text:
    SMITH v. McBROOM.
    (No. 7959.)
    (Court of Civil Appeals of Texas. Dallas.
    May 18, 1918.
    Rehearing Denied June 15, 1918.)
    1. Evidence <@=3317(6) — Heaksay.
    In an action for a balance on the purchase price of cotton, sold under a contract to pay such price if cotton advanced to that point, evidence that plaintiff had been offered, on the day he sold the cotton to defendant, more than defendant offered him, was not hearsay.
    2. Sales <©=>358(4) — Remedies of Seller-Evidence — -Matebialiit.
    In an action to recover a balance on the purchase price of cotton sold, evidence that witness, who graded the cotton, had graded it throe points above middling, was material; middling cotton being the basis upon which cotton is bought and sold.
    3. Sales <©=>358(4) — Remedies oe Seller — Evidence — Materiality.
    In an action for the balance of the purchase price of cotton, sold under a contract •whereby the buyer was to pay the price sued for if the market advanced to that point, evidence that the cotton graded three points above middling was admissible to support plaintiff’s allegation that such cotton as his had sold at the market at the price contemplated by the contract.
    4. Sales <©=3.358(4) — Remedies of Seller— E viden ce — Materiality.
    In an action for the balance of the purchase price of cotton sold at 11% cents, to be increased to 12 cents if the market advanced to that point within a certain time, evidence that plaintiff’s cotton was better than the cotton of the witness who had sold his cotton tor 12.65 cents was material, as tending to show that cotton of the grade and character of plaintiff’s cotton had sold on the market at an advanced price.
    5. Trial <©=>145 — Jury Questions — Withdrawal of Issues.
    In an action for the balance of the purchase price of cotton, sold at 11% cents under agreement to pay 12 cents if the market price advanced to that point within a certain time, it was not error to submit the case on the issue as to whether the contract was to be governed by the Hillsboro or New York market, where that was the only material issue in dispute.
    6. Trial <©=>141 — Question of Pact — Established Issues.
    Issues of fact disclosed by the pleadings should not be submitted to the jury for decision, when such issues are established by the evidence beyond controversy.
    Appeal from Hill County Court; R, T. Burns, Judge.
    Action by Isaac McBroom against A. L. Smith, commenced before a justice of the peace. From a judgment for plaintiff, on appeal to the county court, defendant appeals.
    Affirmed.
    J. J. Áveritte and Wear & Frazier, all of Hillsboro, for appellant. Clarke & Clarke, of Hillsboro, for appellee.
   TALBOT, J.

Appellee sued appellant in the justice court to recover the sum of $115.66. He recovered judgment for that amount and appellant appealed to the county court. In the county court judgment was again rendered in favor of the appellee for the amount sued for, and appellant perfected au appeal to this court.

The citation issued in the justice court shows the cause of action upon which the appellee sought to recover, and upon which he did recover, to be in substance as follows: On or about the 11th day of March, 1916, appellee sold and delivered to appellant 40 bales of cotton, weighing 23,130 pounds. In making the sale, appellee demanded 12 cents per pound for his cotton, and refused to sell for less. In order to buy the cotton, appellant agreed that, if appellee would sell it to him on said day, he (appellant) would pay appellee cash on delivery of the cotton 11% cents per pound therefor, and would pay appellee in addition one-half cent per pound if cotton of the grade of appellee’s cotton should bring 12 cents per pound in the cotton market at Hillsboro, Hill county, Tex., by the 1st day of May, 1916. Upon said condition and agreement appellee sold and delivered to appellant, on the 11th day of March, 1916, the cotton, and received 11% cents per pound for the same. Between said date, and before May 1, 1916, or April 25, 1916, cotton of the character and grade of the cotton bought by appellant from appellee sold for and brought on the market in said Hillsboro 12 cents per pound or more, and thereupon appellee demanded of appellant the additional one-half cent per pound for his cotton, which amounted to $115.66, the amount sued for and recovered in this action, but appellant refused to pay the same.

The appellant pleaded, in substance, among other things not necessary to state, a general-denial, and that the contract entered into between him and appellee was that appellant would pay to appellee one-half cent per pound for the cotton, in addition to the cash payment, if the price of cotton advanced that much between the date of sale and the 25th day of April, 1916, or if it did not advance that much he would pay him “the difference to the advance,” and that the contract was to be governed, not by the Hills-boro market, but by the New York market; that, according to and governed by the New York market, cotton of the grade of appel-lee’s cotton did not advance in price, between the dates agreed on, as much as one-half cent per pound, but only advanced about “30 points,” which left appellant due appel-lee $30.07. This amount appellant .tendered, and asked for judgment.

The case was submitted to a jury upon one special issue, namely; “Was the contract entered into by and between plaintiff and' defendant to he governed by the Hills-boro or New York market?” The jury answered that the contract was to be governed by the I-Iillsboro market, and thereupon the court rendered judgment in favor of the appellee as hereinbefore stated. There are a number of assignments of error, but they need not be stated and discussed in detail. The questions raised, and which are discussed, will sufficiently' appear from what we shall say in disposing of them.

The testimony of the appellee, to the effect that he had been offered for his cotton, on the day he sold it to the appellant, more than appellant offeréd nim for it, was not hearsay, and, if immaterial, it is not probable that any injury resulted to appellant from it. The statement, however, was probably pertinent and admissible as a part of the conversation and negotiations leading up to the sale of the cotton, and as showing a reason why appellee declined selling at the price of 11% cents offered by appellant. Appellee was ashing 12 cents per pound for his cotton, and appellant offered him 11% cents per pound. vVhen this offer was made, appellee said to appellant that he could not take it, for he had been offered 11.65 cents per pound.

Nor was the testimony of the witness W. H. Wood, to the effect that he graded appellee’s cotton, and that it graded about three points above middling, immaterial. The testimony of appellant was that middling cotton is the basis upon which cotton is bought and sold; and that he bought appellee’s cotton as middling cotton; that he knew about what the grade was, and bought it without grading it himself. The record does not sustain the contention “that the agreement was that Mr. Smith [appellant] was to take Mr. White’s grade.” The testimony of appellee in this connection was, in substance, simply that he told appellant, when appellant wanted to know if the cotton had been graded, that Mr. Jim White had graded the cotton, and that appellant replied, “All right; I will buy it on Jim White’s grade.” Appellant testified that he did not agree to take the cotton upon the grade fixed by Mr. White; that he did not always grade cotton when he bought it, and did not grade appellee’s cotton, but that he had an idea that it was about middling cotton. Again, the testimony objected to was admissible in support of appellee’s allegation “that such cotton as his was had sold in the Hillsboro market for 12 cents per pound between March 11, 1916, and May 1,1916.”

There was no error in permitting the witness Hawkins to testify to the effect that from his observation and knowledge of appeuee’s cotton he would say appellee’s cotton was better than his. The witness testified that he sold his cotton to appellant on April 12, 1916, for 12.65 cents, and sufficiently qualified as an expert in the grading of cotton to render his testimony upon the subject admissible. The testimony was not immaterial, as it was essential to appellee’s right of recovery that he show that cotton of the grade and character of his cotton had sold on the market of Hillsboro, between March 11, 1916, and May 1, 1916, or April 25, 1916, the latter being the limit of time for the advance in the price of cotton according to the contention of appellant, for as much as 12 cents per pound.

For practically the same reasons, the fifth, sixth, seventh, and eighth assignments of error are overruled.

The contention that the court erred in submitting “the case to the jury simply on the issue as to whether the contract was to be governed by the Hillsboro or New York market” will also be overruled. This issue was practically the only material issue about which there was any dispute in the evidence. The other alleged facts upon which appellee’s right to recover depended were very clearly and conclusively established, and the submission of the single issue named was correct. Issues of fact disclosed by the pleadings should not be submitted to the jury for decision, when such issues are established by the evidence beyond controversy.

The verdict and judgment rendered are clearly supported by the evidence, and' the special charge requested by appellant, directing the jury to return a verdict in his favor, was correctly refused.

There is no reversible error pointed out by any assignment of error, and the judgment of the county court is affirmed.
      (5S=3For ofher cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    STONE v. ROBINSON et al.
    (No. 1263.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 22, 1918.)
    1. Vendor and Purchaser <@^39 — Vendor’s Lien Notes — Legality oe Object — Participation in Lottery.
    Although the vendor at the time of the contract had no notice nor information of the ven-dee’s intention to dispose of the land by lottery, if, prior to the execution of vendor’s lien notes and deed, he learned of such" scheme ana participated in it, he could not recover on the notes.
    2. Vendor and Purchaser @==>39 — Vendor’s Lien Notes — Legality oe Object — Participation in Lottery — Sueeiciency oe Participation.
    In such case, the question of the vendor’s participation in the profits of the lottery was not determinative of his participation in the illegal scheme, and the mere fact that he was not to receive any of the profits did- not negative his participation.
    Appeal from District Court, Lubbock County ; AV. R. Spencer, Judge.
    Action by J. B. Stone against Jim Robinson, Jr., and others. Judgment, for defendants and plaintiff appeals.
    Affirmed.
    Bean & Kleft, of Lubbock, for appellant. W. D. Benson and Percy Spencer, both of Lubbock, for appellees.
   BOYCE, J.

This case was before this court once before, Stone v. Robinson, 180 S. W. 135. On this appeal the parties acquiesce in the construction of the power of attorney as adopted by this court on the former appeal, and entirely different questions are now presented.

The suit was brought by appellant, Stone, on certain vendor’s lien notes, executed by appellee, Robinson, and to foreclose the vendor’s lien retained to secure the payment of said notes on certain lots and blocks platted as an addition to the town of Lubbock, Tex. The defense on which the judgment of the court below is based was that the contract by which said property was sold by Stone to Robinson was unenforceable because it was the purpose and intention of the said Robinson to subdivide the property which was sold and conveyed as acreage property into lots and blocks and resell the same by lottery, in violation of law; that Stone knowingly aided and abetted the carrying out of said plan, and is therefore not entitled to recover on the notes executed and delivered as a part of said illegal purpose.

The evidence shows that some time, from one to three months, before the execution of the deed to said property and the vendor’s lien notes sued upon, Stone and Robinson entered into a written contract by which Stone agreed to sell said property to Robinson for a consideration of $9,500, $1,000 paid in cash at the time of execution of contract and $1,500 additional in cash before delivery of deed, the balance of the consideration to be evidenced by two notes, each for $3,500. There is some dispute as to the amount of the cash consideration, but we do not think this material to a decision of the case. The contract was closed in accordance with the provisions of this contract by the execution and delivery of the deed by Stone, and the execution and delivery by Robinson of the notes sued upon, the deed retaining a vendor’s lien to secure the payment of said notes. The contract and deed executed, in pursuance thereof described the land a^s acreage property, as it had not been platted as town property at the date of the original contract. Prior to the execution of the deed the property was subdivided and platted as town property, and Robinson entered iipon the execution of his purpose to sell the same by a lottery plan, which was to sell the unimproved lots at $30 per lot, giving to the purchaser of each lot a ticket and then have a drawing, the holder of the lucky number to receive, without further charge, the lots having the improvements thereon, consisting of a nice dwelling house with other appurtenant improvements. Stone did not know of Robinson’s purpose at the time he executed the original contract, but learned of it prior to the execution of the notes and deed, and during this time he assisted the said Robinson in said scheme ■ to some extent by “boosting Robinson’s sales,” using appellant's own statement. At the time of the execution of the deed said Stone also executed an agreement and power of attorney, copied in the former opinion in this case, by the terms of which he agreed'to release any lot sold except the lots on which the improvements were situated, upon payment of the sum of $30. The evidence was such as to warrant the finding that this was done for the purpose of accommodating the contract to the lottery scheme.

Special issues were submitted and answered by the jury as follows:

“Special Issue No. 1: At the time of the original contract of sale, did J. B. Stone know that the property was being purchased with the intention, of disposing of the same by lottery? Answer: No.
“Special Issue No. 2: Did the plaintiff, J. B. Stone, at the time of the execution of the deed to Jim Robinson, Jr., know that the property purchased was to be used as and disposed of by lottery? Answer: Yes.
“Special Issue No. 3: Did the plaintiff, J. B. Stone, knowingly receive any of .the proceeds derived from said lottery, in payment for said property? Answer: Yes.
“Special Issue No. 4: Did the plaintiff, J. B. Stone, know, at the time he executed the deed to Jim Robinson, Jr., that the house on said tract of land was to be given away as a premium in drawing? Answer: Yes.
“Special Issue No. 5: Did the plaintiff, J. B. Stone, at the time of the execution of the deed to Jim Robinson, Jr., know that the vendor’s lien notes received by- him were to be paid, in whole or in part, out of the proceeds realized from the sale of lots in connection with a lottery? Answer: Tes.
“Special Issue No. 6: Did the plaintiff, J. B. Stone, tell any purchasers, or prospective purchasers, of said lots that the house was to be given away as a premium? Answer: Yes.
“Special Issue No. 7: Did the plaintiff, J. B. Stone, by word or act, encourage the purchase,- or prospective purchase, of any lot with a chance at the house? Answer: Yes.”

In addition to tlie foregoing issues the court, at Stone’s request, submitted the following special issue:

“Did the plaintiff and the defendant, Jim Robinson, Jr., enter into an agreement whereby it was agreed that the said J. B. Stone should participate in the profits of the sale of said lots by lottery?” To which the jury answered, “No.”

Two assignments are presented: They both assert that the judgment is contrary to the findings of the jury, the' first being general and the second specifically affirming that this is true because—

“the jury having found in answer to special issue No. 1 that the plaintiff did not know,.at the time of the original contract of sale, that the property was being purchased with the intention of disposing of it by lottery, and having further found, in answer to the first special charge requested by the plaintiff, that there was no agreement between plaintiff and Jim Robinson, Jr., that plaintiff should participate in the profits of the sale of said lots by lottery, and there being no other finding of the jury showing that plaintiff profited by the alleged lottery, judgment should have been in favor of plaintiff for the amount of the notes sued on, with foreclosure of vendor’s lien.”

For the purpose of the decision we will agsume that it is the law in this state that when the contract sued upon is not itself illegal, but it was the purpose of one of the parties to put the subject-matter of the contract to an illegal use, the other party may not be denied recovery unless the facts' are sufficient to show a participation on his part in the unlawful purpose. Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Houck v. Anheuser-Busch Brewing Association, 88 Tex. 184, 30 S. W, 870; .Reed v. Brewer, 90 Tex. 144, 37 S. W. 418. See, also, comment on last-named case in Wiggins v. Bisso, 92 Tex. 219, 47 S. W. 639, 71 Am. St. Rep. 837. Appellant does not, by these or other assignments, question the sufficiency of the evidence to show that Stone aided in various ways the carrying forward of the unlawful plan, but contends that aid therein so given should not have the same effect as if the participation was the result of knowledge, and intent to participate therein, of the unlawful design at the time of the execution of the contract. The .effect of the argument is that the rights of the parties were fixed at the time of the execution of the original written contract, the deed and notes were in consummation thereof, and, since the original contract was pure, it cannot he contaminated by appellant’s subsequent participation in the illegal design of appellee Robinson. Contracts of a character we are considering do not themselves provide for the doing of anything illegal. They impose obligations that are themselves perfectly legitimate, and which may be imposed and assumed in the transaction of a proper and legal business; but, on the ground of public policy and as a means of discouraging the perpetration of crime and wrong, not for the purpose of protecting either one of the guilty participants in the wrong, the law refused to lend its aid to the enforcement of rights in favor of any of the parties who are shown to ha.ve been engaged with the other in the transaction out of which the appeal to the courts arises which involved the commission of some crime or wrong condemned by law. AVe have been referred to no authority which holds that in the case of the unexecuted contract the participation, in order to place the party seeking the relief of the court outside its protection, must be the result of an intent formed at the time of the execution of the contract. AVhen the theretofore innocent party to an executory contract learns of the unlawful purpose of the other, it seems that he may refuse to proceed with it, and will he justified by the law in his refusal. Mechem on Sales, §1010; C. X, vol. 13, p. 517, §475; 9 Cyc. 571. The original ignorance of one party to a contract that any unlawful purpose was contemplated by the other party might be a material circumstance in arriving at the real purpose and intent of such party, and as determining the character of acts, which do not unequivocally indicate the intention to aid the other in such matter, but we think it would be an unsafe proposition, and one not founded on the reason for the general rule, to say that a party, innocent of wrongful purpose at the time of the execution of an executory contract, might thereafter actively aid and participate in the commission of the wrong intended by the other party in the use of the subject-matter of the contract, and yet invoke the assistance of the court in the enforcement of rights under the contract consummated after his entry into the unlawful plan of the other contracting party. For instance, the authorities all hold that the crime intended to be consummated by one of the parties might be so heinous that the sale of the means of the commission of the crime by one with knowledge of the other’s purpose would .itself be a participation in the crime and preclude a recovery on the contract of sale. One with knowledge of the purchaser’s purpose, selling a pistol with which to commit murder, or arsenic with which to poison another, or goods to aid tlie public enemy, so participates in the crime committed by thg use of such articles by the other that he stands condemned by law and good morals, and certainly could not successfully sue and recover the price agreed to be paid by the purchaser. Hanauer v. Doane, 12 Wall. 342, 20 L. Ed. 440; Mechem on Sales, §§1015, 1016. Now, suppose that such a seller had a preliminary contract with his purchaser, and a deposit oí part of the purchase price, but the knowledge of the purpose of the purchaser came to him after the execution of such contract, but before he delivered the property and took the purchaser’s notes for the payment of the balance, would such fact make him the less guilty and open the doors of the courts that would have been closed against him in the circumstances first stated? We think not. The participation or aid in the other’s wrong ought, if the reason for the general rule is to be followed, to defeat the recovery if it occurred at a time when that purpose would have been thwarted by a refusal to proceed further with the contract. We think,' therefore, that the finding that Stone did not know of the unlawful purpose of Robinson at the time of the original contract would not avail him, if prior to the execution of the notes he became informed of such purpose and then aided in the execution thereof.

Neither do we think the second finding referred to in the assignment above quoted, “that there was no agreement between plaintiff and Jim Robinson, Jr., that plaintiff should participate in the profits of the sale of said lots by lottery” is conclusive. It is no doubt true that if one shares in the benefit of the violation of the law he becomes a participant in the wrong, but his sharing in the profits' does not seem to be the sole or true test of participation. “One may be deemed to be a participant in the unlawful purpose if with knowledge thereof he does anything which facilitates the carrying out of such purpose.” R. O. D. vol. 6, p. 697; Houck v. Anheuser-Busch Brewing Ass’n, 88 Tex. 184, 30 S. W. 870, C. J., vol. 13, p. 519.

We therefore overrule both appellant’s assignments of error, which action results in an affirmance of the judgment.

HUFF, O. J., not sitting, being absent in Austin, sitting with committee of judges.
      (§^>For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    RACHOFSKY v. RACHOFSKY et al.
    (No. 7951.)
    (Court of Civil Appeals of Texas. Dallas.
    May 4, 1918.
    Rehearing Denied June 8, 1918.)
    1. Appeal and Error <@=>1003 — Scope oe Review-Conflicting Evidence.
    Though the facts contrary to the verdict on their face unquestionably are of greater probative force than those in favor of the verdict, it does not follow that the latter facts will not support the verdict.
    2. Fraudulent Con vetan ces <@=>295(1) — Hv-idenoe — Sufficiency. ! y
    Evidence he>l& to support verdict that a transfer was fraudulent as to creditors.
    3. Fraudulent Conveyances @==47 — Sales in Bulk.
    A sale of merchandise in bulk without compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3971, relative to the sale of merchandise in bulk, was void as against creditors of the seller.
    4. Appeal and Error @=>1053(5) — Harmless Error — Evidence.
    In suit to recover a safe, defended on the ground that plaintiff was the vendee in a sale in bulk in fraud of creditors in violation of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3971, where the issue whether the sale was void under the statute was not presented to the jury, admission of evidence that the sale was void does not constitute reversible error.
    5. Fraudulent Conveyances <@=>309(1) — Instructions.
    Instructions submitting issue whether sale in bulk was made to hinder, delay, or defraud creditors impliedly submitted issue whether the sale was in good faith and for value.
    6. Trial <@=>260(1) — Instructions — Repetition.
    Where the court,has given an instruction substantially the same as that requested, he need not give the requested instruction.
    7. Trial <@=(234(7) — Instructions — Burden of Proof.
    , Instruction that burden of proof was on defendant to make out his allegation of fraud by a preponderance of the evidence was sufficient on the burden of proof.
    8. Fraudulent Conveyances <@=>57(1) — Insolvency-Effect.
    In suit to recover safe which defendants alleged was conveyed in fraud of creditors, the vendor’s insolvency vel non was not determinative, since there could have been a sale to hinder, delay, and defraud creditors without reference to insolvency.
    9. Fraudulent Conveyances <@=>156(2) — Right of Purchaser — “Knowledge.”
    Knowledge of the fraud in a conveyance is • implied from notice actual or constructive of such facts or circumstances as would excite the suspicion of a man of ordinary prudence and put him upon inquiry of the fraudulent intent of the vendor.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second ■ Series, Knowledge.]
    Error from Dallas County Court; T. A. Work, Judge.
    Suit by L. W. Rachofsky against J. H. Rachofsky and others. From a judgment for defendants and. an order dissolving interlocutory injunction, plaintiff brings error.
    Affirmed.
    Ellis P. House and Bern Wilson, both of Dallas, for plaintiff in error. Geo. Clifton Edwards, of Dallas, for defendants in error.
   RASBURY, J.

D. W. Rachofsky, plaintiff in error, sued J. H. Rachofsky, Tobe Jones, and Jack Goldman, defendants in error, in the court below to determine the ownership of an iron safe levied upon and advertised for sale by Goldman, constable, by virtue of execution issued upon a final judgment in justice court, precinct No. 1, of Dallas county, obtained by Tobe Jones against J. H. Rachofsky, and for injunction pendente lite restraining the sale thereof. Interlocutory injunction was granted as prayed. Defendants in error Tobe Jones and J. H. Goldman, the constable, answered in substance that the alleged, ownership of plaintiff in error was derived by sale in bulk of a stock of merchandise and fixtures by J. H. Raehofsky to his brother, L. W. Raehofsky, and was ineffectual to convey title thereto (1) because not in compliance with the bulk sales law in that the statutory notice was not given, and (2) because the sale was made for the purpose of hindering, delaying, and defrauding the creditors of said J. H. Rac-hofsky. On plea that he was not a proper party to the suit J. I-I. Raehofsky was dismissed therefrom. There was trial by jury to whom the court submitted certain special issues, upon the jury’s answers to which judgment was entered against plaintiff in error and the interlocutory injunction dissolved. From such orders this appeal was taken.

There are 38 assignments of error presenting similar issues with little variation. For that reason we will not undertake to discuss them seriatim, but in lieu thereof discuss the issues as such. This brings us in natural order to the contention that the findings of the jury are without support in the evidence. The substance of the findings of the jury upon the special issues was that J. H. Itach-ofsky sold the safe in question and a stock of merchandise to his brother, D. W. Rachof-sky, for the purpose of hindering, delaying, and defrauding his creditors by placing same beyond their reach, and that the latter not only had knowledge of such - facts and circumstances as would put an ordinarily prudent man upon inquiry, which, if diligently pursued, would have disclosed such intention, but that he had actual knowledge of such intention, and that the effect of the sale was to place the property levied upon beyond the reach of creditors. The facts and circumstances deducible from the evidence tending to support such findings are these: Tobe Jones secured judgment against J. H. Raehofsky canceling Jones’ note for $30 and for certain usurious interest paid thereon with the statutory penalty aggregating $110. J. TI." Raehofsky had for many years been conducting in the city of Dallas a pawnshop and lending money in small amounts at usurious rates of interest. Jones sued J. H. Raehofsky to cancel the note and to recover usurious interest paid thereon and the statutory penalty thereon July 19, 1913. Raehofsky was served with citation June 21, 1913, and filed answer July 14, 1913. On July 17, 1913, J. I-I. Raehofsky by formal bill of sale transferred his entire stock of merchandise and fixtures, including the safe levied upon, to L. W. Raehofsky for a recited consideration of $1,750, of which $1,250 was paid by cheek and $489.99 by canceling the note of J. I-I. Raehofsky for that amount held by his brother, L. W. Raehofsky. The bill of sale was not recorded. The property conveyed was all the property owned by J. H. Raehofsky subject to execution. At the time of the sale - L. Wi Raehofsky, who was 25 years of age, was, and since boyhood had been, employed as salesman for Sanger Bros., in the city of Dallas, where he was required to be from 8 a. m. to 6 p. m. He and his brother, J. I-I. Raehofsky, who was 35 years old, were intimate and confidential in a personal and business way, borrowing money from each other without security. After the sale to L. W. Raehofsky, J. II. Rachof-sky remained in charge and possession of the business, carrying the keys, making sales, and keeping books. It was a profitable business when sold. D. W. Raehofsky was at the store during the day only when he could get away from Sanger Bros., and of evenings when he had no engagements as a professional musician. He had no key to the store. I-Ie paid his brother no salary, commission, or interest in the profits of the business, but gave him free use of space and lights in the store to conduct a loan and watch-repairing business. At the time of the sale the sign on the window was “J. II. Raehofsky.” No change in that respect was made after the purchase. L. W. Raehofsky did not know the rate of storage or interest charged in the business conducted for him by his brother. He knew casually of Jones’ claim against his brother when the transfer was made, as well as others. The foregoing is a brief general statement of the testimony upon which the jury findings wrere based.

