author: JENKINS, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ELIAS.
    (No. 5577.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1916.
    Rehearing Denied March 1, 1916.)
    1. Pleading <&wkey;20 — Petition—Alternative Allegations.
    A petition alleging an unconditional liability against the defendant railway company, and in the alternative alleging that if plaintiff was mistaken another was liable, states a cause of action against the railway company, and is good as against general demurrer.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 43; Dec. Dig. <&wkey;>20.] •
    2. Parties &wkey;>25-;-Joinder — Rules.
    The strict rules of pleading with respect to the joinder of parties have been relaxed owing to the abolition of the distinction between law and equity and the forms of pleading.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 31, 36-40; Dec. Dig. &wkey;25.]
    3. Appeal and Error &wkey;>1170(l) — Review— Disregard oe Error.
    In an action for the loss of cotton seed, plaintiff joined a railroad company and an oil mill, judgment being rendered against the railroad company alone. Plaintiff did not appeal from the judgment, though the undisputed evidence showed that one of the parties converted plaintiff’s cotton seed. Meld, that as on retrial the action would proceed against the railroad company alone, the error must be deemed harmless and the judgment affirmed under rule 62a (149 S. W. x), requiring the disregarding of immaterial errors, though the joinder was improper, for it must be presumed that the evidence justified the verdict, there being no statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4454, 4540; Dec. Dig. &wkey;>1170(l).]
    4. Appeal anp Error <&wkey;907(3) — Presumption — Statement oe Facts.
    Where there is no statement of facts in the record, it must be presumed that the evidence justified the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. <&wkey;>907(3).]
    Appeal from Bastrop County Court; J. B. Price, Judge.
    Action by A. M. Elias against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment against the named defendant alone, and in favor of its codefendant, defendant appeals.
    Affirmed.
    See, also, 166 S. W. 417.
    Page & Jones, of Bastrop, for appellant. S. L. Staples, of Smithville, and N. A. Rector, of Austin, for appellee.
   JENKINS, J.

This is the second appeal in this case. It was tried upon the same petition as in the former case. For a full statement of same, see 166 S. W. 417. Upon trial of this case, judgment was rendered in favor of appellee against the appellant, and in favor of the codefendant Smithville Oil Mill Company.

Appellant’s first assignment is that the court erred in overruling its general demurrer, and in support of this assignment appellant cites Oglesby’s Sureties v. State, 73 Tex. 660, 11 S. W. 873, and Thorndale Mercantile Co. v. Evens & Lee, 146 S. W. 1056. In the Oglesby’s Sureties Case, supra, Judge Gaines, speaking for the Supreme Court of this state, said:

“To allege in a petition against A. and B. that A. is liable if B. is not, and that B. is liable if A. is not, does not allege the unconditional liability of either.”

In the instant case the appellee alleged an unconditional liability against the Railway Company, and then, in the alternative, alleged that if he was mistaken in his allegation, that the Oil Mill Company was liable to him; hence, so far as the appellant is concerned, it was not error to overrule its general demurrer.

The second assignment- of error is-that the court erred in overruling appellant’s special exception to the effect that appellant and the Oil Mill Company were improperly joined.

“The same strict rules of pleading do not prevail with us in respect to the joinder of parties and causes of action, as in other states where the distinction between law and equity and forms of action is recognized.” Craddock v. Goodwin, 54 Tex. 582.

Practically the only injury that could have been suffered by appellant’s being compelled to try the case against it with the alleged cause of action of the Oil Mill Company would have been the delay that might have been,, but in this case was not, occasioned thereby, concerning which the court might have exercised a sound discretion, and the additional cost, which might have been reached by a motion to tax costs. On the other hand, had appellee been forced to try its case against appellant alone, the jury might have found that it delivered the cotton seed to the Oil Mill Company, and the evidence might have been sufficient to sustain such finding, the jury being the judges of the credibility of the witnesses and the weight to be given to their testimony. On a trial against the Oil Mill Company before another jury, it might nave been found that the seed were not delivered, and an appellate court, for the same reason, might have been compelled to uphold that verdict. And thus, though the undisputed evidence showed that one or the other of said parties converted appellee’s cotton seed, he would have lost as to both of them. But it is not necessary that we should decide this point in the instant case, for if we should sustain this assignment and reverse this case, it is apparent that it would proceed upon another trial against appellant alone, inasmuch as the judgment in favor of the Oil Mill Company is not appealed from, and therefore must be affirmed by this court. If there can be a case in which rule 62a (149 S. W. x) properly applies, we think this is such a case. There is no statement of facts in the record; hence we must presume that the testimony fully sustains the finding of the jury and the judgment of the court; and if it be true, as must be implied from the verdict of the jury herein, that the appellant received the cotton seed, as alleged in plaintiff’s petition, and failed to deliver the same, no other judgment could be rendered upon another trial than that which was rendered upon the trial from which this appeal is taken. Besides this, appellee not having appealed from the judgment in favor of the Oil Mill Company, must be deemed to have abandoned his suit against that company; and as no joint liability is alleged, we see no reason why appellee might not abandon his action against that company, and we think it would be proper to treat the case here upon the theory that this is now a proceeding against appellant alone.

For these reasons we deem it our duty to affirm the judgment of the trial court herein ; and it is so ordered.

Judgment affirmed.
      igr^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    MAYFIELD CO. et al. v. HARLAN & HARLAN.
    (No. 1538.)

    (Court of Civil Appeals of Texas. Texarkana.
    March 11, 1916.
    On Rehearing, March 24, 1916.)
    1. Appeal and Ebbok <&wkey;1010(l) — Review-Findings op Facts.
    There being evidence tending strongly to support the finding that a transaction was a sale, and not a consignment of goods, that issue is not open on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. <&wkey;> 1010(1).]
    2. Fraudulent Conveyances &wkey;>229 — Bulk Sales — Remedy by Garnishment.
    The purchasers from one who sells without compliance with the Bulk Sales Law (Rev. St. 1911, arts. 3971-3973) are liable in garnishment to his creditors for the goods, or the proceeds, if resold.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 668-670; Dec. Dig. &wkey;229.]
    3. Fraudulent Conveyances <&wkey;322 — Bulk Sales — Rights op Buyer.
    One who in making a purchase, void because in violation of Bulks Sales Law, as consideration releases the seller’s debt to him, cannot revive it, so as to share with the seller’s other creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 981; Dec. Dig. <&wkey; 322.]
    4. Fraudulent Conveyances <&wkey;3.18 — Bulk Sales — Liability op Second Buyer.
    S. selling in violation of the Bulk Sales Law to M., and M. reselling to N., and taking his note, S.’s creditors cannot subject to their debts both the note and the goods.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 981; Dec. Dig. <&wkey; 318.]
    On Rehearing.
    5. Chattel Mortgages <&wkey;186 — Stock op Goods — Reserving Title as Security in Sale.
    Rev. St. 1911, art. 3970, declaring void every mortgage or other form of lien attempted to be given by the owner of a stock of goods daily exposed to sales in parcels in the regular course of business, does not apply to a lien resulting from reservation of title to secure the purchase money, made when the goods were sold to tlie storekeeper; and this though article 5654 makes such a reservation of title a mere chattel mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 368; Dee. Dig. <&wkey;186.]
    6. Chattel Mortgages <&wkey;186 — Unrecorded Reservation op Title — Retaking Goods— Rights op Creditors and Seller.
    Under Rev. St. 1911, art. 5654, declaring a reservation of title to chattels to secure the purchase money a chattel mortgage, void as to creditors and bona fide purchasers unless registered, the seller taking possession of the goods with the consent of the buyer can hold them to the extent of the unpaid purchase price, against creditors of the buyer not then having a lien on them, though the reservation was unrecorded.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 368; Dec. Dig. <&wkey;>186.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by Harlan & Harlan, a corporation, against the Mayfield Company and another, with garnishment against the Mayfield Company and W. E. Nunnellee. From an adverse judgment, the garnishees appeal.
    Reversed and rendered.
    Simpson, Lasseter & Gentry, of Tyler, for appellants. Price & Beaird, of Tyler, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

