author: LEVY, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. BERTHEA.
    (No. 1502.)

    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 3, 1915.
    Rehearing Denied Nov. 18, 1915.)
    1. Carriers <©=>322 — Carriage of Passengers — Injuries to Passenger — Findings.
    In a passenger’s action for injuries caused by derailment of the train, a finding by the jury that a defect, in that one of the two broken rails which first gave way, could not have been discovered by the highest care, did not require judgment for defendant, since it did not attribute the cause of derailment to that rail, and since the court was presumed to have found that such defective rail was not the proximate cause of the derailment.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. <©=>322; Trial, Cent. Dig. § 860.]
    2. Appeal and Error <©=>931 — Review—Presumptions.
    When a special answer does not find all the facts necessary to form the basis of a judgment, but does answer all the questions submitted, the court is presumed to have found the omitted facts necessary to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. @=>931.]
    3. Carriers <©=320 — Carriage of Passengers — Injury to Passenger — Proximate Cause.
    In a passenger’s action for injuries in a derailment of the train, where it appeared that the rail first struck by the train was splintered for a distance of about five feet, but that its base remained in place, while the end of the next rail was entirely broken off for two feet, and was found hanging in a truck, it could not be said, as •a matter of law, that the breakage in the first rail was the proximate cause of the derailment, although such rail contained a hidden defect.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. <§=3320.]
    4. Carriers <§=»322 — Carriage of Passengers — Injuries to Passenger — Findings— Consistency.
    In a passenger’s action for injuries in a derailment of the train, a finding by the jury that a hidden defect in the first rail that gave way was not discoverable by the highest care was not in conflict with another finding that defendant had not used a high degree of care to have the rails at the place of derailment in reasonably safe condition, when considered in connection with the court’s finding that the proximate cause of the derailment was not the rail containing the hidden defect, but the rail next thereto.
    [Ed. Note. — For other cases, see Carriers, Dec¡ Dig. <¿=^322; Trial, Cent. Dig. § 860.]
    5. Triad <@=3365 — Special Findings.
    A finding upon a special issue submitted to the jury becomes immaterial when other facts have the legal effect to eliminate the issue embodied in such finding.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. <§=3305.]
    6. Carriers <§=3318 — Carriage op Passengers — Action for Injuries — Roadbed—Evidence.
    , In a passenger’s action for injuries sustained in a derailment of the train, evidence held sufficient to sustain a finding that defendant was negligent in failing to maintain a rail securely spiked to the ties.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. <§=3
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Action by J. F. Berthea against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Appellee, a passenger on appellant’s regular south-bound passenger train, was injured by the derailment of the main line of the coach in which he was riding, in consequence of the breakage of certain track rails. This action was brought to recover damages for the injuries thus sustained, and a recovery by appellee was had.
    According to the evidence, which is undisputed, two rails of the track, adjoining each other on the same side of the track, were broken as follows: Between 18 inches and 2 feet was entirely broken off of the end of one of the rails, and between 4% and 5 feet of the ball of the' south end of the next or north rail was shivered or broken off down to the web or base of the rail. The broken portion of the south rail was found hanging in the trucks of the derailed chair car. The web or base of the north rail re>-mained and was still on the ties. An examination of the broken end of the south rail disclosed no inherent defect or flaw in it, but inside the ball that was shivered off the north rail at the point of breaking there was found a hollow defect or flaw made in the molding of the rail. The flaw in the north rail was so wholly concealed inside the rail as not to be discoverable by inspection. The evidence supports the finding of the jury, on special issue, that the defect causing the break in the north rail was not discoverable by the exercise of a high degree of care before the injury. And there is evidence to support the further findings comprehended in the verdict of the jury, and the judgment of the trial court, that as to the breaking of the south rail appellant was guilty of negligence, and such negligence proximately caused the injury. The evidence warrants the amount of the verdict.
    Morris & Sims, of Palestine, and Futch & Tipps, of Henderson, for appellant. Felix J. McCord, of Longview, and J. W. McDavid, of I-Ienderson, for appellee.

      Application for writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above).

The jury answered “No” to the following question propounded:

“Could the servants and agents of the defendant company, by the exercise of that degree of care which a very prudent and cautious person would have exercised under the same or similar circumstances, have discovered the defect in the rail which first gave way on the occasion of the wreck complained of in this suit?”

And the appellant, by its fourth assignment of error, complains of the refusal of the court to enter judgment in its favor on the finding by the jury. The answer of the jury goes to the extent only of finding as a fact that the defect “in the rail which first gave way” was not discoverable before the time of the derailment by the highest degree of practicable forethought and skill. The answer does not attribute or refer the cause of the derailment to the track rail which first gave way or broke, and there does not appear in the record any other finding by the jury1 respecting the proximate cause of the derailment to be considered in connection with the instant answer. Therefore the assignment must, we think, 'be overruled, for it is believed that in the circumstances there was presented for decision in point of fact by the jury or court the vital question of the proximate cause of the derailment was a fact necessary to support- a judgment for appellant; for, under doctrine of law, the finding by the jury of want of negligence on the part of appellant in respect to the breakage of one of the track rails would not have the legal effect to relieve of liability, unless it further appears as a fact that such defective rail, for which appellant was not responsible, was the proximate cause of the derailment.

When a special answer does not find all the facts necessary to form the basis of a judgment, but does answer all the questions submitted, the court is presumed to have found from the evidence the omitted facts necessary to support the judgment rendered By him, if the evidence authorizes the fact thus presumed. Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 639; article 1985, R. S. And, as the trial court entered judgment for the plaintiff, it must be assumed, in support of his judgment, that he concluded as a fact, and which has evidence to support it, that the particular defective rail, which the jury found the appellant was not legally responsible for, was in the evidence only a condition, and not the efficient cause of the derailment.

The fact appears without dispute that the smoker and chair car of appellant’s south-bound passenger train were derailed. It happened in a cut on the main line. The track there was level and straight, and on dry, sandy ground, and, according to the evidence, was surfaced, in good alignment, and had good, new ties. The rails were 75-pound rails, but the employes did not know how long a time they had been in use. Immediately after, and with the purpose of ascertaining the cause of the derailment, a passenger on the train and certain experienced employes of appellant made an examination of the physical evidences on the ground. They found two rails of the track, adjoining each other on the same side of the track, broken, as follows: Between 18 inches and 2 feet was entirely broken off of the north end of one of the rails, and between 4% and 5 feet of the ball of the south end of the next or north rail was shivered or broken off down to the web or base of the rail. The broken portion of the south rail was found hanging in the trucks of the derailed chair car. The web or base of the north fail remained and was still on the ties. An examination of the broken end of the south rail disclosed no defect or flaw in it, but inside the ball that was shivered off the north rail at the point of breaking there was found a hollow defect or flaw made in the molding of the rail. The witnesses say that the flaw in the north rail was such as to weaken the strength of the rail, and was so wholly concealed inside the rail as- not to be discoverable by inspection, and could not be seen if the rail had not been broken. An inspection of the roadbed and track had been made before the derailment, and it appeared sufficient. The engineer testified that as the train approached the cut he felt something give way under the back drivewheel of the engine, and heard a drive-wheel “knocking,” and he at once applied the air in the emergency to stop the train immediately. Upon applying the air the engineer looked back towards the train and saw the rear cars careening. The train stopped quickly after the air was applied. The engine, baggage car, and front trucks of the next or combination car all remained on the track. These are all the facts and circumstances relied on to show the cause of the derailment. Taking the engineer’s affirmative evidence, it must be said, as a fact,'that there was a breakage of two track rails under the weight of the engine as it passed over them. An examination of the track made immediately afterwards disclosed, it appears, that the breakage in the two rails was not of the same kind and character. About 2 feet was entirely broken off of the north end of the south rail, and such broken off part was off the ties, hanging in the trucks of the chair car. The ball of the south end of the next or north rail for the length of about 5 feet was shivered off, and the web or base of the shivered portion of the rail remained and was still on the ties; and it appears without dispute that after the giving way of the rails under the engine the baggage car and the front trucks of the combination car passed over the broken rails without derailment. Thus, in the circumstances, the derailment of the rear cars cannot be attributed and referred absolutely to the fact of breakage in the north rail. The further fact that 2 feet of the south rail was entirely broken off and an open space for that length left in the track might, it could reasonably be said, have been the cause of the derailment; for such open space would permit and allow the wheel of the car to sink down to the ties for the lack of that much rail to support it. It presents a physical situation at least which the jury or the court might infer was the proximate cause of the derailment; and the physical situation presented in the breakage of the north rail does not necessarily exclude any other inference than, that such breakage solely or proximately caused the derailment. A jury or the trial court may have legitimately drawn the inference or conclusion that only the shivering off of a part of the rail, its under part or base remaining spiked to, the ties, did not solely or proximately cause the derailment. It is true that a witness stated that the breakage of tlie north rail caused the derailment; but his answer was an opinion purely, and became but a circumstance for consideration by the court or the jury. It is not thought, in view of the circumstances proven, that this court can properly say, as a matter of law, that the breakage in the north rail was the sole ox proximate cause of the derailment.

It is further contended by the eighth assignment of error that the above-stated special finding of the jury is in conflict with their answer to the third question propounded, and that the findings would not support a judgment for appellee. The third question, in substance, asked the jury to say whether or not appellant had used a high degree of care to have the track and rails in a reasonably safe condition at the place of derailment, and the jury answered, “No.” Giving, as the jury did, the general answer “No” . to the question, the verdict may, it is true, be construed, and have the effect, as being a finding that appellant was negligent' in respect to both of the broken rails in evidence;' and such finding may seem, as appellant insists it is, apparently inconsistent with the further finding in the special answer that appellant was not negligent in respect to the breakage in the north rail. But when the findings are read in the light of the further finding by the court, as comprehended in his judgment, of the proximate cause of the derailment and injury being the south rail, any legal inconsistency or contradiction disappears. If the appellant were negligent in respect to the north rail, but such negligence did not cause the derailment, the appellee could not, as a matter of law, recover on this particular ground of negligence had it been the only ground. And likewise, if the appellant were not negligent'in respect to the north rail, it would not, as a matter of law, be entitled to a judgment, unless it appeared as a further fact that the defective north rail, for which condition appellant was not legally responsible, was the proximate cause of the derailment and injury. But if the broken south rail, respecting which the jury found negligence, was the proximate cause of the derailment and injury, as comprehended in the judgment of the court, the appellee was entitled to a judgment, irrespective of whether appellant was negligent or not negligent respecting the north rail, which appeared, as a fact, not to be the proximate cause of the injury.

A finding upon a special issue submitted to the jury becomes immaterial when other facts have the legal effect to eliminate the issue embodied in such finding. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672. Therefore, in the light of the finding by the court, as comprehended in his judgment, there was no such legal conflict in the findings of the jury as to warrant a reversal.

It is contended by the second assignment of error that the court erred in submitting certain matters in question 3 about which there was no dispute in the evidence. It is not believed that this worked any injury to appellant such as to warrant a reversal.

It is thought that there is evidence in the record to establish‘in favor of appellee the issue of negligence proximately causing the injury, in respect to the broken south rail in the track; and the fifth and seventh assignments of error are overruled. It appears that the end of the south rail broke entirely off, and to such an extent as to permit and allow a derailment. There was no hidden flaw or defect in this rail, as affirmatively appears; and its breaking is accounted for by the weight of the engine passing over it. The engine drawing the train was large and heavy; and from the fact that the broken part was found hanging in the trucks of the chair car the inference was permissible that the rail was not sufficiently spiked to the ties, which were shown to be new ties laid on a well ballasted roadbed, to hold it as nearly as possible in place if a break in the rail should occur. It is not shown that it was a new rail, nor that its weakness could not have been as well ascertained before the break as after.

The judgment is affirmed.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For otter cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    MEMPHIS COTTON OIL CO. et al. v. GIST.
    (No. 842.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1915.)
    1. Pleading <&wkey;245 — Amendments—Time to Amend.
    Where, in foreclosure proceedings, a mis-description of the note sued on, as to date and amount is corrected by trial amendment, an assignment of error will not lie thereto where defendants were not misled or surprised; the record showing that they were only expected to defend against one note and mortgage.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 635, 653-675; Dec. Dig. &wkey;245.]
    2. Continuance <&wkey;30 — Grounds—Surprise —Amendment oe Petition.
    Where defendants in a foreclosure suit were not surprised or misled by a trial amendment to the petition, correcting a misdescription of the note as to date and amount, it was not error to refuse to permit them to withdraw their announcement of ready for trial .and to grant a continuance.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. <&wkey;>30.]
    3. Banks and Banking <s&wkey;262 — Powek of Cashier — Transfer of Securities.
    The cashier of a national bank has power to transfer notes and bills receivable, payable to the bank, without special authority from the directors.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1001-1006; Dec. Dig. <&wkey;>262.]
    4. Reformation of Instruments &wkey;>19 — Mistake — Evidence.
    In foreclosure proceedings, it was not error to refuse to correct a deed of trust running to defendants as to a misdescription, where it does not appear that a mutual mistake as to such description had been made.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. <&wkey;>19.]
    5. Mortgages &wkey;?274 — Rights of Subsequent Purchaser — Improvements.
    Purchasers of land under a deed of trust, who placed improvements in good faith upon the property with a belief in the sufficiency of the title, which they deraigned through the mortgagor, cannot recover, as against a prior mortgagee, the value of such improvements.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 718-724, 728; Dec. Dig. &wkey;274.]
    Appeal from District Court, Hall County; J. A. Nabors, Judge.
    Action by John M. Gist against the Memphis Cotton Oil Company and others, upon a note and mortgage. Judgment for plaintiff, and defendants appeal.
    Affirmed.

      Arnold & Taylor, of Henrietta, and Presler & Thorne, of Memphis, for appellants. Jos. H. Aynesworth, of Childress, and Moss & Leak and H. D. Spencer, all of Memphis, for appellee.
   HENDRICKS, J.

In 1906 John M. Gist, the owner of property in the town of Eli, Hall county, Tex., conveyed five acres of land to Fred L. and A. M. Willingham, in consideration that the latter would build, equip, and operate a gin at that place. This property was a part of section 55, block No. 18, II. & G. N. Ry. Co. survey, and the location began at a point 106 varas south of the northwest corner of said section No. 55; thence east 106 varas for corner; thence south 228 varas for corner; thence west 106 varas for the southwest corner of the tract; thence north with section line 228 varas to the place of beginning. That same year Wil-lingham Bros, executed a deed of trust to the Continental Gin Company of Dallas, Tex., to secure certain indebtedness for gin machinery. The land described in this deed of trust began at a point 196 varas south of the northwest corner of section No. 55, block 18, H. & G. N. Ry. Co.; thence east 106 varas for corner; thence south 228 varas for corner ; thence west 106 varas for the southwest corner of the tract; thence north with section line 228 varas to the place of beginning. In 1908 John M. Gist, the appellee herein, for the purpose of assisting Willingham Bros, the proprietors of the gin, in continuing the operation of the ginning business, became their surety on a note made to the Hall County National Bank for about $3,000, and thereafter, on account of the failure of Willingham Bros, to pay said note, Gist paid the amount due upon the note to the bank, and received a transfer of said note and the mortgage securing the same. This deed of trust to the bank embraced the correct field notes identifying'the land, beginning at a point 106 varas south of the northwest corner of section 55, while the deed of trust to the Gin Company, prior in time to the bank’s, called, as stated, for the beginning point at 196 varas of the northwest corner of said section, 90 varas south from the point of the other beginning call. On account of the failure of the Wil-lingham Bros, to pay the Continental Gin Company, the Memphis Cotton Oil Company, likewise interested in the gin’s operations, for the purpose of assisting the Willinghams, paid the Gin Company the amount of the debt, receiving the transfer of the debt and mortgage to it. Willingham Bros, failed to pay the Memphis Cotton Oil Company the amount of the last mortgage mentioned, and a substitute trustee, appointed by said Oil Company, purported to sell the property embraced therein, and the Oil Company became the purchaser at said sale; and thereafter W. A. Bennett and one Shepperd became the ostensible owners of the property embraced in said instrument. This suit was instituted by Gist upon his mortgage and note executed in 1908, against the Oil Company, Willingham Bros., Shepperd, and Bennett. The defendants, Oil Company, Shepperd, and Bennett, pleaded a mutual mistake as to the beginning calll of 196 varas south of the northwest corner of section 55, asking for a reformation of the instrument, and Shepperd and Bennett especially claimed valuable improvements upon the property in good faith; and the court found, at the request of said defendants, the value of the improvements on that part of the land found subject to plaintiff’s lien, and placed there by said defendants, to be $1,200. The trial court without the assistance of a jury, rendered judgment in favor of Gist for the amount of the debt and a foreclosure against all,of the appellants for his mortgage lien, securing said debt, and rejected the plea of improvements in good faith.

Appellants’ first assignment of error is overruled. The misdescription of the note as to the date and as to amount, was met by trial amendment. The record shows that the appellants were only expected to defend against one note and mortgage, and could not have been misled or surprised.

“If the misdescription will tend to mislead and surprise the adverse party, it should be noticed by the court; if not, it may be disregarded.” National Bank v. Stephenson, 82 Tex. 436, 18 S. W. 583, and cases cited.

For the same reason, we think the trial court properly refused to permit the defendants to withdraw their announcement of ready for trial and continue the case, raised under their second assignment.

The appellants’ third assignment challenges the action of the court in permitting the plaintiff to establish by parol testimony the note transferred by the Hall County National Bank, “for the reason that the cashier of the National Bank had no power or authority to sell or transfer notes and bills receivable, payable to said bank, and by such actions transcended his power,” and for the further reason that within the scope of his authority the cashier could not transfer the paper of the bank without a resolution of the board of directors, which is not shown to have been made. The Supreme Court of the United States said, in the case of Merchants’ National Bank v. State National Bank, 10 Wall. 650, 19 L. Ed. 1008:

“The cashier is the executive officer, through whom the whole financial operations of the bank are conducted. He receives and pays out its moneys, collects and pays its debts, and receives and transfers its commercial securities.”

See, also, Rosenberg v. First National Bank, 27 S. W. 897; Arnold v. Swenson, 44 S. W. 870; Morse on Banks and Banking, § 158, under Indorsement.

The fourth assignment of error complains that the court should have corrected the Continental Gin Company’s deed of trust, to make the beginning call read 106 varas in lieu of 196. The statement made under this assignment, for the purpose of sustaining its tenability, is bare of any fact, or equity pointing to a mutual mistake; nor does it afford, by inference or otherwise, any explanation of the error, the circumstances of the execution of the instrument, or whether the mistake was mutual or unilateral. It may be surmised, on account of the circumstances ot the ownership of the five acres, the furnishing of the gin machinery by the Continental Gin Company, and its location upon the property, that a mistake was made, but whether intentional or mutual, or unilateral, is not shown. San Antonio National Bank v. McLane, 96 Tex. 48-55, 70 S. W. 201, and cases cited. We understood appellants’ counsel in the oral argument to admit the insufficiency of this record for the purpose of correcting the alleged mistake. The trial court, in foreclosing plaintiff’s mortgage, only foreclosed the same to the extent of 90 varas, instead of 106 varas, from the northwest corner of section 55, for the reason, we presume, that, the Continental Gin Company’s mortgage being, prior in time and calling for the land 196 varas from said corner, the later covered 16 varas of the land embraced in appellee’s mortgage.

The fifth assignment of error is seriously insisted upon, complaining of the court’s action in refusing the value of the improvements found by the court, made in good faith, on that part of the land adjudged to appellee, Gist. The statute, providing for compensation ffor -improvements made in good faith under claim of title, of course cannot be invoked upon the question. The right to recover the value of improvements placed upon another’s land in good faith may exist, however, under principles of equity independent of any statute. Scott v. Mather, 14 Tex. 235; Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205; Van Zandt v. Brantley, 16 Tex. Civ. App. 420, 42 S. W. 617; Patrick v. Roach, 21 Tex. 251; Wood v. Cahill, 21 Tex. Civ. App. 40, 50 S. W. 1071.

This cause stands upon the record with the appellee as a prior mortgagee; the insufficiency of the record in regard to mistake and the lack of equity for reformation against Gist resolves the ’status in that manner. We can find no authority whatever, and we are cited to none, that purchasers placing improvements in good faith upon property, with a belief in the sufficiency of the title, and deraigning the same through the mortgagor, can prevail against a mortgagee in equity for the value of such improvements. Jones on Mortgages, vol. 1, § 147 (6th Ed.) says:

“A lien of a mortgage extends to all improvements and repairs subsequently made upon the mortgaged premises, whether made by the mortgagor or by a purchaser from him, without equal notice of the existence of the mortgage.”

The Supreme Court of North Carolina said, in the case of Wharton v. Moore, 84 N. C. 479, 37 Am. Rep. 627:

“The land in the unimproved state when Carter received his mortgage was worth only $250; and improvements were put on it by Moore and Adams .after the conveyance to them, which enhanced its value at least $1,000. * * * ” And the latter insists “that by reason of their improvements they have a right to so much of the proceeds as the lot has been enhanced thereby. This right to betterments is a doctrine that has gradually grown up in the practice of the courts of equity. * * * But it may now be considered as an established principle of equity that whenever a plaintiff seeks the aid of a court of equity to enforce his title against an innocent person, who has made improvements on land, without notice of a superior title, believing himself to be the absolute owner, aid will be given to him, only upon the terms that he shall make due compensation to such innocent person to the extent of the enhanced value of the premises, by reason of the meliora-tions or improvements, upon the principle that he who seeks equity must do • equity. * * * But we have been unable to find any case in which the doctrine has been held to apply to mortgages.”

The North Carolina Supreme Court said that the statute of that state, providing a remedy for the recovery of betterments for innocent defendants, in expressly declaring that its provisions shall not apply to a suit brought by a mortgagee against a mortgagor, that the Legislature was simply 're-enacting the generally admitted principle that the right to betterments is not conceded to mortgagors or parties claiming under them, and that court further quotes Washburn on Real Property, vol. 2:

“If the mortgagor, or any one standing in his place, enhances the value of the premises by improvements, they become additional security for the debt, and he can only claim the surplus, if any, upon such sale being made .after satisfying the debt.”

To the same effect are Childs v. Dolan, 5 Allen (Mass.) 319, and Martin v. Beatty, 54 Ill. 100; Rice v. Dewey, 54 Barb. (N. Y.) 455, which later case holds—

“improvements that constitute a part of the realty, irrespective of the question by whom made, are * * * subject to the lien of the mortgage.”

We are unable to work out the proffered equity in this case upon any satisfactory basis,, and there is no assignment, or position assumed in this court, asking that the excess, if any, resultant from the proceeds of the sale, be granted to appellants. We feel impelled to affirm the judgment of the lower court; and it is so ordered.
      @^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    J. B. FARTHING LUMBER CO. v. ILLIG et ux.
    (No. 483.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 4, 1915.)
    1. Appeal and Error &wkey;?569 — Statement oe Facts — Preparation.
    Under the statute, appellant without consent of appellee may, without the reporter’s transcript, prepare a statement of facts on appeal, and Rave it approved by the judge.
    [Ed. Note. — For other cases, see Appeal .and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. <®=> 569.]
    2. Appeal and Ekbob <@=»758 — Assignments OP EBKOB — GROUNDS OF MOTION FOB NEW Trial — Beiefs.
    Under the rules for briefing, Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1612), making grounds assigned in a motion for new trial assignments of error, the assignments in the brief must be true copies of such grounds, and not reconstructions thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. <°x^758.]
    3. Appeal and Errok <®=»758 — Assignments of Error — Grounds of Motion for New Trial — Reference .
    Where assignments of error are grounds assigned in a motion for new trial, they, as^ given in the brief, must, as' required by Rule 25 (142 S. W. xii), refer to the portion of the motion in which they are complained of.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. <§^>758J
    4. Appeal and Error <®=>499 — Bill of Exceptions — Refusal of Charges — Submission to Counsel.
    Bills of exceptions to refusal of requested special charges must disclose that such charges were submitted to opposing counsel for examination and objection, as required by Rev. ¡St. art. 1973, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1973).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=» 499.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by R. C. Illig and wife against the J. B. Farthing Lumber Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Jno. C. Williams, of Houston, for appellant. Fisher, Campbell & Amerman, of Houston, for appellees.
   WALTHALL, J.

Appellees, R. C. Illig and wife, plaintiffs below, sued the appellant, J. B. Farthing Lumber Company, in the county court at law of Harris county, Tex., for a balance which they alleged was due them on a contract with W. W. Brunson for the construction of their residence in Houston, at the contract price of ?3,750. Appellees allege that to build the house they borrowed $4,200 from G. W. Burkitt; that, with the consent of appellees and Brunson, Burkitt paid over to appellant the sum of $4,069, for which appellant agreed on behalf of appel-lees and Burkitt to have the house built by Brunson and to pay off and become responsible for all bills for labor and material furnished in the construction of the house and to return any balance not used by it to ap-pellees; that appellee R. C. Illig is a paper hanger and painter, and undertook to do that part of the work for which he was to be paid out of the contract price by appellant; that he was paid for his work except a balance of $79.50; that $275 should have been paid out of the contract price for tin work, which was not done; and that the owner of the claim for tin work was threatening to file a mechanic’s lien; that there remains an unused balance in the hands of appellant of the $4,069, the sum of $279, which appellant had converted to its own use.

Appellant specially denied that the contract price for the house was $3,750, and alleged that the contract price was $4,860 and evidenced by 73 notes, 71 of which notes for the sum of $40 each, one note for $20, one for $2,000, all payable to the order of Brun-son, all bearing interest and secured by a mortgage, mechanic’s and materialman’s lien; that Brunson sold the notes to Burkitt for $4,200, upon agreement to pay Brunson $2,-100 upon an order from appellee R. O. Illig and $2,100 on completion of building and acceptance by appellee; that Brunson with said acceptance and contract, and with the knowledge and acquiescence of appellees, represented to appellant that he was to receive cash for said notes to enable him to build said house for the sum of $4,200 less $131 brokerage; that Brunson was the owner of said notes and entitled to $4,069 with which to build said house; that appellees knew that Brunson had the notes in his possession and the agreement of Burkitt to buy the notes at said price and the said representations then being made by Brunson with reference to them. Appellant alleged that appellees, by reason of said facts, were estopped from denying that Brunson was the owner of said notes and entitled to the proceeds of their sale; that Brunson agreed with aqipellant that appellant, for the net proceeds of the sale of said notes, should furnish to Brunson certain lumber and material for the construction of said house and assigned to appellant the proceeds of the said notes, upon acceptance by Burkitt; that thereupon appellant furnished to Brunson material to build said house at an agreed price, and advanced to Brunson, for labor performed, out of said funds, stating the items. Appellant denied the statements of appellees contained in the several paragraphs of their petition.

Appellees, by supplemental petition, admitted the execution of the notes described in the answer, and alleged that the aggregate amount stated embraced and included the accumulated interest on the deferred payments; denied any knowledge of the alleged dealings between Branson and appellant; denied that they ever consented to any money, the proceeds of said notes being paid by Burkitt to appellant, except upon the express understanding that appellant would see that the said house was completed and all labor and material claims paid and all money accounted for as stated, and that the acceptance by Burkitt agreeing to pay all labor claims, as stated. Appellees denied the several matters alleged in the answer, except such as were admitted.

At tlie request of appellees, the case was submitted to the jury on special issues, and the jury found as follows: (1) The contract price agreed upon between R. O. Illig and Brunson for the construction of the house was $3,759. (2) The item of painting and paper hanging was included in the contract price. (3) The item of electric fixtures was included in the contract price. (4) The sum of $425 was the allowance in the contract price for painting and paper hanging. (5) The amount agreed upon between Brunson and Illig for' doing the painting and paper hanging was $425. (6) The amount Illig had received for doing the painting and paper hanging was $370. (7) That there were no extras placed in the house during its construction not covered by the contract price.

The appellant presented special issues to the court to be submitted to the jury, all of which were refused by the court.

The court entered its judgment in favor of appellees in the aggregate sum of $373.50, and that appellant take nothing upon any claim or set-off. The appellant presented its motion to set aside the judgment rendered and grant it a new trial, one of the grounds being that the uncontradicted evidence showed that $40 extras had been placed upon said house and that said amount was included in the judgment entered. The appellees filed a remittitur of said item of $40, and the motion for new trial was overruled. Appellant gave notice of and perfected its appeal.

Appellees have filed in this court a motion to strike out the statement of facts and bills of exceptions filed in this court on the ground: That the statement of facts filed was not agreed to by them, and is filed by them as a statement of facts prepared by the judge of the trial court after the parties had failed to agree. That no question and answer transcript was filed in the trial court in time and in the manner required by law, in that no question and answer transcript was in fact filed by the stenographer as required by law, but that a question and answer transcript was prepared in duplicate by the stenographer and turned over to counsel for appellant. That, exactly 90 days after the adjournment of the term at which the cause was tried, the attorney for appellant filed with the clerk of the court one copy of a question and answer transcript, and upon the next day filed a duplicate thereof, the record showing that the first copy filed by appellant’s attorney at the same time the trial judge filed his statement of facts, and that the duplicate question and answer transcript was not filed by appellant’s attorney until the day after the trial court had filed his statement of facts, the parties not agreeing. The proposition of appellees is that the circumstances and times under which the said question and answer transcript was filed, and with reference to the time tire trial judge filed his statement of facts, does not meet the requirements of ar-tides 1924 and 2070, Revised Statutes of 1911.

There is some conflict in the eases reported on tbe construction to be placed on the above articles of the statute. Counsel presenting the motion refers us to the cases of Buffalo Bayou Co. v. Lorentz, 170 S. W. 1052. On somewhat similar conditions to the instant case, the Galveston court, on motion in the first case above, struck out the statement of facts and overruled a motion to reinstate. The case was thereafter transferred to the San Antonio court. That court overruled a motion to reinstate the statements of facts (175 S. W. 736), but later, on its own motion and for reasons given, set aside its former order and reinstated the statement (177 S. W. 1183). In passing on the motion, we need not do more than refer to the case of Camden Fire Ins. Ass’n v. M., K. & T. Ry. Co., 175 S. W. 816, and Ft. Worth Pub. Co. v. Armstrong, 175 S. W. 1113. The reasoning of the courts in the last two cases construing the articles of the statutes referred to meets our approval. The motion is overruled.

Appellees move to strike out appellant’s three assignments of error and the propositions thereunder as. appearing in appellant’s brief, because appellant’s brief, in presenting said assignments, does not conform to .the rules governing the preparation of causes for submission. The brief makes no pretense to copy the verbiage of the motion for new trial, made the basis of the first assignment of error; nor does it refer to that portion of the motion for new trial in which the errors are complained of, as required by the latter part of Rule 25 (142 S. W. xii).

Article 1612, Revised Statutes, as amended by chapter 136, Thirty-Third Legislature, makes the grounds assigned in the motion for new trial to constitute the assignments of error. The Courts of Civil Appeals have uniformly held that the rules for briefing cases contemplate that the assignments in the brief shall be true copies of the corresponding paragraphs of the motion for new trial, and not rewritten or reconstructed assignments or grounds. Ruth v. Cobe, 165 S. W. 580; Coons v. Lain, 168 S. W. 981; Overton v. Colored Knights of Pythias, 163 S. W. 1053; Hayes v. Groesbeck, 146 S. W. 327, Smith v. Bogle, 165 S. W. 35; Dees v. Thompson, 166 S. W. 56.

The assignment, as copied in the brief, complains of error of the trial court “in not submitting to the jury for its determination the issue of estoppel as requested by appellant in special issues Nos. 5, 6, and 7.” The subject-matter of these proposed special issues requested covers 28 pages of the transcript, and by this brief assignment this court is asked to go through the transcript to discover whether the special charges should have been given. An inspection of bills of exception Nos. 1, 2, and 3, which deal with this assignment, fails to disclose ■that the requested special charges were submitted to opposing counsel for examination and objection, as required by article 1973, Rev. Stat., as amended by chapter 59, Gen’l Laws, Thirty-Third Legislature. Floegge v. Meyer, 172 S. W. 195; I. & G. N. Ry. Co. v. Jones, 175 S. W. 490; A., T. & S. F. Ry. Co. v. Hargrave, 177 S. W. 509.

For reasons stated, the first assignment of error cannot be considered.

The second and third assignments in the brief are not copies of the corresponding grounds of error in the motion for new trial. The assignments in the brief do not refer to that portion of the motion for a new trial in which the errors are complained of as required by Rule 25. For reasons given in passing upon the first assignment, the second and third assignments cannot be considered.

We have carefully gone over the entire case and feel assured that no other judgment could have been entered. Finding no error in law apparent on the face of the record, the case is affirmed.
      (g^mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    CURRIE v. GLASSCOCK COUNTY et al.
    (No. 500.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 4, 1915.)
    1. Highways @=64^-Enjoining Opening oe Road — Remedy at Law.
    Injunction is the proper remedy where the commissioners’ court is proceeding without authority to open a first-class 60-foot road, Vernon’s Say les’ Ann. Civ. St. 1914, art. 6806, giving appeal only as to adequacy of damages.
    [Ed. Note.. — For other cases, see Highways, Cent. Dig. §§ 165, 334; Dec. Dig. @=64.]
    2. Highways @=64 — Laying Out — Commissioners’ Court — Injunction.
    If the commissioners’ court in laying out a first-class 60-foot road is acting in substantial compliance with Rev. St. 1911, art. 6863, it cannot be enjoined, though the road would irreparably injure one’s lands.
    [Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 165, 334; Dec. Dig. @=64.]
    3. Highways @=64 — Layin g Out — Commissioners’ Court — Injunction.
    The commissioners’ court can be enjoined if in laying out a 60-foot road under Rev. St. 1911, art. 6863, it has transcended its authority or grossly abused its discretion.
    [Ed. Note. — For other cases, sSe Highways, Cent. Dig. §§ 165, 334; Dec. Dig. @=64.]
    4. Highways @=64^Laying Out — Commissioners’ Court — Injunction—Petition.
    The petition for injunction, alleging the commissioners’ court in laying out a first-class 60-foot road has not laid it out in the most direct and practical route towards the county seat of the adjoining county, as required by Rev. St. 1911, art. 6863, but fraudulently, several miles to one side of such route, through plaintiff’s lands, states grounds for relief.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 165, 334; Dec. Dig. @=64.]
    Appeal from District Court, Glasscock County; W. W. Beall, Judge.
    Action by Lucy Currie, executrix against Glasscock County and others. From a judgment of dismissal, plaintiff appeals.
    Reversed and remanded.
    James T. Brooks, of Big Springs, and Royall G. Smith, of Colorado, Tex., for appellant. Morrison & Morrison, of Big Springs, for appellees.
   HARPER, C. J.

Appellant, by petition duly verified, asked that the writ of injunction issue against Glasscock county, its county judge, and the members of the commissioners’ court, restraining them from- opening, laying out, and establishing a first-class 60-foot public road through ^certain inclosed lands. The court sustained general and special exceptions to the petition. Appellant refused to amend, and thereupon the suit was dismissed, from which judgment this appeal is perfected.

The allegations of appellant’s petition essential to the issues presented here are as follows, to wit: That plaintiff, for herself and as executrix: and trustee of the estate of James Currie, being minor children, filed this suit. Then alleged the ownership of the lands and described them; that same were fenced; that the said commissioners’ court on October 13th made and entered an order appointing a jury of view to lay out a first-class road from the town of Garden City, the county seat of Glasscock county, to the line of said county in the direction of Sterling City, the county seat of Sterling county, Tex. Then alleged: That the said order provided that said road should be laid out 60 feet wide, to the greatest advantage to the public from said Garden Ctty, the county seat of Glasscock county on the most direct and practicable route to the east line of said county, so that same can be traced with certainty; that said order was made and entered under the authority supposed to be conferred by article 6863, R. G. 1911. That said jury thereafter undertook to lay out such road, returned its report into the court, same was approved by the court, and said road so laid out was by order officially declared to be a public highway. That said road so laid out is not the most direct and practicable route to the eastern line of Glass-cock county in the direction of Sterling City, and was known by the jury not to be so, as well as by the commissioners’ court, when it approved the said report. That in truth and in fact the most direct and practicable route from Garden City to the eastern line of Glasscock county in the direction of Sterling City is practically due east, and that such road could have been laid out with very slight, if any, variation from such line while said road as so laid out runs practically southeast and is some five or six miles south of the point where the most direct and practicable route for such road should intersect the eastern boundary line of Glass-cock county, Tex., and an equal distance, south of the most direct and practicable route from said intersection with the east boundary line of Glasscock county to Sterling City. That there are no obstacles that prevent the running of such road from Garden City to said eastern boundary line of Glasscock county, and that a first-class road could be run along said route at a much less expense to put and keep the same in good condition and repair than would be the cost of condemnation of lands required by the running of the road as it does according to said report That the way said road runs according to the report of said jury of view as adopted by the commissioners’ court as aforesaid, plaintiff’s lands and also the lands owned and held by herself for herself and her minor children as aforesaid -are greatly and materially damaged, and she and they will be subjected to a heavy expense in fencing and drilling wells and equipping the same with windmills and in taking to make their lands usable, and in addition to the value of the lands actually lost by being occupied by said road that the remaining lands will by reason of being separated and segregated, be greatly reduced. That, furthermore, said road as so run and declared to be a public highway was not surveyed nor defined with any certainty whatever, and neither said jury of view or said commissioners’ court know or have ever known whether or not the lands described in said field notes, or alleged field notes, are those embraced in the road as brushed out, and that it is not known where any lines or corners of the surveys touched, crossed, and affected. That said road was simply laid out by guesswork and its whereabouts on the ground are uncertain and indefinite.

Plaintiff further specifically alleges: That said jury of view which so laid out said road made no effort whatever to lay same out along the most direct and practicable route to the said eastern line of said county; on the other hand, said body fraudulently and with the deliberate intent of running said road through the land of plaintiff and her children, when they well knew that such route was not the most direct and practicable route, but that such route would run practically due east, arbitrarily laid out said road as they did to make it connect with a prior road in 'Sterling county, Tex., which was not laid out in the most direct and practicable route to the western boundary line of Sterling county and in the direction of the county seat of said Glasscock county, but had been arbitrarily and fraudulently for the purpose of missing certain favored pastures diverted in a southwesterly direction when it should have run practically due west. That such running of said road in Glasscock county constitutes the grossest sort of abuse of the powers conferred upon said jury of view, and, instead of being in compliance with, was in violation, not only of the order of the court appointing them, but also with both the letter and spirit of the law.

And plaintiff furthermore says: That the act of the commissioners’ court of Glasscock county in approving the report of said jury of view, and its further act in ignoring the protest of this plaintiff, was a gross abuse of the powers conferred upon it of determining what was the most direct and practicable route to the eastern line of Glasscock county, and was an intentional fraud upon the rights of this plaintiff and her said minor children designed to give semblance of compliance with the law, when it was well-known to said commissioners’ court that said road as so laid out was nowhere near the most direct and practicable route to the said east line of Glasscock county. That the approval of said report was intended to be effective as a finding that said road as described therein was the most direct and practicable route, and thereby conclude the plaintiff and her said minor children, and was knowingly made against all the evidence and physical facts, and was in truth and in fact made without reference to whether said road was such most direct and practicable route. That, by appealing from the order of said commissioners’ court approving the awards of damages as made by the jury appointed to assess them, plaintiff could not get a review'of whether or not the commissioners’ court has abused the discretion given it, and that she has absolutely no remedy at law for this great injustice. That she and her children have an absolute constitutional right to keep and use their property as they see fit, and the commissioners’ court of Glass-cock county has no legal right to exercise the right of eminent domain upon the same and take it or any part of it for public use in the shape of a 60-foot first-class road to the eastern county line in the direction of the county seat of Sterling county against their wishes unless same is the most direct and practicable route thereto, which it is not, nor did they acquire such right by fraudulent approval of the report of the jury of view and thereby arbitrarily, fraudulently, and against all the facts, determining that it was such most direct and practicable route. That, unless restrained, the defendants will proceed to open said road and work it, and thereby accomplish an irreparable injury to plaintiff-and her children, for which they have no adequate remedy at law.

The first question is: Is the alleged action of the commissioners’ court subject to review by the district court, or, as contended by appellee, is it simply an act within the discretionary powers of the commissioners’ court, therefore not subject to be reviewed?

If the district court has jurisdiction under the statutes, or under its general equitable powers, appellant has adopted the proper remedy, injunction; for there is no provision in the statutes for an appeal except in the matter of the adequacy of the damages resulting from taking the land required for a 60-foot first-class road. Article 6S66, Yemon’s Sayles’ Statutes. The district court has no authority to inquire into the question of the amount of damages to be paid for the land taken in this proceeding. Schlinke v. De Witt County, 145 S. W. 664.

But appellant’s cause of action, if she has one, is based upon the proposition that the appellees have undertaken to do that for which there is no authority of law, in that, the only statute giving the commissioners’ court authority to lay out and establish the class of road attempted in this instance is contained in article 6883, R. S. 1911, which reads as follows:

“The commissioners’ courts of the several counties shall see that at least one first-class road of the width prescribed by law is laid out and opened from the county seats of their respective counties on the most direct and practicable route to the lines of their county in the direction of the county seats of each adjacent county, where no part of another county intervenes between the county seats of such counties ; or, if a border county, to meet the nearest road to the border; and, if any adjacent county is not organized, then in the direction of the center of such county. And the commissioners’ court of a county to which one or more unorganized counties are attached for judicial purposes shall lay out and open at least two first-class roads sixty feet in width through the extent of each such unorganized county to intersect at right angles as nearly as may be at the center of the county, and to meet at the county lines similar roads of the adjacent counties. In counties now having public roads substantially complying with the preceding requirement as to course, the court shall be required only to give such roads the width of sixty feet and clear them of obstructions; such roads, however, shall not be laid out across orchards, yards, lots or graveyards, or within one hundred feet of a residence, without the consent of the owner; provided, that this law shall not apply to counties where there already exists a sufficiency of public roads.”

If the commissioners’ court in their attempt to open the road in question is acting in substantial compliance with this statute, the courts will not enjoin their action; but, if they are threatening to do that which transcends the authority given thereon, then the appellant has his remedy by injunction provided that by his allegations and proof it shall appear either that she is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to her, or in ease irreparable injury to real estate is threatened, irrespective of any legal remedy at law. Article 4643, R. S. 1911; Bourgeois v. Mills, 60 Tex. 77. These are questions of fact to be alleged and proved, and, since the trial court sustained the demurrers to plaintiff’s petition and dismissed his suit, the only" further question before us is: Does appellant’s petition contain such allegations of fact that, if proven, would entitle her to the relief prayed for?

The petition charges that the jury of view has laid out the road in question fraudulently, capriciously, and arbitrarily, along a route known to them, and the commissioners’ court, not to be the most direct and practicable route from the county seat of Glass-cock county to the county seat of Sterling county, but is between five and six miles south of such direct line; that the most direct line is practically due east; and that there are no obstacles in a direct route to require any deviation therefrom. Further alleged that the road declared to be a public highway by the commissioners’ court had not been surveyed nor defined with any certainty ; that therefore no person knows whether the lands described in the field notes are the same as those embraced in the road as brushed out or not; therefore it will be impossible, if she must submit to the road, to keep it within any defined boundary.

That such a road, as the one sought to be established, would be prejudicial to appellant and do irreparable injury to the lands described in the appellant’s petition, there is no doubt, in that, it would permanently disturb and disarrange a large body of land with its present arrangement of fences, etc.; and it is equally certain that to have a road laid out across such a body of land without being on and along the boundaries fixed for it, by the order of the court, would be void for uncertainty, therefore would be prejudicial or likely be so, for in the future, by an accurate survey, it might be determined that the lands covered by the road as now brushed out was not in fact the lands condemned for the purpose, and again it may leave the question of the proper amount of damages appellant is entitled to in doubt.

But, as we view the law, notwithstanding the fact that to lay out the road as proposed would be prejudicial to the appellant or would work irreparable injury, if the commissioners’ court, having the statutory authority to lay out the road, was doing so in reasonable compliance with the statute, the only right appellant is given is reasonable and proper compensation for the lands taken for the road so established. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 479, 44 S. W. 476. But as to whether the court in this instance is exceeding its authority under the statute, as to the particular place the road is to be located, and the regularity of its acts otherwise as charged, are questions of law and fact sufficiently raised by plaintiff’s petition to require the court to hear the evidence and in person or by jury determine the fact.

It is well established by the decisions of our courts that the district courts, through their equitable jurisdiction, have the power to review and revise the exercise of the discretion vested in the commissioners’ courts, in cases of this kind, where it is shown that such courts have grossly abused the discretion vested in them. Porter v. Johnson, 140 S. W. 469; Bourgeois v. Mills, 60 Tex. 76; Schlinke v. De Witt County, 145 S. W. 660; Smith v. Ernest, 46 Tex. Civ. App. 247, 102 S. W. 129; Simkins on Equity, 483. The allegations of the petition bring this case within the rule announced by these authorities.

Until a final hearing, the appellant is entitled to her temporary writ enjoining the opening of the proposed road, and it is so ordered.

Reversed and remanded.
      other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    GRICE v. COOLEY, County Judge, et al.
    (No. 7411.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 30, 1915.)
    1. Guardian and Ward i <§=>162 — Commission of County Judge — When Payable.
    The commissions provided for by Rev. St. 1911, art. 3850, providing that there shall be allowed to the county judge a commission of one-half of 1 per cent, upon the actual cash receipts of each guardian, on the approval of the exhibits and final settlement of the account of such guardian, are payable on all cash receipts shown by any annual account of the guardian when such account .is approved by the judge to whom it is presented, rather than of approval of the guardian’s final account; the reference to the approval of the, guardian’s exhibits and final account being merely to fix the period of time when the county judge may tax his commissions. ' [Ed. Note. — For other cases, see Guardian and Ward, Cent.Dig. §§ 538, 539 ; Dec. Dig. ®=>162.]
    2. Guardian and Ward <@=3162 — Commission of County Judge — “Exhibits.”
    The word “exhibits,” as used in such statute, refers to annual accounts.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 538, 539; Dec. Dig. <@=3162.
    For other definitions, see Words and Phrases, First and Second Series, Exhibits.]
    Error from District Court, Kaufman County ; F. L. Hawkins, Judge.
    Action by Carrie S. Grice, guardian, against Honorable Thomas R. Bond, former County Judge, and James A. Cooley, County Judge, to retax certain costs. Judgments for defendants in the county court and district ■ court, and plaintiff brings error.
    Affirmed.
    W. Dorsey Brown, of Kaufman, for plaintiff in error. Jas. A. Cooley, of Kaufman, for defendants in error.
   RASBURY, J.

This proceeding as finally shaped was one commenced before Hon. A. H. 'Dashiel, special judge of the county court of Kaufman county, by Carrie S. Grice, guardian, against 1-Ion. Thomas R. Bond, former county judge, and Hon. James A. Cooley, county judge, to retax certain costs allowed them as such officers. There was a trial and judgment in the county court, from which the guardian appealed to the district court, where there was also trial and judgment, from which the guardian has appealed to' this court; the terms of the judgment being unimportant, since the issues to be determined by us are agreed upon.

The issues of fact were all admitted in the court below, and the case, as indicated, is before us upon agreed issues, which are stated to be “to secure construction by the courts of article 3850, Revised Statutes 1911, in order that the guardian may know from judicial determination whether commissions of one-half of 1 per cent, are properly chargeable on actual cash receipts as shpwn by. annual accounts of such guardian, or whether the county judge sitting and making the order approving the final settlement of the account of such guardian is entitled to such commissions upon all actual cash received during the pendency of such guardianship.” The issue under the agreed statement of the parties, simply stated, is: When are the commissions provided for by article 3850 payable? It is the contention of appellant that they are not payable until the guardian’s final account is approved. Appellees contend that they are payable upon all cash receipts shown by any annual account of the guardian, when such account is approved by the judge to whom it is presented. Omitting formalities, the article provides that the county judge, in addition to other specified fees, shall “be allowed * * * a commission of one-half of 1 per cent, upon the actual cash receipts of each * * * guardian, upon the approval of the exhibits and the final settlement of the account of such * * * guardian,” provided only one such charge shall be made. Proceeding on the theory that the Legislature, when it enacted that such fees should be paid “upon the approval of the .exhibits and the final settlement of the account” of the guardian, intended that full force and effect should be given to both provisions, we conclude that such commissions may be payable upon approval of the annual account or upon approval of the final account, depending upon when the guardian received the money upon which the commission is sought to be collected. For illustration, if, upon presentation of an annual account, it discloses that cash has been received by the guardian prior to such presentation and subsequent to any last annual account, such guardian would be entitled to the specified commissions upon the approval of the account so presented. On the other hand, if it appears from the guardian’s final account that since his last annual account further cash has been received, he would be entitled to his commission thereon upon the approval of such final account. The reference to the approval of the guardian’s exhibits and the approval of his final account we regard as merely fixing the period or time when the county judge may tax his commissions. By article 4186, R. S. 1911, guardians are required to present an annual account under' oath showing, among other things, “a complete account of receipts and disbursements since the last annual account.” Upon presentation of such annual account, it is by subsequent provisions of tbe statutes made tbe duty of tbe then presiding county judge to conduct a bearing tbereon, and, if be is satisfied tbat tbe account is correct, it is bis duty to approve same. Having made it tbe duty of tbe county judge to approve sueb accounts, and having allowed a fee of one-balf of 1 per cent, upon tbe “actual cash receipts” shown thereby, it surely follows, it seems to us, tbat the commissions are payable upon such approval, for the reason tbat they were clearly intended for the benefit of tbe officer performing tbe duty, and, having been so intended, it was never contemplated tbat be should forego bis compensation until final settlement of tbe estate, particularly when final settlement might not come until after tbe lapse of many years and tbe possible death of tbe officer. We do not, as indicated, think tbe reference to final settlement at all meaningless. It is very probable that in many guardianship proceedings cash would be received by tbe guardian in tbe period intervening between bis last annual account and tbe final account. If such cash was received, the county judge who beard and approved such final account would be entitled to tbe commission thereon, and tbe sole purpose, in our opinion, for any reference to final settlement, was to secure the officer in the payment of tbe fees accruing at tbat time and which could not be done under tbe provision covering annual accounts.

We have treated tbe word “exhibits,” in article 3850, as referring to annual accounts. While it may not be said tbat exhibit, either literally or in legal contemplation, means account, it is well known tbat accounts are often attached to pleadings as exhibits. Such custom, taken in connection with the reference in tbe same article to cash receipts required to be shown in annual accounts by article 4186, R. S. 1911, and tbe further fact that the annual accounts required of other fiduciaries are referred to as annual exhibits (articles 3241, 3242, R. S. 1911), are in our opinion sufficient basis for bolding tbat annual accounts were intended.

The judgment is affirmed.
      <@s3For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    CARROLL et al. v. EVANSVILLE BREWING ASS’N.
    (No. 7415.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 23, 1915.)
    1. Appeal anb Error <§=^842 — Review—Error Apparent on Face oe Recorb.
    An erroneous construction of the law applicable to tbe facts found is error apparent on tbe face of tbe record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. <§=> 842.]
    2. Monopolies ®^17 — What Constitute.
    A^ernon’s Sayles’ Ann. C'iv. St. 1914, art. 7798, declares that it shall constitute a conspiracy in restraint of trade where any two or more persons, firms, or associations engaged in buying- or selling any article of merchandise, enter into an agreement to refuse to buy from or sell to any other person, and article 7799 declares that all trusts are prohibited. Article 7807 declares that any contract or agreement in violation of the law shall be absolutely void. Plaintiff entered into a contract with defendant whereby defendant agreed to purchase of plaintiff exclusively all beers which he might require in his business and sale. Held, that the contract was in violation of the monopoly statutes, and an action for moneys due thereunder could not be maintained.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. @=>17.]
    Appeal from Freestone County Court; G. W. Fryer, Judge.
    Action by tbe Evansville Brewing Association against V. S. Carroll and others. Erom a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    A. B. Geppert, of Teague, for appellants. .
   TALBOT, J.

Appellee, a private corporation incorporated under tbe laws of tbe state Indiana, with its principal office and place of business in tbe city of Evansville, iu said state, sued tbe appellant V. S. Carroll, as principal, and the other appellants, L. H. Powell and J. J. Beasley, as sureties, to recover a balance of $698.75, due by tbe principal to appellee for beer sold, under a contract in writing bearing date June 1, 1914. This contract, after reciting tbat tbe appellant, Carroll, has contracted with tbe appellee to purchase all of the beers, both in wood and in bottles which he may require in bis business and sell in Teague, Tex., and surrounding territory, at certain prices named, and tbat appellee would allow tbe said appellant a certain amount for empty beer bottles returned, stipulates tbat tbe appellant Carroll agrees in consideration of tbe covenants and agreements on tbe part of tbe appellee, to handle and sell the products of appellee exclusively, and not to sell any beer either in bottles or draught manufactured by any person, firm, or corporation other than appel-lee, and to pay appellee for tbe beer so purchased under said written contract upon demand. Said contract further provides tbat it shall be in force and effect for a term of one year from its date, and may be extended from year to year under tbe same terms and conditions, unless one of tbe parties shall give 30 days’ notice in writing to tbe other before tbe end of any one year of bis intention to terminate it; tbat tbe appellant Carroll shall pay all freight on beer and on empty casks and cooperage returned in carload lots, and also tbe difference on any empties returned in less than carload lots between the carload and the L. O. L. rate. Tbe said contract further stipulates tbat tbe appellant Carroll shall take good care of any property tbat may come into his possession belonging to tbe appellee, while in bis possession, and tbat in tbe event tbe said appellr lant fails to purchase the beer manufactured by the appellee exclusively or refuses to pay for the goods purchased under the contract oh demand or to perform any of the conditions on his part to be performed, the appel-lee shall have the right and privilege to immediately cancel and terminate the contract. At the time of the execution of said contract, the appellants Powell and' Beasley, as sureties, joined the appellant Y. S. Carroll in a bond or writing obligatory, in the sum of $2,000, whereby they jointly and severally guaranteed to appellee the faithful performance of said contract by the said Carroll. The petition alleges that the appellee is a private corporation duly incorporated under the laws of the state of Indiana with its principal office and place of business in the city of Evansville, state of Indiana. It alleges the terms of the contract made the basis of the suit and the execution of said bond guaranteeing its faithful! performance, making them exhibits. It also alleges that there is a balance of $698.75 due appellee for beer purchased under said contract and appellant Carroll’s failure and refusal to pay the same, but it does not allege that appel-lee had a permit to do business in Texas. The defendants answered by general demurrer, general denial and specially, among other thing's, that the contract set out in the appellee’s petition shows upon its face that it is in violation of our anti-trust statutes and therefore absolutely void. A trial was had without the intervention of a jury, and judgment rendered in favor of appellee for the amount sued for, and the appellants appealed.

The appellee has filed no brief in this court and the case is before us on brief of appellants. There is no statement of facts in the record, but the court, among other things, which, for the purposes of this opinion, we deem unnecessary to state, found, as shown by conclusions of fact filed at the request of appellants, that the contracts made the basis of the suit were executed by appellants and appellee, and that appellant Carroll therein agreed to purchase of the appellee “exclusively all beers which he should require in his business and sell in Teague, Tex., and surrounding country, at the price set out and agreed upon in said' contract; that on June 14, 1914, appellee sold and delivered to appellant Carroll certain beers of the cash value of $942.50; that thereafter the said Carroll paid thereon the sum of $243.75, leaving a balance of $698.75 still due; that in order to secure the payment of the purchase price of such beer as was sold under the contract in question the said Carroll made and executed a bond in the sum of $2,000, with L. H. Powell and J. J. Beasley, the other appellants herein, as sureties thereon. The court further found that “the goods, consisting of beers, sold to appellant Carroll under the contract entered into between him and appellee were sold and delivered at Teague, Tex.; that said goods when they arrived were stored in a warehouse at Teague, Tex., and offered for sale in said city, and that the shipment of beer involved in this suit did not constitute interstate commerce.” Notwithstanding the unequivocal terms of the written contract declared on and the foregoing findings of fact, the court concluded, as a matter of law, that said contract was not in violation of the anti-trust laws of this state. In so concluding we think the court erred and that such error and the rendition of the judgment, as a result thereof, is “an error in law apparent on the face of the record.” Article 779S of Vernon’s Sayles’ Civil Statutes,. declares that:

“Either or any of the following acts shall constitute a conspiracy in restraint of trade: 1. Where any two or more persons, firms, corporations or association of persons, who are engaged in buying or selling any article of merchandise, produco or any commodity, enter into an agreement or understanding to refuse to buy from or sell to any other person, firm, corporation or association of persons, any article of merchandise, produce or commodity.”

Article 7799 of said statute declares that:

“Any and all trusts, monopolies, and conspiracies in restraint of trade, as defined by our statutes, are prohibited and declared to be illegal.”

And article 7807 declares that, any contract or agreement in violation of the provision of the chapter of the statute in relation to trust and conspiracies against trade shall be absolutely void and not enforceable either in law or equity.

Clearly the contract entered into by and between the appellant Carroll and the appel-lee, Brewing Company, constituted, under the first article of the statute quoted a conspiracy in restraint of trade. It obligated and bound the appellant Carroll to handle and sell the products (beer) of appellee exclusively and not to sell any beer either in bottles or draught manufactured by any other person, firm, or corporation. Thus the contract by its very terms violates the statute quoted, which denies to persons or corporations engaged in buying or selling any article of merchandise, produce, or commodity, the right to enter into an agreement to refuse to buy from any other person, firm, or corporation any article of merchandise, produce, or commodity. If such an agreement is entered into it is declared by said statute to be a conspiracy in restraint of trade; by the second to be illegal ; and by the third any such contract is declared to be absolutely void. The trial court having found that the shipment of beer involved did not constitute interstate commerce, presumably upon evidence justifying such finding, no question of interstate commerce arises, and it is therefore apparent that the contract cannot be the foundation of the judgment rendered in appellee’s favor. Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

Appellants contend, in effect, that the court erred in overruling their general demurrer: <1) Because it appears from the petition that appellee is a foreign corporation and it is not alleged that it had secured a permit to do business in Texas; (2) because the contract shows upon its face that it constitutes a conspiracy in restraint of trade in violation of our statute, and therefore illegal and void. In the view we take of the case, as expressed above, we need not consider and discuss these questions, as presented in the brief of appellants. The trial court having determined from the evidence adduced upon the trial below, and which has not been brought before this court by a statement of facts, that the goods sold under the contract, were sold and delivered to appellant Carroll, at Teague, Tex., and was not a transaction involving interstate commerce, committed fundamental error in not rendering judgment in favor of appellants. Such being the nature of the error, it is unnecessary to discuss any other question in the case, and it becomes our duty to set aside the judgment rendered in favor of appellee and here render the judgment that should have been rendered in the court below.

It is therefore ordered that the judgment of the county court be reversed and set aside, and that judgment be here rendered for appellants.

Reversed and rendered.
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author: RAINEY, C. J.

text:
    GILLESPIE v. WILLIAMS.
    (No. 7398.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 23, 1915.)
    1. Appeal and Error <@=3272 — Presentation Below — Refusal op Instructions.
    Assignments of error, complaining of the court’s refusal to submit special charges to the jury, will not be considered, where appellant did not except to such refusal in proper, time.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §J 1611-1619; Dec. Dig. <@=3 272; Trial, Cent. Dig. § 680.]
    2. Damases <@=378 — Building Contract — Liquidated Damages — Penalty.
    A provision of a building contract that the contractor should forfeit $5 for each day after a certain date that the building; remained uncompleted, was a provision for liquidated damages rather than for a penalty, where it appeared that the damages were difficult of ascertainment, and that the sum stipulated for was not grossly disproportionate to the amount of the actual damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 157-163; Dec. Dig. <@=>78,]
    Appeal from District Court, Kaufman County; E. L. Hawkins, Judge.
    Action by George Williams against Joe R. Gillespie. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Lee R. Stroud, of Katifman, for appellant. Huffmaster & Huffmaster, of Kaufman, for appellee.
   RAINEY, C. J.

Appellee Williams sued appellant Gillespie for a balance due him of $943.03, for the construction of a residence owned by appellant. Appellant answered admitting a balance due amounting to $423.37, but claimed damages against appellee for failure to construct said building according to contract and for delay in finishing the building within the time agreed upon. Special issues were submitted to the jury, and upon the return of their verdict thereon judgment was rendered in favor of appel-lee for $666.03. A motion for new trial by appellant having been overruled, he appealed.

The first and second assignments complain of the refusal of the court to submit special charges to the jury. The appellant failed to except to this action of the court in proper time, therefore these assignments will not be considered by this court.

In the contract between the parties for the building of the residence and after providing for the completion of the said building, by May 1, 1913, it further provides that:

“And for each and every day after the first day of May that the building shall remain uncompleted the said Williams shall forfeit to said Gillespie the sum of $5.00, to be deducted from the contract price hereinafter stated.'*'

The question arose on this provision whether it constituted and fixed an absolute sum in favor of appellant, or was it a mere penalty, i. e., the amount of damages sustained by appellant to be ascertained by the evidence? The appellant contends that the contract under the evidence clearly shows that he is entitled to the sum specified as liquidated damages, while, on the other hand, the ap-pellee contends that appellant was only entitled to such sum as measured by the rental value of the premises caused by the delay. Appellant pleaded in the alternative for damages in the event the court held that under the contract he was not entitled to forfeiture as stipulated in the contract. The trial court evidently held that the evidence only raised the question as to damages,, and that was to be measured by the rental value of the house. This, we think, is shown by the issue submitted on this question, which was, “What was the reasonable rental value of the house in question from May 1 to' September 5, 1913?” This was the only issue presented by the court relating to the question of forfeiture. In this we think the court erred. The provision of the contract specifically states that the forfeit for delay shall be $5 per- day, if not completed by May 1st. Whether this fixes the amount as liquidated damages or as a penalty is a question for the court’s determination, and—

“in construing this contract in that respect, the subject-matter contained in it indicates the intention of the parties.” Farrar v. Beeman, 63 Tex. 175.

We think it appears from the evidence that the damages that flowed to appellant were such as were not easy of ascertainment, and tlie sum fixed in tlie contract will be presumed to be a fair estimate for the compensation for damages that would accrue to appellee in case of delay. The evidence shows that there was no market rental value of such houses in Kaufman county; that there was inconvenience and discomfort incurred by appellant caused by the delay in not completing the building and by reason of loss of time and worry in superintending the construction of the building after the 1st of May and until September 5th. It would be hard to estimate in money what the amount of damage would be under such circumstances. We do not think it can be said that the sum fixed bears such a proportion to the actual loss as to construe the contract as fixing a penalty. In Collier v. Betterton, 87 Tex. 440, 29 S. W. 467, where the consideration for constructing a building was $5,670, it was held that $10 a day was approximately a very large sum to pay for the rent of a house. In this case, however, the consideration for construction was $8,200, and only $5 a day fixed for delay. There is quite a difference between the two. Besides, in that case, there was no evidence as to damages at all, while there was evidence of damages as to matters other than rent in the instant case. If appellant agreed that the beginning of the work should be delayed until January 25th, instead of December 26th, then appellee would be entitled to that much longer time for the completion of the house and the appellant allowed $5 a day for the time delay after such reduction.

The. court having failed to construe the contract according to its terms, and the evidence not showing circumstances warranting a different construction, we think the judgment not warranted by the evidence, and it is reversed and the cause remanded.
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author: RAINEY, O. J.

text:
    WILSON et al. v. DEARBORN et al.
    (No. 6755.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 30, 1915.)
    1. Mandamus @^>6 — Conflict with Injunction.
    Where the trial court made final an order enjoining a sale of land on execution, mandamus to compel the sheriff to levy execution will not be issued until the order is set aside.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 36; Dec. Dig. <@=»6.]
    2. I-Iusband and Wife <@^87 — Maeeied Women — Appeal Bonds.
    A married woman, not even with the consent of her husband, can legally bind herself as surety on an appeal bond, and a bond on which she is a surety may be refused.
    TEd. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 346-353, 798; Dec. Dig. <®=^87.]
    On motion for rehearing.
    Motion denied.
    For former opinion, see 174 S. W. 296.
    Adams & Stennis, of Dallas, for relators. J. h. Gammon, of Waxahachie, for respondents.
   RAINEY, O. J.

This is a motion for rehearing of an application for a writ of mandamus in cause No. 6581, 174 S. W. 296, which application, was refused at the last term of this court. This motion was filed after the period fixed for filing of motions for rehearing had expired. But it is argued that the refusal was based upon false and perjured testimony, which petitioners claim can be shown on another hearing. This would be good grounds for setting aside the former judgment in this matter and a rehearing thereof, if the petition itself did not show it would be a useless proceeding. The former application was founded on the charge that Dearborn, sheriff, had refused to levy an execution duly issued by this court on certain lands pointed out by this applicant, etc. The application for rehearing shows that said executions had been subsequently placed in the hands of a constable, had been duly levied on the said land and advertised for sale; that an injunction had been procured from the district court restraining the sale of said land, by virtue of said execution, which injunction was upon hearing perpetuated by said district court and notice of appeal given by applicant. The judgment of the- district court perpetuating the injunction being final, it precludes the issue of the writ of mandamus by this court until said judgment is set aside and annulled.

The application prays in the event that a rehearing is not granted on the former application, that a mandamus be now issued against Carl Tankersley, district clerk, requiring him to approve an appeal bond executed in the injunction proceeding by applicants as principal, with P. C. Wylie and Mary Wilson as sureties. It was shown on the hearing of this issue that Mary Wilson, one of said sureties on said appeal bond, was a married woman, the wife of J. B. Wilson, and the refusal to approve said appeal bond was on account of Mary Wilson being a married woman, and therefore not a proper surety under the law. The question then arises, Can a married woman legally bind herself as surety on an appeal bond with the husband’s consent, which was the case in this instance, unless in a matter involving her contract for necessaries or her separate property? We think not. In the injunction proceedings Mary Wilson’s separate property, nor her rights as a married woman, were in anyway involved. Under the law a married woman c-annot make a valid contract binding upon her unless for necessaries for herself and children, or for the benefit of her separate estate. The judgment appealed from in no way involving a contract by ner for necessaries for herself nor for the benefit of her separate property, and she incurred no liability on the appeal bond.

In the ease of Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537, it was held that the signing by the wife of an appeal bond of the husband was void, which ruling is directly in point in this case, and adverse to the appellant’s contention.

As we hold under the law that Mary Wilson is not a proper surety on the appeal bond, should we hold that the writ of mandamus should issue against the clerk? We think not. Our statute provides that to perfect an appeal a bond with two good and sufficient sureties should be tendered to the clerk, who shall approve the same. The duty of approving said appeal bond is imposed upon the clerk when the two sureties are good and sufficient. Such being his duty, he would violate the law to approve a bond not complying with its requirements. Mary Wilson being a married woman, she is not qualified under the circumstances of this case, and the clerk was justified in not approving the bond, and the mandamus is denied.

The motion is overruled.
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author: MOURSUND, J.

text:
    BRADEN-ZANDER CONST. CO. et al. v. SENG.
    (No. 5531.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1915.)
    1. Sales <®=>288 — Warranty—Waiver by Retention oe Goods.
    Where a chattel mortgage securing the price of a cement mixer contained the provision that the buyers agreed to give the machine a fair trial within ten days after receiving it, and, if it was found not to have the claimed capacity, or they were not fully satisfied with it in every respect, they should have the right to refuse it by notifying the seller’s agent of their intention to do so, the buyers, by not rejecting the mixer for breach of warranty as to its capacity within the ten-day period, waived their right to thereafter reject on such ground.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 817-823; Dee. Dig. <®=>2S8.]
    2. Sales <§=^287— Contract — Modification.
    Where the chattel mortgage, executed by the buyers of a cement mixer to secure the price, stipulated that they should reject for breach of warranty as to capacity within ten days, and the agent of the seller, by his requests and promises that they might return it, if unsatisfactory, later than that, caused the buyers to forego their right to reject within such period, such agent, in suit on the purchase-money notes assigned him by his principal, the seller of the mixer, could not be heard to say that he was not bound to permit rejection of the mixer after the ten-day period upon its failing to give satisfaction, since a subsequent agreement altering the terms of a written contract may be made by by parol.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ Sll-816; Dec. Dig. <§=287.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by W. S. Seng against the Braden-Zander Construction Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and cause remanded.
    T. H. Ridgeway, of San Antonio, for appellants. Geo. M. Mayer, of San Antonio, for appellee.
   MOURSUND, J.

Appellee Seng sued appellants upon five promissory notes, and to foreclose a chattel mortgage upon a cement mixer and appliances. The notes were payable to Waterloo Cement Machinery Corporation, and indorsed by said company to appel-lee, who was agent for the company in the transaction involving the sale of the cement mixer to appellants and the execution of the notes and mortgage.

Appellants pleaded that the 'chattel mortgage contained the following provision:

“It is understood by me that you guarantee that this mixer has the capacity claimed above. I agree to give this machine a thorough and impartial trial within ten days after receiving it. If it has not the capacity claimed above, or I am not then fully satisfied with it in every other particular, I am to have the right to refuse it by notifying you within said time of my intention to do so, in which event you are to give me shipping instructions and refund to me all payments made by me on said machine, including freight.”

They pleaded further that immediately after receiving said mixer they gave it a fair trial, and found that it did not have the capacity of five cubic feet per batch, and would not perform the work as warranted by the company, and that they were not then fully satisfied with it in every other particular; that they notified Seng and the company of these facts within ten days from the time they received the machinery; that they were prevailed upon by Seng to keep the mixer and give it further trials, and pursuant to his requests they did retain the same and gave it numerous trials, but always found that it did not have the capacity warranted, and they were dissatisfied with it, and they so notified Seng; that at Seng’s request they tried it up to some time in July, 1913, when they refused to try it further.

The court instructed a verdict in favor of appellee.

There was evidence on the part of appellants raising the issue whether the mixer had the capacity warranted, but, as they pleaded they knew within the ten-day period that it did not have such capacity, it seems they waived their right to reject it on that ground by failing to do so within ten days. No amount of trials could increase the capacity thereof, and it cannot be contended that any persuasions or requests on the part of Seng caused appellants to fail to reject the mixer on the ground of want of capacity of five cubic feet per batch.

On the issue whether the mixer was satisfactory Zander testified:

“The notes and mortgage were not executed on the 11th day of May; they were executed a few days after that. After Joe Slavin got the mixer to running a little, Mr. Seng called for a settlement, and I told him that we were not satisfied with the mixer, but he stated that the mixer wks new and after it was worked a little while it would run better and would be all right and for us to go ahead and make the first payment and execute the notes, and he would see that the mixer would run all right. We then decided to give the machine a further trial before rejecting it. We then made the first payment and executed the notes and the mortgage. He dated them back to cover the time we had the mixer. After that the mixer would not work well, and I went to Mr. Seng again and told him about the matter and told him that it was unsatisfactory. I did this several times within the ten days after the notes were executed and within ten days after the date of the notes, and Mr. Seng stated that the machinery was new and would get limbered up after it was worked a while, and would be all right. He asked me to not turn the machinery back to him, as it would become known and would injure him in business in San Antonio, and upon his statements and requests we continued to try to operate the mixer. I went to him several times after that and told him that it was not satisfactory, and each time he would persuade me to keep it and try it again. Mr. Braden wanted to turn the machinery back long before we quit using it. When the first note became due Mr. Seng asked for a settlement. I told him that the machinery was unsatisfactory, and that we did not want to pay the note; that we did not want to have to sue foreign corporations to get our money back, and if we had to sue to get our money back, we would have to' sue in the federal court, and I did not want to do that. Mr. Seng stated that he lived in San Antonio, and stated that he would make everything all right. I paid the note, $48, and interest, under protest. 1 was persuaded to do this by Mr. Seng. He stated that the machinery would work all right, and if it did not work all right he would make everything all right.”

This testimony raised the issue whether Seng waived the clause requiring appellants to give notice within ten days of their refusal of the mixer on the ground that they were not fully satisfied with it in every particular. It cannot be contended that a subsequent agreement altering the terms of a written contract cannot be made by parol. If Seng, by his requests and promises, caused appellants to forego their right to reject the mixer within ten days, he cannot be heard to say that he will not be bound to permit its rejection when it fails to give satisfaction, although appellants did just what he asked them to do.

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