source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    WESTERN INDEMNITY CO. v. FREE AND ACCEPTED MASONS OF TEXAS.
    (No. 8513.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 27, 1917.
    Rehearing Denied Dec. 1, 1917.)
    1. Insurance <@=3539(3) — Indemnity Insurance — “Claim for Damages.”
    An action by the obligee, on a bond indemnifying it against default of its treasurer, for the amount of a defalcation, is a claim for damages within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, providing that no stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to a right to sue thereon shall ever be valid, unless such stipulation is reasonable; and any such stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void, so that a condition of the policy requiring immediate notice was void.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Claim for Damages.]
    2. Insurance <@=2 — Fidelity Insurance — “Insurance Company.”
    A fidelity company guaranteeing the honesty of persons holding places of trust and the performance of contracts and undertakings is an insurance company, and the same rules of construction must apply thereto as apply to other insurance contracts.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insurance Company.]
    3. Insurance <@=3645(3) — Fidelity Insurance — Notice op Loss — Reasonable Time.
    Where the fidelity insurance company did not plead any damage by delay in giving notice, or that the principal had disposed of his property during the time between the giving of notice and the time when it should have been given, whether the notice actually given was within a reasonable time was immaterial.
    4. Insurance <@=3665(3) — Fidelity Policies— Representations in Application — Knowledge of Default — Evidence.
    Evidence A eld to warrant finding of jury that the Grand Master of the lodge, indemnified in a fidelity policy against defalcation by its treasurer, had no knowledge of previous defaults or irregularities in auditing the books.

      5. Beneficial Associations <§=>14 — Statements oe Agent — Binding Effect — Scope op Authority.
    The Grand Master of a lodge, whose duties were to preside at all communications of the Grand Lodge, to present at each communication a written message, to constitute chartered lodges and to visit lodges, in the absence of pleading or evidence to show the authority upon his part, could not bind the lodge by his statements in an application for fidelity insurance for the treasurer.
    6. Insurance .<§=>390 — Fidelity Insurance-Breach dp Conditions — ‘‘Waiver.”
    Where the insurer in negotiations or transactions with the insured recognizes the continuing validity of the policy, after knowledge on its part of the conditions upon which the claim of forfeiture is based, or if it does acts based on the validity of such policy, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is, as a matter of law, waived.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Waiver.]
    7. Insurance <§=>558(3) — Fidelity Insurance-Breach op Conditions — “Waiver.”
    Where insurer 4 months after notice of defalcation wrote to an officer of the obligee, stating that the answers in the application were untrue, that notice had not been given in time, and requested a statement showing receipts and disbursements to make which the obligee was required to incur expense, the condition of the bond making it void if notice were not given within a stipulated period, and which had not been complied with, was waived.
    8. Insurance <§=>396(1) — Fidelity Insurance — Breach op Conditions — “Waiver.”
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4948, providing that in all suits brought upon insurance contracts or policies hereafter issued or contracted for in this state, no defense based upon his misrepresentations made in the application for, or in obtaining or securing the said contract, shall be valid, unless the defendant shall show on the trial that, within a reasonable time after discovering the falsity of the misrepresentations so made, it gave notice to the assured; that it refused to be bound by the contract or policy, provided that 90 days shall be a reasonable time, where an obligee on a treasurer’s bond at the request of the surety made up a report which was required more than 4 months after notice of the default and notice of the falsity of the statements in the application, the defense of falsity of such statements was waived.
    9. Insurance • <§=>430 — Fidelity Bond — Liability.
    If the treasurer against whose defalcation a surety bond was taken had made a defalcation before the bond was taken and borrowed money to cover the shortage, and after the execution of the bond repaid the money borrowed with the funds of the lodge, there was a new defalcation, for which the surety was liable.
    10. Insurance <§=>602 — Fidelity Bond — Liability.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art 4746, provides that in all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health, and accident insurance company liable therefor shall fail to pay the same within 30 days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, 12 per cent, damages on the amount of such loss, together with reasonable attorney fees for the prosecution and collection of such loss. Article 4955 provides that all the provisions of the laws applicable to the life, fire, marine, inland, lightning, or tornado insurance companies shall, so far as the same are applicable, govern and apply to all companies transacting any other kind of insurance business in this state, so far as they are not in conflict with provisions of law made specially applicable thereto. Const, art. 3, § 35, provides that no bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appx-opriated) shall contain more than one subject, which shall be expressed in its title; but if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. Held,, that article 4955, being originally Acts 31st Leg. c. 108, § 55, and being void because its purpose was not expressed in the title, and having gained nothing by re-enactment into article 4955, is void as in conflict with Const, art. 3, § 35, so that a judgment awarding 12 per cent, penalty for failure to pay the loss on an indemnity bond was improper.
    Appeal from District Oourt, Tarrant County; Bruce Young, Judge.
    Action by the Free and Accepted Masons of Texas (colored) against B. R. Bluitt and others. Judgment for plaintiff, and defendant Western Indemnity Company appealed.
    Reformed and affirmed.
    Carden, Starling, Garden, Hemphill & Wallace, all of Dallas, for appellant. Mike E. Smith, O. W. Gillespie, and G. W. Dunaway, all of Ft. Worth, for appellee.
   BUCK, J.

The Free and Accepted Masons of Texas (colored) instituted this suit against B. R. Bluitt, as principal, and the Western Indemnity Company, as surety, to recover the sum of $13,918.09, together with attorney’s fees and penalties,- on two certain fidelity bonds executed by Bluitt, as principal, and the Western Casualty & Guaranty Insurance Company, as surety. The last-named company, subsequent to the execution of the bond, sold and transferred to the appellant company all its rights, interest, and property, and the appellant company assumed its obligations. Hence the appellant company was regarded in the trial court as having executed ■ the original bond, and will be so treated here. Bluitt answered by general demurrer and general denial, and the indemnity company answered by general demurrer, general denial, and various special exceptions, which will be noted in the course of this opinion.

Plaintiff alleged that, Bluitt was the duly elected Grand Treasurer of the order in Texas, and that it was his duty to receive and safely keep in his possession certain sums of money belonging to plaintiff, consisting of dues, beneficiary, and per capita tax assessments, and sick benefit and entertainment funds collected by the plaintiff from its members, and to account to plaintiff for same. It alleged that on or about the 26th day of May, 1911, said Bluitt, as principal, and the Western Casualty & Guaranty Insurance Company, as surety, for a valuable consideration, executed and delivered to plaintiff two certain bonds in writing, one in the sum of $15,000, dated May 26, 1911, and the other in the sum of $10,000, dated May 31, 1911, and that said bonds by their terms were to cover a period of one year, ending on the 26th and 31st days of May, 1912, respectively. It was claimed by the plaintiff that the bonds were, and were intended to be, cumulative, and constituted an indemnity bond in favor of the plaintiff in the sum of $25,000; but the defendant below pleaded that the bond in the larger amount was intended, and was in fact, succeeded by the $10,000 bond, and the judgment hereinafter mentioned so finds.

Plaintiff alleged that on the 26th day of October, 1911, the said Bluitt, as plaintiff’s Grand Treasurer, had on hand and in his possession as funds of plaintiff derived from the sources above mentioned the sum of $151.-41, and that subsequent thereto, and up to and including July 12, 1912, plaintiff received from said sources the sum of $37,671.30, making a total of $37,821.71; that he paid out and accounted to plaintiff after October 26, 1911, various mentioned sums of money, aggregating $23,904.62; that said Bluitt fraudulently embezzled and misapplied and appropriated to his own use and benefit, during the period from October 26, 1911,' to October 5, 1912, $13,918.09, and thereby defendant Bluitt became indebted to and bound to pay to plaintiff the said sum. It further pleaded that due notice of said shortage and embezzlement on the part of Bluitt had been given to the Western Indemnity Company by plaintiff, and that on April 26, 1913, it made a demand in writing upon said company for said amount. Copies of the two bonds sued upon were attached to. plaintiff’s petition as exhibits.

The defendant company specially pleaded that to induce the Western Casualty & Guaranty Insurance Company to execute said bond, and to become the surety of said Bluitt, plaintiff, acting through and by its Grand Master, John W. McKinney, made application in writing to the said bonding company, and in said application made statements, answers, and representations which were stated in said application to b.e true and correct, but that said answers, representations, and statements were in many alleged respects untrue and false, and that said statements and representations were material and induced defendant’s predecessor in the bond to execute the same, and that it would not have executed said bond had it not relied upon the truth of said statements, answers, and representations. Wherefore defendant pleaded that it should be discharged. Defendant further pleaded that the plaintiff had failed to give the defendant immediate notice, as provided in the bond, of Bluitt’s shortage and embezzlement, and that in fact more than 60 days elapsed after the fact of said shortage and embezzlement had become known to the Grand Master and other officers of the plaintiff before any notice thereof was given to the defendant, and on this ground it claimed to be discharged from the obligations of the bond.

The record in this case is very voluminous; the transcript consisting of 177 pages, the statement of facts of some 358 pages, the brief of appellant presents some 198 pages, while that of appellee contains 131 pages. Hence the consideration of the case has required considerable time and ■ labor on our part, and it would be impracticable within the proper limits of an opinion to discuss separately each of the numerous propositions contained under the several assignments, or to discuss and seek to distinguish the various authorities cited, respectively, by appellant and appellee on the several issues presented.' Wherefore we will content ourselves with a discussion- of the controlling questions raised by appellant, submitting, in part, the authorities which, in our opinion, support the conclusions we reach.

Appellant’s first assignment complains of the refusal of the court to give a peremptory instruction, basing its claim upon the contention that the bond in this case provided as a condition precedent that upon the discovery of any officer of the obligee of loss thereunder, “written notice of such loss shall be immediately given by the obligee to the company, * * '* and failure to give such immediate notice * * * within such time shall relieve the company from all liability hereunder”; that the evidence without dispute disclosed that on September 30, 1912, Bluitt, who resided in Dallas, wrote to Grand Master McKinney, who resided in El Paso, a letter in which he disclosed the fact that he was unable' to pay many of the warrants issued by the Grand Lodge, although he was supposed to have funds sufficient therefor in his possession as Grand Treasurer, and that he had negotiated loans on all his property to the full extent it would stand, and that he had no source from which he could get the money with which to pay these claims, except the sale of his property and his professional income as a physician; that, on October 5th thereafter, there was a meeting in Et. Worth of various Grand Lodge officers, including the Grand Master, the Grand Secretary, and the Grand Treasurer, and that at said meeting Bluitt disclosed to those present his inability to pay these amounts mentioned, and that an audit of his books revealed that he was short in his accounts in the sum of $13,397.26; that in spite of the terms of the bond heretofore mentioned requiring immediate notice to defendant company of any shortage or embezzlement or defalcation on the part of Bluitt, plaintiff did not notify the defendant of the condition theretofore known to its officers until December 2, 1912, more than 60 days after Bluitt had written, and McKinney had received, the letter before mentioned. The evidence discloses that said letter was written by Bluitt on the date mentioned, and that the meeting of the Grand Lodge officers was held as claimed, and that the audit of the books disclosed the shortage in the amount alleged upon the date mentioned, and that no notice was given of such condition until December 2, 1912. The evidence further shows that at this meeting at Ft. Worth, Bluitt offered to turn over to the Grand Lodge his property, which he claimed to be reasonably worth $40,000 or $50,000; that an investigation was made by the Grand Master and other officers of the condition of said property, in order to determine whether or not the amount of shortage revealed could be made out of the sale of said property; that a deed of trust was executed by Bluitt in favor of William H. McDonald, Grand Secretary, on certain described property located in Dallas and belonging to Bluitt; that this instrument was rejected by the Grand Master, and that he stipulated that a straight deed should be made to such property to the Grand Lodge, in accordance with the offer he claimed Bluitt made at the Et. Worth meeting; that an attorney was employed by McKinney to investigate the titles and condition of the property offered, and it was found, as testified to by McKinney and other Grand Lodge officers, that said property, each and all of it, was covered by mortgages or vendor’s liens, which rendered the prospect of realizing out of the sale of such property sufficient funds to pay off the indebtedness extremely improbable; that thereupon McKinney refused to accept said property in satisfaction of said alleged shortage, and notified in writing the defendant company that Bluitt was in arrears in a sum not yet definitely determined, but supposed to be about $13,-700, and that claim was made on the defendant company therefor; that Bluitt had been suspended from his office and was not authorized to further act as Grand Treasurer. In said letter a request was made for blanks for making proof of loss.

In order to determine the tenability of the contention made under this assignment and proposition, it will be necessary for us to decide whether article 5714, Y. S. Texas Civil Statutes, applies, which article reads, in part, as follows:

“No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon, shall ever be valid, unless such stipulation is reasonable ; and any such stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void.”

Is this suit a “claim for damages” within the meaning of the article quoted? We are of the opinion that it is. In the case of Maryland Casualty Company v. Hudgins, 72 S. W. 1047, the Court of 'Civil Appeals for the Fifth District held, in an opinion by Chief Justice Rainey, that a similar provision in an accident insurance policy was void, because in conflict with this article, then article 3379, Revised Civil Statutes. In the course of the opinion this language was used:

“It is further urged that this is not such a claim for damages as is contemplated by the statute, and, therefore, it does not apply. ‘Damages are based on the idea of a loss to be compensated, a damage to be made good.’ In general, damages is ‘that which is given or adjudged to repair a loss.’ Mrs. Hudgins sustained loss by the death of her husband. The effect of defendant’s contract is to respond in damages in certain contingencies, one of which has transpired. This, we think, brings her claim within the purview of the statute.”

See, also, Etna Life Insurance Co. v. Griffin, 58 Tex. Civ. App. 198, 123 S. W. 432, writ denied.

In the case of Royal Casualty Co. v. Nelson, 153 S. W. 674, the Court of Civil Appeals for the Fourth District held a provision in a contract of insurance in a casualty policy, providing that notice of injury should be given within ten days, was void, as contrary to this statute. Damages is “the value in money of what is lost or withheld; the estimated money equivalent for detriment or injury sustained; that which is given or adjudged to repair a loss'.” Railway Co. v. Falconer (Ky.) 97 S. W. 729 (quoting Cent. Diet.). “Damages, in general legal acceptation, means compensation for the loss incurred, or the injury sustained, in the given case.” Myhra v. Railway Co., 62 Wash. 1, 112 Pac. 939; North Coast R. Co. v. Kraft Co., 63 Wash. 250, 115 Pac. 97, 102.

A fidelity company guaranteeing the honesty of persons holding places of trust and the performance of contracts and undertakings is an insurance company. And the same rules of construction must apply thereto as apply to other insurance contracts. National Surety Co. v. Murphy-Walker Co., 174 S. W. 997. See article 4733, Vernon’s Sayles’ Texas Civil Statutes. Article 4955 of the statutes provides:

“All the provisions of the laws of this state applicable to the life, fire, marine, inland, lightning, or tornado insurance companies, shall, so far as the same are applicable, govern and apply to all companies transacting any other kind of insurance business in this state so far as they .are not in conflict with provisions of law made specially applicable thereto.”

But for reasons hereinafter given, we do not think this article can be given any controlling effect here. We conclude that the stipulation in the bond requiring immediate notice of loss is void, being in contravention., of the terms of article 5714, supra.

We are not called upon to decide the mestion, irrespective of the provisions in the bond as to immediate. notice, and irrespective of the statutory provision in article 5714, supra, to the effect that any stipulation fixing the time within which notice shall be given at a less period than 90 days shall be void, whether the notice was in fact given within a reasonable time, for plaintiff did not plead any facts to show that it had been injured by tbe delay in giving notice alleged, nor that its condition bad been altered, or that it bad thereby been deprived of tbe opportunity to recoup itself out of any funds belonging to tbe principal in tbe bond; nor are we cited to any evidence tending to show that Bluitt bad disposed of his property in tbe interval between tbe discovery of tbe shortage by tbe Grand Bodge' officers and tbe giving of tbe notice to defendant company, nor is there any evidence that be bad absconded or otherwise secreted himself, or any of bis property, from tbe processes of' tbe law. The evidence is to tbe contrary, and tbe record discloses that be testified as a witness on tbe trial of this case.

Another contention under this assignment, as contained in tbe second proposition thereunder, is that appellee’s Grand Master, acting for plaintiff, for tbe purpose of inducing the appellant company to execute tbe bond sued on, made and warranted certain material, false, and untrue statements to tbe surety company in tbe application for the bond, to wit, that all tbe boobs of accounts and moneys and properties bandied by tbe applicant, or bis predecessor in office, bad been examined and verified up to July 24, 1910, and that appellant relied on such statements.

For tbe pujóse of tbe discussion of the question here presented and others under subsequent propositions, it may be well to set out certain questions and tbe answers thereto contained in tbe application for thebond. Tbe evidence shows that Bluitt bad been Grand Treasurer of plaintiff body since 1S98, and that during tbe early years of bis tenure of office be bad given only a personal bond which was, as be expressed it, merely a “straw bond”; that some question had been raised in the Grand Lodge as to the sufficiency of this character of a bond, and that in 1909 a surety bond was executed, running from October of that year to October, 1910; that this company declined to reissue a bond at tbe expiration of that year, and that Bluitt himself applied to one Ellis of tbe Phillips Insurance Company of Dallas, which company bad been writing fire insurance policies for Bluitt, and that Ellis brought to Bluitt tbe application blank which' Bluitt filled out and sent to McKinney, tbe Grand Master, for approval. These questions and tbe answers thereto, upon which defendant relies to defeat its indemnity obligation, are as follows:

* “(1) Q. Is the applicant now, or has he to your knowledge or belief been, from any cause short, in arrears, or in default in this or any other service, office, or position? A. No.
“(2) Q. Is there to your knowledge any account now due from the plaintiff to your body, or to a supreme or governing body? A. No.
“(3) Q. Have all the books of accounts kept and moneys and properties handled by the applicant or his predecessor in this office been examined and verified? A. Yes.
“(4) Q. If so, up to what date? A. Up to July 24, 1910.
“(5) Q. From whom or from what source will he receive moneys? A. From tbe Gx-and Lodge through the Grand Secretary.
“(6) Q. What will probably be the largest amount he will receive at any one time? A. Ten thousand dollars.
“(7) Q. To whom will he remit, or how will he dispose of money coming into his hands? A. AH funds are payable on order of the Grand Master and Grand Secretary.
“(8) Q. How often will he he required to remit or pay over money received? A. Will pay out funds on orders as above.
“(9) Q. What amount, if any, will be be permitted to retain after so remitting or paying over? A. Will be kept on deposit in bank.
“(10) Q. Will he be required to deposit moneys received to a bank account kept for that purpose? A. Yes.
“(11) Q. If so, in what name will such account be kept? A. B. R. Bluitt, Grand Treasurer.
“(12) Q. Name of bank designated for that purpose. A. Guaranty State Bank & Trust Company.
“(13) Q. What official signature will be required on the bank checks to draw money from said bank accounts? A. B. R. Bluitt, Grand Treasurer. Such checks to be issued on orders signed by Grand Master and Grand Treasurer.
“(14) Q. What officer will countersign checks? A. None, but cheeks are issued only on orders signed by Grand Master and Grand Secretary.
“(15) Q. How often will Ms books and accounts be examined and verified with funds and property on hand in bank? A. Third Tuesday in July each year. _
_ “(16) Q. By whom will this be done? A. By auditing committee.”

Appellant pleaded and here urges the facts to be that these answers were false and misleading in many respects, and that tbe evidence discloses that tbe Grand Master of tbe appellee at tbe time be made these answers knew that Bluitt bad been short in bis accounts back as far as July, 1904, when tbe Grand Lodge met at Houston, and by reason of bis defalcation was unable to meet at that time certain orders and demands for payment presented to him, and that in order to avoid arrest, be fled from tbe state; that said Bluitt at tbe time of making said answers was using for bis private purposes and for private investments and speculations tbe money belonging to plaintiff, which fact McKinney knew at tbe time of making said answers; that' tbe books of Bluitt as Grand Treasurer bad not been verified or tbe moneys and property examined and counted to see whether in fact be bad on band as Grand Treasurer the moneys which be had received as said officer, less tbe amounts paid out on proper orders and warrants. It is further claimed that tbe facts show that at no time during tbe period of Bluitt’s incumbency did he keep an account in tbe name of tbe Grand Treasurer, but that be placed all funds received from tbe Grand Lodge with bis private funds and checked on such funds indiscriminately for Grand Lodge purposes and private purposes; that bis checks in payment of Grand Lodge warrants were not signed officially, but simply in bis personal capacity; that tbe facts were that be did not keep bis account in tbe Guaranty State Bank & Trust Company alone, and that said bank bad not been designated by plaintiff as a depository, and that said Blu-itt was not required to keep tbe Grand Lodge funds in said bank, but that in fact he kept his accounts in two named negro banks as well as in other banks.

J. W. McKinney, Grand Master, testified that at the time he signed the application for the bond the answers to the questions had already been filled out by Bluitt, and that he believed the statements made and the answers to said questions were in fact true; that he never knew of any shortage or default of Bluitt prior to receipt of the letter of September 30, 1912, before mentioned, and that he believed Bluitt kept his Grand Lodge account in a separate bank and signed all checks on said fund as Grand Treasurer; that he had never had occasion to receive a check from said Bluitt as Grand Treasurer, but that he retained out of such funds as he remitted to Bluitt his own fees and compensation; that at each Grand Lodge, which met annually in July, he as Grand Master appointed an auditing committee to examine the accounts, books, and moneys, in the hands of the Grand Secretary and Grand Treasurer, and that such committee had reported, not only on July 24, 1910, but at the previous session of the Grand Lodge, that the books and accounts of said officers had been examined and verified and found correct; that when he signed said application he believed that each and every answer made therein, though in fact such answers had been written out by Bluitt before sending to the witness the application, was correct, and that the information given in said answers constituted the real facts. In this connection it may be stated that the testimony of Bluitt himself discloses a system of handling trust funds very unbusiness-like, and that in fact he did not keep any account in the name of the Grand Treasurer, but that he kept all funds both personal and Grand Lodge funds, in various banks including the two negro banks, in his own name, and that he drew on said funds for private purposes as well as for Grand Lodge purposes; that when he wished to buy a piece of property he used any funds on hand for that purpose, and that on various occasions at Grand Lodge sessions he borrowed money for the purpose of making the necessary exhibit, at one time showing a certified check and at another time $4,000 in bills, and that after the Grand Lodge session was over he would return the money borrowed and pay off the loan.

TVe think the evidence fails to show conclusively that McKinney knew of the manner in which Bluitt was using the Grand Lodge funds, or that McKinney knew that the auditing committees appointed at the several sessions of the Grand Lodge bad not in fact made the necessary investigation to find out whether Bluitt had on hand as Grand Treasurer the moneys which his books showed him to. have. There is evidence to show that at a session of the Grand Lodge held at Houston, Bluitt notified those present who had claims or warrants to be cashed to see him that day; that he was going to leave that night for his summer vacation; that he did leave that night, and that afterwards certain parties complained of their inability to have their warrants cashed. But we do not think the evidence conclusively shows any absconding on the part of Bluitt at said time, or that he was unable to pay said amounts so due, or that McKinney knew that he was not so able. The evidence upon these various matters is conflicting, but the jury has decided the issue of facts favorable to the contention of the plaintiff below, and we do not feel justified in disturbing the judgment based on such verdict.

. It will be noted that many of the answers made in the application are as to matters, dealings, and course of conduct in the future, and as to these McKinney as Grand Master could only answer upon his best information and belief as to the course and conduct of Bluitt in the management of the Grand Lodge fundsl

But we think it doubtful whether the appellee should be held bound by the answers made over the signature of its Grand Master in the application mentioned. As shown by the evidence the duties of the Grand Master as defined' by the Constitution of the plaintiff order were, to preside at all communications of the Grand Lodge, to present at each annual communication a written message recommending legislation, etc., to constitute chartered lodges, to visit lodges, etc. And it is very questionable in our minds as to whether the Grand Master was authorized to furnish the information asked for in this .application, and that the Grand Lodge would, because of the giving of such information on the part of the Grand Master, be in any way affected by the truth or falsity of such representations. In the case of American Surety Co. v. Pauly, 170 U. S. 133, 18 Sup. Ct. 552, 42 L. Ed. 997, Mr. Justice Harlan, speaking for the court, held that a bank could not be deemed to have had constructive notice that its president gave a certificate to a bonding company to enable its cashier to procure a bond insuring his fidelity, where it was not the duty or business of the president, and there was no usage of the bank allowing him to give the certificate. There is no pleading in the instant case, nor is there any evidence, that it was the usage of the plaintiff below to have its Grand Master furnish such information. It is shown' that it was the Grand Master’s duty to approve acceptable bonds when presented. We are of the opinion that the contention of appellant here made should be overruled by reason of the fact that the record fails to show by proper pleading and at least by evidence that in signing this application J. W. McKinney was acting within the express or implied scope of his authority as Grand Master.

But irrespective of the condition of the evidence with reference to what the facts were as to Bluitt’s having been in default prior to the execution of the bond, or as to the accounting and verification of the boots, accounts, etc., of Bluitt as Grand Treasurer or as to the knowledge of McKinney of the facts alleged and relied on by appellant to show that said answers were false in material respects, and were fraudulently made by McKinney, and should we be in error in concluding that the case of Surety Go. v. Pauly, cited above, controls the facts here disclosed, we are of the opinion that the evidence shows a waiver on the part of the surety company of its right to declare the invalidity of the bond on account of the false representations alleged to have been made in the application. Where the insurer in negotiations or transactions with the insured recognizes the continuing validity oi the policy, after knowledge on its part of the conditions upon which the claim of forfeiture is based, or if it does acts based on the validity of such policy or requires the insured! by virtue thereof to do some act or incur some trouble or expense, the forfeiture is, as a matter of law, waived. The evidence discloses that as late as March 31, 1913, nearly four months after it had been notified of Bluitt’s defalcation, the appellant company wrote to McKinney as 6rand Master a letter, in which it charged that the answers made by McKinney in the application as to the condition of Bluitt’s account with the Grand Bodge at the time of the making of the application for the bond were untrue, and after reciting that notice of default had not been given as stipulated in the bond, and after claiming that the appellant company was thereby relieved of liability on the bond, requested of McKinney that a statement be made up showing every receipt and every disbursement, or at least the total of all disbursements between the commencement of the bond and the date of the alleged default. Mitchell, who was the agent and manager of appellant company, and had occupied a similar position with the Western Casualty & Guaranty Company, testified that he received proof of loss from McKinney about the 1st of January, 1913, and that immediately he began an investigation of the matter; that upon receipt of the letters from McKinney of date December 2, 1912, he spent some six weeks in Dallas investigating the matter, and later saw W. H. McDonald, Grand Secretary. He states that he began the investigation about February 20th, and that it was probably two weeks after that he saw McDonald ; that he did business personally with the Guaranty State Bank & Trust Company, and was acquainted with the officers thereof during the years 1910, 1911, and 1912; that when he found there was a claim for 813,000 or $14,000 against his company on this bond, he looked Bluitt up to find out whether he was solvent or not, and whether the company could make the money out of him in the event it had to respond in damages on the bond, and that he found that Bluitt had a good deal of property, hut that it was pretty well incumbered.

McDonald testified that Mitchell came to his office and told him that they (the Grand Lodge officers) were laboring under a mistake, and that it had only a $10,000 bond in his company in place of $25,000, and that Mitchell complimented him upon the position he had taken in trying to collect the money by letting Bluitt secure plaintiff with his property, and said that was the way for them to proceed, that they ought to settle it that way, and not go into courts and litigate the matter at all; that he knew that it was a very unfortunate affair; that he knew Bluitt, and that Bluitt stood as high in Dallas as anybody, and that he thought that if Bluitt was given time he would make good; that this conversation occurred some time during the latter part of March, and that during the conversation he asked Mitchell why they had not given them (the Grand Lodge officers) an answer as to what they were going to do about the matter, and that Mitchell replied that they had 90 days in which to make their reply; that he had plenty of time in which to let them know. McDonald further testified:

“I then said to Mitchell that he was over there in Dallas with Bluitt, and asked him why he did not go after Bluitt and make him ‘fork up’ this money, and Mitchell replied there wasn’t a man in the state that had the influence with Bluitt that I had, and that I was the only man in the state that could have any influence with Bluitt; then he went on to say that I was handling the matter very nicely. In my conversation with Mitchell I asked him if we would be justified in going into our Grand Lodge and airing this matter, and he said his advice to us was to settle it amongst ourselves in a brotherly way. He remarked that there were enough negroes in the penitentiary already, and he asked me if I didn’t agree with him, and I told him I did, and then he repeated that the proper way to settle it was to settle it among ourselves.”

Article 4948, V. S. Texas Civil Statutes, provides:

“In all suits brought upon insurance contracts or policies hereafter issued or contracted for in this state, no defense based upon misrepresentations made in the application for, or in obtaining or securing the said contract, shall be valid, unless the defendant shall show on the trial that, within a reasonable time after discovering the falsity of the misrepresentations so made, it gave notice to the assured * * * that 'it refused to be bound by the contract or policy: Provided, that ninety days shall be a reasonable time.”

In the case of National Life Insurance Ass’n v. Hagelstein, 156 S. W. 353, writ denied, it was held that a company not having given the prescribed notice within 90 days after being informed of the alleged falsity of the representations was absolutely barred from defending an action on the policy because of said alleged misrepresentations in tbe application.

In the case of German-American Insurance Co. v. Evants, 25 Tex. Civ. App. 300, 61 S. W. 536, writ denied, it was held that the forfeiture was waived where an insurance adjuster knew that the policy had been forfeited by a breach of a condition therein, and, the insured having refused to sign an agreement stipulating that the insurer waived no rights by investigating the loss, the adjuster then stated that he did not waive any conditions, but proceeded to adjust the loss. He required the insured to make a list of the destroyed, property, etc., and went away without having claimed a forfeiture, and insured went to the expense of employing lawyers to make out his proofs of loss. See, also, Etna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S. W. 523; National Surety Co. v. Murphy-Walker Co., 174 S. W. 997.

The evidence in the instant case shows that as a result of the request on the part of the appellants company, the plaintiff employed an auditor to examine the books, accounts, etc., of Bluitt at an expense of some $180, and that a full report was made by him and submitted to the company. We, therefore, as stated, conclude that this constituted a waiver of any right of forfeiture on the part of the company by reason of the alleged misrepresentations contained in the application, even though it should be held» that the plaintiff would otherwise be bound by the statements therein contained. We think the evidence'is sufficient to justify the conclusion on the part of the jury that the- manner in which Bluitt had deposited the Grand Lodge funds, and the manner in which he had checked on them and used them, was fully disclosed to the appellant company and its adjuster before it demanded an audit of the books, and a statement to be made showing every disbursement, or at least the total of all disbursements, between the commencement of the bond and the date of the alleged default, as required in Mitchell’s letter of March 1, 1913. Moreover, if there had been a distinct denial of liability on grounds other than now claimed, according to the authorities this would have been a waiver of notice. In his letter of March 1st, Mitchell stated:

“We have been investigating the. facts and are of the opinion that nothing done by B. R. Bluitt amounts, or amounted, to larceny or embezzlement.”

In the case of Fidelity Phenix Fire Ins. Co. v. Sadau, 178 S. W. 559, in declining t'o hold that a forfeiture had been shown, this court said:

“It will be further noted that the letter from the defendant company, worded by an able and experienced lawyer, was so couched as to amount only to a general objection to the proof submitted, if not a denial of liability altogether on the policy. The specific defects now relied on were not pointed out.”

In the case of Georgia Home Insurance Co. v. Moriarty, 37 S. W. 628, writ denied (38 S. W. xvii), Chief Justice Rainey of the Court of Civil Appeals for the Fifth District said:

“But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived. And it is now settled in this court that such a waiver need not be based upon any new agreement, or an estoppel. Forfeitures are not favored in the law, and this doctrine of waiver is not peculiar to insurance policies, but is applicable to all cases of ’forfeiture.” |

In British America Assur. Co. v. Francisco, 58 Tex. Civ. App. 75, 123 S. W. 1144, writ denied, the following expression is used:

“Treating of the conduct of the insurer after the forfeiture had occurred, it is said in volume 16, p. 839 (2d Ed.) Am. & Eng. Encyc. Law: ‘And even after forfeiture occurs the insurer is precluded from taking advantage thereof if with full knowledge of the facts out of which the forfeiture arose it neglects to declare its intention of insisting on the forfeiture, or by its acts recognizes and treats the policy as a valid and subsisting contract, and induces the assured to act in that belief, especially if such acts cause the insured to incur trouble or expense.’ ”

See, also, Couch & Gilliland v. Home Protection Fire Ins. Co., 32 Tex. Civ. App. 44, 73 S. W. 1077; Sun Mut. Ins. Co. v. Mattingly et al., 77 Tex. 162, 13 S. W. 1016; Burlington Ins. Co. v. Lowery, 61 Ark. 108, 32 S. W. 383, 54 Am. St. Rep. 196.

The statement of facts discloses that in spite of expressions used by the appellant company to the effect that it was relieved of liability by virtue of a failure to give notice within the required time, and on account of misrepresentations alleged to have been made in the application, yet repeatedly insisted upon a course of conduct to be pursued by appellee which necessarily involved trouble and expense.

For all the reasons stated, we are of the opinion that those assignments and propositions leveled at the claimed error of the court in failing to give a peremptory instruction for defendant because of alleged misrepresentations contained in the application should be overruled.

It is insisted that the judgment against the company on the $10,000 bond is erroneous, in that the evidence fails to show that the alleged shortage or embezzlement occurred during the life’ of the bond. This' bond was executed May 31, 1911. The report of the special auditing committee appointed by the Grand Master at the meeting at Ft. Worth on October 5, 1912, showed a shortage on the part of Bluitt of $13,918.06. D. H. Kemaghan, the auditor employed by the appellee, in response to the request of the appellant to furnish a full statement of the receipts and disbursements of Bluitt during tbe term of the bond, testified:

“My audit or report shows that on October 26, 1911, the Grand Treasurer had in his hands $151.41; that was his balance on that date— that is, he was charged with that amount on that date. Erom October 31, 1911, to July, 1912, the Grand Treasurer received $37,671.30. On November 27,1911, he began to pay out this money, and up to September 30, 1912, he disbursed $24,433.77, which left a balance to be accounted for of $13,388.94. * * * This document here is a correct audit of the books of B. R. Bluitt, the Grand Treasurer, and correctly shows the state of his account during the period of time covered by the audit; it is a faithful audit of the books, and I swear to it.”

Even if Bluitt had been short in his accounts prior to the life of this bond, and had borrowed money from banks or individuals to cover this shortage, and after the execution of the bond had used the Grand Lodge funds with which to repay these loans, there being some evidence to this effect, the use or taking of the Grand Lodge funds to pay these loans would be a fresh and independent act of embezzlement or defalcation occurring during the life of the bond and for which the bonding company would be liable. Hence we -overrule the assignment directed to this alleged error.

Appellant complains of so much of the judgment as allows 12 per cent, damages on the amount of the loss, together with reasonable attorney fees for the prosecution and collection of such loss, claiming that such penalties are only permitted as against life insurance or accident insurance companies, etc., as provided in article 4746, V. S. Tex. Civil Statutes. This article reads as follows :

“In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss; twelye per cent, damages on the .amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.”

Article 4955, V. S. Texas Civil Statutes, has been heretofore set out in this opinion. In National Surety Co. v. Murphy-Walker Co., 174 S. W. 997, the Court of Civil Appeals for the El Paso District held that article 4955 was void because the purpose and pur- . port of said article, being section 55 of chapter 108, General Laws 1909, p. 192, was not contained in the caption of the bill, and therefore was in violation of article 3, section 35, of the Constitution of this state, which declares:

“No bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

The title to the bill under discussion is fully set out in the National Surety Company Case, supra, and need not be repeated here; but it is sufficient to say that said title does not in our opinion contain language which could reasonably refer to or include the purposes contained in section 55 of said act. Nor do we think the purpose therein disclosed is one merely incidental to the general subject referred to in the act. Subsequently, in 1911, section 55 was incorporated by the Legislature as article 4955 in the compilation of Revised Civil Statutes of 1911. The question before us is: Did the legislative act of adopting the compiled laws operate as an enactment or a re-enactment of this particular article, so as to relieve it of its former invalidity? In the case of Fischer v. Simon, 95 Tex. 234, 66 S. W. 447, 882, the Supreme Court, in answer to certified question from the Fourth district, held that the incorporation of former enactments in the Revised Statutes of 1895 should be deemed but a continuation of former laws, and that it will receive the same construction which would be given to the original act. In Insurance Co. v. Walker, 94 Tex. 473, 61 S. W. 711, the same conclusion was reached by our Supreme Court in a well-considered opinion by then Associate Justice Brown. From this opinion the following language is taken:

“The commissioners for revision were not authorized to make changes in the substance of the statute laws of the state, but simply to arrange them in convenient form. To make sure that the laws of the state were not materially changed by such revision, the Legislature which adopted the Code as revised enacted a chapter of general provisions to govern in the construction and application of the laws embraced in the Revised Statutes, ⅜ * * of which' -general provisions section 19 is in these words: * * * ” (Then quotes the section which is in the same verbiage as section 16 of the final title of the bill adopting the Revised Statutes of 1911 and above quoted.)

, In Corbett v. Sweeney, 151 S. W. 858, writ denied, the Court of Appeals for the First District held that the same rule of construction as applied by the Supreme Court in the two cases above mentioned with reference to the Revised Statutes of 1895 should apply to the Revised Statutes of 1911.

In view of the state of authority on this question here presented, we feel compelled to hold that the adoption by the Legislature -of the Compiled Civil Statutes of 1911 did not give to article 4955 any constitutional validity which it did not have as section 55, chapter 108, of the General Laws of 1909, and that, therefore, said article must be held to be void under article 3, section 35, of the Constitution of this state. Hence we sustain the sixteenth assignment of error which is leveled at so much of the verdict and judgment as authorized a recovery of attorney’s fees and the 12 per cent, penalty. All other assignments are overruled.

The judgment will be reformed so as to exclude the items of 12 per cent, penalty and the attorney’s fees adjudged against the appellant Western Indemnity Company, and, as so reformed, will be affirmed. The judgment against appellant Bluitt will be in all things affirmed. Costs of appeal taxed against appellee.
      <@cc>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>Ror other oases see same topu, ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    COUCH v. BIGGERS et al.
    (No. 7817.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1917.)
    1. Appeal and Error <©=>263(1) — Scope—Instructions — Preservation os' Exceptions.
    Assignments of error based on refusal of special charges or on the giving of instructions will not be considered, where there is no bill of exceptions reserved to any of such errors, as specifically required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061.
    2. Evidence <©=>174(4) — Admissibility—Secondary Evidence.
    A copy of a telegram received by one party purporting to have been sent by another is not admissible, being secondary evidence.
    3. Appeal and Error <©=>1058(1) — Harmless Error.
    Error, if any, in excluding telegram as secondary evidence was harmless, where its contents were testified to by two witnesses without objection.
    4. Bleading <©=>196 — Amendment—Varying Contract — Eet-ect.
    A supplemental petition pleading waiver of one of the provisions of the contract is not de-murrable upon the ground that it seeks to in-graft upon the contract conditions not embodied therein.
    Error from Ellis County Court; W. M. Tidwell, Judge.
    • Action by W. C. Biggers and others against J. T. Couch. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    J. T. Spencer, of Waxahachie, for plaintiff in error. R. B. Sullivan and Supple & Harding, all of Waxahachie, for defendants in error.
   RAINEY, C. J.

Defendant in error Big-gers sued plaintiff in error to recover on a note for $500, executed as a forfeit for failing to comply with a contract for the purchase of land. Plaintiff in error answered by general denial, and specially that the consummation of said contract depended upon one McKnight securing a loan for $5,000, which he was to pay to plaintiff in error; that said loan was not consummated by Me-Knight, which voided the contract; and, further, that Biggers failed to furnish an abstract of title, etc. A trial was had with a jury, and judgment resulted for defendants in error, from which this appeal is taken.

Conclusion of Fact.

Plaintiff in error and defendant in error entered into a written contract, by which defendant in error was to sell and plaintiff in error agreed to purchase 173 ½ acres of land, the consideration being $17,350; plaintiff in error was to deed a house and lot valued at $7,350, pay cash $5,000, and assume an indebtedness of $5,000. The contract was conditioned on one McKnight getting a loan with which plaintiff in error was to get and pay the $5,000 cash, otherwise the contract of sale was to become null and void; also that an abstract was to be furnished by Biggers. The note for $500 was put up as forfeit in the event either party failed to comply with the contract. No abstract was tendered by defendant in error, the doing so having been waived by plaintiff in error. Plaintiff in error declined to close the contract, stating as an excuse that McKnight had failed to procure the loan specified. McKnight perfected the loan within a reasonable time and paid plaintiff in error $5,000. No time was specified in the contract for closing up the contract, and a reasonable time had not elapsed when plaintiff in error notified defendant in error that he would not comply with it, and this suit was not prematurely brought.

Conclusions, of Law.

1. Several assignments are based on the refusal of the court to give special charges requested by plaintiff in error, and assignments 10 and 11 relate to certain instructions contained in the court’s main charge, none of which will be considered because no bill of exception, as shown by the record, was reserved to the action of the court to either of the errors assigned as provided for by article 2061, Vernon’s Sayles’ Ann. Oiv. St. 1914.

2. The second assignment of error is based upon the refusal of the court to admit as evidence the following telegram from Edwin Chamberlain & Co. to the Texas Title & Loan Company, to wit:

“30 — DA. RA. — 50 Night Letter. San Antonio, Texas, July 27th, 1915. The Texas Title <& Loan Company, Waxahachie, Texas: Replying yours twenty-sixth we cannot waive payment taxes due Dallas County and only way we see to arrange matter would be for us to reserve out of proceeds of our loan sufficient amount to pay these taxes together with interest, penalty, etc. Advise us if this can be done. Edwin Chamberlain and Company. 8:35 p. m.”

The objection to this evidence was that it was a copy, and hence secondary. The court did not err in refusing to admit this copy in evidence, as it was secondary evidence, and not admissible. Besides, its contents were testified to by two witnesses without objections, therefore no harm resulted tó plaintiff in error.

3. There was no error in the court not sustaining special demurrer, which is as follows:

“And defendant further specially excepts to plaintiff’s supplemental petition because the same seeks to vary the terms of written contract expressly sued upon by plaintiff, and to ingraft upon said contract conditions not embodied in said contract, in that plaintiff failed to furnish abstract, but only offered to furnish same.”

Said supplemental petition did not attempt to vary by parol tbe written contract, but merely set up waiver by plaintiff in error relative to furnishing an abstract.

4. The assignment relating to remarks made in argument by defendant in error’s attorney does not require a reversal of this case, and said assignment is overruled. The evidence supports the judgment, and no error is shown in the giving or refusal of charges.

The judgment is affirmed.
      <©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    STONE v. BARE et al.
    (No. 7818.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1917.)
    1. Judgment <§»256(2) — Conformity to Verdict.
    When a case is submitted to the jury on special issues, the trial court cannot, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1986, disregard its finding, though without support in the evidence, and must enter judgment in conformity with the verdict.
    2. Dismissal and Nonsuit ¡§=s75 — Grounds— False Claim of Damages.
    Where the jury found that plaintiff had falsely stated his damages for the killing of dogs at such sum as to give jurisdiction to the county court, the court was without jurisdiction; and the proper judgment entry was one of dismissal, and not for the defendants on the merits.
    3. Appeal and Error @=^916(1) — Presumption.
    Since the delay in filing a plea in abatement and the fact that the plea was not sworn to may be waived, it will on appeal be assumed that they were waived where the facts do not appear from the record and all the parties went to trial on the issue raised by the plea.
    4. Courts <⅛=121(8) — Jurisdiction—How Attacked — Pleas in Abatement.
    To establish plea in abatement that the plaintiff laid his damages excessively so as to secure jurisdiction, the evidence must show not only that the property was of a value less than the jurisdictional amount, but that the value laid was for the fraudulent purpose of conferring jurisdiction.
    Appeal from Collin County Court.
    Action by R. C, Stone against S. H. and Roscoe Bare. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    G. R. Smith and W. R. Abernathy, both of McKinney, for appellant. W. F. Duncan, John Doyle, and Merritt & Merritt, all of McKinney, for appellees.
   RASBURY, J.

The appellant sued the appellees, father and son, in the court below for damages for wrongfully and maliciously killing two dogs and crippling another, alleged to be of the total market value of $600, but which, due to their special training and knowledge as hunters were of the value to appellant of $800. The appellees plead in abatement of the suit that appellant had laid his damages at a sum in excess-thereof for the fraudulent purpose of conferring jurisdiction upon the trial court and depriving the justice of the peace thereof, and on the merits that the dogs were rovers who nocturnally trespassed upon the premises of the elder Bare, freightening his stock, injuring his crops, and destroying the health, peace, and quietude of his home and family, and hence if it appeared that appellee did kill and cripple the dogs as alleged, it was on such an occasion and justifiable. There was trial before jury, to whom the court referred by numerous interrogatories the issues oE fact arising upon the plea in abatement, as well as those upon the merits, and which the jury in both instances answered favorably to appellees, and upon which the court, ignoring the verdict on the plea in abatement, entered judgment for appellees on the merits of the case, reciting that such was the legal effect of the verdict. From such judgment, this appeal is perfected.

The first contention is that inasmuch as the claim of appellees, raised by their plea in abatement, that appellant had laid his damages at a sum in excess thereof for the purpose of fraudulently conferring jurisdiction upon the trial court was sustained, judgment should have been one of dismissal. The contention will-be sustained. When a case is submitted to the jury on special issues, the trial court may not disregard the finding of the jury on a material issue, even though such finding is without support in the evidence. Article 1986, Vernon’s Sayles’ Civ. Stats.; Scott v. Farmers’ & Merchants’ Nat. Bank, 66 S. W. 485. In such cases it is the duty of the trial court to enter judgment in conformity with the verdict. He may, on his own motion, or that of the parties, set aside the judgment and order another trial. He may not for obvious reasons ignore the verdict and enter judgment contrary thereto, even though a correct one, since it is the jury’s function to pass on fact issues, when jury trial is demanded. In the instant case, as we have shown, the jury by its verdict on that issue found that the damages were laid at an excessive sum in order to fraudulently confer jurisdiction on the trial court. The result of that finding was that the trial court was without jurisdiction, and the proper judgment entry was one of dismissal (Strickland v. Sloan, 50 S. W. 622), whereas, the entry made was a decree for appellees on the merits of the case, the honorable trial judge apparently ignoring the finding on the issue raised by' the plea, though for what reason does not appear in the record.

Appellees contend, however, that the findings on the plea were immaterial, since it appears that the plea in abatement came too late because filed after answer on the merits, and was insufficient, because not sworn to. The facts recited do appear from the record. Such matters, however, may be waived, and it is to be assumed that they were, since all parties went to trial on the issue raised by the plea, adduced evidence thereon and the court submitted it to the jury, who returned verdict thereon.

The next contention is that the findings of the jury on the issue raised by the plea in abatement is, from various angles, without support in the testimony. We have carefully examined the evidence on that issue, and find that appellees testified that in the community where the dogs were hilled there was no demand or market for such dogs and that in their opinion the appellant’s dogs could not have been sold for any price. On the other hand, appellant and quite a number of others testified that there was a market for the dogs, and placed the market value at a sum well within the jurisdiction of the trial court. It is the rule with reference to pleas of the character we are now considering, not only that the evidence must disclose that the property was of a value less than the jurisdictional amount, but that the value laid was for the fraudulent purpose of conferring jurisdiction of the suit; or, in other words, not only that plaintiff is entitled to recover less than the jurisdictional sum, but that the claim for the greater sum was not made in good faith. Strickland v. Sloan, supra. The testimony in the record before us is lacking in any tangible fact or circumstance that would afford basis for the finding that appellant did not in good faith believe his dogs to be of the value stated in his pleading. All the witnesses tendered by appellant testified to facts concerning the market value of the dogs which would have amply sustained a finding in that respect, while at most appellees in their own behalf testified only to a lack of knowledge of the market value of the dogs, coupled with their opinion that appellant could not have sold the dogs for the claimed value. Thus, it not only appears that the great preponderance of the evidence concerning the value of the dogs sustained appellant’s claim, but that the testimony of appellees concerning the good faith of appellant in the amount claimed amounted to no testimony at all. We are not to be understood as intending to invade the jury’s privilege of weighing the evidence, but only as holding, after allowing to the evidence every reasonable fact deducible therefrom, it results as matter of law that such testimony is insufficient to sustain the claim of fraud.

The conclusion we have reached on the points discussed makes it necessary to reverse the judgment and remand the case for another trial, for which reason we omit any discussion of the issue challenging the sufficiency of the testimony to sustain the verdict of the jury on the merits of the case.

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


author: KING, J.

text:
    LAURAINE v. DICKSON CAR WHEEL CO. et al.
    (No. 223.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 30, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1. Executors and Administrators <§=>38 — Rights — Custody of Property.
    Under Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 3235, providing that the administrator shall have the right to the possession of deceased’s estate as it existed on his death, the administrator is not entitled to possession of property not in the possession of the decedent, and to the possession of which he was not entitled at the time of his death.
    2. Receivers <§=>71 — Rights — Custody of Property.
    Where, at the time of intestate’s death, her property was being administered under receivership, the receiver was entitled to the possession of the property, and ⅛ collect the rents, and the administrator of the intestate could not collect them.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Norman 6. Kittrell, Jr., as receiver of the property of A. C. Allen and Mrs. Margaret E. Allen, against the Dickson Car Wheel Company, wherein W. V. Lauraine, administrator of Mrs. Margaret E.. Allen, deceased, intervened. Judgment for the receiver, and the administrator appeals.
    Affirmed.
    Cooper & Merrell and John G. Tod, all of Houston, for appellant. Bryan & Bryan and H. N. Atkinson, all of Houston, for appellees.
   KING, J.

This suit was instituted in the district court of Harris county, Tex., by Norman G. Kittrell, Jr., acting in his capacity of receiver of the property of A. C. Allen and Mrs. Margaret E, Allen, under appointment from the district court of Harris county, Tex., seeking to recover from the Dickson Car Wheel Company certain moneys alleged to be due by said company as rental for property owned by the said A. C. Allen and Mrs. Margaret E. Allen, jointly, under the terms of a written lease contract entered into between the said Allens and said Dickson Car Wheel Company, prior to the appointment of such receiver. Pending the litigation, Mrs. Margaret E. Allen died, and appellant, W. V, Lauraine, was appointed by the county court of Harris county temporary administrator of her estate. Appellant, acting in such capacity of administrator, made demand on the Dickson Car Wheel Company for that portion of the rental due to the estate of Mrs. Margaret E.. Allen, being one-half of the total amount due, whereupon the Dickson Car Wheel Company filed its amended answer, stating the facts of such demand by the administrator, and asking that he be made a party, in order that it might be judicially determined whether all of the rent should be paid to the receiver, or whether one-half thereof should be paid to the administrator. Appellant, in the capacity of administrator, as aforesaid, filed his answer, setting up claim to that part of such rental as belonged to the estate of Mrs. Margaret E. Allen, deceased. Upon the trial of the cause, the court instructed the jury peremptorily to return their verdict in favor of the receiver for the full amount of the rent due, with interest thereon, amounting to $4,666.90. The jury returned their verdict accordingly, and judgment was entered in accordance therewith in favor of the receiver, hence this appeal by the administrator of the estate of Mrs. Margaret El Allen, deceased.

The sole question presented by this appeal is whether the receiver, who was entitled to possession of the property of Mrs. Margaret E. Allen at the time of her death, was entitled to collect and receive her part of the rent due under this lease contract, by virtue of his authority as such receiver, or whether appellant was entitled thereto by virtue of the authority vested in him by the orders of the probate court appointing him such administrator, and authorizing him to collect all sums of money due the estate, and authorizing him to institute and maintain a suit for that purpose. The question is one of conflict of jurisdiction asserted by the district court of Harris county, as - a court of general equity jurisdiction, and the county court of said county, as a court of probate jurisdiction of the estate of Mrs. Margaret E. Allen. The district court was asserting its claim by and through its receiver, and the probate court was attempting to exercise its jurisdiction over the estate by and through its administrator.

Counsel for appellant, in their brief, recognize the general rule obtaining among courts of concurrent jurisdiction, that the court which first takes property into its possession by a receivership proceeding will retain that possession to the end of the litigation, but claims that that rule can have no bearing on the question here presented, for the reason that the jurisdiction conferred on the probate court is an exclusive jurisdiction; that is, that the jurisdiction of the probate court over the estate of a deceased person is fixed by the Constitution, and that acting in response to this mandate of the organic law,' the Legislature has passed statutes fixing and prescribing a complete system of law and procedure by which such jurisdiction is to be exercised, and that this necessarily precludes the idea that the district court is entitled to proceed, through its receiver, with the administration of property belonging to Mrs. Allen, notwithstanding her death, and consequent appointment of ah administrator of her estate.

The statute provides that the administrator of the estate of a decedent shall have the right to the possession of the estate as it existed at the death of the intestate. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3235. This does not authorize the administrator to the possession of property which was not in the possession of the decedent at the' time of his death, and to the possession of which he was not then entitled.

In this case, at the death of Mrs. Margaret B. Allen, her property was being administered by the district court of Harris county, under a receivership, and appellant, Uauraine, was entitled to the estate as it existed at said time. Appellee Kittrell, as receiver, is entitled to the possession of the property belonging to deceased, Margaret E. Allen, and being entitled to the possession of the property, he, as an officer of the court, and being under the direction of the court, is entitled to collect the rents.

It appears that since the trial of this case, the appellant herein, as administrator of the estate of Margaret E. Allen, presented a motion in the district court of Harris county, setting up that he had been appointed temporary administrator by the county court of Harris county, in matters of probate, of all the property of Mrs. Margaret E. Allen, and that, therefore, he was entitled to the possession of said property. This motion was refused by the district court, and appellant herein applied to the Supreme Court of this state for a writ of mandamus to compel the judge of the Eleventh district court to transfer to him, as administrator, the custody and control of all the property belonging to the estate of Mrs. M. E. Allen at the time of her death. The writ was refused by the Supreme Court. Lauraine v. Ashe, 191 S. W. 563; Id., 196 S. W. 501.

The judgment is therefore in all- things affirmed.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. McGAUGHEY.
    (No. 216.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 6, 1917.)
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 198 S. W. 1084.
   HIGHTOWER, C. J.

At a former day of this term the judgment of the trial court in this cause was by this court affirmed, and appellant has filed a motion for rehearing, which is now before this court for consideration and action.

We have carefully considered the motion for rehearing, and have reached the conclusion that the judgment of this court, as heretofore rendered, amrming the judgment of the trial court, was correct,- and, without further discussion of the motion for rehearing, the same is overruled.

Appellant’s counsel, by the motion for rehearing, however, complain and say that this court has inadvertently done the attorneys for appellant in this cause an injustice, in holding that the first, second, and third assignments of error in appellant’s brief were subject to the criticism directed against them by appellee in her brief. The language of the opinion of this court in that connection was as follows:

“There is nothing in appellant’s brief, in connection with its presentation of the first, second, and third assignments, going to point out that the questions raised were called to the attention of the trial court in the motion for new trial] and as presented they constitute an invitation to this court to search the transcript of 202 pages for the motion for new trial, and then to read said motion, embracing pages 93 to 106, inclusive, of the transcript, in order to ascertain whether said assignments were embraced in said motion, and that such a burden should not be imposed upon this court.”

Since this language by the court in the original opinion has been specifically called to our attention, we have again carefully examined the objection made by appellee to the consideration of the first, second, and third assignments of error contained in appellant’s brief, as well as the criticism offered by ap-pellee in that connection, and we have concluded that such objections by appellee were not tenable, and that there was, in fact, no reason for the criticism offered in that connection, and have concluded that appellant substantially complied with the rules for briefing cases in this court, and we therefore withdraw the language contained in the original opinion above quoted and complained of by appellant in the motion for rehearing.

Motion for rehearing is overruled.


author: DUNKLIN, J.

text:
    SANGER BROS. v. TRAMMELL et ux.
    (No. 8716.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 27, 1917.
    Rehearing Denied Dec. 1, 1917.)
    1. Husband and Wife <@=>235(2) — Actions fob Goods Sold — Questions fob Juey.
    In an action against a husband for the value of goods sold his wife while she was living apart from him and after the seller had oeen notified not to sell her goods on his credit, evidence as to his presence with the wife when some of the purchases were made, his statements to one of the clerks, his payment for other goods purchased by her, and his failure to object when the wife directed the clerk to charge the goods to him, held to make a question for the jury on the issue of equitable estoppel.
    2. Husband and Wife <@=>235(3) — Actions fob Goods Sold — Instbuctions.
    Instructions requested by defendant on the issue of equitable estoppel should have been given in the absence of some valid objection to their form.
    3. Husband and Wife <@==>229(6) — Actions fob Goods Sold — Evidence Admissible Undeb Pleadings.
    Where a husband when sued for the price of goods sold his wife alleged that, at the time they were sold, the wife had abandoned him over his protest and without fault on his part, and was living separate from him, and the truth of these allegations was put in issue by a general denial, portions of the wife’s petition in an action for divorce that she had been forced to separate from her husband by a course of cruel treatment and giving details of the cruel treatment were admissible over the objection that there was no pleading authorizing the introduction of such evidence, as it tended to refute the charge that the wife had abandoned defendant without fault on his part, and therefore to support the general denial of that allegation.
    4. Pabent and Guild <@=>3(1) — Suppoet of Child — Liability fob Necessaeies.
    Where a wife is living separate from her husband, and without objection on his part keeps the minor children with her, the fact that he has furnished her money amply sufficient to purchase all necessaries for herself and the children does not defeat his liability to a person furnishing necessaries for the children.
    6. Husband and Wife <@=>19(5) — Husband’s Liability fob Necessaeies — Sefabation Without Husband’s Fault.
    A husband is not liable for necessaries furnished the wife after she has abandoned him without fault on his part, where he has furnished her with sufficient means to supply herself with such necessaries.
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Action by Sanger Bros, against W. T. Trammell and wife. From a judgment in favor of the defendant named, plaintiff appeals.
    Reversed and remanded.
    H. R. Bondies, of Sweetwater, for appellant. Geo. T. Wilson, of 'Sweetwater, for ap-pellees.
   DUNKLIN, J.

Sanger Bros., doing a mercantile business in the city of Dallas, instituted this suit upon an account for goods, wares, and merchandise purchased from plaintiffs by Mrs. Fay Trammell, wife of W. T. Trammell. The suit was against both the husband and wife, and a personal judgment was sought against each for the value of the goods. A judgment by default was rendered in plaintiffs’ favor against Mrs. Fay Tram-mell, from which there has been no appeal, but from the further judgment in favor of W. T. Trammell, plaintiffs have prosecuted this, appeal.

The itemized account for the goods upon which the suit was predicated covered sales of merchandise during the period beginning March 14,1913, and ending May 28,1913, and it was alleged that the goods were sold to Mrs. Fay Trammell, and that the same were necessaries for the use and benefit of herself and the two minor children of herself and W. T. Trammell, her husband; that the debts so contracted were reasonable and proper, and that, therefore, Mrs. Trammell was personally liable therefor. By another count in the petition it was alleged that the sale was made upon the credit of W. T. Trammell, as well as upon the credit of the wife. By a third count it was alleged that if the goods were not necessaries for which the wife could bind the husband, yet defendant W. T. Tram-mell, with full knowledge of such purchases consented to, approved and acquiesced in the same and thereby bound himself to pay for the goods.

In addition to a denial putting in issue those allegations, the defendant W. T. Tram-mell pleaded specially that several months before the articles mentioned in the account were purchased, he notified plaintiffs and their employes to sell no more goods to Mrs. Fay Trammell upon his account. He further pleaded that at the time of the purchase of the goods by Mrs. Fay Trammell, she had abandoned him as his wife over his protest and without his fault, and was then living in Dallas and not living with him, whose residence, as shown by the record, was then in Sweetwater, Nolan county; that at the time of such purchases Mrs. Fay Trammell was preparing to file in the district court of Dallas county a suit for divorce from her husband, and did soon after such purchases file such a suit. He further pleaded that notwithstanding such abandonment by his wife, he was at the time of such purchases still furnishing her an ample supply of money to purchase all clothing and such other articles as were necessary and proper for the use of herself and minor children; that the goods so purchased were not necessaries for herself or children; that the same were purchased without his authority, consent, or approval, and that he never in any manner ratified such purchases.

In reply to those special pleas by W. T. Trammell, plaintiffs alleged that subsequently to the giving of the notice by him to plaintiffs, appellee paid accounts for goods which plaintiffs sold to Mrs. Trammell; that thereafter the account sued on was incurred; that many, if not all, of tlie articles of merchandise shown in the account sued, on were purchased by Mrs. Trammell in plaintiffs’ store in Dallas in the presence' of appellee, who afterwards made cash payments on said account, amounting to a total of $200; that through such conduct on the part of appellee, plaintiffs were led to believe, and did believe, that he assented to and approved said sales to his wife, and) but for such belief the goods would not have been sold to his wife. Plaintiffs further alleged that by said acts on the part of W. T. Trammell, a person of reasonable prudence would have been led to the same conclusion, and would have made said sales, and that W. T. Trammell is now estopped to deny that he assented to'and approved such purchases by his wife.

In answer to special issues, the jury found that the goods charged in the account made the basis of plaintiffs’ suit were purchased by Mrs. Trammell, but that at the time of such purchases her husband did not know of same, nor of the fact that they were being charged to his account; that W. T. Trammell did not consent to such purchases or acquiesce in plaintiffs’ act in charging the same to his account; that he has never at any time ratified or, agreed to pay for the goods; that at the time of such purchases by Mrs, Fay Trammell, appellee was furnishing to her money sufficient to purchase all such goods and clothing as were necessary, reasonable, and proper for herself and children; that the goods so purchased were not necessary for the maintenance of herself or minor children, taking into consideration the financial circumstances of appellee and the station in life of himself'and wife at the time the purchases were made; and that at the time of such purchases Mrs. Fay Trammell had abandoned her husband, and was living apart from him through no fault on his part.

Plaintiffs assign error to the refusal of the trial court to submit the following special issues requested by them:

“No. 4. Would a reasonably prudent man have been led to believe by the conduct of the defendant W. T. Trammell that he assented to or approved of any of the sales by plaintiff to Mrs. Fay Trammell shown upon the account in suit?”
“No. 5. Did the plaintiffs believe that the said W. T. Trammell did assent to or approve such sales?”

The request for the submission of these two issues was predicated upon the plaintiffs' plea of equitable estoppel urged against AV. T. Trammell and noted above. For the same reasons', another assignment is presented to the court's refusal to include those issues in his general charge.

The following announcement in Bigelow on Estoppel, 556, of the equitable doctrine of estoppel founded on representations and conduct acted on by others1, was quoted with approval by our Supreme Court in Harrison v. Boring, 44 Tex. 269:

“If any person, by a course of conduct, or by actual expressions, so conducts himself that another may reasonably infer the existence of an agreement or license, whether the party intends that he should do so or not, it has the effect that the party using that language or who has so conducted himself cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct.”

To the same effect are the folio-wing authorities: Walling v. Hannig, 73 Tex. 582, 11 S. W. 547; Risien v. Brown, 73 Tex. 135, 10 S. W. 661; Westbrook v. Guderian, 3 Tex. Civ. App. 406, 22 S. W. 60; Kiersky v. Nichols, 29 S. W. 71; Finks v. Buck, 27 S. W. 1096; Walker v. Erwin, 47 Tex. Civ. App. 637, 106 S. W. 168; Avery v. Collins, 62 Tex. Civ. App. 313, 131 S. W. 428.

By uncontroverted testimony it was shown that on several occasions when the articles listed in the account were purchased by Mrs. Trammell, appellee was present with her in plaintiffs’ store, acting as though they were living together harmoniously as husband and wife, and on one occasion appellee informed one of the clerks who was selling some of the articles in controversy that he and his wife had settled their differences and they were “living together again”; that Mrs. Trammell was then residing in Dallas, contrary to appellee’s wishes, and appellee was residing in Sweetwater; that he was then endeavoring to persuade her to return to his home, and made repeated visits to her in Dallas; that he cashed cheeks aggregating $200 drawn by Mrs. Trammell upon him by signing his name thereto by herself as his wife in payment for some items of goods purchased of plaintiffs by her during the period covered by the account in controversy; that prior to that period and subsequently to the notice served upon plaintiffs by appellee not to sell his wife any more goods on his account, he had paid other accounts for goods purchased by Mrs. Trammell from plaintiffs on his credit, and had never refused payment of any such accounts upon demand for payment prior to the date of the last item of the account in controversy; that on none of the occasions of the purchases of any of the goods in controversy did he inform plaintiffs1 or any of their clerks selling to his wife that he would not pay for such goods. Mrs. Tram-mell further testified that on one occasion during the period covered by the account in suit, when she purchased goods from plaintiffs ou credit and charged same to appellee, she, in the presence of appellee, told the clerk selling same to her to “charge it to W. T. Trammell,” and further in that connection testified, “And Mr. Trammell would hear me say that and would make no objection”; however, this testimony by Mrs. Trammell was denied by appellee. Other testimony introduced by plaintiffs tended in a material respect to show that such acts and conduct on the part of appellee, under the circumstances mentioned, induced plaintiffs’ duly authorized agents for the extension of credit to believe that appellee had, in effect, withdrawn or waived his prior instruction to plaintiffs to sell no more goods to his wife on his account, and that he assented to and acquiesced in her acts in purchasing the goods in controversy and charging the same to his account; that acting upon such belief so induced, the goods in controversy were sold on appellee’s credit; and that a person of ordinary prudence similarly situated, under the same circumstances, would have reached the same conclusions and would have acted likewise. In view of such evidence, we are of the opinion that under the authorities noted, the court erred in refusing to submit to the jury by appropriate instructions plaintiffs’ plea of equitable estoppel; and in this connection we will add that, at least, in the absence of some valid objection to the form of the instructions requested by plaintiffs upon, that issue, the same should have been given.

Appellee introduced in evidence a part of Mrs. Trammell’s petition for divorce filed by her against her husband, and upon which she secured a divorce from him. The portion of the petition so introduced contained allegations that she had resided in Dallas county for more than six months prior to June 10, 1913, the date the petition was filed; that she and W. T. Trammell had separated on the-day of June, 1912, and thereafter had not lived together as husband and wife. Plaintiffs did not object to the introduction of that portion of Mrs. Trammell’s petition for divorce, but after the same was introduced offered other portions of the same petition in which she alleged, in substance, that she had been forced to separate from her husband by a course of cruel treatment of her by him which rendered their further living together insupportable, it being alleged that her husband frequently became intoxicated, cursed and abused her, assaulted her by violently striking her on the face, head, and body, causing pain and bloodshed; that he drew a pistol upon her and threatened to kill her on one occasion. Counsel for appel-lee objected to the introduction of that portion of the petition so offered by the plaintiffs “for the reason that there is no pleading in the plaintiffs’ petition, or supplemental petition, authorizing the introduction of any of the rest of that instrument.” That objection was sustained, and the ruling has been assigned as error. In his answer W. T. Tram-mell specially pleaded that at the time the goods described in plaintiffs’ petition were alleged to have been sold and delivered “the said Mrs. Fay Trammell had abandoned this defendant over his protest and without fault on his part, and was then living in Dallas, and not living with this defendant as his wife. * * * ” The truth of those allegations was expressly put in issue by a general denial contained in plaintiffs’ supplemental petition filed in reply to appellee’s answer, and as noted already the jury found in answer to special issues that at the time the goods were purchased Mrs. Fay Trammell had abandoned W. T. Trammell, and was living apart from him, and that such abandonment was not on account of any fault on the part of her husband.

We think it clear that the objection urged to the evidence was not tenable, and that the court erred in sustaining it. The evidence excluded certainly tended to refute the charge made by the appellee that his wife had abandoned him without fault on his part, and therefore to support the plaintiffs’ general denial of that allegation. But in this connection and in view of another trial of the case, we deem it proper to say that we do not wish to be understood as holding that the part of the petition for a divorce introduced by appellee was itself admissible, if a proper objection had been urged thereto, in view of the fact that Mrs. Trammell made no answer to the suit, but suffered a judgment by default against her, thus leaving no controverted issue between herself and plaintiffs.

The testimony showed that part of the goods in controversy were purchased for the benefit of the minor children of W. T. Tram-mell and Mrs. Fay Trammell, and Mrs. Tram-mell testified, in effect,- that they were necessary for the proper maintenance of her children. The court submitted to the jury the isstte whether or not such goods were necessaries for the use of said children, “taking into consideration the financial circumstances of W. T. Trammell and the station in life of himself, his wife and children,” at the time said purchases were made, but in that connection the court, at appellee’s request, further instructed the jury:-

“That goods purchased by the wife for the children of herself and husband are not necessaries in law, if such children are actually sufficiently supplied otherwise by the husband, or if the husband furnishes to the wife money amply sufficient to purchase all necessaries for both herself and children.”

Error has been assigned to that portion of the instruction last quoted, which embodies the proposition that a father cannot be held liable for necessaries furnished his minor children if he has theretofore furnished his wife, the mother of his children, with sufficient money to purchase such necessaries. According to appellee’s testimony, which was uncontroverted, he had furnished Mrs. Trammel with more than $3,000 in money from October, 1912, to May, 1913, a period of eight months, including a part of the time covered by the account in controversy. It thus appears that in view of such testimony, the instruction complained of was calculated to prove harmful to plaintiffs in their suit for the goods so furnished for appellee’s children if the jury further believed the testimony of Mrs. Trammell to the effect that such goods were necessaries for them. In the brief filed for appellants, it is stated by counsel that he has been, unable to find any authorities bearing upon this particular question, but he insists that upon principle the charge was erroneous, and in argument uses the following apt language in criticism of the rule embodied in the court’s charge:

“It would make it possible for the children to suffer for both raiment, food and shelter if through misfortune or otherwise moneys furnished the wife by the husband had been dissipated.”

The rule seems to be well established that the husband is not liable for necessaries furnished the wife after she has abandoned him, without fault on his part, and after he has furnished her with sufficient means to supply herself with such necessaries. Cline v. Hackbarth, 27 Tex. Civ. App. 391, 65 S. W. 1086; Wanamaker v. Weaver, 176 N. Y. 75, 68 N. E. 135, 65 L. R. A. 529, 98 Am. St. Rep. 621, and decisions cited in notes thereto; 21 Cyc. 1223,1229. In many of the authorities in announcing the rule so stated the supplies for which the husband is not liable are referred to in general terms as necessaries for the wife and her children, without reference to the question whether or not the husband would be liable for necessaries furnished the minor children alone, which were not necessaries for the wife also. In 29 Oyc. p. 1605, the following was said:

“That it is the duty of parents to support and maintain their children is well established, ánd although there has been some difference of opinion as to whether, in the absence of statute, this is a legal or merely a moral obligation, the better view undoubtedly is that the obligation is a legal one.”

The following is quoted from Speer’s Law of Marital Rights in Texas, § 80:

“At common law it was the duty of the father to support his minor children, and upon the death of the father that duty devolved upon the widowed mother. ’ The same duty rests upon the father under the statutes and decisions in this state. It is but natural, and based upon most obvious principles of right, that he who is responsible for the existence of a human being should be charged with the duty of supporting and maintaining him during his years of tender helplessness. Even the brute creation obey this natural law, and civil law will not permit its subjects to be less considerate than they. The law will in every reasonable way compel this support by a father of his child, and therefore he is always held liable to pay for all necessaries furnished to his minor children, where it is his duty to supply them and he has failed to do so. In such a case the law implies the promise of a father to pay for such necessaries; the implication being based upon the legal obligation to furnish them.”

In Fowlkes v. Baker, 29 Tex. 137, 94 Am. Dec. 270, the following is said:

“Much conflict of authority exists as to the ground upon which rests the legal liability of a father for necessaries furnished his infant child. Some insist that it grows out of the natural duty of the parent to provide sustenance and support for his offspring; others say that it is a question of agency and authority, and that a parent is only bound for such articles as are furnished with his consent, express or implied. The former doctrine is laid down by Chancellor Kent, and with him is the weight of American authority. 2 Kent Com. 191; Stanton v. Wilson, 3 Day, 37 [3 Am. Dec. 255]; Edwards v. Davis, 16 Johns. [N. Y.] 284.”

However, under the particular facts of that case, the issue of liability of the father for goods purchased by a minor son hinged upon the question whether or not such purchases were made with his consent. But in Taylor v. Deseve, 81 Tex. 246, 16 S. W. 1008, Taylor, the father of a minor child, was held liable to Deseve, plaintiff, for care and maintenance of defendant’s minor child, who had been cared for by plaintiff at the father’s instance under a parol, but not a statutory, agreement of adoption of the child by the plaintiff; the father thereafter having repudiated the agreement and resumed custody of his child. In affirming a judgment against the father for the value of the services rendered by Deseve in caring for the child while in his custody, the court said:

“The duty of supporting and maintaining his child is devolved by law upon the father, and he cannot relegate this duty to any other person except as authorized by law. * * * Except as may be authorized by statute the father cannot by contract with a third party shirk or permanently abandon the duty imposed upon him by law ‘to protect, educate, and maintain’ his own legitimate offspring. Schouler, Dom. Rel. 315-343.”

In Shields v. O’Reilly, by the Supreme Court of Conn., 68 Conn. 256, 36 Atl. 49, it was held that if the wife had wrongfully and forcibly, and without fault on the part of the husband and without his consent, taken the minor children of herself and husband from his home where they were properly provided for, then one who furnished necessaries for the support of the children with full knowledge of those facts would not be entitled to recover. Other authorities of like import are noted in 29 Cyc. 1607-1610, but it is unnecessary for us to discuss that question, since there is no evidence in the present suit that appellee made any objection to his wife keeping his minor children with her during the time "covered by the account in controversy. In this connection, however, we will say that in the case last cited the court further held that the father was liable for necessaries furnished his minor children while they were absent from his home where they had been properly cared for and Were in the custody of their' mother, who had voluntarily and without adequate cause abandoned her husband, but who was rightfully in possession of his children.

In the light of the authorities noted, and especially those of our own Supreme Court, and under the facts of this case, we conclude that the court erred in the instruction to the jury last quoted, as complained of by appellants.

For the reasons noted, the judgment is reversed, and the cause remanded.
      <S=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes