text:
    NEWBY et al. v. HARBISON et al.
    (No. 941.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 8, 1916.
    On Motion for Rehearing, April 19, 1916.)
    1. Vendos and Purchases <&wkey;266(9) — 'Vendor's Lien Notes — Primary Security — Agreement Between Subsequent Vendor and Purchaser.
    All the land sold, with a retention of a vendor’s lien for the unpaid purchase money, remains primary security for the debt, and none of it becomes a mere surety, as to the holder and owner of the vendor’s lien notes, in the absence of consent by such holder and owner to change in such respect, notwithstanding subsequent conveyances of parts of lands, and agreements between the subsequent vendors and purchasers ; so that extension of time of payment of the notes given by the holder thereof to G., who had bought some of the lots, assuming payment of the notes, did not release those lots which G. had conveyed to N., by warranty deed, without any assumption 'by N. of payments of the notes, though N. had no notice of and did not consent to the extension.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 713, 726; Dee. Dig. &wkey;266(9).]
    On Motion for Rehearing.
    2. Vendos and Purchases <&wkey;280(2) — Vendor’s Lien Note — Release oe Purchaser —Extension to Subsequent Purchaser-Pleading and Prooe.
    It is error not to render judgment against the maker of a vendor’s note, sued thereon, on the ground that he was released by an extension of time to Ms grantee, who had assumed payment, he not having pleaded or given evidence that the extension was without his consent or notice to him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 786-788; Dec. Dig. &wkey;280(2).]
    3. Vendor and Purchaser <s=266(9) — Vendor’s Lien Notes — Extension to ¡Remote Grantee — Release oe Intermediate Grantees.
    ii/xtension of time on a vendor s hen note to a remote grantee of the land, who had assumed its payment, though without notice to or consent of intermediate grantees, who had also assumed payment thereof, did not release them, the holder of the note not knowing of their relation thereto, and not being charged with notice from record of their deeds.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. § 726; Dec. Dig. <&wkey;
    bUBROGATION <&wkey;14(4) — PURCHASER OE Land Subject to Vendor’s Lien.
    If. a Mt be subjected to payment of a vendor s lien in the hands of one who has bought it free therefrom, he is entitled to subrogation against those personally liable for the debt.
    [Ed. Note — For other cases, see Subrogation, Cent. Dig. § 39; Dec. Dig. &wkey;14(4).]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by Mrs. R. A. Hatbison against J. W. Poole and others. From an adverse judgment, C. H. Newby and certain other defendants appeal.
    Affirmed in part, and in part reversed and rendered.
    Marshall & Perkins and J. A. Clarke, all of Quanah, for appellants. D. E. Magee, of Quanah, and Jos. H. Aynesworth, of Chil-dress, for appellees.
   HUFF, C. J.

On February 7, 1910, M. A. Haskett sold and conveyed by general warranty deed to J. W. Poole, all of block 18, consisting of 12 lots, numbered from 1 to 12, inclusive, in Ingleside addition to the town of Quanah, Tex. As part of the consideration for the 12 lots Poole executed and delivered to Haskett his three promissory notes of even date with the deed, payable to the order of Haskett, for the sum of $240 each, numbered 1, 2, and 3, respectively, and due in one, two, and three years after their date. A vendor’s lien was retained in the deed and notes to secure their payment. On July 27, 1910, J. W. Poole conveyed by warranty deed lots Nos. 11 and 12, out of the block to W. T. Pir-tle, who, as a part of the consideration therefor, assumed the payment of the three notes and lien retained in the deed to secure them. December 3, 1910, Pirtle conveyed by warranty deed to Ben J. Brothers lots 11 and 12, and as part of the price therefor assumed the payment of the three notes, a vendor’s lien being retained in the deed.

On September 9, 1910, J. W. Poole, for a cash' consideration, conveyed by warranty deeds to Brothers lots 3 to 10, inclusive, in the above block. On December 6,1910, Brothers, by warranty deed, conveyed lots 3 to 10 and 11 and 12 to W. P. Grogan, and as part of the consideration therefor Grogan assumed the payment of the three notes, and to secure the payment a vendor’s lien was retained in the deed upon lots 11 and 12 only. On January 25, 1910, Grogan conveyed by warranty deed lots 11 and 12 to R. E. Richmond, who as part of the consideration assumed the payment of notes 2 and 3 of the series of notes; note No. 1 theretofore had been paid by Gro-gan and not involved in this suit. A vendor’s lien was retained in the deed to secure the payment of the two notes assumed.

On August 2, 1910, J. W. Poole conveyed by general warranty deed lots 1 and 2 in block 18, to J. N. Woods, who on December 8, 1910, conveyed by warranty deed to E. S. Poole, who in turn on January 20, 1911, conveyed by warranty deed lots 1 and 2, to appellant, C. H. Newby. Each of these last three mentioned deeds contained covenants of general warranty as against all persons, and there is no assumption of the three notes mentioned in these deeds. M. A. Haskett indorsed note No. 3 to D. B. Decker, who in turn indorsed the same to Mrs. R. S. Harbison, as collateral. M. A. Haskett indorsed note 2, without recourse, to J. T. Haskett, who in turn indorsed and delivered the same to W. B. Wor-sham; Worsham died and this note became the property of his heirs, Leola P. Hapgood, Carl M. Worsham, and Mrs. Nettie O. Wor-sham.

About January 1, 1912, W. B. Worsham, the then holder of note No. 2, extended the time of its payment to W. P. Grogan, from February 7, 1912, to February 7, 1913, for a consideration of $25, then paid by Grogan to Worsham. The appellant Newby, or Brothers, had no notice of this extension, as so found by the trial court. Mrs. R. A. Harbi-son, as plaintiff and holder of note No. 3, and the defendants, Leola P. Hapgood, joined by other heirs and the executors of Worsham, deceased, the holders of note No. 2, sought to recover judgment against J. W. Poole, W. T. Pirtle, Ben J. Brothers, W. P. Grogan, and R. E. Richmond, for the amount now due upon the notes respectively, and to foreclose the vendor’s lien upon the whole of said block 18, as against all parties against whom they sought a personal judgment, and also against appellant O. H. Newby, as the owner of said lots Nos. 1 and 2, no personal judgment being sought against him.

Ben J. Brothers, by his answer, alleged, among other things, that upon the assumption of the notes by Grogan, he (Brothers) became surety for Grogan, and that thereafter W. B. Worsham granted an extension of note No. 2 to Grogan, and that he was thereby released from liability on said note; and by way of cross-action against the appellant Newby he sought to require the holders of the notes to first exhaust their security against appellants’ lots 1 and 2, before any execution should issue against him (Brothers) personally.

Appellant Newby, by answer, alleged fully the various conveyances above set out to the different lots in the block, and the agreements of the several purchasers of lots 11 and 12 to pay said notes as a part of the purchase price by them for said lots as above stated. That by reason thereof each of the parties so assuming the notes became primarily liable therefor, and that his lots 1 and 2 were only secondarily liable therefor or only liable as sureties for the other parties; that W. B. Worsham granted an extension of note No. 2 to Grogan, without his knowledge or consent, and by reason of such extension his lots had been released from the note, and by way of cross-action he prayed in the event of a foreclosure against his lots 1 and 2, that he recover judgment over against Poole, Brothers, Pirtle, Grogan, and Richmond, for such amount as he might be compelled to pay to buy in his lot at such foreclosure sale or to prevent a sale thereof; also prayed for such other relief, both general and special, as he might show himself entitled to.

The defendants Pirtle, Poole, and Richmond filed no answer. Grogan made no answer to Newby as against him. Possibly the other pleadings are not necessary to the issues in this case.

The case was tried before the court without a jury. Judgment was rendered in favor of Mrs. Harbison, against Poole, Pirtle, Brothers, Grogan, and Richmond for the amount due as principal and interest upon note No. 3. He rendered judgment in favor of Hap-good and others against Grogan and Richmond, for the amount due as principal, interest, and attorney’s fees, upon note No. 2, holding that Poole, Pirtle, and Brothers were released from personal liability on the Wor-sham note by the extension granted to Gro-gan; but that lots Nos. 1 and 2, owned by Newby, were not so released.

The judgment foreclosed the lien against all the lots in the block, decreeing that lots 11 and 12 should be sold first, and that 3 to 10 sold next, and 1 and 2 last, giving Newby a judgment over against E. S. Poole and J. W. Poole on the warranty contained in their deed to him to lots 1 and 2, for the amount that he may be required to pay to free his lots by reason of the foreclosure.

It is assigned as error by Newby that the court erred in holding that lots 1 and 2, owned by appellant Newby, were subject to foreclosure under the vendor’s lien note held by the estate of Worsham, on the ground that Worsham extended the time of the payment of the note under the agreement with Grogan, who was then the principal obligor on the note, without the knowledge or consent of Newby, and the previous owners of the property and obligors on the note, and who, at the time of the extensions, stood as sureties on the note. We think the entire block of land in question was the primary security for the debt when the lien was re-sferved by Haskett, the vendor and payee in the note. In this respect, the indorsee of the note, Worsham, never consented to any change, and as to him the lots remained primarily liable for the debt. The change as to the other parties did not affect the right of the owner and holder of the notes. Wor-sham’s estate was not required, on account of the subsequent acts of, the various owners, to treat the land as a mere security for the debt. We think the doctrine announced in the case of Westbrook v. Bank, 97 Tex. 246, 77 S. W. 942, and Bank v. Bray, 105 Tex. 312, 148 S. W. 290, and other cases cited, inapplicable to the facts of this case. While it is true if the vendor transfers the vendor’s lien note alone the legal title to the land is not thereby conveyed; yet it has been held repeatedly that the vendor holds the legal title in trust for the indorsee of the note. It is our opinion that the rule announced in the case of Dalton v. Rainey, 75 Tex. 516, 13 S. W. 34, is applicable to this case. The subsequent agreement between the vendees of other portions of the land will not change the primary security to the position of a mere surety. We think the case of Shapleigh Hardware Co. v. Wells, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783, supports the action of the trial court in this case. Montague County v. Meadors, 21 Tex. Civ. App. 256, 51 S. W. 556; Willis v. Sanger, 40 S. W. 229; Heard v. Thrasher, 71 S. W. 811.

Hapgood and others, representing the estate of Worsham, also appeal and assign error. It is asserted the trial court erred in refusing to render a personal judgment against Brothers, Poole, and Pirtle, on the ground, if Worsham agreed with Grogan, the vendee, of Brothers, to extend the time, this would not operate as a release of the prior owners, who had assumed the payment of the note, unless at the time the extension was made he (Worsham) had actual notice of the conveyance and the assumption of the note to and by Grogan. There is no evidence in the record that when Worsham granted an extension to Grogan that he had actual notice that Brothers and others had assumed the payment of the note. However, Grogan wrote for an extension, which Worsham granted. It may be assumed that this was sufficient to notify him that Grogan owned the lots and was liable for the payment of the debt.

The record of the deeds in this case was not constructive notice to Worsham of the deeds executed subsequent to the date of his note. A subsequent purchaser takes his title with full knowledge of the lien, and, if ha wishes to protect himself, should notify the mortgagee of his purchase. Jones on Mortgages, § 723 ; 27 Cyc. 1357 (11). This rule has frequently found expression in cases where the mortgagee has released part of the land upon which the mortgage is given to secure the debt. Biswell v. Gladney, 182 S. W. 1168, by this court, No. 900, decided January 26, 1916. It is held that when the mortgagee, who has notice that the conveyance of the premises to a purchaser who has assumed the payment of the mortgage debt, grants him extension, without the consent of the mortgagor, the personal liability of the mortgagor will thereby be discharged. 27 Oyc. 1357. It is also held that a purchaser of land mortgaged, who assumes the payment of the mortgage debt, as between himself and the grantor or mortgagor, is the principal debtor, and that the mortgagor or grantor the surety. This does not affect the relation of the mortgagor and mortgagee, unless there is a voluntary agreement to accept the parties in their new relation by the mortgagee. It was not necessary, however, for Worsham, when the extension was granted, to notify the parties that he had accepted their assumption. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672.

The facts in this case were, we believe, sufficient to put Worsham upon notice that Grogan was the purchaser of the land and liable for the debt. This being true, he accepted Grogan as the principal obligor and extended the time of payment. He must have known that this would release the sureties, whoever they were. In this case his representatives sued Grogan, as the party who had purchased the land, and assumed the debt, and bases his cause of action upon the assumption. This, we think, is sufficient to support the finding of the trial court that Worsham so recognized the relation of the parties and accepted Grogan as the principal obligor and extended the time without the consent of the sureties. This conclusion is strengthened by the absence of evidence offered by the estate of Worsham to the contrary. If Worsham did not accept Brothers, then there was no agreement which could be enforced as to his personal obligation. If he released him by extending the time of payment, his, estate is not authorized to recover. If he, or his heirs, or executors, accepted after the mischief had been done by extension, he then accepted the covenants as affected by his previous conduct, and there was only such contract as the facts established at the time of acceptance.

The trial court gave .judgment for the appellant Newby against Poole on his warranty. If Poole is compelled to pay this debt, or any part of it, he, perhaps, will have the right to go on to his vendee for the amount he should pay or be compelled to pay. It may be that he will have the right against his vendees so assuming the debt. 27 Cyc. 1354, and 1358, f. And it may be the law will subrogate Newby to Poole’s rights for the amount he may be compelled to pay when he pays it. Singletary v. Goeman, 58 Tex. Civ. App. 5, 123 S. W. 436. Newby will also, ,we think, be entitled to subrogation to Worsham’s rights for any amount he may have to pay against the parties personally liable to Worsham. This will he a question for the law or equity to determine when he shall have paid any amount on the debt.

The costs of appeal will be divided equally between appellant Newby and Leola I-Iap-good and others, representing the estate of Worsham.

We find no such error as will require a reversal of the case, and it is affirmed.

On Motion for Rehearing.

We believe that we were in error in affirming the judgment of the tidal court in this case. We adhere to the view that the lots in question are primarily liable for the debt, and in addition to the authorities heretofore cited, refer to Harris v. Masterson, 91 Tex. 171, 41 S. W. 482; 27 Cyc. 1347, f, 1364, 1365.

We are also of the opinion that Mrs. Leola P. Hapgood and other’s first and second assignments should be sustained, which are to the effect that it was error to release B. J. Brothers, W. T. Pirtle, and J. W. Poole from the judgment. As to Pirtle and Poole, they did not ask to be released by a plea. There is no evidence that they did not consent to the extension, or that they did not have notice of the extension, and there is no plea to that effect on their part. Brothers having bought lots 11 and 12, and as a consideration therefor assumed the payment of the notes sued on, was bound therefor. He took his title with full notice of the lien, “and if he wished to protect himself he should notify the mortgagee of his purchase. The record is constructive notice only to subsequent purchasers, or those claiming under the same grantor.” 1 Jones on Mortgages (6th Iild.) § 723, last clause. It was not the duty of Wor-sham to investigate- and ascertain whether there was a junior conveyance or incum-brance. He should not be subjected to the constant necessity of investigating transfers between the mortgagor and third persons. Id. There is no pretense in this record that Brothers notified Worsham that he as a purchaser had assumed the debt, or had sold to Grogan. There is nothing in the record to charge Worsham with such fact, except the deed record, which is held by the courts no notice to the mortgagee. We were in error in holding that granting extension to Grogan was sufficient to charge Worsham with notice of Brothers’ rights. Worsham could not have been defeated in his right of foreclosure against lots 1 and 2, except on account of his negligence. He could not be charged with negligence in failing to get the consent of Brothers, when he was not charged with notice of Brothers’ connection with the title. Brothers cannot be released because he did not receive notice and did not give his consent when he negligently failed to notify Worsham of his purchase so that such notice could be given and his assent obtained. The fact that afterwards Brothers was sued by Worsham may be sufficient to show that Brothers’ assumption of the debt was accepted. This acceptance, however, was the acceptance of the debt as the conduct of the parties fixed it before the acceptance. The duty on Brothers’ part was to notify Wor-sham, which he did not do, and the extension, therefore, should not release him from .his obligation to pay. In this state the original vendor or obligor is regarded as the surety to his vendee who has assumed the note; especially so as between the parties— vendor and vendee. In so far as we are able to find, the question of extension by the in-dorser of the note, without the original obligor’s consent, releasing him on account of his suretyship, has not been directly decided in this state. On this question there is a conflict of authorities — one holding that he is released as a surety by extension (Jones on Mortgages [6th Ed.] § 742); while others hold that he is not released as to the creditor, recognizing simply that the relation of surety-ship exists between a grantor and grantee who assumed the payment of the mortgage, but does not affect the relations of the mortgagor and mortgagee (Id. § 742a). It occurs to us when the land stands as the primary security for the debt, and the creditor may resort to it for payment, that the owner of the lot so sought to be subjected to the debt ought not to be prejudiced by the acts of the parties over whom he has no control. It would seem to us that our courts sustain the latter view suggested by Mr. Jones. Montague County v. Meadows, 21 Tex. Civ. App. 256, 51 S. W. 556; Witt v. Amarillo National Bank, 135 S. W. 1108; Brandt on Suretyship, § 362.

Worsham, by his act, could not affect Newby’s right of subrogation in extending the time. AVorsham would not be defeated of his lien because he did not give notice to Brothers, who had theretofore failed to give him notice of his relation to the title. Newby, therefore, has a right to be subrogated to the rights of creditors for whatever sum he shall be required to pay in order to free his land-from the lien. Judgment in this case should therefore be rendered against J.- W. Poole, and the subsequent vendees on their assumption, foreclosing the lien on the 12 lots in the block, directing that the lots be sold in the order named by the decree of the trial court, and if lots 3 to 12, inclusive, shall not sell for enough to pay olf the judgment on both notes sued upon, together with the interest, attorney’s fees, and costs, and Newby is compelled to pay and does pay the balance remaining to free Ms lots, then he should have the right to demand and have issued an execution in the name of the plaintiffs in the judgment, which shall direct the officers first to levy on the property of the parties in the order named, to wit, Richmond, Gro-gan, Brothers, Pirtle, and Poole; or if New-by shall pay the balance after the sale of the lots first required to be sold, the order of sale issued on the judgment shall inure to his benefit as an execution for the balance which he is required to pay and which he does pay, which shall be executed at his request upon the property of the parties in the order above suggested.

The motion for rehearing will be granted. The judgment of this court, affirming the judgment of the trial court, will be set aside, and the judgment of the trial court reversed and here rendered. Reversed and rendered.
      (gs^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STEARNES.
    (No. 5589.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 16, 1916.
    Rehearing Denied April 19, 1916.)
    1. Waters and Water Courses <&wkey;>171(2)— Injuries bv Flowage — Floods.
    A railroad is liable for flooding lands, though extraordinary and unprecedented floods concur with the road’s negligence in the construction and maintenance of its embankment in causing the damage.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 218; Dec. Dig. <&wkey;
    2. Appeal and Error <&wkey;1010(l) — Review —Questions oe Fact.
    Questions of fact on which the trial court found against appellant with support in the testimony are determined for purposes of an appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 397943981; Dec. Dig. &wkey;> 1010(1).]
    3. Evidence <s&wkey;324(l) — Hearsay—Past History of River.
    In an action against a railroad for damage to plaintiff’s land from floods caused by embankments retarding flood W'aters of a river, hearsay testimony concerning former floods reputed to have been greater than those involved in the case was admissible to show the past history of the stream.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1218, 1221-1229; Dec. Dig. &wkey; 324(1).]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Suit by A. C. Stearnes against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff,, defendant appeals.
    Affirmed.
    Wilcox & Graves, of Georgetown, for appellant. O. E. Roberts, of Taylor, for appel-lee.

       Application for writ of error pending in Supreme Court.

   KEY, C. J.

The nature and result of this suit is stated as follows in appellant’s brief:

' “This suit was filed by the appellee against the appellant in the district court of Williamson county, Tex., on May 20, 1914, for damages aggregating $3,194.02 for injuries alleged to have been received by him from the overflow of his farm residence, gin, and other property adjoining and lying west of the track of appellant where it crosses the San Gabriel river and Pecan creek, about five miles north of Taylor, in said county, such damage being alleged to have occurred by reason of the fact that appellant had built certain embankments on each side of and between said two streams, which embankment caused the flood waters to be retarded and held back so that appellee’s said property was overflowed both on October 2, 1913, and December 2, 1913. Appellee at the time of the trial filed a trial amendment, reducing the amount claimed on some of the items, leaving the total amount then sued for $3,086.62.
“Appellant answered, denying generally and specifically the allegations of appellee’s pleadings, and further pleaded that its roadbed and embankments and the openings therein had been skillfully and scientifically built, so as to provide against the highest water of said streams, and that it had constructed and provided all necessary culverts and openings for the discharge of water, and, further, that the floods mentioned in appellee’s petition were extraordinary and unprecedented, and that any damage suffered by appellee was by reason of such extraordinary and unprecedented floods, and that appellant was not liable therefor.
“Appellee filed supplemental petition denying the allegations of fact in appellant’s answer, and alleging that, if such floods wore extraordinary and unprecedented, appellant’s negligence concurred with such floods and caused the damage. Appellant filed a supplemental answer excepting to the allegations contained in such supplemental petition.
“The case was tried before the court without a jury and judgment rendered for appellee for $2,-140. Appellant in due time filed its motion for a new trial, which was amended, which amended motion was by the court overruled, and appellant gave notice of appeal.”

As presented in this court the appeal involves but four questions, wMcli are: (1) That the trial court erred in not sustaining a special exception to that portion of appel-lee’s supplemental petition alleging that, if the flood waters were extraordinary and unprecedented, appellant’s negligence in the construction and maintenance of the embankment concurred with the extraordinary and unprecedented floods in causing the damage, and therefore appellant was liable; (2) that the floods in question were so extraordinary and unprecedented as to constitute an act of God which appellant was not required to anticipate and guard against; (3) that the undisputed proof shows that the embankments complained of by appellee had nothing whatever to do with causing the flood waters to flow upon and damage appellee’s property; and (4) that error was committed in permitting a witness to give hearsay testimony concerning former floods reputed to have been greater than those involved in this case. We decide against appellant on all of these questions. The ruling as to the special exception is sustained by Railway Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395, and Railway Co. v. Jenkins, 89 S. W. 1106.

The second and third points involve questions of fact, upon which the trial court found against appellant, and we cannot say that the findings referred to are without support in the testimony.

The fourth point is decided against appellant upon the theory that the testimony referred to, though hearsay in its nature, was admissible for the purpose of showing the past history of the stream. Ry. Co. v. Penney, 178 S. W. 970; Ry. Co. v. Madden, Sykes & Co., 46 Tex. Civ. App. 597, 103 S. W. 1193.

No reversible error has been shown and the judgment is affirmed.

Affirmed.
      <S=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    FT. WORTH & R. G. RY. CO v. ALBIN.
    (No. 558.)
    (Court of Civil Appeals of Texas. El Paso.
    April 20, 1916.)
    1. Carriers <&wkey;229(2) — C'aeriagb ' ox Live Stock — Trial—Damages.
    In an action against a carrier for injury to a mule in transportation, caused by the defendant’s negligence, plaintiff is entitled to recover the difference between the market value of the animal at the time and place of delivery in the condition it was delivered and its market value at such time and place in the condition that with ordinary care it should have been delivered, with legal interest, which interest is recoverable as a part of the damage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dec. Dig. <&wkey;>229(2).]
    2. Appeal and Error <&wkey;53 — Appellate Jurisdiction-Amount in Controversy.
    In an action against a carrier for injury to a mule in transportation, plaintiff’s petition, averring that the animal was damaged $99.50 by the defendant’s negligence, plaintiff being as a matter of law entitled to recover, if anything, the sum of $99.50 plus 6 per cent, interest thereon, although there was no pleading specifically asking for interest, made the amount in controversy over $100., so that the Court of Civil Appeals had jurisdiction on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 254-260; Dec. Dig. <&wkey;>
    3. Carriers &wkey;>228(5) — Carriage oe Live Stock — Suxxioiency ox Evidence.
    In an action against a carrier for injury to a mule in transportation, where the animal caught its foot in a crack four or five feet above the floor of the car, evidence held sufficient to warrant the deduction of an improper construction of the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;j228(5).]
    4. Carriers &wkey;>209 — Carriage ox Live Stock —Duties as to Transportation.
    It being a matter of common knowledge that the natural propensity of a mule is to kick, it is the duty of a carrier transporting such animals to take into consideration and furnish cars constructed with due regard for this propensity.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 925; Dec. Dig. <&wkey;>209.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by C. M. Albin against the Ft. Worth & Rio Grande Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Kearby & Kearby, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appellee.
   HIGGINS, J.

Albin sued appellant in the justice court to recover damages arising from injuries to a mule shipped from Comanche to Ft. Worth. Upon appeal to the county court, judgment was rendered against appellant for the sum of $99.50, with 6 per cent, interest from date of judgment.

Upon the threshold of the case we are confronted with a motion filed by appellee to dismiss the appeal upon the ground that neither the judgment nor amount in controversy is sufficient to confer jurisdiction upon this court. The judgment, it is true, is for an amount insufficient to confer jurisdiction, and the appeal must be dismissed, unless the amount in controversy exceeds $100, exclusive of interest and costs. Omitting formal parts, appellee’s petition reads:

“(1) That on or about October 2, A. D. 1912, the plaintiff delivered to said defendant railway company in Comanche, Texas, in first-class condition and good order, one certain four year old brown mare mule for shipment to North Ft. Worth, Texas. That said defendant received said animal in good order, and by its negligence in the shipment of said animal to Ft. Worth, Texas, from Comanche, Texas, said animal was damaged and injured, in that her stifle joint and hip and hind leg was damaged and injured, and said animal in her damaged condition was delivered by said defendant to the plaintiff at said North Ft. Worth, Texas. That said animal by reason of the negligence of said defendant was damaged m the sum of $99.50, that being the difference in the market value of■ said animal at-said time and place of delivery in the condition she was delivered, and the market value of said animal at said time and place, and in the condition, that by the use of ordinary care and diligence she could and should have been delivered by the defendant, as in law it was so bound to deliver said animal.
“(2) The plaintiff sues the defendant for the sum of $99.50 and costs of suit.”

If the injury to the mule was caused by the negligence of the defendant while it was in transit from Comanche to Ft. Worth, then, under the accepted rule in Texas, Albin was entitled to recover the difference in the market value of the animal at the time and place of delivery, in the condition it was delivered, and its market value at such time and place in the condition, that with ordinary care, it should have been delivered, with legal interest, which interest is recoverable as a part. of the damage. Railway Co. v. Jackson, 62 Tex. 209; Railway Co. v. Greathouse. 82 Tex. 104, 17 S. W. 834; Railway Co. v. Smissen, 31 Tex. Civ. App. 549, 73 S. W. 42. And—

“if interest be properly an element of damages in any case, then it is so as a matter of law. Whether the case is such that the law makes it applicable is a question of fact for the jury, but whether or not it is to be allowed if the facts exist is a question of law that should not be left to the jury.” Watkins v. Junker, 90 Tex. 584, 40 S. W. 11.

, The italicized portion of plaintiff’s petition averred that the animal was damaged $99.-50 by the defendant’s negligence, that being the difference in its market value at the time and place of delivery in the condition it was delivered and its market value at such time and place in the condition that, with ordinary care, it should have been delivered. .This being the case, appellant as a matter of law was entitled to recover the sum of $99.50, plus 6 per cent, interest thereon, which, in the aggregate, amounts to more than $100. Such interest would properly be recoverable, although there was no pleading specifically asking therefor. Railway Co. v. Greathouse, supra. So the amount in controversy in this case was the amount which the plaintiff’s allegations showed he was legally entitled to recover, namely, the sum of $99.50, plus •interest. And this is true notwithstanding the petition asks for the recovery of $99.50 only. . The effect of the prayer was to simply limit the amount of recovery to that sum, and did not alter the fact that a sum in excess of $100 was the amount of damage which was in controversy. Times Pub. Co. v. Hill, 86 Tex. Civ. App. 389, 81 S. W. 806; Railway Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294; Railway Co. v. Hood, 59 Tex. Civ. App. 363, 125 S. W. 983; Railway Co. v. Mathews, 169 S. W. 1052. This item of interest, it is weil settled, is recoverable not as interest eo nomine, but as an integral part of the plaintiff’s recoverable damage. In determining the jurisdictional question, the amount due by way of interest is a part of the amount in controversy. Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031.

The case at bar is distinguishable from Railway Co. v. Rayzor (Sup.) 172 S. W. 1103. In that case it is true there was a distinct allegation that there was a depreciation in value' of the property in the sum of $850, caused by the defendant’s negligence, and an additional expense of $125 incurred in handling and repairing the property. Under the authority of the cases above noted there would properly be added as a matter of law an additional item of damage in the way of interest upon said $850, which would have made a total in excess of $1,000; but in that case there was 'the further allegation “that the plaintiff was thereby damaged in the sum of $975,” and in the prayer there was a general averment which laid the damage at $975. As we understand the opinion in the Rayzor Case, Judge- Phillips held that the allegations in the original petition were susceptible of two constructions, one of which was that the total damage alleged to have been sustained was $975, and this construction of the petition would be adopted, since it would support the jurisdiction of the court rather than defeat it. But in the instant case the petition is not susceptible of two constructions. The allegation plainly is that the depreciation in market value caused by the defendant’s negligence was $99.50. There is nothing in the petition which would render possible the construction that said sum covered both depreciation in value and interest as well. The prayer contains no averment that the damage was $99.50, and is not in conflict with the previous allegation as in the Rayzor Case. So the distinguishing feature between the two cases is this:

In the Rayzor Case it was in effect held that the two allegations laying the plaintiff’s damage in the aggregate sum of $975, which would cover interest and all other elements of damage, would control the previous allegation, the legal effect of which was to fix the damage at $975, exclusive of interest. In the case now considered the allegation cannot be construed as laying the aggregate damage (i. e., depreciation in value plus interest) at $99.50. If it were susceptible of such construction, the rule announced in the Rayzor Case would apply. In the Rayzor Case Judge Phillips does not mention the cases to which we have referred. If it had been the intention to overrule the authority thereof, it would, no doubt, have been clearly indicated. This case, it seems, falls plainly within the rule which they announce, and it is our duty to. follow same, as it is not apparent that they are overruled by the Rayzor Case. It must be conceded that the Ray-zor Case does not seem to be altogether in harmony therewith, but it is believed we have correctly interpreted the Rayzor decision, and regard same as distinguishable from the instant case and from those cases upon the authority of which our holding herein is based.

We therefore hold that the amount in controversy herein exceeds $100, and this court has jurisdiction, for which reason the motion to dismiss will be overruled.

The trial court filed findings of fact as follows:

“(1) That on the 2d day of October, 1912, the plaintiff shipped over defendant’s road the four year old mule described in plaintiff’s petition, from Comanche, Texas, to North Et. Worth, Texas, to be delivered to plaintiff at the stock yards in North Et. Worth.
“(2) That said animal was delivered to defendant in good condition, and that defendant delivered the same to plaintiff at the stockyards in North Ft. Worth in the injured condition complained of by plaintiff.
“(3) That there was no caretaker with said shipment from Comanche, Texas, to North Ft. Worth, Texas.
“(4) That the Ft. Worth Belt Railway Company is defendant’s agent for the delivery of live stock and other freight at the stockyards in North Ft. Worth.
“(5) That the car in which said animal was shipped was not properly constructed for the shipment of live stock, in that the cracks between boards on the sides of said car were large or wide enough for animals to get their feet through.
“(6) That said car was handled with ordinary care and diligence from Comanche, Texas, to its delivery. to the Ft. Worth Belt Railroad in North Ft. Worth, Texas.
“(7) That there was no testimony showing how said car was handled on the Ft. Worth Belt Railroad.
“(8) That the damage to said mule depreciated her market value, at the time and place of destination, more than the amount sued for.”

And, at request of appellant, additional findings as follows:

“(1) I find that the injury consisted of a dislocation of the stifle joint of one of the mule’s hind leg's, the evidence does not show which one, and some minor bruises. The injury to the stifle joint was a permanent injury; other injuries, temporary.
“(2) I find that the mule received its injury hy getting its foot fastened in a crack between planks, four or five feet above the floor of the car. The evidence does not show how the mule got her foot in the crack.
‘‘(8) As to whether said mule got its foot fastened by exercising its animal propensity of kicking, the evidence does not show how it got its foot fastened; but I am inclined to think it was not by kicking, as the evidence does show that the mule was a gentle, well-broken mule.”

The first assignment complains that there is no evidence to support the fifth finding of fact. It is overruled. The fact that the animal got its foot caught in the crack, of itself, shows that it was large enough for such animal to get its foot through, and this would warrant the deduction of improper construction of a car in which such animals were to he shipped.

The second assignment is that the court erred in finding that the evidence did not disclose how the animal got its foot hung in the car, and in not finding that it got its foot hung in the side of the car on account of exercising its animal propensity of kicking, as no other explanation is offered as to how she could have been injured.

The third assignment is that the court erred in rendering judgment for the plaintiff, and in not rendering judgment for the defendant herein, because under the undisputed evidence the animal in question was injured by reason of her own animal proiiensities in kicking, and thereby getting her foot caught 1 or hung in the sides of the car about five feet from the floor thereof.

It makes no difference if the animal did get its foot caught in the crack by kicking. It is a matter of common knowledge that the natural propensity of such animals under such conditions is to kick. In furnishing cars to transport such animals, this propensity' must be taken into consideration by the carrier, and it is its duty to furnish cars constructed with due regard for this natural propensity. It is not a case where the injury was caused by the inherent viciousness of the animals, or by them fighting with each other.

The findings complained of in the fourth, fifth, and sixth assignments are immaterial, in view of the finding that the animal was injured by getting its foot caught in the crack of the car and that such car was improperly constructed. It would therefore be profitless to inquire whether the findings complained of were properly made.

The seventh assignment reads:

“The court erred in rendering judgment for plaintiff, and in not rendering judgment for the defendant herein, because the court’s findings show that this defendant exercised due care and ordinary diligence in handling said shipment from Comanche to North Ft. Worth, and no facts are alleged or proven which would render this defendant liable for any injury after arrival at North Ft. Worth, for, having exercised ordinary care and diligence in said transportation, it was absolved from any liability for any injury sustained.”

The defendant is liable for its negligence with respect to the improperly constructed car in which the animal was shipped, and this assignment is therefore overruled.

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


text:
    SECURITY NAT. BANK OF DALLAS v. FARMERS’ EDUCATIONAL & CO-OP. WAREHOUSE CO.
    (No. 561.)
    (Court of Civil Appeals of Texas. El Paso.
    April 20, 1916.)
    1. Warehousemen <®=»3 — Statutory Regulations — “Public Warehouseman.”
    Under the warehouse act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7819-7827) the fact that one is a public warehouseman within the ordinary meaning of those terms is not sufficient to invest him with the character and rights and charged with the duties and responsibilities incident to public warehousemen and warehouses defined in the act. '
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 4; Dec. Dig. <g^>3.
    For other definitions, see Words and Phrases, First Series, Public Warehouseman.]
    2. Warehousemen <®=>16 — Receipts—Negotiability.
    A lender receiving, as security for'his loan, cotton warehouse receipts, not knowing of a prior mortgage on the cotton, cannot on nonpayment of the loan hold the warehouseman, liable for the amount thereof, although the warehouseman is a public warehouseman and the receipts are not indorsed “nonneg'otiable” or “not a public warehouse receipt,” where the warehouseman is not operating under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7819-7827, the public warehouse act, and the receipts show that they are not in the form prescribed- by that act.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 35; Dec. Dig. <@=j16.]
    Appeal from District Court, Knox County; J. A. P. Dickson, Judge.
    Action by the Security National Bank of Dallas against the Farmers’ Educational & Co-operative Warehouse Company. From & judgment for defendant, plaintiff appeals-
    Affirmed.
    Leake & Henry, of Dallas, and Glasgow & Kenan, of Seymour, for appellant- Milam & Wheat, of Seymour, Jas. A. Stephens, of Benjamin, and J. S. Kendall, of Munday, for appellee.
   HIGGINS, J.

On November 2, 1914, Geo-F. Thompson executed 'and delivered to ap-. pellant his promissory note in sum of $480, and on November 7, 1914, another note, in sum of $780. To secure the payment of these notes he delivered to appellants 31 receipts issued by appellee to G. McD. Gamble. Each receipt was for one bale of cotton. A copy of one of the receipts reads:

“Recáipt No. 121.
“Munday, Texas, 10/20/1914.
“Received of G. McD. Gamble of-, county of Knox, state of Tex. Cotton for storage in warehouse of as follows:
Number Marks Weight Class. 561 GD. 536 st. M.
“Charges: Storage, 10c per bale per month. Insurance, 25c per bale per month, classing 10c per bale. Drayage 106 por bale, weighing, 10c per bale. Farmers’ Union Warehouse Co., “R3. By W. E. Gray, Mngr.”
Indorsed:
“G. McD. Gamble.”

The other receipts are of the same tenor and effect except as to numbers, marks, weights, and classifications. The 31 bales of cotton covered by these receipts were incumbered by a mortgage executed by Gamble to the First National Bank of Goree dated December 30, 1913, filed for record January 1, 1914. In the district court of Knox county on March 24, 1915, a decree of foreclosure was entered in favor of the First National Bank of Goree against Gamble, Security National Bank of Dallas, Farmers’ Educational & Co-operative Warehouse Company and others, foreclosing its mortgage upon aforesaid 31 bales of cotton. Thereafter the present suit was filed by appellant against the appellee seeking to recover the 31 bales of cotton or its value to the extent oí the balance due upon the Thompson notes. From an adverse judgment, the Security National Bank of Dallas prosecutes this appeal, and in support of its contention that it is entitled to the relief which it sought asserts this proposition:

“Warehouse receipts issued in October, 1914, by a corporation engaged in operating a public warehouse, which said receipts covered cotton stored in the warehouse issuing the receipts subject to a prior mortgage, but which receipts when issued contained no information or notice of such mortgage, where not stamped or written across their face ‘Not Negotiable,’ or did not have on their face the words ‘Not a Public Warehouse Receipt,’ render the warehouseman issuing such receipts responsible to any legal owner or holder of the receipts acquiring the same for a valuable consideration in due course of trade without knowledge of the existence of the said mortgage on the cotton for any damage which might be occasioned to the owner or holder of the said receipts without notice of the mortg'age as a result of the existence of the mortgage upon the cotton.”

Appellee was incorporated in 1907. During the year 1914 it did a general cotton storage business in the town of Munday, receiving for storage cotton from the general public, making charges therefor. As such it received from Gamble 31 bales of cotton and issued the receipts to cover the same as indicated above. Appellee made no effort to comply and did not in any wise comply with the provisions of chapter 37, First Called Session of Thirty-Third Legislature, providing for a system of public warehouses. Vernon’s Sayles’ R. S. 1914, title 131, articles 7819 to 7827, inclusive. Its warehouse was not controlled, conducted, or managed in accordance with the provisions of such act.

A public warehouseman and public warehouse, within the meaning of the act noted, is thus defined in the first section thereof:

“All persons, firms, companies or corporations who shall receive cotton ⅜ '* * in store for hire, under the provisions of this act, shall be deemed and taken to be public warehousemen; and all warehouses which shall be owned or controlled, conducted and managed in accordance with the provisions of this act, shall be deemed and taken to be public warehouses. * * *

(Obviously, upon the facts stated, ap-pellee was not a public warehouseman and its warehouse was not a public warehoused within the purview of thfe act which appellant invokes. The ma'jfor premise upon which its contention resfS is not well taken. The fact that it was a public warehouseman within the ordinary meaning of those terms was not sufficient to invest it with the character and rights and charged with the duties and responsibilities incident to public warehousemen and warehouses as defined in the act. Only those persons fall within its purview who receive property in store for hire, under the provisions of the act, and only those warehouses which are owned or controlled, conducted, and managed in accordance with such provisions^ The first section is plain, but if there could be any doubt in respect thereto, it is relieved by section 9 of the act (article 7827, Vernon’s Sayles’ R. S.) which reads:

“Nothing in this law shall be construed to apply to private warehouses or to the issue of receipts by their owners or managers under existing laws, or to prohibit public warehousemen from issuing such receipts as are now issued by private warehousemen under existing laws: Provided, that such private warehouse receipts issued by public warehousemen shall never be written on a form or blank indicating that it is issued from a public warehouse, but shall, on the j contrary, bear on its face, in large characters, the words ‘Not a Public Warehouse Receipt.’ ”

It is true the receipts issued in this case did not have indorsed upon their face the words “Not a Public Warehouse Receipt” as provided by this section and did not bear the indorsement “Not Negotiable,” as is elsewhere provided in the act, but such omissions cannot charge appellee with the responsibilities attaching to warehousemen and warehouses operating under the act. A most superficial inspection of the receipts would disclose that they did not comply with the fourth, fifth, sixth, and seventh sections of the act prescribing form of receipts to be issued by public warehousemen and warehouses, and upon their face thus bear unmistakable evidence of the fact that they were not the receipts of a public warehouse operating under the statute. And as to negotiability, they are obviously not of that character, and the failure to bear the indorsement “Not Negotiable” is unimportant. Tbe receipts being patently not those of a public warehouse operating under the statute and not negotiable instruments, the failure to make the indorsements indicated is of no consequence and confers no right of action upon appellant.

Affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRAYSON v. BOYD.
    (No. 569.)
    (Court of Civil Appeals of Texas. El Paso.
    April 20, 1916.)
    1. Appeal and Error <§=>931(3) — Presumptions — Statute.
    In an action for damages for conversion by the defendant of cotton left ungathered by the-plaintiff, his tenant, at the termination of the rental period and removal, there being a conflict in evidence as to whether the defendant lme\l or had reason to believe that the plaintiff intended to return and gather the cotton, and no issue being submitted or requested upon the bona fides of the defendant’s action, it will be presumed under Rev. St. 1911, art. 1985, providing that an issue not submitted or requested shall be deemed found by the court to support the judgment if there be evidence sustaining such a finding, that the court resolved against the defendant the issue of good faith on his part.
    [Ed. Note. — For other cases, see' Appeal and Error, Cent. Dig. § 3764; Dec. Dig. <§=>981(3).]
    2. Witnesses <§=>410 — Impeachment.
    In an action for damages for conversion of cotton, where the defendant impeached plaintiff’s testimony that he intended to return and gather the cotton by witnesses who testified to conversations with the plaintiff in which he said that he was not going to gather the cotton, testimony of witnesses as to statements made to them by the plaintiff that he did intend to return and gather the cotton were admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. <§¿3410.]
    3. New Trial <§=>104(1) — Newly Discovered Evidence.
    Newly discovered evidence merely cumulative of testimony already offered by the party is not ground for a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218, 228; Dec. Dig. <§=>104(1).]
    4. Trial <§=>350(8) — Submission op Issues.
    In an action for damages for conversion of eight bales of cotton, where the number of bales in controversy was not questioned, but defendant attempted to set up title to two of the bales in a third party by virtue of a gift which was not established, a special interrogatory to the jury assuming the conversion of eight bales, if any, and refusal to submit defendant’s requested special interrogatory as to the number converted, if any, were not improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 833; Dec. Dig. <§=>350(8).]
    5. Gifts <§=>18(1), 24^-Inter Vivos — Validity — Delivery and Acceptance.
    Complete and unconditional delivery by the donor and acceptance by the donee are essential to the validity of a gift inter vivos.
    [Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 18, 29, 30, 32, 33; Dec. Dig. <§=>18(1), 24.]
    6. Trover and Conversion <§=>23 — Defenses —Title in a Third Person.
    A defendant in trover cannot set up title in a third person, without showing some claim, title, or interest in himself derived from such person.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 163-166; Dec. Dig. <§=>23.j
    Appeal from Jones County Court; J. F. Lindsey, Judge.
    Action by W. L. Boyd against J. H. Gray-son. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    E. T. Brooks and Walter S. Pope, both of Anson, for appellant. W. R. Chapman, of Anson, and Andrews & Coombes, of Stamford, for appellee.
   HIGGINS, J.

Grayson rented to Boyd a farm for the year 1914, the term expiring January 1, 1915. Cotton was raised upon the farm by the tenant, of which one-fourth belonged to the landlord as rent. On January 4, 1915, Boyd moved from the rented premises. It took him about ten days to move. At that time there was some ungath-ered cotton remaining in the fields. Subsequent to January 17, 1915, Grayson, at his own expense, gathered and marketed this cotton and appropriated the proceeds. This suit was filed by Boyd to recover the value of his share of eight bales of cotton so gathered, marketed, and appropriated by Gray-son. Boyd sought to recover upon the theory that by custom he had the right, notwithstanding his removal and the expiration of the rental period, to gather such cotton and market same, accounting to the landlord for his one-fourth thereof as rent. It was contended by Grayson that Boyd had voluntarily abandoned and relinquished his right to the ungathered cotton when he removed from the premises.

The case was submitted to a jury upon special issues, which, with the answers thereto, read:

“No. 1. Did the plaintiff, W. L. Boyd, abandon the ungathered. cotton crop raised by him upon the premises rented from the defendant at any time from the 4th day of January and before the 17th day of January, 1915? Answer: No.
“No. 2. Was it the custom in the community of the Grayson farm for the landlord to permit the tenant, after the expiration of the rental term, to gather such ungathered crop as the state of the weather and condition of the crop had prevented or made impractical to gather before the expiration of said rental term, and after he had removed from said premises? Answer: Yes.
“No. 3. What was the market price of the eight bales of cotton and seed converted, if any converted, after deducting rents and the usual and customary price of picking the same? Answer: $109.31.”

Judgment was thereupon-rendered in favor of Boyd, and Grayson appeals.

The first three assignments attack in different ways the correctness of the measure of damage applied in the case; it being contended by appellant that he in good faith believed Boyd had abandoned the ungathered cotton and relinquished Ms interest therein; that, acting upon this belief, he gathered and marketed the cotton in which he had a one-fourth interest. He invokes the rule applied in a number of eases in this state that, where the conversion of property is the result of a mistake made in good faith, and not intentional, the value of the property when first taken must govern, and not the value of the finished product. Pettit et al. v. Frothingham et al., 48 Tex. Civ. App. 105, 106 S. W. 907; Texas, etc., Ry. Co. v. Jones, 84 Tex. Civ. App. 94, 77 S. W. 955; Bayle et al. v. Norris et al., 134 S. W. 767; Louis Werner Stave Co. v. Pickering et al., 55 Tex. Civ. App. 632, 119 S. W. 833; Callen v. Collins et al., 56 Tex. Civ. App. 620, 120 S. W. 546.

Upon the authority of this principle it is asserted the correct measure of damage was the value of the ungathered crop, as it stood in the field, rather than the measure applied in the third issue. There is a sharp conflict in the evidence as to whether or not Grayson knew or had reason to believe that Boyd intended to return and gather the cotton after he left the place. No issue was submitted or requested to be submitted bearing upon the bona tides of defendant’s action in this particular. This being the case, it will be presumed that the court resolved against defendant the issue of good faith upon his part. R. S. art. 1985. The -assignments relating to this phase of the' case are therefore overruled.

Appellee’s witnesses McCreight,' Brown, and Winter were permitted to testify to statements made to them by Boyd about the time he removed from the place to the effect that he intended to return and gather the cotton which he had left in the field. It is objected that these statements were self-serving and inadmissible. Boyd testified that when he left the place he intended to return and gather the remaining cotton, and his intention was a vital issue in the case. Appellant impeached his testimony by witnesses who testified to conversations with Boyd in which he said he was not going to gather the cotton. In view of this attempt to so impeach the plaintiff, the testimony indicated was properly admissible in corroboration of his testimony that he did intend to return and gather the cotton. Insurance Co. v. Eastman, 95 Tex. 37, 64 S. W. 863; Railway Co. v. Irvine, 89 S. W. 428; Ry. Co. v. Hall, 17 Tex. Civ. App. 45, 43 S. W. 25; Railway Co. v. Garren, 96 Tex. 605, 74 S. W. 897, 97 Am. St. Rep. 939; Ry. Co. v. Fox (Sup.) 166 S. W. 693; Lewy v. Fischl, 65 Tex. 311; 2 Wigmore on Ev. § 1129.

Error is assigned to the refusal of a now trial upon the ground of the newly discovered testimony of the witness Williams, who would testify to a conversation had with Boyd between January 5 and 10, 1915, wherein the latter stated he had finished picking cotton on' the Grayson, farm; that there were one or two bales left, but Grayson could have it, turn his cows on it, or do whatever he pleased with it to get his rent. This evidence is cumulative merely of the testimony of a number of other witnesses offered by appellant who testified to statements claimed to have been made by Boyd tending to show an intention upon his part to abandon the ungathered cotton and relinquish his right therein to the landlord. Such evidence has never been regarded as affording sufficient ground for a new trial. Latham v. Selkirk, 11 Tex. 314; Railway Co. v. Dellmon, 171 S. W. 799.

Under the eighth and ninth assignments it is contended: First, that the court erred in refusing to submit this special issue, viz., “How many bales of cotton, if any, were converted by the defendant, Grayson?” and, second, “the court erred in. submitting to the jury special issue No. 3, for the reason that the jury are therein instructed, in effect, that if any cotton was converted, there were eight bales converted, when, in truth and in fact, it was a question as to how many bales wore converted, if any.” In support of these assignments this proposition is urged:

“Where plaintiff alleges that defendant converted eight bales of cotton, and the defendant, by his pleadings denied, and the evidence of one of the witnesses on the trial shows that plaintiff gave him two bales of the eight bales in question, it was error for the court, when presenting the case to the jury on special issues, to refuse to submit the question, ‘How many bales of cotton, if any, were converted by defendant?’ for same was a question of fact and an issue in the case.”

These assignments and supporting proposition are based upon the testimony of Wilmer Grayson, a son of appellant, as follows:

“Wilmer Grayson testified: ‘January 1st I asked him [Boyd] how much he lacked being through, and he said he would get through by noon. I asked him if he was going to gather the bales, and he said “No,” I could have them. There were 20 acres in the piece that he said he would give me the bales. We got two bales of cotton from this 20 acres.’ ”

Boyd denied having this conversation. The defendant, Grayson, testified:

“I heard Mr. Boyd testify about the 20 acres and that Wilmer Grayson said he told him ho could have the bales. Two of the eight bales of cotton that we got came from this 20-acre tract.”

Among other reasons which may be assigned for overruling these two assignments, it will suffice to say:

1. Complete and unconditional delivery by the donor to Wilmer Grayson, which was essential to the perfection, of the gift, was not shown, nor acceptance by the donee. Both of these elements are essential to the validity of a gift inter vivos.

2. A defendant in trover cannot set up title in a third person without showing some claim, title, or interest In himself derived from such person. O’Brien v. Hilburn, 22 Tex. 617; Jackson v. Nelson, 39 S. W. 315.

Affirmed.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HEX, C. J.

text:
    SCHAUER v. SCHAUER.
    (No. 5177.)
    (Court of Civil Appeals of Texas. Austin.
    March 8, 1916.
    Rehearing Denied April 19, 1916.)
    1. Public Lands <&wkey;173(21) — Lands of State — Forfeiture—Conflicting Claims— Evidence — Statute.
    In trespass to try title by a party to whom the Commissioner of the General Land Office sold the land in suit after declaring forfeiture against the original buyer, the suit being against the purchaser from1 the original buyer, defendant had the right to prove facts showing that the alleged forfeiture of the original buyer’s title was illegal and void, since if the purchase was not subject to forfeiture the second buyer from the land commissioner acquired no rights, while if the forfeiture was legal, Rev. St. 1911, arts. 545S, 5459, limiting the time within which persons claiming the right to purchase free school lands may sue therefor to one year, cut off defendant’s right to attack plaintiff’s purchase.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. &wkey;173(21).]
    2. Public Lands <&wkey;173(21) .— Lands of State — Substitution of Buyer — Forfeiture.
    The failure of a substitute purchaser of public free school lands to deposit with the proper officer his obligation to pay the purchase money in lieu of the obligation of his vendor, as re-quired by statute, does not operate ipso facto as a forfeiture of the title.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 549; Dee. Dig. &wkey;^ 173(21).]
    Appeal from District Court, Crockett County; J. W. Timmins, Judge.
    Suit by Charles Schauer against Otto Schauer. Erom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Ed. J. Hanmer, of Sweetwater, for appellant. Cornell & Wardlow, of Sonora, for ap-pellee.
   HEX, C. J.

Charles Schauer brought this suit in form of trespass to try title against Otto Schauer, the land involved being several sections of state school land. The proof shows prima facie that on April 19, 1901, the lands in question were awarded and sold to Clarence Rotsman by the Commissioner of the General Land Office, and that Rotsman complied with the provisions of the statute regulating the sale of such lands until May 5, 1902, when he and his wife conveyed all of the land to Otto Schauer. The plaintiff introduced testimony showing that on the 28th day of January, 1910, the Commissioner of the General Land Office indorsed in red ink, upon the face of the account between the state and Rotsman, these words, “Forfeited. 1 — 28—10”; and also indorsed in red ink across the face of each of the obligations held by the state against Clarence Rotsman for the purchase of the lands, these words: “Land forfeited for collusion and failure to occupy. J. T. Robinson, Com’r. 1/28/1910. Dibrell.” The plaintiff further showed that thereafter the Commissioner of the Land Office took the necessary steps to reclassify the lands, and on February 15, 1910, awarded and sold-them to the plaintiff, Charles Schauer, who has complied with all the provisions of the statute regulating the sale of such lands, unless it be that he was not an actual settler, as required by law. It was shown that thereafter, and on March 24, 1905, Otto Schauer made application in proper form, and in all respects in compliance with the statute regulating the sale of such lands, to purchase the lands in question, which application was rejected by the Commissioner of the General Land Office April 3, 1905. It was shown that all of the first payments required by law on all of the applications introduced in evidence were made by the respective parties at the time and in compliance with the law, and that all interest payments required by law were made by the respective parties at the time and in compliance with law, and that all additional lands are within the five-mile radius of the respective home section's. Upon an instructed verdict, the court below rendered judgment for the plaintiff for the lands in question, and the defendant has appealed. Appellant has brought no suit to recover the land from ap-pellee, and this suit was brought more than one year after appellee’s purchase.

Only three assignments of error are presented in appellant’s brief, and these complain of rulings of the trial court: (1) In not permitting appellant to introduce testimony tending to show that at the time he purchased the land Clarence Rotsman was an actual bona fide settler on the one designated as his home section, that he had not acted in collusion with any one else, and that the reason assigned by the Commissioner of the Land Office for attempting to cancel his purchase did not in fact exist; (2) that at the time appellee attempted to purchase the land he was not an actual, bona fide settler upon the same, and did not become such within the time prescribed by law, nor had he continued to reside upon, occupy, and improve the same; and (3) that on May 5, 1902, when appellant purchased the land from Rotsman, the former became an actual, bona fide settler upon his home section, and had continued to reside upon, occupy, and improve the same as a home. The action of the trial court in excluding the testimony referred to seems to be sustained by the decision of the Court of Civil Appeals of the Fourth District, in Nations v. Miller, 146 S. W. 261, in which it was held, upon a similar state of facts, that a prior purchaser from the state, who had not brought suit within twelve months after the date of the subsequent purchase, could not assail the validity of the latter purchase by showing that the facts did not authorize the Commissioner of the Land Office to cancel the former purchase. That ruling involved a construction of articles 5458 and 5459 of tlie Revised Statutes of 1911, which articles read as follows:

“Art. 5458. All persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the state university, or either of the state asylums, which have been heretofore, or which may be hereafter, sold, or leased to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after the date of the award of such sale or lease, and not thereafter.
“Art. 5459. If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the foregoing article, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with; provided that nothing in this and the preceding article shall be construed to affect the state of Texas in any action or proceeding that may be brought by it in respect to any of said lands.”

That case was carried to the Supreme Court, and was decided by that court only a few days ago (183 S. W. 153). That court overruled the decision of the Court of Civil Appeals, and we quote as follows from the opinion of that court:

“If there was, in fact, no warrant for the forfeiture of the sale of the land to Paschal, and the forfeiture was therefore illegal, leaving, as a necessary result, his right to the land. unaffected by it, was his defense to this action by the Millers concluded under the act of 1905 because of a failure to himself bring a suit for the land within a year from the date of the subsequent award to Mrs. Miller? We do not think so. The act was intended to apply, and in terms clearly does apply, to persons ‘claiming the right to purchase or lease any public free school land,’ etc. It does not purport to deal with one, much less bar his rights, who is not claiming any right to purchase as against an adverse claimant or award, but whose right to the land, if he has any claim to it, is unaffected by another award and is that of an established lawful purchaser, already invested with his interest in virtue of a prior valid sale, originally binding upon the state and still subsisting in full force under the law.”

'Hence we conclude that the trial court committed error in holding that appellant had no right to prove facts which would show that the alleged forfeiture of the Rotsman title was illegal and void. If the facts were as appellant offered to show, then the Rots-man purchase was not subject to forfeiture by the Commissioner of the Land Office, and appellee acquired no right when he attempted to purchase the land, and when the Commissioner of the Land Office attempted to award it to him. If the Rotsman purchase was legally canceled, then the statute construed in Nations v. Miller, supra, will apply, and cut off appellant’s right to assail appellee’s purchase.

Counsel for appellee present the contention that, regardless of the construction that may be placed upon articles 5458 and 5459, the judgment in this case should be affirmed (1) because it was not shown that appellee had become a substitute purchaser of the land by depositing with the proper officer his obligation to pay the purchase money in lieu of the obligation of his vendor Rotsman, as required by statute; and (2) because it affirmatively appears that in purchasing the land from Rotsman appellant acted in collusion with Chas. Schauer, Sr. As to the first point referred to, we hold that the failure to file substitute obligations, as required by the statute, does not operate, ipso facto, as a forfeiture of the title. As to the second point, the statement of facts does not show by uncontroverted testimony that appellant was acting in collision with any one in purchasing the land from Rotsman. The bill of exception referred to by counsel for appellee states, in one or two paragraphs, that, if the court had permitted appellant to do so, he would have proved that he was not acting in collusion; but it also contains the statement that, if such proof had been admitted, the ap-pellee would have shown that, in a former trial of another suit, appellant testified that he was acting in conclusion with Charles Schauer, Sr., in the purchase of the land. It has been held by the Supreme Court that it is not permissible on appeal for an appellate court to dispose of a case upon the assumption that, if testimony wrongfully excluded had been admitted, the party appealing would have been entitled to' recover, and therefore the appellate court should render such judgment. Besides, it does not affirmatively appear from the record that, if the court had. admitted the testimony which was excluded, the undisputed proof would have shown that appellant was acting in collusion when he-bought the land, because the bill of exception states that the excluded testilnony would have shown that he was not so acting.

On account of the error of the trial court as pointed out above, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      <£=>For other cases se© same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. RAGSDALE, PRICE & CO.
    (No. 5604.)
    (Court of Civil Appeals of Texas. Austin.
    March 15, 1916.
    Rehearing Denied April 19, 1916.)
    1. Frauds, Statute of <&wkey;17 — -Promise to Answer for Debt of Another.
    An oral promise by the defendant railroad’s representative that the defendant would see that plaintiffs were protected with regard to credit which had been given to defendants’ section hands, being an oral promise to pay the debts of other persons, was within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17; Dec. Dig. <&wkey;>-17.]
    2. Principal and Agent <&wkey;164(l) — Authority — Ratification of Acts.
    While, as a general rule, ratification partakes of the elements of estoppel, where that is not the case, something must have been done which, if ratified, would create liability.
    [Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 622, 624, 625; Dec. Dig. &wkey;164(l).]
    3. Frauds, Statute oe <&wkey;>23(4) — Pkomise to Answer bor Debt os Another — Custom— CReation os Contract.
    A uniform custom of the defendant railroad company to make deductions from the wages of its empíoyés in favor of persons having claims against them, in accordance with a statement in a time book constituting an order upon the company, and signed by the empíoyés, which was done for the accommodation of the em-ployés and without consideration, did not constitute an assumption of primary liability by the railroad company for goods sold by the plaintiff, relying on this custom, to its section gang at the request of the section foreman.
    [Ed. Note. — Por other cases, see Fraud's, Statute^ of, Cent. Dig. §§ 18, 1»; Dec. Dig. &wkey;>
    4. Appeal and Error <&wkey;263(l) — Presentation in Lower Court op Grounds oe Review-Exceptions.
    Where a statute requires a complaining party to except to the action of the trial court in giving or refusing instructions, an indorsement by the court at the bottom of a requested instruction that it is refused, and defendant excepts, objections to the court’s charge presented in writing being in a like manner overruled and exceptions noted, constitutes substantial compliance with the statute.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1516; Dee. Dig. <&wkey;263(l).]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by Ragsdale, Price & Co. against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, and from an order overruling a motion for new trial, defendant appeals.
    Reversed and rendered.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. Gross & Street and G. W. Bar cus, all of Waco, for appellees.
   KEY, C. J.

We copy from appellant’s brief the following substantially correct statement of the nature and result of this suit:

“By original petition filed April 28, 1914, in the county court of McLennan county, Tex., ap-pellee sought to recover of the appellant the sum of $212.40, same being in the nature of an open account for goods, wares, and merchandise furnished by appellee to the employes of the appellant at the alleged instance and request of appellant, and which amount appellants had been requested to pay. On March 22d appellant by an amended answer denied that the goods, wares, and merchandise alleged to have been furnished were furnished at the instance or request of itself, or any of its authorized agents or representatives, and in separate paragraph denied each and all of the allegations set forth in the separate paragraphs of plaintiffs’ petition. And by special answer appellants alleged that it was engaged in operating a railroad, and in connection therewith it owned what is commonly called a section house, which was in charge of a section foreman, who was an employé of the appellant, and whose duty it was to employ the necessary labor to maintain, repair, and take charge of the defendant’s railroad track on and over the section to which he was assigned; that said section boss or foreman was permitted by appellant to use and occupy the section house free of charge; that said section foreman carries on a boarding house in said section house wherein and by which he boards the section hands under his supervision and control while engaged in performing services for the appellant; that appellant was in no manner interested in said boarding house, financially or otherwise; that as a matter of accommodation in settlement of the amounts due by appellant for services rendered by the various section hands by said section foreman appellant deducts from their pay whatever amount they and the foreman agree to be due the foreman by said empíoyés for their board during the time stated; that said sum of money is paid by appellant directly to the foreman; that said arrangement was in accordance with an agreement and understanding in each instance arrived at by the foreman and the men working under him, and appellant was in no manner interested in said transaction, performing this service purely as a matter of convenience and accommodation ; that said foreman purchases his own goods, wares, and merchandise, such as may be necessary for him in the conducting and carrying on of said boarding house, and as a matter of convenience and accommodation appellant deducts and withholds from the amount diie said foreman, as well as his own salary, monthly, on the occasions of a settlement, to pay off and discharge the claims and demands that are made against the said foreman, and to which said foreman assents and agrees as being correct to the extent only of the amount that may be ascertained to be due said foreman by appellant, and no more, and in this arrangement appellant is in no manner interested, the same being done and performed purely as a matter of accommodation to the foreman, and to those with whom he deals; that if said foreman or any other person obtained goods, wares, and merchandise from appellees, purporting to have authority to do so at the instance of appellant, the same was without authority, and was in no manner binding upon appellant.
“Appellant further alleged that, at the time the goods, wares, and merchandise are alleged to have been furnished by appellee, its section foreman was not engaged in boarding the men under his employ; that said men so employed were living at their own homes in various places in and around the city of Waco, and purchased their own supplies from Ragsdale, Price & Oo., and also from one Joe Pinto, and it was understood between the said men so employed and the said Ragsdale, Price & Co. and the said Pinto that the amount due them, or either of them, by said empíoyés, respectively, should be reported by the foreman of the defendant company, and the defendant company should be governed by said report so made by said foreman in making its deduction from the amount to be paid said empíoyés, said deduction to be made in favor of the party shown by said report to hold the claims against the said employes; that for the month of September, 1913, which was the month alleged in plaintiffs’ petition the goods, wares, and merchandise were furnished, it did report to appellant the amount of time put in by said empíoyés, respectively, and did also report to appellant the amount due by said empíoyés for advancements, and that the same was due for said month to Joe Pinto, and appellant in accordance with said report made said deductions from the amount due by appellant to said empíoyés in favor of Joe Pinto, and said amounts were paid to said Pinto; that appellant received no benefit of any character from said arrangement, and that it assented thereto as a matter of accommodation to said empíoyés, respectively, and to said Ragsdale, Piice & Co. and to said Pinto. This answer was sworn to as required by law.
“March 22, 1915, appellees filed tlieir supplemental petition, in which they alleged that as to the particular bills sued for in this cause, before any part of the month’s wages had been paid, appellants were notified of the bill, and appellant ratified the same, and agreed and promised to pay, and authorized the same to be charged to the said parties for and on behalf of appellant.
“March 22, 1915, appellant filed supplemental answer, in which it denied under oath each and every allegation set forth in appellee’s supplemental petition, and it further alleged that, if any person did ratify or attempt to ratify any alleged obligation to appellees for goods, wares, and merchandise furnished the parties mentioned in his petition, such ratification or promise, if any, was without consideration, and therefore void as against appellant. And it was further alleged therein by appellant that if such ratification or promise to pay said obligation upon the part of appellant, or attempted to be made by any person whatsoever, the same was a verbal promise and a verbal ratification, and a promise to become responsible for and to pay the debt of a third person, and was therefore in violation of the statute of frauds of the state of Texas, and therefore void and noncnforceable against this defendant.
“On March 22, 1915, said cause went to trial. Thereafter on said date a verdict was rendered in favor of the plaintiffs for $212.40. Thereafter in due time appellant filed its motion for new trial, which was on the 17th day of April, 1915, overruled. Appellant perfected its appeal oq ioiCkí>ins anci filin8 its appeal bond April

Opinion.

The first assignment of error complains of the action of the txial court in refusing to instruct a verdict for appellant, and we sustain that assignment. The undisputed proof shows that, while appellees sold certain supplies to appellant’s employes, constituting a section gang, and expected to receive pay therefor from appellant, they had no authority to charge the goods to appellant, and no one authorized to do so promised in writing that appellant would pay for the goods. It may be admitted that tire proof shows that there was a custom in vogue upon appellant's road (though it did not prevail at all points) for the section foreman, if he boarded the hands who worked under him, to procure from them, by their signatures upon what was called the time book, what in legal effect constituted an order upon the railroad company to pay to the foreman or section boss the amount due him at the end of the month for boarding section hands; and when the employés preferred to maintain themselves the foreman generally made arrangements with one or more merchants by which they could purchase supplies, and in making up Ms time book, which constituted a monthly report to the company, it would be so framed and signed by each employé as to authorize the company to deduct from the total amount of wages due each employé the amount owing by him to the merchant who had furnished the supplies; and when that was done the company would send a check to its local agent, to be delivered to the merchant in payment of his account against the section hands, and the remainder would be paid by the company to the employés entitled thereto. This was done for the accommodation of the employés, and the railroad company derived no direct pecuniary benefit therefrom, but indirectly it probably was beneficial to the company. The time book referred to was made up by the section foreman, but each section hand signed his name in such place as indicated that the book correctly showed the amount the company owed each employé, and the amount to be deducted therefrom, and in whose favor the deduction was to be made.

In the present case the proof shows that the members of the section gang had been making purchases from appellees and part of the time from one Joe Pinto for the months of June, July, August, and September, 191.‘5; that during the month of September appel-lees furnished to the section hands supplies, etc., amounting to $212.40, for which they had never been paid, and for which amount they recovered judgment in this case. The undisputed proof shows that the time book for September, 1913, which was sent to headquarters by the section foreman, did not have; appellees’ name upon it, and did not authorize appellant to deduct anything in favor of appellees from the amount owing its em-ployés. On the contrary, it showed that certain amounts were to be deducted from the ■amounts owing by the company to the section gang, and that the deductions so made were to be paid to Joe Pinto; and the railroad company settled with its employés upon that basis and paid to Joe Pinto the amount for which the employés had, in legal effect, given him an order upon the company.

Appellees based their right to recover upon two contentions, which are: (1) That by the custom heretofore referred to the railroad company became primarily liable to ap-pellees at the request of the section foreman who sold to the members of the section gang the supplies referred to; and (2) that, if such was not the case, then the railroad company ratified what had been done by the section foreman and by the employés and thereby became liable. While the proof fails to show that the section foreman authorized appellees to charge the supplies referred to to appellant, still, if he had undertaken to do so, the proof fails to show that he had authority to so bind appellant.

As to the question of ratification, S. B. Price, one of the plaintiffs, testified that he called up Mr. Earle, appellant’s superintendent, on the telephone, and stated to him that he had become suspicious of Wédgeworth, the section foreman, and desired to go to Tyler to see Mr. Earle about it; that Mr. Earle informed him that he was about to leave for St. Louis, but would send his assistant, Mr. Callahan, to Waco to see Mr. Price. In a day or two Mr. Callahan went to Waco, investigated the matter, and made a report to Mr. Earle. Mr. Price testified that Mr. Callahan told him that, no matter how the time book might be made up for September, the company would see that appellees were protected. It was not shown that any additional goods or supplies were furnished to the section hands after the interview referred to and in reliance thereon; on the contrary, it appears with reasonable certainty that the conversation mentioned occurred on- the 26th day of September, and that nothing was furnished by appellees after that time. The undisputed proof shows that Mr. Earle sent Mr. Callahan to make an investigation and report to him, and that he did not authorize him to undertake to obligate the company for the payment of any debt, and the proof fails to show that he had authority so to do. Furthermore, the promise referred to, if made, was not in writing, and the most that can be said of it in behalf of appellees is that it constituted a promise to pay the debts of other persons, and, not being in writing, it comes within the statute of frauds, and is not binding.

Counsel for appellees rely upon the testimony referred to as supporting the verdict and judgment upon the theory of ratification, but the testimony fails to show that Callahan had any authority to bind appellant upon that score. In fact, we fail to see any ratification in the case. As a generai rule, ratification partakes very much of the elements of estoppel; but, where that is not the case, something must have been done which, if ratified, would create liability. The proof fails to show elements of estoppel predicated on Callahan’s statement, and also fails to show that the section foreman, or any one else, did or said anything which would justify appellees in believing that appellant was to become primarily liable for goods to be sold by them to the members of the section gang, and the testimony of Mr. Price himself tends to show that they expected to get their pay, as they had on former occasions, by the foreman and the employés under him so making up the time book for September as to constitute an order in their favor for the amount of supplies which they had furnished to each employé. The time book in question was not so made up, but, on the contrary,. it was so prepared as to constitute orders given by some employés to make certain payments to Joe Pinto. The undisputed proof clearly shows that the custom in reference to making deductions in favor of persons having claims against the employés was uniform, and that such deductions were made only in accordance with the time book; and the testimony fails entirely to show that the foreman, or any one else other than Callahan, ever undertook to bind appellant otherwise than in accordance with such custom, and therefore there was nothing to be ratified other than the custom referred to, and, according to that custom, appellant was not liable. Hence we conclude that the trial court should have given the requested instruction, directing a verdict for appellant.

We note appellees’ objection to the effect that the record fails to show that a bill of exception was reserved to the action of the court in refusing to give the instruction referred to. At the bottom of that instruction is the following indorsement:

“Refused, and defendant excepts.
“Geo. N. Denton, Judge.”

Appellant also presented to the trial court objections in writing to the court’s charge, the objection being that there was no issue to submit to the jury, as the undisputed proof showed that appellant was not liable, which objections were in like manner overruled and exception noted. While the statute now in force requires a complaining party to except to the action of the trial court in'giving or refusing instructions, we think the course pursued in this case constitutes substantial compliance with the statute.

Our conclusion is that the judgment of the court below should be reversed, and judgment here rendered for appellant; and it is so ordered.

Reversed and rendered.
      <&wkey;>For other cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes

      <J&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes