text:
    HACKNEY MFG. CO. v. CELUM et al.
    (No. 628.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1916.
    On Rehearing, Dec. 13, 1916.)
    1. Evidence <@==434(8) — Parol Evidence to-Vary Writings — Fraud.
    The rule, excluding parol evidence to vary written instruments, has no application where it is sought to avoid a contract, the execution of' which is alleged to have been induced by false and fraudulent representations.
    [Éd. Note. — For other cases, see Evidence,. Cent. Dig. § 2012; Dee. Dig. <§==>434(8).]
    2. Sales <@=>168% (1) — 1Caveat Emptor — Privilege oe Inspection.
    The doctrine of caveat emptor does not apply against a purchaser of a plow under agreement that he should have the privilege of inspection and trial, and of rejection if it failed to do the work for which it was warranted, though such agreement was oral, and made by an agent, whose authority to do so was not shown.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 409, 418; Dec. Dig. <@=168% (1).]
    3. Sales <@=>255 — Warranty—Breach—Liability.
    The purchaser of a plow from a local agent, under warranties and representations to the same effect as those contained in letters from the manufacturer to the agent, can rely directly on the warranties and representations made by the manufacturer, whether communicated to him or not.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. §§ 715, 716; Dec. Dig. <@=>255.]
    4. Sales <@=>168%(8) —Right to Rescind — Acceptance op Goods.
    The purchaser of a plow, under agreement for inspection and trial, with right of rejection, is not, by his acceptance and trial of the plow, precluded from rescinding.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 416; Dec. Dig. <§=>168y2(8).] '
    5. Bills and Notes <@=5277 — Liability op Indobsers.
    The indorser of a note, being only secondarily liable, cannot be held until a valid obligation is established against the maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 626; Dec. Dig. <@=>277.]
    6. Judgment <@=>250 — Conformity to Issues —Express and Implied Contracts.
    Where the payee of a note sued its agent, who' had indorsed the note, together with the maker, its suit was on express contract, and it could not recover the commission paid the agent on the sale for which the note was given, since that arose from implied contract.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. <@=>250.]
    7. Fraud <@=>60 — Rescission op Contract-Damages.
    On rescission of a sale for fraud inducing its execution, the purchaser may recover any money paid, and any expense necessarily incurred as the proximate result of the fraud, such as purchase of tools and plow to operate with a power plow pui’chased on the rescinded contract.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 65; Dec. Dig. <@=>60.]
    8. Fraud <@=>60 — Rescission op Contract-Damages.
    On rescission of a sale for fraud inducing its execution, the purchaser may recover any money paid for an attachment to the plow purchased under the contract, which was a part of the original order.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 65; Dee. Dig. <@=>60.]
    9. Corporations <@=>422(1) — Liability por Wrongful Acts.
    Whether it authorized them or not, the principal is liable for and bound by any fraudulent representations made by its agent in securing in-dorsements on a note in which it was the payee.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1685, 1687, 1691; Dee. Dig. <@=> 422(1).]
    10. Sales <@=>131 — Rescission — Lien por Damages.
    The purchaser of a warranted plow, under false and fraudulent representations, who rescinded, could not, unless the seller was insolvent, have a lien on the plow for the amount of any damages decreed him.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 325-327; Dec. Dig. <@=>131.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by the Hackney Manufacturing Company against A. T. Celum and others, wherein Celum reconvened. Judgment for defendants, and for Celum on his reconvention, and plaintiff appeals.
    Reformed and affirmed.
    Ashley Coffman, of St. Paul, Minn, and G. L. & Atlas Jones, of El Paso, for appellant. Winter, MeBroom & Scott, of El Paso, for ap-pellees.
   HIGGINS, J.

Appellant brought this suit against A. T. Celum, A. H. Celum, R. W. Love, and the Valley Implement & Vehicle Company, to recover upon two promissory notes executed by defendants.

The notes sued upon were given in part payment for an Auto Plow and certain attachments sold and delivered by appellant to A. T. Celum. The Valley Implement & Vehicle Company were the local agents for the sale thereof, and the purchase was made through them. The contract of purchase was evidenced by a written order dated March 7, 1913, of A. T. Celum to appellant, directing the shipment of the plow and attachments to him at Clint, Tex., for which he agreed to pay $1,875, $500 to be paid in cash and balance to be evidenced by notes. He also agreed to pay freight. The contract provided that appellant would in no case be bound by verbal agreements of any kind made with its travelers, mechanical experts, or local agents, and that the order must comprise all the agreements in writing, and no agreement would be binding upon appellant unless it was duly submitted to it for approval and acceptance.

A. T. Celum answered that he was induced to purchase the plow and attachments, to make the cash payment of $500, and to execute the notes sued upon by false and fraudulent representations made by appellant that the plow would successfully plow five year old alfalfa sod 10 inches deep, and had been thoroughly tested out in all kinds of soil, and was known to be a success, and would successfully plow alfalfa sod and other soils at Clint, for which purpose it was being purchased; would plow 8 or 10 acres a day, and had sufficient power to plow in all kinds of soil, and was simple in operation; that it was also well adapted as a tractor, and would dp the work of 7 to 10 horses; that it was further represented and promised that if he would order the outfit, pay the $500 cash and execute the two notes, the outfit would be shipped, with the agreement that if it did not work satisfactorily, appellant would take same back and return the cash payment and notes. Said defendant ■reconvened for the freight paid and the purchase price of other attachments and supplies purchased and used in testing the plow.

The Valley Implement & Vehicle Company answered, averring that it indorsed the note sued upon about April 20, 1913, upon the express agreement with appellant that its in-dorsement was subject to the condition that the plow outfit would be satisfactory to A. T. Celum, or, in any event, would be satisfactory; that the outfit was not satisfactory to said Celum, and was not satisfactory; that it was appointed by appellant as its agent for its auto plows and appliances; that it was not familiar therewith, and appellant represented that the same had been thoroughly tested in all kinds of soil and was a success ; that if it would obtain an order for one of the plows, appellant would send one, Brown, and demonstrate it, with the understanding that if it did not work satisfactorily, the order would be canceled, the machine taken back, and money returned; that it made certain representations in its catalogue and literature; that it repeated such representations to A. T. Celum, and upon the faith thereof took the Celum order and cash payment and Celum’s notes, promising Celum that if the outfit did not work satisfactorily, and especially if it did not work satisfactorily in alfalfa stubble soil, appellant would cancel the order, take back the plow, and return the notes and cash payment; that, relying upon such promises and representations, Celum gave the order, made the cash payment, and gave the notes to the Valley Implement & Vehicle Company, as appellant’s agents; that the outfit was shipped, and one Brown, sent to demonstrate the same for Celum on his ranch; that after Brown had been at Celum’s ranch for some days, he came to that defendant and represented to its manager that he had demonstrated the plow, and same was satisfactory to Celum, and exhibited a written acceptance of the plow outfit, bearing Celum’s signature, all of which was done by Brown to secure that defendant’s indorsement and delivery of the notes to Brown as appellant’s agent; and, relying thereon, the said defendant did indorse and deliver the notes to Brown; that thereafter, it was ascertained that said plow was not in fact satisfactory to Celum, and that he never, in fact, accepted the same, but that the purported acceptance thereof had been procured from him by Brown as appellant’s agent through false and fraudulent representations; that the outfit never became satisfactory to Celum, and the same did not comply with the representations made with reference to the same, and made by that defendant to Celum, as appellant’s agent, and that Celum, after testing the plow, notified said defendant that he would not accept it; that it would not have made the representations to Celum, and would not have undertaken to obtain Celum’s order but for the promises and representations made by appellant; and that, acting upon such representations and promises, defendant performed much work and service in putting the plow on the market and obtaining the order therefor, which representations were false, and induced that defendant’s action in procuring the order from Celum.

Defendants Love and Albert H. Celum, adopted the answers of their codefendants, and set up their suretyship upon the notes sued upon.

The cause was submitted to a jury upon special issues, all of which were answered in favor of the defendants, and in accordance therewith, a judgment was entered that plaintiff take nothing by its suit; that the order and notes be canceled; that A. T. Ce-lum delivered back to appellant the plow and attachments; and that Celum reoover from the plaintiff the cash payment, freight paid, and certain expenses incurred in testing the plow, and to secure its payment, a lien was established and foreclosed upon the plow and its attachments.

We will not undertake to discuss in detail the numerous assignments and supporting propositions submitted in appellant’s brief. To do so would protract the opinion to an unreasonable length and serve no good purpose. The opinion will be confined to a statement of our conclusions upon what are conceived to be the controlling questions in the case.

There is no merit in the contention, presented in various forms, that the false and fraudulent representations pleaded by A. T. Celum were not available as a defense, in view of the provision in the contract that appellant would not be bound by verbal agreements made by its travelers, mechanical experts, or local agents. The rule, forbidding the introduction of parol evidence to alter, vary, or contradict the terms of a written instrument, has no application where it is sought to avoid a contract, the .execution of which was induced by false and fraudulent representations. Discussion of this phase of the case is unnecessary to show the propriety of the court’s action in annulling the contract based upon the finding of the falsity of the representation that the plow, would plow five-year alfalfa sod 10 inches deep, and that the plow had been thoroughly tested in all kinds of soil; was a success; had sufficient power to plow any kind of soil; was simple in operation; would plow 8 to 10 acres a day; was adapted to use as a tractor; and was capable of doing the work of 7 to 10 horses. It is sufficient to refer only to some of the authorities to show the inapplicability of the parol evidence rule invoked by appellant. See Case Threshing Machine Co. v. Webb, 181 S. W. 853; United States Gypsum Co. v. Shields, 106 S. W. 724; Bonding Co. v. Bomar, 169 S. W. 1060; Kirby v. Thurmond, 152 S. W. 1099.

There is no merit in the contention that the doctrine of caveat emptor applied to the purchase of the plow. The fact that the written contract for its purchase was executed by A. T; Celum with the understanding that he was to have the privilege of testing the plow for the purpose of seeing the work it would do before accepting it would not seem to render the doctrine applicable. Upon the contrary, it rebuts such idea. And whether the agents of appellant had any authority to make the false and fraudulent representations which induced the execution of the contract is a matter of no importance. Halsell v. Musgrave, 5 Tex. Civ. App. 476, 24 S. W. 358; Wright v. Calhoun, 19 Tex. 420.

It is contended that A. T. Celum could not rely upon representations made hy the Hackney Manufacturing Company in its letters to the Valley Implement & Vehicle Co., relative to selling a plow to the Valley Implement & Vehicle Company, because such representations were not made for the purpose of having the Valley Implement & Vehicle Company communicate the same to A. T. Celum. Regardless of whether the representations contained in these letters were intended to be communicated to A. T. Celum, they were nevertheless sufficient to authorize the Valley Implement & Vehicle Company to make to Celum the same representations contained in such letters. Since the company was appellant’s agent, representing it in procuring the order from Celum, it is a matter of no consequence whether it was appellant’s purpose that such representations should be communicated to Celum.

There is no merit in the fourth proposition subjoined to the first assignment.

In reply to fifth proposition under first assignment, it is sufficient to say that Celum was not precluded from rescinding the contract because he received and tested the plow and procured indorsers upon his notes and delivered same to appellant. Upon the contrary, that was the proper thing for him to do under his contract. It would be a strange rule which would preclude him from rescinding because he gave the notes required by his contract and received the machine, made a thorough test thereof, and adopted every suggestion made by appellant’s agent in an effort to make it comply with the representations made concerning it.

.It is insisted that the judgment is contrary to the law and evidence in so far as it adjudges that plaintiff take nothing against the Valley Implement & Vehicle Company, R. W. Love, and Albert H. Celum. A complete answer to this is that A. T. Celum was the principal maker of the notes sued upon, and the other parties thereto were secondarily liable only. This being the case, necessarily no judgment could be rendered against them until a valid obligation was established against the principal maker. Wills v. Tyer, 186 S. W. 862.

It appears that appellant paid the Valley Implement & Vehicle Company a commission of $281.25 for effecting the sale to Celum, and it is urged that in any event appellant should have had judgment against the company, recovering back the commission so paid. The suit -at bar, however, is based upon the express contract evidenced by the notes of the parties. If any obligation exists upon the part of the Valley Implement & Vehicle Company to refund the commission, it arises upon an implied contract, and there is no pleading to warrant a recovery thereof upon that theory. A recovery upon an implied contract cannot be had where the suit is based upon an express contract. See cases cited 13 Michie, Dig. 1176.

Appellant contends that the judgment in A. T. Celum’s favor upon his cross-action is excessive in two particulars, viz.: (1) In the allowance of $244.21 for expense items incurred for labor, gasoline, and lubricating oil in testing the plow; (2) in the allowance of $150, the price of a ¿-bottom 16'' Hackney gang attachment.

As to the first item, the rule is well settled that upon rescission of a contract for fraud inducing its execution, the purchaser is entitled to recover back the purchase price, if already paid, with such special damages, if any, as could have been reasonably contemplated as a result of the fraud. And when the purchaser has incurred necessary expenses, which are the direct and proximate consequence of the fraud, such expenses should certainly be taken into consideration as a proper element of special damages. Hubbs v. Marshall, 175 S. W. 716; 14 Am. & Eng. Ency. Law (2d Ed.) 179.

The items of expense, the allowance of which is complained of, were necessarily incurred in making the thorough and complete test given by Celum in an earnest effort to make the plow do the work which it was represented it would do; the expense accrued as a direct and proximate result of appellant’s fraud, and there was no error in allowing a recovery thereof.

As to the gang attachment, it is asserted that no false representations were made with respect thereto, and there was no ground for a rescission of the contract of sale thereof, with recovery of the purchase price paid therefor. ’This attachment was part of the original order, and an essential part and parcel of the plow outfit; it was part of a complete whole and the right to tender it back and recover its purchase price followed as a necessary consequence, if Celum was entitled to a rescission of the purchase of the auto plow.

Consideration has been given to the various assignments which complain of the rulings upon evidence, and the conclusion is reached that they present no error.

The assignments complaining of the refusal to instruct a verdict in appellant’s favor are overruled, for the reason that defendant’s pleadings presented a valid defense, and there is ample evidence to support the issues presented.

For like reason, there was no error in the submission to the jury of issues 3, 4, and 9.

The court did not err in its instruction that any representations made by Henry Brown in procuring the indorsement of the Valley Implement & Vehicle Company to said notes that the plow was satisfactory to Ce-lum, and that it worked well, would be binding on the plaintiff if such statements were relied upon by the Valley Implement & Vehicle Company in indorsing the notes. As is stated, it is immaterial whether appellant authorized Brown to make the representations. It cannot avail itself of the fruits of the false representations, and at the same time disclaim responsibility therefor.

There is no error in the failure of the court to submit issue No. 9, requested by appellant. There was no attempt to recover, and no recovery allowed for any damage arising from defective parts.

Assignments 26 to 30, both inclusive, are without merit.

By its thirty-first assignment, appellant complains of the action of the court in establishing and foreclosing a lien in A. T. Oelum’s favor upon the auto plow and attachments to secure the payment of the amount adjudged to him upon his cross-action. The counterclaim of Celum for the $500 cash, paid at the time the plow was purchased, the freight paid thereon, and expenses incurred in testing the plow, simply represented an unsecured demand against appellant. The case presents no aspect, justifying the establishing of an equitable lien upon the plow to secure its payment. If appellant were insolvent, that possibly would present a case where equity would intervene and establish a lien to secure the payment of the counterclaim. Such was the case in Hall v. Bank, 143 Wis. 303, 127 N. W. 969, cited by appellees. That is the distinguishing feature of that case. We do not regard the fact of appellant’s nonresidence as raising any equity in appellee’s favor sufficient to justify the establishment of a lien upon the plow and attachments. In 35 Cyc. 612, it is said:

“It has also been held that the buyer has a lien on the goods for advances made in the purchase price, and that, in an action to recover the purchase price on a rescission of the contract, a lien to secure such payment is properly decreed” (citing two Kentucky cases).

It will be noted that Oyc. does not give its indorsement to this holding, but merely states the fact that it has been so held. The other authorities cited by appellee simply relate to general principles of equity jurisprudence, and have no special pertinency to the question here considered. The court erred in establishing and foreclosing this lien, and the judgment in that particular will be reformed.

Reformed and affirmed.

On Rehearing.

In passing upon the twenty-fourth assignment, it was said in the original opinion that there was no error in refusing to submit special issue No. 9, requested by appellant, because there was no attempt to recover, and no recovery allowed for, any damage arising from defective parts. On the motion for rehearing our attention is called to the fact that a recovery was sought by A. T. Celum for such damages. The opinion is here corrected in that particular. Appellant admits, however, that no recovery was allowed for such items. In passing upon the assignment, it may be further remarked that the issue concerned merely á minor evidentiary fact. The issue reads:

“Did A. T. Celum return the defective parts of the auto plow charged for in his Exhibit A to plaintiff as requested in the order for said plow?”

The motion for rehearing has been carefully considered, and the conclusion reached that a correct disposition of the appeal was made in the original opinion, and that the motion should be overruled.

It is so ordered.
      <@=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: .TALBOT, J.

license: Public Domain

text:
    ILLINOIS BANKERS’ LIFE ASS’N v. DODSON.
    (No. 7589.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1916.
    Rehearing Denied Dec. 9, 1916.)
    1. Insurance <§=>373(1) — Soliciting Agent-Powers — Estoppel.
    If an insurance agent sent out by his company to solicit applications states to a person that the insurance will cost a stated sum per year and he, induced by and relying thereon, pays the stated amounts, which the company accepts, and issues the policy without informing him in any way whatever that the sum paid is not a full year’s premium, the company is es-topped to assert forfeiture for nonpayment of an assessment of which insured had no notice.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 947; Dec. Dig. <S¿>373(1).]
    2. Insurance <§=>183 — Powers oe Soliciting Agents — Implied Powers.
    An insurance agent soliciting insurance and obtaining applications, collecting premiums and delivering policies has implied authority to state to applicants with binding effect on the insurer what the amount of the annual premium will be.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 394; Dec. Dig. <§=>183.]
    3. Insurance <§=>629(2) — Pleading — Sufficiency.
    Allegations of petition that a certain agent procured deceased to take out a policy, stating to him that the premium would be $20 per year, that such agent delivered the policy without notifying insured’ that the premium would be greater than originally stated, sufficiently alleged the authority of the agent to bind the company by his statements as to what the premium would be.
    [Ed. Note. — For. other cases, see Insurance, Cent. Dig. § 1584;’ Dec. Dig. <§=>629(2).]
    4. Insurance <§=>665(2) — Actions—Authority of Soliciting Agent — Evidence.
    Evidence held to show that the agent soliciting insurance had power to 'bind insurer by a statement of what the annual premium would be.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1709; Dec. Dig. <§=>665(2).]
    5. Insurance <§=>131(3) — Consideration — Waiver of Representations.
    Where the soliciting agent for insurance represented that the annual premium would be a certain sum, whereas the by-laws, by refer-enee incorporated in the policy, provided for assessments, the fact that the representation was oral and preceded delivery of the policy which was accepted and retained without objection is of no serious consequence.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 209; Dec. Dig. &wkey;131(3).]
    6. Principal and Agent <&wkey;116(l) — Powers op Agent — Implied Powers.
    Powers of an agent are prima facie coextensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 377; Dec. Dig. <&wkey;116(l)J
    7. Witnesses <&wkey;192 — Competency — Husband and Wipe — Confidential Communications.
    In an action by the wife on a policy on her husband’s life, her statement as to what the husband said when he delivered the policy to her as to the time when the premium would be due is not objectionable as a confidential communication.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 739; Dee. Dig. &wkey;192.]
    8. Evidence <&wkey;317(4) — Hearsay.
    Such testimony was, however, hearsay and incompetent.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1177; Dec. Dig. &wkey;317(4).]
    9.' Evidence &wkey;»370(3) — Corporate Records —Admissibility.
    In an action against a foreign insurance company on its policy, the record of an assessment passed at a meeting, signed by the president and secretary, is admissible in evidence under Rev. St. 1911, art. 3713, providing that the records of any company incorporated within the state shall be competent evidence in a proceeding to which the corporation is a party and in view of the presumption, in the absence of proof of the statute of the corporation’s domicile, that such statute was the same as prevailed in Texas.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1562; Dec. Dig. <&wkey;370(3).]
    10. Evidence <&wkey;370(3) — Corporate Record s — Admissib ility.
    To render such certificate admissible it was not essential to prove that the signers were the president and secretary of the corporation or that the signatures were theirs.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1562; Dec. Dig. 4=370(3).]
    11. Insurance <&wkey;002, 643(1) — Refusal to Pay on Demand — Penalty—Demand—Sufficiency.
    The demand by the beneficiary for payment of a disputed claim on a policy of life insurance, sufficient to entitle him to recover 12 per cent, damages and attorney’s fee, may be made after bringing action on the policy and be shown by amendment.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1498, 1587; Dec. Dig. &wkey;662, 643(1).]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Eugenia Dodson against the Illinois Bankers’ Life Association. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Hugh W. Peck, of Dallas, for plaintiff in error. Locke & Locke, of Dallas, for defendant in error.
   .TALBOT, J.

Eugenia Dodson, the defendant in error, who will hereinafter be designated as plaintiff, brought this suit against Illinois Bankers’ Life Association, plaintiff in error, who will hereinafter be called defendant, to recover on a policy of insurance of $1,000 issued by the defendant on the life of George W. Dodson, plaintiff’s husband, payable to plaintiff. The death of George W. Dodson occurred within the first policy year. The defendant defended on the ground that an assessment claimed to have been levied about six months after the policy was issued had not been paid. The plaintiff denied that any such assessment had been levied, and pleaded that neither she nor her husband, George W. Dodson, had any notice of any such assessment, that neither the policy nor any paper delivered to them gave any information of such assessment, but that, on the contrary, it was represented by the agent of the defendant that the sum paid by George W. Dodson on the issuance of the policy carried the policy for a year, and that this representation was made by defendant’s agent as a part of and in pursuance of a, fraudulent scheme conceived and executed by the defendant to obtain policy holders.

The case was tried with the aid of a jury and submitted on special issues. On the findings of the jury, which were favorable to the plaintiff, judgment was rendered in favor of the plaintiff for $1,371.24, of which $1,-051.24 represented the principal of the policy sued on and the. interest accrued thereon, $120 statutory pénalties, and $200 an agreed reasonable attorney’s fee. The defendant’s motion for a new trial being overruled, it brought the case to this court by writ of error.

The defendant’s assignments of error from 1 to 8, inclusive, complain of the court’s action in overruling special exceptions urged to plaintiff’s pleadings. The plaintiff alleged, among other things, that the deceased, George W. Dodson, was induced to apply to the defendant for the policy sued on by one H. Gap-ers, a duly authorized agent of the defendant; that the said Capers represented to the said Dodson that said insurance would cost him, or require the payment of premiums by him, of only the sum of $20 per year, but that at the beginning of the first year he would be required also to execute two notes of $10 each due in one and two years for a guaranty fund; that the said Dodson, induced by said representation, agreed to apply to the defendant for said policy, and did so apply, and was examined by the defendant’s medical examiner, and thereafter th'e policy in suit was delivered to him by the defendant, acting through its said agent, H. Gapers; that the said Dodson thereupon executed to the defendant and delivered to it through its said agent his two notes for $10 each due in January, 1914, and January, 1915, for the guaranty fund as aforesaid, and shortly thereafter paid to the defendant through its said agent the sum of $20 as and for the premium for the first year in pursuance of the representations of the said agent and the recital in said policy, which was that the same was issued in consideration of the sum of $20 paid by the said Dodson; that the defendant did not then, or at any time, through the said agent, Capers, or any other agent or officer, either orally or in writing, notify or inform the said Dodson, or notify or inform the plaintiff during the life of the said Dodson, that said representation of said Capers was incorrect or that any sum whatever would he due from him on account of said policy prior to the expiration of one year from the date thereof; that the policy delivered to the said Dodson contained, aside from the recital mentioned above, no mention of the amount or date of premium payment, and especially contained nothing in any wise repugnant to or inconsistent with the representation of the said Capers; that it is true that it contained a provision that the charter and by-laws of the defendant association should be a part of the contract, and that upon the failure of the said Dodson to pay the calls levied within the time allowed by the by-laws of the defendant the policy should be forfeited and all rights to any share or interest in the guaranty fund or other property of the defendant should cease absolutely at the expiration of the time within which such payment should be required to be made; but no copy of the charter or by-laws was delivered to the said Dodson, and he believed, and had a right to believe, that such by-laws provided for the payment of premiums or calls only as the said Capers had represented as aforesaid; that the plaintiff does not know what provisions are contained in said charter and bylaws, and has no information concerning the contents of the same except as the defendant has undertaken to state them in the letters hereinbefore set out; that the plaintiff has never seen a copy of said charter or bylaws, and though, through her attorneys, she has often requested of the defendant and its agents a copy of the same, the defendant and its agents have failed and refused to furnish her with the same; that no notice whatever was received by the said Dodson or by the plaintiff of any call levied or premium due at any time after the issuance of said policy, and both the said Dodson and the plaintiff fully believed that said policy was fully paid for one entire year from the date of its issuance; that if any notice had been given, either to the said Dodson or to the plaintiff, of any call properly levied and really due from the said Dodson or the plaintiff under the charter or by-laws of the defendant, the same would have been promptly paid. Wherefore said policy was in full force at the time of the death of the said George W. Dodson on July 7, 1913, as aforesaid.

These allegations, it is asserted, are defective and insufficient: (1) Because it is not alleged that the said Capers was authorized to enter into such an agreement with the said George Dodson, or any agreement or contract other than to receive the application for said policy, and, if authorized, how was he so authorized? (2) because the representations and agreements therein alleged were merged into and-became a part-of the contract sued on; (3) because said policy having been delivered to the said assured, George Dodson, and the same having been acquiesced in and accepted by him as the basis of the insurance contract, the assured had waived any representations made by the said agent or any agreement had with the said Capers contrary to the stipulations set out in said policy, and is now estopped from pleading same to vary the terms of said contract; (4) because said policy having been delivered to assured, and the assured having accepted same, plaintiff is now estopped from setting up any belief, understanding, or agreement other than is expressed by the application and the terms of the policy; (5) because the doctrine of estoppel has no application where a statement relates to a written contract yet to be made and entered into, and because the insured, having executed the application for insurance, had notice of the limited authority conferred on the agent; (6) because plaintiff does not allege that defendant corporation had conferred authority on said Capers which would empower and authorize him to change the rate and time of payment of premium due defendant for said insurance; (7) because the application signed by insured seeking to obtain said insurance gave insured notice that premiums were collected on “calls” of defendant, and gave the insured notice that the premiums collected each year were not certain, fixed, and definite sums, but were paid on assessments or calls levied by directors of defendant, and because said application gave insured notice of the limited authority conferred on said Capers.

We think the exceptions of the defendant were properly overruled. It Is well said by^ counsel for the plaintiff in his counter proposition that:

■ “When an agent is sent out by his company to solicit applications for insurance from members of the public and to advise them what such insurance will cost, and does state to a particular member of the public that it will cost him so much per year, and he, induced thereby, and relying thereon, makes application and pays what the agent tells him the insurance will cost him for the first year, and the company accepts the money and issues the policy, and, by no provision in its policy or any other paper delivered to him, and by no communication, written or oral, informs him that any payment will be due by him in less than one year, the company, on his death within the year, is estopped to assert the forfeiture of such policy for nonpayment of an assessment levied within the year of which he had no notice of any kind. Especially is this true when the company, for the furtherance of its business, has adopted forms of paper and a course of business deliberately designed to withhold from him knowledge of such intended assessment until he is formally advised thereof by receipt of a demand for payment.”

This is but stating the well-established rule of equitable estoppel, and the facts disclosed by the record present a case for the operation of that doctrine.

As pointed out by the plaintiff, the agent, Capers, was appointed by the defendant and orally authorized to solicit insurance, obtain applications, collect premiums, and deliver policies, and there seems.to have been no restrictions, oral or written, on his authority. That he was expected and authorized to state the cost of the insurance, which he was employed to solicit, and to state when and what premium would be payable thereon, is a clear implication from the authority to solicit insurance, obtain applications, and collect premiums. Such authority in the present case is not based on implication alone. The general agent of the defendant testified, in effect, that it was expected that the agent would make such statements and that he was authorized to do so. Besides, the manual of instructions placed in the agent’s hands contained a passage whereby the defendant not only suggested, but instructed, the agent to state to a prospective applicant the cheapness of the insurance offered. Again, it seems that the defendant relied exclusively on its agents to present the facts in that respect to an applicant; for it is made to appear that it printed no literature for distribution by its agents explaining the cost, and particularly not the greater charge for the insurance during the first year. It did not distribute copies of its charter or by-laws, nor place any memorandum or notice whatever on application, policy or other paper, delivered either to the prospective applicant or newly admitted member, whereby he could learn when and what premiums would be payable on the policy. It trusted to its agent to impart all necessary information on that subject. H. Capers, the agent of the defendant who solicited George W. Dodson to apply for the policy of insurance issued to him, said:

“The first thing I told him was the price. I usually, in soliciting insurance, tell the man what it will cost a year. I first told him what it would cost a year, and then I expected to tell him — which I never did — about the first premium being for only six or eight months, or five months. Really I had met George out here at the tent meeting we have been having, and I thought I would explain it to him, but I never had an opportunity; I never saw George to talk to him but three times after the policy was issued. The first time I met him, I told him what would be the annual premium, exactly what it would cost a year, the first jump out of the box. I told Mr. Dodson what his policy would cost him for the first year. In soliciting business I would do that the very first thing, and then get down and negotiate, and then explain further about the other premium afterwards.”

He asserted, however, that he never did tell George (Dodson) that $20 would pay the premium for one year.

The plaintiff, Mrs. Eugenia Dodson, testified:

“I was present at a conversation between Mr. Dodson and Mr. H. Capers regarding the insurance policy. That conversation occurred at our home, 3809 San Jacinto street, city of Dallas, Tex. There was no one else present except the doctor that examined Mr. Dodson for the insurance. The conversation occurred in the evening after supper. It is rather hard for me to tell exactly the conversation that occurred, there was so much said on different subjects and about the policy, but the main thing that the agent said to induce him to take the policy was on account of the cheapness of it. He said the policy would cost Mr. Dodson $20 a year; that was to pay for the policy one year.”

We conclude sufficient authority in the agent of the defendant dealing with the deceased, Dodson, was both alleged and proved, and that the facts that the representation made in the ease was oral, and that it preceded the delivery of the policy of insurance, and that the policy was accepted and retained without objection are of no serious consequence.

It is well-established law:

That the “powers of an agent are prima facie coextensive with the business intrusted to his care, and that they will not be narrowed by limitations not communicated to the person with whom he deals.” Union Ins. Co. v. Wilkinson, 13 Wall. 235, 20 L. Ed. 617; 22 Cyc. 1423; Amarillo National Life Ins. Co. v. Brown, 166 S. W. 658; Shook v. Retail Hardware Mut. Fire Ins. Co., 154 Mo. App. 394, 134 S. W. 589.

In Mutual Life Ins. Co. v. Summers, 19 Wyo. 441, 120 Pac. 185, cited by the plaintiff, the court, in discussing the authority of the agents to explain the proposed contract involved in that case said:

“The agents were furnished with blank applications for insurance by the defendant, and were acting within the scope of their authority in soliciting and explaining the plan of the contract which they were offering to sell to plaintiff and his assignors. They represented the defendant as fully in that respect as its president, and were clothed with apparent authority to do so. Whatever knowledge of the kind and plan of insurance agreed upon orally, and which should have been correctly carried into the written application and reported to the defendant (Jacoway v. Insurance Co., 49 Ark. 320, 5 S. W. 339), would be imputed to the defendant; for its agents were there at its instance, with superior knowledge of the terminology of life insurance, for the purpose of advising and 'directing the plaintiff and his assignors in the matter of the application. Huestess et al. v. South Atl. Ins. Co., 88 S. C. 31, 70 S. E. 403; Briggs v. Life Ins. Co., 155 N. C. 73, 70 S. E. 1068.”

In Pfiester v. Missouri State Life Ins. Co., 85 Kan. 97, 116 Pac. 245, the company defended on the ground that the second annual premium had not been paid. The plaintiff claimed that the defendant’s agent had represented to the insured that annual premiums would be payable on the policy on June 14th of each year, or within 30 days of grace thereafter, and that by fault or mistake the date had been otherwise fixed in the policy. The company denied the authority of the agent, and urged, as the defendant does in this case, that the insured accepted the policy without objection and was concluded thereby. The court, in ruling against' the contention of the company, said:

“In this case the agent had authority. to negotiate, write, and transmit the application. For those purposes he had all the power the company itself possessed, and agreements made with him as to what the terms of the application should be were made with the. company. It was the agent’s duty to frame the application according to the agreement with the plaintiff, and his neglect to do so was the neglect of the company. His knowledge of the agreement was the knowledge of his principal, and consequently, for all purposes of the law, the defendant knew the true terms of the application.”

. In the present case we think it was within the scope of the agent’s actual, as well as his apparent, authority to make representations concerning the cost of the insurance he was offering to George W. Dodson, and the authorities make it quite clear that the defendant is responsible for the representations actually made by him. The provision of George W. Dodson’s application for the insurance pleaded by the defendant as precluding the plaintiff from showing the representation made by the agent does not have that effect. This provision of the application, as contended by plaintiff, has reference to statements of an insured to the defendant in his application and in the medical examiner’s report, and not to statements by its agent to an insured. But, if this were not true, the provision would be unavailing in view of the evidence of the positive representation and fraudulent concealment introduced in this case.

It is assigned that the court erred in permitting the following question to be asked the plaintiff, Eugenia Dodson, by her counsel while she was testifying in her own behalf, and her answer thereto, namely:

“What, if anything, did he (Dodson) say to you at the time he gave you the policy? A. He just handed me the policy and said: ‘Mama, put this one away; we won’t have to be bothered paying on this for one year, and .the others are paid by the month;’ and so I put it with the other policies and locked it up. He (Dodson) said, ‘We won’t have to be bothered paying on this policy for a year.’ ”

This testimony was objected to by the defendant on the grounds that it was immaterial and irrelevant; that it was a confidential communication between husband and wife; that no agent of defendant was present when said communication was made,' and the same was a self-serving declaration. We think the objection that this testimony was a confidential communication between husband and wife is not well taken. As said by Mr. Wigmore in his work on Evidence, § 2836:

“The essence of the privilege is to protect confidences only, and if the communication is not intended to be a secret one, the privilege has no application to it.”

Looking to the subject-matter of the communication . admitted in this case and the circumstances under which it was made, we think it should be held that it was not a confidential. declaration. But it occurs to us that it was hearsay, and as such was irrelevant and incompetent. Whether' the agent of the defendant, in soliciting and inducing the deceased, George W. Dodson, to apply for the policy of insurance in suit, represented to the said Dodson that the insurance to be obtained thereby would cost him or require the payment of premiums by him of only the sum of $20 per year, was a vital issue in the case, and the declaration of the plaintiff’s husband to her, when directing her to put the policy away, to the effect that “we won’t have to be bothered paying on this for one year,” was very material testimony tending to show that such representation was made; therefore it cannot be said the testimony was harmless, and we think it should have been excluded.

The twelfth assignment of error complains of the court’s action in refusing to admit in evidence a certified copy of a resolution or by-law of the defendant by which it expected to show that the assessment or call No. 61, for the nonpayment of which it is claimed the policy sued on was forfeited, was a valid call, having been duly made by the board of directors of the defendant in accordance with the authority vested in them by its charter and by-laws. The document offered and excluded purported to be a copy of a resolution passed at a meeting of the directors of the defendant, held at its office, at which the assessment or call in question was made, and attached thereto were the following certificates:

“Monmouth, Ill., Nov. 12, 1914.
“I, W. A. Sawyer, do hereby certify that I am the secretary of the Illinois Bankers’ Life Association, a corporation organized under the laws of the state of Illinois; that as such secretary I am the keeper of the records and seal of said association.
“I hereby further certify that the above is a true and correct copy of the record of a directors’ meeting of the said Illinois Bankers’ Life Association as shown by the records on file in the office of said association.
“In witness whereof I hereunto affixed my hand and seal of the association the day and year above written. [Signed] W. A. Sawyer, Secretary of Illinois Bankers’ Life Association.
“I, W. H. Woods, do hereby certify that, as president of said association, I presided at the meeting of which the above is the record and that the acts and doing of said meeting are correctly recorded above.
“In witness whereof I hereunto affixed my hand and seal the day above written. [Signed] W. H. Woods, President of Illinois Bankers life Association. [L. S.]”

The defendant objected to the introduction of this document on the grounds that it was not shown that the signatures attached thereto were the genuine signatures of W. A. Sawyer and W. H. Woods, or that either occupied the official position indicated at the time of the pretended execution of the. document, that there was no testimony that such a reso^ lution was passed by the board of directors of defendant, or that the paper contained á true copy of a resolution passed by them, and that said copy was' not the best evidence of the action of the directors.

We are of opinion that none of the objections urged by the plaintiff to the introduction of this testimony are well taken, and that its exclusion, if no other reason exists for so doing, requires a reversal of the case. Article 3713 of our statute (Rev. St. 1911) provides that:

“The records of any company incorporated under the provisions of any statute. of this state, or copies thereof duly authenticated by the signature of the president and secretary of such company, under the corporate seal thereof, shall be competent evidence in any action or proceeding to which such corporation may be a party.”

The defendant is a foreign corporation, domiciled in the state of Illinois, and we are not informed by the record sent to this court what the statute of that state requires of a corporation in respect to preserving a record and minutes of the official acts of its directors, and in the absence of such information the statutes of this state which require such records and minutes to be made, and which authorize the introduction of copies thereof as evidence, must be applied. This is the holding of the Court of Civil Appeals of the Third District in this state in the case of People’s Building Loan & Savings Ass’n v. Chambers, 54 S. W. 247, and meets with the approval of this court. The names of W. H. Woods and W. A. Sawyer, who signed the document in question as president and secretary, respectively, of the defendant, and certified that it was a true and correct copy of the record of a directors’ meeting of the Illinois Bankers’ Life Association, the defendant, appear to have been signed to the policy in suit as president and secretary, respectively, of the defendant association, and there is nothing in the record indicating that they did not hold those positions when the resolution offered in evidence and excluded upon the objections urged by the plaintiff purports to have been passed and their certificates thereto were made. Their official positions then not having been called in question, it must be held that, under the statute of this state and the presumption that the statute of the state of Illinois is the same upon the subject involved, the resolution was sufficiently authenticated to authorize its admission in evidence for the purpose for which it was offered, and that it was not essential' to its admissibility to prove aliunde the certificates attached thereto that W. H. Woods was the president and W. A. Sawyer the secretary of the defendant, and that the signatures subscribed to said resolution ¿nd certificate were the genuine signatures of the said Woods and Sawyer. »

It is further assigned that the court erred in awarding to plaintiff the attorney’s fee and statutory damages. In this there was no error. As contended for by plaintiff, the demand necessary to entitle a plaintiff, in a suit like this, to recover 12 per cent, damages and reasonable attorney’s fee, where the defendant has failed to pay the loss within 30 days after demand therefor, may be made after the institution of suit, and the fact of such demand shown .by an amended petition thereafter filed. Such was the holding of this court in Security Trust & Life Ins. Co. v. Hallem, 32 Tex. Civ. App. 134, 73 S. W. 554, in which a writ of error was denied by the Supreme Court, and in Assurance Co. v. Sturdivant, 24 Tex. Civ. App. 331, 59 S. W. 61. See, also, Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126, 47 L. Ed. 204.

There are several assignments of error which have not been discussed. Many of these assignments have been disposed of adversely to the defendant’s contention by what has already been said, and those not so disposed of do not disclose reversible error.

Eor the reason indicated, the judgment is reversed, and the cause remanded.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <¡3=>For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. REED.
    (No. 5724.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1916.)
    1. CARRIERS <&wkey;227(3) — Injury to Cattle-Actions — Variance.
    There is a fatal variance between a petition alleging injury to cattle jointly owned by the plaintiffs and praying for a joint recovery and proof of a separate cause of action in favor of each plaintiff.
    [E’d. Note. — For other cases, see Carriers, Cent. Dig. § 956; Dec. Dig. <5&wkey;227(3).]
    '2, Abatement and Revival <&wkey;40 — Dismissal and Nonsuit &wkey;>58(l) — Pleading &wkey;> 22S — Misjoinder—Correction.
    A petition which states two separate causes of action which were misjoined, may be corrected by exception or plea in abatement subject to the discretion of the court or by dismissal as to one of the causes of action.
    [Ed. Noté. — For other cases, see Abatement and Revival, Cent. Dig. §§ 205-211; Dec. Dig. <@=340; Dismissal and Nonsuit, Cent. Dig. §§ 134, 138; Dec. Dig. <&wkey;>58(l); Pleading, Cent. Dig. § 219; Dec. Dig. <&wkey;>228.]
    3. Judgment <&wkey;235 — Coparties — Correction.
    The variance between a petition, alleging a joint causé of action in favor of two plaintiffs, and proof of a separate cause of action in favor of each cannot be corrected by dismissing the action as to one plaintiff and rendering judgment for the other, since there is no petition authorizing the separate judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 414, 429; Dec. Dig. &wkey;235.]
    4. Judgment &wkey;>235 — Parties — “Fundamental Error.”
    Error in rendering a separate judgment for one plaintiff upon a petition stating a joint cause of action in favor of two plaintiffs is fundamental.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 414, 429; Dec. Dig. <&wkey;235.) "

      Appeal from Jim Wells County Court; L. Broeter, Judge.
    Action by J. P. Reed and another against the International & Great Northern Railway Company and others. Judgment for J. P. Reed against the International & Great Northern Railway Company, and that defendant appeals.
    Reversed and remanded.
    Greer & Hamilton, of Laredo, W. R. Perkins, of Alice, and Wilson, Dabney & King, of Houston, for appellant. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appellee.
   SWEARINGEN, J.

This is a suit instituted by appellee to recover damages arising from negligence in handling cattle and delay in transportation. The cattle were shipped from Hebbronville, Tex., to Ft. Worth, Tex. There was no contract alleged, except one arising from delivery of the cattle to the Texas-Mexican Railway Company to be by it delivered to appellant. Receivers of appellant answered by general demurrer ahd general denial. The cause was tried before the court, without a jury, and judgment was rendered in favor of appellee for , $445.50, against appellant and in favor of the Texas-Mexican Railway Company that appellee recover nothing by his suit.

There is a fatal variance between the cause of action alleged and the one proven as appears by recitals in the judgment rendered. The petition alleges a joint cause of action; the proof shows a distinct or several cause of action. The proof that the cause of' action is several, and not joint, is stated by the appellee in the motion to reform the judgment, which motion was granted by the court, and the proof of a several cause of action further appears in the recitals of the judgment. That the allegation is of a joint cause appears from the fourth and eleventh paragraphs of the petition, as well as in the prayer, which are here quoted.

“(4) Plaintiffs further represent to the court that heretofore, on or about the 27th day of April, 1914, they delivered to defendant Texas-Mexican Railway Company, in g-ood condition, at Hebbronville, Tex.,.a station on said defendant’s line of railway, a shipment of 163 head of cattle for transportation by said defendant Texas-Mexican Railway Company and its code-fendants herein, from Hebbronville, Tex., to Ft. Worth, Tex.
“(11) Premises considered, plaintiffs say that by reason of defendants’ negligence in handling said shipment of cattle so roughly, and in negligently delaying said shipment of cattle as herein-above set out, they have been damaged in the sum of $700.
“Wherefore, plaintiffs pray that defendants be cited to appear and answer to this petition, and that upon final tidal plaintiffs have judgment for their damage in the sum of $700, together with legal interest thereon, for costs of suit, and for such other relief general and special as they may be entitled to in law or in equity.”
The second paragraph of plaintiffs’ motion to reform the judgment is as follows:
“That it appeared upon the trial of said cause that the cause of action of W. A. Reed was separate and distinct from that of J. P. Reed, and that plaintiff W. A. Reed was not a proper party to the said suit of plaintiff J. P. Reed.”

The trial court granted the plaintiffs’ motion to reform the judgment, and thereafter in accordance therewith entered the final judgment, in which the following statement is made:

“The court, having heard the pleadings and the evidence and argument of the counsel, is of the opinion that the cause of action of plaintiff J. P. Reed is separate and distinct from that of W. A. Reed, and that said causes of action are improperly' joined in the suit, and that the cause of action of W. A. Reed should be dismissed. It is therefore ordered, adjudged, and decreed that this cause be dismissed as to plaintiff W. A. Reed, and that all such costs as have been incurred in this case by such plaintiff be adjudged against said- W. A. Reed. * * * It is therefore ordered, adjudged, and decreed that plaintiff J. P. Reed do have and recover of and from the defendant International & Great Northern Railway Company the sum of $445.50, and all costs of this suit not otherwise herein adjudged.”

The error apparent from the record, as indicated by the foregoing excerpts, is not one of misjoinder of two distinct causes of action by two separate plaintiffs; but is a fatal variance between the allegata and pro-bata. There is no allegation in the petition that will admit the testimony introduced and support the judgment rendered. There is no pleading upon which to base the judgment. The petition alleges a joint cause of action, and prays for a joint recovery. The evidence and judgment support a several cause of action. In the petition J. P. Reed and W. A. Reed appear to have owned the cattle jointly. The proof and judgment flatly contradict this allegation of joint ownership. The attempt to dismiss W. A. Reed, one of the original plaintiffs, from the suit did not amend the petition .upon which alone the judgment could be based.

Had the petition alleged the cause of action in favor of J. P. Reed, and had also separately alleged a cause of action In favor of W. A. Reed, it would have alleged two distinct causes of action. Texas-Mexican Ry. v. Lewis, 99 S. W. 577. There would then have been a misjoinder of actions that could be corrected by exception or plea in abatement, subject, however, to the discretion of the trial court. Craddock v. Goodwin, 54 Tex. 578; M., K. & T. Ry. Co. of Texas v. Elias, 184 S. W. 312; Texas Pleading with Forms (1893) § 439.

Or the misjoinder could have been remedied by a dismissal as to one of the misjoined causes of action. Railway v. Lewis, 99 S. W. 577; Marshall v. Waldrop, 141 S. W. 315.

After correcting the misjoinder by dismissal of one of the two distinctly pleaded causes of action, there would still remain in the original petition a sufficient allegation upon which to found the judgment for the plaintiff not dismissed. In the case at bar the petition alleged a joint cause of action in favor of J. P. Reed and W. A. Reed. After W. A. Reed was dismissed, tile petition still alleged a joint cause of action in favor of both J. P. and W. A. Reed, and there was no pleading that alleged a several cause of action in favor of J. P. Reed alone. The only possible way to have changed the petition upon which the instant case was tried was hy amendment of the petition itself. This was not done. Upon the original petition alleging a joint cause of action in J. P. and W. A. Reed, the trial court had no authority to render a judgment in favor of J. P. Reed for a separate and distinct cause of action. The trial court did this, thereby committed error, and the error is fundamental. In Middlebrook v. Zapp, 73 Tex. 31, 10 S. W. 732, Associate Justice Henry expressed the rule of law applicable to the question here, as follows:

“It is an elementary Tule of pleading that the allegata and probata must correspond, and that a recovery cannot be had on a cause of action not alleged in the pleadings, however well it may be supported by proof.” Longcope v. Bruce, 44 Tex. 436; Speake v. Prewitt, 6 Tex. 252; Stachely v. Peirce, 28 Tex. 335; Salinas v. Wright, 11 Tex. 572; Paul v. Perez, 7 Tex. 345; Walker v. Lewis, 49 Tex. 125.

In the case of Longcope v. Bruce, 44 Tex. 436, the rule is expressed in these words;

“The suit, by the pleadings, was a suit hy Bruce and Wynn; and if the proof showed that only one of them had an interest in the property, there could be no recovery, because the proof would not have sustained the case made in the pleadings.”

■In support thereof the following eases are cited: Hall v. Jackson, 3 Tex. 305; Thompson v. Thompson, 12 Tex. 329; Parker v. Beavers, 19 Tex. 410.

The following authorities also announce the rule: Western Union Telegraph Co. v. Smith, 88 Tex. 13, 30 S. W. 549; Mann v. Falcon, 25 Tex. 276; Cooper v. Loughlin, 75 Tex. 527, 13 S. W. 37; Morris v. Kasling, 79 Tex. 145, 15 S. W. 226, 11 L. R. A. 398; Gammage v. Alexander, 14 Tex. 418; Brown v. Martin, 19 Tex. 344; Brinkley v. Harkins, 48 Tex. 225; Krohn v. Heyn, 77 Tex. 319, 14 S. W. 130.

Because of this fundamental error the judgment must be reversed, and the cause remanded.

Reversed and remanded.
      <&wkey;For other cases <re same'topic and KEJY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    SPANN v. CITY OF DALLAS et al.

    (No. 7591.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1916.
    Rehearing Denied Dec. 9, 1916.)
    1. Municipal Corporations @=>601 — Building Ordinance — Validity — Retroactive Character.
    An ordinance of the city of Dallas, restricting the erection of business buildings in the resident part of the city was not illegal as to plaintiff because, prior to the passage of the ordinance, plaintiff had asked for a permit to build a storehouse, but had not started the erection of his building, since to be retroactive the ordinance must have affected some vested right of plaintiff’s.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent Dig. § 1333; Dec. Dig. <&wkey; 601.]
    2. Municipal Corporations <&wkey;589 — “Police Power.”
    Laws essential for the welfare, good order, and prosperity of the citizens resident in a city fall within the “police power” of the government.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1308, 1319; Dec. Dig. @=>589.
    For other definitions, see Words and Phrases, First and Second Series, Police Power.]
    3. Municipal Corporations @=>591 — Build-in® Ordinance — Construction.
    A building ordinance of the city of Dallas, adopted pursuant to City Charter, art. 2, § 1, subsee. 2, which provided that it should be unlawful to locate or construct any business house or building within any residence portion of the city except with the consent of three-fourths of the property owners within a radius of 300 feet, etc., and providing that application for permit should be accompanied with the consent of three-fourths the property owners within 300 feet, when all provisions were construed together, did not leave the final decision with three-fourths of the residents of any district, but left it for the commissioners to determine whether or not building permit should issue.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1310; Dec. Dig. &wkey;591J
    4. Municipal Corporations <&wkey;lll(4) — Building Ordinance — Partial Invalidity.
    Though a section of a building ordinance providing for consent of property owners of a residence district before erection of a business building therein be obnoxious to the Constitution and laws, if it does not affect the other provisions of the ordinance prescribing the character of buildings, the remaining portions are valid.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 248-251; Dec. Dig. @=>111(4).]
    5. Municipal Corporations &wkey;>122(3) — Building Ordinance — Validity — Evidence.
    In suit by property owner for mandamus to compel issuance of building permit and for injunction restraining interference with erection of storehouse in city of Dallas, despite building ordinance of the city regulating erection of business buildings in residence district, testimony that the location of suburban stores in residence sections detracts from comfort and convenience, and destroys value of the home, was admissible.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. § 287; Dec. Dig. @=> 122(3).]
    Talbot, J., dissenting.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit for writ of mandamus and for writ of injunction by John R. Spann against the City of Dallas and H. J. Emmins. From a judgment denying the writs, plaintiff appeals.
    Judgment affirmed.
    Read, Lowrance & Bates, of Dallas, for appellant. C. F. O’Donnell and Barry Miller, both of Dallas, for appellees.

      Application for writ of error pending in Supreme Court.

   RAINEY, O. J.

John R. Spann, appellant, instituted this suit against the city of Dallas and H. J. Emmins for the writ of mandamus to compel the issuance of a building permit by Emmins to him for the erection of storehouses upon lots of his at the northwest corner of Ross and Eltzhugh avenues in the city of Dallas, and for a writ of injunction restraining the defendants and their agents from, interfering in the erection of said houses or arresting him for engaging in such work. A hearing was had and the writs of mandamus and injunction were denied, and this appeal was taken.

On May 17, 1915, appellant bought the piece of ground at said corner, which was vacant, with the intention to erect storehouses thereon, and learned from the city attorney that there was no law prohibiting the erection of same on such lot. Soon thereafter, during the first part of June, he approached Otto Lang, commissioner of streets and buildings, and asked for a permit to build such a house, but was refused, Lang stating that “we are waiting to hear from the other citizens in that neighborhood.” Afterward appellant made a request of defendant Emmins, building inspector, for a permit to build such a house, which was refused by Emmins because of instructions, from Lang, commissioner, not to issue it.

On July 19, 1915, an ordinance was adopted by the city commissioners prohibiting the building of business houses in the resident part of the city without the application was accompanied with the consent of three-fourths of the property owners within a radius of S00 feet of the center of such location.

Appellant seeks to recover in this action upon two theories:

First: “His right to erect storehouses upon his lot is a valuable property right, and, having asserted this right and demanded a building permit at a time when there was no law, either in statute or ordinance, forbidding the erection of such structures, this right became fixed as of the date when he first applied for such building permit, and could not be taken away or limited by the ordinance thereafter adopted by the city, and be is entitled to a writ of mandamus to compel the issuance of the building permit, and to an injunction restraining the city from interfering with his building operations, without regard to the ordinance of July 19, 1915.”
Second: “The ordinance adopted by the city July 19, 3915, presents no obstacle to the grant-ing_ of the relief sought by the plaintiff because it is void on constitutional and other grounds.”

These theories embody all the right, if any, of recovery by appellant and will be treated in their order. The first, in effect, invoked the principle of the passage of the ordinance of July 19, 1915, as retroactive, and therefore did not affect his right to erect a storehouse on said lot. For the ordinance to be retroactive it must affect some vested right of appellant in the use of the lot as he desired by reason of his intention to erect thereon a storehouse and make application for a permit to build prior to the passage of the ordinance. The ordinance, as passed, only applied to property in its then condition and to its future use. The appellant had not started the erection of a building for use as a storehouse, and we see no difference in his ownership of said lot than the ownership of any other citizen to any other residence lot in the city of Dallas, so the ordinance is not illegal in that respect, and the question resolves itself into his second contention, which, in effec-t, is that it was beyond the powers of the board of commissioners to enact such an ordinance as here relied on by the defendants, which prohibits the erection of buildings for business purposes under certain restrictions.

The charter of the city of Dallas was granted it by the Legislature of the state of Texas, and its authority to act in this matter was given it by subsection 2 of section 1, art. 2, of its charter, which provides:

“The city of Dallas shall have power to enact and to enforce ordinances necessary to protect health, life and property and to prevent and summarily abate and remove nuisances, and to preserve and enforce the good government, order and security of the city and its inhabitants; to protect the lives, health and property of the inhabitants of the said city; and to enact and enforce any and all ordinances upon any subject: Provided, that no ordinance shall be enacted inconsistent either with the laws of the state of Texas, or inconsistent with the provisions of this act: And provided, further, that the specification of particular powers herein authorized shall never be construed as a limitation upon the general powers herein granted, it being intended by this act to grant and bestow upon the inhabitants of the city of Dallas full power of self government, and it shall have and éxereise all powers of municipal government not prohibited by this charter, or by some general law of the state of Texas, or by the provisions of the Constitution of the state of Texas.”

This clause of the charter was evidently intended by the Legislature to empower the city of Dallas to pass all laws essential for the welfare, good order, and prosperity of the citizens resident therein. Such laws fall within what is known as the police powers of the government. The extent to which the police powers of the government will be carried in the enforcement of the welfare of its citizens is not susceptible of precise determination, but it must be limited to exigencies of each case. In the case of Sligh v. Kirkwood, 237 U. S. 52, 35 Sup. Ct. 501, 59 L. Ed. 835, where the question of police powers was involved, in an opinion by Mr. Justice Day, the court said:

“The limitations upon the police power are hard to define, and its far-reaching scope has been recognized in many decisions of this court. At an early day it was held to embrace every law or statute which concerns the whole or any part of the people, whether it related to their rights or duties, whether it respected them as men or citizens of the state, whether in their public or private relations, whether it related to the rights of persons or property of the public or any individual within the state. New York v. Miln, 11 Pet. 102, 139, 9 L. Ed. 648, 662. The police power, in its broadest sense, includes all legislation and almost every funetion of civil government. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923. It is not subject to definite limitations, but is coextensive with the necessities of the case and the safeguards of public interest. Camfield v. United States, 167 U. S. 518, 524, 17 Sup. Ct. 864, 42 L. Ed. 260, 262. It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as ihose specifically intended to promote the public safety or the public health. Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. Ed. 596, 609, 4 Ann. Cas. 1175. In one of the latest utterances of this court up'on the subject it was said: ‘Whether it is a valid exercise of the police power is the question in the case, and that power we have defined, as far as it is capable of being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity, * * * and further, “it is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.” ’ Eubank v. Richmond, 226 U. S. 137, 33 Sup. Ct. 76. 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192.”

In the case of Beinman v. Little Rock, 237 U. S. 170, 35 Sup. Ct. 511, 59 L. Ed. 900, a brick livery stable conducted in the business district was declared by ordinance to be detrimental to the health, interest, and pros•perity of the city, and which required its removal, but it was contended by the defendant that the conducting of such business at that place had been encouraged by the city of Little Bock and expenditures made; that the passage of the ordinance was procured by parties desiring to purchase the property; that the building was useful for no other purpose and no other site was procurable for its location. That such ordinance was unreasonable, discriminatory, and not warranted by the city charter and in contravention of the Fourteenth Amendment, respecting due process of law and the equal protection of the law. The case finally reached the Supreme Court of the United States, and the ordinance was sustained. Mr. Justice Pitney, rendering the opinion, said:

“Therefore the argument that a livery stable is not a nuisance per se, which is much insisted upon by plaintiffs in error, is beside the question. Granting that it is not a nuisance per se, it is clearly within the police power of the state to regulate the business, and to that end to declare that in particular circumstances and in particular localities a livery stable shall be deemed a nuisance in fact and in law, provided this power is not exerted arbitrarily, or with unjust discrimination, so as to infringe upon rights guaranteed by the Fourteenth Amendment. For no question is made, and we think none could reasonably be made, but that the general subject of the regulation of livery stables, with respect to their location and the manner in which they are to be conducted in a thickly populated city, is well within the range of the power of the state to legislate for the health and general welfare of the people. While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the lawmaking power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, .it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment.”

The case of Commissioners of Eaton v. Covey, 74 Md. 262, 22 Atl. 266, is where a party asked for a permit to erect a frame stable in addition to the livery stable which he then had thereon, which permit the commissioners refused. He applied for a mandamus to compel its issuance. .Tho town had an ordinance, under which no person could erect a building within the limits of the town without a permit from the commissioners, who had the power under the charter to pass “such ordinance as they deem necessary and beneficial for said town.” In the trial court the mandamus was refused.- This action was reversed by the circuit court, but on appeal the Court of Appeals of Maryland held that the action refusing the writ by the lower court was correct as the commissioners were empowered to pass such an ordinance. The court said:

“Under this power they passed an ordinance entitled ‘An ordinance to regulate the erecting of new buildings within the limits of Easton.’ This ordinance provides that ‘it shall not be lawful for any person or persons to -erect or build any dwelling house, barn, shed, stable, storehouse, warehouse, or shop within the limits of this town, or any porch on any part of the sidewalks, without first obtaining a permit from the commissioners of the town, through their .clerk, to erect the same, for which the sum of one dollar shall be paid for each and every permit so granted, the same to be applied to the general expenses of the town; and any person or persons who shall violate the provisions of this ordinance shall, upon conviction thereof before a justice of the peace, be fined five dollars for each and every day from the date the building is commenced.’ We think it very clear that, under a general power to pass such ordinances as the commissioners may deem necessary and beneficial to the town, the commissioners may pass any ordinance which they may judge necessary and beneficial, and it will be valid, provided it be reasonable and consonant with the general powers and purposes of the corporation, and not inconsistent with the laws and policy of the state.”

The board of commissioners of the city of Dallas, by virtue of the provisions of its charter, passed the ordinance here in question, which is as follows:

“An ordinance providing regulations for the location, erection and construction of business buildings in the residence portion of the city of Dallas, providing a penalty and declaring an emergency.
“Be it ordained by the board of commissioners of the city of Dallas:
“Section 1. That it shall hereafter be unlawful for any person, firm, corporation or association of persons to locate or construct any business house or building intended or designed to be used for the barter and sale of goods, wares and merchandise of any description or character, or for the conduct therein of any business within any residence portion of the city except as hereinafter provided.
“Sec. 2. By ‘a residence portion of the city of Dallas’ as used in this ordinance is intended and meant any part of said city where there are more dwelling houses than business houses within a radius of 300 feet of the place where any business house or building intended as a place for the barter and sale of goods and merchandise of any description or for the conduct of any business is sought to be erected, located or constructed.
“Sec. 3. Any person, firm, corporation or association of persons desiring to locate,_ erect or construct any business house or any building intended or designed as a place for the barter and sale of goods, wares and merchandise of any description, or for the conduct of any business outside of the fire limits as now or as may hereafter be designated and prescribed by ordinance of the city of Dallas, shall make an application in writing to the board of commissioners, _ for a permit so to do and accompany such petition or application with a written statement setting forth the exact place where the proposed building is to be located, erected or constructed with a map or other evidence showing that there are not more residences than there are business houses within a radius of 300 feet from the center of such location. If'upon an examination of said application the board of commissioners are satisfied that there are more business houses than residences within a radius of 300 feet as herein prescribed and that the applicant is entitled to such permit, then such permit shall be issued.
“Sec. 4. If it shall appear that there are more residences than business houses within a radius of 300 feet of the proposed location of such building, and the applicant for such permit shall accompany such application with the'consent of three-fourths of the property owners owning property within said radius of 300 feet, then and in that event the board of commissioners shall cause such permit to be issued: Provided, however, that the building for which such permit is granted must be of a design approved by the building inspector.
“Sec. 5. If an application is made for the construction of a business house in a residence portion of the city of Dallas as ‘a residence portion of the city of Dallas’ is defined in section 2 hereof, and it shall appear that there are in such district two or more adjoining business houses which were erected prior to the passage of this ordinance, and that the building for which the permit is desired is to be constructed, adjoining, immediately contiguous to or in extension of an existing business house, then such permit shall be granted, and in such case it shall not be necessary to accompany the application with the consent of property owners, as prescribed in section 4 hereof.
“Sec. 6. That all buildings erected under any permit granted under the terms of this ordinance shall be constructed in compliance with all ordinances and building regulations of the city of Dallas.
“Sec. 7. That any person, firm, corporation or association of persons, or agents or servants or employes of such who shall hereafter locate, erect or construct any business house within any residence portion of the city of Dallas as defined herein, or who shall proceed with the construction of such building, without first applying for and being granted a permit in compliance with the terms of this ordinance, shall be deemed guilty of a misdemeanor and upon conviction in the corporation court shall be fined not less than $50.00 nor more than $200.00 and each and every act done and performed toward the erection, construction and location of such business house without such permit shall constitute a separate offense and each and every day any such person is engaged in constructing such building without such permit and each and every day such building is permitted to remain in such residence portion of the- city shall constitute a separate and distinct offense.
“See. 8. That all ordinances and parts of ordinances in direct conflict herewith are hereby expressly repealed.
“Sec. 9. The fact that there now is no ordinance effectually regulating the location, erection and construction of business houses in residence portions of the city creates an urgency and emergency for the immediate preservation of public peace, health and safety requiring that this ordinance take effect at once, and it is accordingly ordained that this ordinance shall be in effect from and after its passage, approval and publication as in the charter in such cases made and provided.”

There is nothing in the ordinance to indicate, nor any fact aliunde the record to show, that the commissioners acted arbitrarily, or discriminated against the appellant; hut it shows that they acted solely for the true welfare, comfort, and prosperity of the citizens of the city.

It is contended, in effect, that the powers of the commissioners were exceeded by providing in the ordinance that the application for a permit to erect a business house should be accompanied with the consent of three-fourths of the property owners'within a radius of 300 feet from the center of said location. To support this contention the appellant cites the case of Eubanks v. City of Richmond, 226 U. S. 137, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192, where an ordinance passed by authority of the statute to make regulations for building houses along certain streets, and to establish building lines, etc., prescribed that a committee to establish the line was to be determined by two-thirds of the property owners. It was held that “one set of owners determines not only the extent of use, but the kind of use, which another set of owners make of their property,” and’ this could not be done. But is the ordinance here subject to such vice? We think not. It provides for ascertaining whether a particular district is devoted to residences or business houses and determines that the ordinance prescribes that the applicant for permit should produce as evidence a written statement setting forth the exact place where the proposed building is to be located, erected and constructed, with a map or other evidence showing that there are not more residences than business houses within a radius of 300 feet from the center of such location, and, if so, the permit shall be issued. But if there are more residences than business houses within such radius, the consent of three-fourths of said residents shall be granted. Ora the other hand, if said number of residents do not consent for an erection of a business house such permit will not be granted.

When all the provisions of the ordinance are considered and construed together, it was not the intention of the commissioners- in passing the ordinance for three-fourths of the residents of any district to have the final decision in the matter, but it was for the ■commissioners to determine whether or not such permit would issue. But, if it should be conceded that such section containing such clause be obnoxious to the Constitution and laws, it does not affect the other provisions of said ordinance prescribing the character of buildings in the residence district, and the remaining portions are valid.

Testimony of several witnesses was introduced over the objection of appellant to the-effect that the lqcation of suburban stores in residence sections detracts from the comfort and convenience and destroys the value of the home. In passing the ordinance it was essential for the commissioners to consider the welfare, prosperity, and comforts of the citizens of the city, and we think the testimony tended to show the effect the building of storehouses would have in the residence section, and was admissible.

Believing that the ordinance is valid and enforceable, the judgment denying the mandamus and injunction is affirmed.

TALBOT, J., dissents.
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