On December 1, 1913, the Mayfield Company, a private corporation, acquired at a bankrupt sale a stock of goods, wares, and merchandise, together with some furniture and fixtures. On the same date all of those goods, furniture, and fixtures were delivered to the possession of one M. T. Sheets, of Tyler, Tex. The value of the goods amounted to $3,100; the value of the furniture and fixtures to $800. M. T. Sheets immediately advertised in the only daily paper published in the city of Tyler, where the transaction occurred, that E. O. Sheets had. purchased through the Mayfield Company the John P. Haden & Son bankrupt stock of groceries, and would conduct a grocery business at the old stand of John E. Haden. On December 6th following, February 12, 1914, and in August of the same year the Mayfield Company and Sheets entered into different written agreements, which were offered in evidence and form a part of the findings of fact filed by .the trial judge. These tend to show that the goods were delivered to Sheets upon consignment, to be disposed of by him as the agent of the Mayfield Company. The trial court, however, found that these agreements, when properly construed, were intended to constitute merely a mortgage upon the goods in favor of the Mayfield Company to secure the original price, and that the transaction between the Mayfield Company and Sheets was a sale and purchase of the goods, furniture, and fixtures for the aggregate sum of $3,900. M. T. Sheets took charge of the goods, and, so far as the evidence discloses, conducted it according to the usual methods of carrying on a retail grocery business. During the year 1914 he incurred debts to various parties among whom was Harlan & Harlan, a private corporation, the appellee in this suit. After deducting payments which had been made to Harlan & Harlan at different times, Sheets owed that company when he quit business the sum of $103.40. On November 25, 1914, the Mayfield Comx>any, by agreement or otherwise, took charge of all the goods which Sheets then had on hand which had been purchased from it, and closed the house. The only goods in the building at that time which were not taken possession of by the Mayfield Company consisted of a small lot amounting in value to the sum of $90 according to an estimate then made, but which were subsequently appraised at $35. At the time of this transaction Sheets was indebted to the May-field Company in the sum of $2,250.20, and owed other debts to the amount of $600. On the 28th of November the Mayfield Company sold and delivered to the appellant W. E. Nunnellee this entire stock of goods, together with the furniture and fixtures. The goods were invoiced in that sale at $985.17; the fixtures at $519.20. The consideration paid by Nunnellee was part cash and a promissory note amounting in the aggregate to over $400. In January following Harlan & Harlan filed suit in the justice court against Sheets for the $103.40 due on account, and at the same time sued out writs of garnishment which were served upon both the May-field Company and Nunnellee.' The May-field Company answered, denying that it owed Sheets anything, or had any effect belonging to him in its possession. By way of special answer, however, it alleged that previous to that time it had delivered to M. T. Sheets on consignment a stock of goods, wares, and merchandise, and that subsequently Sheets, in order to pay to the May-field Company a part of his debt, had turned over and delivered to it goods, wares, and merchandise inventoried at about $900, of the probable value of $600, which were a part of the goods theretofore -consigned to Sheets by the Mayfield Company; that this .amount was credited on the account of Mayfield Company against Sheets; that prior to the time the writ of garnishment was served upon it the Mayfield Company had transferred and sold the merchandise received from Sheets to other parties, and had no interest in or claim to the merchandise. Nunnellee answered, denying that he owed Sheets anything or had in his possession any effects belonging to Sheets, except a small amount of merchandise appraised at $35; that before the service of the writ of garnishment a judgment was rendered against him in favor of I. H. Crutcher & Son in a suit similar to the one then pending for an amount greatly in excess of the $35, and, if Crutcher’s judgment is sustained, the garnishee would have nothing belonging to Sheets. These answers were controverted by Harlan & Harlan.

In a trial before the court a judgment was rendered in favor of Harlan & Harlan against the Mayfield Company, finding as facts that at the time the writ of garnishment was served Nunnellee had in his hands effects belonging to Sheets consisting of a stock of groceries, goods, wares, and merchandise of the value of $985.17; that Mayfield Company had in its possession a promissory note executed and delivered to it by Nunnellee for the stock of goods in the sum of $450. It was ordered that Mayfield Company deliver up to the sheriff, or any constable of Smith county, Tex., presenting to it an execution in favor of the plaintiff Harlan & Harlan, the note of Nunnellee, and that Nunnellee deliver the effects, or so much thereof as was necessary to satisfy the execution. Both the Mayfield Company and Nunnellee have appealed.

In one group of assigned errors the appellants contend that the evidence shows that the Mayfield Company had never parted with the title to the goods when delivered to Sheets; that such delivery was a mere consignment to an agent, and that the Mayfield Company had a right to retake these goods at any time with the consent of Sheets. That contention is based upon the various written agreements which were offered in evidence. The court’s finding to the contrary disposes of that issue of fact. The dealings between the Mayfield Company and Sheets were much like those which usually occur between a vendor and purchaser, and in many respects unlike those which generally take place between a principal and his agent. The entire absence of any stipulation in those written agreements fixing the compensation which Sheets was to have for handling the goods, when considered in connection with his manner of advertising and conducting the business, all tend strongly to support the findings of the trial court. It is conceded that the Mayfield Company took the goods from Sheets on the 25th day of November, 1914, without complying with the requirements of articles 3971, 3973 of the Revised Civil Statutes, commonly known as the “Bulk Sales Law,” and that its purchase from Sheets was void as against the latter’s creditors. The liability of the Mayfield Company to those creditors for the goods remaining in its hands, or their proceeds if sold, in a proceeding of this character, is settled by a recent decision of our Supreme Court. Owosso Carriage & Sleigh Co. v. McIntosh & Warren (Sup.) 179 S. W. 257. We deem it unnecessary to add anything to what is said in that opinion.

The Mayfield Company insists that the stock of goods received by it from Sheets was insufficient to satisfy all of the creditors of Sheets, and that, if it is liable upon the ground that its purchase was unlawful, nevertheless Harlan & Harlan is not entitled to collect its entire claim; that it should share with other creditors of Sheets a part of the loss resulting from the insufficiency of the assets to satisfy his indebtedness. This proceeding is not one in which we can enforce an equitable distribution of the assets of an insolvent debtor. We are not referred to any evidence showing that Sheets was, in fact, insolvent, or that the Mayfield Company will lose its debt unless such a distribution is made. It may be that in its purchase from Sheets the Mayfield Company released, in whole or in part, whatever debt Sheets owed it. If so, it cannot now revive that claim and insist on sharing with other creditors the right to a distributive portion of the assets of Sheets. The contract by which it secured possession of the goods from Sheets was unlawful; and the law will leave the parties just where they placed themselves.

We therefore conclude that the judgment against the Mayfield Company should be affirmed.

But the appellant Nunnellee occupies)a different situation. He purchased from the Mayfield Company, and gave his promissory note in part payment. Assuming that goods in the hands of a vendee of one who has purchased in violation of the “Bulk Sales Law” may be reached through garnishment proceedings by an aggrieved creditor, it would be manifestly unjust to so hold under the circumstances presented by the record before us. The appellee recovered a judgment against the Mayfield Company requiring it to deliver to the proper officer the note by Nunnellee for the goods, and that judgment is here affirmed. Appellee is not entitled to subject both the note and the goods to its debt. Armstrong v. Elbert, 14 Tex. Civ. App. 141, 36 S. W. 139, and cases cited. The record further shows that the goods held by Nunnellee other than those for which the note was given had been previously garnished by another creditor of Sheets.

The judgment as to Nunnellee will therefore be reversed, and judgment here rendered in his favor.

On Rehearing.

After considering the arguments presented and the authorities referred to in the appellants’ motion for a rehearing, we have concluded that we erred in affirming the judgment rendered against Mayfield Company. Assuming, as the trial court did, that the contracts entered into between May-field Company and Sheets had the effect of creating a mortgage or lien in favor of May-field Company for the purchase price of the goods delivered to Sheets, that fact alone was sufficient to place those goods, when returned to Mayfield Company, beyond the reach of the writ of garnishment afterwards served. It is true that article 3970 of the Revised Civil Statutes makes void “every mortgage, deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of business.” But in the case of Bowen v. Lansing Wagon Co., 91 Tex. 385, 43 S. W. 872, our Supreme Court has determined that this article of the statutes has no effect upon mortgages or liens resulting from a reservation of title to secure the purchase money made at the time the goods are sold. It is further held that article 5654, which makes all reservation of title to or property in chattels as security for the purchase money mere chattel mortgages, does not affect the validity of such liens. Such reservations are void only as to creditors and subsequent purchasers in good faith without actual or constructive notice of the existence of the lien. If Mayfield Company had any lien in this instance, it arose at the time the goods were purchased by Sheets, and by reason of a reservation of the title to the goods to secure the purchase money. Such a lien or mortgage was void only as to the creditors of Sheets and those who subsequently purchased from him without actual or constructive notice. At the time Sheets returned the goods to Mayfield Company in part payment of his debt Harlan & Harlan had acquired no lien and had taken no legal action which would place it in that class of creditors entitled to the protection of article 5654. Bowen v. Lansing Wagon Co., supra; Hall v. Keating Implement Co., 33 Tex. Civ. App. 526, 77 S. W. 1054; Eason v. DeLong, 38 Tex. Civ. App. 531, 86 S. W. 348; Mansur & Tebbetts Implement Co. v. Beeman-St Clair Co., 45 S. W. 729.

The writ of garnishment was sued out after Mayfield Company had secured possession of the goods and held whatever title had theretofore been held by Sheets. The service of this writ could have no retroactive effect. The attitude of Harlan & Harlan must he determined by its status at the time Sheets parted with his title and possession to May-field Company. If the mortgage was valid as between Mayfield Company and Sheets, and there is no creditor who can assail its validity, it follows that the goods in the hands of May-field Company were not subject to the writ at the time of its service. The evidence shows that the debt due Mayfield Company by Sheets was greatly in excess of the value of the goods he returned. What Mayfield Company might have accomplished by a judicial proceeding in subjecting those goods to the- payment of its debt against Sheets is not illegal when done by the parties themselves without the perpetration of any fraud or wrong toward others.

