author: PLEASANTS, C. J.

text:
    SWAN et al. v. PRICE.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 11, 1913.
    On Motion for Rehearing, Jan. 8, 1914.)
    1. Appeal and Eeeoe (§ 80) — Pinal Judgment — What Constitutes.
    All of the issues properly presented by the pleadings will be presumed to have been disposed of by the judgment, unless it appears otherwise on its face, and a judgment will be considered as finally disposing of defendants’ counterclaim, where it granted relief in favor of plaintiff, even though the counterclaim was not mentioned, and hence an appeal may be taken from such judgment.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    2. Witnesses (§ 160) — Competency — Deceased PERSONS.
    Under Sayles’ Ann. Civ. St. 1897, art. 2302, providing that, in actions by or against executors, the survivor shall not bo allowed to testify as to any transaction with or statement by decedent, a plaintiff seeking to charge the estate of a decedent with a constructive trust cannot testify that the decedent received the proceeds from the sale of plaintiff’s farm, and that none of them were paid over to plaintiff; for the statute applies as well to transactions between a deceased and a third party, where plaintiff claims the benefit of such transactions, as it does to transactions between plaintiff and the deceased.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 696, 697; Dec. Dig. § 160.]
    3. Appeal and Eeeoe (§ 1054) — Review-Harmless Eeeoe.
    In an action where plaintiff sought to charge the estate of a decedent with a constructive trust, and the only testimony showing the receipt by decedent of plaintiff’s money was plaintiff’s testimony, the evidence cannot be held harmless to defendants, who were unsuccessful below, though the cause was tried to the court.
    . [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1054.]
    4. New Trial (§ 164) — Amendment.
    The trial court cannot amend or reform a judgment on motion for new trial so as to make it conform to new facts then presented; its only right being to grant a new trial in case the newly discovered evidence is such that there would probably be a different result on the second trial.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. § 333; Dec. Dig. § 164.]
    On Motion for Rehearing.
    5. Witnesses (§ 159) — Competency--TransACTIONS WITH DECEASED PEESONS.
    In an action where it was sought to charge the estate of a deceased person with a constructive trust, plaintiff cannot testify that decedent never paid over to her certain moneys which he collected as her agent, Sayles’ Ann. Civ. St. 1897, § 2302, applying to this negative as well as to positive testimony of the decedent’s acts or declarations.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 629, 664, 666-669, 671-682; Dec. Dig. § 159.]
    6. Appeal and Error (§ 1054) — Review-Harmless Error.
    Where a cause is tried to the court without a jury, error in the admission of evidence will not be considered prejudicial, where there is other evidence to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dee. Dig. § 1054.]
    7. Trusts (§ 110) — Presumption.
    There is a presumption that an agent duly authorized to collect money for his principal has done his duty and delivered the money, and hence a judgment, charging the agent’s estate with a constructive trust on the theory that he had converted the money, cannot be sustained in the absence of evidence to that effect.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 160; Dec. Dig. § 110.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Emma E. Price against Guy G. Swan and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Charles Murphy and Roy F. Campbell, both of Houston, for appellants. W. H. Schweikert and L. C. Kemp, both of Houston, for appellee..

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

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant Guy G. Swan individually and as executor of the estate of Milton J. Swan, deceased, and against Mrs. Swan, the wife of said Guy G. Swan, Charles E. Swan, Katherine Mary Frazier and her husband, Rex D. Frazier. The petition alleges, in substance, that plaintiff and defendants are the owners in fee simple of a tract of 426% acres of land in Waller county, which is fully described in the petition, plaintiff being the owner of an undivided one-half of said land, the defendants Guy G. Swan and wife an undivided one-fourth, and the defendants Guy G. Swan, Charles E. Swan, and Katherine Mary Frazier, heirs of Milton J. Swan, the remaining one-fourth, but that the interest of the defendants in said land is subject to a resulting trust in favor of plaintiff. It is then alleged that on various dates between March 1, 1904, and March 1, 1908, the defendant Guy G. Swan and Milton J. Swan, as agents of plaintiff, received for her various sums of money, aggregating the sum of $10,527.22, and that they had failed and refused to account to plaintiff for the amount so received by them, except the sum of $3,250, which was expended by them for plaintiff in the purchase and improvement of her one-half of said land. It is further alleged that said defendant and Mitón J. Swan, deceased, received various other sums of money as agent for plaintiff for which they had failed and refused to account, but “plaintiff is unable to state the exact amounts received by said defendants, or when received by them, but alleges the amount to be $2,500.” It is then alleged that the money so collected by said parties as agents of plaintiff was expended by them in purchasing the land before described, but that, acting in defraud of plaintiff’s rights, they took title to one-half thereof in their own names. The prayer of the petition is as follows: “Wherefore plaintiff prays that, in addition to the one-half interest in said land belonging to plaintiff by deed in her own name, the court declare a resulting trust in plaintiff’s favor for the one-half interest standing in the names of Milton J. Swan and Guy G. Swan, and, in the event the court finds that plaintiff is entitled to only one-half of said land, then this plaintiff prays for a partition thereof and that her part be set apart to her in severalty from the interest of said defendants, and plaintiff prays for an order of court compelling Guy G. Swan and Guy G. Swan, executor of the estate of Milton J. Swan, deceased, to file an account showing the amount of. plaintiff’s money received by them or either of them, when, where, and for what purpose expended, and that in the event a resulting trust be not declared in favor of plaintiff for one-half of said land that she have judgment against defendants Guy G. Swan and Guy G. Swan as executor of the estate of Milton J. Swan, deceased, for the sum of money found to be due plaintiff from defendants Guy G. Swan and Milton J. Swan, and, in case plaintiff is found to be entitled to only a part of said land, that commissioners be appointed, and that the interest of said plaintiff in said land be set apart in severalty from the interest of defendants, and that this plaintiff may have her writ of possession for that portion of the land awarded to her and for all costs of court and for such other and further relief as plaintiff may be entitled either general or special.”

Defendants answered by general demurrer and various special exceptions. They also denied generally the allegations of plaintiff’s petition and in bar of plaintiff’s claim for an accounting pleaded limitation of two and four years. It is then averred that plaintiff and tbe defendant Guy G. Swan and Milton J. Swan purchased the land described in plaintiff’s petition, plaintiff acquiring title to an undivided one-half therein, and Guy G. Swan and the said Milton J. Swan each an undivided one-fourth, and that by the will of said Milton J. Swan, who died in 1911, the defendants Guy G. Swan, Charles E. Swan, and Katherine Mary Frazier became the equal owners of the one-fourth interest of the said Milton J. Swan. It is then averred that the money paid by the said Guy G. Swan and Milton J-. Swan for said land was their own money, and no part of it was money received by them for plaintiff or belonging to her, and that defendants have at all times been and are now ready and willing to partition said land and they join in plaintiff’s prayer for partition and pray that one-half of said land and improvements be set aside to them. Then follows special denials that the defendant Guy G. Swan or Milton J. Swan, deceased, was ever an agent of the plaintiff ' or ever received or collected money for her as alleged in the petition, save and except that the said Milton J. Swan did, at the request of plaintiff, discount certain notes belonging to her and applied the proceeds of said notes, $2,704.20, to payment of the purchase money of plaintiff’s one-half interest in said land. It is then averred that, after the purchase of said land by plaintiff and said Guy G. and Milton J. Swan, it was agreed by and between said parties that they would improve and cultivate said land as partners, and would share in proportion to their interest in the land the costs and expenses of said improvements and cultivation and the profits, if any, arising therefrom, and that the said Swans had expended in the improvement and cultivation of said land the sum of $7,000 over and above any proceeds derived from crops raised on said land. The defendants Guy G. Swan and wife further alleged that said Guy G. Swan as manager, and his wife as cook, on said farm, rendered personal services for said partnership for four years of the reasonable value of $1,000 per year, for one-half of which amount plaintiff is liable. These last-named defendants further averred that the property involved is their homestead and their interest therein cannot be subjected to a lien for any debt that may be due by them. The answer concludes with the following prayer: “Wherefore defendants pray that on a hearing hereof and on the accounting here presented that they have judgment against the defendants for one-half of the difference in the amount advanced by them and that advanced by the plaintiff, and that for the services of Guy G. Swan and his wife on the farm, plaintiff to pay one-half, for a partition, for an accounting, and for such other and further relief as defendants may be entitled in law, of which they will ever pray.” Defendants offered evidence on the trial tending to support their counterclaim.

The cause was tried in the court below without a jury, and judgment rendered in favor of plaintiff decreeing a partition of the land, giving one-half thereof to plaintiff, one-fourth to appellant Guy G. Swan, and the remaining one-fourth to the said Guy G. Swan, Katherine Mary Frazier, and Charles E. Swan in equal proportion, and directing that in making partition of the land- plaintiff’s one-half thereof shall include the house and barn which the court finds was paid for by money furnished by plaintiff, and, in event it be found that an equitable partition of the land cannot be made so as to place said improvements on the one-half set aside to plaintiff, it is ordered that the land be sold, and out of the proceeds of such sale that plaintiff be first paid the sum of $2,-471.98, the value of said improvements, and that the remainder of said proceeds be divided between the parties in proportion to their interest in the land, as before stated. “It is further ordered, adjudged, and decreed by the court that plaintiff, Mrs. Emma E. Price, do have and recover of and from the defendants Guy G. Swan and Guy G. Swan as executor of the estate of Milton J. Swan, deceased, the sum of four thousand two hundred and seven 22/100 dollars ($4,-207.22) with interest thereon at the rate of 6 per cent, per annum from May 9, 1908, and it is further ordered, adjudged, and decreed by the court that the money judgment against Guy G. Swan, as executor of the estate of Milton J. Swan, deceased, be and the same is hereby decreed to be a judgment against defendants, Ohas. E. Swan and Katherine Frazier and Rex D. Frazier, her husband, to the extent of their interest in or property received from the estate of Milton J. Swan, deceased.” It was further ordered that plaintiff have her execution to enforce the money judgment above set out, but, as to the defendants Charles E. Swan and Frazier, such execution should only run against the property received by them from the estate of Milton J. Swan, deceased.

Defendants in due timé filed a motion for new trial, one of the grounds of such motion being that since the trial they had discovered evidence which showed that Milton J. Swan had paid plaintiff a portion of the money for which the court had rendered judgment against the defendants. Upon the hearing of this motion, the court found that the facts therein stated as to the newly discovered evidence were true, and that according to such evidence defendants were entitled to a credit of $975. He further found that defendants were entitled to another credit of $1,525, which was not allowed on the trial because not properly pleaded, but which be concluded should be allowed, notwithstanding the deficiency in the pleading. Upon these findings, he ordered and decreed that the original judgment be reformed so that plaintiff should only recover the sum of $1,'707.22. He also eliminated the direction in the original judgment as to the sale of the land and partition of its proceeds, and directed that the land be divided by an east and west line so as to place the improvements upon the one-half set aside to plaintiff.

At a former sitting of this court we dismissed this appeal on the ground that the judgment appealed from was not a final judgment. After further consideration and investigation of the authorities, we have decided that we erred in holding that the judgment is not final. In reaching our former conclusion, we conceived the law to be that, unless the judgment disposed of the counterclaim or pleas in reeonvention by express terms, or by necessary implication, it was not a final judgment. If this is the rule, our former judgment was correct, because the judgment of the trial court does not expressly dispose of defendants’ counterclaims and is one that could have been rendered without taking said counterclaims into consideration. This is manifestly true, as the plaintiff claimed an indebtedness against defendants of approximately $13,000, all of which was denied by the defendants, the counterclaims asserted by defendants aggregated $5,500, and the judgment rendered was in favor of plaintiff for $4,200. We think this case is different from one in which the plaintiff sues for specific amount, and the defendant interposes a counterclaim for a less or greater amount, and judgment is rendered in favor of plaintiff for the whole amount claimed by him. Such a judgment is by necessary implication a judgment against defendant’s counterclaim. This is not true of the judgment in this ease, because the judgment for plaintiff for $4,200 could have been based entirely on the failure of plaintiff to establish her claim for a larger amount, and defendants’ counterclaims might not have been considered at all by the court in rendering such judgment.

A further investigation of the' authorities, however, has led us to the conclusion that the rule now enforced in this state is that all the issues properly presented by the pleadings will be presumed to have been disposed of by the judgment, unless it appears otherwise from the face of the judgment. Under this rule, the judgment in this case must be held to be a final judgment, because, in rendering judgment in favor of plaintiff for $4,-200, the court might have either rejected or allowed the counterclaim in whole or in part. Such being the case, it cannot be said that it appears from the judgment that the counterclaim was not passed on, and therefore it must be regarded as concluded by the judgment. Hermann v. Allen, 103 Tex. 382, 128 S. W. 115; Trammell v. Rosen (Sup.) 157 S. W. 1161. This conclusion requires that our former judgment dismissing the appeal be set aside, and it has been so ordered.

Upon the trial the plaintiff testified in regard to the sale of land belonging to her by the deceased, Milton J. Swan, and his collection of the proceeds of such sale, as follows: “At the time this farm was sold, I was at the home of M. J. Swan; I was sick in bed at the time, I was not able to be out at all. M. J. Swan attended to all the business with reference to the sale of the farm. When my farm in Indiana was sold, I did not receive the cash consideration or any of the notes. I stated that at that time I was in Frankfort, Ind., at Mr. Swan’s house sick, I did not have anything to do with the closing up that trade; M. J. Swan acted for me in the matter. There was none of the cash consideration turned over to me at that time— none of the notes were turned over to me at that time. The first time that I ever saw any of those notes or had them in my possession was when they were sent from Katy, Tex., to me; that was about the year 1910. M. J. Swan collected the fourth note, the note due in 1905. He was acting as my agent. M. J. Swan collected the notes due, respectively, March 1, 1905, March 1, 1906, March 1, 1907, March 1, 1908. M. J. Swan took charge of the three notes for $1,000 each becoming due in 1913, 1914, and 1915, and the note for $527 becoming due in 1916. Those notes were afterwards discounted by M. J. Swan. Guy G. Swan nor M. J. Swan never consulted me or asked my consent to discount those notes; I did not know that they were going to be discounted until after they were discounted.”

Defendants objected to this testimony on the ground that it was testimony by plaintiff as to transactions with the deceased and was prohibited by article 2302, Sayles’ Civil Statutes. This objection to the testimony should have been sustained. Plaintiff’s suit being against the heirs and executor of the will of Milton J. Swan, deceased, by the express provisions of the statute above cited she could not testify as to transactions with or statements by the deceased, not having been called to so testify by the defendants. The statement that deceased represented her in the sale of the land and attended to all of the matters relating thereto and that he collected or discounted the notes given for said land is clearly a statement as to transactions with the deceased and was not admissible. The statute applies as well to transactions between the deceased and a third party, when the plaintiff is claiming the benefit of such transaction, as it does to transactions directly between the plaintiff and the deceased. Parks v. Caudle, 58 Tex. 216.

This is the only definite testimony as to the collection of some of the money by the deceased which plaintiff seeks to recover in this suit, and, in view oí the uncertain character of the testimony as a whole as to the amount of plaintiff’s money received by the deceased, we cannot hold that this illegal testimony was not considered by the court in rendering the judgment against the defendants.

It goes without saying that the trial court was not authorized on the hearing for a new trial to base a judgment reforming and reducing the amount of the original judgment on the newly discovered evidence presented by defendants with their motion for new trial, and appellee’s cross-assignment complaining of this would necessarily have to be sustained if it had not been withdrawn, or rather only insisted on in event this court should conclude that the original judgment should be reinstated and affirmed. This cannot be done, for the reason that,' in addition to the error in the admission of testimony before pointed out, the trial court, in reforming the judgment, as he did, in effect held that the defendants were entitled to a new trial on the ground of newly discovered evidence, and we think that holding is sustained by the record.

Appellants have not assigned error on the action of the court in reforming the original judgment, and it may be that they could not be heard to complain of such error if it should appear from the record that the only error against them in the original judgment was in the amount, and such error was fully cured by the amended or reformed judgment rendered on the motion for a new trial, but there is no authority for amending or reforming a judgment on motion for new trial so as to make it conform to the new facts presented on the hearing of the motion. The proper practice in such case is to deny the motion if the newly discovered evidence is not probably true, or would not likely change the result upon another trial, or the party making the motion fails to show that he could not by proper diligence have presented the evidence on the trial, and to grant it if the newly discovered evidence is probably true and would likely change the result on another trial, and the party shows that he was not at fault in not presenting it on the trial.

We are of opinion that the judgment should be reversed and the cause remanded for a new trial, and it is so ordered.

Reversed and remanded.

On Motion for Rehearing.

In addition to the testimony of plaintiff set out in the main opinion to which defendants’ objections were, as held in that opinion, improperly overruled, the plaintiff testified:

“I wrote to Guy Swan or Milton J. Swan asking them for an accounting of how much money was due me. Neither of them ever made an accounting to me of money they received of mine. I never received any money from either Guy G. Swan or Milton 3. Swan after this letter was written. Guy G. Swan and Milton J. Swan were in the grocery business in Frankfort, Ind., under the firm name of Swan & Son. After the Swans came to Texas, I did not authorize them to use my money in buying personal property to farm on said land. I was not a partner with Guy G. Swan or Milton J. Swan; there was no partnership interest as to the farming of said land. There was no partnership interest in the personal property that was bought with my consent or knowledge; I was never consulted about buying personal property for improving said farm.

“I never received any money from them after they came to Texas. I did receive some money from them before they came to Texas; I received about $500; I can’t tell you whether I received that money by check or money; I could not tell you in what sums I received that money, it was in small amounts.”

All of this testimony was objected to by the defendants on the ground that it was testimony as to transactions with the deceased, and, plaintiff not having been called to testify thereto by the defendants, such testimony was inadmissible under article 2302, Sayles’ Civil Statutes. It seems to be well settled by the decisions of our appellate courts that plaintiff in this suit could not testify over defendants’ objection that the deceased, Milton J. Swan, had not paid her the moneys received by him as her agent. The statute prohibits testimony “as to” any transaction with the deceased, and this includes a denial that the deceased did or said certain things as well as an affirmative statement that such transactions or conversations occurred. Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816.

In the case of Johnson v. Lockhart, 16 Tex. Civ. App. 32, 40 S. W. 640, it is held that in a suit by an administrator to cancel a note executed by his decedent and held by the defendant the statute above cited prohibited the defendant from testifying that the note had not been paid. This is also held in the case of Abbott v. Stiff, 81 S. W. 562, in which case a writ of error was refused by the Supreme Court.

We think it necessarily follows from these decisions that the plaintiff in this case cannot, over the objection of defendants, testify that Milton J. Swan did not pay her the money collected by him as her agent.

In an able motion for rehearing, counsel for appellee has shown that there is other’ evidence in the record from which the court’s finding as to the amount collected by Milton J. Swan for plaintiff can be sustained. This being so, the case having been tried before the court without a jury, the error in admitting the testimony set out in our main opinion would not require a reversal of the judgment. Young v. Robinson, 135 S. W. 717; Mullaly v. Noyes, 26 S. W. 146. The finding that the moneys collected by the deceased had not been paid to the plaintiff does not appear to have been established by any testimony other than that of the plaintiff, and the admission of this testimony cannot be considered harmless.

There is no presumption that an agent duly authorized to collect money for his principal did not turn it over to the principal. On the contrary, the rule stated in 31 Cyc. page 1640, that: “The presumption of law is that an agent has done his duty until the contrary appears; misconduct and negligence will not in the absence of proof be presumed. Thus the legal presumption in the absence of proof is that the agent has performed his duty and paid over and accounted to his principal for moneys received by him in his capacity of agent” — is supported by the weight of authority. In addition to the cases cited in Cyc. in support of this rule, it is sustained by the following cases: Turner v. Kouwenhoven, 100 N. Y. 115, 2 N. E. 637; Knapp v. Griffin, 140 Pa. 604, 21 Atl. 449. It seems to us that this rule is sound in principle and is especially applicable when the agent is dead, and the principal seeks to hold his estate liable for his alleged nonperformance of duty. The money was rightfully received by the agent, and plaintiff’s cause of action is based upon the alleged failure' of the agent to do his duty and turn it over to her. In such case the burden is upon plaintiff, in order to establish liability on the part of the agent, to show that the money had not been paid over. The mouth of the agent being closed by death, the statute, in order that the parties may be placed on an equal footing in the matter of showing what the transactions were, closes the mouth of the principal.

We adhere to our former opinion reversing the judgment of the court below and remanding the cause for a new trial, and the motion for rehearing is overruled.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. TAYLOR et ux.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 26, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Telegraphs and Telephones (§ 56) — Eailube to Deliver BIessage — Notice op BIental Suffering.
    A telegraph company cannot be held liable for damages from mental suffering on the part of any person who is not referred to or whose name is not connected with a message, unless the company has notice from some other source that such other person is interested in its prompt delivery.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.]
    2. Telegraphs and Telephones (§ 56) — Delay in Delivery op BIessage — BIental Suffering — N otice.
    The delivery of a telegram reading: “Notify C. T. that mother is dead,” with a statement to the receiving agent that the message was important, but without notice that deceased was the mother of T.’s wife, would not enable the wife to recover for mental suffering from inability to attend her mother’s funeral.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.]
    3. Appeal and Error (§ 1177) — Disposition —Remand.
    In an action to recover damages for mental suffering by reason of delay in delivery of a telegram, the court, on reversing for want of notice of plaintiff’s interest sufficient to sustain a recovery, wdl remand for another trial, where it appeared that another witness might testify as to notice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-⅞04, 4606-4610; Dec. Dig. § 1177.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Action by C. W. Taylor and wife against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
    Spell & Sanford, of Waco, for appellant. T. R. Blears, of Gatesville, for appellees.

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

   KEY, C. J.

Charles W. Taylor and his 'wife recovered a judgment for the sum of $500 against the Western Union Telegraph Company, and the latter has appealed. The basis of the plaintiffs’ suit was the failure of the defendant to send and deliver a telegram in time to enable BIrs. Taylor to attend the funeral of her mother. The telegram read as follows: “San Angelo, Texas, Dec. 2,1911. Mr. Buford Taylor, Kempner, Texas. “Notify Charlie Taylor that mother is dead. J. I. Johnson.” The plaintiff Mrs. Taylor was and is the wife of the Charlie Taylor mentioned in the message, but there was no proof that the defendant had any notice of that fact, unless the face of the message was sufficient to impart that notice.

Whatever may be the views of any member of this court,, and whatever ruling might be made if the question was an open one, the doctrine is firmly established by decisions of the Supreme Court of this state that a telegraph company cannot be held liable for damages resulting from mental suffering on the part of any person who is not referred to in, or whose name is not connected with, the message, unless the telegraph company has notice from some other source that such other person is interested in the prompt delivery of the message. Telegraph Co. v. Kirkpatrick, 76 Tex. 218, 13 S. W. 70, 18 Am. St. Rep. 37; Telegraph Co. v. Carter, 85 Tex. 585, 22 S. W. 961, 34 Am. St. Rep. 826; Telegraph Co. v. Edmondson, 91 Tex. 209, 42 S. W. 549; Telegraph Co. v. Gotcher, 93 Tex. 114, 53 S. W. 686. It is impossible to distinguish this case from the Carter Case, and it comes clearly within the rule applied in the other cases cited.

The only evidence relied on by counsel for ax>pellees as tending to show collateral notice was to the effect that the agent who received the message was told that it was important. That was insufficient to give notice of the fact that Charlie Taylor had a wife who might want to attend the funeral. Telegraph Co. v. True, 101 Tex. 236, 106 S. W. 315. This case is distinguishable from Telegraph Co. v. True, 105 Tex. 344, 148 S. W. 561, 41 L. R. A. (N. S.) 1188, and Telegraph Co. v. Goldwire, 152 S. W. 503. In both those cases the messages related to business and not to social affairs, and there was no question as to the right of recovery for mental suffering, nor as to the right of any one whose name was not disclosed by the face of the message. Telegraph Co. v. Jenkins, 152 S. W. 198, and Telegraph Co. v. Tucker, 152 S. W. 199, cited in appellant’s brief, are more in xioint. Those cases were decided by the Court of Civil Appeals for the Second district, but the Supreme Court granted writs of error in them, on the ground that it was not believed that the plaintiffs in those cases were entitled to recover, and they are still pending in the Supreme Court.

This disposes of the only question presented in appellant’s brief, and must result in a reversal of the case. Appellant contends that the case has 'been fully developed, and that it appears clearly that the appellees can submit no other testimony tending to show that appellant had notice of Mrs. Taylor’s interest in the message, and therefore that this court should render a final judgment. Mr. Spangler, who delivered the message to appellant’s agent for transmission, testified that he was accompanied by Mr. Lee Upton. Mr. Upton was not called as a witness; and, conceding that Mr. Spangler and appellant’s receiving agent will testify that nothing was said by Spangler indicating that Charlie Taylor had a wife, it may be that Mr. Upton will testify otherwise; and therefore the judgment is reversed, and the cause remanded for another trial.

Reversed and' remanded.


text:
    TEETZ v. INTERNATIONAL & G. N. RY. CO.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 10, 1912.
    Rehearing Denied Jan. 21, 1914.)
    Railroads (§ 327)- — Accident at Crossing— Failure to Look and Listen — Contributory Negligence.
    In an action against a railroad for injuries at a crossing, plaintiff, who drove upon the track without looking to see the time, although he knew that a train was then about due, and who did not look up the track, which was clear for a mile, when he could have seen the headlight of an approaching train, and who had his head down to avoid the wind, and who had been drinking before going on the tracks, was, as a matter of law, guilty of contributory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. § 327.]
    Appeal from District Court, Falls County;, Richard I. Munroe, Judge.
    Action by John Teetz against the International and Great Northern Railway Company. Judgment for defendant, and plaintiff
    appeals.
    Affirmed.
    Nat Llewellyn, of Marlin, for appellant. Neff & Taylor, of Waco, for appellee.

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

   KEY, C. J.

This is a personal injury suit, in which the trial court instructed a verdict for the defendant, and the plaintiff has appealed and assigned that instruction as error. On the night of October 12, 1912, the plaintiff was traveling in a vehicle from the town of Marlin to his home. The road which he was traveling crossed the defendant’s railroad track, and the plaintiff knew that a train was due to pass that crossing at about the time he reached it, which was a few minutes before 12 o’clock. While the plaintiff was crossing the railroad track, the train passed, struck his team and vehicle, and inflicted the injuries of which he complained.

We copy the following excerpts from the plaintiff’s testimony, as correctly set forth in appellee’s brief: “It was something close to 12 o’clock when I was struck. * * * It was the first norther and was a dark night. I had my summer clothes on and no overcoat, and I pulled my hat down to keep the norther off of me, and so I got on the track and the mules reared up from the light, and I looked up and saw the train * * * about that time the train hit me. * * * It is. possible there might have been a whistle, but I never heard the whistle. * * * The mules scared at the light, the blind of the light was what scared ■ the mules. * * * I got to Marlin about 3 o’clock. * * * I left home about 11 o’clock. I can see the-trains from my house when they pass. I knew the train crossed this crossing. I knew the crossing. I knew there was a night train, but I did not look at my watch and did not know what time it was. I did not know it was that late. I had a watch with me. I knew there was a midnight passenger train that passed, I knew that, but sometimes a man does not look every time. I knew there was a train at 12:30 or 11:30. * * * I had traveled on that train going from Waco to Marlin at night. * » * j knew the train passed there about the time I got there that night. I knew that the crossing was there, and I knew that the railroad track was at the crossing. * * * I was in some saloons here that day. I was in the saloons with John Reeder and my brother. No one else drank with me that day that I know of. I might have drank some more that day, but I paid no attention to it much. I cannot remember whether I drank with any one else that afternoon. * * * It is about 15 miles from Marlin to the crossing where I was hurt. * * * It might have been 18 miles. * * * i Was drinking in Marlin. I drank a glass of beer and might have drank more * ⅜ * one or two or three or four. * * * I might have drank one or two. I never counted. I drank beer; I do not drink whisky. * * * T went by Otto because I thought I might see some friends out there. * * * There is a saloon in Otto and was then. There is no saloon around the other way that I might have gone to. ⅜ * * I cannot tell how much I drank in Otto. * * * That was my flask of whisky that Was found at &e crossing. * ⅜ ⅜ Was a cold night and I had summer clothes. Of course whisky is pretty good under circumstances like that. * ⅜ ⅜

I was driving a haqk without a top. The road is straight. * * * It looks like you are going down the track. That light blinded the mules. There was a light. It was an electric light. I saw it too late. I would have gotten by if the mules had not scared. I did not see it until I got on the track. The railroad track is straight for more than a mile, downward and upward. * * * I did not see the headlight until I got on the track, because I was just going right on. ⅜ ⅞ ⅜ if i' jiad looked up the track I could have seen that bright headlight. I could have seen it for more than a mile. I saw it when I got close and tried to cross the track. The train makes a good deal of noise running. The wind was blowing from the train to me. * * ⅜ The wind carries sound. I do not recall healing the whistle. I knew I was at the crossing before I got to it. I did not look. * * * Of course, I expected something to come on. I knew the track was there. ⅜ * ⅜ Just about the time I got there, I thought the train was coming on, and just about the time I got to the track, the mules stopped and reared up. I thought about that before I got to the track. I listened, but, of course,. I never heard' anything, and when I looked up I saw the train. * * * I thought about the train before I got on the track and saw it that night. I had my head down. I had my head turned up towards the north, facing the wind. I had my head sorter beating the wind off and from my breast. I could have seen it if I had looked up. It was a bright headlight. It was right on me when I first saw it just about the time when the mules got on the track. I could have seen it before if I had looked up sooner. * * * Counsel might think that I had drank so much whisky, that my team was just going along having their way about it, but I did not. * * *

There was nothing that I know of to obstruct the view of the coming train.”

No testimony was submitted by the defendant, and the trial court held that the undisputed testimony on behalf of the plaintiff showed that he was guilty of contributory negligence. Counsel for appellant controvert that holding, and contend that the question ■of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff should have been submitted to the jury. We agree with the trial court, and overrule appellant’s contention. Railway v. Bracken, 59 Tex. 73; Ry. v. Kauffmann, 40 Tex. Civ. App. 72, 101 S. W. 817; Ry. Co. v. Johnson, 125 S. W. 933.

No error has been shown and the judgment is affirmed.

Affirmed.


author: HENDRICKS," J.

text:
    HARRAL et al. v. BRIDGES.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1914.)
    1. BROKERS (§ 103) —CONTRACT — RATIFICATION.
    W., having certain real property for sale belonging to defendant H. of which plaintiff was in possession as tenant, and having completed a sale, in order to secure possession from plaintiff, agreed to procure from defendant H. $150 to be paid to plaintiff, and H., on being informed of the arrangement, stated to plaintiff that, if W. did not pay. the amount, he would. Held, that such facts showed a knowledge on the part of H. of W.’s acts and constituted a ratification thereof.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 147; Dec. Dig. § 103.]
    2. Frauds, Statute oe (§ 33*) — Contract—• Debt oe Another.
    A broker to sell certain land for H. having promised plaintiff who was in possession to obtain $150 from H. to be paid to plaintiff in consideration of his releasing possession, the promise of H. to pay such amount was not within the, statute of frauds as a promise to answer for the debt of another.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.]
    3. Brokers (§ 92) — Contracts—Individual Liability.
    A broker having sold certain land for his client which was in plaintiff’s possession, and having agreed to obtain $150 for plaintiff from his client as consideration for plaintiff’s release of possession, the broker acted in a representative capacity only and'was not individually liable to plaintiff for such sum.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 135; Dec. Dig. § 92.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by F. M. Bridges against J. O. Har-ral and another. Judgment for plaintiff, and defendants appeal.
    Affirmed as to defendant Harral and reversed as to defendant Mc-Whorter.
    Fred C. Pearce and Dalton & Russell, all of Plainview, for appellants. Y. W. Holmes, of Plainview, for appellee.

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

   HENDRICKS," J.

In February, 1912, Har-ral, one of the appellants in this court, was the owner of a farm in Hale county, Tex., and F. M. Bridges, the appellee herein, was his tenant, cultivating the place on shares, for said year, and on the 27th of February of that year, the appellant Harral sold the farm through the agency of one Soash, assisted by McWhorter, the latter a codefend-ant in the trial court, and the other appellant in this court. The appellee, Bridges, sued the defendants, Harral and McWhorter, on the theory that McWhorter contracted with him (Bridges) for himself personally, and also for J. O. Harral, to pay the sum of $150 in consideration of the delivery of the possession of said farm in order to effectuate the sale of same.

The testimony is conflicting, McWhorter denying that he was Harral’s agent, or that he represented himself as one, or that he promised to pay appellee any sum to vacate the property; the defendant Harral also denying that McWhorter was his agent for any purpose, or that he ratified the promise of McWhorter, if any was made, to pay the sum of $150 for the possession of the property, and asserts that Bridges was a tenant at will until the property was sold. With reference to the liability of Harral, the principal contention is that if any promise was made it was one to pa-y the debt of another within the statute of frauds, and, although not pleaded, that the objections to the evidence sufficiently raised the question, and it is assigned and principally briefed on that theory.

Bridges testified that, at the time the place was exhibited to the purchaser for the purpose of sale, McWhorter informed him that he thought he could sell the place, and wanted him (Bridges) to give possession. “I told him I had the place and did not have to move. He asked me what I would move for, and I said, ‘$150.’ McWhorter said, ‘You will move for $150, will you?’ McWhorter said he would be back next Thursday and would see Harral and get the money.” Bridges also testified that Harral accompanied Soash and McWhorter on this occasion with the purchaser, and at this time Harral stated to him: “I could afford to sell it and pay you something to move.” Bridges further testifies that the next day, accompanied by his wife, he went to town to see Harral for the purpose of settling the matter, and, after finding Harral, his version of the transaction at this time is as follows: “I told him that we met those people [meaning the purchasers] going down there — about six wagons loaded with household goods — and we stopped them and asked where they were going, and they said, ‘Down to the Harral place.’ I told him they were moving in on me, and McWhorter said he would pay us $150 to move, and Jim [meaning Harral] said he didn’t know anything about it. I said, ‘Well, I have the place rented and don’t aim to move until I get my money.’ ” He further testified on cross-examination: “I told Mr. Harral that Mr. McWhorter said he would pay me $150 and also said he would see Jim and get it. Harral told me he thought I ought to have it, and, if McWhorter didn’t pay it, he would.” We think that this testimony clearly raises an attempted agency upon the part of McWhorter for Har-ral to obtain from him (Harral) the sum of $150 for payment to Bridges, for the purpose of obtaining immediate possession of the premises.

If Bridges’ testimony is true, and we are required to view it in that manner, Harral knew of McWhorter’s proposition and it constitutes a ratification of his acts. Reviewing the transaction in accordance with the testimony of Bridges, it presents rather a peculiar status, for the reason that Harral promises to comply with the proposition made by McWhorter to Bridges for the possession of the property; the money to be obtained by McWhorter from Harral. From what investigation we have made, we are unable to find a case, and we are inclined to think it is undiscoverable in the books, where A. promises B. that, if O. does not comply with his promise to get the money from him (A.) to pay B. the amount promised, he (A.) will pay it. This case presents this very theory, and we are not prepared to say that it is so highly improbable as that we should reverse and render the cause upon the facts. It is sometimes ’ the case that a man may become liable upon a state of facts, and the agreement different than expected, and the legal consequences are imperative, for the reason the full significance of the facts was not properly grasped or impressed upon the mind in making the arrangement. The trial court clearly and succinctly presented the proposition of McWhorter’s agency, the ratification of same by Harral, and the liability of Harral predicated on the theory above. As stated, Harral denies that he made any promise whatever, as likewise does McWhorter. If Harral promised that he would see that McWhorter got the money from him (Harral) to pay Bridges the sum of $150 for the immediate possession of the property, and upon the consideration of this promise Bridges relinquished the possession of the land and the tenancy of same for the year, and, though he was promising that McWhorter would obtain the money for himself, the main purpose of such a promise, if made, wa§ to subserve his own interests, and while to some extent the miscarriage of another’s promise is involved, the status broadens into one of agency.

Upon analysis, if A. promises to pay a sum of money which B. has promised to obtain from him (A.), where B. is purporting to act for A. and for his benefit, and A.’s promise is made upon a new consideration, he makes the promise his own, and adopts the agency of B. The statute of frauds has no application to a case of that character, and, while the court presented the statute as a defense, we are inclined to believe that the cause was one of agency with ratification, or nonagency, and the jury having solved it upon a proper presentation of that phase of the case, the judgment in favor of Bridges against Harral is affirmed.

The trial court submitted the following charge: “If you find and believe from the evidence that the defendant, R. A. McWhorter did, on or about the 27th day of February, 1912, promise to pay F. M. Bridges, the sum of $150 to relinquish possession of said place, and that, relying upon said promise, the plaintiff did relinquish possession of said place, then I charge you to find for the plaintiff against the said R. A. McWhorter in said sum.” We believe Bridges’ testimony as to the agreement he had with McWhorter will control the liability of that defendant We think, upon a study of the record, that a reasonable construction of Bridges’ testimony does not indicate that McWhorter personally agreed to pay the sum of $150, but the arrangement was upon the basis that Mc-Whorter was to get the money from Harral. Bridges says: “I did not take Mr. McWhorter’s word. I wanted to be sure I was to get the money. * * * The reason I went to see Mr. Harral was that I was on his place and I thought he was the man to see for the money.” Bridges never moved from the premises until he obtained the promise from Harral, as indicated above. Neither is there any theory of misrepresentation of agency in this record to support a basis of recovery against McWhorter. It is true Mrs. Bridges’ testimony is susceptible of the construction that McWhorter told her that he had told her husband that he would pay the $150, but Bridges’ testimony of the real arrangement upon which he must predicate recovery does not sustain a personal liability against McWhorter. He only purported to act for, and obtain the money from, Harral. Bridges regarded it that way. Bridges’ testimony is a judicial admission of the real arrangement which must control. In this respect, we think the court erred in submitting the liability of McWhorter, and the judgment is reversed and rendered as to Mc-Whorter and, as stated, affirmed as to Har-ral.


author: HUFF, C, J.

text:
    ARMSTRONG v. PARR.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1913.
    On Motion for Rehearing, Jan. 17, 1914.)
    1. Vendos and Purchaser (§ 261) — 'Vendor’s Lien Notes — Priorities.
    When several vendor’s lien notes given for the same land are assigned to different parties, all have equal rights to have satisfaction out of the land or the proceeds on foreclosure, without reference to the order of assignment or maturity.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.] . '
    2. Vendor and Purchaser (§ 281) — Vendor’s Lien Notes — Foreclosure.
    In a suit to foreclose vendor’s lien notes, where plaintiff claimed priority, notwithstanding an agreement whereby plaintiff’s assignor, to whom the note was originally assigned, was to have only a junior lien, evidence held insufficient to establish a new agreement abrogating the original agreement.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. § 281.]
    3. Vendor and Purchaser (§ 261) — Vendor’s Lien Notes — Agreement.
    Where the assignee of a vendor’s lien note agreed that it should be subject to other notes retained by the vendor, the fact that the as-signee subsequently exchanged his note for another on the same land did not change the respective rights of the parties under the agreement.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    4. Vendor and Purchaser (§ 261) — Vendor’s Lien Notes — Assignment.
    Where the assignee of a vendor’s lien notes accepted them under an agreement that they should be subject to other notes retained by the vendor, that agreement is binding, no lights of any innocent purchaser intervening, even though they were merely indorsed in blank.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    5. Vendor and Purchaser (§ 261) — Vendor’s Lien Notes — Contracts eor Preference.
    A vendor who receives vendor’s lien notes and desires to assign some of them may contract that notes which he retains shall have a preference over those assigned.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    Appeal from District Court, Dallam County; D. B. Hill, Judge.
    Action by R. C. Balaam against Ernest C. Reed and others, in which George T. Parr was substituted as plaintiff, and Florence Armstrong intervened. From the judgment, intervener appeals.
    Reversed, reformed, and affirmed.
    Tatum & Tatum, of Dalhart, for appellant. Moore, Harrington & Powell, of Dal-hart, for appellee.

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

   HUFF, C, J.

R. C. Balaam originally brought suit on note No. 2 for the sum of $517.0S, against Ernest C. Reed, Caroline Spies, and C. E. Williams, and to foreclose a vendor’s lien on a certain 160 acres of land. After instituting suit Balaam sold the note to appellee, Geo. T. Parr, who made himself party plaintiff in the suit and prosecuted the same to judgment. The appellant, Florence Armstrong, intervened therein, setting up that she was the owner of note No. 3, for the sum of $517.09, alleging that her note was entitled to priority of payment out of the proceeds from the sale of the land upon foreclosure. The case was tried without the aid of a jury, and the court rendered judgment for both appellant and appellee for the full amount of their respective notes and that the proceeds from the sale of the land under the foreclosure be applied equally in discharging the judgment obtained upon the notes sued on. From this judgment, Florence Armstrong appeals.

April 15, 1908, one Jos. Frazier sold the land in question to Ernest 0. Reed, who executed three notes, numbered 1, 2, and 3. The first two being for the sum of $517.08 each, and No. 3 for $517.09, and retaining a vendor’s lien: to secure the notes. The notes were payable in one, two, and three years, respectively, Note No. 1 has been paid off and discharged. Frazier prior thereto had listed the land in question, together with other lands, with the Wheatland Investment Company, a copartnership composed of Geo. T. Parr, R. C. Balaam, G. W. and S. J. Nutting. By some sort, of arrangement or agreement, the Wheatland Investment Company procured the Reed-Allen Realty Company, of which Ernest C. Reed was a member, to handle and sell the land. E. C. Reed bought the land from Frazier, who deeded the land to Reed and took the notes in question, retaining the vendor’s lien. At the time of this transaction, Reed and Frazier entered into a contract with reference to the notes in controversy, together with a number of other notes, amounting in all to $40,725.72, by which Frazier was to have an interest in the notes amounting to the sum of $26,355.65, and E. C. Reed was to have a like interest of $14,370.07. By the terms of the agreement, the notes were to be placed in the First National Bank of Dalhart for a period of 30 days, for the purpose of allowing Reed to sell the same at such price or on such terms as Frazier and Reed should agree upon. If Reed failed to sell the notes they were to be divided at Frazier’s direction between himself and Reed, and the notes taken by Reed were to be indorsed “junior notes” by Frazier to the ones which should be retained by him, in respect to the participation in the proceeds from a foreclosure. This agreement is in writing and dated April 17,- 1908. The notes were not sold in 30 days and it appears the time was extended. Reed-Allen Realty Company was indebted to the Wheatland Investment Company and deposited the notes’ with said company to secure such indebtedness. It appears the Wheatland Company afterwards became the owner of the notes so deposited.

On the 27th day of May, 1908, the Wheat-land Investment Company, by R. C. Balaam, executed a receipt to Frazier for certain notes given to Frazier by E. C. Reed, amounting to the sum of $14,399.11. The receipt reciting that, should E. C. Reed succeed in selling these notes, together with those still held by Frazier, retaining vendor’s liens on the same land, then Fraizier would indorse said notes as primary notes, without recourse on him; but, should Reed fail to make such sale as above set out, then Frazier will indorse said notes as junior notes as provided for and set out in the agreement of April 17, 1908, a copy of which was attached to the receipt. Attached to this receipt is a list of notes, totalling the amount named in the receipt. This list included the two notes involved in this suit. On July 31, 1909, an instrument was executed which recites: “For mutual convenience, we, the undersigned, have this day made the exchange of vendor’s lien notes as set out below. The following notes, held by the Wheatland Investment Company as security for settlement of account with the Reed-Allen Realty Company, are delivered to Jos. Frazier.” Among the list of notes set out is-No. 3, on which Florence Armstrong sues. “In exchange for the above, the following notes held by Jos. Frazier are delivered to the Wheatland Investment Company.” Then follows the list of notes not necessary to mention. “All the above notes dated April, 15, 1908, and signed Ernest G. Reed.” This instrument is signed by the Wheatland Investment Company, Jos. Frazier, and Reed-Allen Realty Company.

R. C. Balaam, who originally brought the-suit on the note and signed the receipt for-his copartners, testified the Wheatland Investment Company had the local agency for selling the land, in all something over 4,800 acres, for Jos. Frazier. The Reed-Allen Realty Company was selling this land to the syndicate at a price in advance of- that asked by Frazier for the laDd and did not desire-the syndicate to know what the advance was. For this reason and the further reason that Reed-Allen Realty Company was to resell the land for the syndicate, E. C. Reed took title and executed the notes to Frazier. Frazier entered into a contract with the Wheatland Investment Company to return all said notes above his asking price to the company or the-ir assigns for services rendered in disposing of the land for him. This made about $16,-500 worth of notes, as I remember, the property of the Wheatland Investment Company or its assigns, from the time this commission contract was signed. Of course the assigns-of the Wheatland Investment Company were Reed-Allen Realty Company. Frazier held the notes until in May, 1908, awaiting the outcome of the efforts of Reed-Allen Realty Company to sell both his and Frazier’s part of the notes and those representing the commission of the Wheatland Investment Company and the Reed-Allen Realty Company. When Frazier turned the notes over to the Wheatland Investment Company with the understanding that had existed all along, that is, Reed-Allen Realty Company should sell all of said notes, both Frazier’s and their own, Frazier would indorse said notes —all of them — as first, without recourse; otherwise the notes of the Wheatland Investment Company and the Reed-Allen Realty Company would be junior notes. This witness nowhere testifies to any change in the agreement or understanding as originally made between Reed and Frazier and recognized in the receipt given by his company.

Sam J. Nutting, another one of the partners in the Wheatland Investment Company, testified that he thought the notes were indorsed in blank by Frazier when they were first placed in the hank, and that they were so indorsed when his company received them. If there was any other agreement made between Reed and Frazier than that stated in the receipt executed by his company, he did not know of them. While he- at times by his testimony appears to leave it in doubt when the notes were indorsed by Frazier, he does state that they were so indorsed when his company received them, and that it was his impression they were so indorsed while they were in the bank. “Tho only understanding that I know about in regard to the notes held by the Wheatland Investment Company of the series of which Frazier held a portion in respect to participating in the proceeds in the event of a foreclosure is that the notes were to be indorsed as junior notes. They were not indorsed as junior notes. Up to the time of the division, without any other contract, they were considered by us, tho Wheatland Investment Company, as being junior notes to the ones held by Frazier. After the division, I do not know that I ever thought about considering them one way or another.” The division referred to by this witness was the one made between the partners after the copartnership had gone out of business or dissolved. The evidence further shows Frazier was dead at the time of the trial. The evidence does not disclose when he died. All of the notes signed by Reed were made payable to Jos. Frazier or his order, and were indorsed in blank “Jos. Frazier.” Neither of the notes are indorsed as stipulated in the contract in case no sale was made by Reed. Sam J. Nutting says there was an exchange made between his company and Frazier of some of the notes originally received by his company for other notes held by Frazier, and that they traded and treated the notes so exchanged on a parity or an equality. The contract between Reed and Frazier stipulates that the Reed-Allen Realty Company should have a portion of the notes to be turned over to it out of the first and second series of notes giving the amount of the note out of each series, and the balance of the notes to be taken from the third series. The Wheatland Investment Company dissolved and wound up their affairs, and, in the distribution of the assets, the note sued on by appellee was turned over to R. C. Balaam, one of the partners of the concern, as a part of his profits. Balaam originally instituted the suit on this note, and, after the suit was instituted, transferred the same to appellee Parr. The members of the copartnership each knew of the agreement between Frazier and Reed when they came into possession of the notes in suit, together with the other notes.

There is no question presented in this case by the record that the appellee or the co-partnership, Wheatland Investment Company, were purchasers without notice of the contract between Reed and Frazier; that the note in question and all the notes taken over by the partnership should be held as junior notes, and the notes retained by Frazier should be entitled to priority in payment out of the proceeds upon foreclosure of the lien. The copartnership and the individual members thereof had notice of such contract when they took over the notes.

The apparent theory upon which the judgment was rendered is that, there was no indorsement on the notes that they were to be held junior in point of payment out of the proceeds, and that they were simply indorsed in blank by Jos. Frazier. The rule is es--tablished in this state, unless changed by agreement, where several notes are given for the same land, reserving a lien for their payment, and are assigned to different parties, all have equal rights to have satisfaction out of the land or proceeds upon foreclosure and this, without reference to the order in which they may have been assigned, or which first matured. Salmon v. Downs, 55 Tex. 247; Lewis v. Ross, 65 S. W. 505; Martin v. Gray, 159 S. W. 118. This was evidently the rule the trial court adopted in rendering the judgment. He must, in order to have reached the conclusion he did, have concluded the parties entered into a new and distinct agreement upon a new consideration. We have reached the conclusion there is no evidence in the record warranting that conclusion. The fact that the notes were indorsed by Frazier in blank is explained by such indorsement having been on them when they were placed in the bank under the agreement allowing Reed 30 days in which to sell all notes, both Reed’s and Frazier’s, and by the further fact that, when the Wheatland Investment Company took over the Reed notes, they were so indorsed, and by the stipulation of the receipt it was recognized that Reed had the right to sell the notes, and, as stated by Balaam, “with the understanding that had existed all along that, if Reed-Allen Realty Company should sell all of said notes, both Frazier’s and their own, Frazier would indorse said notes, all of them, as first, without recourse; otherwise the notes of the Wheatland Investment Company and the Reed-Allen Realty Company would be junior notes.” It would appear that the purpose of leaving the blank indorsement on the notes was to await the effort to sell the notes by Reed, as agreed upon. If that was done, then they should be junior notes. The failure to place the indorsement on the notes that they were junior notes appears to have been a matter of neglect rather than an agreement not to do so upon a new consideration. It is suggested that intervener’s note No. 3 was first delivered with the receipt and afterwards returned to Frazier in exchange for the note, and, in making such exchange of notes, they were dealt with as equals or on a parity. This did not change the agreement or make a new one. The notes so exchanged took the position of the notes under the terms of the contract occupied by the notes received in exchange. In other words, No. 3, from the position of a postponed lien note, became a preferred or prior lien note. There is not the hint of a consideration for a new contract in the record. If there was an agreement, there' was no consideration given to support it. The relation of the parties was not changed in the least. We therefore think there is no evidence upon which to base a finding of a new contract. The Wheatland Investment Company clearly accepted the notes as second lien notes, and understood they were such when they took them, and, as no third party or innocent holder is setting up any rights under the blank indorsement, we see no good reason why the agreement should not be carried out as made by all the parties and as understood by them. We think it is established by nearly all the courts, if not all, that a mortgage or a lien holder may legally agree with the assignee of a part that he shall have a preferred lien on the security over the assignees of the other notes, and such stipulation will be binding between the parties and all persons having notice. It is a matter of contract, lawful in itself, contravening no principle of law or public policy. Lewis v. Ross, 65 S. W. 505; Id., 95 Tex. 358, 67 S. W. 405; Anderson v. Perry, 98 Tex. 493, 85 S. W. 1138; Walcott v. Carpenter, 132 S. W. 981; Whitehead v. Fisher, 64 Tex. 638; Jones on Mortgages (6th Ed.) § 1702; Grattan v. Wiggins, 23 Cal. 31; Walker v. Dement, 42 Ill. 272.

We see no objection to a contract, as in this case, stipulating as to the notes retained by the mortgagee that the notes so retained by him should he a prior lien to the notes transferred to the assignee. If they could agree that the assignee’s notes should be prior, we think they could also agree the assignor’s note should be prior. The reason for making the agreement in this case is manifest. The notes taken over by the Wheatland Investment Company did not represent, in the true sense of the term, the contract price of the land, but represented the compensation to these two real estate companies in making a sale of the land to a certain syndicate. The owner of the land, in order to get his stipulated price, made the agreement that his note should be a first lien. The evidence does not disclose that a sale was, in fact, effected by the Reed-Alien Realty Company to the proposed syndicate. The sale was made only to a member of that concern, and the notes so agreed to be a junior lien were a compensation for his company’s services in selling to himself.

We believe the court was in error in decreeing by the judgment that the proceeds derived from foreclosure should be prorated between appellant and appellee. The judgment will here be reformed, directing that after paying the costs of sale the amount recovered by appellant, Florence Armstrong, be first paid out of the proceeds, and, if there is any remaining after paying off her judgment, that the residue, or so much thereof as shall be necessary be applied to the judgment of appellee, Geo. T. Parr. The judgment of the trial court is here reformed, and as reformed affirmed, and the costs of appeal taxed against the appellee.

On Motion for Rehearing.

It is urged in the motion that this court decided the case upon controverted facts. In this statement appellee is in error. The ease was disposed of on what we considered the uncontroverted facts. In addition to our former statement, we think 'the written agreement evidenced the facts that all the vendor’s lien notes were in the bank, subject to Frazier’s control, and that the notes which Reed was to receive were not delivered until they were delivered to the Wheatland Investment Company. That company at that time executed its receipt to Frazier for the notes, reciting that the Reed portion thereof were junior lien notes and should remain so, if Reed failed to sell all the notes — both his (Reed’s) and Frazier’s. The contract and receipt were interpreted at that time by the parties as making the Reed notes junior lien notes, and both Balaam and Nutting testified such was the understanding of the parties. There is no controversy on the question in the record that we are able to find. The ap-pellee, in his motion for rehearing, criticizes the opinion for a verbal inaccuracy. The word “not” is omitted in the following: “If that was done, then they should be junior notes.” It should read: “If that was not done, then they should be junior notes.” That is, if Reed did not sell the notes, both his and Frazier’s, then the notes held by Reed should be junior. That was the agreement and understanding. Balaam says so and so does Nutting.

In presenting the case originally, appellee attached importance to the blank indorsement on the notes. As it then appeared to us, and as we understood, appellee urged that the indorsement evidenced a waiver of the agreement, or a new contract. The un-controverted 'evidence is that, when the Wheatland Investment Company executed its receipt to Frazier for the notes, the blank indorsement was then on them. The evidence further showed such indorsement was on the notes while they and the contract were in the bank. This evidence we thought then, and now believe, conclusively rebutted any presumption that the indorsement in blank was a waiver of the contract or evidence of a new contract after the "Wheatland Investment Company got possession of them. As between the parties, the contract, receipt, and the admitted understanding fixed the dignity of the lien in Reed’s share of the notes. At most, the indorsement was but a presumption, and being on the notes when appellee’s copartnership accepted them under an express agreement that the Reed lien was a junior one, such indorsement was of no probative force. The expression used in the opinion, “That the saje was made only to a member of that concern” perhaps was sufficient to lead counsel for appellee to infer a finding by us that E. C. Reed was a member of the “syndicate.” We did not intend so to ■ find, but, on the contrary, did find and state in our finding that Reed was a member of the Reed-Allen Realty Company. The notes he executed to Frazier and which were to be junior lien notes represented the commission due the Reed-Allen Realty Company for services performed by Reed on his, firm’s account in selling to himself. We see no reason for changing our views on this case, and the motion is therefore overruled.


author: MeMEANS, J.

text:
    COTTON et al. v. BEATTY.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 19, 1913.
    On Motion for Rehearing, Dec. 18, 1913.)
    1. Usury (§ 106) — Compromise.
    The right to sue for usurious interest paid may be the subject of compromise and adjustment.
    [Ed. Note. — For other cases, see Usury., Cent. Dig. § 263; Dec. Dig. § 106.]
    2. Usury (§ 101) — Right to Sue por — Defenses.
    Where defendant made plaintiff a second usurious loan in consideration of plaintiff’s releasing his right to sue for usury in the first loan, that consideration is sufficient and the agreement a defense to the usury in the first transaction.
    [Ed. Note. — For other cases, see Usu,ry, Cent. Dig. §§ 260, 261; Dec. Dig. § 104.]
    3. Appeal and Error (§ 1175) — Determination — Remand.
    In an action for usury, where the trial court did not find whether plaintiff had executed a release of the usury, and its conclusion that the release was unsupported by consideration was erroneous, the Court of Civil Appeals must reverse and remand the cause, and cannot finally dispose of it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    On Motion for Rehearing.
    4. Usury (§ 100) — Payments—Application.
    Payments made upon a contract affected with usury are applied by law as payments upon the principal, even though paid and received as interest.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 219-234; Dec. Dig. § 100.*]
    5.Usury (§ 104) — Defenses — Consideration.
    Where a usurious loan had already been discharged, the payments more than equaling the principal, an agreement to release «all rights of action for usury, made in consideration of an extension, was without consideration and was no defense.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 260, 261; Dec. Dig. § 104.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Henry Beatty against Almon Cotton and others. From a judgment for plaintiff in justice court, defendants appealed to the county court, and from an adverse judgment there, they again appeal.
    Reversed and remanded.
    J. Y. Meek, of Houston, for appellant. Geo. G. Clough, of Galveston, for appellee.

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

   MeMEANS, J.

Henry Beatty, appellee, brought this suit in the justice court against Almon Cotton and G. E. Cotton, appellants, to recover for usurious interest alleged to have been paid by him to appellants. A trial in the justice court resulted in a judgment for appellee, from which an appeal was prosecuted by appellants to the county court, where, on a trial before the court without a jury, a judgment was again rendered for ap-pellee, and, from this judgment, the appellants hav.e prosecuted this appeal.

Appellants filed their answer in the justice court, wherein among other things, they pleaded that appellee was estopped to sue them on the cause of action asserted, for that, on the 17th day of April, 1912, the plaintiff being desirous of selling to G. E. Cotton a certain portion of his wages to be earned under a then existing contract, did on that day make and execute the following settlement release, and thereafter on June 17th, plaintiff being desirous of again selling a portion of his unearned wages, made and executed to appellant the following settlement release:

“Galveston, Texas, 4/17/12.
“Whereas I have heretofore at different times sold and assigned to G. E. Cotton and also to Almon Cotton, while he was owner of the Texas Loan Company, each of said assignments having been paid or finally settled, and being desirous of selling to G. E. Cotton this day twenty ($20) dollars of my salary or wages, earned and to be earned as shown by my assignment, this day executed to Texas Loan Company, G. E. Cotton, being sole owner, and, as an inducement to get G. E. Cotton to purchase same, I do now here release and discharge any and all claims that I might have had against said loan company, or any former owner thereof as well as G. E. Cotton, and do here bind myself to never in the future ask for, demand or sue said Loan Company or any former owner thereof or G. E. Cotton or any claim or demand of any character growing out of any transaction or contract of any kind heretofore made with the agents or owners of said Loan Company. [Signed] Henry X Beatty. mark
“G. E. Cotton,
“By N. T. Andres.
“Witness: N. T. Andres.”
“Galveston, 6/17/1912.
“Whereas I have heretofore at different times sold and assigned to G. E. Cotton and also Almon Cotton, while he was owner of the Empire Loan Company, each of said assignments having been paid or finally settled, and being desirous of selling to G. E. Cotton this day ($18.00) eighteen dollars of my salary or wages, earned and to be earned as shown by my assignment, this day executed to Empire Loan Company, G. E. Cotton being sole owner, and as an inducement to get G. E. Cotton to purchase same I do now here release and discharge any and all claims that I might have had against said loan company, or any former owner thereof, as well as G. E. Cotton, and now here bind myself to never in the future ask for, demand or sue said loan company or any former owner thereof or G. E. Cotton, or any claim or demand of any character growing out of any transaction of any kind heretofore made with the agents or owners of said loan com-
his
pany. [Signed] Henry X Beatty.
mark
“G. E. Cotton.”

In the county court the appellee by a supplemental petition replying to appellants’ plea of estoppel, pleaded as follows: “Plaintiff further says: That the alleged release or releases, if any, he executed, which he denies, are without consideration to him and void; that he received nothing of value therefor; that he cannot read or write, and if the defendants have such a document as pleaded by them, the same is a fraud upon him; that he did not sign same, and that the same was never read to him; and that the witness N. T. Andres is an employe of the defendants, and engaged in the loaning of money at 20 to 25 per cent, interest, and plaintiff believes is one of the agents of the defendants from whom he borrowed the money on which he paid usurious interest, and one of 'the persons in the employ of defendants to whom he paid usurious interest, and that his cross-mark on the same is forged; and that there was no consideration therefor.” This pleading was verified by the affidavit of appellee.

On the issues thus joined, and after the releases above set out had been introduced in evidence, the following testimony was heard: M. M. Dutton testified: “I was in G. E. Cotton’s employ last June; on the 17th day of June last year I was at the Empire Loan Company, 411 Twenty-Ninth street. X have in my hand a mutual release. I wrote it; Henry Beatty signed it. He was- at the Empire Loan Company on the 17th day of June; I know that positively; I remember the man being there on that day, and he actually executed that instrument. I gave him $15 on the 17th day of June. I took from him a sale of wages that he executed on that date. I saw the man execute that instrument, and I tell the court positively that he executed it and I witnessed it.” The witness, continuing, testified that the appellee took up his assignment on that day and he bought- more of his time on that day; that he bought $18 worth of his time and gave him $15 for it. The witness says: “I demanded of this man to execute that instrument before I would buy that salary.”

Appellee denied that he had signed and delivered either of the releases, and further testified that, while he was in Galveston on April 17th, the date that one of the instruments bears, he was not in Galveston, but in Navasota, on June 17th, the date of the other. Robert Allen testified that he was with appellee in Navasota on June 16th.

The court filed its findings of fact and conclusions of law, the fourth and fifth paragraphs of the fact findings being as follows:

“(4) I find that the defendants did not purchase from the plaintiff any part of his salary as an employe of the Pullman Company, and that the alleged transaction was not a purchase of salary, or an assignment thereof, but simply a scheme resorted to by the defendants in an effort to evade and defeat the law against usury.
“(5) I find that the alleged release pleaded by defendants to have been executed by the plaintiff was without consideration good or valuable in law to the plaintiff, and that.the only consideration for the execution of same, if it was executed, was the making of a new ■usurious contract between plaintiff and defendants ; that the true consideration therefor, if any, was a new loan to be repaid by the plaintiff, at 20 per cent, interest per month.”

The second paragraph of the court’s conclusions of la\v is that: “An alleged release of a valuable claim or right, purporting to release claims for usury, will be disregarded, when shown to be without consideration good or valuable in law, or where the basis for the release was the entering into of an entirely new usurious undertaking wholly for the benefit of the person in whose favor the release purports to have been executed.” The conclusion is attacked by appellants by an appropriate assignment of error, and the assignment must be sustained.

It will be seen from the above quotation from the court’s findings of,fact the court found that the only consideration for the execution of the release, “if it was executed,” was the making of a new usurious contract between the parties, and that the true consideration therefor was a new loan at an usurious rate of interest; and upon this finding is based the conclusion that where the consideration of the release was the loan of an additional sum of money at an usurious rate of interest, such consideration was not good or valuable in law. The court did not find that the releases were not in fact executed by appellee, although ap-pellee denied their execution by him. In Cotton v. Thompson, 159 S. W. 460, this court said: “There is no question that a right to sue for usurious interest paid may be the subject of compromise and adjustment. Stout v. Bank, 69 Tex. 392, 8 S. W. 808. But such compromise and adjustment, to be valid, should be entered into in good faith, and the right to recover the usury waived by the prayer for a sufficient consideration.” In that case we held that no consideration for the execution of the release was prayed, and that therefore plaintiff was not estopped to sue for the recovery of the amount illegally exacted of him as interest. In Stout v. Bank, supra, it was held that the extension of time for the payment of notes was a sufficient consideration for the execution of such a release. In the case at bar, it was shown by the testimony of appellant’s agent that appellee executed the release upon the consideration that appellants would make a new loan to him, and that they would not make the loan until ap-pellee signed the release. This was denied by appellee in his testimony, but, as before stated, the court did not make a finding on this issue, assuming that, even if the release was executed, the only consideration therefor was the new usurious undertaking, and that it was not a consideration deemed good or valuable in law. To this conclusion we cannot assent, for the reasons above indicated. If appellee did, in fact, execute the release in order to procure a new loan from appellant, even though at a usurious rate of interest, and if appellant would not have made the loan unless appellee should first execute the release, the release would be upon a valuable consideration and binding upon appellee, and he would be estopped to sue for a recovery of the usury.

In the absence of a finding by the trial court as to whether the release was, in fact, executed, and, if so, whether upon a valuable consideration, this court cannot here render such judgment as should have been rendered by the court below, and therefore the judgment is reversed, and the cause remanded.

Beversed and remanded.

On Motion for Rehearing.

We have carefully examined appellee’s motion for a rehearing and have concluded that the same should be overruled, and it has been so ordered.

To the end that there may be no misapprehension of our decision, we have deemed it well to add that we recognize the rule stated in Cotton v. Thompson, 159 S. W. 460,. and in Loan Association v. Biering, 86 Tex. 476, 25 S. W. 622, 26 S. W. 39, that each payment made upon a contract effected with usury is a payment of the principle, applied by law, notwithstanding it was paid and received as payment of interest. The testimony in the record shows that appellee paid to appellant, in the way of interest, sums of money sufficient to discharge the amount of the principal several times over. If the contract was usurious, and the various transactions thereafter between the parties were 'merely renewals of the original loan, the principal had been paid long before the loan in question was applied for and obtained, and had the last transaction been merely an extension at that time of the sum claimed to be due as the principal of the debt, the extension would not have been a sufficient consideration for the execution of the release. But in this ease appellants’ agent testified that he made a new loan to appellee, and that the release was executed in consideration of the new loan. The trial court made no finding on this point, nor as to whether the release was in fact executed by appellee. If this testimony is true, and the release was executed in consideration of the making of a new loan to appellee, the release would be binding upon him and preclude his recovery. This ruling is in harmony with Stout v. Bank, 69 Tex. 392, 8 S. W. 808, and in accord with principle.


text:
    GULF & I. S. RY. CO. OF TEXAS v. BLALOCK.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Carriers (§ 93) — Delivery of Goods— Conversion.
    Where a ear of melons shipped to G. by mistake was billed to B., so that when it reached G. it was put in the next train back to B., and the shipper paid the freight at G. to an agent who did not know that the car had been started back, and informed such agent of a sale on the siding, and as soon as the mistake was discovered the car was brought back to G. and tendered to the shipper but too late to enable the shipper to complete the sale, there was no “conversion” rendering the carrier liable for the value of the goods.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 299, 356-362; Dec. Dig. § 93.J
    2. Carriers (§ 102) — Delay in Delivery— Damages.
    In such case the shipper’s only cause of action was one for damages for delay in delivery.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 434; Dec. Dig. § 102.]
    3. Carriers (§ 105) — Delay in Delivery-Measure of Damages.
    The measure of damages in an action for delay in the delivery of goods is the difference between their market value at the time they should have been delivered by- the use of ordinary care and their market value at the time delivery was made.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dee. Dig. § 105.]
    4. Cakeiebs (§ 105) — Delay in Delivery— Special Damages — Notice.
    Where a shipper informs a carrier of the terms of his contract of sale at the time a car of melons is shipped, the carrier would be liable to him for any loss sustained from his inability to perform his contract, if due to its negligence in not delivering the melons within a reasonable time, the measure of damages being the difference between the contract price and their market value when delivery was made; but notice of the contract of sale given the carrier’s agent on payment of the freight at destination, would not make the carrier liable for special damages, when through mistake it was impossible after notice to have delivered the car in time for the performance of such contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.)
    Appeal from Galveston. County Court; George E. Mann, Judge.
    Action by W. E. Blalock against the Gulf & Interstate Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, for appellant.

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

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

   PLEASANTS, C. J.

This suit was brought by appellee against appellant to recover the sum of $114. The cause of action is alleged in plaintiff’s petition as follows: “That on or about July 24, 1912, plaintiff shipped to Galveston, Tex., one car of watermelons; that said car arrived in Galveston on the 24th day of July, 1912; that on the morning of the 25th day of July, 1912, plaintiff paid the freight money due on said car to defendant and asked defendant to place said car at a convenient point of unloading the same not later than 10 o’clock on the morning of July 25, 1912, which said request was agreed to; that defendant wholly failed to place said car, but sent the same to another and different place and city; the defendant had obligated itself to this plaintiff to deliver said car to plaintiff and place said car as heretofore related in precinct No. 1, Galveston county, Tex.; that plaintiff had arranged to sell said ear of melons, and had sold the same for delivery not later than 10 o’clock on the morning of July 25, 1912, and that plaintiff alleges that the failure of defendant to comply with its contract with him has and did result in a loss to plaintiff of the value of the melons, to wit, $100, and the loss of the freight money paid, to wit, the sum of $14, a total damage of $114; that .plaintiff has demanded the said sum of $114 from defendant, and payment of the same has been refused, to plaintiff’s damage in the sum of $114, Wherefore, the premises considered, plaintiff asks that defendant be cited to appear and answer this petition, and that upon a trial hereof that he have judgment against defendant in the sum of $114 and for costs of suit.”

Defendant answered, admitting that the car had been shipped July 24, 1912, hut denying that it had converted same, and alleging that it had tendered the same to plaintiff at about 4 p. m. July 25, 1912, and that same had been refused. Defendant further answered that it had no notice that the shipment was sold for delivery at any particular time, and further that after the refusal of same the plaintiff advised that he would waive the statutory notice in regard to the sale of unclaimed and refused freight, and requested that same be sold immediately, that defendant sold same through a leading local dealer, realizing the net sum of $21, and this amount defendant tendered to the plaintiff both in the county and justice courts, and the same was refused. The trial in the court below without a jury resulted in a judgment in favor of plaintiff for the sum of $114.

The evidence shows that plaintiff, who lives near Patton, a station on appellant’s railroad about 18 miles from the city of Galveston, shipped a car load of melons on July 24, 1912, over appellant’s road from said station to the city of Galveston. He had contracted to sell the melons to a dealer in Galveston, before they were shipped, for $100 and the freight charges from Patton to Galveston. At the time the contract of shipment was made, no notice of the contract of sale between plaintiff and the Galveston dealer was given the appellant. The contract of sale provided that the car of melons should be delivered to the purchaser on a railroad siding at the foot of Twentieth street in the city of Galveston by 10 o’clock on the morning of July 25, 1912. The car of melons reached Galveston on the evening of July 24th, but, by a mistake of the appellant’s agent at Patton, the car was billed to Beaumont. When the car checker at Galveston discovered that the car was billed to Beaumont, he supposed that it had been sent to Galveston by mistake and placed it in the next train going back to Beaumont, which left Galveston about 6 o’clock on the morning of 25th. Plaintiff, who had come to Galveston on the evening of the 24th for the purpose of having the car of melons delivered to the purchaser on the siding in accordance with the contract of sale, went to appellant’s freight office about 8 o’clock on the morning of the 25th and paid the freight charges from Patton to Galveston, $14, and requested appellant’s agent to whom he. paid the charges to have the car placed on the siding before mentioned by 10 o’clock, telling him that he had sold the melons for $100 and the freight charges and had agreed that they would be placed on the siding by the time mentioned. This agent did not know at the time appellant paid the charges and requested that the car be placed on tbe siding that it had been started back to Beaumont. As soon as this was discovered by the use of the telegraph the car was taken from the train on its way to Beaumont and returned on the next train coming to Galveston, which reached that city about 3 o’clock on the evening of the 25th. About 4 o’clock on that evening the car of melons was placed on the siding and plaintiff notified of that fact. In the meantime the purchaser had bought other melons and would not take plaintiff’s, and plaintiff refused to receive the shipment from appellant. Plaintiff waived the statutory notice and authorized appellant to sell the melons for its own account at such time as it thought best. They were at once turned over by appellant to a commission broker and were sold for a price which after deducting the cost of sale netted $21. These facts do not sustain the judgment of the trial court.

We think it clear that there was no conversion of the melons by appellant, and plaintiff was not entitled to recover their value; his only cause of action being one for damages for delay in delivery. Ry. Co. v. Somerville Mercantile Agency, 104 S. W. 1072; Ry. Co. v. Wortham, 154 S. W. 1071.

The general measure of such damages would be the difference between the market value of the melons at the time they should have been delivered by the use of ordinary care on the part of appellant and their market value at the time delivery was made.

If appellant had been informed of the terms of the contract of sale at the time the melons were shipped, it would be liable to plaintiff for any loss sustained by him by reason of his inability to perform his contract of sale, if due to the negligence of appellant in failing to deliver the melons in a reasonable time, and the measure of such loss or damage would be the difference between the contract price of the melons and their market value at the time delivery was made. The notice of the contract of sale given appellant’s agent by plaintiff at the time he paid the freight on the morning of the 25th would not make appellant liable for special damages sustained by .plaintiff because of his failure to consummate the sale. The car of melons was not in Galveston at that time, and, because of the mistake in the billing, it was then being sent back to Beaumont, and it was not possible for appellant, after it received this notice, to have delivered the car sooner than it did, and the principle upon which the carrier was held liable for such special damages in the case does not apply. Bourland v. Ry. Co., 99 Tex. 407, 90 S. W. 483, .3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647; Ry. Co. v. Cherry, 129 S. W. 152.

These objections to the judgment are made under appropriate assignments presented in appellant’s brief, and the assignments must be sustained. It follows that the judgment of the court below should be reversed, and the cause remanded, and it has been so ordered.

Reversed and remanded.