The record contains facts which would have sustained a finding in favor of plaintiff in error. These facts, as they appear in the record, are, as argued by counsel,, on their face unquestionably of greater probative force than those detailed. It does not follow, however, that the other state of facts will not support the findings of the jury. And while it will be of no practical use or benefit to repeat here the reason of the rule so often written down concerning the better judgment of juries concerning the credibility of witnesses and the weight to be given their testimony, it is worth while to consider, to some extent, the holdings of the courts in similar cases on the issue of the sufficiency of the evidence. Possession of the seller after the sale is not fraud per se, but is prima facie evidence of fraud. Edwards v. Dickson, 66 Tex. 613, 2 S. W. 718. The evidence in such cases “must come largely from the persons who are concerned in the transaction; and circumstances have to be looked to, and in many cases be given a ■ weight to which they would not be entitled in a different class of cases.” Greenleve, Block & Co. v. Blum, 59 Tex. 124; Steinam v. Gahwiler, 30 S. W. 472. Again, “fraud is always difficult of proof by direct testimony, and necessarily circumstantial evidence must be resorted to,” and when it is sufficient to raise the issue it is the province of the jury to consider such evidence “of greater probative force than the positive testimony,” controverting the circumstantial ev idence. Adams v. Hamilton, 53 Tex. Civ. App. 405, 110 S. W. 1169. We accordingly conclude that in the light of the "facts detailed and the cases cited we are not warranted in holding that the findings of the jury are without support in the evidence.

It is also urged, in effect, that the court erred in admitting proof that in the sale the provision of the statute (article 3971, Vernon’s Sayles’ Stats.) relative to the sale of merchandise in bulk had not been complied with. The provisions of the statute were not complied with, and the sale of the merchandise was void as against creditors. The basis of the contention, however, is that the safe was a fixture, not merchandise, and hence not controlled by the statute in effect at the time of the trial, though since amended so as to include fixtures.. We are not prepared to say that the sale of a stock of merchandise void under the bulk sales law would nevertheless convey title to merchandise fixtures attempted to' be sold as a part of the transaction. It surely would not between the parties. I-Iowever, the issue as to whether the sale was void, under the statute, was not presented to the jury. As a consequence proof complained of does not constitute reversible error.

Plaintiff in error requested the court to charge the jury in effect that before Jones was entitled to recover they must believe by a preponderance of the testimony that J. H. Rachofsky did not in fact sell and convey the property in question to L. W. Rachofsky “in good faith and for value.” The issue in the case was whether the sale was made to hinder, delay or defraud creditors. That issue was submitted to the jury fairly and fully, and comprehended of course whether it was in good faith and for value, since if the purpose of the sale was not to hinder, delay, and defraud creditors it was in good faith and for value.

Complaint is made of the refusal to allow several special charges, in substance the same but variant in expression, directing the jury that unless U. W. Rachofsky had knowledge of the fraudulent intent of J. H. Rachofsky in making the sale Jones would not be entitled to recover. In the special issues submitted to the jury they were asked whether Jb. W. Rachofsky had knowledge of facts or circumstances sufficient to put an ordinarily prudent person on inquiry, which if diligently pursued would have disclosed to him the fraudulent purpose of J. PI. Rach-' ofsky and also whether L. W. Rachofsky had actual knowledge of the fraudulent purpose-of J. H. Rachofsky. Such issues were substantially those covered by the requested charge and were not required to be submitted more than once.

Complaint is also made of the refusal of the court to charge the jury that the burden of proof was upon Jones to prove his allegations of fraud by “a preponderance of the evidence.” The court charged the jury that “the burden of proof is on the defendant Tobe. Jones to make out his allegation of fraud by a preponderance of the evidence.” The charge of the court is sufficient and is nearly in the precise language of the refused charge.

Complaint is made of the refusal of the court to submit four special issues or interrogatories to the jury, the substance of all of which is included in the special issues submitted by the court, save one, which is an inquiry whether J. H. Rachofsky wras insolvent. Insolvency vel non was not a determinative issue in the case, since there could have been a sale to hinder, delay, and defraud creditors without reference to insolvency and should not have been submitted. Le Gierse v. Whitehurst, 66 Tex. 244, 18 S. W. 510.

Complaint is made of the action of the court in defining knowledge on the part off U. W. Rachofsky of the fraud charged against J. PI. Rachofsky as notice, actual or constructive, of such facts or circumstances as would excite the suspicion of a man of ordinary prudence and put him upon inquiry of the fraudulent intent of the vendor. The definition in our opinion was correct. Whatever puts a party on inquiry amounts to notice when the circumstances known to him are of a character which ought reasonably to excite his suspicions and lead him to further inquiry.

There are numerous assignments of error, some repeated, attacking the court’s action in substituting lost deposition, the form of the verdict, remarks of the court, forms of questions charged to be leading, the admission of improper and prejudicial testimony, the examination of witnesses upon their depositions'taken in the case, and the exclusion of testimony claimed to be material. We have carefully examined all these assignments and conclude that none of-them present reversible error.

The judgment is affirmed.
      ®^>For other cases see same topic and KEY-NUMBER in all ICey-Numbered Digests and Indexes


author: BUYOE, J.

text:
    McBRIDE v. BEAKLEY et al.
    (No. 1350.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 8, 1918.)
    1. Constitutional Law &wkey;^34 — Self-Executing Provisions of Constitution — Lien fob Repairs.
    Const, art. 16, § 37, providing that mechanics shall have a lien on articles repaired by them for the value of the labor clone or material furnished, and that the .Legislature shall provide, by law, for the enforcement of such liens, is self-executing and creates the lien without the further aid of legislation, so that the lien does not depend on the statute, and the Legislature cannot affix to the lien conditions of forfeiture.
    2. Liens i®=16 — Waiver.
    A lien may be waived by express agreement, or by implication from the facts inconsistent with its continued existence.
    3. Liens <s&wkey;16 — Waiver—Intent.
    One will not be held to have intentionally waived a lien unless the intent is expressed or is plain and clear; the presumption always being against it.
    4. Bailment <&wkey;18(4) — Lien for Repairs— Waiver — Delivery on Taking Note.
    Where there was no express agreement waiving a lien for repairs on an automobile, the taking of the note of the owner’s son on its delivery to him did not have that effect.
    5. Liens <&wkey;16 — Waiver—Delivery of Possession.
    The rule that a lienor’s delivery of possession is a waiver of his lien originated in case where the existence of the lien itself was dependent upon the possession, and does not apply where possession is not an essential to the existence of the lien.
    6. Bailment <&wkey;18(3) — Lien for Repairs — Waiver — Possession—Statutes.
    Rev. St. 1911, art. 5665, authorizes mechanics to retain possession of an article repaired until the amount due for repairing is paid; article 5666 provides for the retention of possession where no amount is agreed to be paid for repairing until the reasonable compensation shall be paid; article 5667 authorizes the holder, after possession for 60 days, to sell the article and apply the proceeds to the payment of his charges. Held, that the object of the statute was to restate the common law and provide for enforcement of possessory liens, and article 5671 indicates that it was not the intent to impair other liens or apply to provision of Const, art. 16, § 37, creating a lien for repairs, which does not make possession an essential to the right of lien.
    7. Bailment &wkey;>lS (5) — Liens for Repairs— Waiver — Evidence.
    In a suit to recover money due for labor and material in repairing an automobile and to foreclose a lien for repairs .after it had been delivered to the owner’s son, evidence held insufficient to show a waiver of the lien.
    Error from Montague County Court; Homer B. Latham, Judge.
    Suit by T. C. McBride against J. L. Beak-ley and E. C. Beakley. Judgment for plaintiff for amount claimed denying foreclosure of his lien, and he brings error.
    Judgment for amount claimed affirmed, and judgment denying a foreclosure reversed, and judgment rendered granting plaintiff such relief.
    W. T. Russell, of Nocona, and Paul Donald, of Bowie, for plaintiff in error. Cook & Hall, of Montague, for defendants in error.
   BUYOE, J.

This suit was brought by plaintiff in error, T. C. McBride, against defendants in error J. L. Beakley and E. C. Beakley, to recover a sum of money alleged to be due for labor and material used in connection therewith in repairing an automobile, owned by J. L. Beakley, and to foreclose a lien on the automobile repaired. Judgment was rendered for the amount claimed by plaintiff, but foreclosure of the lien on the automobile was denied on the ground that the lien was waived by the voluntary delivery of the automobile after the completion of the work thereon under circumstances hereinafter stated, and this action of the court below is the basis of the complaint of its judgment.

jThe said T. C. McBride, at the request of' J. L. Beakley, did certain work on an automobile belonging to him; the value of the labor and material put in on the said job being the sum of $115.38. McBride’s son, during the father’s absence, allowed E. C. Beakley, son of J. L. Beakley, to take possession of said automobile, requiring the said E. C. Beakley upon such delivery to execute his note to T. C. McBride for the sum of $115. The judgment was against J. L. Beak-ley for the amount of the account, $115.38, with interest, and against P. C. Beakley on the note, with provision that payment on either judgment would discharge to that extent the judgment against the other. It was claimed on the trial that McBride’s son had no authority from him to deliver the car without payment of the account; the father having left instructions with the son, who was in charge of his shop during his absence, to hold the car until the charges were paid. No issue of authority was submitted to the jury, and we will assume in support of the judgment that the court found against appellant on such issue. The jury found that McBride’s son voluntarily delivered the car to E. O. Beakley. The evidence shows that this delivery was made on E. 0. Beak-ley’s request and statement that his father would pay the charges upon his return; he also being absent.

Article 16, § 37, of the Constitution, provides that:

“Mechanics, artisans and materialmen of every class, shall have a lien on the buildings and articles made or repaired by them for the value of their labor done thereon or material furnished therefor, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

This provision is self-executing. It creates the lien in the cases provided without the further aid of legislation; the province of the Legislature being to provide for the speedy and efficient enforcement thereof. “The lien does not depend upon the statute, and the Legislature has no power to affix to that lien conditions of forfeiture.-” Strang v. Pray, 89 Tex. 525, 35 S. W. 1056; F. & M. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966; Howell v. McMurry Lumber Co., 62 Tex. Civ. App. 584, 132 S. W. 848; Beilharz v. Illingsworth, 62 Tex. Civ. App. 647, 132 S. W. 109. While this provision of the Constitution has been most frequently under consideration in the courts, in connection with liens claimed, by mechanics and materialmen on buildings, we see no reason to question its applicability in the present instance. We will refer later to the statutory provisions in relation to this subject.

A lien may be waived by express agreement or by implication from acts inconsistent with its continued existence. Cyc. vol. 25, p. 674; R. C. L. vol. 17, p. 606. It is said that:

“To sustain this loss of lien (that is by waiver) it must be placed on one or the other of two ideas; intentional waiver or from the loss of possession. As to the first, authority is abundant to show that one will not be held to waive a lien unless the intent be expressed or very plain and clear; the presumption is always against it.” R. C. L. vol. 17, p. 606.

There was no express agreement in this case waiving the lien, and the taking of the note of P. C. Beakley did not have this effect. E. & M. Bank v. Taylor, 91 Tex. 78, 40 S. W. 880; Jones v. White, 72 Tex. 316, 12 S. W. 179; Southern Building & Loan Ass’n v. Bean, 49 S. W. 911; Myer v. Humphries, 47 S. W. 812. So that no waiver can be implied unless this results from the delivery of possession of the car. The authorities which hold that voluntary delivery by the lienholder of the possession of personal property to the owner operates as a waiver of the lien are confined to those cases where the existence of the lien itself is dependent upon'such possession. The very existence of many of the common-law liens was by virtue of the possession of property by one having performed some service for the benefit of the property itself, or such possession acquired as an incident to the performance of some service for the owner of the property. Since possession in the first instance was essential to the lien, the right being to hold such possession until the charges were paid, it was logical to conclude that voluntary relinquishment of such possession amounted to a relinquishment of the lien. Fishell v. Morris, 57 Conn. 547, 18 Atl. 717, 6 L. R. A. 82; Jones on Liens, §§ 996, 997; R. C. L. vol. 17, p. 606; Cyc. vol. 25, p. 675; Corpus Juris, vol. 6, p. 1136. But, obviously, these authorities would not be applicable to those liens where possession was not an essential to the creation and existence of the lien itself.

Now, the provision of the Constitution which we have referred to does not seem to make the existence of the liens therein provided for in any wise dependent upon possession; the carpenter and materialman in most instances would not have possession of the building or the land on which it was being erected, a mechanic working on personal [ property might or might not have possession thereof; yet the literal terms of this article apply in both instances. It is well recognized, of course, that possession has nothing to do with the lien in the case of the labor or material being furnished for a “building,” and the only ground for thinking that a different rule might apply in the case work was done on an article of personal property would be on the theory that the Constitution in this respect was merely declaratory of the common-law lien in favor of the repairer of article of personalty. But that part of the article which creates a lien in favor of the mechanic and materialman furnishing labor and material for a building is not declaratory of the common law, as no such lien was given by the common law, and since it is thus evident that the framers of the Constitution were attempting, at least in the one case, to confer rights not known to such law, and the lien on the “article” repaired is given by the same language as the lien on the building, we would hardly be justified, on this theory, in limiting the literal application of the language of the Constitution to a mere posses-sory lien in favor of the workman repairing the article of personal propertjn So that if the character of the lien is to be determined by the Constitution alone, wo think that possession is not to be considered as the essence thereof, and we come to consider the statutory provisions on the subject upon which defendants in error mainly rely for support of the judgment.

Article 5665, R. S., provides that mechanics are “authorized to retain possession of said article * * * (repaired) until the amount due on same for repairing by contract shall be fully paid off and discharged.” Article 5666 provides for the retention of possession where no amount is agreed upon for repairing until the reasonable and customary compensation for such work shall be paid. Article 5667 authorizes the holder of such property, after such possession shall have continued for 60 days, without payment of charges thereon, to sell the same after notice provided for and apply the proceeds to the payment of such charges. ' These statutory provisions should not be construed as attempting to limit the constitutional mechanic’s lien, unless that is their clear meaning, for, as we have seen, such is not the right of the Legislature. There are numerous authorities which establish that when material has been furnished or work done for the owner of a building the lien created by this same constitutional provision attaches as between the parties, and that a failure on the part of the lienholder to comply with the statutory regulations for filing the contract or account in order to fix the lien, though these provisions are mandatory in their terms, does not forfeit the lien. E. & M. Bank v. Taylor, supra; Beilharz v. Illingworth, supra; Howell v. McMurry Lumber Co., supra; Johnson v. Amarillo Improvement Co., 88 Tex. 505, 31 S. W. 506; Cameron v. Truehart, 165 S. W. 58. As the Constitution itself did not make the lien dependent upon possession, the Legislature would probably be without authority to provide for a forfeiture upon loss of possession; but we do not think that it was the intention of the Legislature to so provide. These articles of the statute are a part of a chapter devoted to providing liens in favor of hotels and boarding houses, livery stable keepers and pasturers, and mechanics, and article 5667 referred to above provides generally for the sale of the property in possession of the several classes of lienholders in satisfaction of the indebtedness due under the specific bailment. The liens created by this chapter are largely common-law liens in which possession constituted the foundation, and the evident purpose of the legislation was merely to restate the common law and make a specific provision for the manner of enforcing such possessory liens; the remedy at common law being deficient in this regard. Corpus Juris, vol. 6, p. 1137. This being the general purpose of the legislation, it is not to be inferred that the rights and remedies therein provided are to be construed as limiting the rights and remedies otherwise acquired and not inconsistent with the express terms of the legislation itself. The statute itself, by the terms of article 5671, makes it clear that it was not the intention of the lawmakers to “in any manner affect or impair other liens” created by any other authority. As applied to this particular case the statute, we think, provides one method of enforcing a lien where the mechanic has possession of the article repaired, but does not exclude others.

The cases of Ford Motor Co. v. Freeman, 168 S. W. 80, and Caldwell v. Auto Sales & Supply Co., 158 S. W. 1030, are cited by defendants in error as authdfity for the proposition that the lien was lost by voluntary delivery of the car to the owner. In both these cases the automobile, after being repaired, was voluntarily delivered to the owner without payment of the repair charges, and subsequently the mechanic came into possession of the automobile by virtue of another bailment contract and then sought to retain posséssion thus acquired to enforce the payment of the previous repair charges, and the issue in both cases was as to the right of the mechanic to hold possession of the automobile unaer these circumstances. We assume that the actual holdings of the courts in these cases are correct; the repair man, having voluntarily relinquished possession of the automobile, might not thereafter retake possession and hold it as against the owner, for the Constitution which created the lien in the mechanic’s favor did not authorize him to take possession from the owner of the article repaired and hold it until his charges were paid, so that the attempt to do this would not be justified by the constitutional provision, and the statute itself authorized the mechanic to “retain possession,” that is, continue the possession acquired by virtue of bailment for repair, and not retake possession once voluntarily relinquished. Those cases did not refer to the Constitution, but proceeded on the theory that the right of the mechanic was purely statutory — his possible right of possession was — and as that was all that was in issue in the case, there was no occasion to refer to the constitutional lien. We do not think those authorities apply in this case where the plaintiff in error is seeking to enforce his constitutional lien by a foreclosure in the courts.

We conclude, therefore, that the evidence is insufficient to show a waiver of the mechanic’s lien, and will reverse that part of th’e judgment denying a foreclosure of such lien, and will render judgment in favor of plaintiff in error, granting him such relief in addition to affirming the money judgment of the court below. The costs in the county court and of this appeal will be taxed against defendants in error.

PIUFF, C. J., ncft sitting, being absent in Austin sitting with committee of judges.
      <gx^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    HOUSTON E. & W. T. RY. CO. v. HOUSTON PACKING CO.
    (No. 341.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 18, 1918.
    Rehearing Denied June 5, 1918.)
    1. Commbece <&wkey;8(l) — Courts <&wkey;97(l) — Interstate Commerce — Supremacy op Federal Daw and Decisions.
    A bill of lading having covered an interstate shipment, its provisions and stipulations, under ■consideration by a court of Texas, must be construed and given such effect as would be given by the federal courts or as compelled by the acts of Congress on the subject, regardless of what effect such stipulations and provisions may have, if any, in a bill of lading covering an intrastate shipment, since the acts of Congress and the decisions of the federal courts relative to interstate commerce are supreme.
    2. Carriers &wkey;>159(2)— Notice of Claim — Validity of Stipulation — Interstate Commerce.
    Under the acts of Congress relating to interstate commerce, as construed by the federal courts, a stipulation in a bill of lading covering an interstate shipment requiring claims for loss, damage, or delay to be made in writing to the carrier at the point of delivery or point of origin within four months after delivery, or, in case of failure, within four months after a reasonable time for delivery, is valid and binding, and must be given effect by th» court.
    :3. Carriers <&wkey;159(3) — Stipulation as to Notice — Waiver—Interstate Commerce.
    The carrier of an interstate shipment under a uniform bill of lading, approved by the Interstate Commerce Commission, which became a part of the tariff rate filed by the carrier with the Commission, and required notice to the carrier within four months of delivery, at point of delivery or point of origin of claims for loss, damage, or delay, could not waive compliance by the shipper with the stipulation, either expressly or by implication, but was bound to enforce and give effect to the same as a part of its tariffs filed with the Commission.
    4. Carriers c&wkey;159(3) — Stipulation as to Notice — Waiter—Interstate Commerce.
    If the Interstate Commerce Commission had no authority to authorize an interstate carrier to waive stipulation of a uniform bill of lading requiring notice of claims for loss, damage, or delay within four months, and if the carrier without such authorization was without authority to waive the stipulation, there could be no legal waiver of stipulation in the bill of lading, either express or implied.
    5. Commerce &wkey;>88 — Orders of Commission —Stipulation as to Notice — Waiver.
    Implied authority from the Interstate Commerce Commission to an interstate carrier to waive stipulation in a uniform bill of lading requiring written notice of claims for loss, damage, or delay within four months, could not have controlling effect in a shipper’s suit for damages against the carrier, whore the order ■of the Commission was not in existence when the cause of action arose nor when suit was commenced.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Suit by the Houston Packing Company .against the Houston East &West Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood and Mc-Means, Garrison & Pollard, all of Houston, for appellant. Hutcheson & Bryan, of Houston, for appellee.
   HIGHTOWER, C. J.

On the 5th day of January, 1914, the Houston Packing Company, appellee, filed its petition in the county court of Harris county, Tex., seeking to recover $435.95, with. 6 per cent, interest from the 13th day of June, 1911. For cause of action, appellee alleged that on or about the 13th day of June, 1911, it delivered to the Houston East & West Railway Company, appellant, a carload of meat, to be transported by said railway company and its connecting carriers to the city of New York, state of New York, and there to be delivered to the Houston Packing Company, notify Haft & I-Iorwitz; that the reasonable market value of the meat at the time of the delivery to appellant railway company was $1,640.91; that at the time the car of meat was delivered to appellant it executed a bill of lading, whereby it agreed and obligated itself to safely carry, from Houston, Tex., to New York City, N. Y., and there deliver the same to appellee in good condition, and that appellant further agreed and obligated itself and its connecting carriers to keep said car of meat well iced along the route at points specified in such bill of lading, and at other points, if necessary; that appellant and its connecting carriers did not sufficiently ice said car of meat as it obligated itself to do, and failed to carry and promptly deliver same with due diligence, and that by reason of said negligence said car of meat, at the time it reached New York City, was of the reasonable value of only $1,204.96, and that by reason of the negligence of appellant and its connecting carriers appellee was damaged in the difference between the actual value of the moat at the time of its delivery to appellant and the value of the meat at the time it was delivered to appellee in New York, which difference was $435.95.

By its first amended original answer appellant denied the material allegations in ap-pellee’s petition; and further alleged that, if the meat was in an inferior condition at the time it reached New York, it was due to negligence on the part of appellee in the preparation of the car containing same, in that such car was not properly cooled by ap-pellee at the time the meat was placed therein, and that said car ■ was improperly constructed for the handling of meat. And appellant further pleaded, specially, among other things, that said shipment was an interstate shipment, and that the bill of lading under which the car of meat moved contained the following clause:

“Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery, or at the point of origin, within four months after delivery of the property. Unless claims are so made, the earner shall not be liable.”

The answer further alleged that such stipulation in the bill of lading was a valid and binding one; that no notice of any character respecting any loss, damage, or delay to said shipment was given to appellant, or to any agent of it, at the point of delivery, or at the point of origin; that, said shipment being an interstate one, the rules and regulations prescribed by the federal statutes, Interstate Commerce Commission, and the federal laws governed the liability of appellant as to said shipment of meat.

To this answer appellee, Houston Packing Company, replied by supplemental petition, in which, among other things, appellee pleaded that said stipulation with respect to notice of damage, etc., was unreasonable and void; and by further pleading—

“that, when this claim was prese,nted in writing to the defendant, it did not then, nor at any time thereafter, until its amended answer was filed in this cause, make any objection to the time or manner of presentation of plaintiff’s claim, with reference to the subject-matter of this suit, but received, handled, and investigated the same on its merits, and never at any time advised plaintiff that the claim would not be considered, or would be rejected, because it was not presented within the time stipulated, and thereby defendant waived the presentation of said claim in the terms of the stipulation in said bill of lading, even if the same was otherwise binding on plaintiff.”

There was also contained in the supplemental petition of appellee a plea to the effect that appellant was estopped by its conduct to claim the benefit of the stipulation in said bill of lading providing for notice in writing as to damages, etc., within four-months.

The case' was submitted to the court, without a jury, upon practically an agreed statement of facts, and judgment was rendered in favor of appellee for the sum of $435.95, with interest thereon at the rate of 6 per cent, per annum from the 20th uay of June, 1911. Exception to this judgment was duly made, and notice of appeal duly given, and the cause is now properly before this court for review.

The first assignment of error found in ap-pellant’s brief is as follows:

“The court erred in rendering judgment against the defendant, and in favor of the plaintiff, because the undisputed evidence showed that this suit was one for damages claimed to have been received by the plaintiff by reason of the negligence of the defendant company in the handling and- transportation of a car of meat from Houston to New York, that the same was an interstate shipment, and defendant’s liability, if any. was governed and controlled under_and by virtue of the federal statutes and federal laws, and the undisputed evidence further showing that the bill of lading under which said car of meat moved contained a stipulation that no claim for damages should be allowed unless such claim was presented within four months after the arrival of said car of meatt at destination, and the undisputed evidence, as well as the agreement on file, show no claim for damages' to said meat, was presented to the defendant company or the delivering carrier within the period of four months prescribed and stipulated in said bill of lading.”

This assignment is submitted as a proposition. The second proposition under this assignment is as follows:

“The liability sought to be enforced is the liability of an interstate carrier for damages under an interstate contract of shipment, as declared by the Carmack Amendment, and the validity of the stipulation requiring notice to be given within four months raises a federal question, to be determined under the federal law, and cannot be controlled by state laws or legislation.”

The following facts were agreed upon by the parties, to wit:

“I. That on June 13, 1911, plaintiff delivered to defendant a carload of dressed beef, in Houston Packing Company car No. 22, to be transported to New York City, N. Y., and that a through bill of lading was issued therefor, which was accepted and signed by plaintiff, said bill of lading being- dated June 13, 1911, and which bill of lading contained the following provision: ‘Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery, or at the point of origin, within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable.’ That said car arrived in New York City, and was delivered to consignee on Juno 20, 3911, and at the time of such delivery the contents of said car were partially damaged.
“II. That no written claim for damages of any character to said shipment-was made to the defendant or any of its connecting carriers, or to any of their agents, until October 24, 1911, more than four months after said shipment arrived at its destination and was delivered to consignee, and that on the 24th day of October, 1911, the plaintiff fully notified this defendant, through its agent at Houston, in writing, of the damages claimed by it on account of the negligent handling and improper icing of said car, and that the contents of said car were damaged to the extent of $435.95; and it is further agreed that plaintiff, by reason of the matters asserted in the claim, is entitled to recover of and from defendant said sum of money, unless said claim is defeated on- account of plaintiff’s failure to give notice of such claim for damages within the time prescribed in said provision of said bill of lading. It is further agreed that both plaintiff and defendant have offices within a short distance of each other in the city of Houston, Harris county, Tex., and that the agents of defendant company at Houston are well known to the officers and agents of plaintiff, and that in a large number of similar shipments of fresh moat by plaintiff over defendant’s line of railroad, where damage occurred to such shipments, plaintiff, in the great majority of such instances, gave the defendant written notice of its damage, as provided for in said' bill of lading; that the officers and agents of plaintiff intrusted with the shipment of said meat are active and intelligent business men, and are able to read and write the English language, and that plaintiff knew of the condition of said shipment on its arrival at point of destination within the time allowed for notice.
“III. It is further agreed that if the court or jury holds that said provision in said bill of lading is valid, reasonable and binding upon plaintiff, and lias never been waived, then plaintiff is not entitled to recover anything in this cause against the defendant herein, or any of its connecting carriers.
“IV. It is further agreed that, when this claim was presented in writing to the defendant, the correspondence hereto attached and marked Exhibit A passed between the plaintiff and defendant with reference to said claim, and that this was the only negotiation that passed between the parties, and that plaintiff, on Hay 26, 1915, placed said claim in the hands of its attorney for collection, and that plaintiff was never notified that defendant would claim as a defense said clause until alleged in its amended answer.
“V. It is further agreed that the carriers have uniformly and persistently insisted upon the enforcement of this clause since December, 1913, but that prior to that time, 'either through oversight or for reasons appearing good to the carriers, some claims probably were paid that were presented after the time stipulated in said clause.
“VI. It is further agreed that the clause relied upon by defendant was printed upon the back of said bill of lading, which was delivered to the plaintiff or consignor herein, and that in executing the bill of lading no reduced freight rate or other consideration than stipulated therein was furnished or offered plaintiff; the bill of lading under which said shipment moved is hereto attached as Exhibit B and made a part hereof.
“VII. It is agreed that the uniform bill of lading adopted June 2, 1915, by the Interstate Commerce Commission, in Southern Classification N'o. 3, Supplement No. 8, is hereto attached, and marked Exhibit C, and is still in full force and effect.
“VIII. It is' further agreed that on February 9, 1915, the Railroad Commission of Texas issued a ruling or order, which is still in full force and effect, and a copy of which is hereto attached and marked Exhibit I).”

The trial court filed no findings of fact or conclusions of law, and this court cannot tell what view the trial court took regarding the validity of the stipulation contained in the bid. of lading under which this shipment moved, to the effect that claims for damages, etc., must be made in writing within four months; but the court must have been of the opinion either that this stipulation in the bill of lading was invalid for the reason that it was unreasonable, as alleged by ap-pellee, or that appellant had waived compliance on the part of appellee with this stipulation; otherwise the trial court would have been bound, under the agreement of the parties, and such additional evidence as was introduced, to render judgment in favor of appellant.

It being undisputed that the bill of lading in question covered an interstate shipment, its provisions and stipulations, when under consideration by courts of this state, must be construed and given such effect as would be given by the federal courts, or as compelled by the acts of Congress on the subject, regardless of what effect such stipulations and provisions may have, if any, in a bill of lading covering an intrastate shipment. The acts of Congress relative to the field of interstate'commerce are admittedly supreme, and also must our state courts follow the decisions of the federal courts on all questions pertaining exclusively to interstate-commerce. Under the acts of Congress, as construed by the federal courts, the stipulation as to the manner and time of giving the notice of damage contained in the bill of lading under consideration was valid and binding, and such effect must be given by this court. Georgia, Florida & Alabama Ry. Co. v. Blish Mill. Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Ry. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Ry. Co. v. Rankin, 241 U. S.. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; Hudson v. Ry. Co. (D. C.) 226 Fed. 43; Clegg v. Ry. Co., 203 Fed. 973, 122 C. C. A. 273.

The only material question left for the determination of this court, as we read this record, is whether appellant, the railroad company, was permitted by law to waive the provisions in this bill of lading with reference to the manner and time of giving notice of the damage resulting to this shipment,, and following the adjudications of the federal courts on this point, we have been forced to the conclusion that appellant could not waive this stipulation in the bill of lading, either expressly or by implication.

It is shown without dispute in the record that this form of hill of lading known as the “uniform bill of lading” had been adopted by the railroad companies with the consent and approval of the Interstate Commerce-Commission, the appellant being among the number of such companies, as far hack as 1908 and the stipulation in question had. under the holdings of the federal courts and Interstate Commerce Commission itself, become a part of the tariff rate filed by such railroad companies with the Interstate Commerce Commission; and appellant, under the law as declared by the federal courts, could' not disregard such provision or stipulation in such bill of lading, but was bound to enforce and give effect to same as a part of its tariffs filed with the Interstate Commerce •Commission.

On this point the Supreme Court of the United States, in the case of Phillips v. Ry. Co., 236 U. S. 662, 35 Sup. Ct. 444, 59 L. Ed. 774, among other things said:

“To permit a railroad company to plead the statute of limitations as against some,'and to waive it as against others would be to prefer some and to discriminate against others, in violation of the terms of the Commerce Act, which forbids all devices bv which such results may be accomplished. The prohibitions of the statute against unjust discrimination relate, not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defenses open to the carrier.”

Appellee contends, however, that even if it he true that appellant had not the authority itself to waive, either expressly or by implication, the stipulation in the hill of lading, providing for notice of damage in writing within four months, that nevertheless appellant was authorized to waive, and did waive, at least by implication, said stipulation, because of the fact that the Interstate Commerce Commission itself, on February 9,1914, authorized appellant to waive such stipulation, and appellee introduced on the trial below, in support of this contention, the following, taken from the Traffic World, issue of February 28, 1914, pp. 413 and 414:

“Foto Months’ Limitatio'N.
“Case No. 4844. 29 I. C.: C. 417-420.
“In the Matter of Bills of Lading. Discrimina-tions Respecting Loss and Damage Claims.
Decided Feb. 9, 1914.
“Carriers and shippers in Official and Western classification territories, in order to prevent unjust discrimination, have joined in a request for the Commission’s approval of a waiver for a specified period of the four months’ limitation, which claims for loss, damage, or delay may be presented, as contained in the bills of lading referred to in tariffs, on file with the Commission. Held, that—
“(1) The Commission has no authority to order carriers to disregard their tariffs, nor does it feel justified in acquiescing in the adjustment of matters brought into the condition here presented by reason of disregard of tariff provisions, except from the necessity of a situation like this, when to do otherwise must leave uncorrected grossly unjust and widespread dis-criminations.
“(2) For reasons given in the report, the carriers should deal with all claims of this character upon their merits, in good faith, and without discrimination as to this rule regarding the period of time within which such claims should be presented.”
“(5) Reasonableness of such period of limitation not passed on.
“Preliminary Report of the Commission.
“Clements, Commissioner. For the purpose of promoting uniformity as to the substance and forms of bills of lading, the carriers operating generally in Official and Western classification territories, after numerous conferences with shippers and this Commission, covering, a considerable period of time, agreed upon what was designated as the ‘Uniform Bill of Lading,’ which, upon a final submission to the Commission, was, in a report announced June 27, 1908, recommended by it for use among all carriers. In the Matter of Bills of Lading, 14 Interst. Com. Com'n, 346.
“In that report it was indicated that the Commission would not at that time undertake to order the carriers to use this form of bill of lading, and it was made clear that the recommendation thereof was to be understood as subject to such modification or change as might be found necessary, either by experience or upon further investigation.
“The form and contents of the bill of lading thus agreed upon by shippers and carriers, and recommended by the Commission, was adopted by most of the carriers in the territories mentioned, and its provisions embodied in their freight classifications, -which were published and filed with the Commission, thus becoming a part of their established tariff schedules.
“Among these provisions was the following (section 3, paragraph 3):
“ ‘Claims for loss, damage, or delay must be made in writing to the carrier at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made* the carrier shall not be liable.’
“It has been disclosed by investigation and otherwise that, during much of the period since these provisions became part of the tariff schedules of said carriers, the provision above quoted has to a greater or less extent been disregarded by most or all of them, for various causes. In many instances in the establishment of commodity rates, they have not made the proper reference to this provision published in their classifications so as to make it applicable to such commodity rates. In this respect, again, there appears to have been no uniformity of practice.
“The observance and enforcement of this limitation as to the time for presenting to the carriers claims for loss of or damage or delay to freight in some cases, and the waiver or disregard of it in others, result, of course, in widespread and serious discrimination in the territories mentioned.
“The carriers of the South did not generally adopt the so-called ‘Uniform Bill of Lading,’ but adopted instead another form, known as the ‘Standard Bill of Lading,’ which contained many features, including this provision, common to both. Thesd carriers, however, did not make the provisions of their bill of lading a part of their classification or tariff schedules, and there does not appear to be much cause of complaint in this respect in that territory.
“The representatives of carriers and shippers alike, appearing- in a general proceeding of inquiry respecting the matter of bills of lading now pending before the Commission, have joined in a request for the Commission’s approval of a waiver by the carriers of the above provision, limiting the time within which claims of the character referred to might be presented to the carriers, with respect to all such claims presented prior to December 1, 1913, that were not presented within the four-month period, and also all claims accruing within two years prior to the date of this report which have not been presented to the carriers, provided such claims are presented to the carriers on or before April 1, 1914. It is urged that a waiver of this four months’ limitation provision to the extent indicated is the only course that will prevent or cure the discrimination otherwise resulting. This is evidently true.
“The carriers have sought to justify or excuse their irregular practices, as above indicated, in disregard of this provision of limitation while a part of their tariff schedules, upon the ground that it was regarded by them as of doubtful legality, partly because of the existence of state statutes prohibiting and declaring such provisions of limitations void. There seems to have been a question as to whether or not such statutes controlled interstate as well as state traffic. It is explained that the carriers have felt that even if the provision referred to was valid as to interstate traffic, and not as to state traffic, injustice would result by attempting to adhere thereto in regard to the former. Other reasons have also been assigned for the irregularities in this respect, which have grown up during the period since the uniform bill of lading was agreed to, and its provisions published in the carriers’ tariffs as stated. However, following some recent decisions of the Supreme Court of the United States, having particular reference to that of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257 (Traffic World, January 18, 1913, p. 103), many of the carriers, commencing about December 1, 1913, began to enforce much more rigidly the provision of limitation mentioned, realizing that there was no more authority in law for a disregard of this provision of their tariff than any other.
“The Commission cannot regard the excuses offered as entire justification for the course pursued. When it becomes apparent to carriers that they cannot, ought not, or will not enforce the provisions contained in their established tariffs, whether in regard to matters of the kind here involved, demurrage, reconsignment, or other like practices, as well as to rates, they should change their tariffs in the manner prescribed by law, so that their practices may be in conformity thereto. The Commission has not the authority under the law to order them to disregard their tariffs, nor does it feel justified in acquiescing in the adjustment of matters brought into the condition here presented, by reason of disregard of tariff provisions, except from the necessity of a situation like this, when to do otherwise would leave uncorrected grossly unjust and widespread discriminations.
“Eor reasons indicated, we cannot feel otherwise than that, for the purpose of preventing such results, the carriers should deal with all claims of this character, within the dates herein specified, upon their merits, without discrimination with respect to this rule regarding the period of time within which they should have been presented. It is expected that this will be done in good faith, and that hereafter, in order to avoid discriminations of the kind here presented, the tariff provisions of carriers respecting this question will be rigidly adhered to.
“The Commission does not here express any opinion with respect to the reasonableness of the period of limitation contained in this provision, that being a matter for determination in connection with the proceeding of general inquiry above referred to.”

It will be readily seen from the statement of the Interstate Commerce Commission itself, as contained in the above, that that Commission was clearly of the opinion that it had no authority to authorize appellant to waive the stipulation in question, same being a part of its tariff schedule; and if it be true that the Interstate Commerce Commission had no authority to authorize appellant to waive this stipulation, and if appellant, without such authorization, was without authority to waive the same, then it follows that, from a legal standpoint, there could be no waiver of this stipulation in this bill of lading, either express or by implication ; and we are inclined to think that the Interstate Commerce Commission did not, as admitted by it, have the authority to empower appellant, as an interstate commerce carrier, to do that which, under the acts of Congress, appellant was forbidden to do. If, however, we should not be correct in this, still we think that the implied authority from the Interstate Commerce Commission to appellant to waive this stipulation, as might be gathered from the report of the Commission above set out, could not have controlling effect in this case, for the reason that this order by the Interstate Commerce Commission was not in existence at the time this cause of action arose nor at the time this suit was commenced; and, therefore, waiving the question of authority of that Commission to authorize appellant to disregard this stipulation in the bill of lading, we must hold that this order of the Interstate Commerce Commission could not have the effect contended for by appellee in this case. Banaka v. Ry. Co., 193 Mo. App. 345, 186 S. W. 7.

This opinion has become already too lengthy, and any further discussion would make it unreasonably lengthy. It is manifest from the record that the appellee had a just and meritorious cause of action against appellant, but that it lost the same by reason of its failure to comply with the requirements in the bill of lading under which the shipment in question moved, with respect to giving to appellant the notice of damage, etc., within four months, as stipulated in that contract.

As to 'the plea of estoppel set up in the supplemental petition, we will only say that the same finds no support in the evidence, even if that character of plea would be available here from a legal standpoint. It is with reluctance that this court reverses the judgment in this case, since, as stated, appellee has sustained the full amount of damages recovered by him, but, from a legal standpoint, this court has no other alternative, and the judgment of the trial court is therefore reversed; and, since it is clear from the record that appellee could not recover upon another trial, judgment will be here rendered in favor of appellant, and it is so ordered.

Reversed and rendered.
      (Sx^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes