author: DUNKLIN, J.

text:
    GLENS FALLS INS. CO. v. WALKER.
    (No. 7842.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 31, 1914.
    On Rehearing, March 14, 1914.)
    1. Insurance (§ 233) — Fire Insurance — Waiver — Mistake.
    Although a fire policy on mortgaged property provided for an extension of time for the benefit of the mortgagee in case of cancellation, the insurer’s agent in good faith represented that the institution of foreclosure proceedings had avoided the policy according to a stipulation which he stated was in the policy, and in reliance upon that representation the mortgagee consented to a cancellation. Held that, the mistake being one of fact, the cancellation was ineffective.
    [Ed."Note. — For other cases, see Insurance, Cent. Dig. § 505; Dec. Dig. § 233.]
    2. Insurance (§ 228) — Fire Policy — Waiver.
    Where a fire policy provided for an extension of time for the benefit of the mortgagee in case of cancellation, the mortgagee may waive that provision for his benefit.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 498, 499; Dec. Dig. § 228.]
    Appeal from District Court, Tarrant County ; R. H. Buck, Judge.
    Action by Herbert G. Walker against the Glens Falls Insurance Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Crane & Grane, of Dallas, for appellant. Charles Kassell, of Ft. Worth, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

Herbert G. Walker recovered a judgment against the Glens Falls Insurance Company for the amount stipulated in a fire insurance policy issued by the company upon a house belonging to E. L. Day, and upon which' Walker held a mortgage; the policy being payable to the mortgagee as his interest might appear. The company has appealed. '

The only controverted issues submitted by the trial judge in his charge to the jury, and upon which. a verdict was returned, were: First, whether or not the company delivered the policy to Walker; second, whether or not actual payment of the premium charged for the same was waived by the company; and, third, whether or not Walker agreed with the defendant before the fire that the policy should be canceled. The evidence was sufficient to sustain a finding in favor of Walker upon all of those issues except the one last mentioned. After a careful consideration of the record, we are. of the opinion that the testimony of Walker himself shows conclusively that he consented to a cancellation of the policy before the fire which destroyed the building, and in pursuance of that agreement the policy was surrendered to the company.

Another issue, however, tendered in plaintiff’s pleadings was that Walker’s agreement to a cancellation of the policy was induced by a mutual mistake of himself and the agent of the company. It was alleged that, at the time the policy was issued, Walker had instituted foreclosure proceedings upon the mortgage given to him by Day; that, at the time Walker agreed to a cancellation of the policy, the company’s agent represented to him that the pendency of the foreclosure proceedings at the time of the issuance of the policy did of itself render the policy void from the date of its issuance, and by reason of that representation Walker was induced to agree to a cancellation of the policy. It was further alleged that the representation so made by the company’s agent was made in good faith, but in ignorance of the true conditions, namely, that the policy contained no such stipulation, and that Walker was likewise ignorant of that fact. We are of the opinion that, if this plea of mutual mistake be sustained by the evidence, it would render of no effect Walker’s agreement to a cancellation of the policy, and that the case should be remanded for another trial upon that issue. The policy contained a provision that, unless otherwise provided by agreement indorsed thereon, it shall be void if, with the knowledge of the insured, foreclosure proceedings should be commenced or notice given of sale of any property covered by any mortgage. No such agreement was indorsed upon the policy. But the policy contained a further clause reading as follows: “This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation and shall then cease, and this company shall have the right on like notice to cancel this agreement.” The right given to Walker, by the stipulation last quoted, to require of the company ten days’ notice before the cancellation of the policy could be waived by him, ana that stipulation constituted no obstacle to the enforcement of the agreement made by Walker for the cancellation of the policy prior to the fire.

For the reasons indicated, the judgment is reversed, and the cause remanded.

On Rehearing.

We attached no importance to the finding fhat the policy contained no indorsement of any agreement by the insurance company with E. L. Day, the owner of the property, waiving the provision contained in the policy that the same would be void if, with the knowledge of Day, foreclosure proceedings should be instituted upon the mortgage outstanding against the property. The stipulation in favor of Walker, the mortgagee, that he should have ten days’ notice of any intention by the company to cancel the policy was expressly recognized. We have carefully examined appellant’s answer and are of the opinion that, although general in its terms, it was sufficient, in the absence of any special exception, to present the issue that, prior to the fire, Walker agreed with the company that the policy should be canceled. In its motion for rehearing appellant earnestly insists that it is apparent from the pleading of Walker that the mutual mistake alleged by him as having induced him to agree to a cancellation of the policy prior to the fire was a mistake of law and not a mistake of fact, and hence did not present any valid defense to an enforcement of such agreement. Many authorities are cited to support this contention, which we think are inapplicable. The mistake so alleged did not consist of an erroneous legal construction of the terms of the policy, but consisted of an erroneous supposition that the policy contained certain stipulations, and hence was a mutual mistake of fact, which, like any other mutual mistake of material facts, would present a valid defense to the enforcement of the agreement.

In our original opinion the cause was remanded for a new trial generally, and the expression used in a preceding portion of the opinion that it should be remanded for a trial of the issue of mutual mistake was not intended as any limitation of that conclusion.

With these observations the motions of appellant and appellee for rehearing are overruled.


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    GORMAN et al. v. GORMAN.
    (No. 7843.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 7, 1914.
    Rehearing Denied March 14, 1914.)
    1. Marriage (§ 50) — Validity—Evidence.
    Where a woman, believing a man to be divorced, in good faith celebrated a marriage with him, slight evidence will be sufficient to uphold the validity of the marriage after removal of the impediment.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. § 50.]
    2. Marriage (§ 50) — Validity—Removal of Impediment.
    Where a woman, mistakenly believing a man to be divorced, entered into a marriage without knowledge of the impediment, the continued cohabitation of the parties after removal of the impediment is sufficient to establish a good marriage.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. § 50.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Petition by Josie Gorman against Jack Gorman, as administrator, and others; for a widow’s allowance. From a judgment of the district court affirming an allowance by tho probate court, the administrator appeals.
    Affirmed.
    Leake & Henry, of Dallas,’ for appellant. P. G. Dedmon and Chas. E. Witt, both of Ft. Worth, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

Josie Gorman, as the surviving widow of David Gorman, deceased, obtained in the probate court of Tarrant county an order for a widow’s allowance in lieu of homestead and other exempt property to the amount of $1,000, being the total amount of the estate of the deceased, and from that order Jack Gorman, the administrator, has appealed.

Briefly stated, the findings of fact, which we adopt in full, show that the deceased, David Gorman, and appellee, Josie, were regularly married November 7, 1905. Ap-pellee was at the time an unmarried woman, but the deceased was at the time a married man, with a suit pending against his wife for a divorce. Appellee married the deceased in perfect good faith, in ignorance of the fact that he was undivorced. She knew of his former marriage and of the pendency of the divorce suit, but had been told and believed a decree of divorce had been entered. A few months after the marriage the decree was entered, and the parties continued to live together as husband and wife and to treat each other as such in all the ways usual to married persons. The deceased departed this life in May, 1908, and appellee never knew of the impediment to her marriage with deceased until long after his death, but at all times believed her marriage to be regular.

It is the contention of appellant that, since by force of the law the relation of appellee and the deceased was illicit, they were not husband and wife, and that the relation, being unlawful in its inception, never became lawful, since there was no evidence of a change in that relation. It is true there is no finding, or evidence, as to that, of a conscious change of the relations, so far as the appellee is concerned, but in the nature of the case there could have been none. She acted in good faith from the first, believing at all times that her marriage to the deceased was lawful, and having no notice whatever at any time of the impediment which rendered it unlawful at its inception. Under such circumstances, we think slight evidence would be sufficient to uphold the validity of the marriage after the removal of the impediment. Under the Spanish law, which law our marital laws very much resemble, a putative marriage became a lawful marriage upon the removal of the impediment. Smith v. Smith, 1 Tex. 621, 46 Am. Dec. 121. Under our statutes, there is no reason to hold that a putative marriage may not become lawful upon the removal of the impediment, but there is every reason to hold, even upon slight evidence, that it may do so. Edelstein v. Brown, 96 S. W. 1126. In the very nature of the marriage relation, the continued living together of appellee and the deceased as husband and wife after the removal of the impediment which rendered the original marriage invalid was necessarily a constant offer and acceptance of the mutual relation of husband and wife between the parties, and their cohabitation under such circumstances constituted the lawful relation of husband and wife. There is no reason in law or fact why it should not do so, and every consideration demands that it should.

There is no error in the record, and the judgment of the district court, holding the marriage of appellee and the deceased to be good as a common-law marriage after the decree of divorce in favor of the deceased, is affirmed.

Affirmed.


text:
    GULF, C. & S. F. RY. CO. v. GADDIS et al.
    (No. 7840.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.
    Rehearing Denied March 21, 1914.)
    Railroads (§ 350) — Crossing Accident — Contributory Negligence.
    It cannot be said, as matter of law, that one who, at night, saw a passenger train, which was 60 or 70 feet from the crossing, and approaching at a speed two or three times the 6 miles per hour allowed by ordinance, when he was 15 feet from the crossing, was guilty of contributory negligence in increasing his speed and attempting to cross ahead of it.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    Error to District Court, Tarrant County; James W. S wayne, Judge.
    Action by Nancy Gaddis and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Lee & Lomax and W. D. Smith, both of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for plaintiff in error. Slay & Simon, of Ft. Worth, for defendants in error.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

Nancy Gaddis, in behalf of herself and her minor children, sued the Gulf, Colorado & Santa Fé Railway Company to recover damages for the negligent killing of the husband and father, Jack Gaddis. There was a trial before a jury resulting in a verdict and judgment for the plaintiffs in the sum of $4,500, and the defendant prosecutes error.

A single assignment is presented, and that involves the question that, under the undisputed facts, the trial court should have instructed a verdict for the defendant upon the issue of the deceased’s contributory negligence. The propositions submitted under plaintiff in error’s assignment are as follows: “It is contributory negligence, as a matter of law, for one approaching a railroad track, with a train approaching on the track in plain view, who is warned by the whistle on the engine and the bell on the engine that the train is approaching, and by a crossing watchman, placed there to prevent parties from crossing the track when a train is approaching, that the train is coming, and who knows of the approach of the train, to attempt to beat the train across the track, and, if injury results to him from such attempt, neither he nor those claiming under him are entitled to recover.”

The question of contributory negligence being one of fact to be determined by the jury under all the circumstances of the case, except in those rare cases where reasonable minds could not differ as to the conclusion to be drawn, it is obvious that this proposition cannot be sustained. It is stated too broadly. Whether or not it is contributory negligence for a pedestrian approaching a railroad track to cross over ahead of an approaching train depends largely, if not altogether, upon the distance the train is away and the speed with which it is approaching the crossing. In such a case the train might be seen approaching, but yet at such a distance and moving at such a low speed as that a most cautious or prudent person would undertake to cross ahead of it and feel that he was taking no risk whatever in doing so. But the next proposition submitted by plaintiff in error is more definite and more nearly raises the precise question to be determined in this case. That proposition is as follows: “The undisputed evidence in this case shows that Gaddis approached defendant’s track on the south side of Elizabeth street between 9 and 9:30 o’clock at night, at a time when a regular passenger train of the defendant, going somewhere between 10 and 20 miles per hour, was approaching Elizabeth street going south, and that the train whistled clear and distinct whistles, attracting the attention of other parties, at two different times when the train was a considerable distance from the crossing, the first time, under the estimate of the witnesses, about 500 feet away, and the second time about 300; and that on the sounding of the first whistle the watchman at the Elizabeth street crossing came out with his red lantern and began to signal by waving it, and turning to the west, the direction from which the deceased approached thé track, he saw the deceased some 40 or 50 feet away from the tract and waved his lantern, and the deceased continued on, approaching the track in an ordinary walk until he got within about 15 feet of the track, and, not checking his gait, the watchman called to him and expressly warned him, and he turned and looked in the direction of the train, and instead of stopping he quickened his pace at a time when the train was practically on him, only 60 or 70 feet way, and was then blowing an alarm whistle, and evidently undertook to beat the train across the crossing, and was struck by the train and killed. The deceased thus by 'his own gross negligence and recklessness contributed to and caused his own death.”

If the facts stated in the proposition be admitted to be true, it does not follow, as a matter of law, that the deceased was guilty of contributory negligence in attempting to cross the track under the circumstances shown. It appears to be the well-settled rule in this state that, in order that an act shall be deemed negligence per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say without hesitation or doubt that no careful person would have committed it. G., C. & S. F. Ry. Co. v. Gasscamp, 69 Tex. 545, 7 S. W. 227. And it has been repeatedly held that it is not necessarily negligence for one to attempt to, do a thing which he knows to be dangerous. G., C. & S. F. Ry. Co. v. Gasscamp, supra; G., C. & S. F. Ry. Co. v. Grisom, 36 Tex. Civ. App. 630, 82 S. W. 671; Tex. Cent. R. R. Co. v. Randall, 51 Tex. Civ. App. 249, 113 S. W. 180; T. & P. Ry. Co. v. Stoker, 52 Tex. Civ. App. 433, 115 S. W. 910; St. Louis S. W. Ry. Co. v. Shelton, 52 Tex. Civ. App. 437, 115 S. W. 877. The facts shown in plaintiff in error’s proposition do not put the deceased in the attitude of a person who goes into a place of known danger without taking any precaution whatever for his own safety. It is to this sort of case that the authorities cited by plaintiff in error are applicable. The case of I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106, so much relied on, is thus referred to by our Supreme Court in Boyd v. St. L. S. W. Ry. Co., 101 Tex. 411, 108 S. W. 813, and the reference is sufficient to illustrate the distinction between that line of cases and those which we shall hereafter cite, which we think more nearly resemble the ease under consideration: “In the Edwards Case the injured party, upon approaching a crossing over a railroad track with which he was perfectly familiar, and knowing that trains frequently passed, failed either to look or to listen, and testified that, if he had done either, he could have heard or seen the train before he stepped upon the track. Edwards took no precaution whatever to protect himself, and therefore was not entitled to a recovery, although the railway company was guilty of negligence in failing to blow the whistle.” Many authorities might be cited to the proposition that a person who goes into a place of known danger without taking any care whatever to protect himself is necessarily negligent to such an extent that he cannot recover for injuries received in consequence of his act.

But here we have a different ease. It is undisputed that the deceased did look and acquaint himself with the fact that the train was approaching, and in consequence quickened his pace when within a few feet of the crossing in order, as he thought, to cross the track before the train could reach him. Whether or not his act in thus attempting to cross ahead of the train was a negligent one, as matter of law, is the question we are called upon to decide. No authority has been cited, and we have found none which would require us to hold that it was. Whether or not the deceased, situated as he was, acted as a person of ordinary prudence in attempting to cross the track as he did we think became a question of fact to be determined by the jury, and the court committed no error in refusing the summary instruction to find for the defendant.

There is no assignment attacking the finding of the jury on the issue of plaintiff in error’s negligence in the matter of speed at which the train was being operated at the time deceased was killed, and, even on the issue of contributory negligence, the fact that the train was being operated at such a high rate of speecl, in violation of an ordinance of the city of Ft. Worth, which limited the speed of trains within its limits to six miles per hour, had a very material bearing in that the deceased may have assumed, although he saw the train was approaching, that it was nevertheless being operated in accordance with the ordinance, and he would thus have ample time to cross the track before it reached him. See Boyd v. St. L. S. W. Ry. Co., 101 Tex. 411, 108 S. W. 813; Texarkana, etc., Ry. Co. v. Frugia, 43 Tex. Civ. App. 48, 95 S. W. 563; F. W. & D. C. Ry. Co. v. Wyatt, 35 Tex. Civ. App. 119, 79 S. W. 349, and authorities there cited.

Defendants in error have filed certain cross-assignments, but they are all overruled, since the only questions raised by them go to the matter of liability of plaintiff in error, and, since under tlie charge the jury have found in favor of liability, the errors, if any were committed, could not have been harmful.

There is no error in the record, and the judgment is affirmed.


author: CONNER, C. J.

text:
    WEINSTEIN v. ACME LAUNDRY.
    (No. 7850.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 7, 1914.
    Rehearing Denied March 14, 1914.)
    1. Appeal and Error (§ 264) — 'Questions Reviewable — Sufficiency of Evidence.
    Where no exception was taken to the special verdict, the court on appeal may not consider the sufficiency of the evidence to support it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1533-1535; Dec. Dig. § 264.]
    2. Trial (§ 343) —Verdict— Conclusiveness.
    A -verdict is conclusive between the parties until set aside.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. § 343.]
    3. Master and Servant (§ 302) — Negligence of Servants — Injuries to Third Persons — Liability.
    A master is liable for injuries caused by the negligence of a servant while acting within the scope of his employment, and it is immaterial that the negligence of the servant co-operated with that of a volunteer or unauthorized person.
    [Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 1217 — 1221, 1225, 1229; Dec. Dig. § 302.]
    Appeal from District Court, Tarrant County; R. II. Buck, Judge.
    Action by E. Weinstein, as next friend of Sol Weinstein, against the Acme Laundry. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    McLean, Scott & McLean, of Ft. Worth, for appellant. Wray & Mayer, of Ft. Worth, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

E. Weinstein, as next friend of his minor son, Sol Weinstein, instituted this suit in the district court to recover damages for personal injuries inflicted upon the son and caused by the negligence of certain employés of appellee. It was charged that one Crawford and one Bingham, ap-pellee’s employés, were engaged in removing rubbish from a room in an upper story of a building owned by the appellee, and that while so engaged they negligently threw out of the window and upon the street below a barrel filled with refuse, which fell upon and seriously injured the passing boy. It was admitted in behalf of appellee that the act of Bingham and Crawford in throwing out the refuse as they did constituted negligence, and the case was submitted to the jury upon three special issues only. The first special issue was whether the witness Crawford was at the time acting within the scope of his employment, and the second issue was whether the witness Bingham was so acting; the only remaining issue being the amount of the damages suffered by the boy. The jury by its verdict answered the first question, “No,” and the second question, “Yes,” and further assessed the damages at the sum of $3,000. No exception to this verdict was taken by either party below; the parties severally presenting motions for the entry of judgment. The court granted the motion of appellee and rendered judgment in its favor, and hence this appeal.

The simple question presented is whether the court properly entered judgment for the appellee upon the admitted facts and special verdict. We think the court erred in so doing and that the judgment should have been rendered for appellant. As before stated, no complaint of or attack upon the special verdict was made below. This precludes a consideration on our part of the sufficiency of the evidence to support it, and the express finding of the jury is to the effect that at least one of appellee’s servants, to wit, Bingham, was acting within the scope of his employment at the time he negligently threw the barrel of refuse) upon the street below. Until set aside the verdict is conclusive between the parties, and it is familiar law that the master is liable in damages for injuries proximately caused by the negligence of a servant while acting within the scope of his employment, and in such case it can make no-difference that the negligence of the servant so acting co-operates with that of a volunteer or unauthorized person. This' being true, it was immaterial that Crawford, the other employe, may not have been acting at the time within the scope of his employment It is sufficient that Bingham was and that his acts of negligence proximately contribuí ed to bring about the injury. See Revised Statutes 1911, arts. 1985, 1986; Waller v. Lilie, 96 Tex. 21, 70 S. W. 17; Scott v. F. & M. Nat. Bank, 66 S. W. 493; Casey-Swasey Co. v. Manchester Fire Assur. Co., 32 Tex. Civ. App. 158, 73 S. W. 864.

We conclude that upon the special verdict and the admitted and undisputed facts the judgment should be reversed, and here rendered for appellant, and it is so ordered. ’


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MITCHELL.
    (No. 7856.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.
    Rehearing Denied March 14, 1914.)
    1. Damages (§ 111*) — Fires — Measure of Damages — Destruction of Building.
    An instruction, on the measure of damages for the destruction by fire of plaintiff’s building, which allowed recovery for the reasonable value of the building just before the fire, is not- erroneous, although the plaintiff owned the lot, and the true measure of damages was the difference in the value of the lot before and after the fire, since the result under each rule would be the same if the value of the building was properly appraised.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 274-278; Dec. Dig. § 111.]
    2. Dajia&es (§ 188) — Fibes—Evidence.
    In an action against a railroad company for the destruction of plaintiffs building and the fixtures therein by fire, evidence held sufficient to support a verdict for $1,050, even though the plaintiff bad rendered the lot and the improvements thereon for taxation at $150.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 511; Dec. Dig. § 188.]
    Appeal from District Court, Oooke County; C. F. Spencer, Judge.
    Action by B. F. Mitchell against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Garnett & Garnett, of Gainesville, for appellant. Culp & Culp and Granville Jones, all of Gainesville, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

B. F. Mitchell sued the Missouri, Kansas & Texas Railway Company of Texas to recover damages for the destruction by fire through the defendant’s negligence of a store building, together with certain store fixtures therein situated, in the village of Woodbine in Cooke county. There was a jury trial resulting in a verdict and judgment in plaintiff’s favor for the sum of $1,050, and the defendant has appealed.

The charge of the court on the measure of appellee’s damage is made the • basis for appellant’s complaint in the first five assignments of error. The charge is as follows: “If you find in favor of the plaintiff, you will assess his damage at such sum as you believe from the evidence was the reasonable value of the store building just immediately before the fire, not to exceed the amount sued for on account of the burning of the house, and what you believe from the evidence was the fair and reasonable market value of the fixtures burned, at Gainesville, at the time of the fire, less the cost of transporting'said fixtures to Gainesville, not to exceed the amount sued for on account of the burning of said fixtures, together with 6 per cent, interest on such sums from September 9, 1911, to this date.” It is the contention of appellant that since appellee alleged, and the evidence showed without conflict, that he was the owner, not only of the house, but of the lot upon which it stood, at the time of its destruction, the house therefore constituted a part of the land, and the measure of his damage was the difference in the value of said lot just before and just after the destruction of the house. Ordinarily this is the true measure of damages, especially where the plaintiff sues for the damage to his realty. But cases may arise in which the injured party may sue for and recover the value of fixtures attached to the realty independently of the incidental damage to the realty. Galveston, etc., Ry. Co. v. Warnecke, 43 Tex. Civ. App. 83, 95 S. W. 600; Tex. Mid. R. R. Co. v. Moore, 74 S. W. 942; Tyler S. E. Ry. Co. v. Hitchins, 26 Tex. Giv. App. 400, 63 S. W. 1069; H. & T. C. Ry. Co. v. Smith, 46 S. W. 1046. Compensation for the loss sustained is the end sought by the law in all cases, and while a plaintiff undoubtedly would be entitled in a ease like the present to recover the difference in the value of his land immediately before and immediately after the fire, and while this perhaps is the better and safer rule for all cases, yet there is no sound reason for denying him the right to recover the market value, or the real value in the absence of a market value, of the improvements or fixtures destroyed considered separate and apart from the realty; for, if such values be justly appraised by the jury, the damages when thus measured can by no possibility exceed the damages when measured by the rule first stated. A defendant in such a case has no just'complaint that the plaintiff recovers only the value of such improvements, which loss he necessarily has sustained, and is not allowed to recover the additional depreciation of his land by reason of the severance of the fixtures from the realty.

The case of Pacific Express Co. v. Lasker, 81 Tex. 81, 16 S. W. 792, is in no wise contrary to this holding. There the charge perfiaitted the plaintiff to recover the cost of restoring the burned building; whereas, as pointed out in that case, the cost of restoring a burned building might far exceed the market or real value of such building. In. the present ease the jury were limited to the reasonable value of the building immediately before the fire, and this meant, of course, considering its age, location, and all other circumstances bearing upon such value.

While there is some conflict in the evidence, it is nevertheless sufficient to support the verdict and judgment in the amount of the recovery. Two or three witnesses, who appear to know, testified that appellee’s building was worth some $1,100 to $1,200. Perhaps the strongest evidence against the verdict is that of appellee’s admission that he rendered the lot and improvements for taxation for the years 1910 and 1911 at $150, but this circumstance is by no means conclusive on appellee, especially in view of the known custom of property owners in this state to render their property for taxation at a sum very much less than its market value, as contemplated by the statutes. The rendition at most is only admissible as in the nature of an admission against interest.

There is no error in the judgment, and it is affirmed.


text:
    SHEPHERD et al. v. MOTT.
    (No. 7857.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.
    Rehearing Denied March 14, 1914.)
    1. Bills and Notes (§ 245) — Rights of Indorser Against Maker — “Principal”— “Surety.”
    S. was surety on a note upon which judgment was recovered. He and the principal debtor executed a new note for borrowed money with which to pay the judgment under an agreement that the principal debtor would procure K.’s signature as a cosurety and give K. security for its payment. This agreement was not known to K. and no security was given him. The note when presented to K. by the principal debtor was signed by the debtor and S., and K. refused to sign it but agreed to and did indorse it on the back, stating that he would become responsible only as indorser. Held, that as between themselves K. was a surety for S. and entitled to judgment over against him for the amount of the judgment recovered by the payee against K., since, whatever their apparent relation to the paper, the one who receives the benefit of the execution of the note is the principal, and the one who receives no benefit, but simply signs it as an accommodation for the other, is the surety.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 558, 559; Dee. Dig. § 245.]
    2. Evidence (§ 423) — Parol Evidence — Bills and Notes — Relation op Parties.
    Whatever the apparent relation of parties to a note, their true relation as between themselves may be shown by parol evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. § 423.]
    Appeal from Taylor County Court; T. A. Bledsoe, Judge.
    Action by W. N. Mott against J. N. Shepherd and others. Judgment for plaintiff and for the defendant E. N. Kirby against the defendant Shepherd, and Shepherd appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, for appellant. Scarborough & Hickman, of Abilene, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

W. N. Mott recovered judgment against J. N. Shepherd and E. N. Kirby, and E. N. Kirby recovered judgment over against J. N. Shepherd; the controversy arising over the liability of the respective parties on a promissory note signed by A. G. Britton and J. N. Shepherd and indorsed by E. N. Kirby. There is no complaint of the judgment in favor of Mott, but Shepherd appeals as. against the judgment in favor of Kirby.

The trial court, before whom the case was tried, made the following findings of fact, which we adopt: “(1) A. B. Britton, the principal on the note sued on, is insolvent and was not a necessary party to the suit (2) The note sued on was dated'July 20, 1911, and was signed by A. G. Britton and J. N. Shepherd, and was payable to the plaintiff, W. N. Mott, and was due six months after date, was for the sum of $390, and bore interest from maturity at the rate of 10 per cent, per annum, provided for 10 per cent, attorneys’ fees in case of suit and was payable to W. N. Mott, at Abilene, Tex. ' (3) That said note was duly signed by A. G. Britton and J. N. Shepherd; the name of Shepherd appearing directly under the name of Britton. (4) On the back of said note appeared the following indorsement: ‘Demand, notice and protest waived, E. N. Kirby.’ And that said indorsement was made by the defendant E. N. Kirby before the delivery of said note to the plaintiff, W. N. Mott. (5) I find that A. G. Britton was instrumental, wholly, in procuring the loan of money from W. N. Mott, on said note, and that the defendant J. N. Shepherd had nothing to do with the negotiations for the same with W. N. Mott. (6) I find that the money procured from said Mott on said note was used principally to pay off a judgment in favor of the Farmers’ & Merchants’ National Bank of Abilene, Tex., against one W. T. Bolt, A. G. Britton, and the defendant J. N. Shepherd, and that said Bolt was the principal in the note on which said judgment was obtained. That A. G. Britton and J. N. Shepherd were equally bound in said judgment, and same was a ‘default’ judgment as to Shepherd. (7) I find that, as between A. G. Britton and the defendant J. N. Shepherd, the said Shepherd was to become surety on the note sued on, to said Mott, and that the said Shepherd also required the said Britton to procure the signature of the defendant E. N. Kirby, on said note, as a cosurety, and that the said Britton agreed with said Shepherd that he would give security for the payment of said note, said security to be given to E. N. Kirby, but such agreement and understanding between said Britton and said Shepherd was unknown to the defendant E. N. Kirby and no security was given him by said Britton. (8) The total amount of the note at the time of the trial including interest and attorneys’ fees was $448, and it was agreed in open court by all parties that W. N. Mott should have judgment against the said Shepherd and Kirby jointly and severally- for the amount due thereon, but it was controverted as to whether the said Kirby had the right to recover judgment over against the said Shepherd. (9) I find that A. G. Britton applied to the defendant E. N. Kirby to sign the note herein sued on with him and the defendant J. N. Shepherd, and that said Kirby refused to do so. That the plaintiff, W. N. Mott, came also with A. G. Britton to see the defendant E. N. Kirby about signing said note with said Britton and Shepherd, and that said Kirby refused to sign the same, but agreed to indorse said note provided the same was signed by said Britton and the defendant Shepherd and stated to said Mott and said Britton that he would not become responsible on said note except as ‘indorser,’ and that he indorsed same with- that understanding, after it had been signed by said Britton and Shepherd. (10) I find that said note was brought to the office of the defendant E. N. Kirby by the plaintiff and A. G. Britton, duly signed by the defendant J. N. Shepherd and A. G. Britton, and that he then indorsed it as above stated.' (11) I find that nothing was ever said to said Shepherd by said Kirby and nothing to said Kirby by said Shepherd in reference to said note, either before or at the time of signing the same.”

We affirm the trial court’s conclusion of law that, as between themselves, defendant in error Kirby was a surety for plaintiff in error Shepherd, and as such entitled to judgment over against him. It seems to be well settled that as between the parties, whatever their apparent relation to the paper upon which they are sought to be held liable, their true relation to themselves may be shown by parol evidence, and that the one who receives the benefit of the execution of the note is the principal, and the one who does not receive any benefit, but simply signs it as an accommodation for the other, is the surety. Stuart v. Altman, 8 Tex. Civ. App. 657, 28 S. W. 461; Dessar v. King, 110 Ind. 69, 10 N. E. 621.

The findings above quoted bring this case well within the rule announced, and the judgment is affirmed.

Affirmed.


text:
    CHICAGO, R. I. & G. RY. CO. v. CLARK.
    (No. 7893.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 14, 1914.
    Rehearing Denied April 18, 1914.)
    1. Appeal and Error (§ 1040) — Harmless Error — Erroneous Rulings on Pleadings.
    Where plaintiff, suing a railroad company for injuries to animals frightened by a train, testified that the accident happened on a designated date and on the road alleged- in the petition, and the company procured the testimony of its engineers running trains on that date, who all testified that they knew nothing of the accident, the error in overruling exceptions to the petition for failure to specify the date of the injury or identify the train and place of injury was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    2. Damages (§ 113) — Injuries to Animals— Measure oe Damages.
    Where animals negligently injured have a market value after the injury, the measure of damages is the difference between their value immediately before and immediately after the injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.]
    3. Damages (§ 113) — Injuries to Animals— Measure op Damages.
    Where one suing for injuries to animals showed that the animals died soon after the accident, and testified that he thought that at the time of the injury they had some value, the amount of which he would not estimate, he was entitled to recover the full market value of the animals before the injury.
    [Ed.' Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.]
    4.Damages (§ 116) — Injuries to Animals— Measure op Damages.
    One negligently injuring animals, resulting in their death soon afterwards, is properly charged with the cost of hay and medicine used by the owner in a good-faith effort to prevent their death.
    [Ed. Note. — For other cases, see Damages, Dec. Dig. § 116.]
    Appeal from Montague County Court; Levy Walker, Judge.
    Action by F. M. Clark against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John Speer, of Bowie, and Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. H. F. Weldon, of Bowie, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

F. M. Clark recovered a judgment against the Chicago, Rock Island & Gulf Railway Company for damages on account of injuries to two mules, from which judgment the defendant has appealed.

In his petition the plaintiff alleged that on or about November 12, 1912, while he was driving the mules, together with other animals, along a public road adjacent to the defendant’s right of way, and while one of the defendant’s trains was passing him, the operatives of the engine negligently frightened the mules by blowing the locomotive whistle, which caused the mules to run and injure themselves upon a barbed wire fence. ' The evidence .showed without controversy that the mules were injured as alleged, and that as result of those injuries they died, and-no complaint is made of the insufficiency of the evidence to support the charge of. negligence on the part of the operatives of the locomotive.

Error has been assigned to the action of the trial court in overruling a special exception addressed to the petition on the ground that neither the exact date of the injury, nor any identification of the train, nor the exact place of the injury, was alleged. Plaintiff testified without controversy that the accident happened on November 12, 1912, and further that it occurred on the road alleged in his petition, which was about eight miles north of the town of Stoneburg and four miles south of the town of Ring-gold. In the argument presented by appellant following the assignment now under discussion, it is stated that appellant “procured the testimony of its engineers covering November 12th,” and the statement of facts contains the testimony of several of its employes who operated a train upon that date and who testified that they knew nothing of the accident of which plaintiff complained. The assignment is predicated chiefly upon the erroneous supposition, the error of which was later admitted, in appellant’s supplemental brief, that the.accident occurred.on November 11th. If, as .-stated in appellant’s brief, it procured the testimony of. its engineers operating trains on November 12th, we fail to perceive how the error, if any, in overruling the exception resulted in any harm to the company, for the only purpose of the pleading would be to enable the defendant to meet with proof the issue presented in plaintiff’s petition. Rule 62a, 149 S. W. x.

In the court’s charge the jury were instructed that in the event of a verdict for plaintiff the measure of his damages would be the reasonable market value of the mules at the time of their injury plus the reasonable market value of necessary hay and medicine used in the'care of said mules after their injury. Error has been assigned, to this charge upon the ground that there was testimony showing that the mules had a market value immediately after their injury, and that the true measure of damages was the difference between that value and their market value at the same time and place in an uninjured condition. It cannot be questioned that, if the animals had a market value after their injury, a correct measure of plaintiff’s damages would have been the difference between their value immediately before and immediately after the injury, as announced in G., C. & S. F. Ry. Co. v. Stanley, 89 Tex. 42, 33 S. W. 109, cited by appellant. While the plaintiff did testify that at the time of the injury he thought the animals had some value, the amount of which he would not undertake to estimate, yet it is quite apparent that he was mistaken in this, for the evidence shows without controversy that they were very badly injured and that on account of-those injuries they soon thereafterwards died. Neither he nor any other witness testified upon the trial that the mules had any market value immediately after the injury, and the testimony of the plaintiff was to the effect only that at the time of the accident he then thought they had some value.

It thus appears that plaintiff was entitled to recover the full market value of his animals before their injuries, and appellant cannot complain of being charged also with the cost of hay and medicine used by the plaintiff in a good-faith effort to avert their entire loss. Ulit v. Biggs, 53 Tex. Civ. App. 529, 116 S. W. 126; T. & P. Ry. Co. v. Webb (Tex. Civ. App.) 114 S. W. 1170.

The judgment is affirmed.


text:
    WILLIAMS v. CITY NAT. BANK.
    (No. 7845.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 7, 1914.
    Rehearing Denied March 28, 1914.)
    1. Contracts (§ 71) — Consideration—ForBEARANCE.
    A promise by a purchaser of merchandise from a dealer indebted to the seller of the merchandise to pay the debt if the dealer did not do so, made in consideration of the seller forbearing to attach the merchandise, was supported by, a sufficient consideration passing from the seller to the purchaser.
    [Ed. Noté. — For other- cases, see Contracts, Cent. Dig. §§ 295, 296, 298, 316-324; Dec. Dig. § 71.]
    2. Frauds, Statute of (§ 17) — Cotiateral Agreement to Pat Debt oe Another.
    A parol promise by a purchaser of merchandise from a dealer indebted to the seller thereof for the price to pay the debt if the seller did not do so, made in consideration of the seller forbearing to attach the merchandise, is a conditional promise to pay the debt of another, and is not enforceable within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17; Dec. Dig. § 17.] .
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by the City National Bank against I. W. Williams and others. From a judgment for plaintiff, defendant named appeals.
    Reversed and rendered for appellant.
    Chandler & Pannill, of. Stephenville, for appellant. R. E. Carswell, of Decatur, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

I. P. and G. M. Cowan, composing the partnership firm of Cowan Bros., were engaged in the mercantile business in the town of Bluffdale, in Erath county; their stock in trade consisting of dry goods and groceries. While so engaged they purchased from the Rhome Milling Company flour, meal, and chops. The account held against them by the milling company showing a balance due of $246.95 was transferred to the City National Bank of Decatur by the milling company.

This suit was instituted by the bank against Cowan Bros., I. W. Williams, and the Rhome Milling Company. In plaintiff’s original petition the alleged liability of the Rhome Milling Company was that of guarantor, while the cause of action alleged against Williams consisted in allegations that the flour, meal, and chops purchased by Cow-an Bros, from the milling company and covered by the account sued on was sold to Williams by Cowan Bros, in violation of the bulk sales law of the state, and, further, that after said purchase Williams, for a valuable consideration, promised the milling company to pay said account.

In his answer, among other defenses, Williams pleaded that, if he promised to pay the account, there was no consideration to support such promise, that the promise was in parol, and, being a promise to answer for the debt of Cowan Bros., was in contravention of the statute of frauds, and therefore he was not liable thereon. By supplemental petition the plaintiff alleged that the purchase of the goods from Cowan Bros, by Williams was for the- purpose of hindering, delaying, and defrauding the creditors of the latter, and without any consideration paid therefor; that, after Williams thus came into possession of the goods, the agent of the milling company demanded of Williams that he surrender the same to the milling company, or else pay the account, and threatened that, if the demand was not complied with, suit would be instituted against Cowan Bros, on said account, and the goods would be levied on by writ of attachment; that Williams, in consideration that the milling company would forbear resort to such proceedings, agreed with the agent of the milling company to pay the account; that, in consideration of such agreement by Williams, the milling company refrained from the institution of such proceedings.

In reply to the supplemental petition Williams specially denied that he purchased the goods with intent to hinder, delay, or defraud the creditors of Cowan Bros., further alleging that he purchased only $76.65 worth of flour, that he purchased the same in retail in good faith and paid value therefor, and that the flour so purchased was sold to him in the ordinary course of trade; he also again invoked the statute of frauds as a defense to the alleged agreement set out in the supplemental petition.

Judgment was rendered in favor of the plaintiff against all of the defendants as prayed for for the sum of $246.95, and, from that judgment, Williams has appealed.

The court submitted the case to the jury upon special issues, three of which issues, together with the findings of the jury thereon, are as follows, to wit:

“(8) Did defendant Williams conspire or confederate with Cowan Bros., whereby any part of the property of said Cowan Bros, was received by said Williams and held and disposed of for the purpose and with the intent to hinder, delay, or defeat the creditors of said Cowan Bros.? In answering this question you will consider all the facts and circumstances in evidence before you.
“To the eighth issue we answer, ‘Yes.’
“(9) Did defendant Williams receive and have in his possession any of the flour and meal sold by Rhome Milling Company to Cowan Bros., and did J. W. Malone, the agent of said milling company, know that fact, and demand of said Williams that he pay the balance due on said flour and meal by Cowan Bros., or that he (Malone) would sue and attach the same for said milling company?
“To the ninth issue we answer, ‘Yes.’
“(10) Did 'said Williams agree with said Malone that he (Williams) would pay the balance due said milling company by Cowan Bros, if he (Malone) would not bring suit and attach said flour and meal then in the possession of said Williams? And in this connection state whether or not such promise, if you find the same made, was in writing or oral. In answering the foregoing question, you will consider the evidence before you and be governed thereby.
“To the tenth issue we answer, ‘Yes; orally.’ ”

Appellant insists that the court erred in overruling his motion for a judgment in his favor upon the findings of the jury upon issue No. 10, as shown above, considered in connection with the uncontroverted testimony of J. W. Malone himself, several times repeated, that the only promise Williams made was that he would'pay the account “if Cowan Bros, did not do so.” Malone further testified relative to the promise so made to him by Williams as follows: “I relied upon this promise, and did not bring this suit, and agreed to leave the stuff with him. If he had not so promised, I would have attached the property.”

It thus appears that Williams’ promise to pay the debt was supported by a sufficient consideration passing from the milling company. But it further appears that his contract to pay the debt was that of guarantor only. His promise was not unconditional, but was conditioned upon the failure' of Cowan Bros, to pay, and therefore was collateral. The question, then, is whether or not a valuable consideration passing from the milling company to Williams would take the case out of the statute of frauds.

Our statute of frauds (Rev. St. 1911, § S965) reads:

“No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized : * * *
“No. 2. To charge any person upon a promise to answer for the debt, default, or miscarriage of another; or. * * *»

In the suit of Hill v. Frost, 59 Tex. 25, our Supreme Court used the following language: “If the promise is merely collateral and auxiliary to the original debt, it would be nothing more than a verbal agreement to pay the debt of another, and is within the statute. The agreement to take the case out of the statute must not only be in writing, but, like any other promise binding in law, must be founded upon a sufficient consideration moving between the parties. Browne on Statute of Frauds, § 189. There is some doubt from the evidence whether there was any promise of any kind made by appellant. The utmost that can be said is that Mrs. Hill told appellee not to bother her son; that she would pay the debt on the 1st of April following. This was clearly a promise collateral to the existing liability of another, if it was a binding promise at all. In Warren v. Smith, 24 Tex. 486, 76 Am. Dec. 115, it is said, Judge Bell delivering the opinion of the court: ‘If the promise to answer for the debt of another is collateral only, and if the original liability continues to subsist, tbe collateral promise is witbin tbe statute; but if, by tbe new promise, tbe original liability is extinguished, then tbe new promise is not witb-in tbe statute, but is regarded as an original contract on sufficient consideration, wbicb need not be in writing.’ ” To tbe same effect are Chauvin v. McKnight, 132 S. W. 383; Starr v. Taylor, 56 S. W. 543. See, also, 2 Elliott on Contracts, § 1231.

In the case of Porter v. Norman, 136 S. W. 1173, Norman, a merchant, sought to bold Porter liable for certain goods sold to two of the latter’s Mexican, tenants, and, in disposing of that appeal, this court used tbe following language: “To take tbe case out of tbe statute, tbe oral promise must be an original 'one. Tbe merchandise must have been advanced to tbe Mexicans upon tbe faith of a promise on appellant’s part to himself pay for them, and not merely ‘to secure the payments,’ as authorized by the court’s charge. See Rentfrow v. Lancaster, 10 Tex. Civ. App. 321, 31 S. W. 229; Dabney v. Conley, 65 S. W. 1124.”

“Generally speaking, an oral undertaking by a person not previously liable for tbe purpose of securing tbe debt or performing tbe same duty for wbicb tbe person for whom tbe undertaking is made remains liable is within the statute of frauds, and must be in writing.” 20 Cyc. p. 164.

In Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291, a surviving wife was held liable upon her promise to pay tbe debt of her deceased husband due upon a stock of goods. In that case tbe court said: “This contract was one . that was independent of that wbicb plaintiff’s husband bad made with tbe defendant upon wbicb bis estate was indebted to tbe defendant; tbe plaintiff’s undertaking to pay tbe debt was founded upon an agreement with defendant under wbicb she should retain tbe stock of drugs, and continue to keep her stock replenished by obtaining additional supplies of drugs on tbe credit from tbe defendant. In consideration of such advantages to herself she promised to pay tbe debt. Tbe rule is deduced by Mr. Roberts, in bis.treatise on tbe Statute of Frauds, 232: ‘That, if the consideration of tbe new promise spring out of any new transaction or moved to tbe party promising upon some fresh and substantial ground of a personal concern to himself, tbe statute of frauds does not attach.’ Browne on Statute of Frauds, § 212. This case seems to come within tbe above rule.”

In that case tbe promise of tbe widow to pay tbe debt of tbe deceased husband was absolute and unconditional. It was not a promise to pay tbe debt if the administrator of tbe estate or some one else did not pay it.

. Appellee has cited several authorities in support: of tbe contention that, if Williams’ agreement to pay Gowan Bros.’ debt was supported by a valuable consideration passing to Williams, bis agreement would not be witbin the statute of frauds, including Spencer v. Nalle, 143 S. W. 991, by tbe Court of Civil Appeals for tbe Third Judicial District; Blakeney v. Nalle, 45 Tex. Civ. App. 635, 101 S. W. 875, by the same court; Hilliard v. White, 31 S. W. 553; Eppstein v. Wolfe, 35 S. W. 52; Monroe v. Buchanan, 27 Tex. 241; Gay v. Pemberton, 44 S. W. 400. In each of tbe cases cited it seems that a parol agreement to pay the debt of another, supported by a valuable consideration to tbe promisor, was held not to come witbin tbe statute of frauds. In some of those cases tbe agreements seem to have been mere contracts of guaranty, and in others tbe contracts were unconditional agreements to pay debts of others in part consideration for conveyances of property to tbe promisors. As said by our Supreme Court in Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291, tbe authorities in other states are hopelessly in conflict upon tbe question now under discussion. It seems, also, that the same might be said of tbe decisions of tbe Courts of Civil Appeals of our own state.

“To constitute the contract of suretyship or guaranty, the same things are necessary as to constitute any other contract, viz.: That tbe parties be competent to contract; that they actually do contract; and that tbe contract, if not under seal, be. supported by a sufficient consideration.” 1 Brant on Surety-ship and Guaranty, § 3.

“Where the consideration between tbe principal and creditor has passed and bécome executed before tbe contract of tbe surety or guarantor is made, and such contract was no part of tbe inducement to the creation of the original debt, such consideration is not sufficient to sustain such contract.” 1 Brant on Suretyship and Guaranty, § 17. To tbe same effect is Baker v. Wahrmund, 5 Tex. Civ. App. 268, 23 S. W. 1023.

It thus appears that whether or not tbe agreement of Williams to pay tbe debt of Cowan Bros, was a contract of guaranty simply, or whether he was liable thereon as an undertaking for bis own benefit to be performed without regard to Cowan Bros.’ liability therefor, is not to be determined alone by tbe simple fact that such, promise was supported by a valuable consideration passing to him. In Spann v. Cochran & Ewing, 63 Tex. 240, it was held that one who, in part consideration for tbe purchase of property, assumes tbe payment of an outstanding mortgage indebtedness against tbe property cannot claim tbe benefits of tbe statute of frauds. In that case tbe following language is used: “The rule is thus stated: ‘The general principle prevailing in all tbe cases under this branch of the statute of frauds is that, whenever tbe defendant’s promise is in effect to pay bis own debt to tbe plaintiff, though that of a third person may be incidentally discharged, the promise need not be in writing.’ Browne on Statute of Frauds, 165. ‘It contemplates a promise to answer for another's debt, a promise for that purpose, a mere guaranty; and it never was meant that a man should set it up as a pretext to escape from the performance of a valid verbal obligation of his own, because, in performing it, the discharge of a third party’s debt was incidentally involved.’ Browne on Statute of Frauds, 212. The same rule is laid down by a late author. Reed on the Statute of Frauds, 115.”

This ease illustrates the distinction between what is usually termed an “original” agreement, not within the statute of frauds, and a “collateral” agreement, which is within the statute of frauds. The liability of a purchaser of property upon an indebtedness outstanding against it, and which he has assumed in part consideration for the sale, and thereby made the debt his own, is the same as if he had signed the obligation with the mater; in other words, his liability is absolute, and not conditional upon the failure of the maker of the note to pay the debt. In no sense is such a contract one of guaranty merely to the owner of the obligation.

In the present case no claim is made that the milling company sold to Williams any title in the goods. On the contrary, after Malone discovered the fact that the goods had been sold by Cowan Bros, to Williams with intent on the part of the vendor and vendee to defraud the creditors of the vendor, the milling company did not elect to rescind the sale and claim the goods, but continued to claim the indebtedness against Cowan Bros., transferred the account to the plaintiff bank, and procured the institution of this suit claiming the same liability, and procured a judgment against Cowan Bros, as well as against Williams. The only consideration alleged and proven to support the promise of Williams to pay Cowan Bros.’ account to the milling company was the agreement on the part of the milling company to forbear the fixing of an attachment lien upon the goods.

For the reasons noted, the appellant’s first assignment of error is sustained, the judgment of the trial court is reversed, and judgment is here rendered in favor of appellant, omitting as unnecessary any discussion of the other assignments contained in appellant’s brief. In all other respects the judgment is undisturbed.

Reversed and rendered for appellant.


text:
    GULF, C. & S. F. RY. CO. v. RIORDAN.
    (No. 7860.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 21, 1914.
    Rehearing Denied March 28, 1914.)
    1. Master and Servant (§ 286) — Actions for Injuries — Questions for Jury.
    In a railroad engineer’s action tor injuries caused by slipping on the running board, evidence that there was water, dirt, and grease on the running board before the engine was taken to the shops shortly before the accident, and that it was the duty of the employés in the shops to remove oil from the running board, made a question for the jury as to the company’s negligence in permitting oil to be on the running board at the time of the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    2. Trial (f 253) — Actions for Personal Injuries — Instructions—Ignoring Issues.
    In a railway engineer’s action for injuries caused by slipping on the running board, where plaintiff alleged negligence in permitting oil to be on the running board and in failing to install an equipment for opening the blow-off cock from the cab without going on the running board, an instruction that, if plaintiff was negligent in failing to discover the oil on the running board before he slipped and fell, he could not recover was properly refused, as it would have excluded a recovery upon the other issue of negligence in the petition.
    LEd. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    3. Master and Servant (§ 228) — Liability for Injuries — Contributory Negligence.
    Under Rev. St. 1911, art. 6649, providing that, in actions brought under the provisions of the preceding articles for personal injuries to a railroad employé, his negligence shall not bar a recovery, but that the damages shall be diminished in proportion to the negligence attributable to him, the negligence of a railway engineer in failing to discover oil upon the running board before he slipped and fell, co-operating with the company’s negligence in permitting the oil to be on the running board,- was not a complete bar to a recovery, and an instruction that if he was negligent he could not recover was properly refused.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.]
    4. Master and Servant (§ 278) — Actions for Injuries — Sufficiency of Evidence.
    Evidence, in a railway engineer’s action for injuries caused by slipping on the running-board, that it was the custom of many railway companies to use engines equipped with an appliance for operating the blow-off cock from the cab without going on the running board, that such appliance could be installed at a cost not exceeding $1.50, and that plaintiff had requested the roundhouse foreman to have such equipment installed supported a finding of negligence in failing to equip the engine with such appliance, though there was evidence that many well-regulated and prudently managed railroads used engines without such equipment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    5. Master, and Servant (§ 291) — Actions for Injuries — Questions for Jury.
    In a railroad engineer’s action for injuries caused by slipping on the running board, testimony that there was oil on the running board at the time of the accident, that there was no oil thereon when the engine left the roundhouse shortly before, and that, if the packing around the piston of the air pump had been in proper condition, no appreciable amount of oil would have leaked therefrom during the interval justified the submission of- the issue as to a defec-t in the air pump, permitting oil to escape therefrom.
    ■ [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]

      6. Master and Servant (§ 289) — Actions for Injuries — Questions for Jury.
    Under Rev. St. 1911, art. 6645, providing that, in actions for personal injuries to any railroad employé caused by negligence, assumed risk, where the ground of the plea, is knowledge or means of the knowledge of the defect or danger, shall not be available, where the employé had an opportunity before being injured and did notify the employer within a reasonable time, where there was evidence that engines equipped for operating the blow-off cock from the cab were in common use, that such equipment could be installed at a trifling cost, and that the roundhouse foreman had promised an engineer that such equipment would be furnished, whether the engineer assumed the risk of injury in operating the blow-off cock from the running board was a question of his contributory negligence within the province of the jury, and the court properly refused to charge that the engineer assumed the risk.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    Action by E. H. Riordan against .the Gulf, Colorado & Santa Fé Railway Company. From a judgment, for plaintiff, defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Garnett & Garnett, of Gainesville, and A. H. Culwell and John G. Gregg, both of Galveston, for appellant. Stuart, Bell & Moore, of Gainesville, for appellee.

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      For other cases see same topic and section NUMBER in Dec. Dig. St Am. Dig. Key-No. -Series'& Rep’r Indexes

   DUNKLIN, J.

The Gulf, Colorado & Santa Fé Railway Company has appealed from a judgment in favor of E. H. Riordan, for damages for personal injuries. This is the second appeal prosecuted to this court; the decision on the former appeal being reported in 146 S. W. 711.

While engaged as a locomotive engineer on one of appellant’s trains, Riordan descended from the engine cab and went out upon the running board of the engine for the purpose of opening the blow-off cock to let out sediment accumulating in the boiler, and thus to leave clean water in the boiler. A rod extended from the blow-off cock up to the running board, and the cock was opened by using a steel bar as a lever. In order to reach this bar, it was necessary to pass around an air pump which extended above the running board. When plaintiff stepped around this air pump, his foot slipped from the running board, causing him to fall, and thereby to sustain injuries. He alleged that grease and oil had accumulated upon the running board, and that this caused his foot to slip; that the oil escaped from the air pump as a result of improper packing between the cylinder and the piston of the pump; that the railroad company was guilty of negligence in furnishing him the engine in. that condition; that the company w&s guilty of negligence further in not installing upon the engine an equipment for opening the blow-off cock from the cab of the engine, thus obviating the necessity of going upon the running board for that purpose. He further alleged that prior to his injury he had requested the foreman of appellant’s roundhouse at Gainesville to provide said engine with such equipment, and that such agent had promised him that his request would be complied with. In the court’s charge to the jury plaintiff’s right to recover was predicated upon those allegations of negligence. The evidence further shows that, a few days prior to the date of the accident, plaintiff had operated the engine in question, but that it had been sent to appellant’s roundhouse in Gainesville for repairs, from whence it was taken to Ardmore, and plaintiff’s in-' jury occurred on the night next succeeding the day it was taken out of the shop. Plaintiff resumed charge of the engine at Ardmore on the night of his injury, other employés having operated it from the time it left the roundhouse until then, and had been operating it only for an hour or so when the injury occurred. The only use made of the engine from the time it left the shop until plaintiff took charge of it was to run from Gainesville to Ardmore, a distance of about 40 miles, and some switching done in the yards after its arrival at Ardmore.

The court submitted both issues of negligence alleged in the pleadings and referred to above. Appellant insists that the evidence is insufficient to support a finding of negligence in permitting the presence of oil on the running board at the time plaintiff was put in charge of the engine. On the former appeal one of the reasons for reversal was the lack of testimony upon that issue, but the same cannot be said of the record now before us: E. D. Hudgins, one of defendant’s employes, who was serving as a brakeman upon the engine in question shortly before it was taken to the shops, testified that he noticed a little water, dirt, and grease mixed together on the running board near the air pump. He said that he noticed this when he went out on the running board to operate the blow-off cock. It was further shown by the testimony of appellant’s official's in charge of the roundhouse that it was the duty of employés there engaged to make an inspection of engines sent to the shop, and that if oil was discovered upon the running board to remove the same.

There was no error in refusing appellant’s requested special charge No. 7, which was in effect that, if plaintiff was guilty of negligence in failing to discover the presence of the oil upon the running board before he slipped and fell, he could not recover. Such an instruction, if given, would have excluded any right of recovery upon the other issue of negligence alleged in the plaintiff’s petition; furthermore, under Revised Statutes 1911, art. 6649, the negligence of the plaintiff in that respect, co-operating with the negligence of the defendant, would not be a complete bar to a recovery.

By several assignments appellant insists that there was no evidence to sustain a finding of negligence on the part of the defendant in failing to equip the engine with an appliance for operating the blow-off cock from the cab of the engine, thus relieving the engineer of the duty to go out upon the running board to operate it. While appellant’s evidence tended to show that many well-regulated and prudently managed railroads of Texas used engines without such equipment, yet there was further testimony tending to show a custom of many railway companies to the contrary. Furthermore, there was testimony which seemed to be undisputed that the cost of installing such an appliance upon the engine in question would not have exceeded one dollar and a half, and that prior to the accident plaintiff requested G. P. Barnhill, foreman of defendant’s roundhouse at Gainesville, to have such equipment installed on the engine, and that Mr. Barnhill promised that his request would be complied with.

Error has been assigned to an instruction by the court that, if plaintiff requested G. P. Barnhill, foreman of appellant’s roundhouse at Gainesville, to install the equipment, then the plea that plaintiff had assumed the risk would not be availing. The ground upon which this charge is challenged is the contention that the evidence showed without controversy that practically all well-regulated and prudently managed railway companies in Texas operated engines without such equipment, and that there was no law requiring engines to be so equipped. This assignment must be overruled, as two or three witnesses testified that it was customary with some railway companies to so equip the engines as to enable the blow-off cock to be operated from the cab of the engine.

It is also insisted that there was no evidence authorizing the submission of the issue of a defect in the air pump which permitted the oil to escape therefrom to the running board. 'This contention must be overruled for the following reasons: Plaintiff testified that there was oil on the running board at the time of his injury; the testimony of some of appellant’s witnesses tended to show that there was none on the running board at the time it left the roundhouse at Gainesville for Ardmore. Other witnesses testified in effect that, if the packing around the piston of the air pump was in proper condition, no appreciable amount of oil would have leaked therefrom from the time the engine left the roundhouse at Gaines-ville until the time of the accident.

Complaint is made of the refusal of appellant’s requested charge No. 3, which was in effect a peremptory instruction that plaintiff assumed the risk and danger of the injury in so far as it was necessary for him to operate the blow-off cock from the running board instead of. from the cab. The reason .assigned for the refusal of this instruction is substantially that the engine in question was not designed for the operation of the blow-off cock'from the cab;, that it was proven beyond controversy .that engines so equipped were largely in use upon other well-regulated and prudently managed railroads, and hence the defendant could not be charged with negligence in furnishing to plaintiff, a locomotive of that make and design. A sufficient answer to this is the testimony. referred to, to the effect that engines equipped for operating the blow-off cock from the cab were in common use; that at a trifling cost such equipment could have been installed upon the engine in question; and that the foreman of the roundhouse had promised the plaintiff that such an equipment would be furnished. Furthermore, under Revised Statutes 1911, art 6645, the question whether or not the plaintiff assumed the risk would be a question of his contributory negligence vel non, a decision of which was the province of the jury and not that of the court.

The judgment is affirmed.