source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    AMERICAN SURETY CO. OF NEW YORK v. HARDWICK.
    (No. 7509.)

    (Court of Civil Appeals of Texas. Dallas.
    May 6, 1916.
    On Rehearing, June 3, 1916.)
    1. Guardian and Waud &wkey;>20 — Termination oe Guardianship — Majority oe Ward.
    A guardianship proceeding is terminated when the ward reaches majority.
    [Ed. Note.—For other cases, see Guardian and Ward, Dec. Dig. <&wkey;>20.]
    2. Guardian and Ward <&wkey;182(2)—Account-ing—Actions—Condition Precedent.
    To authorize the county court to entertain suit against the guardian or his surety, for funds of the estate alleged to have been misappropriated, it is not necessary that such court sitting in probate shall have required a final report and judicially determined the amount due, whore the ward has reached majority.
    [Ed. Note.—For other cases, see Guardian and Ward, Cent. Dig. §§ 627, 630-636; Dec. Dig. &wkey;182(2).]
    3. Guardian and Ward <&wkey;64' — Suits Against Guardian—Amount oe Recovery.
    Although the guardian loaned estate money under court order, to his brother, and failed to> collect interest or principal, and failed to record the trust deed given as security, and finally lost it, and also sold the land covered by such deed to ah innocent purchaser without protecting the ward’s interest, if he could have loaned the money at the rate of interest allowed by the court he is liable for principal and interest, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4150, providing that the guardian shall be liable for interest if he neglects to loan the estate funds at interest, and could do so with reasonable diligence.
    [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 294-299; Dec. Dig. &wkey;64.]
    4. Appeal and Eriror &wkey;>1008(l) — Scope oe Review — Weight oe Evidence.
    The determination where the preponderance of evidence lies being for the trial court, the court on appeal is without power to disturb its judgment in that regard.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3965, 3956, 3959; Dec. Dig. &wkey;1008(l).]
    5. Appeal and Error <&wkey;>1032(l) — Scope oe Review — Harmless Error.
    Without a showing of injury from the error of the trial court complained of, the ’error is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047, 4051; Dec. Dig. <&wkey; 1032(1).]
    On Rehearing.
    6. Guardian and Ward &wkey;>151 — Compensation oe Guardian — Commissions.
    The general rule is that, when a guardian knowingly and wrongfully fails to account to his ward, he is not entitled to a commission on the sums expended for the ward, in her suit to compel an accounting.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 501; Dec. Dig. <&wkey;>151.]
    7. Guardian and Ward <&wkey;151 — Compensation oe Guardian — Commissions.
    Whether a guardian has knowingly and wrongfully failed to account to his ward is a question of fact.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 501; Dec. Dig. &wkey;151.]
    8. Guardian and Ward <&wkey;151 — Compensation of Guardian — Commissions.
    Where the ward, due to the guardian’s mismanagement of the estate principal, was driven to the necessity of suing for accounting with attending expenses and loss to the estate, it is inequitable to reduce the estate by allowing commissions to the guardian on sums expended for the ward, but they should be offset against the expense of the suit.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 501; Dec. Dig. &wkey;151.]
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Action by Ruby and Emmett Hardwick against M. D. Hardwick, guardian, and the American Surety Company of New York. Judgment for plaintiffs, and defendant Surety Company appeals.
    Affirmed.
    W. T. Jackson, of Groesbeck, and Fiset, McClendon & Shelley, of Austin, for appellant. E. V. Hardwick, of Bandera, and C. S. Bradley, of Groesbeck, for appellees.

       Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellees, Ruby and Emmett Hardwick, sued M. D. Hardwick, as guardian, and appellant, American Surety Company of New York, surety on the guardian’s bond, in devastavit to recover approximately $5,200. The guardian, in writing, voluntarily waived service of citation and entered his appearance in the suit; but made no-defense thereto. Appellant, American Surety Company, by appropriate pleading, challenged the jurisdiction of the district court, admitted the appointment and qualification of the guardian with appellant as surety on his bond, alleged settlement and release by Emmett Hardwick from all liability to him (which was conceded by appellees in subsequent pleading), and affirmatively charged that all funds belonging to the estate of Ruby Hardwick expended by the guardian-had been properly expended for her support and maintenance. In view of the issues presented on appeal, the foregoing is a sufficient statement of the pleading. A jury was waived, and upon a hearing before the district judge the plea to the jurisdiction was overruled and judgment rendered in favor of appellant on the claim of Emmett Hard-wick and against appellant American Surety Company and the guardian, who has not appealed, in favor of Ruby Hardwick for $2,-118.53, with interest from entry of judgment at 6 per cent, per annum. From the judgment so entered against it the American-Surety Company has prosecuted this appeah [1, 2] The first issue presented is the action of the court in overruling appellant’s plea challenging the jurisdiction of the court. The plea is sufficient in form and is bottomed upon the agreement of the parties that at the time the suit was commenced and at a trial the guardianship proceeding was pending in the probate court of Limestone county, and that the guardian had not been cited to file his final account therein and had not in fact filed such account. In connection with the agreed facts so recited, it appears without dispute from the evidence that Ruby Hard-wick was more than 21 years of age when the suit was commenced. The precise contention of áppellant is that the plea should have been ■sustained because the guardianship was pending and because no final account had been made by the guardian nor had he been cited to do so. The amount sued for, as disclosed by the petition, was in excess of $5,000, an amount over which the probate court had neither original nor concurrent jurisdiction. Incidentally it has been held that the county court, sitting in probate, cannot render judgment against the sureties upon a guardian’s bond, for an amount found by that court to be a liability against the guardian, in excess of the amount cognizable in the county court in civil matters under the Constitution. Tim-mins v. Bonner & Long, 58 Tex. 554. The real contention of appellant, however, as disclosed by counsel’s argument and based upon the several statutory articles defining the duties and liabilities of guardians, is, not that the county court sitting in probate may render judgment against the guardian for a sum in excess of the jurisdiction of the county-court, but that it is the sole and exclusive function of that court sitting in probate to fix and establish, by its judgment the status of accounts between guardian and ward, and then, and not until then, may the court in which the sum so established is cognizable entertain a suit against the surety to recover such sum. The issue is not one of first impression and has been decided adversely to appellant’s contention several times. In Tim-mins’ Case, supra, our Supreme Court ruled that upon the termination of a guardianship proceeding, however brought about, the probate court is without power to render any decree against the former guardian. Obviously such proceeding is terminated when the ward reaches his or her majority. Eater, in the case of Port v. Fitts, 06 Tex. 593, 1 S. W. 563, in adverting to the Timmins Case the Supreme Court say:

“But no stress was laid upon the fact that the amount of defalcation had been ascertained in the county court before bringing suit on the bond. On the contrary, in the cases cited as authority for the decision, it had been expressly held that it was not necessary to establish, the devastavit in the county court before proceeding upon the bond; and this principle was sanctioned in the opinion. * * * To hold such accounting a condition precedent to the right of action in the district court upon the bond * * * is against the spirit of our system of jurisprudence, which discourages a multiplicity of suits, * * * and is directly contrary to the previous decisions of this court.”

The rule has been reaffirmed in Richardson v. Knox, 14 Tex. Civ. App. 402, 37 S. W. 189; Hix v. Duncan, 99 S. W. 422; American Bonding Co. v. Logan, 132 S. W. 894; Kretzchmar v. Pesehel, 144 S. W. 1022.

It is next urged that the court erred in allowing appellee 8 per cent, per annum interest on $1,403 found to be due the appellee by the guardian. The reason assigned why the interest should not have been allowed as disclosed by the assignment is because the money was loaned under approval of the probate court and because the guardian had not or could not collect the interest so allowed. At the point in the statement of facts pointed out by this assignment it appears from the guardian’s statement that he was authorized by the probate court to loan funds of his wards to his brother, and that he did so, taking as security a deed in trust on lands. He failed to record the deed in trust, and finally -lost it. He also acquired the land individually, and finally sold it to an innocent purchaser without protecting the ward’s interest. He did not as matter of fact collect any interest on the loan, nor presumably the principal; but there is testimony in the record that he could have loaned the money at the rate of interest allowed by the court and no reason given by the guardian or appellant why he did not do so. In such case the court was authorized to allow interest. Article 4150, Vernon’s Sayles’ Stats.

The next issue presented is that the ■court should have allowed the guardian the sum of $415 as an offset against his ward because the preponderance of the evidence disclosed that said sum had been expended in behalf of the ward. The preponderance of the evidence on a given issue is for the trial court to determine, and, the trial judge having found that the evidence sustains the claim that such sum was not expended in behalf of the ward, we are without authority to disturb the judgment.

The remaining assignments of error complain of the action of the trial court in overruling appellant’s special exceptions attacking the sufficiency of the allegations of appellee’s petition. Without entering into details of the matter, we think the petition was sufficient to put appellant upon notice of the facts sought to be established as basis for the judgment prayed for. However, no showing is made that any injury resulted from the action of the court in the respect stated, and hence the action, if erroneous, is harmless.

Finding no reversible error in the record, the judgment is affirmed.

On Rehearing.

Appellant earnestly argues that we erred in affirming the judgment of the trial court; but, after a careful reconsideration of the issues, we feel constrained to adhere to our former opinion. Counsel, however, requests . a statement of our views concerning the issue raised by appellant’s fifth assignment of error, which was overruled, and not discussed in our opinion. Said assignment complains of the refusal Of the trial court to allow appellant, the guardian’s surety, as an offset to the judgment rendered against it, the statutory commissions of 5 per cent, on sums shown to have been expended in support and maintenance of ap-pellee. The general rule is that, when a guardian knowingly and wrongfully fails to account to his ward, he is not entitled to commissions in a suit to compel accounting. Thomas v. Hawpe, 35 Tex. Civ. App. 311, 80 S. W. 129. Whether the guardian has so knowingly and wrongfully failed to account is a question of fact. Crawford v. Hord, 40 Tex. Civ. App. 352, 89 S. W. 1097.

Many reasons, depending for their force upon the situation of the parties, could be urged in support of the rule. In the instant case, appellee, due to the mismanagement of appellant’s principal, was driven to the necessity of suing, with the attending expense and consequent loss to the estate, which it was the guardian’s duty to preserve. We think it would be inequitable to further reduce the estate by allowing commissions to the guardian, by whose misconduct the loss was occasioned, and that the court was authorized, in balancing the equities of the proceeding, to offset the statutory commissions with the expense occasioned by the guardian.

We conclude therefore, the mismanagement being in effect conceded, that the trial court did not err in refusing to allow the offset for the benefit of appellant.

The motion for rehearing is overruled.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. CORN et al.
    (No. 574.)
    (Court of Civil Appeals of Texas. El Paso.
    May 11, 1916.
    Rehearing Denied June 8, 1916.)
    1. Carriers @=>218 (5) — Live Stock — Limitation oe Liability — Validity.
    The limitation upon the carrier’s liability contained in a contract for an interstate shipment of live stock at a reduced rate prescribed by the interstate commerce commission was valid and enforceable. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).] 2. Cabbiers @=>218(7) — Damage to Live Stock — Amount—Construction of Bill of Lading. Under a bill of lading stipulating that in case of total loss of any Eve stock covered by the contract for which the carrier should be liable the value was the actual cash value at the time and place of shipment, in no case to exceed $10 for each calf, and that in case of injury or partial loss the amount claimed should not exceed the same proportion, a recovery on findings of the jury that there was a depreciation of 5 per cent, on a valuation of $30, or $1.50 per head, limited the shipper’s recovery to 5 per cent, of the agreed valuation, or 50 cents per head. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 946; «Dec. Dig. <&wkey; 218(7).] 3. Cabbiers <&wkey;218(7) — Carbiage of Stock-Shipping Contract — Construction. Such agreement in the shipping contract could have no application in the case of the deliberate conversion of an animal or its proceeds by defendant or its agents, so that it was not a loss within the meaning of the contract. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67^-696, 946; Dee. Dig. 218(7).] 4. Cabbiers @=>229 (2) — Ihve Stock — Conversion — Damages. In such case, the defendant railroad was liable for the value of the converted animal at destination in the condition in which it would have arrived but for its «negligence or conversion. [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 964; Dec. Dig. &wkey;229(2).] 5. Careiers <&wkey;229(2) — Injury to Live Stock — Damages. A carrier of live stock, in the absence of any special contract, is liable for the full amount of its depreciation caused by its negligence. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dee. Dig. @=>229(2):] 6. Carriers @^218(7) — Live Stock — Action for Damages — Classification—Estoppel. • In an action for damages to a shipment of live stock, party under a written contract at a reduced rate in consideration of a reduced valuation, the shipper having classified them in the contract 'as calves, could not claim that they should have been properly classified as older animals. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 946; Dec. Dig. &wkey; 218(7).]
    7. Evidence @=>472(4) — Conclusions—Pro v=--,-ince of Jury. ' - ( In an action for damages to a shipment of live stock, plaintiff’s testimony, as to the value; of the cattle at destination when they should , have arrived if handled in the usual ordinary' time and with due dispatch, was a mixed question, of law and fact, invading the province of, the jury, and inadmissible. [Ed. Note. — For other cases, see Evidence,, Cent. Dig. § 21S9; Dec. Dig. &wkey;472(4).] . . 1 8. .Carriers @=>226 — Live Stock — Action for Damages — Parties. A joint owner of a shipment of live stock-, was properly joined as plaintiff in a suit fot. damages to the shipment; nothing in the Car-mack Amendment (Act June 29, 1908, c. 3591,= § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. StB 1913, § 8592]) depriving him of his right to join,, in the suit and recover. [Ed./Note. — For other cases, see Carriers, Dec. Dig. @=>226.] • , . . 9. Carriers &wkey;22S(3) — Injury to Live”' Stock — Evidence. ¡ Plaintiff's testimony that there was no at-! tempt to feed and water the stock at any other; than a certain place, in view of his 36-hour re-’ lease, whereby the carrier was authorized to, keep the stock in the cars for that time without-feed, water, or rest if necessary, was inadmissible. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. @=>228(3).] ,•= 10. Appeal and Error =@=31051 (3) — Harm-., less Error — Admission of Evidence-^Ad-' mitted Fact. ■ In such case, where it was admitted that defendant had not attempted to feed .and water the cattle at any other than at a certain place,, it could not have been reversible error to permit plaintiff to testify to that fact. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4164, 4167; Dec. Dig. @=> 1051(3).] 11. Evidence <&wkey;258(l) — Declarations—Ah-' MISSIBILITY. In an action for damages to a shipment- of live stock,.testimony of plaintiff, as to a conver-, sation which he heard between the conductor of his train and some employés of the road’s receivers relative to the cause of the wreck which’ delayed the shipment, was inadmissible, .where the conductor was not shown to be authorized to make such statements. , [Ed. Note. — For other cases, see Evidence,’ Cent. Dig. § 1006; Dec. Dig. @=3258(1).] 12. Carriers @=>212 —Live Stock — Negli-’ gence. It is the duty of a carrier of live stock: to deliver it with a reasonable degree of care and caution. ’ y [Ed. Note. — For other cases, see Carriers,, Cent. Dig. §§ 918, 919; Dec. Dig. &wkey;212.] 13. Appeal and Error @=>768 — Assignments of Error — Statement — Assumption of, Truth. Where an assignment complained of the-submission of an issue as to what was an ordinarily reasonable time for the transportation of cattle between two points, because there was no evidence as to what was an ordinarily rea--sonable time for such transportation, and such) statement of fact was not contested by the apt pellee, the court, under the express provision, of rule 41 for Courts of Civil Appeals (142 S.' W. xiv), would assume it to be true. ’ ' [Ed. Note. — For other cases, see Appeal find-Error, Cent. Dig. § 3103; Dec. Dig. @=>768.}!

      14. Trial <&wkey;252(7) — Instructions — Evi- . DEJNCE. In an action for damages to a. shipment of live stock, where there was no evidence as to what was an ordinarily reasonable time. for the transportation of cattle between two points, the issue as to reasonable time should not have been ■submitted. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 602; Dec. Dig. &wkey;252(7).] 15. Appeal and Error <&wkey;231(l) — Objection — Issues. Where the objection urged to the submission of an issue was too general, an assignment of error in its submission would be overruled. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1352; Dec. Dig. &wkey;231(l); Trial, Cent. Dig. §§ 194, 689, 690.] 16. Trial <&wkey;251(2) — Instructions—Issues. In an action for damages to a shipment of live stock, a requested instruction that,' when the train came back to a point where the stock was watered, the receivers of the carrier then operating the road were required by the federal statutes to give the train crew not less than 10 hours consecutive rest, was properly'refused, because irrelevant to the issues. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 589: Dec. Dig. &wkey;251(2).] 17. Trial <&wkey;240 — Argumentative Instructions. Argumentative instructions are properly refused. , [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. &wkey;240.] 18. Trial &wkey;194 (1) — Instructions—Weight oe Evidence. Requested instructions on the weight of the evidence are properly refused. [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 413, 436, 439, 440, 450; Dec. Dig. <&wkey; 194(1).]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Suit by Frank Corn and another against the Kansas City, Mexico & Orient Railway Company of Texas and another. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    H. S. Garrett, of San Angelo, D. J. Brook-reson, of Benjamin, and Baker, Botts, Parker & Garwood, of Houston, for appellants. A. G. Heath, of Ft. Worth, and Jas. A. Stephens, of Benjamin, for appellees.
   HIGGINS, J.

Frank Com and Joe N.

Payne brought this suit against the Kansas City, Mexico & Orient Railway Company of Texas, which we will designate as the “Orient,” and the Galveston, Harrisburg & San Antonio Railway Company, to recover damages to a shipment of 15 cars containing 808 head of cattle shipped from Marathon, Tex., to Hardy, Okl. The shipment moved from Marathon to Alpine, Tex., over the line of the second-named defendant; thence to destination over the line of the Orient and its connecting carriers. Eleven cars of the ■shipment containing 592 head were shipped under a written contract at a reduced rate. In consideration of such reduced rate, it was stipulated in the bill of lading, as follows:

“In case of total loss of any of the live stock covered by this contract from any cause for which said first party shall be liable, it is agreed that the value thereof is the actual cash value of the same at the time and place of shipment, but in no case to exceed $100.00 for each horse, mare, pony, gelding, stallion, mule or jack; $30.-00 for each ox, bull or steer; $30.00 for each cow; $10.00 for each calf or hog; $3.00 for each sheep or goat; and in case of injury or partial loss the amount claimed shall not exceed the same proportion.”

In the contract the animals are designated as calves. The record is silent as to the nature of the contract under which the remaining four cars containing 216 head were shipped. The plaintiffs executed a 36-hour release, whereby the carrier was authorized to keep the cattle in the cars for that length of time without feed,' water, or rest, if it became necessary so to do in order to reach destination. At the time of the shipment, the line of the Orient was being operated by receivers, who have since been discharged. In the order of discharge the property of said defendant was charged with all liabilities incurred by the receivers arising out of operation, and said defendant assumed all such liabilities.

With the exception of one head which was left at Benjamin, Tex., all of the animals were delivered alive at destination. Whatever injuries they sustained while in transit were occasioned by delays and improper handling to which they were subjected while in transportation over the Orient line. The evidence does not disclose any undue delay or improper handling of the shipment while in possession of the initial carrier and connecting lines of the Orient. The train transporting this shipment was delayed for some hours at Benjamin, Tex., on the Orient line, and at that point the cattle were unloaded and placed in pens for feed, water, and rest. There is evidence that these pens were muddy and sloppy and in an unsuitable condition. The delay at Benjamin was occasioned by a wreck some distance north of that place at Crowell Water Station. One animal was left in the pens at Benjamin which was thereafter converted by the receivers or their station agent at that point.

The cause was submitted to a jury upon special issues. The issues and answers thereto are here given, viz.:

“1. Was the shipment of cattle in question handled by the railway companies with a reasonable'degree of care and caution? Answer: No.
“2. Were the .railway companies negligent in handling the shipment of cattle in question? Answer: Yes.
“3. Were the stock pens and watering troughs therein at Benjamin, Tex., where the cattle were loaded, in a reasonable good condition? Answer: No.
“4. What was an ordinarily reasonable time for the transportation of the cattle from Marathon, Tex., to Hardy, Okl.? Answer: Sixty hours.
“5. Was the time that the cattle were in transit from Marathon, Tes., to Hardy, Okl., in ordinarily reasonable time? Answer: No.
“6. How long were the cattle in question in transit from Marathon, Tex., to Hardy, Okl.? Answer: About 48 hours and 45 minutes.
“If you have found that the railway companies were negligent in handling the cattle in question and there were unreasonable delays, in their transportation,- then answer the following questions:
“7. What was the market value of the cattle at Hardy, Okl., at the time they arrived there, but for such negligence or delays? Answer: $30 per head.
“8. What was the intrinsic value of the cattle at Hardy, Okl., at the time they arrived there, but for such negligence or delays? Answer: $30 per head.
“9. What was the market value of the cattle at Hardy, Okl., at the time and in the condition that they arrived there? Answer: $28.50 per head.
“10. What was the intrinsic value of the cattle at Hardy, Okl., at the time and in the condition that they arrived there? Answer: $28.-50 per head.
“11. What was the value of the one cattle left at Benjamin, Tex., and sold by the railroad company’s agent to Mr. Moorehouse, but for its injuries, if any. Answer: $30. What was its value in the condition in which it was when sold? Answer: $25 in condition in which it was sold.
“12. Were the cattle handled by the railroad company in an ordinary reasonable degree of care, prudence, and caution? Answer: No.”

Judgment was rendered in appellees’ favor for $1,417.25, and the defendants have prosecuted this appeal therefrom.

It is assigned as error that the court erred in the measure of damage applied. The assignment is well taken in so far as concerns the 592 head of calves covered by the written contract. The shipment was interstate, at the reduced rate prescribed by the Interstate Commerce Commission, and the limitation upon the defendant’s liability contained in the contract was valid and enforceable. Railway Co. v. Harriman, 227 U. S. 664, 33 Sup. Ct. 397, 57 L. Ed. 690; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Railway Co. v. Carmack, 176 S. W. 158.

'The findings of the jury establish that there was a depreciation in value of $1.50 per head, or 5 per cent. The value of the calves was limited to $10 per head, and, under the last clause of the provision in the contract, appellees in their recovery therefore should have been limited to 5 per cent, of such valuation, namely, 50 cents per head on the 592 head.

As to the animal left at Benjamin, the evidence discloses that it was sold by the station agent at Benjamin for $20 and the proceeds converted by the agent or the receivers. The cause in question can have no application in the ease of a deliberate conversion, to their own use and benefit by the defendant or its agents, of property or its proceeds. It was not a loss within the meaning and purview of the contract. Furthermore, there is nothing to indicate whether this animal was one of the 592 head shipped under the contract containing the limited liability clause. Appellant is liable for the value of the %nimal at destination in the condition in which it should have arrived but for its negligence. .

As to the remaining 215 head, appellant is liable for the full amount of the depreciation caused by its negligence.

It is suggested by appellees that the animals were too old to be regarded as calves. In reply to .this, it is sufficient. to say that they were classified in the contract as calves, and appellees are not in position to claim that their proper classification was as older animals. , -

Upon the trial, the plaintiff Payne was permitted to testify to the value of the cattle at destination at the time they should have arrived if handled in the usual ordinary time and with due care and dispatch.. The testimony of the witness was a mixed question. of law and fact. It invaded the province of the jury, and its. admission was error. Railway Co. v. Kimble, 49 Tex. Civ. App. 622, 109 8. W. 234; Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808; Railway Co. v. Bigham, 138 S. W. 432; Railway Co. v. Beckham, 152 S. W. 229.

It was especially objectionable in view of the fact that the witness had previously testified that he did not know the usual and ordinary time required to transport such shipments over the route these animals traveled.

The ninth and tenth assignments in effect are that judgment in. favo?, of plaintiffs was improperly rendered because the cattle-were shipped by Com to E. B. Rogers, and there is no evidence that Payne was the lawful holder or owner of the bill of lading, or that he was the owner of the cattle at the time and place of shipment.

The testimony shows that Payne was a joint owner of the cattle with Corn, and, as such, he was properly joined in the suit. There is nothing in the Carmack amendment to deprive Payne of his right td join in the suit and recover.

There was no reversible error in-permitting Payne to testify that there was no attempt to feed and water the cattle at any other place than Benjamin. This was an admitted'fact, so it'could not have been error to permit Payne to testify to it. Nevertheless, the pertinency of the testimony is not apparent, and it should therefore not have been admitted.

The twelfth assignment complains of the admission of testimony of the contents of a-telegram which Payne said he tried to send to one Mr. O’Brien. An examination of the bill fails to disclose that he testified to the contents of the message, so the assignment is complaining of something that is not shown to have occurred.

The testimony complained of in the thirteenth assignment is inadmissible. It was testimony by Payne of a conversation which he heard take place between the conductor of his train and some employé of the Orient’s receivers, relative to the cause of the wreck, which delayed the shipment. The conversation was clearly inadmissible, as the party making the statement was not shown to have any authority to make the same. He was shown merely to be an em-ployé and that he had something to do with the road.

The fourteenth assignment is that the first issue submitted imposed a higher duty upon defendants than the law requires. The issue reads:

“Was the shipment of cattle in question handled by the railway companies with a reasonable degree of care and caution?”

The objection urged is without merit. It was the duty of the defendants to handle the cattle with a reasonable degree of care and caution. We are not to be understood as holding that this issue was not otherwise subject to exception. We are confining ourselves to the particular exception urged.

The fifteenth assignment complains of the submission of the fourth issue because there was no evidence of what was an ordinarily reasonable time for the transportation of cattle from Marathon to Hardy. In support of the assignment, it is stated that there is no evidence upon the issue. This statement of fact is not contested by appel-lees, and we will assume it is true. Rule 41 (142 S. W. xiv). It thus follows that the issue should not have been submitted.

The objection urged to the fifth issue was too general, for which reason the sixteenth assignment is overruled.

The twenty-third assignment complains of the refusal of this charge?

“You are instructed that, when the train conveying the cattle in question came back to Benjamin from Crowell Water Tank, the receivers of the railway company then operating the road were required by the federal statutes to give the train crew operating said train not less than ten hours’ consecutive rest; that is to say, that said train crew would not again operate said train until they had such period of rest.”

It was properly refused, because it was irrelevant and would have been of no service to the jury in passing upon the issues submitted to it.

Special charge No. C was argumentative and properly refused for that reason. The twenty-fourth assignment is therefore overruled.

The twenty-fifth assignment is overruled because charge C-l was argumentative and upon the weight of the evidence.

Special charge No. D was argumentative -and upon the weight of the evidence and ■properly refused.

Special charges Nos. F and H were argumentative and properly refused.

The seventeenth, eighteenth, nineteenth, ■twentieth, twenty-first, twenty-second, and thirtieth assignments are regarded as being without merit, and are overruled.

Reversed and remanded for the reasons indicated.
      <@=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes;

      «gmoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    APPELBAUM et ux. v. SPINNER-HAY LUMBER CO.
    (No. 599.)
    (Court of Civil Appeals of Texas. El Paso.
    May 25, 1916.)
    1. Contracts &wkey;>198(2) — Building Contract — Supplemental Agreement.
    Where, after houses were built under a contract to do so according to plans and specifications, the owner claiming they were not completed in accordance with the contract, a supplemental contract was made, whereby part of the contract price was paid at once, and the balance placed with a third person to be held till the contractor had done certain things, among them, “have all the tinwork on said houses done with proper fall and in proper workmanlike manner,” the only proper way to do the tinwork is according to the original specifications.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 862-865; Dec. Dig. &wkey;198(2).]
    2. Appeal and Error &wkey;>1056(l) — Harmless Error — Exclusion op Evidence.
    Exclusion of the portion of the specifications as to manner of placing gutter, offered by defendant in an action by a building contractor for balance of price, was harmless, defendant having offered no evidence of failure to so place the gutter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. &wkey;1056(l).]
    3. Contracts <&wkey;328(l) — Building Contracts — Privilege op Owner —Work at Contractor’s Cost.
    It being by provision of a supplemental contract between building contractor and owner, a condition precedent to the contractor’s right to recover the part of the contract price withheld, that certain tinwork should be done in a proper and workmanlike manner, it cannot avail the contractor, failing to do so, that on his failure the owner did not avail himself of the privilege given by the contract to do it and charge the cost against the contractor.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1571-1580, 1583, 1584; Dec. Dig. •&wkey;328(l).]
    4. Contracts i&wkey;323(3) — Action —Peremptory Instructions.
    Defendant’s testimony that the work had not been properly done, though meager, was enough to raise an issue on the vital question, requiring submission to the jury, and making the giving of a peremptory instruction error.
    [Ed. Note. — For other cases, see Contracts Cent. Dig. §§ 1544, 1547, 1827; Dec. Dig. &wkey; 323(3).]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Spinner-Hay Lumber Company against J. Appelbaum and wife. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded for new trial.
    Meyer C. Wagner, of Houston, for appellants. Love, Channell & Fouts, of Houston, for appellee. .
   HIGGINS, J.

Appelbaum and wife entered into an agreement with the Spinner-Hay Lumber Company, whereby the latter agreed to construct and complete six cottages according to certain plans and specifications, in consideration whereof the Appelbaums agreed to pay the sum of $2,790. The houses having been built, a controversy arose between the parties as to whether or not the houses had been constructed and completed in accordance with the terms of the contract. Thereupon the parties entered into a written contract whereby the Appelbaums agreed to pay and did pay to appellee $2,566 and the balance of the contract price, namely, $224, was placed in the hands of Meyer 0. Wagner, to be held in escrow until appellee had done certain work upon the buildings. This contract reads:

“This agreement made this 17th day of September, 1913, by and between E. Spinner and S. E. Hay, composing the firm of Spinner-Hay Lumber Company, acting through E. Spinner hereafter styled first party, and J. Appelbaum and wife, Ida Appelbaum, hereafter styled party of the second part, witnesseth:
“The first party has constructed certain im-rovements for second party .on lots 1, 2, and , block 1, William Burnett addition north side of Buffalo bayou under a contract providing for payment of sum of $2,790 for completion under terms of contract, plans and specifications, and differences have arisen between the parties as to completion thereof in full compliance, and the parties are desirous of adjusting and settling the differences and for that purpose do agree as follows:
“That the second party will pay to the first party the sum of $2,790 as follows: $2,566 to be paid to first party this day and receipt of which sum is hereby acknowledged, and the remaining sum of $224 to be placed with Meyer O. Wagner to be held in escrow until the first party has completed the work herein recited to be done by said first party.
“First party is to have the water pipes properly placed and tapped with city main using new pipe and to connect with sidewalk at proper places on which houses are not situated, and cutoff to be placed, pipe to be one inch pipe and be so connected as to bring water to houses making clear connection so that houses have water as contemplated and understood by original contract and as herein provided to be done; that all costs and expenses for pipe, labor, material and connections to be paid by first party and work to be started at once and fully completed not later than Monday, September 22, at 6 o’clock p. m., 1913, and failure to so complete laying of pipes and all work relating to same and furnishing of water by that date, said first party binds and obligates himself to pay secbnd party the sum of $3 for each day’s delay from that time until properly done and connected and water furnished, and for the purpose of further protecting said second party the sum of $224 retained and placed in escrow shall be held until completion thereof.
“The amount actually held for water is $150, but said sum shall be held with the $224 until all of the remaining work understood herein is finished and completed in a proper manner.
“The first party will fix and repair three windows and the estimated value thereof $3 and, failing to fix said windows by September 19th, second party shall be authorized to do said work and withhold the sum of $3 therefor.
“First party is to furnish four keys for inside rooms, and, failing to furnish said keys by evening of September 18th, the sum of $4 shall be retained to secure payment therefor by second party who is then authorized to have keys fitted.
First party obligates-himself to have all of the tinwork on said houses properly done with proper fall and in proper workmanlike manner and which work is to be done by Wednesday, September 24, 1913, and failing to do said work by that date, second party is authorized to contract for said work to be done and all costs and expenses therefore will be paid by first arty; that of the amount placed in escrow 71 is to protect against claim now outstanding by tinner for payment for his work and which work has not been accepted by second party and a controversy has arisen between second party- and first party and between tinner and first party as to proper work. It is distinctly understood that the tinwork must be properly done with proper fall and in a first-class workmanlike manner. Should first party fail to do and perform and complete said tinwork as required by September 24, 1913, second party is authorized to proceed to contract for such work to be done and the sum held in escrow shall be applied in payment therefor, and should amount not be sufficient then first party hereby admits liability for any deficiency in amount in escrow to cover payment for all obligations herein undertaken by first party, and such amount shall be paid as itemized statements from competent workmen show actual cost.
“First party, upon execution hereof, binds himself to deliver possession of said houses to second party, and such possession and occupancy shall not be a waiver of any legal rights as to the items herein specified, but shall be an acceptance of all other portions thereof, and as to items herein mentioned, acceptance thereof is not made by second party and so expressly understood.”

This suit was- filed by appellee against the Appelbaums and Wagner to recover said $224, alleging that it had complied with its obligations under the contract just quoted.

In their answer, the Appelbaums admitted that appellee had placed the water pipes as it had agreed to do, but averred that it had failed to place the cut-off as provided in the contract, and that the cost of placing the same was $5. They denied that plaintiff had fixed and repaired the windows as required, and averred that they had done so at a cost of $2.60. They admitted that keys had been supplied as the contract required. They denied that the tinwork on the houses had been done with proper fall and in a proper and workmanlike manner, and that it would cost $120 to do so, which amount they were entitled to receive from the escrow fund with which to have said tinwork properly done. They also averred that the Texas Tinners’ Supply Company had a claim for $71 and lien for tinwork on the houses, and that defendants were entitled to this amount out of the escrow fund to protect against said claim and lien.

By supplemental petition, appellee denied the allegations of the answer, and with reference to the claim that the tinwork had not been properly done it pleaded specially:

“That the tinwork and labor for said houses was properly done in accordance with said contract of settlement declared on by tile plaintiffs herein, and that the defendants, by failing to have any work, claimed to be defective or insufficient or omitted by the plaintiffs, contracted for, and an itemized statement from competent workmen showing the actual cost for doing said work, as required by said contract, are not entitled to have or receive or further hold the money so placed in escrow under the contract pleaded by the plaintiffs.”

E. Spinner testified, for plaintiff:

■“I am a member of the firm of Spinner-Hay Lumber Company, a partnership doing business in the city of Houston, Harris county, Tex. Spinner-Hay Lumber Company had a contract with Mr. and Mrs. J. Appelbaum for the construction of six houses upon lots 1, 2, and 3 in block 1 of the William Burnett addition to the ■city of Houston, for the total consideration of $2,790. Upon completion of the work Mrs. Ap-pelbaum claimed that there was some portions of the work which had not been properly done, and we had a settlement of the matter, by which $2,566 was paid to us in cash and $224 was paid over to Moyer C. Wagner under a contract dated May 17, 1913, which has been offered in evidence. After this money was paid, wo went to work to do the work which is specified in the supplemental contract, in order to get it completed by the time fixed in the contract for doing it. We did all that work within the time specified. The water pipes were properly placed and tapped with the city main and cut-offs placed as required, and three windows fixed, but I was not there when the man who fixed them did the work, and so Mr. Appelbaum paid the $3, and he is entitled to a credit for that amount. The keys were furnished the inside rooms as required by the contract, and all the other work was done within the time specified. As soon as this supplemental contract was made I sent a man out to these houses and instructed them to go over the tinwork and fix whatever was necessary to put it in proper workmanlike shape, with proper fall, which he did. The $71 referred to in the contract as being held to protect against the claim of the tinner has been taken care of. I paid the tinner; in fact, he brought ■suit against me on this, claim and X paid the judgment, so that part of it is all settled and out ■of the way.”

Mrs. Appelbaum, for defendants, testified:

“I am the wife of J. Appelbaum and one of the defendants in this suit. The tinwork on these houses has not been done properly, and when it rains the water runs off of the houses onto the •ground. I went to see Mr. Wagner and asked him to let me have the money, out of the money in his hands in escrow, to pay to have the tin-work done, but Mr. Wagner said he could not let me have the money without an order from the Spinner-Hay Lumber Company. I did not have the tinwork done. It is not done yet. I did not have it done because I did not have the money to pay for it and Mr. Wagner could not agree to pay it out of the money in escrow.”

Cross-examination:

“I believe my husband paid $3 for the windows. I never employed any one to fix the tin-work and have never presented any itemized statements for such work from any workman. 'The reason I did not have the work done and take chances on getting it out of this money in escrow was because I did not want to take chances on that, and besides I did not have the money to spare. I thought it should be paid out of that money in Mr. Wagner’s hands.”

The foregoing, together with the settlement contract of September 17, 1913, was ■all the evidence adduced, upon the trial. A peremptory instruction was given to find for the appellee in sum of $221.40, in accordance wherewith verdict was returned and judgment rendered.

From the statement made, it will be noted that in determining the right of appel-lee to recover, it was very material to inquire whether the tinwork upon the houses had been properly done. By the contract of September 17th, appellee obligated itself “to have all of the tinwork on said houses properly done with proper fall and in proper workmanlike manner.” Since the houses were built according to plans and specifications, it is quite obvious that the only proper way to do the tinwork was to do it according to those specifications.

Upon trial, defendants offered in evidence a part of the original specifications as follows:

“Tinwork.
“A five-inch gutter shall be placed along the entire length of the building on each side and shall be divided with necessary down spouts.”

This was excluded upon appellee’s objection that the specifications were not a part of the supplemental contract and escrow agreement of September 17th, and because it was irrelevant and immaterial to any issue what the original specifications contained concerning the tinwork on the houses. What has been said above shows the lack of merit of these objections. Performance of the tin-work in accordance with the specifications of the original contract was the very, essence of that portion of the supplemental contract relating to the tinwork. Inquiry as to the requirements of these specifications was thus very relevant and material.

But the error in excluding the specifications here complained of would not be reversible, because there is no evidence in the record or evidence tendered and excluded showing a failure to place the gutter with down spouts as therein provided. In tlie absence thereof, the error in the exclusion of this portion of the specifications would be harmless, but in view of a retrial, attention is called thereto as the errors next noted require reversal.

Error is assigned to the exclusion of evidence that the tinwork was not done in a proper and workmanlike manner with proper fall; to show the condition of the tinwork, and the cost of placing same in a proper and workmanlike manner with proper fall; and of the refusal to permit defendants to offer evidence in rebuttal of the testimony of Spinner that the work was all done in a proper and workmanlike manner and with proper fall. This testimony was all material. It was incumbent upon plaintiffs to plead and prove those facts. They did plead them and offered testimony in support thereof. Manifestly, defendants, under their general denial, were entitled to disprove the allegations and evidence relied upon by the plaintiffs to sustain their suit, and necessary to sustain it. The fact that the defendants had not availed themselves of the privilege given in the contract of having the tinwork done and charging the cost thereof against plaintiffs, would not have the effect of entitling the appellee to the fund until they had done the tinwork in a proper and workmanlike manner and with proper fall. Under the contract of September 17th it was a condition precedent to plaintiff’s right to recovery that the tinwork should be so done.

The court also erred in giving the peremptory instruction. The meager evidence which the defendants were permitted to adduce raised an issue as to whether the work had been done as provided by the settlement contract, as Mrs. Appelbaum, in contradiction of Spinner, testified that the tinwork on the houses had not been done properly. This raised the vital issue in the case, and it was the duty of the court to submit it to the jury.

For the error in excluding the evidence complained of in appellant’s bills of exception and in giving the peremptory instruction, the cause is reversed and l’emanded for retrial.
      @5»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BAKER v. BROWN.
    (No. 589.)
    (Court of Civil Appeals of Texas. El Paso.
    May 25, 1916.)
    1. Bills and Notes &wkey;>182 — Transfer-—Fiduciary Payee. The mere fact that the payee of a note is such in a fiduciary capacity does not incapacitate him to transfer it.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 434-437; Dec. Dig. <&wkey;> 182.)
    2. Bills and Notes @=>182 — Transfer. It is not essential to validity of transfer of a note by the payee that the maker agree to or direct the transfer.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 434-437; Dec. Dig. <&wkey;> 182.)
    3. Bills and Notes @=>518(1) — Failure op Consideration — Evidence.
    The connection between a note and guaranty contract not being shown, it cannot, on evidence, at most merely, raising a surmise, be held that the consideration of the note failed, defeating recovery thereon, on the cancellation of the contract.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816, 1817, 1819, 1820; Dec. Dig. <¿==>518(1).]
    Appeal from District Court, Scurry County; Jno. B. Thomas, Judge.
    Action by C. E. Brown against W. Y. P. Baker. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. D. Russell and Mathes & Williams, all of Plainview, for appellant. Ferguson & Puckett, of Lubbock, and G. E. Lockhart, of Tahoka, for appellee.
   HIGGINS, J.

Brown sued Baker upon the

latter’s promissory note in sum of $550, payable to order of J. F. Barron, R. E. Simpson, and Mit Akin, due October 1, 1911. The payees indorsed the note without recourse and transferred and delivered the same to T. J. O’Donnell who, in turn, transferred it to one Daniel, and Daniel transferred it to Brown. The defendant answered that in the year 1909 O’Donnell was soliciting, subscriptions to a bonus to be given to induce the construction of a branch of the Santa Fé Railway System to the town of Lamesa in Dawson county; that a guaranty contract had been given O’Donnell by various citizens, which guaranty reads:

“We, the undersigned citizens of Lamesa and Dawson county, Texas, for the purpose of assisting T. J. O’Donnell in securing a branch of the Santa Fé Railway System from some point on their main line now in course of construction from Texico to Coleman, to Lamesa in Dawson county, Texas, do each with the other agree and bind ourselves, and our heirs, executors, and administrators, to pay to T. J. O’Donnell or his assigns the sum of fifty thousand dollars in cash upon the completion of the above-named railroad to the town of Lamesa, Texas. We further agree and bind ourselves to deliver to the Santa E’e System or its allied lines a complete right of way, station grounds, and stock pen grounds whenever the same has been surveyed and adopted. If condemnation proceedings be necessary to acquire title to the right of way, the Santa Fé Railroad System will allow the use of their name to file suit, that the title to the right of way may be acquired, and we agree, jointly and severally, to indemnify the Santa Fé Railway Company against the cost of any such suit. It is further understood and agreed that in accepting this guaranty the Santa Fé Railway Company agrees and binds itself to build and place in operation a railroad to the town of Lamesa, Texas, on or before December 31st, 1910.”

This guaranty was signed by the payees in the note and various others, but not by defendant. This instrument was transferred by O’Donnell to the Pecos & Northern Railway Company. Defendant further alleged that the note sued upon was given in renewal of notes which he had originally given in aid of the bonus and guaranty contract, and that said notes had been obtained by false and fraudulent representations made by O’Donnell. It was further alleged that the notes executed by defendant and others in aid of said bonus and guaranty contract were given to the payees named in the note for the purpose of collecting same and applying proceeds to the payment of the guaranty; that the payees were duly authorized to collect the notes and renew same and apply proceeds to the liquidation of the indebtedness evidenced by the guaranty contract, and that no other authority was possessed by them; that the guaranty contract had been settled and discharged and the guarantors released therefrom. Upon trial before a jury a peremptory instruction was given to find for the plaintiff:, in accordance wherewith verdict was returned and judgment rendered.

The Pecos & Northern Texas Railway Company had filed suit in the district court of Dawson county against the signers of the guaranty contract to recover a balance of 836,000 due thereon. This suit was number 109, and on November 15, 1912, the parties thereto entered into a written agreement, the material portions of which are as follows:

“1. In consideration only of the adverse conditions which have confronted the people of Dawson county during the past few years, and a desire upon tiie part of the plaintiff to aid and assist the said people Of Dawson county and obligors on said original contract and others who may be indirectly obligated thereon to said obligors, defendants herein, the plaintiff agrees that the above-styled and numbered cause shall be dismissed, and that the original obligation executed, and which was the basis of this action, shall be surrendered to said obligors and canceled. Payments made to plaintiff not to be effected, being property of plaintiffs, nor one right of way provision of contract.”

In accordance with this agreement, judgment was entered on March 18, 1913, as follows:

“In accordance with said agreement, it is ordered, adjudged and decreed that this cause be dismissed and that the obligation sued on by the plaintiff be canceled and declared of naught in so far as provided in the foregoing agreement and that said agreement be in all things the judgment of this court.”

There was some kind of a suit pending in Nolan county by O’Donnell against the Pecos & Northern Texas Railway Company, and on November 15, 1912, an agreement was entered into with respect thereto by O’Donnell and the payees named in the note upon which the instant suit is based. This agreement reads:

, “This agreement this day made by and between T. J. O’Donnell, of Nolan county, Texas, and the guaranty committee of Dawson county, -Texas, by which guaranty committee is meant the persons in authority and authorized to act for each and every guarantor to the Pecos & Northern Texas Railway Company, under contract in suit in cause number 1102, styled T. J. O’Donnell v. Pecos & Northern Texas Railway Company, now pending in Nolan county Texas, that said O’Donnell is to dismiss said suit upon consideration that said committee will indorse over to the said O’Donnell without recourse on them, all instruments in writing evidencing a promise to pay any money or thing of value by said citizens to said committee, or to said T. J. O’Donnell. In other words, ^ every subscriber thereto in any manner or ' form, and it is a part of the consideration for the dismissal of said suit, that said T. J. O’Donnell shall own and hold and possess every subscription made by every individual subscribing thereto directly or indirectly in said Dawson county, Texas, with no limitation whatever save and except that each subscriber if he makes satisfactory arrangements with the said T. J. O’Donnell within 60 days’ time-for the payment of fifty per cent, of his subscription now due, then and in the event, the said T. J. O’Donnell shall accept the said fifty per cent, of said subscription now due in payment thereof and shall receipt therefor. Other-wise the said T. J. O’Donnell shall have full power as this committee has to collect the full amount of the subscription of any individual that is now due, and the consideration moving these guarantors to make this contract is that, by virtue hereof, we save each subscriber one-half of Ms subscription, provided within 60 days he arranges payment of one-half thereof. Unless he so arranges with the said T. J. O’Donnell, it is expressly agreed and understood that he shall have and claim no rights under this contract. It being understood that this passes no rights to O’Donnell in the original contract executed to O’Donnell by guaranty committee.”

On the same day (November 15, 1912) O’Donnell transferred to E. O'. Daniel all bonus notes which he had received from said Akin, Barron, and Simpson. On August 22, 1913, Daniel transferred the notes to plaintiff Brown. On November 15, 1912, judgment was rendered in the suit of O’Donnell against the Pecos & Northern Texas Railway Company that O’Donnell take nothing. O’Donnell testified:

“I am the same T. J. O’Donnell mentioned in the pleadings in this case. I helped to get up the subscriptions for the bonus in Dawson county. I was also connected with getting up what is known as the ‘guaranty contract.’ It was gotten up after the notes were signed — on the day we finished getting up the bonus — some may have signed it before, but it was not delivered until then. I know about the settlement of these two suits. I was present at the time they were settled. They were all settled by one agreement, although there were two documents drawn up. The note sued on and the others were delivered to me at the settlement of the suit at Sweetwater; that is the contract for the delivery of them was delivered to me there. They were delivered to me about three days after, just as soon as we could get out to Lamesa. R. E. Simpson and Mr. Barron held possession of the notes at the time they were turned over to me. I afterwards transferred those notes toi Mr. Daniel. That is the transfer which was offered in evidence. I know Mr. Daniel’s handwriting (shown instrument). That is Mr. Daniel’s handwriting. This note that is sued on here was never paid or canceled within my knowledge. It wasn’t paid at the time I transferred it to Daniel nor at the time Mr. Daniel transferred it to Mr. Brown. It has not been paid up to this present date that I know of. This note was given for the purpose of getting the Santa Fé to build a line to Damesa from their main line that they were building at that time. These notes were first gotten up to find out whether we could get up §50,000.09. They were first gotten up in my name and I transferred them to the committee and transferred the bonus contract to the Santa Fé. The guaranty contract was gotten up for the purpose of guarantying to the Santa Fé that it would get $50,000.00 for building the road.”

Cross-examination:

“I authorized Mr. Simpson to transfer the notes at the time they turned over the guaranty contract for me to take to Chicago — gave them a power of attorney to sign the notes.”

The foregoing is a statement of all the facts adduced in evidence upon the trial of this cause.

Error is assigned -to the giving of the peremptory instruction, and it is first contended that, it was improper because Barron, Simpson, and Akin were holding the note as trustees without authority to sell or transfer the same. It is true they were trustees, but this fact alone did not incapacitate them from transferring the note, and in the facts we find nothing to so incapacitate them. We-know of no rule of law which incapacitates the payee of a promissory note from transferring same simply because he was a payee in a fiduciary capacity.

It is also suggested that the transfer-of the note was made without any agreement or instruction from defendant so to do. It is not essential to the validity of a transfer of a promissory note by the payee thereof that its maker should agree to or direct such transfer. Neither was it necessary that the Pecos & Northern Texas Railway Company should consent to the transfer. '

It is also contended that the cancellation of the guaranty contract released the maker of the note from any obligation to pay the same. In other words, that the consideration of the note had failed. This question was passed upon in Gaines v. Brown, 177 S. W. 220, a companion case to this and decided adversely to appellant. In the case cited, the facts seem to have been fully developed, which is not the case here.

If the consideration of the note had failed, it was incumbent upon appellant to affirmatively show that fact. The cancellation of the guaranty contract would suggest that there had been a failure of consideration, but the connection between the note and guaranty contract is not shown, and the relationship and mutual obligations of the parties is not disclosed. The facts in the case are quite undeveloped, and this court is left to surmise to determine just what they are. We cannot hold that the consideration of the note had failed upon a surmise that such connection existed between the note and guaranty contract; that the cancellation of the guaranty contract would operate as a release of bonus notes given by various parties to the obligors in the guaranty contract. In the condition of the record here presented, it is not shown that the consideration of the note had failed. The evidence, at best, raises a mere surmise that there had been a failure of consideration. This being the case, error is not shown in the giving of the peremptory instruction. The views here expressed dispose of the various assignments.

No error being shown, the judgment is affirmed.
      @=^For other oases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes


author: HARPER, C. J.

text:
    EVANS v. EVANS.
    (No. 590.)
    (Court of Civil Appeals of Texas. El Paso.
    May 25, 1916.)
    1. Wills <&wkey;192 — Revocation—Subsequent Adoption op Heie — Statutes.
    Rev. St. 1911, art. 1, provides for adoption of another as legal heir, article 2 provides that statement filed under the statute shall entitle the party so adopted to all the rights of a legal heir of the party adopting him. Articles 7866 and 7867 provide that the birth of an after-born child shall have the effect to revoke the father’s previously executed will. Held, that the adoption of a child or heir by testator after the execution of his will did not have the effect to revoke it, as such adopted child was not a child ■ of the testator within the statutes, and was not entitled to inherit any of the testator’s property.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 479; Dee. Dig. &wkey;192.]
    2. Wills <&wkey;168 — Revocation—Method. No valid written will can be revoked, except in one of the modes pointed out by the • statute.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 439; Dec. Dig. <&wkey;168.]
    3. Adoption <&wkey;21 — Adopted Heie — Rights in Estate. An adopted heir, upon the death of the adopting party, becomes entitled, if living, to an interest in all tlie property -of which he may die intestate.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. §§ 35, 36, 38-40; Dec. Dig. &wkey;21.]
    Appeal from District Court, Andrews County; S. J. Isaacks, Judge. .
    Suit by T. H. Eastman, guardian of Jack Evans, a minor, against Mrs. Dora Evans, to set aside an order of the pi’obate court probating the will of J. W. Evans, deceased. Judgment for plaintiff setting the order of probate aside, and defendant appeals.
    Reversed and dismissed.
    H. E. Chesley, of Hamilton, for appellant. Tom T. Garrard, Jr., and Earl W. Anderson, both of Midland, for appellee.
   HARPER, C. J.

This suit was instituted by T. H. Eastman, guardian of Jack Evans, a minor, to set aside an order of the probate court probating the will of J. W. Evans, deceased, upon the ground that he (deceased) having subsequent to the execution of the will adopted said Jack Evans, the will was by said act of adoption revoked. The defendant, Mrs. Dora Evans, answered by general demurrer and general denial. The judgment of the county court and upon appeal, the judgment of the district court, set the order of probate aside, from which this appeal is prosecuted:

The findings of fact correspond to the allegations of fact in the petition, and, as found by the trial court, are as follows:

“(1) Defendant, Dora Evans, was the wife of J. W. Evans, deceased, and they were living together as husband and wife about the 20th day of December, 1910.
“(2) That on or about the 20th day of December, 1910, the said J. W. Evans made and executed what he termed his last will and testament, by the terms of which all of his property, both real and personal, was willed to his wife, Dora Evans,, who is the defendant in this case; said instrument also appointing her executrix of his will, without bond.
“(3) That thereafter, on or about the 26th day of September, 1911, the said J. W. Evans, deceased, and the defendant, Dora Evans, who was Margaret E. Evans, by their joint instrument in writing, duly and legally adopted Jack Evans as their legal heir, which instrument was filed, as required by law, with the county clerk of Andrews county, and recorded in the office of said county clerk; said instrument being in words and figures as follows:
“ ‘Adoption Papers.
“ ‘Children’s Home Society, Rev. I. Z. T. Morris, Supt.
“ ‘State of Texas, County of Andrews.
“ ‘Know'all men by these presents that we, J. W. Evans and Margaret E. Evans, wife of said J. W. Evans, both of Andrews county, Texas, have adopted and by these presents do adopt as our legal heir, a male child, now and for some time past in our possession and custody, and placed in our custody by Rev. I. Z. T. Morris. We have given and do hereby give to the said child the name of Jack Earnest Evans. The said child is to bear the above name and is to be taken care of by us as though it were our own child, and we have signed and acknowledged the foregoing to evidence under the laws of the state of Texas that we do so adopt for our legal heir the said male child.
“ ‘Witness our hands at Shatter Lake, Texas, this, the 26th day of September, A. D., 1911.
“ ‘ J. W. Evans.
“ ‘Margaret E. Evans.
“ ‘State of Texas, County of Andrews.
“ ‘Before me, C. S. Bailey, a notary public in and for Andrews county, Texas, on this day personally appeared J. W. Evans and Margaret E. Evans, wife of said J. W. Evans, known to me to be the persons whose names are subscribed to the foregoing instrument, and each of said persons acknowledged to me that they each of them, executed the same for the purposes and consideration therein expressed.
“ ‘Given under my hand and seal of office, this, the 26th day of September, A. D. 1911. C. S. Bailey, Notary Public in and for Andrews County, Texas. [Seal.]’
“(4) J. W. Evans, husband of Dora Evans, died in Andrews county, Tex., on or about the 19th day of March, 1913, without having made any other will than the one set out in finding No. 2, and without making a codicil to said will, and left surviving him as his heirs the plaintiff, Jack Evans, and defendant, Dora Evans.
“(6) The will mentioned in finding No. 2 made no mention of or provision for the plaintiff, Jack Evans, nor for any child or children which the said J. W. Evans might have at the time of his death.
“(6) J. W. Evans, deceased, nor the defendant, ever at any time had a child or children bom to them, and that J. W. Evans, deceased, had no child or children living at the time of making the will mentioned' in finding No. 2 hereof.
“(7) After the death of J. W. Evans, the will -mentioned in finding No. 2 was filed for probate in the county court of Andrews county, and on the 6th day of May, 1913, said court attempted to probate said will, and entered an order on said .date admitting same to probate, appointed appraisers to appraise said estate and an inventory and appraisement of said estate was rendered, showing said estate to be worth $8,069.
‘‘(8) The defendant, Dora Evans, took the oath and qualified as executrix of said will, and letters testamentary were granted to her, and she took possession of the estate of J. W. Evans, deceased, and is now in possession of said estate.
“(9) Plaintiff did not appear to contest said ' will when same was offered for probate because of his minority and lack of knowledge, and because he had no guardian to appear for him.
“(10) T. H. Eastman is the duly appointed and constituted guardian of the estate of the plaintiff, who is a minor, between seven and eight years old, and who is now living.”

The proposition urged by appellant is that an adopted child, under articles 1 and 2 of Revised Statutes of Texas 1911, is not a child of a testator within th‘e purview or meaning of-articles 7866 and 7867, Revised Givil Statutes, and therefore not entitled to recover one-half, of the property of the decedent, regardless of the will in favor of the defendant.

In other words, the adoption of a child subsequent to the execution.of a will did not have the effect to revoke the will as would the birth of a child subsequent to the execution of the will as provided by statutes.

Articles 1 and 2 read as follows:

“1. Any person wishing to adopt another as his legal heir may do so by filing in the office of the clerk of the county court of the county in which he may reside a statement in writing, by him signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite, in substance, that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office.
“2. Such statement in writing, signed and authenticated or acknowledged, and recorded as aforesaid, shall entitle the party so adopted to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him: Provided, however, that if the party adopting such heir have, at the time of such adoption, or shall thereafter have, a child begotten in lawful wedlock, such adopted heir shall in no case inherit more than one fourth of the estate of the party adopting him.”

Articles 7866 and 7867 read:

“7866. If a testator having a child or children born at the time of making his last will and testament shall, at his death, leave a child or children born after the making of such last will and testament, the child or children so after-born and pretermitted shall, unless provided for by settlement, succeed to the same portion of the father’s estate as they would have been entitled to if the father had died intestate; toward raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by such last will and testament, in the same manner as is provided in article 7865.
“7S67. Every last will and testament made when the testator had no child living, wherein any child he might have is not provided for or mentioned, if at the time of his death he shall leave a child, or leave his wife enceinte of a child which shall be born, shall have no effect during the life of such after-born child, and shall be void, unless the child die without having been married and before he shall have attained the age of twenty-one years.”

No valid written will can be revoked except in one of the modes pointed out by the statute. Morgan v. Davenport, 69 Tex. 230.

An adopted heir, upon the death of the adopting party, becomes entitled, if living, to an interest in all the property of which, he may die intestate. Eckford v. Knox, 67 Tex. 200, 2 S. W. 372. J. W. Evans having left a will at the time of his death, he did not die intestate, unless his act of. adopting Jack Evans, under the statute, subsequent to the execution of the will, had the effect to revoke it. These statutes provide that an “after-born” child shall have the effect to revoke the previously executed will, and in no way suggest that the adoption of a child or heir after the execution of a will shall have the effect to revoke it. We therefore conclude that under the facts, Jack Evans is not entitled to inherit any of the property of J. W. Evans, deceased (Gardner on Wills, p. 289), and that therefore the general demurrer should have been sustained.

Reversed and dismissed.
      <@s^For other cases see same topic and KEY-NUMBT3R in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. HARPER, J. PRBNDBRGAST, P. J.

text:
    WILSON v. STATE.
    (No. 4082.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.)
    Homicide <&wkey;282 — Instructions—Failure to Submit Issue of Manslaughter. In a prosecution for wife murder, where it was in evidence, and the jury could have found, • that when defendant returned home he had a quarrel with his wife, who obtained a pistol and began to shoot at him, that there was a scuffle for the pistol, a second shot being fired during the scuffle, and that he then secured the pistol and fired three shots, killing her, the failure to submit the issue of manslaughter was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. <@=»282.] Prendergast, P. J., dissenting.
    Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.
    Sidney Wilson was convicted of murder, and he appeals.
    Judgment reversed, and cause remanded.
    G. R. Scott, Boone & Pope, Claude Lawrence, and Gowan Jones, all of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at five years’ confinement in the penitentiary.

The court submitted only murder and self-defense. Appellant reserved exception to the court’s charge for failing to instruct the jury on the law of manslaughter, and in addition wrote out and requested a charge on manslaughter, which was refused by the court. These matters are all properly presented. Without giving a detailed statement of the evidence, it is substantially shown that appellant shot and killed his wife. Three shots took effect. It is in evidence that there were two other shots fired with an interregnum between the first and second shots, the second shot giving out a muffled sound. It is further in evidence that the clothing of deceased was torn, and the room presented the appearance of there having been a struggle. There was a struggle between appellant and deceased testified by several witnesses. Appellant belonged to a negro band, and also a club. He had been playing at the club on the evening preceding the homicide. On his return to the house his wife asked him why he had not come home as early as some of the other members of the band, and accused him of being with another woman. This he denied, in substance stating that he had come away with the other members of the band from the club. She informed him she was going to kill him, secured a pistol, and at once fired. A scuffle ensued, and the pistol went off again while they were on the floor. This is the shot that gave the • muffled sound. He succeeded in getting the pistol. She again informed him she was going to kill him, went in an adjoining room, got an axe, and was approaching him when he fired. As she approached him, he warned her off and told her not to kill him. There is some testimony also that the mother of appellant interceded with deceased and asked her not to kill her son. There was a short interregnum between the first and the second difficulty. The last three shots wore fired in rapid succession. The state’s witnesses, who entered the house immediately after the shooting, state they saw no axe in the room. Some of them did not even see the wardrobe and some other things in the room. One witness testified that the axe was there and used in opening the wardrobe. This witness was sent in by the officers to see the defendant, both being negroes. One of the officers testified that when he called on appellant from the window to surrender or let him in the house, appellant told him he would not; that if he came in the room he would shoot him. So the other negro went in and induced appellant to surrender his pistol and come out. In talking with appellant as he entered the room, appellant said he would go, but he must get his money and a shirt. The money was in the wardrobe. Failing to find the key, he took up the axe and battered in the door of the wardrobe or prized it open and got his money but did not get a shirt, as the witness was urging him to come out to the officers.

Without going further into a detailed statement, this testimony, in our judgment, raises the issue of manslaughter. There was a conflict in the evidence as to whether the axe was in the room or not, and, if not in the room, that part of the testimony could be disregarded by the jury, or given such weight as they deemed proper. If the axe was not used or the deceased did not have the axe, and appellant shot her just after she fired twice, the issue of manslaughter from that viewpoint would be in the case. There was no cooling time between the shots she had fired and those fired by him. The struggle and shots by his wife were calculated to disturb the equilibrium of appellant’s mind and render it incapable of cool reflection. Upon this view of the case manslaughter should have been charged. It is well settled in Texas, and by such an unbroken array of authority it ought not now to be a matter of discussion, that if there is evidence, however weak or inconclusive it may seem to the court, which tends to prove facts' from which the jury may deduce a finding of manslaughter, it is error to fail to charge that issue. These authorities are found collated in 2 Branch’s Annotated Penal Code, § 2045. They are too numerous to be repeated in this opinion. The contention of the state seems to be that, inasmuch as the defendant testified that she was approaching him with an axe at the time he shot her, therefore the issue of manslaughter was not in the case, and the only two issues were murder and self-defense. It has been so often decided that the law must he charged to the jury to meet every issue dedueible from the facts that I do not care to discuss it. If the state’s theory is correct, and that line of reasoning is to be the settled law, then the testimony of the defendant would make a case purely of self-defense, and he should have been acquitted. The theory of the accused would constitute the case. There was a case originally written, advancing that proposition, but it was quickly overruled, and tire other proposition, that is, that the charge must meet every issue in the case, was reasserted and maintained. The jury may not have believed the defendant’s testimony either in whole or in part. The jury may take part of the testimony as being true and discard some as being unworthy of consideration in making up their verdict; but the court cannot settle that question. The jury alone can settle the weight to be given to the testimony of the witnesses and their credibility, but appropriate instructions must be given by the court. The writer believes that manslaughter was in the case, even if the jury should believe the testimony introduced for the defense, to the effect that the woman had gone to the kitchen and secured an axe and was approaching him with it. She had fired at him twice and undertook to kill him by this means, and when the pistol was taken from her she secured and was returning with an axe. She was not in striking distance with the axe, and she may not have been in such condition that she could have inflicted death or serious bodily injury with . the axe; he may have shot too quick. His mind was not in a condition to weigh the facts cautiously and deliberately, having been just fired at twice, followed by a serious struggle, in which he succeeded in getting the pistol from deceased. I do not care to discuss this phase of the case further.

There is another question of very serious moment on the theory of newly discovered testimony. This is not discussed in view of the reversal of the judgment. It will not be newly discovered upon another trial, and may be obtained.

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

HARPER, J.

I agree that the facts in this

case probably raise the issue of manslaughter with that cogency that required a submission of that grade of offense. It is true that the state’s evidence makes a case of murder, and that the testimony of defendant would make a ease of perfect self-defense, and a casual reading of the record would perhaps incline one to the opinion that these were the only issues raised. The state would have a fatal shot fired while the woman was on the floor. The defendant testifies to going home, a family row, his wife obtaining a pistol and shooting at him, a scuffle, in which the pistol was again fired; that he got the pistol from her, when she secured an axe and started at him, when he shot three times with the pistol he had taken from his wife. Several witnesses testified for defendant to seeing the axe in the room, while the state in its rebuttal testimony presented its proof to show that there was no axe in the room, and under this evidence, as made by the record, the jury would be authorized to find that the assault with an axe, after the pistol had been taken from her, was untrue, and this would leave defendant’s case that he had gone home, when a family row ensued; that his wife shot at him when a scuffle ensued, a second shot being fired during the scuffle; that he then succeeded in taking the pistol from her, and he fired three shots, killing her. If this was all the testimony, we do not think any one would question the fact that this testimony would raise the issue that killing took place under circumstances tending to show passion and fear raised by an adequate cause. W.e have understood the rule to be that if from the evidence as a whole a jury would be authorized to conclude that the killing occurred under a given state of facts, that issue should be submitted in an appropriate charge, and the writer agrees to a reversal because of the failure to submit the issue of manslaughter. Again, while perhaps there is not shown due diligence in seeking to find out what could be proven by the witnesses alleged to be newly discovered, yet the facts sworn to by these witnesses would be most material. If it had been proven to the satisfaction of the jury that an axe was found in the room, a different result may have been reached. Officer Carson says he was one of the first persons to enter the room where the dead woman was found; that the axe was in the room, and he used the axe in nailing up a door. Mr. Cathey also swears to material facts on this issue. If the facts testified to by defendant are true (and there is no other eyewitness to the tragedy), no one would question he was justified, and the evidence of Carson and Cathey would tend strongly to support his testimony. According to this record, he had been assaulted twice before by deceased, being shot once and cut another time. The reputation of deceased was that of a violent and dangerous woman, she being under indictment for assault to murder at the time of the homicide. I am of the opinion that justice demands a new trial in order that all the evidence may be heard, and all the issues raised thereby submitted.

PRBNDBRGAST, P. J.

I have carefully studied this record from every phase. I do not agree to the statement of the evidence as made. It absolutely disproves from the whole or any item of testimony the idea of manslaughter. If the opinion as to manslaughter should prevail under the facts of this case, then manslaughter would be in every homicide except a cold-blooded assassination. This decision is, in the face of the statute and all well-considered cases.

The evidence also excludes the question of newly discovered testimony. The very slightest diligence would have procured the evidence now claimed to be newly discovered. Parties must get their testimony before the trial — not take chances on an acquittal and, when convicted, then claim to discover new evidence.
      tg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    JONES v. STATE.
    (No. 4092.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.)
    Criminal Law <&wkey;1092(7) — Bill of Exceptions — Time foe Filing.
    Where the term at which defendant was convicted continued more than 8 weeks, and, upon the overruling of her motion for a new trial, she gave proper notice of appeal and was duly sentenced, and no order was made allowing any time for filing bills of exceptions, bills of exception filed more than 30 days after the overruling of the motion for a new trial were too late, and would be stricken on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2850, 2852-2854; Dec. Dig. <&wkey;1092(7).]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Mary Jones was convicted of murder, and she appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and her punishment assessed at 7 years in the penitentiary.

The term of court at which she was convicted by law could, and as a matter of fact did, continue longer than 8 weeks. The court overruled her motion for a new trial on February 12, 1916, at which time she gave proper notice, which was duly entered, of appeal to this court, and at that time she was duly sentenced. No order was made allowing any time for filing bills of exception. The law gave appellant only 30 days from the overruling of the motion for new trial and sentence to file bills of exception. In order to enable her to file them later, she .must procure, and the court must enter, an order allowing such additional time. The Assistant Attorney General’s motion to strike out and not consider the bills of exceptions because filed too late must therefore be sustained.

She has three bills. We have examined them, notwithstanding they were filed too late; and, as qualified by the judge, even if we could consider them, they present no error.

The only other question is, she claims the testimony was insufficient to sustain the conviction. We have carefully studied the evidence and are of the opinion that her contention cannot be sustained. We think the evidence was sufficient. So the court and jury below both found. We would not be justified, therefore, in setting aside the verdict.

The judgment is affirmed.


author: HARPER, J.

text:
    BANKS v. STATE.
    (No. 4078.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.
    Rehearing Denied June 14, 1916.)
    1. Cbiminal Law <&wkey;951(l) — New Tria]>-Time foe Motion.
    Under Code Or. Proc. 1911, art. 839, providing that a new trial must be applied for within two days after the conviction, but for good cause shown the court in cases of felony may allow the application to be made at any time before adjournment of the term at which conviction was had, a motion for new trial, filed five days after a conviction for selling intoxicating liquors in prohibition territory, a misdemeanor, was properly denied, since, as the granting of new trials by-trial courts is statutory, it is immaterial whether the statute is mandatory or directory.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2349, 2353-2356; Dee. Dig. &wkey;951(l).]
    2. Criminal Law &wkey;951(6) — New Trial-Amendment of Motion.
    Where an original motion for new trial on conviction of a misdemeanor was filed within the two days allowed by law, the court could permit it to be amended at a later date.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2357, 2358; Dec. Dig. <&wkey;> 951(6).]
    Appeal from Nacogdoches County Court; J. F. Perritte. Judge.
    Henry Banks was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    S. M. Adams, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at a fine of $25 and 20 days’ confinement in the county jail. .

The trial was had and judgment entered on January 19th. No motion for a new trial was filed until January 24th — 5 days after judgment was- entered. No leave or permission of the court was granted to file this motion — the 2 days fixed by statute having passed. On February 3d — 14 days after the trial of the case — without getting the permission of the court, appellant filed with the clerk an amended motion. When the court’s attention was called to this amended motion, he struck it from the record and refused to consider it. Virtually the sole question before us- is: Did the trial court err in refusing to permit appellant to file this amended motion 14 days after the trial of the case? Attached to this motion is a certified copy of a judgment of the United States District Court, sitting at Tyler, show-ins that Wallace Jones, one of the state’s witnesses, had on May 11, 1911, been convicted of carrying on the business of a retail liquor dealer, without having paid the special tax levied by the federal government. Appellant alleges that at the time of the trial of his case he did .not know that Wallace Jones, state’s witness, had been convicted in the federal court of this offense, and did not learn of it until he employed Mr. S. M. Adams to assist his counsel in filing this amended motion for a new trial and prosecuting this appeal; that as soon as Mr. Adams was employed, he sent and got a copy of the judgment, and as this judgment rendered Wallace Jones incompetent as a witness, the court should have permitted him to file his amended motion on February 24th and granted him a new trial.

This necessarily brings in review article Sao of the Code of Criminal Procedure. It provides that:

“A neio trial must be applied for withim, two days after the conviction; but, for good cause shown, the court, in cases of felony, may allow the application to be made at any time before adjournment of the term at which the conviction was had.”

Why the Legislature made the distinction between convictions for felonies and misdemeanors is not for us to determine. That they have done so is clearly manifest, and they made it apparent their intention was to make a conviction for a misdemeanor final if no motion for a new trjal was filed within two days, while a felony conviction should not become final until the end of the term of court at which the conviction was had. The Legislature also makes this discrimination in matters of change of venue. The venue may be changed in cases of felony for reasons stated in the statute, but no change of venue can be had in misdemeanors, although the same condition exists. Articles 626, 627 and 628, C. O. P.; Halsell v. State, 29 Tex. App. 22, 18 S. W. 418, and cases cited in Yernon’s Proc. under article 626.

Appellant insists that the above provision of the Code is directory, and not mandatory; but he overlooks the fact that the granting of new trials by trial courts is statutory, and not a part of the common law ingrafted on our system of jurisprudence. It is immaterial whether the statute is mandatory or directory. There is no right given to file a motion for a new trial in misdemeanor after the lapse of two days after conviction. Had an original motion for new trial been filed within the two days allowed by law, the court could permit it to be amended at a later day. But as no motion of any character was filed until five days after conviction, a court could permit a motion to be filed after term time in felony cases as well as he could in a misdemeanor case after the lapse of two days after conviction.

We cannot hold that the court abused the discretion confided to him in following the plain provisions of the statute, instead of ignoring its provisions. As this is the only question presented ’on appeal, the judgment should be aflimed.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 4097.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.)
    1. Criminal Law <®=»1104(3) — A:ppea3>—Rec-ord — Teansckipt—Statement op Facts.
    In misdemeanor cases, the statement of facts must be copied in the record on appeal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2776; Dec. Dig. &wkey;>1104(3).]
    2. Criminal Law &wkey;o814(l) — Prosecution— Instructions.
    In trial for unlawfully carrying a pistol, an instruction that if accused, though a traveler, disturbed the peace or engaged in any other unlawful purpose, he would be guilty, is error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1970, 1980; Dec. Dig. &wkey;814(l)J
    Appeal from Grimes County Court; Reid Rikard, Judge.
    James Johnson was convicted of unlawfully carrying a pistol, and appeals.
    Reversed and remanded.
    McCall, Crawford & McCall, of Conroe, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of

unlawfully carrying a pistol, and prosecutes this appeal.

The statement of facts was signed, approved, and filed in' term time, but is not copied in the transcript. Clerks at times do not pay enough attention to the law as regards misdemeanors. The law still requires the statement of facts to be copied in 'the transcript in misdemeanor cases, but the original must be sent to the court in felony cases. The motion of the Assistant Attorney-General to strike out the statement of facts-must be sustained, but appellant’s counsel, if he so desires, can have the transcript corrected by proper application, and have the statement of facts brought before us in such shape as we can consider it and be enabled to pass on all the questions raised.

There is an error in the record which is fatal to the conviction, however. The-court gave a special charge, at the request of the state, that even though they found appellant was a traveler, as defined in the charges given, if appellant disturbed the peace or engaged in any other unlawful purpose, he would be guilty of unlawfully carrying a pistol. This is not correct. Appellant may have been guilty of disturbing the peace, but he was not on trial for that offense, and, even though he was, if he was lawfully carrying a pistol, the fact he disturbed the peace would not justify a conviction for unlawfully carrying arms.

The judgment is reversed, and cause remanded.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes