author: BROOKE, J. WALKER, J.

text:
    W. T. WILSON GRAIN CO. v. FITCH.
    (No. 392.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 26, 1918.
    Additional Opinion, Feb. 5, 1919.)
    1. Evidence <§==>547 — Expert.
    In action against a feed company for death of a horse, alleged to be due to poison in feed, I issue being as to what killed horse, it was proper to allow veterinarian to testify that, when he called to see plaintiff’s horses, four of them were sick; the horse in question being one of the four.
    2. Negligence <§=>124(1) — Materiality.
    In action against feed company for death of horse, alleged to have been caused by rat poison in feed, evidence that defendant picked up sweepings from floor of warehouse and put them in sacks at some time prior to death of plaintiff’s horse was admissible, as tending to show how poison got in feed.
    3. Appeal and Error <§=>970(4) — Trial <§=> 68(1) — Reopening Case — Discretion oe Court.
    The trial court is vested with a liberal discretion in reopening a case, after plaintiff has closed and defendant has declined to offer any testimony, and its action In regard thereto will not be reversed, unless it appears that complaining party has suffered injury.
    4. Trial <§=>121(1) — Argument.
    In action against feed company for death of horse, caused by rat poison in feed, argument of plaintiff’s attorney: “A specimen. A specimen of what, gentlemen? Of that rat poison that F. got out of the feed that he bought from the W. Grain Company” — was proper.
    5. Trial <§=>120(2) — Argument oe Counsel.
    An argument: “Gentlemen, Mr. H. has tried to make you believe that poor old man F. is a liar, a robber, and a thief. I will tell you that neither J. nor old man F. would swear a lie for this horse, another, and yet another. If you knew them like I do, you couldn’t be made to believe so” — was improper, because an attorney should not make a witness of himself in his argument to the jury.
    6. Trial <§=>129 — Argument oe Counsel — Retaliatory Statements.
    Argument of attorney: “I will tell you that neither J. nor old man F. would swear a lie for this horse, another, and yet another. If you knew them like I do, you couldn’t be made to believe so” — was not reversible, where in reply to argument of opposing counsel of the effect that F. was manufacturing and concealing testimony.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Action by H. Fitch against the W. T. Wilson Grain Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Harris & Harris, of Nacogdoches, for appellant.
    C. A. Hodges, of Nacogdoches, for appel-lee.
   BROOKE, J.

After a careful examination of the record in this case, together with the briefs of counsel for the respective parties, we have come to the conclusion that no reversible error is shown, and the cause should therefore be affirmed; and it is so ordered.

Additional Opinion.

WALKER, J.

Appellant lias filed a motion asking this court to discuss each of his assignments. In deference to this request, we file the following additional opinion:

The statement of the nature and result -of the suit, taken from appellant’s brief, is as follows:

“This suit was instituted by appellee against appellant in the justice court of precinct No. 1 of Nacogdoches county, Tex., for the sum' of $150.00, the alleged value of one horse, property of appellee, alleged to have been killed by the negligent sale by appellant of feedstuff containing poisonous substances, which was tried by the justice of the peace without the aid of the jury, and judgment rendered by him in favor of appellant, from which judgment appellee appealed to the county court, where the case was tried at its November term before a jury upon special issues, answers to whiejj special issues were adverse to appellant, and judgment entered by the court in accordance with said answers to special issues in favor of appellee for $150, whereupon appellant filed itá motion for a new trial, after having filed motion requesting the court to render judgment in favor of it according to law, and after which motion was overruled appellant filed its amended motion for a new trial, while court was still in session, on the 4th day of December, 1917, which amended motion was by the court overruled, to which action of the court it then and there in open court duly excepted, and gave notice of appeal to the Court of Civil Appeals of the Ninth Supreme Judicial District of the State of Texas, at Beaumont.”

By the first assignment of error appellant complains of the following testimony offered by plaintiff:

Dr. K. C. Deason testified:

“I was called out to see Mr. Fitch’s horses. I think there were four sick”

—the objection to this testimony being that, as appellant was suing for damages to one horse, the testimony as to the other horses is immaterial. This objection is overruled. The issue in this case being as to what killed appellee’s horse, and the dead horse being one of these four horses seen by Dr. Deason, this testimony was material.

By his second assignment appellant complains of the following testimony:

John Fitch testified:

“I know that at a time prior to the death of my father’s horses Wilson Grain Company picked up sweepings from the floor of their warehouse and put them in sacks”

—the objection to this testimony being that it is immaterial and irrelevant, and does not tend to prove or disprove any issue in the case, and was prejudicial to the rights of defendant, and was too vague and indefinite, and it fixed no time for the transaction testified about, other than the statement that it was at a time prior to the death of witness’ father’s horse. This exception is overruled. If plaintiff’s horse was killed by eating grain sold by Wilson Grain Company, under the testimony, the grain was poisoned by rat poison, and this testimony was material on this issue as to how the poison got in the grain.

When plaintiff closed his testimony, the defendant declined to offer any testimony; thereupon the court permitted the plaintiff to reopen his case and offer cross-interrogatories of the witness Frank Mora. Appellant objected to this action of the court, and has presented his objections in his third and fourth assignments of error. No injury is shown 'to the defendant by this action of the court. The appellant suffered no injury thereby. In procedure of this kind, the trial court is vested with a liberal discretion, and his action in regard thereto should not be reviewed, unless it appears that the complaining party has suffered injury. In this case no statement is submitted under this proposition showing any injury suffered by appellant. Therefore the third and fourth assignments are overruled.

By the fifth assignment appellant complains of the action of the court in refusing to give the jury a peremptory instruction to return a verdict in his behalf. We have reviewed the testimony in this record, and find no error in the refusal of this charge. Very properly these facts went before the jury.

In the sixth assignment, appellant complains of the following argument of Attorney O. A. Hodges:

“A specimen. A specimen of what, gentlemen? Of that rat poison that John Fitch got out of the feed that he bought from the W. T. Wilson Grain Company.”

This assignment is overruled, this being a proper argument under the facts of this case.

By the seventh assignment, appellant complains of practically the same argument, which assignment is also overruled.

By the eighth, assignment, appellant' complains of the following argument of the attorney, Mr. Hodges:

“Gentlemen, Mr. Harris has tried to make you believe that poor old man Fitch is a liar, a robber, and a thief. I- will tell you that neither John Fitch nor old man Fitch would swear a lie for this horse, another, and yet another. If you knew them like I do, you couldn’t be made to believe so.”

This bill of exception is qualified by the court in saying that this argument was used by Mr. Hodges in reply to argument of counsel for appellant, wherein appellant had accused the Fitches of manufacturing testimony and of agreeing among themselves to conceal testimony. Under this qualification, which was accepted by appellant, this argument cannot be held to be reversible error. However, even under these circumstances, we cannot approve of argument of this character. An attorney should not make a witness of himself in his argument to the jury. Argument very similar to this has been held to be reversible error in the case of T. & N. O. Railroad Co. v. W. G. Harrington, 44 Tex. Civ. App. 386, 98 S. W. 653.

Finding no error in this record, this case is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, O. J.

license: Public Domain

text:
    MAHURIN v. MAHURIN.
    (No. 8099.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 25, 1919.)
    1. Divorce <g=»149 — Condonation—Presumption from Diving Together — Rebuttal by Finding.
    In wife’s suit for divorce, any inference, from parties’ living together after husband’s cruel treatment, that they cohabited during such time held rebutted by finding in response to special issue that they did not cohabit.
    2. Divorce <§=>49(1) — Cruelty — Condonation.
    Where wife lived with husband after his last assault upon and cruel treatment of her only under some kind of hallucination or abnormal condition that rendered her irresponsible for her own conduct, she could not condone his treatment, and is entitled to divorce therefor.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit for divorce by Dessie Mahurin against Otho Mahurin. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Shurtleff & Cummings, of Waco, for appellant.
    Dupree & Crenshaw, of Hillsboro, for ap-pellee.
   RAINEY, O. J.

Appellee brought suit for divorce against appellant, to whom she was married on the 15th 'day of November, 1914, and. lived with him until the 7th day of August, 1917, when by reason of cruel treatment by appellant she was caused to abandon him, and prays that she be awarded the custody of their child, Juanita.

Appellant answered by general exception, general denial, and specially pleaded condo-nation on the part of appellee by living with him after commitment of said cruel treatment, and prayed that he be awarded the custody of the child, and, in the event this is not granted, that he be permitted at all reasonable times to visit said child.

The court submitted the case to the jury on special issues, which being answered by the jury favorable to appellee, the court rendered judgment thereon in her favor, from which this appeal is taken.

There is only one assignment of error presented by appellant, which is as follows:

“The court erred in refusing to set aside the verdict of the jury and the judgment of the court rendered thereon, because the undisputed testimony in this case shows that the plaintiff, Dessie Mahurin, condoned whatever conduct she charges that the defendant engaged in, and which is alleged by her as grounds for a divorce, the plaintiff's undisputed testimony being that, after all the acts and conduct testified by her to have occurred had transpired, she continued to live with him as his wife, and continued to love him, and that several nights intervened after the last act complained of in her petition, before she left appellant’s house; and that during said intervening nights she occupied the same bed with him, and up to that time had no thought of leaving him, and did not conclude to leave him until after she had been at her father’s house for several days, all of which is more fully shown by the official report of the plaintiff’s testimony which is attached to, and made a part of the defendant's motion for new trial.” -

The proposition under said assignment is as follows:

“Although the appellant may have been guilty of the acts and conduct alleged in the appel-lee’s petition, and testified to by her, she having testified on cross-examination that after the last act complained of had been committed, she continued to sleep with him for three or four nights, and did not decide to quit him until a day or two after she went out to her father’s house on a visit, she condoned the wrongs, if any, committed against her, and should have been denied a divorce.”

Appellant introduced no testimony and judgment for divorce was based upon the testimony of appellee alone, which, is as follows:

“My husband began to treat me badly about two months after we were married. After I became pregnant with child he beat me over the head with his fist, and drove me around with a pistol, in the house, and after that he called me a whore and a son of a bitch, and ail such things as that. About six monthfe after we were married he tried to get me to take a box of calomel tablets so that I would miscarry. And he also made me trot up and down the road with a gun in his hands to try to make me miscarry; that was about II o’clock at night; and he also called me ugly words, such as whore and son of a bitch at that time. I continued to live with him because I thought he would do better and act like a man. Another time he had negroes on the place and shot craps and played cards with them; that was down near the bam, I could see him. That was about four months after my child was born. He also accused me of being untrue to him, said I was too familiar with other men, which was false, and he also called me a whore, which was false. At the time of our separation, August 7th, he beat me over the head with his fist and called me a lot of bad names; a son of a hitch, a whore and a liar, and thief and negro, and such things as that, and he caught me by the arm and drag me into the kitchen; it was the left arm, and where he wrenched it, it had spots on it and risings all over it afterwards, and I had risings and sores on my head and about my eyes where he hit me. That all took place about two days before we separated, and I left him as soon after that as I could get away. When he would call me these bad names it would humiliate me. My left arm that he twisted had 13 risings on it after that, and you can see some of the spots on it yet. I always treated him the best I knew how, .and tried to manage his household affairs as a wife should, and was always kind and affectionate to him, and never did or said anything to him out of the way in my life. We separated once before this last time, when he first treated me so cruelly, as I have testified about, but I went back to him because I thought he would do better. He promised to do better, but he didn’t. These attacks on me and cruel treatment I have testified about would- occur at least once a week and some times twice a week. He was a man of violent temper, and he didn’t seem to have any control over his passion and temper when he would get mad. In view of his treatment towards me since our marriage and up until the time we separated, it is not possible' for us to live together as man and wife, and I never will live with him as long as I live. We had one child while we were married, a girl named Juanita Fay Ma-hurin, 2 years old now. I have had the child in my possession since our separation. I want to keep the child, and I am willing and able to take care of it. * * * We lived together about 2½ years, and during that time I was kind and affectionate towards him and loved him, and I did not say a harm word to him during that time. Yes; I continued to love him when he would hit me over the head and call me all those bad names, and I didn’t say a harm word to him during all that time. He sat on the gallery with his gun and made me run up and down the road to cause me to miscarry ; that was about six months after we had been married. Yes, I slept with him that night. No, I didn’t say .a harm word to him about that, and continued to love him after that. Several times after that he hit me over the head, and called me a whore and a son of a bitch. He didn’t hit me over the head with his gun, but with his fist. He always called me those names when he would get mad. No; I didn’t gay a harm word to him, because I knew better than to. I did not tell my father or any one about it until after we separated. Yes;' I took the baby and went home, and have been there ever since we separated the last time. Yes; I want to keep the baby and don’t want the baby’s father to see it; I don’t think he is fit to see it or be with it. No; I don’t want the baby to be called Mahurin. Anybody that has done like he has isn’t fit to raise a child under no circumstances.
“Q. And that is the man you say you loved for 2 years or more? A. Yes; but I don’t love him now under no circumstances, and never will. I quit loving him the day he treated me so bad. The day I quit him he carried me over to his father’s, and went on to Itasca, and my brother came there for me and took me over to my father. I didn’t say anything to him about leaving him, and it was after I got over to my father’s house that I decided to leave him. Q. You did love him up until he left you that day? A. Yes, sir. Q. And when you left Mr. Mahurin’s house and started to your father’s house with your brother you still loved him? A. Yes, sir. Q. But when you got over to your father’s house and stayed there a day or two you quit loving, him? A. Yes, sir. My father didn’t advise me not to go back to him. I made up my mind to quit him and stay at my father’s after I got over there, but they didn’t know I had come to stay. Q. Believe you say you loved him after you got to your father’s house and until you stayed there a day or two and studied it over? A. Yes. Otho called me the next day after I went home to see when I wanted to come home. I had quit loving him at that time. I told him when he called I wasn’t coming home.
“Yes; he has frequently wanted to come to see the baby, but I wouldn’t let him. Papa didn’t want him on the place. Yes; I objected, too, as well as papa. Yes; I continued to live with him as his wife and forgive him for everything he had done and love him clear up until about the 7th of August, the last time we separated. When I saw him out in the •yard shooting craps with the negroes was a while before I went home. No; I am not asking for a divorce on that ground. Yes; I lived with him after I saw him shooting craps with the negroes; yes, lived with him as his wife after each one of these things occurred that I have testified about.
“Q. When was the last time you say he ever struck you or bruised you and called you bad names? A. Three or four days before I come home. Yes; I slept with him that night, and the next night, and did so practically every night clear on up until he took me over to his father’s. I didn’t leave him before that time because I didn’t have any way. Yes; my father and mother were over to see us on Sunday before that Monday he took me to his father’s house, but he said I couldn’t go back with them. No; I hadn’t made up my mind then to quit him. Q. Why didn’t you want to live with a man you loved? A. I hadn’t decided then. Q. Then it wasn’t because you didn’t have any way to go that you didn’t go? A. No. Q. And you continued to love him up until the day you got over to your father’s house and thought it all over? A. Yes, sir. * * * I didn’t tell my father about his treatment of me, because I thought he would turn and live a better life and be a man.”

In addition to the appellee’s testimony her . mother, Mrs. J. W. Davis, testified:

“My name is Mrs. J. W. Davis, and I am the mother of Mrs. Dessie Mahurin. I live five miles on the other side of Itasca, and have been living there 21 years. I remember the time my daughter and the defendant married, and I also remember the time when she came home. Since she came back home she has been residing at my home. She came home about 11 o’clock in the morning. When she came home that morning I noticed the condition of her arm; it looked to me like it had been twisted and bruised; looked as though it had been taken and twisted one way and then another, until it was knotty all over, and sores come there afterwards. * * * Yes; she had some risings on her arm; looked more like risings than anything, but they never would run; looked like it was bruised. She was in that shape when she came home, and I expect it was a month before I got them cured. X put poultices on them, and in fact everything that I thought would do them any good. Q. Treat them like risings? A. Tes, sir; they looked just like risings.”

The testimony of appellee on cross-examination in relation to why she lived with appellant after the assault on her the last time is inconsistent and somewhat contradictory to what she stated on direct examination, and it is upon her testimony that appellant bases his contention that she is not entitled to a divorce. In passing upon this question two issues’ were submitted by the court to the jury, one asked by appellant as follows:

“After the happening of the acts complained of by plaintiff did the plaintiff continue to live with the defendant as his wife up until the separation? Answer: Tes.”

The other issue was:

“After the happening of the assault, if any, by the defendant on the plaintiff on or about the 7th day of August, did the plaintiff voluntarily live and cohabit with the defendant as his wife? Answer: No.”

If the living together of appellee and appellant could warrant the inference that they cohabited during that time, we think such presumption is rebutted by the finding in answer to the second issue, “No,” that they did not cohabit. The jury evidently concluded that during that period there was no'cohabitation, and if there was cohabitation it was because appellee was so overcome with fear as to be incapable resistance. There was no testimony of cohabitation. The appellant stands in the position, while being charged with the outrageous offenses against his wife, of making no pretense of an excuse for his acts. The jury were justified in believing that if there was cohabitation, some reason existed; that it was not of her own volition. Besides, the jury are the exclusive judges of the weight of the testimony, and had the right to believe what part of her testimony was true and what was untrue. We are under the impression that when appellee was living with appellant after the last assault she was living under some kind of hallucination or abnormal condition that rendered her irresponsible for her conduct. We think the evidence in this case, aside from technicalities, shows beyond paradventure that justice and right entitle appellee to an affirmance of this judgment; and it is so ordered.

Affirmed.
      <®=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    SANTIKOS v. HAMILTON-TURNER GROCERY CO.
    (No. 6008.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 2, 1919.
    Rehearing Denied Feb. 5, 1919.)
    Bills and Notes <⅝==>94(1) — Consideration-Indebtedness or Third Party.
    Note executed to pay indebtedness of third party for goods furnished prior to execution of note, and not at request of maker, was without consideration and was not collectable.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by the Hamilton-Turner Grocery Company against Louis Santikos. Prom a judgment overruling a motion to enter judgment for defendant, he appeals.
    Reversed, and judgment rendered for defendant.
    Witt, Terrell & Witt, of Waco, for appellant.
    S. J. T. Smith, of Waco, for appellee.
   JENKINS, J.

This was a suit upon a note executed by appellant and payable to appel-lee, a private corporation. Appellee is engaged in the grocery business, and one Mel-latis was its customer. Mellatis failed in business, and was owing at the time something over $200 to appellee. Appellant is the nephew of Mellatis. At the request of W. H. Turner, vice president of appellee, appellant executed his note to appellee for $200, which was owing by Mellatis to appellee. The goods were not sold to Mellatis at the request of appellant, and there was no consideration for the execution of this note. Turner, who got the note from appellant, testified as follows:

“Defendant and I always had been pretty good friends at all times from the time he first started in Waco, from the time he ran a hamburger stand down on Eighth street. He advised with me in all business propositions of all character and kinds, taken up lots of my time, and I was fortunate enough to give him good advice. Mellatis is Louis’ uncle. We were on very friendly terms, all of us. So, when Mellatis went out of business, I asked Louis if he would see that I got my money. Louis said he would; so I got the note and gave it to him, and he signed it, and that was all there was to it. We had sold Mellatis’ groceries. I sold him the groceries before I had anything to say to Louis, the defendant. Mellatis owed me the debt. Louis was really under moral obligations. As I say, this may not be law; but on account of the many favors that I had done this boy in the past, he was absolutely under moral obligations all the time to take care of me on this debt. There never was a word spoken then (at the time I got the note) about Tom Mellatis, as to his paying or not paying, or anything else, or as to Louis paying in small amounts, or large amounts, or anything else. I mean about Tom paying small amounts or large amounts. I do not remember whether or not Tom’s name was mentioned.”

The note in suit was executed by appellant January 5, 1916. On February 3 1916, appellee’s bookkeeper entered a credit on the Mellatis account for $200, which he says was on account of this note. Appellant had nothing to do with the entry, and knew nothing about it. This is the substance of the testimony for appellee.

At the conclusion of appellee’s testimony, appellant moved the court to enter judgment in his favor, which motion was by the court overruled. In this we think there was error. The views of this court with reference to the liability of the party who executes a note for the debt of another, without any consideration, are fully expressed in Witt v. Wilson, 160 S. W. 309, in which opinion Mr. Justice Rice cites numerous authorities to sustain the proposition that such a note is not collectable. Upon authority of that case, the instant case will be reversed, and judgment here rendered for appellant.

Appellant’s testimony made a stronger case for himself. He testified that Mr. Turner told him that, if he would execute the note, so that Mellatis would think that he had it to pay, that Mellatis would pay it off in small amounts, and that he did not expect appellant to pay the note. Our decision herein, however, is based exclusively upon the testimony of appellee.

For the reasons stated, the judgment of the trial court is reversed, and judgment is here rendered for the appellant.

Reversed and rendered.
      —.TTnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    SOUTHERN PAC. CO. v. HENDERSON.

    (No. 915.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1919.
    Rehearing Denied Feb. 6, 1919.)
    1. Courts @=8 — Action Under Laws oe Other State — Federal Safety Appliance Act — Right to Sue.
    In a servant’s action for injuries, based on the defendant railroad’s violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.), the master’s liability was enforceable in courts of Texas, without reference to the laws of California, where the tort occurred.
    2. Master and Servant @=129 (6) — Federal Safety Appliance Act — Proximate Cause of Injury.
    A cause of action for' injuries under the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.) arises where the accident occurred when a string of cars ran down a line where not intended because of their becoming uncoupled, owing to defective couplers, and where a hand brake on the front car was out of repair.
    3. Depositions @=83(3) — Suppression — Grounds.
    In a servant’s action against master for injuries, the materiality of a letter from plaintiff, asking the witness to testify in the case, not being apparent, the witness’ failure to comply with request to attach it to his deposition did not furnish sufficient ground for suppressing deposition.
    4. Depositions @=90 — Effect oe Presence oe Witness at Trial.
    Where a witness was present at the trial by procurement of defendant, having been brought from California, and was sworn and placed under the rule, it was not an abuse of discretion to permit plaintiff to introduce the deposition of the witness.
    5. Depositions @=88 — Transcript oe Testimony on Former Trial.
    There is no rule requiring plaintiff to use-a transcript of the oral testimony given by a witness on a former trial, instead of his written deposition taken in the manner prescribed by law.
    6. Witnesses @=388(2) — Impeachment — Foundation.
    Where the proper predicate had not been laid to impeach the witness, the transcript of his evidence on a former trial was not admissible.
    Appeal from District Court, El Paso County ; P. R. Price, Judge.
    Suit by C. L. Henderson against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall, Kemp & Nagle, of El Paso, for ap-' pellant.
    Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.

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

   HIGGINS, J.

Henderson brought this suit against appellant to recover damages arising out of personal injuries. From a verdict and judgment in his favor, the defendant appeals.

Henderson was an employé of defendant, serving as a switchman in its yards in Los Angeles, Cal. On January 20, 1917, he was working in that portion of the yards known as “the Cornfield.” The crew of which he was a member had gone there to get some cars. He was standing near a switch which he was to throw. While so standing another string of cars unexpectedly came down the High Line. He was struck thereby and sustained severe injuries. There is evidence that this string of cars was a part of a train of cars that was being switched from the Midway yard to the Cornfield.- The train was being pushed, and whilst in motion a coupling became disconnected. The disconnected cars. moving by momentum, struck Henderson and inflicted bis injuries. As grounds of .negligence, it was alleged tbat tbe uncoupling of tbe cars was due to defective coupling appliances, and tbat tbe car which struck plaintiff was not equipped with efficient band brakes. There was one other ground of negligence alleged but was not submitted to tbe jury. Defendant pleaded tbat the courts of Texas bad no jurisdiction of tbe cause of action. It was pleaded that the injuries were sustained in California and while Henderson was engaged in intrastate commerce, tbat California bad a law known as the Workmen’s Compensation Insurance and Safety Act (St. 1913, p. 279), and tbat under this iaw, where an employé was injured by a railroad company in tbe discharge of duties not connected with interstate commerce, tbe Industrial Accident Board, created by said iaw, bad exclusive jurisdiction of all claims arising out of such injury.

Upon trial, the court gave a peremptory instruction to find against defendant upon its jurisdictional plea, and submitted the case upon tbe two grounds of negligence charged as above indicated and tbe defensive issues presented by defendant.

Error is assigned to tbe peremptory instruction to find against tbe plea to the jurisdiction. Tbe undisputed evidence shows tbat defendant was a common carrier and engaged in interstate commerce, and tbat tbe Los Angeles yards were used in making up and breaking up of trains handling interstate commerce. Tbe plaintiff alleged and proved a violation of tbe federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.) as tbe proximate cause of bis injury. This was tbe only ground of negligence submitted in tbe charge. In this condition of tbe record the court properly gave tbe instruction complained of. Under tbe pleading, evidence, and charge, plaintiff’s right of recovery was bottomed upon the Safety Appliance Act, and tbe California statute as to bis right and remedy was without application. Railway Co. v. Sprole, 202 S. W. 985; Railway Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874; Railway Co. v. Commission, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 665; Railway Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931.

Under assignments 6, 7, 8, and 9, it is complained tbat tbe charge should not have submitted any issue as to defective couplers and band brakes, because there is no evidence that they were defective, and for the further reason that, if such defects existed, tbe same is not shown to have been the proximate cause of tbe injury.

There is ample evidence to show defects in both coupling appliances and brakes. There is no use to quote it. We simply reier to the testimony of tbe witnesses Shoemaker and Bedor. As to proximate cause tbe testimony shows tbat tbe string of cars which struck 'Henderson became uncoupled by reason of the defective coupling appliance, and, having-become uncoupled, ran down tbe High Line, where they were not intended to go, and struck plaintiff.

As to the hand brake of tbe front car, it was shown to be out of repair, so tbat it could not be set. Tbe jury was warranted in finding tbat tbe string would have been stopped before it struck Henderson, if tbe brake could have been set by the men on tbe cars. It seems very clear tbat whether or not the defects complained of were proximate causes was raised by the evidence, and questions for tbe jury.

Tbe remaining assignments complain of rulings upon evidence. None of them present reversible'error. In view of their number, tbe reason for overruling same will be but briefly indicated. Tbe materiality of tbe letter which tbe witness Shoemaker failed to attach to bis deposition is not apparent. He was asked if be had received any letters from plaintiff or his attorney. He replied tbat be had received a letter from tbe attorney asking him to answer questions, and this letter was attached; that he received one letter from plaintiff, asking if be would answer questions. Tbe materiality of a letter of this nature is not apparent, and the failure to comply with a request to attach it furnished no ground for suppressing the deposition. It was evidently a letter inquiring of the witness (who lived in Chicago) if he would testify.

As to those complaining that certain interrogatories were leading and suggestive of the answer desired, the questions are not regarded as subject to the objection made. Railway Co. v. Jamison, 12 Tex. Civ. App. 689, 34 S. W. 674; Long v. Steiger, 8 Tex. 466.

The witness Bedor was present on the trial by procurement of defendant, having been brought from California. He was sworn and placed under the rule as one of defendant’s witnesses. Under the circumstances it was not an abuse of discretion on the part of the trial court in permitting plaintiff to introduce the deposition of the witness theretofore taken, instead of requiring that he be placed on the stand. Holt v. Guerguin, 106 Tex. 185, 163 S. W. 10, 50 L. R. A. (N. S.) 1136; Railway Co. v. Renken, 15 Tex. Civ. App. 229, 38 S. W. 830.

As to the twentieth assignment, we know of no rule which would require the plaintiff to use a transcript of the oral testimony given by the witness Bedor upon a former trial, instead of his written deposition taken in the manner prescribed by law.

As to assignments 21 to 24, the proper predicate had not been laid to impeach the witness, and therefore the transcript of his evidence on a former trial was not admissible. The witness was present- at the trial by procurement of defendant.

Affirmed.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    LOTTO v. STATE.
    (No. 6166.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1919.)
    1. ATTORNEY AND CLIENT @=>38 — DISBARMENT op Attorney — “Dishonorable Conduct.”
    An attorney, who remarked that “Germany is going to win the war, and I hope she will,” was not guilty of “dishonorable conduct” within Rev. St. 1911, art. 325, relating to disbarment; such- conduct being clearly outside the scope of the attorney’s relations.
    [Ed. Note. — For other definitions, see Words and Phrases, Dishonorable Conduct.]
    2. Statutes @=>225¾ — Re-enactment—Former Construction by Court.
    Where a statute, after being once construed by the court of final jurisdiction, has been reenacted without material change, such construction becomes a part of the new law.
    3. Attorney and Client @=>37 — Constitutional Law , @=>199 — Construction — Ex Post Facto Laws — Disbarment.
    Where a statute giving grounds for disbarment of an attorney was construed by the court of final jurisdiction and was thereafter re-enacted without material change, to give the statute a new construction, disbarring an attorney on a new ground, would be in effect disbarring the attorney by a law not previously-prescribing the offense.
    4. Appearance @=>24(5) — Defects in Service-Waiver.
    In an action to disbar an attorney, appearance in court was a waiver of any defects in the service.
    5. Appeal and Error @=>216(5) — Matters Reviewable — Requested Instructions — Filing — Inspection by Counsel.
    Assignments, complaining of refusal to give special instructions, cannot be considered, where it does not appear that they were requested after inspection by opposite counsel, or were signed or filed, refused or given.
    Appeal from District Court, Duval County; V. W. Taylor, Judge.
    Suit by the State of Texas to disbar F. Lotto, an attorney. From a judgment of disbarment, the defendant appeals.
    Reversed and remanded.
    F. Lotto, of San Diego, for appellant.
   SWEARINGEN, J.

Upon the complaint filed by a practicing attorney 'this suit was instituted in the name of the state to disbar appellant, a licensed attorney. Appellant answered, demurring to the sufficiency of the complaint and denying the allegations thereof. After a general charge the jury returned its verdict, finding the appellant guilty of the dishonorable conduct alleged. Judgment was rendered disbarring the appellant.

The pleading and evidence will appear in the discussion of the assignments of error.

The general demurrer directed against the petition was overruled, which action is the substance of the complaint presented in the fifth assignment. The insufficiency of the evidence to sustain the charges pleaded is the contention of the fifteenth assignment. While, of course, the evidence cannot be considered in- determining the sufficiency of the petition, yet, we believe, the two assignments may be more briefly disposed of in one discussion.

The offenses for which the name of an attorney at law may be stricken from the roll of the courts of this state are prescribed by Revised Statutes, arts. 323, 325. Thé ground alleged in the case at bar is the “dishonorable conduct” stated in article 325. No fraud, immorality, or conviction of crime is alleged. The dishonorable conduct alleged in all four of the counts is of the same nature, but that set out in the first is the more serious, and it will suffice to discuss that. This first count alleged is that appellant was guilty of dishonorable conduct as an attorney ’at law in this: That he remarked in the presence and hearing of John O. 'North that “Germany is going to win the war and that I hope she will.” It is alleged that appellant is a citizen of the United States of America, which was then at war with Germany. The evidence in support of the charge was the testimony of John O. North for the state, and of appellant in defense. Mr. North testified as follows:

“I said ‘Now, Mr. Lotto, right down in your heart, don’t you hope Germany whips the United States?’ and he said: ‘Yes, by God, I do. Why shouldn’t I? * * * I didn’t mean just that, but you made me mad.’ ”

Mr. North, on cross-examination, testifying concerning the conduct of appellant and referring to the same remark, said that he asked appellant if he were with the United States, to which appellant answered, “Yes.” Mr. North further asked, ’’Would you be to that extent that you would fight for the United States?” To which appellant made no reply.

The version of this conversation, testified to by appellant, is that after the United States had declared war against Germany Mr. North questioned appellant, “Well, how do you feel about Germany?” to which appellant answered, “I regret the war; Germany is my native land, and I regret the war between my adopted country and my native land.” Mr. North, “So, in that case, you want Germany to win the war?” to which appellant made no answer.

In deference to the verdict of the jury we find that the appellant did say to Mr. North that he hoped his native country, Germany, would whip the United States, his adopted country, in the war then pending, which remark appellant immediately qualified with the statement that he did not mean just that.

The conduct described is clearly outside the scope of appellant’s professional relations. No duty to a client, to a brother lawyer, or to the court is involved. The conduct of which appellant was guilty is conduct in his private capacity, and reflects upon him as an individual citizen of his adopted country, to which he had sworn allegiance and by which he was protected and honored. The statutory meaning of the words “dishonorable conduct” has. been clearly defined by the Supreme Court. In 1854 the .Legislature of Texas amended the statutes of this state prescribing causes for disbarment of attorneys at law, and in section 2 declared that:

“No court shall strike an attorney or counselor at law from the rolls for contempt, unless it involve fraudulent or dishonorable conduct or malpractice.” 3 Gam. Laws of Texas, 1562.

The fraudulent or dishonorable conduct therein referred to was construed by the Supreme Court, in 1858, as follows:

“The conduct here referred to must mean conduct as an' attorney, not merely as a person. It is only his official conduct with which the court is concerned. It is the prostitution of his office to corrupt practices that can bring him in collision with his professional fidelity.” Jackson v. State, 21 Tex. 668.

The present statute (article 325) prescribes the grounds for disbarment in the same words as the amendment of 1854. This statute was re-enacted the last time in 1911, long after the construction given the language by the Supreme Court. This conclusively settles the statutory meaning of the words, “dishonorable conduct.” The rule is stated thus:

“Where a statute * * * after being once construed by the court of final jurisdiction, has been re-enacted without material change, such construction becomes a part of the-new law.” Scott v. State, 6 Tex. Civ. App. 345, 25 S. W. 338.

Furthermore, no new meaning could be given the words, “dishonorable conduct,” for the purpose of disbarring appellant for that would be, in effect, disbarring appellant by a law not previously prescribing the offense, which is forbidden by the Constitution. Ex parte A. H. Garland, 4 Wall. 333, 18 L. Ed. 366.

When the loyal citizens of this country were anxiously bearing the deprivations and sorrow, anticipating the dreadful issue with the most ruthless warriors of all history, which meant the sacrifice of countless treasure, the suffering of intense hardships, death, and permanent mangling by the noblest and best of their friends, relatives, and sons, it is not surprising that appellant’s expressed hope that all would be in vain, that, in spite of the agony and carnage upon the battle fields, our country would be defeated and left to supplicate mercy from pitiless conquerors; it is not surprising that such a wish aroused those intrusted with the protection of their loved ones and their country, and determined them to end such hostile and dangerous expressions. It is to the everlasting credit of this community that it appealed to the orderly courts of our country instead of an improvised tribunal of a vigilant committee.

Occasionally the established law has seemingly failed to afford a remedy adequate to an unusual situation. So it appeared in this case. The defect was speedily corrected by prompt state and national legislation, which pronounced such conduct a crime and provided a penalty. But such laws were enacted after the commission of the conduct here complained of, and because of our all-protecting Constitution, these laws could have no retroactive effect.

Unable to deal with appellant as an individual, it doubtless seemed proper to at least strip him of his lawyer’s license, that badge of character, integrity, and honor for which the profession of law must ever stand to properly sustain its position as an arm of our judiciary. Hence this disbarment proceeding. But, because the phrase, “dishonorable conduct,” as used in the statute, cannot be and has never been construed to include such conduct, as here charged, of an individual in his private capacity, though that individual is a lawyer, we are compelled to \ hold that appellant cannot be stripped of his license upon the complaint before us.

The three other counts of the complaint are probably less culpable than the one above described, and furnish less basis for disbarment.

The general demurrer should have been sustained, for which reason the fifth assignment is sustained.

Because the evidence sustains the charges pleaded, we overrule the fifteenth assignment.

The assignments attacking the citation are overruled, because the appearance in court was a waiver of any defects in the service. Those assignments complaining of the refusal to give special instructions are overruled because it does not appear that they were requested after inspection by opposite counsel, nor that they were signed or filed, refused or given.

Those assignments relating to the admis- ' sion of testimony become immaterial in view of our disposition hereof. The assignment complaining of tlie exclusion of the letter is oVerruled.

Tlie judgment is reversed, for the reason that the general demurrer should have been sustained. The cause is remanded.
      <Ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BROWN v. McKINNEY et ux.
    (No. 907.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 16, 1919.
    Rehearing Denied Feb. 6, 1919.)
    1. Deeds <®=>163 — Forfeiture— Defense — Useless Act.
    Where plaintiffs conveyed lots to defendant in consideration of certain cash and the construction of a business building on the lots, the deed granting use of an alley over plaintiffs’ land and providing that the title to the premises should revert if building were not constructed, and defendant refused to construct the building because he had subsequently bought other property, plaintiffs were not precluded from recovering the premises because they had not opened the alley, since this would have been useless under the circumstances.
    2. Deeds <⅞=^166 — Forfeiture—Waiver.
    Mere indulgence does not operate as a waiver of grantor’s right to claim and enforce a forfeiture for grantee’s failure to construct a building upon premises conveyed within time agreed, where no intervening equity has arisen.

      3. Evidence; <§=3590 — Interested Witness.
    Ordinarily it is improper for' the court to .assume as a fact a matter proven only by the uncorroborated testimony of an interested witness.
    4. Trial <®=>170 — Peremptory Instructions —Uncorroborated Evidence.
    Where matters were proven by the uncorroborated testimony of plaintiff, and defendant, with full knowledge thereof, was present in court, but did not dispute such testimony by any evidence, it was not error to give a peremptory instruction for plaintiff.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by C. M. McKinney and wife against Edgar D. Brown. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Jno. L. Dyer and J. Jr. Woodson, both of El Paso, for appellant.
    Ware & Norcop, C. H. Kirkland, and C. W. Croom, all of El Paso, for appellees.

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

   HIGGINS, J.

By deed dated February 6, 1914, McKinney and wife conveyed to appellant lots 6, 7, and 8 in block 6 in the town of Clint, El Paso county. By the deed a right of way was also granted over a strip of land 10 feet wide across lots 1 to 5, inclusive, in said block. This right of way extended from a street to the rear of lots 6, 7, and 8. The deed recites that it was in consideration of $1 and other valuable considerations paid and secured to be paid.- The deed contains this further provision:

“The said Edgar D. Brown, as a part of the consideration for the purchase price of the property hereby conveyed, does hereby agree and obligate and bind himself to begin the construction of a business building on the property hereby conveyed at a period of time not later than the 1st day of July, 1914, and after said alley is opened as aforesaid, and after said construction of said building has begun, he will use reasonable diligence to complete the same, and that same will be completed by him within a reasonable and practical time thereafter; and should the said Edgar D. Brown fail or neglect to begin the construction of said building and complete the same within a reasonable time, as aforesaid, then it is expressly agreed and understood that the title to the above-described property will revert to the grantors herein, and title to said property thereupon will become vested in the said grantors as in their first and former estate.”

The alley mentioned in the foregoing quotation refers to the aforesaid 10-foot right of way.

Brown never began the construction of the building on the property, and on May 14,1917, appellees sued to recover the premises. The case was tried before a jury on February 4, 1918, and a peremptory instruction was given in favor of appellees. Verdict was returned and judgment rendered in accordance with the instruction.

Upon trial the deed was offered in evidence, and plaintiff O. M. McKinney testified: That the building referred to in the deed was never begun. He had a conversation with Brown, the defendant, in reference to starting the building. That after Mr. Brown made the deal for other property he came to witness and asked what he was going to do in the matter, and witness told him he did not know; he supposed he would have to require him to live up to the contract. This was very soon after the purchase of the property, but he was unable to say whether it was before or after July 1,1914, but he knew it was after the deal had been closed for the other piece of property. The other property referred to is a store now occupied by Brown. Brown told him he would not put up the building; that property in Glint had depreciated, and he thought he had paid enough for it. He gave as his reason for not constructing the building that he had purchased the other property and was not able to put up another building; that the real consideration for the execution of the deed was the erection of the building. He had refused to sell the lots for a money consideration. He wanted a building on the property. The store building that Brown was to build and the money paid was the consideration for the deed. That it was advantageous to him to have the building constructed. That was his main idea in selling the lots. The construction of the building was valuable to him because he owned the property adjacent to the premises conveyed, the same being about 20 acres. There were two general merchandise stores in the town of Clint and some smaller places — the Edgar D. Brown and Clint Mercantile Company Stores. The Mercantile Company store was just across the street from the property, and Mr. Brown’s store about 200 yards east. Between the stores there was a row of small buildings occupied by a drug store, a barber shop, a little cash grocery and the post office. If Mr. Brown had moved his business onto the lots sold him, it would have changed the business center of the town. It would have been of great advantage to witness’ property and would have enhanced the value thereof. Mr. Brown was conducting a general merchandise store, renting from J. J. Schairer. He was to build a store on the property conveyed, but did not do it, because he purchased the Schairer property. Brown also ran a banking business. If he had moved upon the property conveyed, he would have made that the principal business district of the town. The building that was to be placed on the property was to be occupied by Brown and used for a general store and banking ousiness. The second time that Brown spoke to him about the matter of refusing to move, he said his attorney had told him, on account of the alley not being opened, witness could not collect anything and could not get back anything. Witness could not say whether this conversation was before or after July 1st. They were talking about settlement and trying to settle, and Brown turned it off by saying :

“Well, my attorney advises me on account of that alley not being opened, that I could not collect anything.”

Witness had not opened the alley because nothing had been done towards the building. The alley could have been opened at any time. There was a hay shed over the alley with no sides to it. The alley ran through this shed, and there were two wire gates on each end of the shed. The gates were just wires at each end of the shed — just enough to keep stock in. Brown made a thousand or two adobes there on the ground, anu then hauled them away after he had purchased the other property. He hauled them down to the other property to make some improvements. Brown spoke about having some plans for a building. He never said anything about the alley being open. He never gave notice that he wanted him to clear the alley or open same. The shed remained until October, 1917. Witness removed it the latter part of October or the first of November, 1917. Brown never mentioned that he desired the alley or anything be done to it until the conversation came up in which he referred to what his attorney had told him. Witness was ready at any time to clear the alley up. He agreed with Brown at the time he bought the lots that he would clear the alley. He agreed to take the building down. He did hot tear it down, because there was no occasion to tear it down. He agreed to tear it down at any time, and it could have been tom down in a day. He would pay the bill at any time, or Mr. Brown could take it down himself. He told Brown he would tear out that building. “I told him at the time we made the agreement I would tear it down.”

The testimony of McKinney is quite lengthy, but we deem it unnecessary to further detail same, as the foregoing is all that is material to a consideration of the appeal. In this connection, however, it should be stated that the testimony of McKinney shows that, instead of a cash consideration of $1, as recited in the deed, there was in fact a cash consideration of $1,000 paid by Brown. The judgment discloses that Brown was present upon the trial, but he did not testify, and offered no evidence whatever in defense of the suit, except to read in evidence the plaintiff’s original petition in the case filed May 14,' 1917, which is in the ordinary form of an action in trespass to try title for lots 6, 7, and 8.

Appellant presents the proposition that one who is himself in default in the performance of his contract cannot forfeit under the terms thereof, and since McKinney admits he- had not opened the alley, he could not recover, because Brown was under no obligation to begin the building until the alley was opened.

The testimony of McKinney plainly showed that Brown’s refusal to begin and construct the building was because he subsequently bought other property for the location of his business and because his attorney had advised him that he did not have to comply with the provision in the deed which required him to build on account of the alley not having been opened. It is plainly apparent from McKinney’s testimony that it would have been vain and useless for him to have torn down the shed and removed the flimsy gates obstructing the alley, for, if he had done so, it would not have induced Brown to comply with his contract. The law does not require the performance of a useless act in order that one may insist upon his rights. Brown had other reasons for his failure to build, and the opening of the alley would have been wholly useless and an unnecessary expense.

Nor do we think there is any merit in the contention that appellee has waived his right to recover by failing to promptly claim and enforce the forfeiture. Mere indulgence- / does not operate as a waiver. The indulgence extended has not in any wise operated to the detriment of Brown, and no intervening equity of any kind has arisen. The cases relied upon by appellant upon this phase of the case show an intervening equity of some kind or detriment arising out of the indulgence. There is nothing in this record to show that Brown was in any wise led to believe that McKinney had waived his rights.

The second proposition under the second assignment is:

“Where a specified time is fixed by contract for the doing of an act, and the doing of an act within a fixed time is prevented by the other party, or is waived, then a reasonable time thereafter is allowed for the doing of that act, and what is a reasonable time is for the jury to determine.”

Replying to this, it is sufficient to say that under the evidence, there was no waiver nor is there any evidence to show that McKinney prevented Brown from performing his agreement. Furthermore, in the absence of any explanation from Brown, the court was authorized in assuming as a matter of law that he had unreasonably delayed in the performance of his agreement.

In view of this record, it seems plain that the agreement to build upon the property was a material part of the consideration for the conveyance; that Brown has breached that agreement, and to permit him to hold the property would deprive McKinney of the same without paying the agreed consideration. The law does not look with favor upon efforts to hold property in this manner.

There is only one other question to which we need advert. This is the contention that the court should not have given the peremptory instruction because the facts upon which it is based were proven only by the testimony of plaintiff McKinney. Ordinarily, it is improper for the court to assume as a fact a matter proven only by the uncorroborated testimony of an interested witness. Thomas v. Saunders, 150 S. W. 769. But this rule is not of such absolute and universal application as in all instances of its violation to require reversal. Bank v. Friar, 167 S. W. 261.

The record shows that Brown appeared at the trial in his proper person. If there was any untruth in the testimony of McKinney, he could have readily disputed it. His failure to comply with his contract certainly called for some explanation upon his part. He sat silent and did not contradict one word of McKinney’s testimony. Under the circumstances, there was no error upon the part of the court in assuming as sufficiently proven the facts testified to by McKinney, and the peremptory instruction was properly given. City of San Antonio v. Rollins, 127 S. W. 1166; Railway Co. v. Stone, 58 Tex. Civ. App. 480, 125 S. W. 587; Hansen v. Williams, 113 S. W. 312.

Affirmed.
      «gs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HABI/, J.

text:
    GOFFINET et al. v. BROOME & BALDWIN.
    (No. 1450.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1919.)
    1. Landlobd and Tenant @=>231(2) — Action fob Rent — Assignment of Lease — Consent-Evidence.
    In lessee’s action against sublessee on express covenant to pay rent, defended on ground that sublessee’s assignee had been accepted by owner as tenant and by lessee as their lessee, the check from sublessee’s assignee to owner for rent installment was admissible in evidence to show lessor’s acquiescence in assignee’s lease and acceptance of assignee as tenant.
    2. Landlobd and Tenant @=>231(2) — Action fob Rent — Evidence.
    In action for rent to November 1, 1915, evidence, as to intention of owner as to use of property in November, 1916, was inadmissible.
    3. Landlobd and Tenant @=>231(6) — Rent-Assignment of Lease — Sufficiency of ■Evidence — Acceptance of Assignee.
    In lessee’s action against sublessee on express covenant to pay rent, where defense was that owner and lessee had accepted sublessee’s assignee as lessee, evidence held sufficient to show such acceptance.
    4. Landlord and Tenant @=>208(1) — Assignment of Lease — Liability of Assignor.
    Assignment of lease by lessee does not affect his liability on an express covenant to pay rent.
    5. Landlord and Tenant @=>193 —Rent — Cancellation of Lease — Vacation of Premises.
    Where tenant was entitled to nine months’ notice of cancellation of lease, but in being notified of such cancellation was given right to immediate cancellation of lease and surrender of land, the tenant’s vacation of land, without notifying owner or sublessee, from whom he had purchased lease, of his acceptance of owner’s proposition to immediately end contract, was not sufficient to relieve tenant or sublessee of liability for rent.
    6. Appeal and Ebrob @=*1056(1) — Review-Harmless Ebroe.
    In lessee’s action against sublessee on express covenant to pay rent, where defense was that owner and lessee had accepted sublessee’s assignee as lessee of land, exclusion from evidence of check from assignee to owner for rent installment held not alone sufficient to warrant reversal of judgment for plaintiff.
    7. Continuance @=*26(11) — Absent Witness —Diligence.
    Where no effort had been made to take deposition of absent witness, a resident of another county, no such diligence had been exercised to procure the evidence of such witness as to justify postponement.
    Appeal from 'Hall Comity Court; S. G. Alexander, Judge.
    Action by Broome & Baldwin against P. J. Goffinet and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    T. T. Clark, of Memphis, for appellants.
    Elliott & Moss, of Memphis, for appellees.
   HABI/, J.

This is an action by appellees, upon a written contract, executed by appellants, wherein appellants agreed to pay ap-pellees the sum of $630 in cash, at Memphis, Tex., semiannually, as rents upon certain lands described in the contract, the first payment to be made May 1, 1914, and the second November 1, 1914, and semiannually thereafter on said dates until the expiration of the lease. The land in question had been leased by appellees from one Joe J. Mickle, with authority to assign the lease. One paragraph of the lease is as follows:

“It is understood and agreed that should the party of the first part sell during the term of this lease contract the above-described premises, and should desire to terminate this lease contract and repossess said property for those to whom he had sold, then he shall give to the party of the second part written notice of such sale, and his desire to terminate this lease contract and under these conditions the party of the second part hereby agrees to terminate this lease contract on the first day of January following the above-described request and surrender possession of said property, providing this gives nine months’ notice for possession. However, in such ease party of the second part shall have not less than nine months to surrender possession though it may be necessary to run over the hirst day of January following said notice and in such event the rent on the aforesaid property shall be paid only to the time of the expiration of said notice and surrender of said property.”

The contract between appellants and appel-lees seems to be identical in its terms with the lease obtained from Mickle, the owner of the land, by appellees; and while, of course, appellees had no right to sell the land, appellants have acquiesced in the right of Mickle to sell and dispossess them in the event notice was given, as provided in the above-quoted paragraph of the contract. About July 16, 1915, Mickle addressed a notice to appellees, demanding possession under his contract, but no such notice was ever given to appellants. The letter notifying appellees was not a positive demand for possession. The latter states that the lands have been sold, and that the lease will terminate after nine months from its date, and proceeds:

“If, however, you prefer to cancel the lease contract at this time the rents will stop now. I will accept of said cancellation but if you require the lease can continue from nine months from this date as provided in the contract. You will kindly advise me promptly if you desire the lease to be canceled at this time or prefer waiting the expiration of the nine months, which would be April 15, 1916.”

It appears that, after the sublease of the land to appellants by appellees, appellants paid one semiannual installment of the rent on May 4, 1914, and the second installment on November 3,1914. On March 25, 1915, by written transfer, appellants assigned their lease to one J. D. Lard, who paid the first semiannual installment of rent on the contract, which entitled him to possession until November 1, 1914, but that the installment due on said last-named date was never paid, and this is the installment which is sought to be recovered in this action. Appellants answered, denying that they owed appellees any rent whatever, but that they had paid all sums due by them under the terms of the contract, while the leased premises were in their possession; that they had duly assigned the lease to one J. I>. Lard, March 25, 1915, and had reserved no reversionary interest or rights in the premises; that the said Lard, the assignee, had paid the semiannual installment of rent due May 1, 1915; that said assignment was transferred with the knowledge and consent of appellees, whereby appellants were released from any liability for rents; that Joe J. Mickle, the owner of the land, had accepted J. D. Lard as a tenant; that appellees had recognized and accepted Lard as their lessee, and notified Lard under the terms of the contract of the exercise of the option to sell the premises, but had given Lard the option of retaining the premises until April 15, 1916, or of vacating at once. That appellants were never notified that ap-pellees or Mickle had exercised the option to sell and had demanded possession; that Lard had vacated the premises prior to the first day of November, 1915, the time to which his semiannual payment of rent entitled him to possession under the contract, and that, by reason of his having been notified that he might vacate at once, he had immediately vacated and paid the rent due up to the time he delivered possession. Lard was not made a party to the suit, nor did he testify. The verdict of the jury is in favor of appel-lees “in the sum of $630.00, less $52.50, with-interest from November 1, 1915, to date.”

Appellants first assign as error the action of the court in refusing to admit in evidenee-the check for $630, dated May 10, 1915, with which Lard paid appellees the first semiannual installment of rent. This check should have been admitted as tending to show that appellees had acquiesced in the assignment of the lease and accepted Lard as the tenant.

The second assignment is based upon. the court’s action in refusing to permit Joe J. Mickle to answer the following question:

“Did you buy and ship a number of cattle from South Texas to Miami, Tex*, in November, 1916, to put on the leased land now in controversy?”

There was no error in this ruling. Lard had abandoned the land prior to November, 1915, and the matter in controversy was the collection of rent alleged to have been due and payable November 1, 1915. Any intentions entertained by Mickle with reference to the use of the property in November, 1916, are wholly foreign to the controversy.

The third, fifth, sixth, and ninth assignments will be considered together. - The question is whether appellants, as sublessees of appellees, Broome & Baldwin, bound by an express covenant to pay them rents, are liable for rents accruing after they had assigned the lease to Lard, with the knowledge of appellees. We find in the statement of facts a letter from. Joe J. Mickle to Lard, dated July 20, 1915, as follows:

“We served notice on Messrs. Baldwin & Broome of the cancellation of the lease contract on the Roberts county ranch, which you occupied and stated to them that if they desired the contract could be canceled so as to expire at once, or any time this month; or if preferable, to terminate nine months from the date notice was given, which would make it mature April 15, 1916. I have just had a talk with Mr. Baldwin and he states that he neglected to say to you that the cancellation could take effect at this time if you so desire and I write to know if it would suit you to cancel the contract during this month or if you prefer to hold it until April 15, 1916.”

Under the decision of the Supreme Court, in the case of G., C. & S. F. Ry. Co. v. Settegast et al., 79 Tex. 256, 15 S. W. 228, we think the evidence is sufficient to show that both Mickle and appellees had accepted Lard as the lessee of the land. In fact, we fail to find in the record any direct or positive evidence to the contrary. So the question then under these assignments, differently stated, is, Did the acceptance of rents from Lard and the recognition of Lard as the as-signee of the lease from appellants, as a matter of law, release appellants from all liability upon their express covenant to pay rents? In Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974, Judge Fly says:

“The rule is that when a lessee, with the consent of the landlord, assigns the lease for the term, the assignee becomes charged with the rent, and the original lessee is no longer liable for the rent unless it be specially agreed otherwise.”

The first case cited in support of the holding is Loustaunau v. Lambert, 1 Tex. Civ. App. 434, 20 S. W. 937. The opinion in the Loustaunau Case was written by Judge Collard, who was then a member of the Third Court of Civil Appeals, and in which it is said:

“When Wilson became the owner of the lease, he assumed the obligations of the original lessee, as he was bound by law so to do; and upon the transfer of the lease to Moke, he in turn became so bound; and any fact tending to show that the landlord recognized such substitution was legitimate. Their acceptance of either of them as lessee, or as the party to whom they should look for payment of rent, such party being bound so to do in law or by contract, amounted to a waiver of lien upon the goods of the original tenant.”

The suit was instituted by Mary Lambert and others, creditors of Richard Lambert, against Loustaunau & Co., to enjoin Lous-taunau & Co. from executing a judgment by the said Loustaunau & Co. against Richard Lambert, in the sum of $2,625, and to restrain them from receiving and collecting from the clerk of the court said sum, which had been realized from the sale of the stock of goods belonging to Richard S. Lambert, and levied upon by Loustaunau & Co. under a distress warrant for rents due and to become due to them from Richard S. Lambert. It appears that Lambert became insolvent and had absconded, and that Wilson became the owner of the leasehold estate, and that with the consent of Loustaunau & Co. Wilson had leased the premises to Moke for the unexpired term. It further appears that Loustaunau had received rents from Moke for one month. It further appears that Mrs. Lambert, together with other creditors of the absconded debtor, Richard S. Lambert, recovered judgment and foreclosed their attachment liens upon the goods levied upon. The plaintiffs asked the court to charge the jury:

“That if they find from the evidence that subsequent to the lease by Loustaunau & Co. the said lease was assigned and transferred to one Ben Moke, by and with the consent of said Loustaunau, or by them, and that said lease is for the whole of the unexpired term of the Lambert lease, or any part thereof, provided that you find that said Ben Moke was accepted by Loustaunau in lieu of Richard S. Lambert’s lease, then you will find for the plaintiffs.”

This charge was given, and is made the basis of the fifth assignment of error. In discussing the action of the court, Judge Collard said:

“The expression, ‘or any part thereof,’ should possibly not have been used in the charge, because .the undisputed evidence shows that the entire unexpired term was assigned to Moke, which, as we have before seen, rendered him liable for the performance of all the undertakings of the original lessee, for rent past due and unpaid as well as that to become due, the acceptance of such obligations by the landlord in legal effect being an acquittance of Lambert and a release of the rental lien upon the goods on the rented premises.”

This holding seems to sustain the rule announced by Judge Fly in the Ascarete Case. The next case cited by Judge Fly as sustaining the rule is Giddings v. Felker, 70 Tex. 176, 7 S. W. 694. That was a suit by Gid-dings against Hardin and Felker to recover rent for land leased to Hardin, and subsequently subleased by Hardin to Felker, without the consent of Giddings. The trial court found that Felker did not absolutely agree to pay the rent that Hardin had contracted to pay plaintiffs, unless he should realize from the crops to be raised on the place a sufficient sum to enable him to do so. The Supreme Court, speaking through Judge Malt-bie, said:

“The question for determination is whether, under the facts of this case as found by the court, judgment should have been rendered against Felker for the sum that Hardin had agreed to pay. According to the findings Felker is subtenant and not liable to appellants for rents unless by virtue of his undertaking with Hardin. Wood on Landlord and Tenant, 545, 547; Harvey v. McGee, 44 Tex. 412. But if Hardin had assigned his term, Felker then would have been liable upon all the terms of the lease.”

In that case the court makes no comment whatever, nor announces any rule as to the liability of Hardin, except to affirm the judgment. The case was tried by the court, resulting in a judgment against Hardin for the full amount of the rent agreed to be paid by him. It is not, on our opinion, authority for the rule announced by Judge Fly in the As-carete Case. The third ease cited by Judge Fly is Le Gierse v. Green, 61 Tex. 128. The facts of that case necessary to be considered are that Le Gierse & Co. became the assignee of a lease entered into between Green, as landlord, and Bean Bros. & Hursch, as tenants, and Judge Stayton held that as such assignees they became liable to pay the rents in accordance with the agreement made between the landlord and the original lessees. Green had sued Le Gierse & Co., G. W. Bird & Co., and Focke & Wilkins, to recover the rents due under the Bear Bros. & Hirsch contract, alleging that all of the defendants had become purchasers of the leasehold interest of Bear Bros. & Hirsch. Le Gierse & Co. contended that they had leased the property by independent agreement from Bear Bros., under which they were authorized to collect the rents and apply the proceeds to the satisfaction of debts due them as the cerditors of Bear Bros. & Hirsch. The suit resulted in favor of plaintiffs against the defendants, and judgment was rendered in the sum of $3,000. Under the rule announced by Judge Fly, Bear Bros. & Hirsch would have been released, but Judge Stayton said:

“The effort of Green to 'collect from Bear Bros. & Hirsch was but the exercise of a legal right; for they were bound to him by their contract, and its exercise could in no way have misled or prejudiced the appellants, but would have been to their benefit if successful.”

Our investigation has convinced us that the weight of authority in other jurisdictions is against the rule announced by Judge Fly, and this is why we are discussing the authorities cited by him to sustain his holding. The rule announced in the Ascarete Case is followed in Kennedy v. Groves et al., 50 Tex. Civ. App. 266, 110 S. W. 186, in which Judge McMeans says:

“There is no doubt that the acceptance of Groves by Wilson as lessee under Kennedy would, in the absence of evidence showing a contrary intention, operate as a relinquishment of his landlord’s lien upon the property of Kennedy remaining on the rented premises.”

In Demetri v. McCoy, 145 S. W. 293, Chief Judge Pleasants says the evidence shows that McCoy leased the premises to appellant, and that appellant sold out his business to Lawrence, who paid rents to appellee’s agent for several months, beginning with February, 1908; that when the February rent became due plaintiff sent a,, receipt for the rent to his agent Bickford, who presented it to Lawrence; that Lawrence refused to pay the rent unless the receipt was made out in his name. Upon being notified of this fact plaintiff inserted Lawrence’s name in the receipt in lieu of the defendant’s and that receipts for rent for the months of March and April were made to Lawrence, as the rents were paid by iiim. McCoy testified that he never consented to accept Lawrence as his lessee and release appellant Demetri from his contract ; that when he was notified that Lawrence wanted the receipt made out in his name he supposed Lawrence had become a partner in the business. Chief Judge Pleas-ants says that:

“The evidence set out is sufficient to sustain the finding of the trial court that appellee did not agree to release the appellant from his contract and accept Lawrence as his lessee. Ap-pellee swears that he made no such agreement, and he is corroborated by Lawrence, who swears that he did not assume the obligations of the contract. If Lawrence was insisting’ on the right to hold the property as sublessee and offering to pay the rents, it may be that under the rule announced in the cases of Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974, and Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228, appellee, having accepted rents from him for several months, would not be permitted to deny him the right to hold the property for the term of the lease. But no such question is presented in this case. The acceptance of rent from Lawrence for several months would not of itself release the appellant for the balance of the term; nor is it conclusive evidence of the fact that appellee agreed to release the appellant. The question is one of fact.”

That an assignment by the lessee does not affect his subsequent liability upon the express covenants contained in his lease is sustained by such an overwhelming weight of authority in other jurisdictions that we feel constrained to dissent.from the holding of Judge Fly in the Ascarete Case, and we incline to the opinion that the language quoted from the Le Gierse Case shows that Judge Stayton also entertained the contrary view. We will not unnecessarily .prolong the opinion by quoting at length from the authorities which we think justify us in our holding, but refer to 1 Tiff. L. & T. § 157 (2), p. 982; 2 Underhill on L. & T. § 650, p. 1092 ; 24 Cyc. pp. 1177, 1178; 16 II. O. L. §§ S43, 345, 347; Kanawha-Gauley Coal & Coke Co. v. Sharp, 52 L. R. A. (N. S.) 968, note. Appellants insist that the court erred in not giving their special instruction No. 1. This instruction is appellants’ construction of that term of the contract which permitted the lessors to terminate the lease by giving nine months’ previous notice, and the instruction is in part as follows:

“I charge you that if you find and believe from the evidence that before the 1st day of November, 1915, the owners of the land notified the defendants and the said J. D. Lard,'who had possession of same, that they had sold said land and had decided to terminate the lease, and that after receiving said notice the said J. D. Lard did vacate and surrender said land in question, then you are instructed that no further sums are due under said contract, and you will find for the defendants, and so say by your verdict.”

Mickle had requested Lard to notify him promptly if he desired to cancel the lease at the time of the notice. Under the terms of this letter it became necessary for Lard to signify his acceptance of Mickle’s proposition to end the contract at once by communicating such acceptance to Mickle or to appellees, Broome & Baldwin. It is true that Goffinet testified that Lard vacated the land prior to the month of November, but merely moving off the premises, without conveying to Mickle his acceptance of the proposition, would not be sufficient to relieve Lard and Goffinet of their liability. Appellants’ exception No. 8, attacking the charge of the court, is overruled. We think the court correctly construed the contract in the paragraph designated. The error urged under the first assignment is not alone sufficient to warrant us in reversing the judgment.

The seventh assignment is based upon the court’s action in refusing to postpone the trial until the arrival of Lard. Lard had not been made a party to the suit. No effort, it seems, had been made to take his deposition, and we infer from the record that he was a resident of Roberts county. Under such circumstances no diligence was shown entitling appellant to a postponement.

Finding no reversible error, the judgment is affirmed.
      <S=»Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    FERGUSON v. COLEMAN.
    (No. 2057.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1919.
    On Motion for Rehearing, Jan. 23, 1919.)
    1. Witnesses <@=>129 — Transaction with Decedent — “Legal Representative.”
    Rev. St. 1911, art. 3690, providing in actions by or against executors, etc., neither party shall testify against the other as to any transaction with the decedent, unless called by the opposite party, including all actions by or against heirs or “legal representatives” of decedent, arising out of transaction with him, does not include or apply to purchaser from decedent, suing purchaser from decedent’s heirs in trespass to try title.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Legal Representative.]
    2. Witnesses <@=>139(2) — Transactions with Decedent — “Parties”—Heirs.
    In trespass to try title by purchaser from decedent against purchaser from decedent’s heirs, heirs, who have not been called upon to defend title, and are not apparently in a situation to be concluded by any judgment rendered, are not “parties,” within meaning of Rev. ,St. 1911, art. 3690, prohibiting either party from testifying as to transactions with decedent, etc., though term should not in every case be limited to those named in pleadings.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Parties.]
    3. Evidence <@=>271(17) — Declaration' oar Decedent-Interest.
    In trespass to try title by purchaser from decedent against purchaser from decedent’s heirs, testimony of decedent’s daughter, to prove by his declarations that deed he had made to plaintiff was only a mortgage, being in decedent’s interest, was inadmissible.
    4. Appeal and Error <@=>231(3) — Review-Objections to Testimony.
    In reviewing rulings of trial courts in excluding and admitting testimony usually only those objections urged will be considered.
    5. Appeal and Error <@=>856(2) — Review— Exclusion oe Evidence — Grounds Not Considered.
    Judgment will not be reversed for error in excluding testimony on objection to which it was not subject, where it was inadmissible on other grounds not raised.
    6. Appeal and Error <@=>1056(3) — Harmless Error — Evidence.
    In trespass to try title, any error in excluding certain testimony as hearsay held immaterial; probative value of testimony being small.

      7. Evidence @=»317(2) — Hearsay.
    In trespass to try title by purchaser from decedent against purchaser from decedent’s heirs, declarations of decedent’s widow as to what plaintiff said to her, when repeated by decedent’s daughter as a witness to prove admissions by plaintiff, were properly excluded as hearsay.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Trespass to try title by D. E. Coleman against O. R. Ferguson. From judgment for plaintiff, defendant appeals.
    Affirmed.
    T. W. Davidson, of Marshall, for appellant.
    John W. Scott and Brown & Hall, all of Marshall, for appellee.
   HODGES, J.

This suit originated in a controversy concerning a tract of 40 acres of land formerly owned by J. F. Goss, and which is situated in Harrison county, Tes:. In February, 1900, Góss and his wife executed a deed, absolute in form, conveying the land to the appellee, Coleman. The deed recited a cash consideration of $200 paid by Coleman. Goss at the time owned 80 acres, all of which was occupied and used by him as the family homestead. The tract was divided into two parts, nearly equal, by a road running east and west. The family residence was located on the 40 acres on the south side. That lying north of the' road is the land conveyed to Coleman. It appears from the evidence that Goss continued to cultivate the land until a short time before his death, which occurred about seven years after the execution of the deed. His wife, who survived him but a few years, left two chil'dren, one a minor, and the other a married woman. Some time after the death of Mrs. Goss the appellant, Ferguson, acquired the' interests of these two children. The deed under which he holds describes the 80-acre tract, to all of which he now asserts title. To recover the land, Coleman filed this suit in the form of an action of trespass to try title. Ferguson answered, claiming that Coleman’s deed from Goss was intended as a mortgage, and, being upon a homestead, was void. He also pleaded title by limitation. In response to special issues submitted, the jury found that the deed from Goss to Coleman was not intended as a mortgage, and also found against the appellant on his plea of limitation.

On the trial below Coleman testified that he bought the land from Goss and paid him $200 in cash. Over the objection of the appellant he was permitted to testify, in substance, as follows: That after purchasing the place he controlled the 40 acres lying north of the road, and Goss controlled that on the south side; that the next year after the purchase he rented the land to a negro tenant, and from whom he collected the sum of $40 as rent. After that time he rented it to Goss, who paid him $40 a year. In December or January following Goss wanted to buy the 40 acres bach. From the time of the purchase until his death Goss never had made any claim to the ownership of that land that witness knew of. After the death of Goss witness' talked with Mrs. Goss about the land, and at the time he was claiming the ownership, and Mrs. Goss never asserted to him any claim to the contrary. Goss paid the taxes on the land, and the amount he paid was deducted from the rent. This testimony was objected to upon the ground that it related to a “transaction and conversation and a series of transactions between the deceased, J. F. Goss, and the plaintiff, D. E. Coleman, the said J. F. Goss being dead, and his heirs having sold the land to the defendant O. R. Ferguson.” This objection is, of course, predicated upon the provisions of article 3690 of the Revised Civil Statutes, which prohibits either party from testifying as to any 'transaction with the decedent in action by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such.

The contention is made that this is an action in which the heirs and legal representatives of the deceased are virtually, if not actually, parties. The litigation is between Coleman, a purchaser from Goss, and Ferguson, a purchaser from the heirs of Goss. Counsel for the appellant insists that the words “legal representatives,” as used in article 3690, should be construed to include a purchaser from a decedent. In Newton v. Newton, 77 Tex. 508, 14 S. W. 157, the Supreme Court held that the term “legal representatives” did not include devisees and legatees. If these parties claiming succession in. title through the medium of a will are excluded, the same rule would also exclude a purchaser claiming succession through the medium of a deed. It was also held, in the case referred to, that those statutory disqualifications would not be extended by implication to include a class of persons not named, although the reasons for embracing them were equally as strong as those for including the persons expressly designated.

It is further contended by appellant that the land having been conveyed to Ferguson by the heirs of Goss, presumably by deeds with warranties, those heirs were virtually parties to this suit. It is true that the term “parties,” as used in this article of the statute, should not in every case be limited to those named as such in the pleadings, but may include all who would be affected by the judgment rendered in the particular case. Perdue v. Perdue, 208 S. W. 353, recently decided by tbis court. It is equally correct to say that the statute does not include those who would not be affected by the judgment. Assuming that one or both of the Goss heirs may be held liable to Ferguson upon a failure of the title conveyed, it does not appear from this record that they have been called upon to defend the title, or that they are in a situation to be concluded by any judgment rendered in this proceeding. Hence they are not parties within the meaning of the statute. Stevens et al. v. Masterson’s Heirs, 90 Tex. 417, 39 S. W. 292, 921. The court committed no error in admitting the testimony of Coleman.

Mrs. Sullivan, a daughter of Goss, was called as a witness by the appellant, and was asked the following question:

“Did you ever hear your father refer to the fact that he owed Mr. Coleman some money, and Mr. Coleman had a lien on his place — something like that?”

An objection was made and sustained to the answer, upon the ground that the witness was virtually a party to the suit and should not be permitted to testify concerning declarations made by her deceased father. The bill of exception shows that the witness, if permitted, would have answered:

“That the Coleman claim against said land, according to the view of her father, was not a deed, but was a mortgage to secure a debt, and that he always referred to it in this manner.”

The evident purpose of this testimony was to prove by the declarations of Goss that the deed he had made to Coleman was only a mortgage. Such statements would have been in the interest of the deceased, tending to show that, notwithstanding his deed was absolute in form, it was less than what it purported to be, and that he still owned the title to the land. Such declarations of deceased parties are not admissible for that purpose. Mooring v. McBride, 62 Tex. 311; Warren v. Frederichs, 76 Tex. 651; 13 S. W. 643; Gilbert v. Odum, 69 Tex. 670, 7 S. W. 511. While the testimony was inadmissible upon the grounds mentioned, it was not subject to the particular objection set out in the bill of exception. However, we do not regard that fact as a sufficient reason for reversing this judgment. It is true that, in reviewing the rulings of trial courts in excluding and admitting testimony, only those objections urged will usually be considered. But it would be an unjustifiable devotion to a mere rule to remand this case in order that the appellant may offer testimony clearly subject to other objections.

Before objection was made, Mrs. Sullivan testified as follows:

“Tes; me and my husband sold our interest in the land to Dr. Ferguson; and my minor sister, Lizzie Belle Goss, sold her interest by order of the court. Yes, sir; I think my mother, after my father’s death, met Mr. Coleman herein town and had a conversation with him about this matter, and he gave her some assurances; I don’t hardly know what they were. She told me several times. I have forgotten most of them; only she said he didn’t think it,would-bother her.”

This testimony was then objected to upon, the ground that it was hearsay. The record, shows that the court sustained the objection; but it does not show that it was excluded from the jury. But, assuming that it was excluded, the probative value of what the witness stated was too small to make, the-error, if any, a material one. Mrs. Goss’ declarations as to what Coleman said to her, when repeated by the witness, for the purpose of proving admissions by Coleman, would be hearsay, and were properly excluded.

There are other assignments in the record, which complain of the insufficiency of the-evidence and of the misconduct of the jury. The evidence, we think, is ample to sustain the findings of the jury. As to the misconduct of the jury, that matter was inquired into by the trial judge. He heard the testimony, and his ruling carries with it the conclusion that nothing prejudicial to the interests of the appellant occurred during the deliberations of the jury.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for a rehearing appellant insists that the testimony of Mrs. Sullivan as-to how her father regarded the deed from. him to Coleman was admissible for the purpose of showing that her father claimed the-land adversely. Conceding that proposition to be correct, we are still of the opinion that the testimony, if admitted, would not have caused the jury to render a different verdict upon that issue. Mrs. Sullivan’s statements, if admitted, would have been merely cumulative of what a number of other witnesses of apparent equal credibility had detailed more-specifically. Snow v. Starr, 75 Tex. 411, 12 S. W. 674; Payne v. Benham, 16 Tex. 364; Galveston, etc., R. R. Co. v. Matula, 79 Tex. 577, 15 S. W. 573.

The motion for a rehearing is overruled.
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