author: . HUFF, O. J.

text:
    BEAUMONT COTTON OIL MILL CO. v. SANDERS et al.
    (No. 1326.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1918.
    Rehearing Denied May 8, 1918.)
    1. Customs and Usages &wkey;>5 — Generality.
    To be admissible, a custom must be so universal as to warrant the inference that the parties contracted with reference thereto, and should be established by clear and satisfactory evidence as having existed for a length of time so as to become widely lmown to warrant the presumption the parties had it in view.
    2. Sales <&wkey;71(l) — Purchase oe Cotton Seed — Duty oe Buyer — Limitation oe Shipments.
    Where the buyer of two cars of cotton seed, when it made the contract of purchase, understood there was no uniform size of cars used in shipping cotton seed, it should have stipulated the amount per car, or the size of the car, if it wished to limit the quantity of the seed per car, and, after making the contract, it could not ingraft its interpretation as calling for not more than 10 tons of seed per car, and assign a breach on the failure of the sellers to accept the construction.
    3. Sales <&wkey;113 — Renunciation oe Contract — Telegram.
    A telegram sent by the buyer of cotton seed to the sellers, stating that on seed purchased from them the buyer would accept only 15 tons to the car, directing the sellers not to ship out larger cars, as the buyer could not accept and would not pay drafts for larger shipments except at a reduced price, and stating that if the sellers had already shipped larger cars the buyer would accept only the total weight of the contract at the rate of 15 tons per car, was not a renunciation of the contract of purchase.
    4. Sales <&wkey;131 — Renunciation by Buyer —Obligation oe Sellers.
    If the buyer of personalty renounces his contract, there is no obligation on the sellers to accept the renunciation and treat the contract as abandoned or annulled.
    5. Sales <&wkey;133 — Controversy over Terms —Duty oe Party.
    A mere controversy over the meaning of the terms of a contract of sale did not require the sellers either to rescind or to accept the buyer’s contention as to the amount of the commodity sold it was permissible to ship in each car.
    6. Sales <&wkey;194 — Buyer’s Breach — Failure to Pay.
    Where the sellers of two cars of cotton seed observed their duty to place the seed sold on board the cars and to draw on the buyer for the sum due* under the contract, with bill of lading attached, the buyer’s failure to pay the draft and receive the seed when delivered f. o. b. at the sellers’ shipping point was a breach of the contract authorizing the sellers to recover the damages sustained.
    7. Sales <&wkey;334 — Breach by Buyer — Duty oe Sellers — Enhancing Damages.
    After the buyer of cotton seed refused to accept and pay therefor at the point agreed upon, the sellers did not have the right to do anything which would enhance their damages, as to ship the seed back for sale on the market, which would have added damages avoidable by selling on the market where the seed was.
    8. Sales <&wkey;381 — Breach—Reduction oe Damages — Burden oe Proof.
    In an action against the buyer of cotton seed for its failure to receive and pay therefor, if the seed, after the buyer’s refusal, was not sold to the best advantage by the sellers, the buyer should show the fact.
    9. Sales ' «&wkey;384(l) — Breach by Buyer-Damages.
    The sellers of cotton seed, on the buyer’s breach by failing or refusing to receive and pay therefor, were entitled to compensation based on the ascertainment of what they would have suffered by the continued breach down to the time of completing performance, less any abatement of which they should reasonably have availed themselves.
    10. Sales <&wkey;384(7) — Buyer’s Breach — Damages.
    Where the buyer of cotton seed refused to receive and pay for that shipped, the sellers had the right to sell the seed so shipped as the property of the buyer on its account, and to recover the difference between the contract price and the price the seed brought, together with necessary expenses.
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by J. E. Sanders and another against the Beaumont Cotton Oil Mill Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    R. 0; Chambers, of Abilene, and Smith, Crawford & Sonfield, of Beaumont, for appellant. Sayles & Sayles, of Abilene, for ap-pellees.
   . HUFF, O. J.

This action was brought by Sanders and Will Stith against the Beaumont Cotton Oil Blill Company upon an alleged breach of contract, providing for the sale of three cars of cotton seed at. $40 per ton, f. o. b. Lawn, Tex., and for special damages. The defendant answered that the Railroad Commission of Texas had fixed a carload of cotton seed at 10 tons, and that it was so fixed by the custom among shippers and dealers in cotton seed, and that defendant had instructed plaintiffs not to ship more than 15 tons per car before plaintiffs had loaded the car, secured bill of lading, and drawn their drafts on defendant, and if defendant breached the contract such breach occurred before procuring bills of lading and drawing the drafts, and no necessity existed for incurring expenses of freight, demurrage, and resale; that after the cotton seed had reached Bean-mont, Tex., defendant offered plaintiffs to take so much of the cotton seed as would amount to 15 tons per car at the original contract price and pay the market price for the balance, but plaintiffs refused such order; that the cotton seed were not of the grade and kind that were contracted for, but were of an inferior grade and quality and contained considerable trash and dirt. The case .was tried before the court without a jury and he filed the following findings of fact:

“(1) That on the 26th day of October, 1915, plaintiffs and defendant entered into the following contract in writing, viz.: ‘Agreement Covering the Sale of Cotton Seed. Agreement covering sale of cotton seed this day made to the Beaumont Cotton Oil Blills Company, of Beaumont, Tex., as follows: Abilene, Tex., October 26, 1915. In consideration of the sum of one dollar, in hand paid, the receipt whereof is hereby acknowledged, we have this day sold to' the Beaumont Cotton Oil Company Mills two cars, tons, sound, dry, and clean cotton seed. Price $40 per ton, of 2,000 pounds, !, o. b. cars by Lawn station, shipment to be made as follows: Within 15 days, Santa Fé. Balance of this contract to be paid under the following terms: S. D. to be made with B. L. attached covering each car on the Beaumont Cottón Oil Company Mills, Beaumont, Tex., weights and quality guaranteed by the seller. The above accepted and agreed to by the undersigned. Beaumont Cotton Oil Company Mills, by J. A. Stone-ham, Seed Buyer. Seller: J. É. Sanders Company. Town: Lawn, Texas. Date: 10/26/15. This contract or agreement made in. triplicate, one copy retained by the seller, two to be mailed to J. A. Stoneham & Co., seed brokers, Abilene, Tex.’ — and another contract of date October 25, 1915, to the same .effect and tenor for one car of cotton seed.
“{2) At the time said contract was made and entered into plaintiffs had on hand at Lawn, Taylor county, Tex., about 120 tons of cotton seed of the kind and quality described in the contract.
“(3) As soon as cars could be obtained plaintiffs began loading the seed according to their contract on November 1, 1915; prior to the receipt of the following telegram had loaded to its full capacity in volume, but not in weight, one car of cotton seed and shipped same in accordance with contract, consigned to defendant at Beaumont, Tex. The other cars covered in said contract were in process of loading on said date, and subsequent to the receipt of said telegram the loading was completed, said cars being loaded to their full capacity in volume, but not in weight, and were shipped to defendant at Beaumont, Tex., within the’ time limit of said contract.
“(4) On November 2, 1915, plaintiffs received from defendant the following telegram: ‘November 1, 1915. Advice that on seed purchased from you through Stoneham Company will accept only 15 tons to the car. Do not ship out larger cars than 15 tons as we cannot accept and will not pay drafts for larger shipments except at a reduced price. If you have already shipped larger car or cars will accept only to total weight of contract at rate of 15 tons per car. B. C. O. M. Co.’
“(5) That said three cars of cotton seed duly arrived at Beaumont, and were refused by the defendant, and payment of drafts drawn in accordance with the contract were refused.
“(6) That plaintiffs notified defendant on its refusal that they intended to resell the seed to protect themselves, and that defendant hid on said seed after said notification, but that plaintiffs resold said seed to the Magnolia Cotton Oil Company of Houston, Tex., at $37.50 per ton, which was a higher price than defendant offered for the seed.
“(7) That the seed shipped by plaintiffs were first-class, dry, sound, and clean cotton seed, according to the terms of the contract.
“(8) That there was no market for cotton seed in carload lots at Lawn, Tex., and that the plaintiffs, acted in good faith, used due diligence, and obtained the best price for the seed obtainable.
“(9) That said cars were loaded with cotton seed as cars were usually and ordinarily loaded at Lawn, Tex. That cars furnished by railroad companies for the shipment of cotton seed are usually and ordinarily of different sizes and capacities, ranging from an indicated capacity on the car from 20 tons to 40 or more tons per car. That owing to the nature of cotton seed, if the space in said cars were entirely filled with cotton seed, it would not be loaded to its capacity in weight, and that the custom existed at Lawn and in Texas generally for the shipper to accept such cars as were tendered by the railroad company and to load them by filling them full of cotton seed.
“(10) That the difference between the contract price of cotton seed and the sum for which they were resold on November 24, 1915, is $234.60, and that the freight, demurrage, and necessary expenses incurred by plaintiffs in reselling said seed amount to $458.18, paid out by plaintiffs on November 24, 1915.
“ (11) This suit is based on a contract in writing made in Taylor county, Tex., based on telephone conversation between defendant’s broker at Abilene and plaintiffs at Lawn, in Taylor county, Tex.
“In response to the request of the defendant for additional findings of fact and conclusions of law, the court finds the following facts and-makes the following conclusions in the consecutive order of the request of the defendant:
“Additional Findings of Fact.
“(1) Defendant breached the contract of No-rember 17, 1915.
“(2) Said breach was made at Beaumont, Tex.
“(3) Plaintiffs did not breach the contract.
“(4) Place of delivery under.the terms of the Written contracts was f. o. b. cars at Lawn, Tex., billed to Beaumont, Tex., with sight draft on the defendant at Beaumont, Tex., with bills of lading attached. .
“ (5) Said contract was to be performed both at Lawn, Tex., and Beaumont, Tex.
“(7) Plaintiffs were aware of the telegram set out in the court’s original fourth finding of fact before plaintiffs secured bills of lading for two of the three cars; but this telegram is not notice to plaintiffs that the defendant would not accept the said cars if more than 15 tons were loaded in said cars.
“(8) The evidence does not show a market for cotton seed at Abilene, Tex., on November 1, 2, 3, 4, and 5, 1915.
“(9) The evidence does not show whether plaintiffs could have sold the seed in controversy at Abilene, Tex., or at what price.
“(10) Plaintiffs did not make any effort to sell the seed in controversy on said dates last above mentioned at Abilene, Tex., and the evidence does not show any market near Lawn, Tex.
“(11) Therp was no custom of dealers in cotton seed in Texas, relative to giving instructions to shipper when the contract is in writing and does not specify the number of tonnage to be placed in the cars when the contract just calls for a car of. seed, or so many cars of seed.
“(12) The following respective numbers of pounds were placed in the following respective cars: A., T. & S. F. car No. 25950, a total of 56,260 pounds; M., K. & T. car No. 71152, a total of 56,920 pounds; Pa. car No. 34116, a total of 76,100 pounds.”

The first assignment presents error in the findings of the court to the effect that the breach occurred on November 17, 1915, and in finding that the appellees, plaintiffs below, did not breach the contract for the reason, it is asserted, that the telegram of date November 1, 1915, which instructed appellee to place only 15 tons in said cars, and that if more than that number was put in said ears it would not receive the seed, and refused to accept the same, and the appellee Sanders, while testifying in his behalf, admitted that he had not made out the bills of lading for the shipment at the time the wire was received. The court’s findings of fact have support in the evidence.

There was no breach of the contract by appellees unless they placed more seed in tlie car than the contract called for. The contract simply called for cars of seed, without stating the number of tons required to the car. The evidence as to the custom is conflicting, and it is also conflicting as to the understanding of what it takes for a car. Some testify 10 tons; some to the capacity of the car or all that could be placed in the car; and some that a customary car of seed was 20 tons or more. The evidence in this case shows the cars of seed were un- . equal in weight, but neither car was loaded to its capacity as to tons, but were as to bulk. A custom must be so universal as to warrant the inference that the parties contracted with reference thereto, and should be established by clear and satisfactory evidence, and must have existed for a length of time so as to become widely and generally known, such as will warrant a presumption that the parties had it in view at the time of entering into the contract. Wootters v. Kauffman, 67 Tex. 488, 3 S. W. 465. The trial court found in this case there was no custom among dealers in cotton seed relative to giving instructions to shippers when the contract does not specify the number of tons to be placed in the cars. The facts in this case will support the court’s findings. On October 31, 1915, the appellant telegraphed and wrote, directing appellees not to load the cars with over 12 tons each, and on November 2d appellees received a wire from appellant that it would only accept 15 tons to the car, and would accept total weight of contract at rate of 15 tons per car. Appellant alleged that 10 tons constitute a car, and sought to prove that fact.

The evidence, on the other hand, showed the cars used in shipping cotton seed were not of uniform size, and further shows it had been the custom to place as much seed in a car as it would hold, and this, owing to their hulk, would not load a car to its capacity in tonnage. No particular size car was designated in the contract, and appellees, as was usual, placed their order with the railroad company for these cars without designating the size or capacity, and loaded none so received to the full capacity as to weight, but put in all they would hold in bulk. Appellant evidently, as to the custom, was not familiar therewith, or did not know it, as is evidenced by his wires. The'evidence shows there was no uniform size of cars used in shipping cotton seed. The appellant, when it made its 'contract, evidently so understood, and should have stipulated in its contract the amount per car or the size of the car if he wished to limit the quantity of seed. After entering into the contract we do not think it could ingraft thereon its interpretation and assign a breach on the failure of appellees to accept its construction. "A contention over, the terms of the contract and a refusal to perform in a particular manner or in some specific feature by one of the parties, would not show an abandonment of the contract authorizing the other party to elect to treat it as rescinded.” Steinlein v. Blaisdell, 44 S. W. 200, 203; Smoots’ Case, 15 Wall. 36, 21 L. Ed. 107. The wires sent by appellant were 'not renunciations of the contract, and if they had been there was no obligátion on appellees to accept such renunciation and treat the contract as abandoned or annulled; neither did appellees, in refusing to comply with the instructions, renounce the contract as made. The facts only evidence a controversy over the construction to be placed upon what a car of cotton seed was.

The second, third, fourth, and fifth assignments will be considered together. As above suggested, st mere controversy over the meaning of the terms of the contract did not require the appellees either to rescind the contract or accept the appellant’s contention. We regard it to have been the duty of the appellees to place on board the cars at Lawn the cotton seed and draw on the appellant for the sum due under the contract, with bill o^ lading attached. It then became the duty of appellant, under its obligation, to pay the draft and receive the seed at Beaumont, where the seed were to be paid for under the termd of the contract. A failure to pay while they were in fact received when delivered f. o. b. at Lawn was a breach of the contract authorizing appellees to recover the damages sustained thereby. The court having found that the cotton seed were shipped as agreed upon, that is no more than was called for by the contract, and that the cotton seed were to be paid for at Beaumont upon bill of lading made to appellant as consignee at that place, and the failure upon its part to receive and pay for the seed left them yet in the actual possession of appellees, or under their control. After appellant refused to accept and pay for the seed at the point agreed upon, appellees did not have the right to do anything which would enhance the damages, and to have shipped them back to Lawn or Abilene for sale on the market at those places would have added further damages which could be easily avoided by selling on the market where they were. It therefore was not necessary to prove the market value of the seed at those two places.

It occurs to us if the seed were not sold to the best advantage appellant should have shown that fact. It was offered an opportunity to buy or to bid on the seed, and it appears to us that the seed was fairly sold and that appellant has no just cause of complaint. The appellees were entitled to compensation, based, as far as possible, on the ascertainment of what they would have suffered by the continued breach down to the time of completing performance, less any abatement by reason of circumstances of which he should reasonably have availed himself. This rule-would apply if it had been found and held that the appellant breached its contract when it wired appellees that it would only accept 15 tons to tlie car. Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953. It is not shown that the market price at Abilene or Lawn was better than at Beaumont. It would certainly be unreasonable to require the appellees to reship the seed to the initial point and there sell them. If there was any reason why they should have done so the record does not show it. In cases of this kind we understand the rule to be that appellees had the right, to sell the cotton seed so shipped as the property of appellant and sell them on appellant’s account and recover the difference between the contract price and the price they brought, together with the necessary expenses effecting that sale. Waples v. Overacre, 77 Tex. 7, 13 S. W. 527; Palestine Ice Co. v. Water Connally Co., 148 S. W. 1109; Texas Seed, etc., v. Chicago Set, etc., 187 S. W. 747, 752 (6); Planters’ Oil Co. v. Gresham, 202 S. W. 145, by this court, not yet reported, and authorities cited in the above cases.

The judgment will be affirmed.

        GzaFor other cases see same topic ana KEY-N UMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HÚEE, O. J.

license: Public Domain

text:
    BEAUMONT COTTON OIL MILL CO. v. REEVES.
    (No. 1327.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1918.
    Rehearing Denied May 8, 1918.)
    Appeal from Taylor County Court; E. M. Overshiner, Jud'ge.
    Action by R. H. Reeves against the Beaumont Cotton Oil Mill Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    R. C. Chamber, of Abilene, and Smith, Crawford & Sonfield, of Beaumont, for appellant. Sayles & Sayles, of Abilene, for appellee.
   HÚEE, O. J.

This is a companion case to No. 1326, Beaumont Cotton Oil Co. v. J. E. Sanders et al., 203 S. W. 372. The facts are substantially the sanje, and the briefs of appellant are identical in this case with the other-case, except as to names, initial point of shipment, and numbers of cars, etc.

For the reasons given in No. 1326, the judgment herein will be affirmed.


author: RASBURY, J.

text:
    CRAWFORD et al. v. GIBSON.
    (No. 7933.)
    (Court of Civil Appeals of Texas. Dallas.
    April 20, 1918.
    Rehearing Denied May 18, 1918.)
    1. Husband and Wipe <&wkey;264 — Property Acquired During Marriage — Presumption.
    The presumption that property acquired during marriage is community property may not, as to bona fide purchasers for value without notice, be rebutted by parol evidence.
    2. Husband and Wipe &wkey;>264 — Property Acquired During Marriage — Presumption.
    The presumption that property acquired during marriage is community property may as between the parties, their blood privies, and purchasers without value or with notice, be rebutted by parol evidence.
    3. Husband and Wife <&wkey;264 — Community Property — Suppicienoy op Evidence.
    In suit involving rights of heirs to lot acquired by husband and wife during «¿narriage, and conveyed by wife after death of husband, held undisputed facts in evidence were sufficient to rebut presumption that lot was community property.
    4. HusRand and Wipe <&wkey;273(9) — Community Property— Sabe by Survivor.
    Whenever right of surviving spouse to sell community property for payment of community debts has been exercised within limitation of law and debts of community paid, it results as a matter of law that property was sold for the purpose of paying community debts.
    5. Husband and Wipe &wkey;>273(9) — Community Property — Sale by Survivor.
    That the motive which induced sale of community lot by surviving spouse was that the surplus above the amount necessary tb pay the community debts should be advanced to a child in financial trouble would not invalidate sale.
    6. Husband and Wipe <&wkey;273(9) — Community Property — Sale by Survivor.
    The existence of community debts authorizes the conveyance of community property by the surviving spouse.
    7. Husband and Wipe <&wkey;273(10) — Sale of Community Property by Survivor — Rights op Purchaser.
    The authority of surviving spouse to sell community property for payment of community debts being general, those dealing with survivor are under no duty to see that funds are applied properly.
    8. Husband and Wipe t&wkey;273(9) — Sale of Community Property by Survivor — Rights op Purchaser.
    Presumption of good faith attends sales of community property by survivor for payment of community debts, and the disproportion between the value of the property sold and the debt, in the absence of fraud, is unimportant.
    9. Process <&wkey; 149 — Impeachment op Return —Evidence.
    Evidence must be clear and satisfactory to impeach officer’s return.
    10. pIocess <&wkey;149 — Impeachment of Return — Evidence.
    Return cannot be impeached by oath against oath.
    11. Process &wkey;>149 — Impeachment op Return-Evidence.
    Failure of officer to identify defendant as party served with citation would not furnish such corroboration of her denial of service as to make it clear, satisfactory, and convincing that she was not served.
    Error from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by L. II. Crawford and others against W. B. Gibson and others. Judgment for defendant named, and plaintiffs and Mrs. Lucy M. Crawford bring error.
    Affirmed.
    Harmon & Harmon and A. S. Baskett, all of Dallas, for plaintiffs in error. Gano & Gano and Muse & Muse, all of Dallas, for defendant in error.
   RASBURY, J.

The plaintiffs in error, L. H. Crawford, George W. Crawford, Mrs. Kate Wilkins, Mrs. Francis Ellis, and Miss Lucy Crawford, sued W. B. Gibson, J. K. B. Crawford, and Mrs. Lucy M. Crawford, in statutory trespass to try title for certain undivided interests in a lot on Crutcher street, in the city of Dallas, and for injunction pencante lite restraining defendant in error, Gibson, and the sheriff of Dallas county from dispossessing plaintiffs in error of said land under authority, of a judgment rendered in the suit of W, B. Gibson v. Mrs. Lucy M. Crawford and J. K. _B. Crawford in the district court of Dallas county. Briefly and generally stated, plaintiffs in error alleged that the property of which defendant in error, Gibson, was threatening to dispossess them was community property of Dr. J. W. Crawford, deceased, and his wife, Mrs. Lucy M. Crawford, which the latter, after the death of Dr. J. W. Crawford, undertook to convey to J. K. B. Crawford, in consideration in part of said J. K. B. Crawford’s promissory note secured in its payment by the vendor’s lien on said land retained in the deed, and which note was, through mesne assignments, acquired by defendant in error, Gibson, who in a suit against Mrs. Lucy M. Crawford and J. K. B. Crawford had foreclosed the lien retained on said land, and was claiming the title and right of possession thereto in virtue of purchase at sheriff’s sale under said judgment, but that, due to the fact that plaintiffs in error were children and heirs of Dr. J. W. Crawford, who died intestate, said conveyance to J. K. B. Crawford was ineffectual to pass the interest of plaintiffs in error in said land, etc. Plaintiffs in error also alleged that the''sale by Mrs. Lucy M. Crawford to J. K. B. Crawford Was simulated, and was but a mortgage in the guise of a deed. Defendant in error, Gibson, among other defenses, pleaded, in substance, first, that the land was the^separate property of Mrs. Lucy M. Crawford, and that she, as a consequence, was authorized to convey it; and, second, if community, that fact was immaterial, since the conveyance to J. K. B. Crawford was for the purpose of paying community debts, and as a consequence conveyed the title. Mrs. Lucy M. - Crawford, who was made a defendant below, and who is a plaintiff in error here, made common cause with plaintiffs in error, and pleaded in addition that the judgment relied upon by defendant in error, Gibson, was void as against her for the reason that she had never been served with citation therein, and because the conveyance to her son was not a sale, but a mortgage, and, the property being her homestead, was void. J. K. B. Crawford, also made a defendant below, defaulted. There was trial before jury, but upon conclusion of the evidence the trial court peremptorily directed verdict for the defendant in error, which was returned, and followed by similar judgment.

The controlling facts deducible from the record, and upon which the trial judge based his action, are in substance these: Prior to the time Mrs. Lucy M. Crawford and her deceased husband came to Dallas they were living in Corsicana upon property formerly owned by their son J. K. B. Crawford, the deed to which was taken in the name of Mrs. Lucy M. Crawford. While J. IC B. Crawford testified that he “thought” he deeded to both his mother, Mrs. Crawford, testified positively that she remembered seeing the deed, and that it was deeded to her, which was not denied by J. K. B. Crawford. The Corsicana home was destroyed by fire, and the sum of $950 insurance thereon collected. Thereafter J. W. Crawford and his wife, Mrs. Lucy M. Crawford, and their children, removed to Dallas, and the property in controversy was acquired April 23, 1899, from C. E. Bird. The deed was made to Mrs. Lucy M. Crawford, and recited that the consideration was “paid and secured to be paid by Mrs. Lucy M. Crawford.” The consideration was $1,650, of which $500 was paid' in cash, the balance being evidenced by three notes, one for $150 and two for $500 each. The vendor’s lien was retained in the deed to secure payment of the deferred payments evidenced by the notes. L. H. Crawford, who was with his father J. W. Crawford when the purchase from Bird was consummated, testified that when Bird asked his father to whom the land should be conveyed he replied, “You had just as. well make it out to Mother; she is liable to live longer than I am.” Mrs. Lucy M. Crawford, the wife of Dr. Crawford, the only other witness who testified concerning what was said at that time, testified that when the property in controversy was acquired her husband was in feeble health, and he told her that he had the property conveyed to her because he knew she would outlive him; that he would die in a year or so — so that she would have the property, so that it might be her “own separate estate,” and that slie so regarded it. The cash payment of $500 and the $150 note were made from the insurance money collected from the policies upon the Corsicana property during the lifetime of Dr. J. W. Crawford. He died August 8, 1901. No administration was had upon his estate, nor was administration necessary. After the death of Dr. Crawford various sums of money were paid on the two unpaid $500 notes, all of it, according to Mrs. Lucy M. Crawford, being advanced by her children in unequal contributions. Of the amount so paid $600 was advanced by L, H. Crawford. From the dafce of the acquisition of the property to the date of the transaction herein detailed it was occupied and used by Mrs. Crawford as her homestead. On July 1,1904, Mrs. Lucy M. Crawford, by general warranty deed, conveyed the property to her son, J. K. B. Crawford. The consideration recited in the deed was $1,900 cash, and the note of the vendee for $1,100, payable to the vendor in one year after date, and secured in payment by the vendor’s lien retained in the conveyance. The cash consideration recited in the deed was not in fact paid. On the same day the note and the vendor’s lien securing its payment of same was assigned to the Investors’ Mortgage Security Company, Limited; also on the same day J. K. B. Crawford, the vendee in the foregoing instruments, hy the usual deed of trust, conveyed the land acquired by him to Robert Balsón for the purpose of securing the original indebtedness to his mother so acquired by the Investors’ Mortgage Security Company, Limited, which note was by the provisions of the deed of trust extended in time of payment to July 1, 1909, and the lien securing same renewed and likewise extended. The Investors’ Mortgage Security Company, Limited, advanced in cash the full amount of the note acquired from Mrs. Lucy M. Crawford, the money being applied as follows: $318 to C. E. Bird in satisfaction of the unpaid 'purchase price upon the land in dispute; $118.80 for state, county, and city taxes; $12.65 insurance premium; $6 abstract of title; $10.75 attorney’s and recording fees; $635 to Mrs. Lucy M. Crawford. The money paid to Mrs. Crawford was by her in turn paid to her son, L. H. Crawford. The money advanced to L. H. Crawford was not in payment of any money he had contributed to his mother, but, so far as disclosed by the record, a contribution. In that connection, as between Mrs. Lucy M. Crawford and her son, J. K. B. Crawford, it was not intended by the conveyance to pass to the latter the title to the property. Their purpose was to secure money for L. H. Crawford, and then reconvey the property to Mrs. Lucy M. Crawford. It was, however, the intention to also pay the debts they did pay in order to secure the money for L. H. Crawford. On August 5, 1904, J. K. B. Crawford, by general warranty deed reciting a consideration of the $3,000 cash which was not paid, conveyed the same property back to his mother, Mrs. Lucy M. Crawford. On April 3, 1907, J. D. Faulkner by assignment acquired from the Investors’ Mortgage Security Company, Limited, the $1,100 note of J. K. B. Crawford. On April 9,1907, Mrs. Lucy M. Crawford, by gen--eral warranty deed reciting a cash consideration of $3,000, which was not paid, reconvey-ed the property to J. K. B. Crawford. On the same day, April 9, 1907, J. K. B. Crawford executed the usual trust deed on said property to W. E. Black, trustee, to secure a note for $1,500, payable to J. D. Faulkner, due one year after date, reciting that said note represented the original $1,100 note given by J. K. B. Crawford to Mrs. Lucy M. Crawford, then due, with accumulated interest, attorney’s fees, and advanced insurance premiums. April 2, 1908, W. B. Gibson, defendant in error, for value, acquired the $1,500 note then due from Faulkner. On the same day Gibson extended payment thereof until April 2, 1910. Thereafter, on March 17, 1909, J. K. B. Crawford again conveyed said property to his mother, Mrs. Lucy M. Crawford, reciting a consideration of $3,000 cash, which was not paid. Thereafter, on March 8, 1913, W. B. Gibson, defendant in error, sued upon said note, making J. K. B. Crawford, his wife, Ella Crawford, his mother, Mrs. Lucy M. Crawford, and M. D. Gano, trustee, parties to the suit, and on May 12, 1913, secured judgment by default against J. K. B. Crawford and Ella Crawford for the amount of the note, interest, and attorney’s fees, and a judgment against the parties named and Mrs. Lucy M. Crawford and M. D. Gano foreclosing the original vendor’s lien, directing the issuance of statutory order of sale, and thereafter execution and writ of possession. Under the terms of the judgment, order of sale was issued, the property advertised by the sheriff and sold to W. B. Gibson, defendant in error, to whom the sheriff executed and delivered the statutory sheriff’s deed. Thereafter this suit was brought to establish the interest of the plaintiffs in error in the land, and to enjoin the sheriff and defendant in error from taking possession of the property under the judgment and in virtue of the sale and purchase under said judgment. In connection with the judgment which forms the basis of defendant in error’s rights, the return of the officer on the- citation issued in that proceeding recites that the same' was executed by delivering to each of the defendants in person a true copy of the writ. Mrs. Lucy M. Crawford testified that while she recalled something of the Gibson suit “coming' up” it was but little, and that she thinks she never was served with citation; that she was never visited by an officer or served with any papers. Tom Ross, the officer who served the process, testified that he went to a residence on Crutcher street; knocked on the door. An old lady, whom he could not now identify, came to the door, whereupon Ross asked for Mrs. Lucy M. Crawford, whereupon the lady whom he was addressing replied, “That is me.” To her he delivered a copy of the citation and departed. On cross-examination, after substantially reaffirming his direct testimony, he testified that he did not know Mrs. Crawford personally, and accepted her word for it that she was whom she claimed to be.

The contention of the plaintiffs in error, aside from an independent issue presented by Mrs. Lucy M. Crawford, subsequently considered, is, in substance, that the property in controversy was the community property of Mrs. Lucy M. Crawford and her deceased husband, and that Mrs. Crawford was without authority, her husband having died intestate, leaving children, to alienate or incumber the interest of the children therein, save to pay community debts, and thén only when it was affirmatively shown that community debts existed, that there was a necessity for the sale, and that the sale was made for the express purpose of paying such debts. All such matters, it is further contended, were matters of fact to be submitted to and determined by the jury, and as a consequence the court erred in directing verdict for defendant in error, for the reason that with reference to such issues the evidence was in conflict. The defendant in error contends (1) that the property was the separate estate of Mrs. Oraw-ford, and as a consequence could be alienated or incumbered at will; and, (2) if community, the sale was in fact made for the purpose of paying community debts.

We 'will first inquire whether the property, under the facts, was the separate estate of Mrs. Lucy M. Crawford. While it is the long-settled rule, as contended by counsel for plaintiffs in error, that property, however acquired during marriage, whether in the name of the wife or husband, or both, is presumed to be community property, and that such presumption as to bona fide purchasers for value without notice may not be rebutted by parol evidence that it is in fact the separate estate of either spouse (Wallace v. Campbell, 54 Tex. 87), it is as well settled -that between the parties, their blood privies and purchasers without value or with notice, such presumption may be rebutted by such evidence. Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626.

We have detailed the facts bearing on the manner and purpose of the parties in acquiring the property in the name of Mrs. Crawford. Succinctly stated, these facts \are that the Corsicana home was deeded by J. IC. B. Crawford to his mother, Mrs. Lucy M. Crawford. J. K. B. Crawford thought he had deeded to both- parents, but it will be observed that he does not deny or take issue with the positive statement of his mother that she saw his deed and that the conveyance was to her, alone. Thus it appears without reasonable eontx-oversy that the Cor-sicana home was the separate property of Mrs. Crawford, being a gift from her son. That place was destroyed by fire, and insurance thereon aggregating $950 was collected, and the family removed to Dallas, and the property in controversy was purchased. Dr. Crawford directed the conveyance of the property to his wife, giving as his reason therefor to his son that his wife would likely outlive him. The reason he gave his wife was that she might have that property as her separate estate. This fact is not a deduction from her testimony, but nearly literally her words. Her statement is of peculiar and controlling force, in view of the relation of the parties. ' To her her husband would most likely explain his purpose in having the conveyance made to her. Supporting such statement is the fact that the initial cash payment of $500 was from the insurance money collected from the Corsicana place, which was apparently the separate funds of Mrs. Crawford. Subsequent to the execution of the deed all parties seemed to regard the propexrty as that of Mrs. Crawford as evidenced by paying the small $150 note out of the insurance money during the lifetime of her husband, and the other payments by unequal contributions by the children in the nature of gifts to their mother. The facts and circumstances so related are without dispute, and it is not a question of conflict in testimony, but rather whether admitted facts and circumstances are of sufficient probative force as to rebut the presumption arising from the conveyance. We conclude they are. While it is true that in law the presumption in cases like the instant one arises despite the deed, yet it is also true that deeds so taken, as it has been repeatedly held, tend to show that it was the intention to make the property the separate estate of the, wife, even though the consideration was paid from the community estate. Emery v. Barfield, 156 S. W. 311, and cases cited. It has also more than once been decided that the presumption that obtains in such cases may be rebutted by the declarations of the husband made at the time. Story v. Marshall, 24 Tex. 306, 76 Am. Dec. 106. No witness, inferentially or otherwise, disputes the facts and circumstances so related. To hold, then, that the property was not the separate property of Mrs. Lucy M. Crawford, would be to discard the undisputed declarations of Dr. Crawford’s purpose at the time the conveyance was made, the conveyance itself, as well as the other facts and circumstances tending to corroborate that proof. We therefore conclude that the undisputed facts in evidence were of sufficient force to rebut the presumption arising at law, so that the issue became one of law rather than fact, and that as' a consequence the court did not err in directing verdict.

We also conclude, should we be in error concerning the status of the property, that nevertheless the purpose of the sale was to pay community debts, and, being for that purpose, plaintiffs in error cannot complain. The testimony discloses, conceding the property for the time to be community, without dispute the existence. and payment of such debts at least to the extent of $318 of unpaid purchase money. But counsel argues that the testimony in like manner discloses that the controlling and ultimate purpose in making the sale was to secure money with which to assist L. I-I. Crawford out of financial stress. The record without controversy sustains such claim. Does that fact, however, affect the result? We think not. The right of the surviving spouse to sell or mortgage community property, and with the proceeds pay community debts, is a legal right.

Whenever that right has, within the limitations of law, been exercised, and debts of the community actually paid, it results as matter of law that it was sold for that purpose.

The fact that the motive which controlled and induced the sale was that the surplus above the amount necessary to pay the community debts should be advanced to a child in financial trouble cannot operate to render illegal that which was at all times legal. It would be paradoxical and irrational to say that one’s present lawful act becomes unlawful because accompanying the lawful purpose is the intention to do something which alone would not have authorized the lawful act. 'Tol so hold would create, in cases like the present proceeding, conditions fraught with unjust and inequitable possibilities to those acquiring property from surviving spouses which had been sold to pay community debts, and would have the effect of requiring them not only to ascertain that the property was sold or mortgaged for the purpose of paying community debts, but, after ascertaining that community debts actually had been paid, would require them to ascertain any secret motive with reference to the usé of the surplus which may have induced the survivor to exercise the unquestioned legal right.

The existence of community debts authorizes the conveyance of community property. Wenar v. Stenzel, 48 Tex. 488.

The authority to sell is general, and those dealing with the survivor are under no duty to see that the funds are applied properly. Sanger Bros. v. Moody, 60 Tex. 96.

The presumption of good faith attends such sales, and the disproportion between the value of the property sold and the debt, in the absence of fraud, is unimportant. Manchaca v. Field, 62 Tex. 135.

Plaintiff in error Mrs. Lucy M. Crawford, defendant in the court below, but who made common cause with plaintiffs in error, assigns as error in this court the action of the trial court in directing verdict against her. Among other issues raised by her, as we have shown, was the claim that she was not served with citation in the Gibson suit, and that hence the default judgment as to her was void. Mrs. Crawford testified in that respect as did the officer who executed the process. We have stated the facts deducible from the evidence of both. The effect of the officer’s statement is that the person served by him at Mrs. Crawford’s residence represented herself to be Mrs. Crawford. The statement of Mrs. Crawford, in effect, is that while she remembers when the case was about to be called that she was never served with citation by an officer.

The rule with reference to the sufficiency of evidence to contradict an officer’s return is -that the evidence must be clear and satisfactory, and not, like the ordinary issue of fact, determined by a mere preponderance of the testimony, but by convincing proof.

The return may not be impeached by oath against oath. Randall v. Collins, 58 Tex. 231.

It is obvious, we think, that the evidence in the present case falls short of being clear, satisfactory, and convincing. At most it is oath against oath. We are unable to agree that the failure of the officer to identify Mrs. Crawford furnishes such corroboration of Mrs. Crawford as to make it clear, satisfactory, and convincing that she was not served. It does not so appear even from her own testimony, because she admits knowing about the suit, and first declares she does not believe she was served, and later says an officer neither visited nor served papers, upon her, and we cannot see how the failure of the officer to identify her furnishes such corroboration for her statements as to bring the proof within the rule. The reasons why such evidence is insufficient are stated at length in the case cited, which is our ruling case, and for that reason we omit any discussion of the fundamentals of the rule.

Finding no reversible error in the record, the judgment is affirmed.
      igc^sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MODERN ORDER OF PRÆTORIANS v. DAVIDSON.
    (No. 5885.)
    (Court of Civil Appeals of Texas. Austin.
    March 6, 1918.)
    1. Insurance <©=»268 — False Warranties— Materiality.
    In the absence of a statute to the contrary, false representations in an application for insurance, which the applicant warrants to be true, will avoid the policy, without Reference to the materiality of such statements.
    2. Insurance <@=5723(2) — Fraternal — Health and Accident — False Representations — Materiality.
    In view of express repeal by Acts 33d Leg. c. 113 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts 4827-4859a), of Acts 31st Leg. (1st Called Sess.) c. 36, requiring false representations to be material in order to avoid policy in fraternal order, and in view of construction of Rev. St. 1911, art. 4947, providing that misrepresentation, to avoid the policy, must bo material, so as to except fraternal orders, the common-law rule applies to fraternal policies.
    3. Insurance <@=5825(1) — Fraternal—False Warranties — Peremptory Instruction.
    Where insured made false representations in application for fraternal accident policy regarding previous sickness and swellings, which he warranted to be true, a peremptory instruction for the insurer should have been given.
    Error from Coryell County Court; H. E. Bell, Judge.
    Action by John E. Davidson against the Modern Order of Prtetorians. Judgment for plaintiff, and defendant brings error.
    Reversed, and judgment rendered for defendant.
    Chas. B. Braun, of Waco, and Lewis M. Dabney, of Dallas, for plaintiff in error. T. R. Mears, of Gatesville, for defendant in error.
   Findings of Fact.

JENKINS, J.

Plaintiff in error is a fraternal insurance association. It issued to defendant in error a certificate of insurance which provided, among other things, that for the loss of a foot it would pay him $500. He lost a foot by amputation, following an injury to same caused by tripping over a wire. Tbe application for insurance, which was signed by defendant in error, provided that his answers therein made, with reference to his health and to diseases, injuries, and accidents which he had had, should be taken as warranties, and that if any such answer was untrue the order should not be liable to him in any amount.

Defendant in error also signed the following certificate:

“I hereby certify that all the answers to the foregoing questions propounded to me by the local medical examiner, and statements made by me in the foregoing, are true as set down.”

The certificate of insurance contained, among other things, the following:

“Provided that this order shall not be liable for the payment of any sum hereunder, unless said member has fully complied with all of the terms and conditions of its constitution and bylaws, and has not .untruthfully answered any questions, or made any untruthful statements to the medical examiner of the order, upon the faith of which this certificate is issued.”

In his application for membership, defendant in error made, among others, the following answers: •

“Question: “Have you now, or have you ever had, any of the following diseases? Answer ‘Yes’ or ‘No.’ * * * Swellings of any kind?”
To which defendant in error answered: “No.”
Question: “Have you now, or have you ever had, any diseases not mentioned? If so, name them, giving'date.”
To which defendant in error answered: “No.”

Diphtheria, measles, typhoid fever, and tonsilitis were not mentioned in the questions propounded to defendant in error.

Defendant in error’s foot was amputated in a sanitarium at Temple, Tex., in February, 1916. At that time he made the following statement as to the history of his case:

“Twenty years ago while jumping I injured the right foot, it became swollen and pained me and I was unable to walk on it for a year. The foot has been tender since then and I have had to limp, but did not have to use crutches. I had typhoid fever about thirteen years ago and was in bed with foot again for about two weeks. This cleared up and the foot was about the same as before. Nine years ago I was in the room six or eight weeks and unable to walk without crutches for four months. Four months ago the foot became swollen and pained me considerably again. I have been on crutches now for two months, and the foot does not seem to get any better. When I was three years old I had the diphtheria. About twenty years ago I had typhoid fever. I have had the measles. I have also had tonsilitis, have had trouble with tonsils a great many winters.”

Defendant in error admitted upon the trial of this case that the statements made by him to the sanitarium were true. We' quote from his testimony as follows:

“When I made the statement in the application that I had not had any diseases, except those mentioned, I suppose that was not true and correct. When I made the statement in the application that I had not had any swellings of any kind, I suppose that was not true and correct.”

Judgment was rendered for defendant in error for $600. „

Opinion.

In the absence of a statute to the contrary, false representations in an application for insurance, which the applicant warrants to be true, will avoid the policy, without reference to the materiality of such statements. Insurance Co. v. Pinson, 94 Tex. 553, 63 S. W. 531; Brock v. United Moderns, 36 Tex. Civ. App. 12, 81 S. W. 340; Ins. Co. v. Blackstone, 143 S. W. 702; W. of W. v. Lillard, 174 S. W. 619; Jeffries v. Insurance Co., 22 Wall. (89 U. S.) 47, 22 L. Ed. 833; 14 R. C. L. 210.

Article 4947, R. S., Act 1903, provides that a misrepresentation to avoid a' policy must be material to the risk. In Prætorians v. Hollmig, 105 S. W. 846, Reppond v. Nat. Life Ins. Co., 100 Tex. 519, 101 S. W. 786, 11 L. R. A. (N. S.) 981, 15 Ann. Cas. 618, it was held by our Supreme Court that this article did not apply to fraternal insurance. By reason of this decision, the Legislature in 1909 (chapter 36, p. 359) made substantially the same provision as to fraternal insurance as was provided in article 4947, in reference to other insurance. Mystic Circle v. Hansen, 161 S. W. 56. In 1913, the Legislature expressly repealed chapter 36, supra (chapter 113, p. 220), and made no provision in reference to misrepresentations in fraternal insurance. Thus the law in this state in reference to misrepresentations in an application for fraternal insurance is as it was when Prætorians v. Hollmig was decided, and as it is at common law.

Defendant in error having made representations in his application for the certificate herein sued on in regard to his previous sickness and swellings, which he warranted to be true, but which were untrue, the trial court should have peremptorily instructed the jury, as requested by plaintiff in error, to return a verdict for the defendant.

It is unnecessary for us to pass upon the other assignments of error.

For the reasons stated, the judgment of the trial court is reversed, and judgment is here now rendered for plaintiff in error.

Reversed and rendered.
      <S=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    CLARK et al. v. MUSSMAN.
    (No. 5887.)
    (Court of Civil Appeals of Texas. Austin.
    March 21, 1918.)
    Limitation of Actions <S=>148(3) — Extension of Note-Statutes.
    Acts 33d Leg. c. 123 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5693-5695), extending the running of the statute of limitations as to notes and deeds of trust, where duly executed contract of extension has been filed of record, does not require contract to be recorded at any particular time, and an extension filed for record some years after its execution, but before renewed obligation was barred by limitation, held sufficient.
    Error from District Court, Travis County; Geo. Calhoun, Judge.
    Action by William Mussman against W. C. Clark and another. Judgment for plaintiff, and defendants bring error..
    Affirmed.
    Hart & Patterson, of Austin, for plaintiffs in error. W. L. White, of Austin, for defendant in error.
   KEY, C. J.

This is an action to recover upon a promissory note and to foreclose a lien upon certain real estate; the plaintiff being William Mussman, and the defendants being W. C. Clark and his wife, S. B. Clark. The plaintiff recovered in the trial court, and the defendants have appealed. The case is submitted in this court upon a written agreement approved by the trial judge, which, after stating the substance of the pleadings, reads as follows:

“It is agreed that the only issues in this case are whether, under the facts in this case, plaintiff’s cause of action and right to recover upon said note, also his right to foreclose his lien securing the payment of said note, are barred by the above-mentioned Acts of the Thirty-Third Legislature, or, in other words, whether plaintiff’s cause of action and right to recover upon said note is barred by said Acts of the Thirty-Third Legislature and whether his right to foreclose the lien claimed by him securing the payment of the note sued upon is barred and cut off by said Acts of the Thirty-Third Legislature.
“It is agreed that the following facts were proven: That the note sued upon was given by Wm. Haschke and Ernestine Haschke to Mrs. Franziska Von Boeckmann, on June 30, 1900, and by its terms was due five years after date, and that no part of said note has been paid, except interest to October 31, 1914. That at the time said note was given its payment was secured by a deed of trust, dated June 30, 1900, given by Wm. Haschke and wife, Ernestine Haschke, to Theo. P. Meyer, as trustee, Mrs. Franziska Von Boeckmann, beneficiary, on lot No. 7, block 58, division E of the outlots of the city of Austin, Travis county, Tex., and lot No. 2, outlot 13, division B of the city of Austin, Travis county, Tex. That said deed of trust was duly signed and acknowledged by Haschke and wife on June 30, 1900, and filed for record in the county clerk’s office of Travis county, Tex., on July 3, 1900, and duly and properly recorded in said office on July 9, 1900. That the defendant W. O. Clark purchased the lots covered by said deed of trust on October 16, 1903, and assumed on October 16, 1903, in the deed to him for said lots, the payment of said note. That said note and the lien of said deed of trust securing its payment was duly assigned and transferred by Mrs. Franziska Mittman (formerly Mrs. Franziska Von Boeck-mann, she being a widow at the time the note and deed of trust were given to her, and after-wards intermarried with J. A. Mittman), joined by her husband, J. A. Mittman, to the plaintiff, on November 2,' 1911. That said transfer was duly signed and acknowledged by Mrs. Mittman and her husband on the day the same was executed and duly filed for record in the county clerk’s office of Travis county, Tex., on November 7, 1911, and recorded on the same day. That the note sued upon and the lien of said deed of trust of June 30, 1900, was renewed in writing by Wm. Haschke (one of the original makers of said note and deed of trust) and the defendant W. O. Clark on December 23, 1907, and the time of payment of said note by said renewal instrument extended to June 30, 1911. That said renewal was duly signed and acknowledged by said Haschke and Clark, but was not filed for record in the county clerk’s office of Travis county, Tex., or anywhere else, until January 20, 1916, and that the same was recorded in proper form and in the proper record book in said county clerk’s office on January 24, 1916. That the note sued upon and the lien of said deed of trust of June 30, 1900, were also renewed in writing by the defendants W. C. Clark and wife, S. B. Clark,’on October 30, 1911, and the time of payment of said note by said renewal instrument extended to October 30, 1914. That said renewal .was duly signed and acknowledged by W. C. Clark and wife on the date it was given, but was not filed for record in the county clerk’s office of Travis county, Tex., or anywhere else, until January 20, 1916, and that the same was recorded in proper form and in the proper record book in said county clerk’s office on January 20, 1916. That no other renewal or extension of the note sued upon and the deed of trust and the lien securing its payment was at any time made or given by any one, except that of December 23, 1907, and October 30, 1911, mentioned above, and that neither of said renewals and extensions was filed for record in the county clerk’s office of Travis county, Tex., until January 20, 1916, and was not recorded until January 24, 1916. That the defendant Mrs. S. B. Clark was a married woman and wife of the defendant W. O. Clark at the time she signed the renewal of October 30, 1911, and has continuously remained a married woman and wife of said W. C. Clark from October 30, 1911, to the trial of this case, and is now a married woman and wife of the defendant W. C. Clark. That this suit was filed by the plaintiff on February 23, 1916, and is the only suit that has been filed by plaintiff, or any one else,_ upon the note and deed of trust involved in this suit, and that no other suit has been filed to recover upon said i note or to foreclose the lien. That the lots described in plaintiff’s petition and upon which he claims to have a lien securing the payment of the note sued upon are situated in Travis county, Tex.”’

As indicated by the foregoing statement, plaintiff in error’s contention is that both the debt and lien are barred by the Acts of the Thirty-Third Legislature referred to in the statement. Those acts are set out in full in the opinion of this court in Cathey v. Weaver, 193 6. W. 490, and, as they are rather voluminous, we shall not copy them in this opinion. They were enacted and became operative in 1913, prior to which time, and on October 30, Í911, appellants had in writing renewed their obligation to pay the debt and the lien by which it was secured, and the payment of the debt had been extended to October 30, 1914. True it is, the instrument evidencing the contract of such renewal and extension of time was not recorded until January 20, 1916, which was about one month before this suit was commenced, but the provision of the statute requiring such contracts of extension to be filed for record does not prescribe that such filing shall be forthwith, or at : any particular time, and as the contract here involved was filed for record before the renewed obligation to pay the debt was barred b’y limitation, and before the suit was commenced, and as the right of no third person is involved, we hold that, as between the parties' to the contract, neither the debt nor lien was barred by that or any other statute of limitations.

This is the only question presented for consideration, and it being decided against plaintiffs in error, it follows that the judg-' ment should be affirmed; and it is so ordered.

Affirmed.
      ©sjRor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    DETROIT FIRE & MARINE INS. CO. v. BOREN-STEWART CO. et al.
    (No. 7914.)
    (Court of Civil Appeals of Texas. Dallas.
    April 6, 1918.
    Rehearing Denied May 11, 1918.)
    1. Insurance <&wkey;328(5) — Change of Title-Contract.
    An agreement to sell insured stock of goods if insurance company would transfer the insurance to the purchaser, not carried out because the insurance company refused to make the transfer, is not a change in the interest or title or possession of the property,_ within the meaning of a policy provision avoiding the policy in case of such change.
    2. Insurance <&wkey;654(l) — Change of Possession.
    Where change of title, interest, or possession of insured goods is claimed to avoid a policy, possession of prospective purchasers under their agreement to purchase, in case the insurance company would transfer the insurance, is immaterial, except as throwing light upon the question of change of title.
    3. Insurance <&wkey;501 — Amount of Liability — Offer to Sell for Less Than Cash Value.
    Under a fire policy provision that the company shall not be liable for more than three-fourths of the actual cash value of the insured property, the company’s liability for damages is not affected by the fact that insured had offered to sell the property for less than its actual value.
    Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.
    Action by Boren-Stewart Company and others against Detroit Fire & Marine Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    E. G. Senter, of Washington, D. C., for appellant. Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for appel-lees.
   TALBOT, J.

The appellees Boren-Stewart Company, a corporation, and Sanger Bros., a copartnership, sued the appellant Detroit Fire & Marine Insurance Company, upon two policies of fire insurance which had been issued by appellant on the 14th day of March, 1914, and on the 6th day of July, 1914, respectively, whereby the appellees’ stock of merchandise and office furniture and fixtures, etc., were insured against all direct loss and damage by fire for the period of one year from the respective dates of said policies, while located in a certain building in the town of Ferris, Ellis county, Tex. The policy issued on the l4th day of March, 1914, was for an amount not to exceed $1,850, $1,-500 of which covered the stock of merchandise, and $350 covered the office furniture and fixtures, etc. The policy issued July 0, 1914, was for an. amount not to exceed $1,250, and covered the stock of merchandise. The property was. destroyed by fire on the 18th day of July, 1914, and appellees alleged that by reason thereof they suffered on the stock of merchandise- a loss of $2,932.19, and on fixtures, etc., $275.50. They further alleged that they were the owners of the property destroyed, and that due notice was given of the loss claimed in accordance with the terms of the policies. The defendant answered with general and special denials, and with the following special pleas: (1) That the policies sued on each contained a provision to the effect that the entire policy shall be void if any change other than by the death of the assured take place in the interest, title, or possession of the subject of the insurance, whether by legal process or judgment, or by voluntary act of the insured, or otherwise; that, notwithstanding said provision of said policies, the plaintiffs, after the execution and delivery of said policies, and before the fire, to wit, about the 6th day of July, 19X4, in consideration of the sum of $1,-500, sold and delivered all of the property to E. H. Cornwell, or E. H. Cornwell & Son, a partnership; that at the time of the fire E. H. Cornwell & Son were in the exclusive possession and control of the property, and were the legal owners thereof, and no consent of the defendant thereto had been obtained, and no transfer of said insurance had been made to said new owners at the time of the fire; that by reason thereof both of said policies were absolutely void at the time of the fire, and defendant is not liable to plaintiffs on either of them. (2) That the consideration for which the plaintiffs sold said property to said Cornwell or Cornwell & Son was the sum of $1,500, and, had said fire not occurred, all they could have realized would have been the sum of $1,500; that it would be against the letter and spirit of said policies, and against public policy, to allow the plaintiff to recover more by reason of said fire than they could have recovered without said fire, if said defendant be mistaken in contending that the title to said property had passed to said purchaser or purchasers, and said policies had been made void thereby, then in no event can defendant be liable to plaintiffs exceeding the sum of $1,500, less the salvage. (3) That defendants had breached the record warranty clause of each of the policies relating to the keeping of books and inventories of the stock, and therefore the policies were void. (4) That the right of cancellation of the policies was retained and duly exercised before the fire. (5) That the defendants had always been ready to pay to plaintiffs the amount of the premiums upon the policies, and plaintiffs had refused to accept the same.

The appellees, by supplemental petition, replied to appellant’s special pleas. The court submitted the case to the jury upon special issues, and they made the following findings: That the actual cash market value of the stock of merchandise described in the policies immediately before the fire, on or about July 19, 1914, at place of said fire, was $1,-660; that the actual cash market value of the furniture and fixtures described in the policies immediately before the fire, on or about July 18, 1914, at place of said fire, was $300; that the actual cash market value of the merchandise saved from said fire was $145; that the actual cash market value of the furniture and fixtures saved from said fire was $145; that the plaintiffs substantially complied with the record warranty provision of each of the policies sued upon.

Upon these findings judgment was rendered in favor of the appellees for the sum of $1,571.70. Appellant filed a motion for a new trial, which was overruled, and the case is now before this court on writ of error.

The first assignment of error complains of the trial court’s refusal to give a special charge requested by appellant directing the jury to return a verdict in its favor. The proposition advanced under this assignment is as follows:

“Said motion should have been granted because the undisputed evidence shows that there was a change of title, interest, and possession of the subject of the insurance after the policies were issued and before the fire of such a nature as to make the policies void, in accordance with their provisions to that effect.”

If, as here contended, the undisputed evidence showed such a change of title, interest, and possession of the property insured; after the issuance of the policies, and before the fire, as rendered the policies void under their terms, the peremptory instruction requested should have been given. We do not, however, agree to the proposition of appellant that such a change was effected. On the contrary, we think the evidence shows, as asserted by appellees, simply an agreement between the assured and third parties, namely E. H. Cornwell & Son, to the effect that the insured property should be sold to such third parties upon condition that the insurance company carrying the insurance on the property would agree to transfer the policies to such proposed purchasers, and that prior to the fire which destroyed the property the insurance company refused to so transfer the policy. Such an agreement, in our opinion, does not constitute a change in the interest or title or possession of the property, within the meaning of the fire insurance contracts sued on. It would extend this opinion to too great length to quote the testimony bearing upon the question in full. The substance of it is that the appellees desired to sell the property insured, and E. H. Cornwell and his son, Guy Cornwell, wanted to buy it. They looked at the property, T. E. Blanchard representing the appellees, offered it to Cornwell and son at $2,500. This offer the Cornwells refused, but offered $1,500 for the property. Blanchard at first declined to accept the offer of $1,500, but later, and after seeing Mr. Jenkins at Sanger Bros., agreed to take it. On July 6, 1914, the Corn-wells went to Blanchard’s office, and there Blanchard took Cornwells’ notes for $1,500, with the understanding that the sale of the property could not and would not be consummated unless the insuraincei company would transfer the insurance policies to the Cornwells. Blanchard, after taking the notes, went to see Mr. French, who had charge of appellees’ insurance, and French was not in his office. Blanchard returned, and told Cornwell that he could not “close the deal that day,” for the reason that he did not know whether or not he could get the insurance transferred to him; that, unless he could get the insurance transferred, appel-lees did not want to make the sale. He further said Guy Cornwell (the son)—

“could go down there to Ferris, and open the business, get the stock ready for business, and begin selling goods with this understanding; that if we could get the insurance transferred to E. H. Cornwell & Son that the deal was closed, but, if we could not, all the cash that Guy, the son, took in down there he could make a report of to us, and .the cash would belong to us, after we paid him for his expenses and paid him for his time. Mr. Cornwell executed the notes for the $1,500, and I agreed with him to hold them on my desk and make no entry of the notes until we had determined the insurance matter, and found out definitely whether we could get the insurance transferred or not. I kept the notes on the desk in my office. I raised the question with Mr. Cornwell again, and said: ‘Let us understand that the stock belongs to the Boren-Stewart Company and Sanger Bros., and you are simply representing these companies, until we can get the insurance on the stock transferred, because we do not want to sell it to you otherwise. We do not want to sell to you on a credit with the understanding that the notes will be paid out of the stock or the sales of the merchandise unless we can get that merchandise insurance in your name.’ That is the last word we had. Guy went down there, took charge of the stock of goods, according to my information, kept a record, and reported to us for the goods. He was to report to us if for any reason the deal was not consummated, and wo were to pay him for his services while there. T do not remember whether Mr. French came back to the office the next day or not, but the matter was on my desk for several days. When he came in he asked me, ‘What about the Ferris matter? Do you still want that insurance?’ I said, ‘No; we want that transferred to E. H. Cornwell & Son, at Ferris.’ I told Mr. Corn-well that I would try to have those policies transferred to E. H. Cornwell & Son, and that if they were not transferred the property was to remain in Boren-Stewart Company and Sanger Bros. I think it was Thursday before the fire that Mr. French reported to me that Mr. Holland, the insurance agent, would not transfer the policies to Cornwell & Son. I phoned to Mr. Holland, the insurance agent, and Holland said, ‘I can’t transfer the policies.’ Mr. French also asked Mr. Holland to transfer the policies to E. H. Cornwell & Son, and Holland told him he could not do it. The money that was received from the sale of the goods before the fire, I think some of it was paid in current expenses down there, and Mr. Guy Gornwell kept the balance and applied it on what we owed him for his services.”

The testimony of the witness T. E. Blanchard is fully corroborated by the other witnesses, and it is without dispute shown that the policies were not transferred to E. H. Gornwell & Son, as contemplated by the parties, and that the insurance company positively refused to so transfer them. E. G. (Guy) Cornwell testified that a price of $1,500 was agreed upon for the property; that Mr. Blanchard told him to go ahead and open up the stock of goods and sell because it was hot weather and there were some perishable goods on hand; that Blanchard told him to keep account of the cash he took in, and that if the sale was completed it belonged to E. H. Gornwell & Son, but if the sale was not completed it belonged to Boren-Stewart Company; that he went down to Perris, opened up the stock of goods as Blanchard instructed him, and kept a daily record of sales, etc.; that when he was getting ready to go down and take charge of the goods Mr. Blanchard said, “If anything happens before that trade is completed, it belongs to Boren-Stewart Company and to Sanger Bros.;” that the stock of goods belonged to Boren- ' Stewart Company and Sanger Bros, until the insurance was transferred; that the “deal is not completed until the insurance is transferred.” This, witness further testified that he kept a record of what he sold and a record of his expenses, and sent them to Boren-Stewart Company; that he deposited the money in the bank, and paid it out for expenses; that he got some compensation for his time, and that the business was open eight days before the fire occurred; that he wasi to be paid for his services, in the event the sale was not completed, a reasonable salary, but that the amount was not fixed; that he charged appellees $60 a month. E. H. Cornwell testified that E. H. Cornwell & Son contracted for the stock of goods at Per-ris, and had just about closed the deal; that when they were getting ready to leave the office of T. E. Blanchard, Mr. Blanchard said:

“Now understand, these goods remain the property of ourselves, or Boren-Stewart Company and Sanger Bros., until these insurance policies are transferred. After the fire I came to Dallas, saw Mi'. Blanchard, and told him about the fire. I asked him if he had had the papers transferred, and he said, ‘No.’ He then canceled the notes and turned them over to me.”

There was no evidence that the possession of the Cornwells, under their agreement to purchase, in any manner increased the hazard, and such “change of possession was immaterial, except so far as it threw light upon the issue as to change of title.” Pennsylvania Fire Ins. Co. v. Stockstill, 197 S. W. 1036. In that case it was held, and we think properly so, that a deed deposited in escrow does not become operative, and passes no title, until the condition has been performed or the event has happened upon which it is to be delivered to the grantee; that where the vendor, who delivers a deed in escrow, has a fire policy on the house situated on the premises, which is destroyed by fire before the conditions of the escrow are performed, the hazard from the fire not being increased, the right to recover on the policy Is not forfeited, under its clause requiring unconditional and. sole ownership. In Stockstill’s Case the following language from R. C. L. 628, is quoted with approval:

“There is no change in the title or right of possession to the property, although the purchaser occupies it with the consent of the vendor in anticipation of completing the contract of sale and purchase. So when, in such case, the vendor has a fire insurance policy on a house situated on the premises, and the house is destroyed by fire while so occupied, and before the conditions of the escrow are perfoi’med, the hazard from the fire not being increased, the right to recover on the contract of insurance is not forfeited.”

That case is analogous and the principles enunciated therein are applicable and controlling here. If, as held in Stockstill’s Case, there was no change in .interest, title, or possession under a contract of sale when, the deed to the property insured was deposited in escrow Ao he delivered to the purchaser upon his compliance with a condition to pay off a lien, etc., and when the purchaser had gone into possession of the property, it is difficult to conceive that there would he a change in the interest, title, or possession of the property insured in the instant ease, when the condition of the agreement of sale was to the effect that the title to the property should remain in the appellees unless the appellant insurance company should transfer its policies to the íwoposed purchasers, the Cornwells. In Stockstill’s Case, as argued by counsel for appellees, the party agreeing to purchase could comply with the terms of the contract by paying off the liens upon the property given by him in exchange for the insured property, but in the case at bar nothing the proposed purchaser could do would put him in .position to demand a transfer of the insured property. Furthermore, prior to the fire the condition named for a transfer of this property had failed; the insurance company had refused to transfer the insurance policies to Cornwell & Son, and the possession of Cornwell & Son when the fire occurred was merely the possession of the appellees.

The case of Fire Association of Philadelphia v. Perry, 185 S. W. 374, is distinguishable in its facts.' In that case the court points out that the insured property was purchased by the plaintiffs in the suit for their brother, B. E. Perry; that he was placed in possession of, it under an agreement that if he paid to plaintiffs $3,000 in monthly payments of $150, and if in the meantime he had refrained from drinking and lived with his wife, the property would be his; that Perry was carrying out his part of the agreement at the time of the fire which destroyed the property, and that had the property not been destroyed Perry could have carried out his part of said agreement, and have become the sole owner of the property. The court then holds that under such a state of facts Perry’s sisters could not, over his protest or objection, have arbitrarily canceled the agreement, and that such a contract and possession constituted a change, other than by the death of the insured, in the interest, title, and possession of the insured property which, under the terms of the policy sued on, avoided it and defeated a recovery thereon. No such state of facts exists in the present case, and its decision is not controlled by the Perry Case. Here the thing necessary to be done in the transfer of the policies of insurance to Cornwell & Son in order to complete the proposed sale was to be done by the insurance company, and not by either party to the contract. Such transfer was purely optional with the company and this was clearly and fully understood by both the appellees and the Cornwells, and nothing either could do would bring about a situation which would entitle either to enforce the contract of sale. The insurance company, in the exercise of its clear legal right, refused to mate the transfer of the policies, and, in consequence thereof alone, consummation of the proposed sale was prevented or defeated, and appellees at the date of the fire were its sole owners. We therefore hold that the proposition of appellant under his first assignment of error, is not sustained by the record, and the assignment will be overruled.

The second assignment of error, in addition to raising the same question presented by the first assignment, asserts that the undisputed evidence shows that there was a breach of the iron safe or record warranty clause of the policies in suit of such a nature as to render said policies void and no recovery can he had upon them. This assignment, like the/first, is not sustained by the record and will be overruled. The jury found that the appellees substantially complied with the record warranty clause of each of the policies sued upon, and this finding is supported by the evidence.

The next and last contention is that the verdict for $1,571.50 is excessive. This contention is made upon the theory that, if ■the appellant is liable upon the policies at all, its obligation is simply to indemnify the appellees to the extent of three-fourths of the actual loss suffered by them; that according to their testimony they had sold the property for $1,500, conditioned that the appellant would transfer the policies to .Cornwell & Son; that if the policies had been transferred and the property burned, appellees could only have suffered a loss of $1,500, and hence they could not lawfully recover in this action more than three-fourths of said amount. The policies provide:

“It is understood and agreed to be a condition of this insurance that, in the event of loss or damage by fire to the property insured under this policy, this company shall not be liable for an amount greater than three-fourths of the actual cash value of each item of the property insured by this policy, not exceeding the amount insured on each item at the time immediately preceding such loss or damage.”

Under this provision of the policies the appellant is liable for the damages suffered not to exceed three-fourths of the actual cash value of the property, regardless, we think, of the question of whether or not the assured had offered to sell it for less man its actual cash value. The jury found that the actual cash value of the stock item of the policy at the time of the fire was $1,650; that the actual cash value of the fixture item at the time of the fire was $300. The jury also found that the actual cash value of the stock saved was $145; that the actual cash value of the furniture saved was $145. The policies provided that any loss should be due and payable 60 days after filing proof of loss. Proof of loss was filed on the 11th day of September, 1914. The court rendered judgment against defendant for $1,571.50. We are unable to say that the verdict is excessive.

Believing that no reversible error is disclosed by the record the judgment of the district court is affirmed.

Affirmed.
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author: KEY, O. J.

text:
    STEPHENVILLE, N. & S. T. RY. CO. v. BAKER.
    (No. 5873.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1918.
    Rehearing Denied March 27, 1918.)
    1. Damages <@=>174(3) — Evidence—Destruction op Trees by Eire.
    In suit against a railroad for damages from three fires caused by sparks from passing engines, where the growing trees destroyed or injured were fruit and shade trees, the orchard being in the rear of plaintiff’s residence, and intended to supply fruit for himself and family, testimony was admissible to show the value of the trees before they were injured, and the extent of their injury.
    2. Damages <@=>112 — Destruction op Trees by Eire — Measure.
    In such suit, the measure of plaintiff’s dam ages was the sum of money necessary to compensate him for being deprived of the trees for the use intended, rather than the difference in the value of the land on which they stood immediately before and immediately after the injury, since the fundamental rule as to the measure of actual damages is the rule of compensation.
    Appeal from Hamilton County Court; Joe H. Eidson, Judge.
    Suit by O. C. Baker against the Stephen-ville, North & South Texas Railway Company. Erom judgment for plaintiff, defendant appeals.
    Affirmed.

      E.| B. Perkins and W. Bi Hamilton, both of Dallas, and A. R. Eidson, of .Hamilton, for appellant. P. M. Rice and Dewey Langford, both of Hamilton, for appellee.
   KEY, O. J.

This is a suit for damages alleged to have resulted from three fires caused by sparks alleged to have escaped from passing engines upon the defendant’s railroad. Verdict and judgment were rendered for the plaintiff, and the defendant has appealed.

The question^ involved in the appeal are not difficult. Circumstances beyond our control have increased the volume of this court’s business, and therefore no extended ■ opinion will be written in this case. Upon some of the questions presented, we announce our conclusions as follows:

1. It may be true, as contended on behalf of appellant, that as a general rule trees and other things growing upon land constitute part of the realty, and that in general the correct (measure of damages for injury or destruction of trees or other growths is the difference between the value of the land immediately before and immediately after .the injury. But that is not an inflexible rule necessarily applicable to all conditions and to every case. In fact, the only inflexible rule as to the measure of actual damages is the rule of compensation. In other .words, in any case where the plaintiff is entitled to recover damages, the sum of money, and no more, which is necessary to make fair and just compensation for the injury is the correct measure of damages. General rules laid down for particular classes of cases may and should be modified whenever it becomes necessary to do so, in order to afford fair and just compensation.

In Pacific Exp. Co. v. Lasker Real Estate Ass’n, 81 Tex. 83, 16 S. W. 793, our Supreme Court said:

“The purpose in every case is to compensate the owner for the injury received, and the measure of damages which will accomplish this in a given case ought to be adopted.”

In Moore v. King, 4 Tex. Civ. App. 397, 23 S. W. 484, this court said:

“It is an axiom of the law that a party injured is entitled to damages commensurate with the injury sustained. The exceptions to this rule exist in those cases of damnum absque in-juria, and when a state of facts exists that entitles the injured party to exemplary damages. The damages recoverable must be either the necessary result of the act complained of, or that arise as the natural and probable consequences of the particular act or acts that occasion the harmful results; and, in ascertaining the result of these acts, the purpose of the' law is to give exact compensation for those consequences that are traceable as the necessary, natural, or probable fruits of the wrongful act. In applying these principles of law to the given case, the courts should not be bound by an inflexible and unvarying rule as to the measure of damages that should apply alike in all cases, but, keeping in view the just principle of compensation, the measure of damages should be adjusted to the facts of the particular _ case, so that the trespasser and tort-feasor will be' held responsible, not only for the necessary result, but the natural and probable consequences of his act. Full indemnity for the injury sustained is what the law exacts; Hence it is difficult and unwise to attempt to lay down a rule of damages that should apply alike to all cases of trover or conversion.”

See, also, and to the same effect, Railway v. Gorman, 2 Tex. Civ. App. 144, 21 S. W. 158; Railway v. Beeler, 126 Ky. 328, 103 S. W. 300, 11 L. R. A. (N. S.) 930, 128 Am. St. Rep. 291, 15 Ann. Cas. 913; and the note to Bailey v. Chicago, M. & St. P. R. Co., 19 L. R. A. 653.

In this case the trees that were destroyed or injured were fruit and shade tres; the orchard being in the rear of appellee’s residence, and intended to supply fruit for himself and family. Such being the case, ,we hold that the testimony was admissible to show the value of the trees as they stood before they were injured, and the extent.of their injury, and that the sum of money necessary to compensate the plaintiff for being deprived of them for the uses intended will come nearer affording actual compensation for the injuries sustained than the opinion of witnesses as to the difference in the value of the land upon .which they stood immediately before and immediately after the injury. Therefore the evidence objected to was admissible, and the verdict is not excessive.

2. We hold that, while the plaintiff’s petition could have presented the two grounds for recovery more clearly and distinctly than was done, still the facts alleged, with the implications which will be indulged in favor of the pleading as against a general demurrer, were sufficient to justify the court in submitting to the jury the two issues of negligence; one relating to the equipment of the engine, and the other relating to the negligence in permitting combustible material to accumulate upon the right of way.

3. The other questions presented have been considered, and are decided against appellant.

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

Affirmed.
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