author: SPEER, J.

text:
    SAGERTON HARDWARE & FURNITURE CO. et al. v. GAMER CO. et al.

    (No. 7859.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 21, 1914.
    On Rehearing, April 25, 1914.)
    1. Banks and Banking (§ 171)-Collection of Checks — Agency of Collecting Bank —Independent Contractor.
    Plaintiff company, which made daily deposits with defendant bank in the course of business, deposited a check with it, without inquiry or instructions as to the manner of collection, taking credit on its passbook, and the bank made a debit charge on one of its general forms against plaintiff for a certain sum for collection charges on the check. Held, that the bank became an independent contractor for collecting the check, so that the banks selected by it for collecting the check was its agent for whose defalcations or failure to remit it was liable to plaintiff.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. I 171.]
    2. Banks and Banking (§ 150) — 'Oveedeaft —Agbeement.
    An agreement by a bank to permit a depositor to make an. overdraft on the bank was equivalent to a loan to the depositor, so as to place the depositor in the position of having a checking credit with the .bank.
    [Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 455-464%; Dee. Dig. § 150.]
    On Rehearing.
    3. Banks and Banking (§ 171) — Collection —Liability of Collecting Bank.
    The D. bank which received a check from another bank for collection, stipulated in accepting the check that all items not payable in the city, received for collection, were taken on. condition that it should not be liable for the acts or omissions of any other banks or collector to whom the checks were transmitted, and, should the collecting party convert the proceeds, the amount for which credit had been given would be charged back. When it was advised by the bank actually making collection that the collecting bank had credited its account instead of remitting the money, the D. bank advised the bank from which it received the check of that fact, and also advised it that the item had .been charged back to its account, credit having been given when the check was first received, and the original forwarding bank credited the D. bank with the item. Held, that upon rendering judgment against the original forwarding bank for failure of the collecting bank to remit, it was error to enter judgment over against the D. bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dee. Dig, § 171.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by the Gamer Company against Sagerton Hardware & Furniture Company, the Waggoner Bank & Trust Company, and others, in which the Waggoner Bank & Trust Company filed a cross-action against the City National Bank of Dallas. From a judgment for plaintiff against the Hardware Company, and for the City National Bank on the cross-action, plaintiff and defendant hardware company appeal.
    Reversed, and judgment rendered for plaintiff against the Waggoner Bank & Trust Company, and in favor of the Hardware Company, as against plaintiff, and judgment rendered ini favor of the City National Bank of Dallas on the cross-action.
    Theodore Mack, of Ft. Worth, for appellant Sagerton Hardware & Furniture Co. Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for appellant Gamer Co. Wray & Mayer, of Ft. Worth, for appellee Waggoner Bank & Trust Co. Cockrell, Gray & McBride, of Dallas, for appellee City Nat. Bank.

       Writ of error pending in Supreme Court.

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

   SPEER, J.

The Gamer Company, a corporation, sued the Waggoner Bank & Trust Company, the City National Bank of Dallas, W. P. Caudle, and the Sagerton Hardware &, Furniture Company to recover a balance of $1,460 alleged to be due upon a certain cheek drawn by the Sagerton Hardware & Furniture Company in its favor. The suit was dismissed as to the defendant Caudle. The plaintiff had judgment against the defendant Sagerton Hardware & Furniture Company, but failed to recover against the other defendants. The defendant City National Bank of Dallas also had judgment of course on the cross-action by the Waggoner Bank & Trust Company against it. The plaintiff and defendant Sagerton Hardware & Furniture Company both appeal.

We adopt the findings of fact of the trial court as follows:

“I. The court finds that on the 16th day of September, 1907, the defendants C. D. Haley, W. H. Littlefield, and Edgar Littlefield, composing the firm of the Sagerton Hardware & Furniture Company, purchased of the plaintiff the Gamer Company, for W. P. Caudle, certain goods, wares, and merchandise consisting of pipes, tanks, appliances, and attachments for windmills, one gasoline engine, and appliances and attachments therefor, and other articles for the installing of a waterworks plant at Sagerton, Tex., by the said W. P. Caudle, aggregating $2,600, upon a written contract or order for the same, and which goods were shipped out on the 8th day of October, 1907, and received at Sagerton on October 22, 1907, at which time the Sagerton Hardware & Furniture Company wrote plaintiff a letter which was as follows:
“ ‘Sagerton, Texas, Oct. 23, 1907.
“ ‘The Gamer Company, Fort Worth, Texas — Gentlemen: We herewith hand you statement and cheek to cover invoice of Oct. 8 outfit for Mr. Caudle.
Invoice. $2,500 78
By cash Caudle with order.$ 500 00
“ commission . 370 00
“ freight paid . 194 90
$1,064 90
Check to balance.$1,435 88
“ ‘We are returning the freight bill and credit memorandum and assuring you that we will try to land another soon, we are, Very respectfully, Sagerton Hdw. & Fum. Co.
“ ‘P. S. Send receipt as the balance due on Caudle outfit as we don’t want him to get next. Yours, S. H. & F. Co.’
“That as stated in said letter the check of the Sagerton Hardware & Furniture Company for $1,435.88 was inclosed therein being for the balance due for said goods as shown in the itemized statement set forth in the foregoing letter; the Sagerton Hardware & Furniture Company charging a commission of $370 for the sale of said goods.
“II. The court finds that the order for the goods in question was signed by W. P. Cau-dle, and contained the following excerpt: ‘In consideration of which I or we hereby agree to pay you for the same at your office in Fort Worth, Tarrant County, Texas, as well as for all goods theretofore or hereafter bought or ordered from you, together with ten per cent, interest from maturity of bills and ten per cent, attorney’s fees if placed in the hands of attorneys or judicial proceedings be used for collection.’
“III. The court finds that on September 28, 1907, the Sagerton Hardware & Furniture Company wrote the Gamer Company as follows: ,
“ ‘Sagerton, Texas, Sept. 28, 1907.
“ ‘The Gamer Company, Fort Worth, Texas — Gentlemen: Please ship out the outfit we bought for Mr. Caudle for waterworks here, at once and send the bill of lading to First Bank of Sagerton, Sagerton, Texas, to collect for us. Thanking you in advance for the favor and for all past favors, we are, Very respectfully, Sagerton Hdw. & Furn. Co.’
“IV. The court finds that for several months prior to the transaction in question the Gamer Company had been doing its banking business with the Waggoner Bank & Trust Company of Ft. Worth, Tex., was a reputable bank, and that the Waggoner Bank & Trust .Company had as its correspondent through whom it made collections the City National Bank of Dallas, Tex., also a reputable banking institution.
“V. The court finds that there was no other er bank at Sagerton, Tex., save and except the First Bank of Sagerton, Tex., a private bank.
“VI. The court finds that the Gamer Company deposited the check of the Sagerton Hardware & Furniture Company for $1,435.-88 with the Waggoner Bank & Trust Company, which check was made payable to the Gamer Company drawn on the First Bank of Sagerton, Tex., dated October 23, 1907, and signed by the Sagerton Hardware & Furniture Company, which deposit was made on October 25, 1907, the plaintiff indorsing the check, ‘Pay to the order of the Waggoner Bank & Trust Company of Fort Worth, Texas,’ the date of deposit being the date of receipt of said check. Signed: ‘The Gamer Company.’
“VII. The court finds that the Gamer Company was making daily deposits with the Waggoner Bank & Trust Company and took credit for this check in its passbook, and that on the said October 25, 1907, the Waggoner Bank & Trust Company made a debit charge on one of its general forms for that purpose against the Gamer Company for $3.60, which was to be the collection charges on the Sager-ton 'Hardware & Furniture Company check, and that on November 4,1907, the Waggoner Bank & Trust Company made a debit charge against the Gamer Company of $1,460.88, the same being made up as shown by credit clip, of the check of the Sagerton Hardware & Furniture Company for $1,435.88 and another check for $25.00 drawn on the same bank; the officers of the Waggoner Bank & Trust Company telling the .plaintiff at the time it. made this charge' ticket that the payment of the check had been refused but that the check had not been returned to the Waggoner Bank & Trust Company yet.
“YIII. The court further finds that at the time said check for $1,435.88 was deposited the Gamer Company made no inquiry as to how the Waggoner Bank & Trust Company was going to collect the check, and gave no instructions, the plaintiff simply indorsing the cheek and depositing in the usual course of business and receiving the credit on the books of the bank in the usual way, and that the Gamer Company had no knowledge of what way or agency was employed by the Waggoner Bank & Trust Company in making .collections of checks deposited with them upon other banks.
“IX. The court finds that when Mr. Gamer, president of the Gamer Company, received notice that the $1,435.88 check had been charged back against the account of the company he went to the Waggoner Bank & Trust Company,, and. was advised that the check had been sent for collection, but that the bank had notice that they could not pay right then, but that the bank would pay it, but that they did not know just when, referring to the Sagerton Bank, and that Mr. Gamer then insisted on getting back the' check so 'that he could,send some one to see about the matter; that said check was never at any time returned to the Gamer Company.
“X. The court further finds: That the Waggoner Bank' & Trust Company forwarded the check to the City National Bank of Dallas, Tex., indorsing thereon: ‘Pay to the order of any bank or banker (all prior in-dorsements guaranteed). Waggoner Bank & Trust Company’ — such check being received by the City National Bank of Dallas, Tex., October 26, 1907, and that the said City National Bank of Dallas, Tex., indorsed the check, ‘Pay to the order of any bank or banker, previous indorsements guaranteed. City National Bank of Dallas, Tex., Lynn P. Talley, Cashier,’ and' then immediately forwarded the check direct to the First Bank of Sagerton. That about November 1, 1907, not having received the money back on said check, E. S. Gillespie, then manager' of the transit department of the City National Bank, telephoned the First Bank of Sagerton, and, not being able to talk direct, had to talk through Stamford, talking through the operator and asking about the.letter containing said check, and which letter had several other items thereon, and was advised that the bank could not remit, and advising that the check in question had already been delivered to the depositor or canceled.
“XI. The court further finds that the City National Bank then notified the Waggoner Bank &'Trust Company as follows: ‘On the 26th we'credited your account $1,435.88, same being an item on Sagerton, Tex. Sagerton .advises' ús that the item has been paid, but 1 that they cannot remit to cover same now, but will do so within the course of a few days. We are, therefore, charging your account with this amount and will be pleased.' to credit same to you upon receipt of remittance from Sagerton to cover.’
“XII. The court finds that the City National Bank of Dallas, Tex., and the Waggoner Bank & Trust Company made no other' effort to get back the check for $1,435.88 which had been forwarded for collection, and that on the 29th day of October, 1907, the First Bank of Sagerton stamped the said cheek, Paid, charging the check to the account of the Sagerton Hardware & Furniture Company, and delivered the canceled check to the said Sagerton Hardware & Furniture Company, and also credited the account of the City National Bank of Dallas, Tex., with this item.
“XIII. The court further finds that the city National Bank of Dallas, Tex., had not authorized the First Bank of Sagerton to credit its account with the amount of said check, but took no other steps to collect the amount of said check, or to recover the same after having been advised that the check had been so credited to its account and the instrument canceled and delivered to the Sagerton Hard-1 ware & Furniture Company.
“XIV. The court finds that the Sagerton Hardware & Furniture Company was engaged in the Hardware & Furniture business at Sagerton, Tex.; and that the members of said partnership were the said C. D.'Haley, W. H. Littlefield, and E. B. Littlefield; and that in July, 1907, the said Sagerton Hardware & Furniture Company bought two car loads of furniture; and that in order to get-, a discount upon said goods the said Sagerton Hardware & Furniture Company requested R. E. Caudle, the cashier of the First Bank of Sagerton, for a loan in order to meet the bills maturing for said furniture October 1st; and that the said cashier replied that he was not in position at that time to grant that much money, but for them to go ahead and issue the checks for the furniture, and would permit them to overdraw for this purpose; and that they would thereafter see about arranging for a loan; and that the Sagerton Hardware & Furniture Company did draw checks for various amounts against their account between the 1st day of October and the 23d day of October, which checks accumulated in the First Bank of Sagerton, Tex.; and that on the 30th' day of October, 1907, the First Bank of Sagerton charged to the Sagerton Hardware & Furniture Company these checks, among them the $1,435.88 check’ sent to the Gamer Company, aggregating in all $4,085.95, and which caused an overdraft-of said account in the sum of $1,514.05; and that on November 4,1907, the Sagerton Hardware & Furniture Company executed their negotiable promissory note to the First Bank of Sagerton for $1,500 due on demand for which they were credited upon their account. That the checks which caused the overdraft were the checks issued by the Sagerton Hardware & Furniture Company in payment of the bills for furniture, and for which they had asked to be permitted to overdraw their account.
“XV. The court further finds that when the goods which had been shipped by plaintiff were delivered to W. P. Caudle on the 22d day of October, 1907, the said W. P. Caudle gave to the Sagerton Hardware & Furniture Company his check for $1,805 in payment of the balance due upon said goods, and this cheek was on said date deposited by the Sagerton Hardware & Furniture Company with the First Bank of Sagerton, and credited to the account of the Sagerton Hardware & Furniture Company; that at the time said deposit was made the Sagerton Hardware & Furniture Company had the outstanding checks for furniture given prior to that date, and knew that it did not have enough money in the bank to pay the same, and that when the cheek for $1,435.88 was forwarded to the Gamer Company that the money was not in the bank to pay this check and the other checks which had been previously 'drawn against their account; that the checks for the furniture which had been issued prior to October 23, 1907, upon reaching the First Bank of Sagerton had been placed by the cashier in a drawer until' he marked the same, Paid, and charged them to the account of the Sagerton Hardware & Furniture Company on October 29, 1907.
“XVI. That after the Sagerton Hardware & Furniture Company executed the note for $1,500, the said note was sold before maturity by the First Bank of Sagerton to the First National Bank of Emma, Tex., and was renewed about the 1st day of January, 1908, and thereafter paid by the Sagerton Hardware & Furniture Company.
“XVII. The court finds that the First Bank of Sagerton was doing business through the Farmers’ & Merchants’ National Bank of Abilene, Tex., and that about October 15, 1907,- its account with the said bank at Abilene was overdrawn somewhere in the neighborhood of $38,000 or $40,000, and that the First Bank of Sagerton had most of this money out in cotton, and as the cotton came in and as other money came in, the First Bank of Sagerton was using all of these funds to reduce its overdraft upon the Farmers’ & Merchants’ National Bank of Abilene; that checks had been accumulating in the First Bank of Sagerton from various banks which had sent the same in for collection, and in order to clear the First Bank of Sagerton of said checks, and which checks possibly aggregated $25,000 or- $30,000 the said First Bank of Sagerton credited the banks which had sent in said checks for collection, including those of the Sagerton Hardware & Furniture Company given out for furniture and the check of the Gamer Company in question; this action being taken about the 29th day of October, 1907; that during this time the First Bank of Sagerton was paying checks which were presented over-the counter for collection; that if the cheek of $1,435.88 of the Gamer Company had been presented at the window of the bank up until about the 10th of November, 1907, the First Bank of Sagerton would have had the cash on hand, and did have the cash on hand, to have paid the same over the counter.
“XVIII. The court further finds that between the 20th and 25tli of October the First National Bank of Ft. Worth, Tex., sent a bunch of checks, aggregating between $2,000 and $3,000 to the First National Bank of Rule, Tex., for collection, and that Morris Manning, the cashier of the First National Bank of Rule, Tex., presented said checks in person at the window of the First Bank of Sagerton, and received the cash on the same.
“XIX. The court further finds: That on November 16, 1907, the Gamer Company wrote to the Sagerton Hardware & Furniture Company, advising them that it had not received their money upon the check in question, and that under date of November 18, 1907, the Sagerton Hardware & Furniture Company replied as follows':
“ ‘Sagerton, Texas, Nov. 18, 1907.
“ ‘The Gamer Company, Fort Worth, Texas — Gentlemen: In reply to yours of the 16th inst. will say that I have just been to the bank to ask about this matter. They had charged the check to our acct. and returned same to us canceled and paid, and the Pres, told me that they had made settlement with the Sweetwater exchange from Sweetwater, and told me too, that he was going to Sweet-water to-day to see that it was done. I hope that you will have your money by the time this reaches you. Very respectfully yours, Sagerton Hardware & Fum. Co., per W.' H. Littlefield.’ That after the receipt of the letter in question the Sagerton Hardware & Furniture Company made no effort to secure from the First Bank of Sagerton the money called for by the check of $1,435.88, and that the said amount of $1,435.88 was. never paid to the Gamer Company.
“XX. The court further finds that at the time the check in question was forwarded to the First Bank of Sagerton for collection the American Express Company had an office and an agent at Sagerton, and that there was also a bank at Rule, Tex., located nine miles from Sagerton on the Orient Railway, and that there were three banks at Haskell, 18 miles east .from Sagerton by dirt road, and that there were three banks at Stamford, located 15 miles from Sagerton by railroad, and also at Hamlin, located 11 miles from Sagerton by railroad; that during the early part of the year 1907, collection had also ,been made from the Sagerton Bank by C. H.Burden; such collections having been sent •to Mr. Burden by the First National Bank of .•Stamford.
“XXI. The court further finds that the First Bank of Sagerton went into bankruptcy about the 4th or 5th day of December, 1907, and that said bankruptcy estate thereafter paid 42% per cent, on the claims of the creditors of said bank.
“XXII. The court finds that the Sagerton Hardware & Furniture. Company continued to deposit with the First Bank of Sagerton up until the bank went into bankruptcy, and made one deposition December 9, 1907, of $91 after the receiver appointed by the bankruptcy court had taken charge of the bank.
“XXIII. The court finds that after the First Bank of Sagerton had gone into bankruptcy, the City National Bank of Dallas, Tex., made claim in said bankruptcy estate for the amount of said< check of $1,435.88, such action being taken with the consent and agreement of all parties, both plaintiff and defendants, to said suit, and that from said bankruptcy estate the amounts were paid on said claim by the trustee in bankruptcy as follows:
—and for which amount the claim on account of said check should be credited, leaving a balance due of principal and interest aggregating $1,136.10.
“XXIV. The court finds that when the Sagerton Hardware & Furniture Company received the check from W. P. Caudle for the sum of $1,805, the said Sagerton Hardware . & Furniture Company deposited said check with the First Bank of Sagerton to their account, knowing that their account with said bank was already overdrawn to the amount of checks for furniture theretofore given, and that there would not be a sufficient balance remaining to said account to pay said check of $1,435.88 drawn in favor of the Gamer Company.
“XXV. The court further finds that after the Waggoner Bank •& Trust Company was advised by the City National Bank of Dallas, Tex., that it had not received the remittance of $1,435.88 covering the check forwarded to the First Bank of Sagerton for collection, and that the check had been canceled and delivered to the Sagerton Hardware & Furniture Company, said Waggoner' Bank & Trust Company made no further effort-to secure possession of said check nor for the money called for by said check, and did not attempt to return said check to the plaintiff, nor the money called for by the same, and that it charged up the account of the Gamer Company with the amount of said check and the additional charge of $3.60 for the collection of the same, and did not at any . time or in any way pay to the Gamer Company the amount of said check.”

Under the facts as found the Wag-goner Bank & Trust Company became an independent contractor for the purpose of collecting the check in question, and the agents selected by it for the accomplishment of this purpose became its agents for whose defalcations' it is in law responsible. State Natl. Bank of F. W. v. Thomas Mfg. Co., 17 Tex. Civ. App. 214, 42 S. W. 1016. Now, the findings show that the First Bank of Sagerton, Tex., which was called upon by the City National Bank of Dallas, Tex., the agent of the Waggoner Bank & Trust Company, to make the collection of this check, did so in the usual and customary manner, evidently in the way contemplated by the parties the same should be doné, but failed to remit the collection to its correspondent, the City National Bank of Dallas, Tex. Under these circumstances, the proceeds having been lost through the failure of the Sagerton Bank, the Waggoner Bank & Trust Company became liable to the Gamer Company, and the City National Bank in turn became liable to it for the amount of the loss.

While it is true that the Sagerton Hardware & Furniture Company’s account was overdrawn at the time the check in controversy was presented for payment, the findings yet show that an arrangement had been made by it with the Sagerton Bank for an overdraft. This was equivalent to a loan, and the company, therefore, had at the time a credit with the bank against which it was authorized to cheek. When the check, therefore, was presented and paid by the Sager-ton Bank, the collection was complete, and there remained nothing to be done but to transmit the proceeds to the City National Bank of Dallas. The question of negligence then becomes an immaterial issue in the case, and need not be considered. The Waggoner Bank & Trust Company is liable at all events because its agent had collected the proceeds of the check and failed to account for it. Smith Roofing & Contracting Co. v. Mitchell, 117 Ga. 772, 45 S. E. 47, 91 Am. St. Rep. 217. If our conclusion that the facts stated show an actual collection of the check be correct, it of course follows that judgment should also be rendered in favor of appellant, the Sagerton Hardware & Furniture Company, for it has already once paid the debt. The judgment of the district court is therefore reversed, and judgment here rendered in favor of appellant the Gamer Company against the Waggoner Bank & Trust Company for the balance due on said check, to wit, $1,136.-10, together with interest thereon at the rate of 6 per cent, per annum from March 24, 1913, together with all costs, that the Waggoner Bank & Trust Company have judgment for a similar amount and costs over against the City National Bank of Dallas, and .that the appellant the Gamer Company take nothing as against the appellee Sager-ton Hardware & Furniture Company, and that the Sagerton Hardware & Furniture Company recover all its costs against the Gamer Company.

Reversed and rendered.

On Rehearing.

We were in error in rendering judgment over against the City National Bank of Dallas in favor of the Waggoner Bank & Trust Company on its cross-plea, inasmuch as the terms of the agreement upon which the City National Bank accepted the checks for collection precluded recovery. In accepting the checks for collection it was stipulated by the City National Bank as follows: “All items not payable in Dallas received by this bank for credit or collection are taken upon the express condition that this bank is not to be held liable for the acts or omissions of any other banks or collectors to whom they may be hereafter transmitted, or for loss in transmission, the liability of this bank being hereby limited to its own acts and should the collecting party convert the proceeds or remit the checks or drafts which are thereafter dishonored, the amount for which credit has been given will be charged back. We will use our discretion as to sending direct or through intermediary banks for collecting, acting as agent only and assuming no responsibility beyond carefulness in selecting such agents." It seems to be undisputed in the evidence that as soon as the City National Bank was informed that the collecting bank had credited its account instead of remitting the money, it advised the Waggoner Bank & Trust Company of that fact, and also advised it that its account was being charged with that amount, and the Waggoner Bank & Trust Company credited the City National Bank with the item. Under these circumstances the Waggoner Bank & Trust Company was not entitled to judgment over against the City National Bank of Dallas, and our former judgment in this respect is set aside and judgment rendered in favor of the City National Bank of Dallas uppn such cross-plea.

The motion for a rehearing by the Wag-goner Bank & Trust Company is overruled.


source: Caselaw Access Project

author: CONNER, C. J. PER CURIAM. CONNER, C. J.

license: Public Domain

text:
    TEXAS BITULITHIC CO. et al. v. ABILENE ST. RY. CO.
    (No. 7838.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 21, 1914.
    On Rehearing, April 25, 1914.)
    1.Street Railroads (§ 37) — Paving—Duty of Street Railway.
    Where the charter of a street railway company required it, at its own cost, to pave that portion of the street it occupied in the same manner as the city might pave the remainder, the railway company has the right to reasonable notice of a contemplated improvement, and to either pave the street itself, or itself to contract for the paving.
    [Ed. Note. — For other .cases, see Street Railroads. Cent. Dig. §§ 103, 105, 126; Dec. Dig. § 37.]
    2. Street Railroads (§ 37) — Paving—Recovery of Cost — Petition.
    The petition, in an action by a municipality to recover from a street railway the cost of paving that portion of the street occupied by the railway, should .disclose the width of the pavement and the length of the street, so that the court can determine the amount to which the city is entitled, and whether that amount is within its jurisdiction.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 103, 105, 126; Dec. Dig. § 37.]
    3. Municipal Corporations (§ 486) — Public Improvements — Streets—Notices — “Abutting.”
    The provision of Rev. St. 1911, art. 1013, which is a part of that chapter providing for the improvement of streets, including the portion occupied by street railways, that no assessments for -an improvement shall be made against any abutting property until a full and fair heax'ing shall have first been given to the owners does not apply to the property of a street railway company, the term “abutting” not even in its larger sense including such property, although a further provision of the article that the governing .body of any city making improvements shall by ordinance adopt rules and regulations providing for hearings to property owners and giving notice does apply to street railroads (citing Words and Phrases, vol. 1, pp. 50, 51).
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1084-1090, 1161; Dec. Dig. § 486.]
    4. Constitutional Law (§ 290) — Due Process of Law.
    A paving assessment against the property of a street railway company, made under Rev. St. 1911, art. 1013, where the company was given no notice or opportunity for hearing on the amount of the assessment and the benefits, is void, because working a deprivation of property without due process of law contrary to Const, art. 1, § 19, and federal Const, amend. 14, for, despite Const, art. 1, § 17, reserving to the Legislature power to regulate and control corporations, a paving assessment against the property of a corporation is void where it exceeds. the benefits, or the corporation is not given a hearing.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 871-875: Dec. Dig. § 290.]
    5. Courts (§ 91) — Precedence — Contbol- ■ ling Precedence.
    Where the decisions of the Supreme Court are conflicting, the Court of Civil Appeals is bound by the last one.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 325, 326; Dec. Dig. § 91.]
    Conner, C. J., dissenting on rehearing.
    Appeal from District Court! Taylor County; Thomas L. Blanton, Judge.
    Action by the City of Abilene, joined by the Texas Bitulithic Company, against the Abilene Street Railway Company. From a judgment of dismissal, plaintiffs appeal.
    Affirmed.
    Dabney & Townsend, of Dallas, Harry Tom King, of Galveston, and H. N. Hickman, of Abilene, for appellants. J. M. Wag-staff and S. P. Hardwicke, both of Abilene, for appellee.

       Application for writ of error pending in Supreme Court.

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

   CONNER, C. J.

The city of Abilene, joined by the Texas Bitulithic Company, filed its petition in the district court to enforce the payment of the costs of paving certain streets specified in the petition between the rails of the appellee street railway company and for 24 inches on each side 'thereof. As alleged, the city of Abilene by its governing board duly ordered the pavement of the streets and complied with the requirements of chapter 11, tit. 22, in terms conferring authority upon cities accepting the benefits thereof to make street improvements and levy assessments such as now resisted. The petition further alleged that the street railway company was incorporated under the laws of the state of Texas, and as assignee was operating under a charter theretofore granted by the city to one John I-I. Morrow, in which it was provided that, in event the city of Abilene should pave any street on which the railway should be constructed, “then the said John H. Morrow, associates or assigns, shall at their own expense and without cost to the city of Abilene, Texas, pave that portion of the street occupied by said railway company with the same material and in the same manner as the city of Abilene paved said street, or part of street, on each side of said railway; the part occupied by said railway being herein defined to be the space between each end of the ties used by said street railway company.” There are numerous other allegations not deemed necessary to recite. The trial court sustained a general demurrer to the petition, and the plaintiffs, having declined to amend, dismissed the suit.

The petition seems founded upon two. grounds for. recovery. The first arises out of the terms of section 5 of the Morrow Charter, which we have quoted in part, and on this phase of the petition at least we think it is subject to the general demurrer urged. It is true that, by the acceptance of the charter with such provisions, the railway company agreed to do certain things; but the city’s right of recovery, if any, is upon the contract, or for damages because of its breach. It therefore becomes important on this branch of the case to consider the scope of the contract. It is in substance that the street railway shall, at its own cost, pave that portion of the street “occupied” between the ends of the ties “with the same material and in the same manner as the city of Abilene paves said street.” The railway company did not agree that the city, as is alleged was done, might itself, or by contractor, do the work, and that the street railway company would thereupon pay the city or contractor the cost of the paving, as fixed by it or him. Under its contract the railway company ■ had the right to reasonable notice of the contemplated improvement, and then to either itself pave the part of the street, occupied by it, or -to itself secure contract therefor on the most favorable terms. No opportunity to so do is alleged. It is doubtless true that under the section of the charter under consideration the city, in the exercise of its police powers, might pave or secure the pavement of that part of the street occupied by the railway in event the railway company, after due notice and request, should refuse to comply with its charter contract; but in that event the right of the city to recover the costs of paving would be by the way of damages for a breach of the contract, and no such cause of action is asserted. Moreover, the petition entirely fails to disclose the distance between the ends of the ties, or the length of the paving, or to give any other data from which a court could determine the amount of the recovery-on this ground to which the city was entitled. It should at all events be made to appear that the amount was within the jurisdiction of the court in which the suit was filed.

There yet remains for consideration, however, the larger asserted right of recovery by virtue of the terms of chapter 11, tit. 22, of the Revised Statutes, before referred to. This right is resisted in behalf of appellee on the theory that chapter 11, tit. 22, of the Revised Statutes is void and unconstitutional, in that neither the legislative act, nor the ordinance, nor other proceeding set forth in the petition of the city of Abilene make any provision for or allege any notice to appel-lee of a hearing, before making an assessment against it, at which it would have an opportunity to be heard concerning the benefits of the proposed improvement in the enhanced value of its property, and because said acts, ordinances, and proceedings as set forth in the petition show no provision for limiting or restricting the amount which might be assessed against the railway company to the amount of the benefits received by it because of said improvements. It is insisted that, without such provision, an enforcement of the assessment declared upon, amounts to the taking of the property of the street railway company without due process of law, in violation of section 19, art. 1, of the Constitution of this state, reading: “No-citizen of this state shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by due course of the law of the land” — and in violation of the fourteenth amendment to the Con-; stitution of the United States, reading, so far as applicable, that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due-process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The question thus presented is an important one, and has engaged our thoughtful' consideration, .

Article 1006 of the chapter referred to provides that such cities “shall have power to- improve any street, avenue, alley, highway, public place or square, or any portion thereof, . within their limits, by filling, grading, raising, paving or repaving the same in a permanent manner,” etc. Article 1008 of the chapter confers upon the governing body of the city the power to order the improvement of any highway therein or part thereof, and “to select the materials and methods for such improvement, and to contract for the construction of such improvements in the name of the city, and to provide for the payment of the costs of such improvement out of any available funds of the city, or as herein provided.” The next article, 1009, provides that: “The cost of making such improvements may be wholly paid by the city, or partly by the city and partly by the owners of property abutting thereon: Provided, that in no event shall more than three-fourths of the cost of any improvement, except sidewalks and curbs, be assessed against such property owners or their property; but the whole cost of construction of sidewalks and curbs in front of any property may be assessed against the owner thereof or his property.” The next article, 1010, declares that: “Subject to the terms hereof, the governing body of any city shall have power to assess against the owner of any railroad or street railway occupying any highway ordered to be improved, the whole cost of the improvement between or under the rails and tracks of said railroad or street railroad and two feet on the outside thereof, and shall have power, by ordinance, to levy special tax upon said railroad, or street railroad, and its roadbed, ties, rails, fixtures, rights and franchises, which tax shall constitute a lien thereof: superior to any other lien or claim, except state, county and municipal taxes and which may be enforced, either by sale of said property in the manner provided by law in the collection of ad valorem taxes by the city, or by suit against the owner in any court having jurisdiction. The ordinance levying said tax shall prescribe when same shall become due and delinquent, and the method or methods of enforcing the same.” Save as may be implied from what we hereinafter state, the petition sufficiently shows, as against a general demurrer at least, a full compliance on the part of the city of Abilene with the articles cited.

The provisions of the chapter referring to the subject of a hearing and notice before assessments for the cost of street improvements is found in article 1013, which reads as follows:

“No assessment of any part of the costs of such improvement shall be made against any property abutting thereon or its owner, until a full' and fair hearing shall first have been given to the owners of such property, preceded by a reasonable notice thereof given to said owners, their agents or attorneys. Such notice shall be by advertisement inserted at least three times in some newspaper published in the city, town or village, where such tax is sought to be levied, if there be such a paper there; if not, the nearest to said city, town or; village, of general circulation in the county in which said city is located, the first publication to be made at least ten days before the date of the hearing. 'The governing body may provide for additional notice cumulative of notice by advertisement. Said hearing shall be before the governing body of such cities, at which hearing such owners shall have the right to contest the said assessment and personal liability, and the regularity of the proceedings with reference to the improvement, and the benefits of said improvement to their property, and any other matter with reference thereto. But no assessment shall be made against any owner of abutting property or his property in any event in excess of the actual benefit to such owner, in the enhanced value of his property, by means of such improvement, as ascertained at such hearing.
“The governing body of any city making improvements under the terms hereof shall, by ordinance, adopt rules and regulations providing for such hearings to property owners, and for giving reasonable notice hereof.”

The petition alleges full compliance with the chapter, and hence evidently with the requirements of the article just quoted. The article, however, is apparently for the benefit of abutting owners upon streets, and has no direct reference, if any, to a railway company occupying the street. In an enlarged sense, it might possibly be said, as provided in the Code of Iowa (see 1 Words and Phrases, tit. “Abutting,” p. 51), that a street railway company is an abutting owner within the meaning of article 1013 of our statutes just quoted; but appellants seem to concede that such meaning is not to be given to such terms in the article, and it has been expressly held that a city charter authorizing the assessment of lands “abutting” on a street for improvements does not apply to a railroad right of way which lies wholly within the street. Indianapolis, etc., Ry. Co. v. Capital Par. & Constr. Co., 24 Ind. App. 114, 54 N. E. 1076. It was also held, in So. Park Com. v. C., B. & Q. Ry. Co., 107 Ill. 105, that an act authorizing assessment for the improvement of public streets upon "contiguous property abutting” upon such streets cannot be construed to include and authorize the assessment of right of occupancy, franchises, property, and interest of a railroad corporation in a street which had been improved. Moreover, it may be said, and perhaps should be said to avoid a declaration that the chapter is wholly invalid, that the last paragraph of article 1013, • in requiring cities of , the class mentioned to adopt by • ordinances, “rules and regulations providing” for reasonable “notice” and “hearing” to property owners, sufficiently provides for notice to and hearings of the owners of a street railway. But appellants expressly admit in their brief “that there are no provisions made in the ordinances of the city of Abilene for a notice to, or hearing of, a street railway company, nor was any such hearing given,” and that, if “under the facts a street railway company holding a franchise from the city under a grant by ordinance permitting it to occupy its street for its private profit, is under the statutes and laws of Texas, entitled to a notice and hearing as to benefits in the enhanced value of its property before assessment, the .assessment in this case is admittedly void.” So that in our determination we shall treat the plaintiffs’ petition as the parties and the court below treated it, viz.: As founded upon the assumption that it is wholly unnecessary for either the ordinances of the city of Abilene or the act of the Legislature to mate provision for notice to or a hearing of ■ a street railway corporation occupying a portion of the street ordered improved, and upon which an assessment as provided in the statute is made.

That such notice to and opportunity for hearing of the owner of land abutting upon a street is a vital requirement has been settled by our Supreme Court in the case of Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884, relied upon by the court below, and which follows the decision of the Supreme Court of the United States in the case of Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443; and we have concluded that there is no just ground for a distinction in respect to the right to notice and opportunity for hearing between the street railway company occupying the street and an owner of abutting lands, and hence that on the main question presented the judgment of the court below was also correct.

While our Constitution (section 17, art. 1) expressly reserves to the Legislature the power to regulate and control corporations incorporated under the general laws of the state, and while there are many authorities in such cases to the effect that the determination of the benefits to accrue to and the extent of an assessment to be made upon a railway company occupying a street ordered paved by a city in the exercise of its police powers is wholly a matter of legislative discretion, it was nevertheless distinctly held, in the case of Hutcheson v. Storrie, already cited, that no such assessment could be made in excess of the benefits to be conferred, and that a charter which did not afford an abutting landowner an opportunity to be heard upon questions of interest to him relating to the improvement was void. It cannot be disputed that, a corporation is entitled to an equal protection of its property with the citizen within the meaning of our constitutional provisions. The right asserted in appellants’ petition is in its nature an absolute one. If, in the exercise of the power reserved by the section of the Constitution referred to, the Legislature or city acting under its authority may arbitrarily assess the cost of an improvement of a part of the street, it can as well so assess against a railway company occupying a street the entire cost of its pavement, without right on its part of having voice in the matter of contract, persons, material, or other thing of importance involved in making the improvement, and regardless of any question of benefit or injury to the railway company. This, if we have properly interpreted the case of Hutcheson v. Storrie, cannot be done in this state. Thence the plaintiffs’ petition at least was fatally defective under the admissions made, and subject to the general demurrer.

Before finally concluding this opinion, however, we should perhaps- notice the case of Storrie v. Houston City Street Railway Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716, so earnestly relied upon in behalf of appellants in aid of their petition. This decision was also by our Supreme Court, and the opinion was written by the same eminent judge who wrote the opinion in Hutcheson v. Storrie. It is perhaps inferable from the face of the two opinions that the same provisions of the city’s charter were involved in both cases, and yet in the case last cited the liability of the street railway company for the costs of paving certain streets between the rails of the railway and six inches on each side thereof was expressly upheld, without indicating that a notice to or hearing of the company was necessary. It may be said that the question decided in Hutcheson v. Storrie was not presented in Storrie v. Houston City Street Ry. Co.; but the question was, it seems to us, necessarily, involved, and the cases, therefore, are in principle apparently in conflict. The Hutcheson Case makes no reference to the case against the street railway company, and we have felt some difficulty in disposing of the two opinions. But an examination of the opinions shows that the opinion in Storrie v. Railway Company was rendered a year earlier than the opinion in Hutcheson v. Storrie, and is apparently in harmony with the decision in Adams v. Fisher, 75 Tex. 657, 6 S. W. 772, which is expressly repudiated in the later case; the court indicating its pleasure in following the contrary rule announced in the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, also decided several months after the decision in Storrie v. Ry. Co., and therefore evidently not available when our Supreme Court decided the first case. So that, on the whole, we conclude, as already indicated, that in so far as the eases conflict we must give controlling effect to the latest expression of our Supreme Court in Hutcheson v. Storrie.

It is accordingly further concluded that the court did not err in sustaining the general demurrer to appellants’ petition, and that the judgment should be affirmed.

On Rehearing.

PER CURIAM.

Rehearing denied.

CONNER, C. J.

(dissenting). The majority are of the opinion that the motion for rehearing should be overruled; but I find myself unable to agree to such course. In the beginning it was with much hesitation that I came to the view expressed in our original opinion, and after a reconsideration, aided as we have been by the able and painstaking effort of appellants’ counsel, my original doubts have not only increased, but I have become convinced that we erred in the conclusion announced on the main question in the case. Time and opportunity admit of but a brief presentation of my present view; but, as it now appears to me, we erred in giving controlling effect to the case of Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884, and in not giving proper application of section 17 of our Bill of Rights, which provides, among other things, that: “No irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.’’

No such provision of our Constitution or law has application to a private owner of lots abutting on a street occupied by a street railway which the governing body of the city has determined to improve, and a distinction between the two classes of property should be made. As to the private owner, as held in Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884, and as expressly provided in the chapter relating to the subject (R. S. c. 11, tit. 22), notice and opportunity for a hearing to determine the extent of the benefits to the owner must be extended. But neither that decision nor the statute is in terms made applicable to the owner of a street railway. The failure of the statute to so provide seems especially significant in view of the conceded fact that it was enacted after the decision in Hutcheson v. Storrie in order to conform therewith. It is hardly to be supposed that in so legislating the case of Storrie v. Houston City Street Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716, in apparent conflict with Hutcheson v. Storrie, was wholly overlooked by our legislators. It also is not to be assumed that the decision in Storrie v. Houston City Street Ry. Co. was overlooked by the careful, able judge who wrote both opinions. Hence I now think the case of Hutcheson v. Storrie should be limited to the facts of that particular case (which was that of an abutting owner), as has been done in the case upon which it was founded. See French v. Barber Asphalt Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879, loc. cit. p. 890.

But, as to the Abilene Street Railway Company, I think the case of Storrie v. Houston City Street Ry. Co. should be applied to the facts alleged in this case. It is alleged that the special tax assessment now resisted was levied in strict accordance with chapter 11, tit. 22, of the Revised Statutes. The railway company is a public service corporation that exists and exercises its rights and privileges by virtue of the law alone. It accepted its franchises from the city of Abilene, and has continuously since then exercised its privileges with full knowledge that our Constitution expressly provided that it, and all like corporations, was subject to the control of the Legislature, thus, in effect, agreeing in advance to the imposition of such additional burdens as the Legislature might thereafter in its discretion impose. The Legislature*in fact has declared a fixed rule, not unreasonable on its face, by which the special ■ assessment under consideration was made; the Legislature in effect determining the question of benefits. The power to so do is very generally upheld by the authorities. See French v. Barber Asphalt Co., hereinbefore mentioned, and the numerous cases therein cited. Moreover, it does not appear, either by the petition in this case or from any answer, that the assessment under consideration is unreasonable, or that in the proceeding leading up thereto there was any irregularity, inequality, or other • thing of which just complaint can be made. If there was, the statute itself provides the remedy. See chapter 11, art. 1015. So that I see no reason, either béneficial or available, for other or further notice of the assessment than was afforded by the enactment and publication of the legislative act and of the ordinance for the improvement. See Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Parsons v. Dist. of Columbia, 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943. In brief, under the section of the Constitution quoted, I think special assessments as alleged in this case may be made, and that the law so authorizing as now written in no wise conflicts with the “due process” clauses of our state and federal Constitutions. On the contrary, these laws seem but to impose upon street railway companies using for profit public streets of a city, a just proportion of the burden necessarily incurred in improving and safeguarding such streets for the benefit of all. I conclude that the court erred in sustaining appellee’s general demurrer,- and that the motion for rehearing should be granted, and that the cause should be remanded for a trial upon the merits. See the following cases, which are thought to support the foregoing conclusions: Storrie v. Houston City Street Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716; Sioux City Street Ry. Co. v. Sioux City, 138 U. S. 98, 11 Sup. Ct. 226, 34 L. Ed. 899; Kettle v. City of Dallas, 36 Tex. Civ. App. 632, 80 S. W. 874; Fairhaven Street Ry. Co. v. City of New Haven, 203 U. S. 379, 27 Sup. Ct. 74, 51 L. Ed. 237; Eldredge v. Trezevant, 160 U. S. 452, 16 Sup. Ct. 345, 40 L. Ed. 490; West Chicago Street Ry. Co. v. Illinois, 201 U. S. 506, 26 Sup. Ct. 518, 50 L. Ed. 845; C., B. & Q. Ry. v. Illinois, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Const. of Texas, art. 1, § 17; Revised Statutes 1911, c. 11, arts. 1006 to 1017, inclusive.

In accordance with the conclusion of the majority, however, it is ordered that the motion for rehearing be overruled.


author: DUNKLIN, J.

text:
    SWITZER LUMBER CO. v. CLEMENTS et al.
    (No. 7919.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.)
    Partnership (§ 173) — Liability for Firm Debts — Note Signed by One Partner.
    Where one, who had a claim against a partnership for goods sold to the firm, agreed to accept in full settlement thereof a note signed by only one of the partners, the other partner is not liable on the note, notwithstanding the fact that it was given in settlement of a firm debt.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 304, 305; Dec. Dig. § 173.]
    Appeal from Jones County Court; Joe C.' Randel, Judge.
    Action by the Switzer Lumber Company against B. E. and M. T. Clements. From a judgment against the defendant M. T. Clements and in favor of the- defendant B. E. Clements, plaintiff appeals.
    Affirmed.
    S. J. T. Smith, of Anson, for appellant. C. C. Ferrell, of Anson, for appellee.

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

   DUNKLIN, J.

The Switzer Lumber Company instituted this suit against the defendants B. E. and M. T. Clements, to recover of them the amount of a promissory note for the principal sum of $350, dated January 1, 1912, together with interest thereon payable to plaintiff.

It was alleged in the petition that the consideration for the note was lumber and other building materials sold to the defendants, who at the time were partners' doing business as contractors under the firm name of B. E. Clements & Son; that the note was executed while defendants were doing business as such partners; that the note was executed by M. T. Clements alone, but that, by reason of the fact that the debt for which the note was given was a partnership obligation of the firm, B. E. Clements also became liable upon said note equally with M. T. Clements, who executed it. Plaintiff’s petition also contained a prayer for general relief.

In the answer filed by the defendants, B. E. Clements alleged that the account for which the note was given accrued more than two years next preceding the filing of the suit; that he neither signed the note nor authorized any one to sign the same for him; and that therefore plaintiff’s cause of action as against him was barred by the statute of limitations of two years.

Judgment was rendered in favor of the plaintiff against M. T. Clements, but in favor of B. E. Clements as against the cause of action asserted against him. From the judgment denying a recovery against B. E. Clements, plaintiff has appealed.

The suit was tried by the county judge without the aid of a jury, and the following findings and conclusions were filed:

“Conclusion of Fact.
“I find: That on various dates, from November, 1910, to March, 1911, B. E. Clements & Son, then a firm composed of B. E. and M. T. Clements, the defendants herein, purchased from Switzer Lumber Company, plaintiff, lumber and other building material, and, according to the terms of purchase, defendants agreed to pay for each item within 30 days from the sale of the same; the dates of the respective sales and the price of each item being shown by plaintiff’s verified account herein filed. That during the year 1912 plaintiff, acting by its collector and adjustor, J. W. Davis, had a settlement with M. T. Clements, whereby plaintiff accepted from him the note sued on in this case and two other notes of similar amount, each as payment in full of said indebtedness against B. E. Clements & Son. That, if Davis was not authorized to make the settlement and accept the notes, his action therein was subsequently ratified by plaintiff. That B. E. Clements never signed the notes nor any other writing nor authorized any one to sign any writing obligating him to pay said debt.
“Conclusion of Law.
“The verified account is barred by the statute of limitations, and, plaintiff having accepted the notes of M. T. Clements in full settlement of the debt, plaintiff is not entitled to recover against B. E. Clements.”

The following is the only assignment of error presented:

“The court erred in rendering judgment in favor of defendant B. E. Clements, ‘because the undisputed evidence in this case shows that B. E. and M. T. Clements were the individual members of the firm of B. E. Clements & Son; that they were a partnership at the time the lumber was sold for which the note sued upon was given, and that said lumber was bought by and used for said partnership, and that the notes were executed by one member of said firm to settle a firm obligation or account; that M. T. Clements promised and agreed that his copartner B. E. Clements would join him in the execution of the note sued upon, but that said B. E. Clements refused to do so, notwithstanding his liability for same; and that said partnership existed at the time of the execution of the note so sued upon.’ ”

Thus it will be seen that the only contention presented by the assignment is that as B. E. Clements was originally liable for the building material sold to the firm, and for which the note was afterwards given, he was, by reason of those facts, also liable upon the note executed by M. T. Clements. Of course if B. E. Clements became liable upon the note, his plea of limitation could not be sustained. But by the assignment the finding of the trial judge that the account for material and for which the note was given is barred by the statute of limitation is not assailed. Nor does appellant by the assignment challenge the correctness of the finding that plaintiff’s representative, J. W. Davis, “had a settlement with M. T. Clements whereby plaintiff accepted from him the note sued on in this case and two- other notes of similar amount, each as payment in full of said indebtedness against B. E. Clements & Son”; and further “that B. E. Clements never signed the note, nor any other writing, nor authorized any one to sign any writing obligating him to pay said debt.” If, as found by the court, plaintiff agreed to accept the note of M. T. Clements alone in full- satisfaction of the account against the firm, then B. E. Clements was released from further liability, even though it should be held that, in the absence of such an.agreement, the note executed by M. T. Clements would also be the obligation of his partner, B. E. Clements. For this reason the assignment is overruled, and the judgment is affirmed.

Affirmed.


text:
    CISCO OIL MILL v. VAN GEEM.
    (No. 7915.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.)
    1. Trial (§ 356) — Verdict—Failure to Answer Interrogatories or Make Findings.
    Where, in a negligence case, special issues of negligence, contributory negligence, and assumption of risk were submitted, the failure of the jury to find upon the issues of contributory negligence and assumption of risk was in direct violation of Rev. St. 1911, art. 1988, providing that the verdict shall comprehend the whole issue or all the issues submitted to the jury, and no final judgment could be rendered; article 1985, providing that upon appeal or writ of error an issue not requested shall be deemed as found by the court in such manner as to support the verdict, being inapplicable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 849-854; Dee. Dig. § 356.]
    2. Appeal and Error (§ 719) — Assignment op Errors — Necessity — Fundamental Error.
    Error in rendering judgment in a negligence case upon a verdict which failed to find upon special issues of contributory negligence and assumption of risk submitted being fundamental, an assignment of errors was unnecessary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    3. Courts (§ 170) — Pleading—Jurisdiction ■ —Plea to Jurisdiction — Amount in Controversy — Allegations—Time to Plead.
    The allegations of the petition as to the amount in controversy determine the jurisdiction of the court, unless the defendant specially plead and show by evidence that such amount so alleged was for the fraudulent purpose of giving the court jurisdiction, and the time to file such a plea is prior to the beginning of the trial.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.]
    4. Evidence (§ 14) — Judicial Notice.
    The court, in a negligence case, could not take judicial notice that plaintiff, a young man, had such a life expectancy that if $10 per month be allowed for the remainder of his life for permanently diminished capacity to labor the amount so claimed would give an aggregate of more than $1,000.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 19; Dec. Dig. § 14.]
    5. Damages (§ 153) — Amount oe Damages— Allegations in Pleadings.
    A petition in a personal injury action was subject to special exception for failure to itemize the amount of damages claimed so as to show the amount claimed for loss of time, doctor’s bills, drug bills, etc.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 422-425; Dee. Dig. § 153.]
    6. Master and Servant (§ 217) — Bisks Assumed by Servant — Defective or Dangerous Place to Work.
    Where an employé of a gin company knew that a ginhouse was so constructed as to cause excessive vibrations of the machinery and gins while in operation, and also knew of the risk incident to such condition, he assumed any risk of injury due to such condition.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574 — 600; Dee. Dig. § 217.]
    7. Trial (§ 350) — Submission of Issues.
    In an action for an injury to an employé of a gin company, caused by an alleged defective lever, where the court submitted the issue of defendant’s negligence in furnishing the gin stand with the defective lever, it was improper to submit, as independent grounds of recovery, defendant’s failure to warn of the defect, that the employe’s work had been negligently changed with the assurance that the machinery would be looked after and repaired, and that defendant failed to employ an experienced mechanic to keep such machinery in repair, since such issues were included in the main issue first submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    8. Master and Servant (§ 217) — Bisks Assumed ' by Servant — Defective Appliances.
    If it was the duty of an employé of a gin company to inspect the machinery and to repair any defects before operating it, he assumed the risk of any defect and could not recover for an injury caused by any such defect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    Appeal from Eastland County Court; E. A. Hill, Judge.

      Action by Chas. M. Van Geem against the Cisco Oil Mill. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Cunningham & Oliver, of Abilene, for appellant. Earl Conner, of Eastland, for ap-pellee.

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

   DUNKLIN, J.

This is the second appeal in this ease; the decision upon the former appeal being reported in 152 S. W. 1108. Chas. Van Geem, plaintiff in the case, sustained an injury to his hand as the result of that member coming in contact with the saws of a gin operated by the Cisco Oil Mill, and he instituted this suit against the company for damages resulting from that injury. Upon the former trial a judgment was rendered in favor of the defendant. Upon the last trial the plaintiff recovered and the defendant has appealed.

According to plaintiff’s testimony given upon the trial, at the time of his injury he was engaged in cleaning out one' of the gin stands after the ginning for the day had terminated. In order to do this, he signaled the engineer to start the machinery. When that was done, he raised the breast of one of the gin stands, and started to place a block thereunder to hold it up, when the lever with which the gin was provided for raising the breast, and which was in a defective condition, broke, and knocked his hand against the saws, thus causing his injury. In his petition he alleged that the house in which the gin stands and machinery were installed was constructed in such a manner as to cause excessive vibrations of the machinery and gins while in operation; that the gin and lever with which he was working at the time of his injury were out of repair and in a defective condition; that the portion of the building where he was working was improperly lighted; that by reason of his inexperience in the operation of gins he was ignorant of the dangers of that service; and that defendant failed to warn him of such dangers. He alleged that defendant was guilty of negligence which was the proximate cause of his injury in constructing the building in the manner indicated, in furnishing the gin in the condition mentioned, and without sufficient lights, and in failing to warn him of the dangers of the service he was- performing at the time of his injury.

There was a jury trial upon special issues submitted, which, briefly stated, were negligence of the defendant alleged to be the proximate cause of plaintiff’s injury, contributory negligence of the plaintiff, and assumption of risk of the injury by plaintiff. The jury rendered a verdict showing a finding of negligence on the part of the defendant which was the proximate cause of the injury, but tñe verdict omits any finding upon the other two issues of contributory negligence and assumed risk. There was evidence introduced upon the trial sufficient to sustain both the defenses pleaded by appellant of contributory negligence and assumed risk. In its brief in this court appellant has assigned error to the rendition of the judgment in the absence of a finding by the jury upon the two issues last, mentioned, and we are of the opinion that this assignment must be sustained. Following are articles of Revised Civil Statutes 1911:

Article 19S5: “The special verdict must find the facts established by the evidence., and not the evidence by which they are established; and it shall be the duty of the court, when it submits a ease to the jury upon special issues, to submit all the issues made by the pleading. But the failure to submit any issue shall not be deemed a ground for reversal of the judgment, upon appeal or a writ of error, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment; provided, there be evidence to sustain such a finding.”

Article 1988: “The verdict shall comprehend the whole issue or all the issues submitted to the jury.”

Article 1994: “The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.”

The provision in article 1985, supra, that, “upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in- such manner as to support the judgment; provided, there be evidence to sustain such a finding,” does not apply in the present case, for the issues of contributory negligence and assumed risk were submitted by the court, and there was evidence sufficient to sustain those defenses', as noted already. The failure of the jury to find upon those two issues was in direct violation of article 1988, and hence no final judgment could be rendered ,in the cause. See Ablowich v. Greenville Natl. Bank, 95 Tex. 429, 67 S. W. 79, 881; T. & P. Ry. Co. v. Watson, 13 Tex. Civ. App. 555, 36 S. W. 290, and cases there cited; Stephenson v. Chappell, 12 Tex. Civ. App. 296, 33 S. W. 880, 36 S. W. 482.

The' assignment now under discussion was not filed in the trial court, but is submitted in appellant’s brief in the form of a proposition under two other assignments, to which perhaps it is not germane, and appellee has objected to a consideration of the same for that reason. However, we are of the opinion that the error is fundamental and that appellant was not required to file the assignment thereto in the trial court. See Rules 23 and 24, 142 S. W. xii. The reversal of tile judgment for the error noted above renders it unnecessary to discuss the numerous objections made by appellee to a consideration of the various assignments contained in appellant’s brief.

Eor the guidance of the trial court upon another trial we deem it expedient to discuss in a general way some of the questions raised by numerous assignments of error. Two of those assignments relate to the question of jurisdiction of the court to determine the ease. The amount claimed in plaintiff’s petition was expressly limited to the sum of $1,000. After the trial began and apparently after the evidence had been concluded, appellant filed what is designated as a plea to the jurisdiction, alleging in substance that in his petition plaintiff had restricted his recovery to the sum of $1,000 for the fraudulent purpose of giving the trial court jurisdiction of said cause, and that it had been developed by the evidence heard that the amount in controversy was in excess of $1,000. Upon the plea to the jurisdiction the court instructed the jury that if they should believe from a preponderance of the evidence that “the plaintiff brought this suit for a less amount than has been established to be due the plaintiff, and that in the bringing of this suit [by] the plaintiff the same was done as a fraud upon the jurisdiction of this court and was knowingly done for the purpose of maintaining this suit in this court, when in truth and in fact this court had not jurisdiction of the amount in controversy, if you so find, you will find for the defendant on the plea of [to] the jurisdiction of this court.” The allegations contained in the petition would determine the jurisdiction of the court, unless the defendant should specially plead and show by evidence that the fixing of the amount of damages claimed at $1,000 only was done for the fraudulent purpose of giving the court jurisdiction. The proper time to file such a plea to the jurisdiction is prior to the beginning of the trial, and the allegations contained in the appellant’s plea that the evidence heard had already shown the amount in controversy to be in excess of the jurisdiction of the court had no place in such plea. Nor was it proper for the court in the charge to hinge the strength of the plea upon the amount of damages which had been established by proof, rather than upon the good faith of the plaintiff in the allegations contained in his petition. The charge given was further erroneous in that it left for the determination of the jury what amount in controversy would be beyond the jurisdiction of the court. . In answer to the contention made by other assignments that the petition showed on its face a cause of action over which the trial court had no jurisdiction, we desire to say that no facts are alleged in plaintiff’s petition which show the amount in controversy to be more than the amount for which judgment was sought, as appeared in Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294. The only argument presented to support a conclusion to the contrary is that in the absence of any allegation to that effect the court should take judicial cognizance that plaintiff, a young man, had such a life expectancy that if $10 per month bé allowed for the remainder of his life for permanently diminished capacity to labor resulting from his injury', as alleged in his petition, the amount so claimed would be such a sum as when added to other damages claimed and itemized in the petition would give an aggregate of more than $1,000. We know no law which would warrant us in assuming judicial knowledge of such facts.

In view of the reversal it is unnecessary to discuss the assignment of error to the failure of the jury to render any finding upon the plea to the jurisdiction further than to say that upon another trial as a matter of course with a proper plea to the jurisdiction and evidence to sustain the same, there should be a finding thereon. We are of th® opinion further that the special exception addressed to plaintiff’s petition for its failure to itemize the damages claimed in the aggregate so as to show the amount claimed for loss of time, doctor’s bills, drug bills, etc., should have been sustained. Randall v. Rosenthal, 31 S. W. 822.

Among the issues of negligence submitted by the court* for the determination of the jury as a proximate cause of plaintiff’s injury were the improper construction and maintenance of the ginhouse resulting in vibrations thereof, and the insufficiency of the lighting of the same. The evidence shows conclusively that these conditions were known to the plaintiff before he was injured, and that he also knew of the risk ordinarily incident to that condition. If his injury was due to those conditions alone, it was but an ordinary risk of defendant’s negligence, if any, in maintaining the ginhouse under those conditions, and he assumed it. The entire strength of plaintiff’s case rests upon the one issue of the alleged negligence of the defendant in furnishing to plaintiff for operation a gin stand with a defective lever without warning him of such defect, which, according to the allegations of the petition, broke, and the breaking of which caused plaintiff’s hand to be knocked into the saw and thereby to sustain injury. The negligent failure of the defendant to warn plaintiff of the defect, if any, in the lever, and of the risk incident to an effort to operate the gin by using the same, could not properly be submitted as an independent ground of recovery if the alleged negligence in furnishing a gin stand with such a lever was also submitted as a separate and independent ground of recovery. For in determining the issue last named, it would be the duty of the jury to take into consideration all the surrounding circumstances, including the ignorance of the defendant, if any, of such defect, and the failure of the defendant, if any, to warn the plaintiff of such defect. It was also improper to submit as separate and distinct grounds for recovery, as was done by the trial court, that plaintiff’s work had been negligently changed by the defendant with the assurance that the machinery would be looked after and repaired, that defendant negligently failed to warn plaintiff of the danger of operating the gin with the alleged insufficient lights, and that the defendant had negligently failed to employ an experienced machinist to keep the machinery in repair; since those issues were necessarily included in the one issue of alleged negligence in furnishing the gin stand with the defective lever. The foregoing observations have been made without reference to the defenses of contributory negligence and assumed risk and with no intention of being understood as in any manner precluding either of those defenses if they should be sustained upon another trial.

In view of some other assignments, we deem it proper to further state that if it was one of the duties of plaintiff’s employment to examine the gin for the purpose of discovering such defects as that of the defective lever which broke and to repair the same himself, or to report the same to his superiors to be repaired, and if in the proper discharge of that duty he must necessarily have discovered such defect before he attempted to operate the gin on the occasion of his injury, then he assumed the risk of operating the gin in that condition and cannot recover. See Allen v. Ry., 14 Tex. Civ. App. 344, 37 S. W. 171; Bonnet v. Railway Co., 89 Tex. 72, 33 S. W. 334; Ladonia Cotton Oil Co. v. Shaw, 27 Tex. Civ. App. 65, 65 S. W. 693; Railway Co. v. Spellman, 34 S. W. 298; Green v. Cross, 79 Tex. 130, 15 S. W. 220.

The issues submitted are somewhat in the nature of a general charge and are not as clear and as specific as they might be made and should be upon another trial, although it is not necessary to determine whether or not the form in which they were submitted would be reversible error. See R. S. arts. 1984 and 1985; also, article 1984a enacted by the Legislature at its regular session in 1913, as shown by Acts of that Legislature, p. 113.

For the reasons noted, the judgment is reversed and the cause remanded.


text:
    JONES v. CITY NAT. BANK.
    (No. 7895.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 14, 1914.)
    1. Trover and Conversion (§ 10) — What Constitutes — Rights or Creditor.
    Though a debtor agreed to apply the proceeds of a sale of property to the discharge of a debt, his creditor, who had no lien, is guilty of a conversion by seizing the property, without the debtor’s consent, and selling it to discharge his debt; such conversion rendering the creditor liable, although reasonable care was used in disposing of the property.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84r-94; Dec. Dig. § 10. ]
    2.Trover and Conversion (§ 22) — Right to Recover.
    In a suit for the conversion of property, the proceeds of which plaintiff had agreed to apply to the debt due defendant, plaintiff’s right to recover is not dependent upon whether he would have continued to apply the proceeds to the discharge of his debt.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. § 22.]
    3.Trover and Conversion (§ 10) — Actions —Right or Recovery.
    Where a debtor claimed that a creditor seized his property without his consent, and did not use reasonable care in its disposition, and the creditor claimed that the debtor consented to its taking possession and disposing of the property, the debtor is entitled to recover at all events if the creditor did not exercise reasonable care in disposing of the property.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84-94; Dec. Dig. § 10.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by P. L. Jones against the City National Bank. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    MeMurray & Gettys and Spencer & Shults, all of Decatur, for appellant. R. E. Carswell, of Decatur, for appellee.

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

   SPEER, J.

P. L. Jones instituted this suit in the county court of Wise county against the City National Bank of Decatur to recover damages for the conversion of 454 boxes of apples, alleging the market value thereof to be $908. A credit was admitted in favor of the bank, and judgment was prayed for $690.50. The defendant answered generally and specially that it had furnished to plaintiff the sum of $725 to protect a bill of lading for the ear of apples, and that plaintiff had agreed to market the apples and deposit the proceeds in defendant bank until this amount was repaid, but that he had breached said agreement, and had voluntarily consented that defendant might take possession of the apples and dispose of them to the best advantage, applying the proceeds to the payment of his indebtedness. The bank further pleaded that it had disposed of said apples to the best advantage and applied the proceeds to the plaintiff’s indebtedness, but that there was still lacking the sum of $200, which one J. D. Taylor, as surety for plaintiff, had paid. There was a jury trial resulting in a verdict for the defendant, and the plaintiff has appealed.

. The assignment 'Complaining of the introductory statement of the nature of the case in tiie court’s charge is overruled. Tlie statement is a very fair presentation of the issues raised by the pleadings. It is true that portion relating to the defendant’s plea is more voluminous than that relating to the plaintiff’s petition, but not unnecessarily so, since the defendant’s pleadings were themselves somewhat voluminous presenting several issues.

As to the substance of the ease, the court charged as follows:

“(1) If the plaintiff, after getting possession of said apples, failed or refused to proceed with reasonable care, dispatch, and diligence to sell the same and deposit the proceeds in defendant bank, and the defendant bank, through its employes and agents, got possession of said apples and sold the same and applied the proceeds to the satisfaction of the said draft, I charge you it would not be liable to plaintiff, unless you find from the evidence that it failed to use reasonable care in the handling and sale of said apples, and that plaintiff was damaged thereby.
“(2) If you should find from the evidence that the plaintiff, after getting possession of the apples, proceeded with reasonable care and dispatch to sell said apples and deposit the proceeds as received with defendant bank, and that he would have continued to do so until said apples were disposed of, if he had not been prevented by action of defendant, and if you believe that, while he was so disposing of said apples in carrying out his contract with defendant, the bank, through its agents or employés, took possession of said apples, without the consent of plaintiff, and against his will, and sold and disposed of the same and applied the proceeds to the payment of said draft, then defendant would be liable to plaintiff for any damages or loss he may have sustained by said action of the bank under the evidence in this case, and the' measure of such damages would be the difference, if any, between the fair cash market value of the apples taken by it and sold at the time of such taking and the sum of $348.91, the amount realized by the bank on said apples and credited to plaintiff.
“(3) In no event will you find for the plaintiff, unless you find upon the preponderance of the evidence that the apples were taken by the defendant from the possession of the plaintiff, without his consent and against his will.”

As presented to the jury appellant was unduly restricted in his right to recover. The gist of his action is that appellee wrongfully seized his apples and converted them to its own use to his damage. If these facts are established, appellant would be entitled to recover, irrespective of the fact that he was indebted to appellee, and irrespective of the fact that, after seizing the apples, appellee used reasonable care in handling them. It is not the law that a creditor, without a lien, and without the consent of the owner, may seize a debtor’s property and sell the same for the purpose of discharging his debt. Cont. St. Bank of Beckville v. Trabue, 150 S. W. 209; Baldwin v. Davidson, 143 S. W. 717. The implication of the charge very clearly is, and the jury doubtless understood, that appellee would not be liable to appellant for a wrongful seizure of the apples, provided it used reasonable care in disposing of them after such seizure.

Appellant’s criticism of the second section of the charge quoted is also well taken. It was error to make his right to recover dependent on whether the jury should think “that he would have continued” to sell the apples and deposit the proceeds as received with reasonable care and dispatch.

The third paragraph of the charge quoted is further erroneous in that it denied appellant a right to recover in the event the apples were taken with his consent; but yet the appellee failed to exercise the proper care in disposing of them as it pleaded it had done. In the event of such a finding, that is, that the apples were taken with the consent of appellant, and that they were not carefully handled and disposed of, the appellant would be entitled to recover such damages as he could show.

For the errors contained in the charge, the judgment is reversed, and the cause remanded.