We do not think, however, that this item of damage fairly comes within any element of actual damages claimed in the petition. There are two specifications of actual damages: It was alleged that, on account of the enforced idleness of his em-ployés, plaintiff “paid such employSs an aggregate amount of $787.50” in excess of the amount he would have paid but for the lack of said material. Compensation for plaintiff’s own lost time does not fall within this allegation. The other allegation is to the effect that by reason of lack of proper material plaintiff was prevented from carrying on the work in a systematic and orderly course, and that this resulted in an additional delay of 15 days in the completion of said building, and “that the extra expense caused plaintiff for each one of said 15 days was $31.50 per day.” In connection with the testimony as to plaintiff’s lost time, it appears that plaintiff resided at Amarillo and spent most of his time at that place; that on the occasion when these 5 days were lost he was at Matador, and the work was during such time entirely suspended because the brick were being held by the appellant at Roaring Springs. So that the allegation of the time lost by plaintiff should properly have been in connection with the first element of damages above stated. An analysis of the details of the evidence as to the number of men employed while the work was progressing and the wages paid them shows that the $31.50 per day was not intended to include any allowance for plaintiff’s time; besides, pay for plaintiff’s own time would not, we think, be properly classed as “expense.” This error will not, however, require a reversal of the case if a remittitur in the sum of $75 shall be made by appellee.

By the second assignment appellant complains of the admission of certain evidence which tended to show that one of the oars of lumber owned by plaintiff was wrongfully held by the defendant because the pleading as to such car of lumber was not sufficiently clear to apprise the defendant of what it must-answer. The petition distinctly makes these allegations: That this car of lumber was purchased about August 10, 1914, and was thereafter transported and delivered to defendant at Quanah, consigned to R. D. Jones Humber Company at Matador, and that the defendant refused to deliver the same, but held it for a period of four days at Roaring Springs. This allegation is, we think, sufficient to permit the admission of the evidence. There is no variance between the pleading and the proof. Appellant would probably, on special exception, have been entitled to a more particular statement. This same car of lumber figured in the other trial of the case, and we judicially know from the record in that case that the very evidence which is here complained of was introduced on that trial. Under these circumstances, appellant cannot reasonably claim that it was not apprised of what would be expected to be proven under this allegation.

,We do not think there was error in the admission of the evidence referred to in the third assignment, to the effect that some time during the summer of 1914, while the appellant railway company and the Motley County Railway Company were having a controversy over freight matters, the appellant railway company placed a derail on the track of the Motley County Railway Company that connected with the tracks of the appellant railway company. This evidence, considered with the other evidence offered in connection therewith, tended to show that the appellant railway company was refusing to deliver any freight shipped to points on the line of the Motley County Railway Company, and that the purpose of the placing of the derail on said track was to prevent the transfer of any cars from one road to the other. It is shown that this controversy was in progress while plantiff’s shipments wpre being made, and the plaintiff’s testimony tended to show that this was the real cause of the failure and refusal on the part of the appellant to deliver his said shipments. The defendant at the trial claimed that the said shipments were taken to Roaring Springs merely in preparation for delivery to the Motley County Railway Company, and not in refusal of delivery to said connecting carrier. The testimony was admissible on the issue thus made and tended to show a universal rule or system of action that contradicted the claim put forth in this case in reference to the handling of these shipments and the controlling motives therein. Western Union Tel. Co. v. Simmons, 93 S. W. 686; Compagnie, etc., v. Victoria Mfg. Co., 107 S. W. 651; Q., A. & P. Ry. Co. v. Bone, 199 S. W. 334, pars. 8 and 9.

We do not think the court was required to give the requested charge referred to in tlie fourth assignment. This, charge was based on the estimate made by plaintiff that the method of construction of the walls, due to lack of proper material when needed, resulted in the loss of from $60 to $70 for extra labor in the brickwork. By such requested instruction the jury were charged that they could not allow a greater sum than $70, on account of this item. This testimony was only an estimate. It was confined to one item of labor alone; “that is, in the brickwork.” Another witness, the foreman on the job, gave a general estimate of the time lost by reason of all the different delays. The jury therefore would not be bound absolutely by this particular estimate or opinion, and the charge would have been on the weight of the evidence.

The fifth, sixth, and seventh assignments may be disposed of together. They complain of the refusal of the court to charge in effect that no penalty could be recovered on any carload shipment delivered to the Motley County Railway Company within 24 hours after it arrived at the junction, and no penalty could be recovered on less than carload shipments that were delivered within 48 hours after such arrival, although such shipments may have been in the meantime carried to Roaring Springs for the purpose of preparation for delivery at Matador Junction. The charge made the basis of the fifth assignment is erroneous for reasons which we need not now state, but the charges made the basis of the sixth and seventh assignments are substantially correct statements of the law applicable to the issues made by the pleading and the evidence, and as announced by this court in paragraph 12 of its former opinion. The giving of the one or the other of these two instructions would have made the charge clearer, as they applied the law to the specific facts of the ease in such manner as that there would have been less room for mistake on the part of the jury. However, in connection with the submission of the issues as to whether the defendant railway company “failed or refused” to deliver any such shipments to the Motley County Railway Company, the jury were charged that “the Railway Commission had fixed 24 hours as a reasonable time (for the delivery of shipments from one connecting carrier to the other) in carload shipments, and 48 hours as a reasonable time in less than carload shipments,” and also that, if they should find t that the defendant failed or refused to deliver said shipments within a reasonable time as the same had been so explained, then they might find in favor of the plaintiff for the actual damages resulting from such failure or refusal, and in addition the penalty provided by law in such eases. When the charge is taken as a whole, and viewed in connection with the evidence, we do not think it ' likely that the jury failed to understand the true meaning of the issues submitted to them or the law applicable to their consideration thereof, so that we overrule these assignments.

The eighth assignment complains of the overruling of a special exception to plaintiff’s petition, on the ground that the allegations of the petition are “too vague, general, and indefinite to put defendant on notice of what shipments are sought to be recovered upon.” The allegations as to the various shipments are contained in six separate subdivisions of plaintiff’s petition. It was distinctly stated that all of the shipments on which recovery was had were intrastate shipments. The points of origin of some of the shipments were given; specific dates of delivery of some of the shipments to defendant at Quanah, and specific times that such shipments were held at Roaring Springs, were stated. This petition and the answer containing this exception were filed on May 9, 1917, so that the former trial of this case was had on these pleadings, though this exception itself does not appear to have been acted' upon until just prior to the present trial. The allegations as to some of the shipments are entirely sufficient, and, since the exception itself is general and could not have been properly applied to the allegations as to all of the shipments, we think it might have been properly overruled for this reason alone. In any event, since there was a former trial of this case on these pleadings, it does not appear at all probable that there could have been any real chance of mistake as to the identity of the shipments forming the basis of the suit, and, since the only reason for requiring more particularity in pleading was to inform the defendant of such matters, it does not appear that the failure to more specifically plead could have resulted in any harm.

The ninth assignment complains that the verdict and judgment are excessive and unreasonable and the result of prejudice and passion because the amount awarded in damages and penalties is far in excess of the injuries actually sustained. The statement under the assignment is devoted to an attempt to show that there were included in the verdict penalties on two cars of brick which the evidence showed should not have been so included. The evidence offered in behalf of plaintiff as to these two cars of brick is contradictory and confusing. Plaintiff's own testimony .tends to show that he had a delay in delivery of only five cars of brick, and that, these two cars should not have been included, while that of his foreman is to the effect that there was a delay 'of five cars at one time and two cars later on. The testimony offered by plaintiff as to these two ears of brick is so unsatisfactory as that we question whether a recovery oí a penalty in reference to them ought to he permitted to stand had the question been clearly' and distinctly raised in the motion for new trial. The pleading and proof concerned thirteen different shipments, and it can be readily understood how confusion and honest mistake are liable to be present in the consideration of the evidence offered as to such matters, and we are unwilling to say that the inclusion of the two cars of brick in the number of shipments on which recovery of a penalty was allowed shows passion or prejudice on the part of the jury trying the case. Proper practice required the appellant, if it desired to complain of the excessiveness of the judgment on this account, to distinctly set out the same and give the trial court an opportunity of correcting the excessiveness of the verdict in this particular. Rules 24, 25, and 26, for Courts of Civil Appeals (142 S. W. xii); Rule 68 for District Courts (142 S. W. xxii); P. & N. T. Ry. Co. v. Suitor, 153 S. W. 190; I. & G. N. Ry. Co. v. McVey, 81 S. W. 1001; M., K. & T. Ry. Co. v. Fesmire, 150 S. W. 201.

For the same reason, the tenth assignment of error is also too general.

The case will be reversed and remanded, unless the appellee, within 30 days after this date, shall enter a remittitur of the sum of $75; but in such event it will be affirmed.
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author: HARPER, C. J.

text:
    MEXICO NORTHWESTERN RY. CO. v. WILLIAMS.
    (No. 897.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Carriers <®=o32(2) — Interstate Commerce —Regulations—Waiver oj? Limitation.
    In case of an interstate shipment, a stipulation in the shipping contract, requiring notice of claim in writing within a day after delivery of the live stock and before same should be withdrawn from the point of destination and mixed with animals, cannot, under the Infer-íate Commerce Act, be waived.
    2. Pleading <®=»290(3) — 'Verified Plea — Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, a plea, setting up that a shipper of live stock failed to give notice of claim within a day after delivery at destination, etc., must be verified, and, if not verified, raises no such issue.
    3. Carriers <®=»218(8) — Carriage oe Live Stock — Conditions—Care oe Stock.
    It is the duty of a railroad company to furnish cars suitable to transport live stock, and it cannot escape liability for injury to a shipment on the ground that the shipping contract required the shipper to bed, inspect, and accept the cars, etc.
    4. Carriers <®=228(2) — Carriage oe Live Stock — Burden oe Pro-oe.
    A carrier must show that conditions in a contract for the shipment of live stock relative to the shipper’s duty to inspect cars, etc., were reasonable.
    5. Appeal and Error <®=»92S(1) — Review-Presumptions.
    Where the court did not submit delay as one of the causes of injury to a shipment of live stock, and there was no special charge requested on the subject, it will on appeal, be presumed that the evidence did not authorize such a charge.
    6. Appeal and Error <©=3932(1) — Review — Presumptions.
    Whore the court did not submit delay as one of the causes of injury to a shipment of live stock, the appellate court will not presume that the jury took into consideration delay, in assessing damages, etc.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by F. L. Williams against the Mexico' Northwestern Railway Company and another. From a judgment for plaintiff against the named defendant, it appeals.
    Affirmed.
    Turney, Culwell, Holliday & Pollard, of El Paso, for appellant.
    J. A. Gillett, of El Paso, for appellee.

      Writ of error granted by Supreme Court April 2, 1919.

   HARPER, C. J.

This is an action to recover the value of 20 head of cattle not delivered, and, for injuries to others of a shipment of 500 head from Madera, republic of Mexico, to El Paso, Tex., alleged to have been caused by improper bedding of cars, unreasonable delays, and rough handling in transit, by reason of which the market value of those delivered was diminished.

It is further charged that the defendants, Mexico Northwestern Railway Company and El Paso Southern Railway Company, were connecting carriers, and that they were transported in the same cars from the point of shipment to destination.

The Mexico Northwestern Railway Company answered by general denial, special exception, and that said shipment was made under the terms of a written contract, which provided as a condition of right to make claim for any loss or damages during transportation that the shipper should give notice of such claim in writing to some agent of the company within a day after delivery of such stock at point of destination, and before same were withdrawn from said point, and before they were mixed with any other stock, and that a failure to do So should prevent a recovery, and averred that no such notice was ever given; and, further, that the contract provided that the shipper who accepted the cars furnished should see that same were in good and secure condition, and would not hold the company liable for any negligence or carelessness on his part or upon the part of his agent or employé; that it was the shipper’s duty to see that the cars were in proper condition; that they were accepted in the condition they were in, so if any loss or injury resulted by reason of their condition or the bedding, it was at the responsibility of plaintiff and not defendant.

The El Paso Southern Railway Company adopted the above answer.

Plaintiff in reply filed general denial; specially pleaded that the provisions of the contract pleaded iñ bar are void and unenforceable: First, because it is an effort to Shnit their common-law liability; second, that the provisions were unreasonable; third, printed in a foreign language; and further that, in case same should be held to be valid, defendants had waived their right to rely thereon as a defense, for the reason that when the cattle reached their destination plaintiff in person informed the agent of the delivering carrier, who was the authorized representative of the Mexico Northwestern Railway Company, that the cattle were injured and damaged before they had been mixed with other cattle, and the delivering agent endeavored to exact from plaintiff a release of all damages precedent to accepting freight charges; and, further, that the provision that required plaintiff to inspect and accept the cars prior to their use was unreasonable, therefore contrary to public policy and void; further, that the contract was printed in Spanish and executed and performed in Mexico ; that the damages to the cattle were inflicted in Mexico, and the injured cattle were subsequently delivered into Texas, and, the courts of this state having Required jurisdiction, the liability should be determined by the laws of Texas, and that under its laws the provisions of the cqntract are void.

Upon hearing before a jury, the court instructed them to find for the El Paso Southern Railway Company, and, upon a verdict of the jury for $3,000, judgment was entered against the Mexico Northwestern Railway Company for said amount, from which the latter appealed.

It being admitted that notice of claim for. damages was not given in writing as required by the contract, appellant urges that the court should have instructed a verdict for it, because such notice was a prerequisite to recovery in a shipment controlled by Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379. It has been expressly so held. Northern Pacific Ry. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905. Appellee urges that the stipulation in the contract has been waived. The Supreme Court of the United States holds that it cannot be waived in Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948.

But appellee further urges the counter proposition that this was not an interstate shipment under the provisions of the act of Congress in regulation of common carriers of interstate and foreign commerce (title LVIA, U. S. Compiled Statutes 1913), because the facts are that this was a shipment from a point in a foreign country to a port of entry where it was delivered, and that the act applies only to shipments “from a foreign country to any place in the United States and carried to such place from a port of entry.” The contract, containing the stipulations invoked, provides that “the cattle will be transported from the station of Madera to the station of Cuidad Juarez.” Both of said stations are in the republic of Mexico.

There is nothing in the records before us to show that the El Paso Southern Railway Company or any other railroad company hauled the cattle at all within the United States (unless mere switching across the river constitutes hauling), except the allegation in plaintiff’s petition that it is a subsidiary company to the Mexico Northwestern Railway Company and its connecting carrier, and that it (the El Paso Southern Railway Company) received the cattle at its connecting point and transported them to El Paso, in the cars of the said Mexico Northwestern Railway Company in which they were originally loaded. In this connection, the Santa Fé Railway Company’s yard foreman testified that:

“E*rom Juarez to the Santa Fé pens was purely a switching movement. I think it was a Mexico Northwestern engine that put them there, but I am not positive. It -was either a Santa Fé or Mexico Northwestern engine. In a movement of that kind from Juarez * * * as to where the Santa Fé would pick up the shipment to take it -to the pens, in some instances the Mexico Northwestern would set them over the river just on this side and leave them, and the Santa Fé would pick them up there, and on other occasions the Mexico Northwestern would bring them all the way over and set them in on the unloading dock track. This movement was by one or the other of these methods.”

So the writer is of tbe opinion that it cannot be determined here otherwise than that the initial carrier completed the haul, and delivered the cattle to the pens in El Paso, and, there is no contention, that they were hauled away from the city of El Paso under the contract. The question now arises as to whether this switching of the cattle from the Mexico port of Cuidad Juarez, to the United States port of El Paso brings the shipment within the provisions of the statute aliove invoked, so as to make the shipment “interstate commerce.” I think not. The wording of the statute (section 8563 [1]):

“The provisions of this act shall apply to * * * any corporation * * * in the transportation * * * of property shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country”

—clearly conveys the meaning that the property transported must he billed and conveyed to a point beyond the port of entry, in other words, a mileage haul, and not a mere switching to the port of El Paso, in order to become interstate commerce and be controlled by the provisions of the act, and this the evidence fails to establish. Por all this record shows the cattle were transported under a contract which designated Cuidad Juarez as their destination and delivered to a point immediately across the boundary line between the republic of Mexico and the United States, for there is no evidence of the location of the Santa Fé pens at which they were delivered, except that they were in El Paso, Tex. Therefore I am of the opinion that in the absence of pleading and proof of the laws of Mexico applicable to the contract pleaded the liability of the appellant company must be determined by the laws of Texas, and that for this reason the plaintiff’s right of recovery is governed by the laws of Texas, as hereinafter noted and applied.

My Associates do not concur in this view, but are of the opinion, in which 1 concur, that the assignments should be overruled, notwithstanding that it is an interstate shipment, because the appellant did not verify its plea of failure to give notice as required by article 5714, Revised Civil Statutes of Texas (Vernon’s Sayles’), which provides that:

“No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon, shall ever be valid, * * * fixing the time within which such notice shall be given at a less period than ninety days * * * and it shall be presumed that notice has been given, unless * * * specially pleaded under oath.”

Appellant did not plead the stipulation as a bar to appellee’s right to recover under oath. Therefore the want of notice was not put in issue under this statute. Railway Co. v. Williams, 129 S. W. 847; St. Louis & S. F. Ry. Co. v. Honea, 84 S. W. 267. We all concur that this statute is a rule of procedure which must be observed in pleading a defense of this nature in the courts of Texas.

As to the stipulation in the contract requiring the shipper to bed and inspect, accept, etc., the cars and waiver of damages on account of improper bedding:

“It is the duty of the railroad company to furnish a car suitable to transport the cattle [in it], and it cannot shield itself by proving that the shipper was to examine the car as to its fitness to transport this property.” Gulf & S. F. Ry. Co. v. Boger, 169 S. W. 1093.

All members of the court concur in the further view that these assignments should be overruled, because the defendant had the burden of showing by pleading and proof that these provisions in its contract were reasonable, and that it has not met the burden. Hovey v. Tankersley, 177 S. W. 153; Ry. Co. v. Jones, 182 S. W. 1.

Last, appellant charges that the verdict and judgment are excessive, because: 1st, the evidence shows that the principal part of the damages were due to delay, and that -the court’s charge did not permit a recovery for that—therefore the amount of loss directly attributable to improper bedding and rough handling were left indefinite. This assignment is not supported by a proposition, but if we comprehend its full scope and meaning the answer is that, whilst we are not called upon to plow through the statement of facts to determine what portion of the damages, if any, was due to delay and what to other alleged causes, we have carefully read the facts and have concluded that there is sufficient evidence of loss of values occasioned by reason of improper bedding and rough handling to support the verdict. Since the court did not submit delay as one of the causes of injury, and there was no special charge requested upon the' subject, it should be presumed that the evidence did not authorize such a charge, and, further, it will not be presumed that the jury took into consideration any element of damages, or any alleged act charged to be a proximate cause of injury which was not submitted.

So, having concluded that there is evidence to support the amount of verdict found by the jury, we are not authorized to further review the record upon the question.

Finding no error in the record, the cause is affirmed.
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