The judgment heretofore rendered affirming that of the trial court as to Mayfield Company will be reversed, and judgment will be here rendered in favor of the appellant Mayfield Company, together with all -costs both of this court and of the court below.
      ifcsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILUSON, C. J.

text:
    MAYFIELD CO. et al. v. I. H. CRUTCHER & SON.
    (No. 1545.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 11, 1916.
    On Rehearing, Feb. 24, 1916.)
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by I. H. Crutcher & Son against M. T. Sheets, with garnishment against the May-field and another. From an adverse judgment, garnishees appeal.
    Reversed and rendered.
    Simpson, Lasseter & Gentry, of Tyler, for appellants. Price & Beaird, of Tyler, for appel-lees.
   WILUSON, C. J.

This case in its material facts is like Mayfield Company et al. v. Harlan & Harlan, 184 S. W. 313, this day decided by this court, except that there: (1) The amount of the debt in favor of appellee against M. T. Sheets was $133.83; (2) the writs of garnishment were served upon Mayfield Company and Nunnellee before the former sold the Sheets stock of goods to the latter, and at a time when, according to a finding of the court, the goods were in the joint possession of May-field Company and Nunnellee; and (3) the judgment directed them to deliver to the sheriff or constable holding an execution issued on the judgment in appellee’s favor against Sheets the effects belonging_ to him and in their possession when the writs were served, or so much of same as were necessary to satisfy such execution. The finding that the goods were in the joint possession of Mayfield Company and Nun-nellee at the time the writs of garnishment were served upon them respectively is attacked, by anpellants as without support in the testimony. But the finding was warranted by evidence which it appears from the record appellants in open court agreed- the coui’t should consider in determining the facts of the case. Por reasons stated in the opinion of Judge Hodges disposing of the Harlan Case, the judgment is believed to be without error, and therefore it is affirmed.

On Rehearing.

As stated in the opinion of this appeal, the case is like Mayfield Company et al. v. Harlan & Harlan, 184 S. W. 313, decided 27th ult. The motion of the appellant Mayfield in that case has been granted, and for reasons stated in the opinion of Justice Hodges on that motion the judgment therein rendered by this court affirming the judgment of the court below im so far as it was against the Mayfield Company has been set aside, and judgment has been here-rendered in favor of that company. Those reasons apply as well to this case, and therefore the motions of the appellants will be granted,, the judgment heretofore rendered by this court affirming the judgment of the court below will be set aside, and judgment will be here rendered that appellees take nothing by their suit against appellants, and that the latter recover-of the former the costs of both this court and-the court below.


author: MOURSUND, J.

text:
    HAZELRIGG v. NARANJO.
    (No. 5621.)

    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1916.
    Rehearing Denied March 22, 1916.)
    1. Continuance &wkey;>23 — Right to — Denial.
    In an action for the purchase price of horses, where it was not shown that cattle transactions between the parties were material, the denial of a continuance on account of the absence of witnesses who could testify as to such transactions was not error.
    [Ed. Note. — Por other cases, see Continuance,. Cent. Dig. §§ 68^-71; Dee. Dig. <&wkey;>23.]
    2. Continuance <&wkey;46(4) — Application — Statement op Conclusion.
    A mere statement of a conclusion as to what would be proven by an absent witness is not a compliance with the statute entitling a-party to a continuance to procure such witness.
    [Ed. Note. — For other cases, see Continuance,. Cent. Dig. § 132; Dec. Dig. &wkey;46(4).]
    3. Continuance &wkey;>22 — Absent Witnesses— Right to.
    In an action for the purchase price of horses, where defendant counterclaimed for duty paid on the horses, and the evidence showed that neither the seller nor one of his agents had anything to do with the payment of duties, the denial of a continuance requested on the ground of the absence of the seller and such agent, whom it was claimed could testify as to such matters, was not error; for in disposing of such a question the appellate court may consider the evidence.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dee. Dig. &wkey;22.]
    4. Principal and Agent <&wkey;119(l) — Agency —Scope—Peesumptions.
    Agency, when once shown to exist, is presumed to be general, and not special.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 391, 393, 398, 399, 401; Dec. Dig. &wkey;119(l).]
    5. Evidence &wkey;>75 — Presumption—Failure to Produce Evidence.
    A party’s failure to produce evidence or introduce a witness who is present raises a presumption that such evidence was not favorable to him, and that such witness would not have testified in his behalf.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 95; Dec. Dig. <&wkey;75.]
    6. Principal and Agent <&wkey;123(10) — Ac-tio ns — Evidence—Sufficiency.
    In a suit for the purchase price of horses, where defendant claimed plaintiff was bound to recompense him for duties paid on the animals,, evidence held to warrant a finding that defendant’s brother, to whom the duties were paid, was defendant’s agent authorized to receive payment.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 429; Dec. Dig. &wkey;123(10)J
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by Francisco Naranjo against J. B. Hazelrigg. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellant. H. G. Dickinson, of Laredo, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

Francisco Naranjo sued J. B. Hazelrigg for $2,540 alleged to be due for 127 head of horses and mules sold by Naranjo to Hazelrigg. Hazelrigg admitted that he bought 127 head of horses and mules from plaintiff, through his agent, Vi-centa Garza, but alleged that as a part of said agreement he (Hazelrigg) paid the duties, both export and import, from Mexico to the United States, of approximately $10 per head on 200 head of horses, and it was agreed that the same should be repaid to defendant out of the purchase price of said horses, and that thereafter said 200 head of horses were placed in a pasture, and charges of $250 accrued for their pasturage; that thereafter the number of horses was reduced by “death, purchase and claims of others” to about 127 head, and defendant, through an agreement with said Garza, took the same at the rate of $20 per head, with the understanding that the duties as well as the pasturage advanced by defendant should be deducted from the price; and that therefore he only owes to plaintiff $300.

Plaintiff, by supplemental petition, admitted that he was bound to pay the duties, and alleged that through his agent, Segundo Vil-lareal, he paid to defendant $2,000, the full amount of said duties. He denied that he agreed to pay defendant the pasturage, or to deduct same from the purchase price of the horses. Defendant, in answer to such petition, denied the facts therein alleged, and alleged that none of the sums mentioned in his answer had been paid or allowed him. Upon the trial plaintiff agreed that defendant was entitled to an offset of $250 for pasturage paid by him. Judgment was rendered in favor of plaintiff for $2,290.

Appellant complains of the refusal of his first application for a continuance, wherein he alleged that the testimony of plaintiff, Naranjo, and Vicenta Garza was material to his defense. He alleged that he expected to prove by said witnesses that for two years he had been dealing with plaintiff in the buying and selling of cattle, and that during said time they had been running an open account, and that he had paid various sums to the plaintiff, and does not know the exact status of said account, but that said Garza, the manager and agent of Naranjo, has kept accurate account, and that the matter sued on by plaintiff is dependent upon the status of the account between plaintiff and defendant. No effort is made to show in what way there is any connection between the contract for the sale of the horses and the alleged account concerning purchases and sales of cattle. There is no pleading which would make said testimony material, and the allegations in regard thereto were not sufficient to require the granting of the application.

It was further alleged in the application that he had paid the duties on the horses as pleaded by him, and that he was entitled to an offset on the amount of duties paid to the extent of approximately $2,000, and that these facts are known to Garza and plaintiff, and that, if said parties were present, he would be able to show such facts by them, or at least by Garza. It will be noted that appellant refrained from alleging that such duties had not bean paid to him by plaintiff, or in his behalf, and leaves such fact to be inferred from the conclusion that he is entitled to the offset. It has been held that the statement of conclusions is not a compliance with the statute. East Texas Land & Improvement Co. v. Texas Lumber Co., 21 Tex. Civ. App. 414, 52 S. W. 645; Earl v. State, 33 Tex. Civ. App. 161, 76 S. W. 207. An appellate court in passing upon an assignment complaining of the overruling of an application for a continuance may look at the evidence taken upon the trial to determine whether the testimony desired was, in fact, material and whether any injury resulted by reason 'of the absence of the witnesses. Crouch v. Johnson, 7 Tex. Civ. App. 435, 27 S. W. 37; Railway v. Brooks, 132 S. W. 95; Mutual Life Ins. Co. v. Garvin, 141 S. W. 797. Upon the trial it was shown without contradiction that Garza had nothing to do with the transaction with reference to payment Of duties, that he was in Monterey at the time, and that Segundo Villareal by direct authority of plaintiff paid to Bob Hazelrigg, appellant’s brother, the sum which said Hazelrigg claimed to have paid for duties exacted. In fact, it was made clear that on the single issue to be determined Garza knew nothing and plaintiff knew nothing. Appellant, although in court, failed to testify, and introduced no evidence from which it could be seen that either Garza or Naranjo knew anything concerning such issue. When the application is viewed in the light of the testimony, it is apparent that appellant suffered no harm by the refusal thereof. It therefore becomes unnecessary to discuss the question whether "the application shows due diligence. The first assignment is overruled.

Appellant contends that the evidence fails to show that the sum paid for duties had been repaid to him. Thos. O’Connor, who was authorized by Naranjo to collect from appellant for the horses, testified that he talked to appellant about the matter, and appellant admitted the indebtedness for 127 head of horses, but claimed an offset of $250 for pasturage. He did not make any claim that Naranjo owed him for the duties paid. O’Connor testified further that Segundo Vil-lareal was acting as Naranj'o’s agent in this matter. Segundo Villareal testified that he acted for Naranjo in the delivery of the horses, that he delivered same to Bob Hazel-rigg, appellant’s brother, and that he paid Bob Hazelrigg $2,000, which was the sum said Hazelrigg claimed he was required to pay as duties. The witness testified that Bob Hazelrigg told him he was acting for appellant. He further testified that Vicenta Garza told him he had sold the horse stock to appellant for $20 per head; that Bob Hazelrigg told witness the Carranzistas wanted $2,000, and witness consulted with Naran-jo, and he said it was all right; that said Hazelrigg crossed the stock on June 8th, and on the 10th witness paid him the said sum out for duties; that Vicenta Garza was not present during any of these transactions between witness and Bob Hazelrigg, he being at that time at Monterey, Mexico. It appears from this testimony that the trade between •Naranjo and appellant was made before it was undertaken to bring the horses across from Mexico; that Bob Hazelrigg purported to act as the agent of appellant in receiving the horses, paying the duties and collecting the money from Villareal. It appears from appellant’s pleadings and admissions to O’Connor that he recognized his brother’s agency by receiving the horses through him. Agency, when once shown to exist, is presumed to be general, and not special. It therefore may be presumed that Bob Hazel-rigg, in connection with his duty to receive the horses for appellant, had the authority to do everything necessary to be done in connection with the matter. If he used appellant’s money to pay the duties, he would naturally be expected by appellant to collect the sum from Naranjo. Having collected the same, it was his duty to pay it to appellant, and, if he failed to do so, it is indeed strange that appellant made no claim in talking to O’Connor about the amount due by him for the horses t'o the effect that he had not received the sum paid out for duties. It is strange that he would admit his indebtedness for 127 head of horses, with the exception alone that he was entitled to an offset of $250 for pasturage if he was entitled to a further offset of $2,000; in other words that he would admit an indebtedness of $2,540, less $250, if he really only 'owed $290. The evidence fails to disclose that he himself had anything to do with paying the duties, and if, in fact, he personally paid the duties, as he intimates in his brief might be inferred from the pleadings, then it would seem that, if he did not want his brother, who crossed the horses and had all the dealings with Villareal, to collect the sum from Villareal, he should have notified Villareal of the limitations he desired to impose upon his brother’s authority. The testimony of Villareal is not as clear as it should be; for instance, he testifies that Bob Hazelrigg turned the horses over to him after bringing them over from Mexico, which is inconsistent with the fact that $250 was allowed to appellant for pasturage paid on the stock, which pasturage appellant alleges accrued after the horses were brought across from Mexico. We think, however, the evidence is sufficient to sustain the judgment, and the fact that appellant failed to call as a witness his brother Bob, who was seen by Villareal at Laredo two or three days before the trial, and failed to take the stand himself, although present, as is shown by a recital in the judgment, not 'only strengthens the probative force of the testimony given, but of itself is clothed with a certain probative force. Jones on Evidence (2d Ed.) § 19.

The court was warranted in concluding that Bob Hazelrigg was the agent of appellant, with full power to do all that Villareal testified he did do, and that, as such agent, he collected the $2,000 which appellant claims should be offset against plaintiff’s demand, and that appellant received said sum from his said agent.

The judgment is affirmed.
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author: PLEASANTS, C. J.

text:
    VADEN v. BUCK et al.
    (No. 7045.)
    (Court of Civil Appeals of Texas. Galveston.
    March 9, 1916.)
    1. Pleading <&wkey;2G7 — Amendment—Statutes —Rule of Court.
    Under Rev. St. 1911, arts. 1824, 1825, and rule 16 for the district and county courts (102 Tex. xxxix, 142 S. W. xviii), touching the amendment of pleadings, in a suit by an agent to recover commissions for effecting a sale and exchange of lands between defendants and a party impleaded, where there was nothing in the amendment to his cross-bill which the party impleaded sought to file which operated to surprise the other parties, it not setting up any new matter, but merely amplifying the allegations of the original pleading, and correcting errors therein, the trial court, although its own rule required amendments to be filed five days before trial, which was not observed, erred in refusing to permit the party impleaded to file the amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 808; Dee. Dig. &wkey;>267.]
    2. Appeal and Eeeob &wkey;> 1041(1) — Habmless Eekok — Refusal of Amendment.
    Where an original cross-bill, with the trial amendments permitted to be filed, contained all material allegations in an offered amendment to the cross-bill, an erroneous ruling of the trial court refusing to permit the amendment was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4106; Dec. Dig. &wkey;> 1041(1).]
    3. Fraud <&wkey;64(l) — Question for Jury.
    In a suit for fraud and false representations, where there was ample evidence to sustain plaintiff’s allegations thereof, and to show that lie suffered damage, the issues were for the jury under proper instructions.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 65%, 67, 71; Dec. Dig. &wkey;64(l).]
    4. Evidence <&wkey;358 — Witnesses <&wkey;406 — CONTRADICTION — MAPS.
    In a suit by the buyer of land for false representations of the seller’s agent as to its quantity, the map furnished the buyer by the agent, which appeared to have been changed, after it was made by the surveyor, to show a greater amount of cultivated land on the tract than there was in fact, was admissible not only to contradict the agent’s testimony, but as affirmative evidence to establish the buyer’s allegations of fraud and false representations.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1500-1508; Dec. Dig. &wkey;358; Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. &wkey;5406.]
    5. Pleading <&wkey;228 — Issues—Exceptions to Pleas.
    Where the trial court sustained plaintiff’s exceptions to pleas of waiver and estoppel, and no amendment thereof was filed, the issue was not in the case, and could not be considered by the jury.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584^-590; Dec. Dig. &wkey;22S.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Suit by J. B. Berry against Bert G. Buck and another, in which O. D. Yaden was im-pleaded. From a judgment for plaintiff against defendants, and in favor of the defendants and plaintiff against the party im-pleaded, the latter appeals.
    Reversed and remanded.
    A. D. Dyess, of Temple, and Funderburk & Strickland, of Palestine, for appellant Gardner & Gardner and Campbell & Sewell, all of Palestine, and P. W. Brown, of Ft. Worth, for appellees.
   PLEASANTS, C. J.

By a cross-bill filed and presented in a suit brought by J. B. Berry against Bert G. Buck and Charles M. Buck to recover commissions alleged to be due him as agent in effecting a sale and exchange of lands between appellant and said Bert G. and Charles M. Buck, appellant, who was impleaded in said suit by the defendants Buck, sought to recover from said defendants and the plaintiff Berry the sum of $4,-000 actual damages, and from plaintiff Berry the further sum of $1,000 exemplary damages, for the alleged false and fraudulent representations of said Berry as agent of defendants Buck in effecting said sale and exchange of land, which false representations are alleged to have been willfully and maliciously made by the said Berry.

The pleading of appellant alleged, in substance, that on or about .the 7th day of November, 1913, he entered into a contract with the said Bucks as principals, acting by and through their agent, J. B. Berry, whereby he purchased certain lots or parcels of land in Navarro county, Tex., described in his petition, for the sum of $34,000; that on or about the 17th day of November, 1913, the defendants Charles M. Buck and Bert G. Buck conveyed by warranty deed the said property to said Yaden, and he paid the consideration specified in said contract. The intervener further alleged that prior to the purchase of said land by him and prior to the execution of the aforesaid deed and during the negotiations preliminary to said purchase and sale, the said J. B. Berry, acting for himself and his codefendants, represented as a matter of fact that said tract of land contained at least 500 acres of land that had previously been put in a first-class state of cultivation, when as a matter of fact there were only 317 acres of said land in a state of cultivation; that said representations as to the quantity of land in cultivation were material; that intervener relied upon same and did not discover that they were, false until after he had placed valuable improvements on the land.

In answer to this cross-action defendants Buck and plaintiff Berry, in addition to general and special denial, pleaded waiver and estoppel. Exceptions interposed by appellant to the pleas of waiver and estoppel were sustained by the trial court. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff Berry against the defendants Buck for the sum claimed by him, and in favor of said defendants and plaintiff against appellant on his claim for damages. This verdict wa,s returned in obedience to peremptory instructions by the court.

The first assignment of error complains of the refusal of the trial court to grant appellant’s request, made before the commencement of the trial, to file an amended pleading. It appears from the bill of exceptions and the qualifications made thereto by the trial judge that the cause was set for trial on December 10,1914. The court was engaged until late in the evening of that day in the trial of another cause, and when this cause was finally reached it was too late to begin the trial before the morning of the 11th, but plaintiff and defendants announced ready. Thereupon appellant before announcing asked leave to file an amended pleading, which request was refused. On the next morning before the trial of the case began appellant renewed his request, and it was again refused. In explanation of his ruling refusing leave to file the amendment, the trial judge states that a year or more before the trial of this cause he had made an order which was entered upon the minutes of the court that required all amendments to pleadings to be filed at least five days before the day set for the trial of the case in which they were filed, and that this requirement had been frequently announced by the court and usually' adhered to by both the court and attorneys; that plaintiff’s counsel objected to the filing of the amended pleading offered by appellant on the gronnd that it came too late, an'd “much was said on both sides as to whether the pleading contained new matter, which the court does not fully remember. Plaintiff was contending that the new pleading set up a new cause of action. The objection was sustained and the amended pleading not permitted to be filed, but in-tervener (appellant) was permitted to file a trial amendment correctly pleading his measure of damage as the original pleading had failed to do.” During the trial appellant was also permitted to file a trial amendment to meet a variance between the allegations of his original pleading and the evidence offered by him.

The trial court erred in refusing to permit appellant to file the amendment. There was nothing in the amendment which could have operated to surprise appellees. It does not set up any new matter, but merely amplifies the allegations of the original pleading and corrects errors therein, and under the statute regulating amendment of pleadings the trial court was not authorized to refuse to permit the amendment to be filed. It goes without saying that the rule promulgated by the trial court cannot change or modify the rules fixed by the statute and prescribed by the Supreme Court regulating the amendment of pleadings. Articles 1824 and 1825, Revised Statutes (1911); rule 16 for district and county courts (102 Tex. xxxix, 142 S. W. xviii); Metzger v. Wendler, 35 Tex. 367; Fidelity & Casualty Co. v. Carter, 23 Tex. Civ. App. 359, 57 S. W. 315; Railway Co. v. Butler, 34 S. W. 756; Boren v. Billington, 82 Tex. 137, 18 S. W. 101.

We do not think, however, that this erroneous ruling of the trial court would require a reversal of the judgment, because the original pleading with the trial amendments permitted to be filed by the court contains all of the material allegations in the offered amendment, and there is nothing in the record which suggests that appellant suffered any injury by not having been permitted to file his amendment.

The second assignment complains of the charge of the court peremptorily instructing the jury to return a verdict against appellant. This assignment must be sustained. There is ample evidence to sustain the appellant’s allegations of fraud and false representations and to show that he suffered damages thereby, and these issues should have been submitted to the jury under proper instructions.

The map offered by appellant in evidence, which was furnished appellant by plaintiff Berry and which appears to have been changed after it was made by the surveyor so as to show a greater amount of cultivated land on the tract sold appellant than there was in fact, was admissible not only for the purpose of contradicting the testimony of plaintiff, but as affirmative evi-

dence tending to establish the allegations of fraud and false representations alleged in appellant’s pleading, and the trial court should not have limited this evidence to the question of the credibility of plaintiff.

The trial court having sustained appellant’s exceptions to the pleas of waiver and estoppel and no amendment of said pleas having been filed, that issue was not in the case and could not properly have been considered by the jury.

For the error of the trial court in instructing the jury to return a verdict against appellant, the judgment is reversed, and the cause remanded.

Reversed and remanded.
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author: RICE, J.

text:
    MANN et al. v. BELL.
    (No. 5584.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1916.)
    1. Trial <&wkey;139(l)—Province of Jury—Conflicting Inference.
    Where there is any evidence about which reasonable minds may differ, it is the duty of the trial court to submit the issue to the jury.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. &wkey;139(l).]
    2. Principal anb Agent &wkey;>H0(l)—Acts of Agent—Scope of Authority.
    Where an agent authorized to buy cotton, bought cotton for future delivery and the seller did not know of the principal’s uncommunicated' instructions that cotton should be bought only for immediate delivery, the principal is liable, for, as the agent was acting within the scope of his apparent authority, secret instructions are unavailing.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 377; Dec. Dig. &wkey;>116(l).]
    3. Evidence <&wkey;471(31)—Opinion Evidence-Conclusion.
    Testimony that it was a matter of common knowledge that defendant’s agent had no authority, save to buy spot cotton, is inadmissible as a conclusion where the suit was to recover on a contract to purchase cotton for future delivery.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2176; Dec. Dig. &wkey;471(31); Witnesses, Cent Dig. §§ 833-836.]
    4. Principal and Agent <&wkey;20(l), 120(1) — Scope of Authority — General Reputation.
    Neither agency nor the scope thereof can be proven.by general reputation.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 37, 402, 404, 408, 410, 411; Dee. Dig. &wkey;20(l), 120(1).]
    Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.
    Action by Thomas Bell against James T. Mann and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Joe A. Adkins and Shropshire & House, all of Brady, for appellants. F. M. Newman, of Brady, and Wilkinson & McGaugh, of Brown-wood, for appellee.
   RICE, J.

Appellee brought this suit against James T. Mann, O. Duke Mann, R. V. Stearns, Grace Beavans, and James Beavans, appellants herein, who were formerly stock-hoi ders in the corporation of O. D. Mann & Sons, to recover damages suffered by him on account of their alleged breach of contract in refusing to accept and pay for 200 hales of cotton sold to said company through their agent, Steve Duke, 100 bales on September 23, and 100 bales on September 29, 1911, respectively, to be delivered on the 25th day of October of said year, or earlier at his option, the first 100 hales at IOVig cents and the second 100 hales at 915/i6 cents per pound, basis middling; alleging that he tendered said cotton to appellants on October 19, 1911, in compliance with his contract of sale, and demanded payment therefor; that is to say, he demanded payment for 100 bales at their value based on 10Vie cents per pound for middling grade cotton, and for 100 bales at their value, based on 9i5/ig cents per pound for middling grade cotton; that the 100 hales sold September 23d weighed 53,817, and the other 100 hales weighed 53,247; that at the time of said tender the market value of middling grade cotton at Brady was 8Vi4 cents per pound, basis middling; that at the time said first 100 bales were tendered they were worth lr/ie cents per pound, or $773.02 less than at the time of sale; and the other 100 hales were worth lVie cents per pound, or $632.23 less than at the time of their sale, aggregating the full sum of $1,405.95. He further alleged that said corporation was dissolved about December 26, 1911, and at the time appellants (except James Beavans, who was impleaded only pro forma) were owners of its stock; that all of its property was by its directors and managers James T. Mann, O. D. Mann, and R. V. Stearns turned over to its said stockholders, and by them converted to their own use and benefit, the same being of greater value than the damages here sued for.

After a general denial, appellants specially answered, admitting that the said Duke was employed by said company to purchase cotton for it on the streets of Brady, hut averred that said authority was limited to purchases for immediate delivery only; that he had no authority to make any contract binding it to accept and pay for cotton to he delivered in the future; that he was furnished with a price limit each forenoon to be used during that day only in purchases of cotton for immediate delivery; that it was the universal custom amongst cotton buyers to limit the authority of their agents who bought cotton, just as Duke was in the present instance, and that appellee, who was an experienced cotton buyer at said place, was well acquainted with said custom; that neither said corporation nor appellants had ever held said Duke out as having authority to purchase . cotton for future delivery, and had never ratified any such' purchases by him.

Upon conclusion of the testimony the court, of its own motion, instructed a verdict for appellee for the sum of $1,405.95 and upon its return rendered judgment in accordance therewith against appellants, from which they have prosecuted this appeal, insisting by their first assignment that the court erred in so charging the jury, contending that there being evidence to support their contention, it was the duty of the court to submit their theory of the case to the jury upon a proper charge, citing in support thereof Choate v. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. W. 319; Id., 91 Tex. 406, 44 S. W. 69; Insurance Co. v. Brown, 82 Tex. 631, 18 S. W. 713; Huff v. Crawford, 89 Tex. 220, 221, 34 S. W. 606; Dallas v. Beeman, 12 Tex. Civ. App. 344, 34 S. W. 341; 31 Cyc. 1674-77. The rule of law seems to be that where there is any evidence about which reasonable minds may differ, it is the duty of the trial court to submit the issue for the consideration of the jury. Appellee, admitting the law to be as contended by appellants, insists, however, that there was no evidence warranting the submission of such issue, and therefore it became the duty of the court to instruct a verdict in his behalf. Appellants admitted on the trial of this case that the corporation of O. D. Mann & Sons, their predecessor, had, in September, 1911, employed Steve Duke as its agent and authorized him to buy cotton for it during the season in the town of Brady, but the evidence showed that it gave him private instructions to purchase cotton only for immediate delivery. The testimony, however, failed to show that these instructions were known to appellee, and he testified that he never knew, heard, or suspected that there was any limitation upon Duke’s authority; that at one time he sold Duke 25 bales and at another 100 bales; the 25 bales were delivered close to the time of purchase, but the* 100 bales were delivered some 10 or 12 days thereafter, all of which was accepted and paid for by appellants; that he knew of said Duke having purchased cotton to be delivered in the future from other parties during said season; during the time mentioned in the petition he lived at Brady and made the alleged contract with Duke and tendered the cotton called for theréin in compliance therewith, but appellants refused to receive same, and when so tendered the cotton was shown to have been worth $1,405.-95 less than the contract price.

The agent having bought said cotton while acting within the scope of his authority, appellants were bound thereby. See Merriman v. Fulton, 29 Tex. 98-108; New York Life Ins. Co. v. Rohrbough, Moore & Co., 2 Willson, Civ. Cas. Ct. App. § 217; Watkins v. Morley & Co., Id. § 727; Strozier v. Lewey & Co., 3 Willson, Civ. Cas. Ct. App. § 131.

Secret or private instructions to an agent, though binding as between the principal and agent, can have no effect on a third person who deals with the agent in ignorance of the instructions and in reliance upon the apparent authority with which the principal had clothed him. As to third persons, such secret instructions are no restrictions upon the apparent authority oí a general agent, for persons dealing with an agent are, in the absence of special proof to the contrary, presumed to know only his general authority, and have a right to assume that the principal intended him to employ the usual and appropriate means to do the acts that belong to the particular character of employment, or that have been previously employed by such agent, irrespective of any private directions the principal may have thought it best to give to the agent; and a special agent who acts within his apparent power will hind his principal, even if he has received private instructions Which limit his special authority. See 31 Oye. 1327B et seq.

In the instant case it appears that Duke was the agent of appellants, with general authority to buy cotton upon the streets, and was so generally regarded in the town of Brady, and there was no evidence whatever to show that appellee had any knowledge of the private instructions limiting his authority to purchase for immediate delivery only. This being true, we think that appellants were clearly bound by the acts of their agent in purchasing the cotton in question, and that the court properly instructed the jury to return a verdict in favor of appellee. In Clark & Skyles on Agency, § 70, p. 177, it is said:

“Where the facts are undisputed, the question whether the agent had the requisite authority to bind his principal by a particular act or contract is a question of law for the court.”

Appellants contend by their eleventh assignment that the court erred in refusing to permit them to prove by James T. Mann that it was matter of common knowledge that everybody in the town of Brady knew that Steve Duke had no authority from the firm of O. D. Mann & Sons, except tó buy spot cotton on the streets. This evidence was properly excluded, we think, upon objection of appellee that it was the mere conclusion and opinion of the witness. See E. A. L. M. Co. v. Briggs, 41 S. W. 1036; Int. Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93-100 ; 31 Cyc. 1652, subd. 3; 10 Ency. Evid. pp. 227, 228; McCornick v. Queen of Sheba Gold Min. & Mill. Co., 23 Utah, 71, 63 Pac. 820-822.

Neither agency nor the scope thereof can be proven by general reputation. See McGregor v. Hudson, 30 S. W. 489; Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227-229; Mechem on Agency (1st Ed.) § 101; 31 Cyc. p. 1665, subd. 9; 10 Ency. Evid. p. 27, subd. 14; Union Trust Co. v. McKeon, 76 Conn. 508, 57 Atl. 111, 112; Tucker v. Constable, 16 Or. 407, 19 Pac. 14.

The remaining, assignments complain of errors in refusing to give special charges requested at the instance of appellants; but since we have concluded that the court did not err in directing a verdict in behalf of ap-pellee, none of them need be considered.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.
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author: BROOKE, J.

text:
    FULLER, HANNA & CO. v. ROGERS.
    (No. 73.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 10, 1916.
    Rehearing Denied March 1, 1916.)
    1. Cebtioiiabi @=>17 — Right to WBnb — CORRECTION 03? RETURN.
    On appeal from a judgment against the claimant of attached property in an action begun in a justice court, the Court of Appeals cannot issue certiorari to correct the return as made by the constable showing the value of the property attached in order to make it conform to his intentions, though it could issue the writ to have the record corrected if the return were incorrectly copied" therein.
    [Ed. Note. — For other cases, see Certiorari, Cent. Dig. § 22; Dec. Dig. @=>17.]
    2. Justices of the Peace @=344(7) — Jurisdiction-Amount in Controversy — Claim of Attached Pbopebty.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7773, providing that, when a third person shall claim attached property, the sheriff or officer having it in charge shall indorse on the writ the fact of such claim and state the value of the property, and article 7778, providing that, where the value assessed shall be more than $200 and less than $500, the writ shall be returned to the county court for trial, the assessment of the value by the officer, when made, is conclusive as to the court’s jurisdiction, and the justice of the peace has no jurisdiction if it shows a value of $250, though, in fact, it was worth only half that amount.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 165; Dec. Dig. @= 44(7).]
    3. Appeal and Ebeoe @=>185(1) — Questions PBESENTED — JUBISDICTION.
    The jurisdiction of the justice of the peace over a claim for attached property can be .questioned by assignment of error to the judgment of the county court and appeal from a justice of the peace, since jurisdiction is a matter that can be called in question at any time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1168, 1173; Dec. Dig. @=185(1).]
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Attachment by Fuller, Hanna & Co. against George Rogers, in which Silas Rogers appeared and claimed the property. From a judgment of the county court, on appeal from a justice court, plaintiffs appeal.
    Reversed and dismissed.
    S. M. Adams, of Nacogdoches, and Geo. F. Fuller, of Martinsville, for appellants. C. A. Hodges, of Nacogdoches, for appellee.
   BROOKE, J.

On the 14th day of December, 1914, the appellants, Fuller, Hanna' & Co., filed in the justice court, precinct No. i 3, Nacogdoches county, a suit against one I George Rogers, on account amounting to 1156.40, and had issued on said day an attachment commanding the constable of precinct No. 3, Nacogdoches county, Tex., to seize sufficient property belonging to said George Rogers to make the sum of $156.40, and probable costs of suit, and that said constable did, on the 16th day of December, 1914, levy upon one gray mare and 800 pounds ■of cotton seed as the property of one George Rogers, and on the 16th day of December ap-pellee, Si Rogers, filed with the justice of peace of said precinct and county his affidavit, and on the 17th day of December, said Si Rogers filed a claimant’s bond in terms as required by law, which was approved, and the property was surrendered to the said Si Rogers. On the 19th day of March, 1915, the case was tried and judgment rendered against the claimant for the property, and within the time prescribed by law claimant filed his appeal bond, and the case whs sent to the county court. On the 29th day of June, 1915, it was tried before a jury upon special issues, and the court on said issues rendered a judgment against the defendant. The case is properly before this court on appeal.

We are confronted at the outset with an application for writ of certiorari filed by appellee which is in the following language:

“Now comes your petitioner, Si Rogers, ap-pellee in the above styled and numbered cause, and makes this, his application for writ of cer-tiorari, so as to make the record speak the truth therein in said cause, and represents to the court:
“(1) That for some reason, by oversight or error, the transcript in said cause shows the writ made by John P. Grimes, constable,-.upon the bond, that he valued the cotton and mare levied upon by him at $250, when in truth and fact same is an error, and the value of said property was by said officer fixed at $125, as is shown by said officer’s statement hereto attached, and made a part hereof.”

It is to be noted that the application for the writ does not state that the transcript does not contain on its face and is not a copy of the papers in the court below, and it appears that no claim is made that the error or oversight complained of consists in the incorrect copying into the transcript of papers; but, if we understand it, appellee is seeking to correct in this court a return made by a constable on a writ in the court below, and seeking here to show that the return should be corrected. If the return was not correct, this matter cannot be corrected in this court. Without question we would grant the writ if the record in this court was incorrectly copied, but we are without authority to grant the request or motion in this case. Therefore the application for writ of certiorari is overruled.

Appellants by their first assignment complain that the court erred in not dismissing the cause, for the reason that it had no jurisdiction of the controversy, as was shown by the plaintiff’s issues filed in the justice court, as the value as placed upon the property by the constable of precinct No. 3 was for more than the jurisdiction of the justice court.

Article 7773, Vernon’s Sayles’ Civil Statutes, provides:

“Whenever any person shall claim property and shall make the oath and give the bond, as provided for in this chapter, if the writ under which said levy was made was issued by any justice of peace or court of the county where such levy was made, the sheriff or other officer receiving such oath and bond shall indorse on the writ that such claim has been made and oath and bond given, stating by whom, and shall also indorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond and oath to the proper justice or court having jurisdiction to try such claim, as hereinafter provided.”

Article 7777 provides:

“The sheriff or other officer taking such bond shall also indorse on the original writ that such claim has been made and oath and bond given, stating by whom, the names of the sureties and to what justice or court the bond has been returned; and he shall forthwith return such original writ to the justice or court from which it is issued.”

Article 7778 provides:

“Gases arising under this chapter shall be tried as follows:
“First. Where the assessed value of the property does not exceed $200, the writ shall be returned to a justice of peace, as before provided.
“Second. Where the value assessed is more than $200 and does not exceed $500, the writ shall be returned to the proper county court.
“Third. When the assessed value is more than $500, the writ shall be returned to the proper district court.”

It has been held that the assessment of Value placed on property by the officer who seizes it under attachment should determine the jurisdiction on the trial of the right of property, and not its value as subsequently ascertained. Cleveland v. Tufts, 69 Tex. 580, 7 S. W. 72; Harris v. Hood, 1 White & W. Civ. Cas. Ct. App. § 573; Carney v. Marsalis, 77 Tex. 62, 13 S. W. 636.

In the case of Cullers v. Gray, 57 S. W. 305, it was held that, where the officer omits to assess the value of a part of the property, the court is not bound to determine its jurisdiction by this assessment, but can hear evidence of value.

It has been held also that a justice of peace has no jurisdiction of a case on the trial of the right of property when the amount in controversy exceeds in value $200. Marx v. Carlisle, 1 White & W. Civ. Cas. Ct. App. § 93; Chrisman v. Graham, 51 Tex. 454.

It has been held that, in the absence of an indorsement on the bond, the statements in the affidavit and the bond that the amount was within the jurisdiction of the court is sufficient. Leman v. Borden, 83 Tex. 620, 19 S. W. 160.

All the authorities hold, however, that when the value of the property has been assessed by the sheriff or constable, it controls the jurisdiction of the court, and that the value of the property subsequently ascertained on the trial does not control.

The- record in this case shows that the constable of precinct No. 8, Nacogdoches county, when he levied on the property and claimant’s bond was given and approved by the said constable, made the following in-dorsement :

“The within-named gray mare and 800 pounds of seed cotton has been valued by me in the sum of $250. John P. Grimes, Constable Precinct No. 3, Nacogdoches, Texas.”

The view we take is that under this assessment of the value of the property levied on by the officer the case could not have been tried in any court save the county court. It having been tried, however, in the justice court and appealed to the county court, that court took no jurisdiction, and this court is without jurisdiction.

Jurisdiction being a matter which can be called in question at any time, and being assigned as error by the appellant, and the facts being as above set out, we feel that of necessity the first assignment of error must be sustained, and therefore the cause will be reversed and dismissed from the docket of this court.

MIDDLEBROOK, J., not sitting.
      (®=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOSLER SAFE CO. v. ATASCOSA COUNTY et al.
    (No. 5588.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.
    On Motion for Rehearing, March 8, 1916.)
    1. Evidence i&wkey;399 — Actions on Contracts —Evidence Admissible under Pleadings.
    Plaintiff sued a county on an alleged written contract for safe doors. Defendant denied the contract, and alleged that the doors were furnished a contractor erecting a courthouse. By supplemental petition plaintiff pleaded the contents of the minutes of the county commissioners’ court showing a written contract between the commissioners’ court and plaintiff, and to this supplemental petition no answer was filed. Held, that it was error to admit pa-rol evidence that the commissioners’ court was only selecting the doors for the contractor, and not purchasing them, since, if it was permissible at all to alter or abrogate the contract, except by motion in the commissioners’ court to amend its minutes, this could not be done without a plea of fraud or mistake.
    [Ed. Note. — For other eases, see Evidence, Gent. Dig. §§ 1772-1777; Dec. Dig. &wkey;399.]
    On Motion for Rehearing.
    2. Appeal and Error <&wkey;1173(l) — Disposition op Cause — Granting Relief to Par-tv Not Appealing.
    In an action against a county for the price of safe doors, it denied liability, and asked that a contractor and its surety be made parties,. and that it have judgment against them if plaintiff recovered any judgment against it. The trial court rendered judgment in favor of all the defendants, and plaintiff appealed. The judgment was reversed, and judgment was rendered for plaintiff against the county. Held that, as the judgments in favor of the contractor and the surety were apparently rendered upon the theory that, as the county had been adjudged not indebted to plaintiff, it could not maintain any cross-action against them, such judgment would be reversed, and the cause remanded for a new trial as between the county and them; as the power to give relief to an appellant by changing the judgment carries with it the power and necessity to make such other changes as justice to the other parties demands.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. &wkey;1173(l).]
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    Action by the Mosler Safe Company against Atascosa County, which brought in other defendants. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered in part, and remanded in part on rehearing.
    C. A. Keller, of San Antonio, for appellant. W. W. Walling, of San Antonio, for appellees.
   MOURSUND, J.

Mosler Safe Company sued Atascosa county, alleging that on or about January 23,1913, said county executed and delivered to plaintiff its certain written order or contract, whereby plaintiff sold to defendant certain safe doors for $584; that defendant had paid only $77.99, leaving a balance of $506.01 due thereon, with interest; that a lien was retained in said contract upon said safe doors. Plaintiff prayed for judgment for said sum, with interest, and for foreclosure of its lien. A copy of the order was attached as an exhibit.

The defendant denied that it ever executed and delivered to plaintiff the order and contract as alleged, and that, if the same was''ever executed and delivered by any person, such person was wholly unauthorized by defendant to make or deliver the same to plaintiff, and defendant has never ratified or confirmed the same. Defendant further alleged that, if it ever paid the sum of $77.99 as a payment on the alleged claim of plaintiff, such payment was to the Gordon-Jones Construction Company, the contractor who erected the courthouse at Jourdanton, and was in no wise intended as a payment to plaintiff, as said company had contracted with defendant to furnish all material for the construction of the courthouse, and defendant had no contract with plaintiff at any time for the furnishing of any material for said courthouse; that said safe doors were, in fact, furnished to the Gordon-Jones Construction Company; that in order to secure the faithful compliance by said company with its contract with defendant for the construction and completion of a courthouse, under the terms of which said company bound itself to pay for all material that might be used in the construction thereof, said company furnished a bond in the sum of $32,-500 with the Equitable Surety Company as surety thereon. Defendant prayed that Gordon-Jones Construction Company and Equitable Surety Company be made parties, and that, if plaintiff recover any sum from defendant, defendant have judgment over against both of said companies for such sum.

Plaintiff, by supplemental petition filed April 21, 1915, alleged that the written order mentioned in its original petition was executed by Walter E. Jones, county judge of Atascosa county, after a bid was duly presented to the commissioners’ court of said county and accepted by such court, and that the execution of said contract by such county judge was the duly authorized act of said commissioners’ court; that on or about January 23, 1913, plaintiff, acting by its agent, duly authorized thereto, presented to the commissioner’s court of Atascosa county a bid for certain vault doors, being those described in the original petition, agreeing to furnish same for $584, and that by an order duly entered in the minutes of said court such bid was accepted as the lowest and best bid, and afterwards such doors were furnished and delivered to the order of said county, and were used by it, and are still used by it. Plaintiff denied that it furnished said doors to the Gordon-Jones Construction Company, and joined issue on the allegation that the $77.99 was paid to said company. The defendant failed to answer this supplemental petition.

The Equitable Surety Company answered, alleging that the doors were ordered by the defendant, and not by the Gordon-Jones Construction Company, and denying liability to the county for any debt incurred by it. It prayed that, if any judgment be rendered against it, it have judgment over against the Gordon-Jones Construction Company. The Gordon-Jones Company filed no answer.

Judgment was rendered that plaintiff take nothing by its suit.

Plaintiff alleged and proved a written contract with Atascosa county, evidenced by its bid and the acceptance thereof, which bid and acceptance were duly entered in the minutes of the commissioners’ court. It appears that, if the minutes' do not speak the truth, the proper method to amend the same is by a motion made in the court, and not by allegation and proof in another tribunal in which the litigation concerning its orders may arise. Gano v. Palo Pinto County, 71 Tex. 99, 8 S. W. 634. But, if the order of the court could be set aside in this ease on the ground of fraud or mistake, it is a sufficient answer to say that neither of such grounds is pleaded by defendant. In its brief it contends that a fraud has been practiced on the county in obtaining the entry upon the minutes of the bid and the order accepting the same, but we find no pleadings which raise any such issue. Defendant did plead that the county judge had no authority to sign the order for the doors, but when plaintiff pleaded the contents of the minutes of the commissioners’ court, which showed a written contract between the commissioners’ court and plaintiff, such allegations' were not denied. Defendant was permitted over plaintiff’s objection to introduce parol evidence to the effect that the commissioners’ court was only selecting the doors for- the Gordon-Jones Construction Company, and not purchasing same. If it be permissible at all to alter or abrogate the contract appearing on the minutes of the commissioners’ court, except by motion in such court, it is evident that parol testimony should not be admitted for that purpose in the absence of a plea of fraud or mistake. Gano v. Palo Pinto County, supra; Douglass v. Myrick, 159 S. W. 422.

The plaintiff was entitled to judgment for its debt. The judgment of the trial court is reversed, and judgment rendered in favor of Mosler Safe Company against Atascosa county for $506.01, with interest thereon from August 3, 1914, at the rate of 6 per cent, per annum, and all costs of suit. Interest is allowed only from date of filing original petition, for the reason that we are unable to tell from the pleadings or the evidence when the doors were delivered. In all other respects the judgment will remain undisturbed.

On Motion for Rehearing.

The judgments in favor of the Gordon-Jones Construction Company and the Equitable Surety Company could have been rendered, and apparently were rendered, upon the theory that, as the county had been adjudged not to be indebted to the safe company, it could not maintain any cross-action against said two parties. This being the case, we conclude that it would be unjust to let the judgment in favor of said two parties stand. The power to give relief to appellant by changing the judgment carries with it the power and the necessity to make such other changes therein as justice to the other parties demands. Thompson v. Kelley, 100 Tex. 539, 101 S. W. 1074; Reeves v. McCracken, 103 Tex. 416, 128 S. W. 895; Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315.

The judgment heretofore entered by this court is set aside, and judgment entered reversing the judgment of the district court in its entirety, and awarding the Mosler Safe Company a recovery of its debt as indicated in our former opinion and judgment, but providing that the cause, as between Atas-cosa county and the Gordon-Jones Construction Company and the Equitable Surety Company, be remanded for another trial. All costs of this appeal will be taxed against Atascosa county.
      <&wkey;>Far other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WIDDSON, C. J.

text:
    COX et al. v. GEORGE et al.
    (No. 1568.)

    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 25, 1916.
    Rehearing Denied March 9, 1916.)
    1. Wills &wkey;>452 — Construction—DISINHERITANCE.
    Where a testator, who was survived by children by each of his two deceased wives, by holographic will gave one-half of the home place, which had been the community property of himself and his first wife so that her children were the owners of an undivided one-half interest therein, to the children of the first wife, naming them, and one-half thereof to the children of thq second wife, naming them, and the rest of his property to be divided equally between certain named heirs omitting three of the children of the first wife, the clause will be construed as giving each of the groups of children an undivided one-fourth interest in the home place, or one-half of their father’s interest therein, since the will manifests an intention that the children shall all receive something, and, if it be construed as giving to the children of the first wife only the interest they already had, three of them will be disinherited.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 968-970; Dec. Dig. &wkey;452.]
    2. Wills <&wkey;558(l) — Construction—Descrip-tion oe Property.
    The courts favor a construction of a general disposition of property, of which the testator owns only a share, which disposes of only that share.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1205, 1206, 1211-1214; Dec. Dig. &wkey; 558(1).]
    3. Wills <&wkey;707(l) — Actions to Construe— Costs.
    The costs of a suit, which was necessary to determine the interest of the devisees in certain property and was for the benefit of all parties alike, will be adjudged against all parties in the proportion of their interests in that property.
    [Ed. Note. — For other eases, see Wills, Cent. Dig. § 1684; Dec. Dig. &wkey;707(l)J
    .Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Suit by Mary A. Cox and others against Dula George and others for the construction of a will. Decree construing the will in favor of the defendants, and plaintiffs appeal.
    Reversed, and will construed in favor of plaintiffs.
    C. Z. Bridge married four times during his lifetime. There were five children of the first marriage, to wit, S. A., C. B., W. E., Alice ¡D., who married one Scott, and Mary A., who married Jesse Cox; and five children of the second marriage, to wit, H. B., Roy, Duly, who married T. E. George, Jessie, who married one McCoy, and Edna M., who married one Blair. Subsequent to the time when their mother died, S. A. Bridge and Alice D. (Scott died, leaving children surviving them. Prior to the time when her father died, Edna M. Blair died, leaving children surviving her. There were no children of., the third and fourth marriages. At the date, of the death of the first wife, she, with her husband and children, resided upon a tract of 115 acres of land, which belonged to the community estate between her and her husband. C. Z. Bridge died on December 1, 1913, leaving a holographic will, which was duly probated, as follows:
    “The State of Texas, Fannin County.
    “To all whom it may concern:
    “Know you that I this day have willed and bequeathed the following property to the following named heirs: One half of what is known as the ‘home place’ heirs of S. A. Bridge, dec., heirs of Alice D. Scott, dec., C. B., W. E. Bridge and Mary A. Cox, the same to be equally divided, the other half of same place to H. D. and Rloy Bridge, Dula George and Jessie McCoy. These last-named heirs to pay to the heirs of Edna M. Blair, dee., the sum of three hundred dollars when said property is sold or divided.
    “The remainder of my property which may consist of real estate, notes, accounts, money in the bank, etc., after paying debts, funeral expenses, etc. shall be equally divided with the following named heirs to wit: C. B., W. E., H. B., and Roy Bridge, Dula George and Jessie McCoy. It is my desire that this be settled, peacefully and without any trouble. W. E. Bridge and T. E. George are named to settle up this estate. Done this November 17, 1910. Witness my hand, C. Z. Bridge.”
    The property mentioned in the first clause in the will as that “known as the ‘home place’ ” was the 115 acres of land above referred to. Besides the interest he owned in that tract, the testator at the date of his death owned another tract Of land, containing 144 acres.
    This suit was by Mary A. Cox, joined by her husband, against other children and grandchildren of C. Z. Bridge and the executors of his will. Its purpose was to have the court construe and determine the meaning of the first clause in the will. The plaintiff, who is the appellant here, and certain of the parties named by her as defendants, who adopted her pleadings, and so, in effect, became plaintiffs, contended that the will should be construed as operating to pass to the children of the first marriage a one-fourth undivided interest, and to children of the second marriage a one-fourth undivided interest, in the “home place.” The trial court, sustaining the contention of other parties to the suit, held that the will operated to pass to the children of the first marriage a one-half undivided interest in that property, and to children of the second marriage a one-half undivided interest therein. The appeal is by Mary A. Cox, joined by her husband.
    J. M. Baldwin, of Honey Grove, and C. A. Wheeler and J. W. Gross, both of Bonham, for appellants. Cunningham & McMahon and D. C. Fuller, all of Bonham, and G. W. Wells, of Honey Grove, for appellees.

      Application for writ of error pending in Supreme Court.

   WIDDSON, C. J.

(after stating the facts as above.)

It conclusively appeared, and the court'so found, that the children of the first marriage as the heirs of their mother owned a one-half undivided interest in the “home place,” and that their father at the time he made the will knew they so owned an ihterest in the land.

It is apparent, if the language of the first clause in the will should be construed literally and without reference to that in the other clause, that the testator undertook to dispose of the “home place” as an entirety, and not the undivided interest he owned in it. If, however, the clause in the will is construed with reference to the language in the other clause, and the fact that the testator knew that he owned only an undivided half of the home place, such an intent on his part would not be at all clear; for the language, “the remainder of my property,” used in the other clause in the will, would then indicate that 'his intention was to dispose of his own property only.

If therefore the face of the will furnished no other evidence showing the intention of the testator, the presumption the law would indulge, that he intended to dispose of his own property alone, probably would require us to hold that his intention was to dispose of only his half interest in the “home place,” for, as said by Mr. Underhill:

“The courts, in construing a general disposition of property in which the testator owns only a partial interest, will favor a construction which will dispose only of the actual interest of the testator.” 2 Underhill on Wills, § 730.

But the language of the will as a whole, construed with reference to the circumstances surrounding the testator, furnishes other evidence, to which the law gives weight, showing his intention to have been to dispose only of his part of the “home place.” It appears therefrom that he did not intend to disinherit any of his children, but, on the contrary, intended to make provision for each of them. It further appears, if the will should be construed as determined by the trial court, that it would operate to disinherit three (S. A. Bridge, Alice L. Scott, and Mary A. Cox) of the children of that marriage; for, if the will is so construed, nothing was devised to them that they did not already own.

“Whore any ambiguity exists in a will,” said the author of the article on “Wills” in 40 Cyc. 1412, “unless there is a manifest intention to the contrary, a presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will. Hence such a construction should be given the will as favors heirs at law or next of kin, in preference to disinheritance.”

And see, also, McIlvaine v. Robson (Ky.) 171 S. W. 413; Morrison v. Tyler, 266 Ill. 308, 107 N. E. 602; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 932.

When the presumptions which, as we have seen, the law in a proper case indulges, are kept in mind, we think it is reasonably clear from the language of the will considered as a whole, and with reference to the circumstances surrounding the testator, that he did not intend to dispose of the “home place” as an entirety, but only of his half thereof. It is more reasonable and more in harmony with rules of law, we think, to say that he did not intend to do what he had no right to do, to wit, to dispose of property he did not own, than to say that he intended to do what he plainly declared he did not intend to do, to wit, disinherit some of his children.

It follows we are of opinion the trial court erred when he construed the will as he did. Therefore the judgment will be reversed, and judgment will be here rendered construing the will as operating to pass to the children and heirs of children of the first marriage a one-fourth undivided interest in the “home place,” and to children named of the second marriage a one-fourth undivided interest therein, charged with the payment by them to the heirs of Edna M. Blair, deceased, of the sum of $300 when said “home place,” is sold or divided.

The suit, we think, was necessary to determine the interest in the “home place” which passed to the devisees named in the first clause in the will, and was for the benefit of all the parties alike. The costs therefore will be adjudged against all of them, each to pay a part thereof proportioned to the interest he or she takes in that property. 40 Cyc. p. 1864; 1 Underhill on Wills, § 462.
      <gsoFor other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes