author: HUFF, C. J.

text:
    REEVES v. FUQUA.
    (No. 937.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 2, 1916.)
    1. Appeal and Error <&wkey;939 — Record — Omissions by Agreement — Presumption.
    A motion to dismiss an appeal from the district court in a proceeding brought in the probate court will be overruled, though the transcript in the Court of Civil Appeals fails to show any regularly certified transcript from the county probate court certified to by the clerk in the record, or any file marks made on any proceedings from the probate court by the clerk of the district court, where the district court's jurisdiction was not questioned in that court and the appeal bond from the county probate court and notice of appeal therefrom are shown by the record, and the certificate of the clerk of the district court appended to the transcript states that it contains a true and correct copy of all the proceedings requested and agreed upon in the cause; the presumption being, in view of Rev. Civ. St. § 2111, providing that the parties may direct the clerk by agreement to omit from the transcript designated portions of the proceedings, that the omissions were pursuant to an agreement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3804-3806; Dec. Dig. <©= 939.]
    2. Appeal and Error <©=5795 — Motion to Dismiss — Waiver oe Objection.
    Where a motion to dismiss an appeal from the district court in a proceeding brought in the probate court does not complain that the file marks of the district clerk are not noted on the transcript, and that a certificate of the clerk of probate court that certain proceedings were had in that court is lacking, such omissions will be deemed waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3142, 3143, 3145; Dec. Dig. <⅜=795.]
    3. Appeal and Error <&wkey;911 — Jurisdiction oe District Court — Presumption.
    Where the record does not affirmatively show want of jurisdiction in the trial court, such jurisdiction will be presumed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3682-36S8; Dec. Dig. &wkey;911.]
    4. Appeal and Error &wkey;>621 — Filing oe Transcript — Time—Appeal Bond — Notice oe Appeal.
    One who, on behalf of herself and children, contested a petition to foreclose a lien against the estate of her deceased husband of which she was administratrix, and alleged in her answer, by which she sought to avoid her allowance as administratrix of petitioner’s claim by setting up that her appointment as administra-trix was void, was defending in her individual capacity, and not in her representative capacity; and hence, since under Rev. Civ. St. art. 3633, otherwise than would have been the case under article 2106, had she contested foreclosure as administratrix, she would be required to give an appeal bond to perfect an appeal from district court, a transcript filed in the Court of Civil Appeals within 90 days after the filing of her appeal bond was filed in time, though more than 90 days had transpired since she gave a notice of appeal, wherein she erroneously stated that she appealed as administratrix as well as in her individual capacity.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2724-2731; Dec. Dig. <&wkey;> 621.]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Petition filed by W. H. Fuqua in adminis tration proceedings on the estate of O. T. Reeves, of which Mrs. Minnie Reeves was ad-ministratrix, to foreclose a lien. From a judgment foreclosing the lien Mrs. Reeves appealed to the district court, and from the judgment of the district court, she appeals to the Court of Civil Appeals, and Fuqua moves to dismiss the appeal.
    Motion overruled.
    W. W. Kirk, R. M. Ellerd, and Mathes & Williams, all of Plainview, and Ocié Speer,' of Ft. Worth, for appellant. Madden, Tru-love, Ryburu & Pipkin and W. H. Kimbrough, all of Amarillo, and Graham & Graham, of Plainview, for appellee.
   HUFF, C. J.

This is an appeal from the district court of Hale county. The appellee moves to dismiss the appeal on two grounds: First, because the record fails to show that the district court had acquired jurisdiction on appeal from the county probate court of that county, this case having originated in administration proceedings in that court; second, that the record was not filed in this court within the time required by law. A petition was filed by appellee in the probate court of Hale county, in administration proceedings upon the estate of O. T. Reeves, deceased, in which appellant, Mrs. Minnie Reeves, was appointed administratrix of the estate of her deceased husband. The petition set out the execution of certain notes, which amount to a large sum, by O. T. Reeves, in his lifetime, and who executed deeds of trust on certain real estate to secure the indebtedness ; that the claim had been presented to the administratrix for allowance, which she did, and which allowance was duly approved by the judge of the probate court. Appellee prayed therein for an order foreclosing the lien and for a sale of the property thereunder. The appellant filed an answer, contesting this petition for herself personally and as mother and next friend for five children, being the children of herself and deceased husband, styling herself through the answer as respondent. This answer contested the right to foreclose the lien prayed for. In this answer she sets up that part of the property upon which the lien was sought to be foreclosed was her separate property; that the orders appointing her administratrix were void; that the claims were not properly allowed and ordered paid, and that the orders so authorizing were void; and that her approval of the claims was procured by fraud. The judge of the county probate court sustained exceptions presented by Fuqua to appellant’s answer in that court, and rendered judgment foreclosing the lien, as prayed for. To this action of the court Mrs. Reeves, as administratrix of the estate of O. T. Reeves, deceased, in open court gave notice of appeal from the judgment of the court therein that day rendered, which was the 16th of June, 1915, and also in a separate order gave notice of appeal as respondent, tlie capacity in which she answered, excepting to the judgment and appealing therefrom. She also gave an appeal bond, by herself as principal, as required by law in appeals from probate court to district court. This bond is indorsed, “Approved and filed June 28, 1915,” by the'-'Clerk of the county court.

The transcript in this court shows the file marks on appellee’s petition to be November 7,1914, by B. H. Towery, clerk of the county court of Hale county. The second amended answer of Mrs. Beeves was filed June 16, 1915, by the same officer, and the same file mark is on the supplemental petition and the supplemental answer. There appears to be no regularly certified transcript from the county probate court, certified to by the clerk in this record, or any file mark shown by this record to have been made on any of the proceedings from that court by the clerk of the district court, from which this appeal is prosecuted. There is an indorsement on the order giving notice of appeal to the district court, made by the presiding judge, and a notation following thereon, recorded June 19, 1915, recorded in volume 2, p. 607, etc., of the probate minutes of Hale county. The order of the county court fixes the bond of appellant at $1,000, directing that the order be recorded, signed by the judge. There is a notation indorsed on it, “Becorded June 19, 1915.” This last order, fixing the bond, is part of the order in which appellant gave notice of appeal to the district court as respondent. The certificate appended to the transcript in this court is as follows:

“I, B. H. Towery, clerk of the district court in and for Hale county, Texas, do hereby certify that the above and foregoing pages 1 to 141, inclusive, contain a true and correct copy of all the proceedings requested and agreed upon in the above entitled and numbered cause, in the district court of Hale county, Texas.”

The transcript was filed in this court December 14, 1915, and the proceedings above set out are included within the pages given in the above certificate. The motion to dismiss the appeal was filed January 11, 1916. If the transcript is otherwise sufficient, we think it is sufficiently shown that the notice of appeal was entered of record in the probate court. The certificate of the clerk to the transcript is not in accordance with article 2109, Bevised Civil Statutes, but no objection is made on that ground. Article 2111 provides that parties may direct the clerk, in making up the transcript for the appellate court, by agreement to omit therefrom any designated portion bf the proceedings. The clerk certifies in this case that the transcript contains a true and correct copy of the proceedings “requested and agreed upon,” which, while not complying with the first article of the statutes cited, may yet be sufficient to show, under article 2111, that it contained all the proceedings deemed material by the parties under an agreement. There is no objection to the transcript that it does not contain the agreement of the parties approved by the trial judge. In the absence of such objection, we believe we are authorized to presume the certificate states the truth. If the parties did not regard a transcript duly certified from the county court material to a disposition of this case, we may look to the transcript as made, we think, to ascertain whether the trial court had jurisdiction by appeal. The effect of the clerk’s certificate is that the 141 (pages contain the correct proceedings as agreed to by the parties material to the disposition of this ease, and which are a part of the record in that ease in the district court of Hale county. Articles 3635 and 3637 require, upon the filing of the appeal bond in the probate court, the clerk to make out a duly certified copy of the proceedings in that court, and when so filed in the district court the case should be placed on the docket and numbered.

The judgment and decrees are in this court, purporting to have been rendered by the probate court. The only thing lacking is the file marks of the district clerk, noted on the transcript, in this court, as required by the rules, and the omission of a certificate by the clerk of the probate court that such proceedings were had in that court. This omission is not part of the motion to dismiss, and it will be. presumed, waived by the ap-pellee. The certificate of the clerk is sufficient to show they are the records of the district court and properly archives of his office and by agreement of parties are all that was deemed by them material to a proper disposition of the case. It appearing therefrom that these various papers are properly part of the record of the district court, from which this appeal is taken, we think they should be looked to for the purpose of ascertaining that court’s jurisdiction, an inspection of which sufficiently shows the district courts had jurisdiction of the case. The appeal bond from the county court to the district court is in the record on this appeal. There is nothing in this case to show that the jurisdiction of the district court was called in question in that court by appellee, and the jurisdiction is not questioned here further than that the transcript does not show such jurisdiction. In the absence of such question being made in the trial court, the presumption is that that court had jurisdiction, and that such matters were omitted in the record here; and this is strengthened by the clerk’s certificate, to the effect that they were so omitted by agreement. Heath v. Garrett, 50 Tex. 264; Lindemann v. Dubossy, 107 S. W. 111; Shiner v. Shiner, 15 Tex. Civ. App. 666, 40 S. W. 439, 440. The Supreme Court, in effect we think, recently approved the Heath and Shiner Cases, supra, in Wells v. Driskell, 105 Tex. 77, 145 S. W. 335, and in some measure distinguishes the appeals from probate and justice courts from each other.

The original papers are required to be sent up to the district court, and the appeal bond is in this transcript as executed by respondent, in an amount the correctness of which is not questioned, and ostensibly for the sum fixed by the probate court. The transcript shows the order fixing the amount of the bond was recorded. The presumption, we believe, is in favor of the trial court’s jurisdiction, and there is nothing in this record impeaching that presumption.

On the second ground, to dismiss the appeal in the court because the transcript was not filed within 90 days after the appeal was perfected, the record shows that the appellant’s motion for new trial was overruled in the district court September 9, 1915. In the order overruling the motion the appellant excepted to the action of the court and gave notice of appeal as administratrix, and also for herself and as next friend for her children. The district court adjourned September 11, 1915. The appellant gave the cost bond for appeal for herself, which was approved and filed in the district court September 24, 1915. The record was filed in this court December 14, 1915. Counting the time from the filing of the bond, it was filed in this court in less than 90 days; counting from the time the motion for new trial was overruled it was filed here within 96 days.

It is contended by appellee that the appeal was perfected on September 9, 1915, when the motion for new trial was overruled and notice of appeal given. It is contended that Mrs. Reeves, as administratrix, gave notice of appeal, and that this was all that was required to perfect the appeal; that this notice superseded the judgment in the district court. We think her action to set aside the orders in the county court, appointing her administratrix, as alleged by her, was void, and thereby releases the administration ; was an action personal to herself and children, who were interested in the property. Her bondsmen on her administration bond would not be liable for the cost in such action brought by her in such a suit She did not institute a suit in the county court to foreclose the lien. She contested the petition, so praying, not as ad-ministratrix, but for herself personally and as next friend for her children. In such action we do hot think she was acting in her representative capacity. Such action being personal on her part, and as such she would be required to give an appeal bond in order to perfect her appeal. Articles 2106, 3633, Revised Civil Statutes. If she had contested foreclosure as administratrix, then she could appeal without bond. While notice of appeal is noted as having been given in her representative capacity, she also gave notice of appeal for herself personally and for her children. We think that she had no right as administratrix to appeal, for as such the administratrix did not contest the administration proceedings. The case cited by ap-pellee (Erwin v. Elrwin, 61 S. W. 159) we do not think applicable to the facts of this case. The recitation of notice of appeal by the ad-ministratrix should be treated as surplusage. It should have no more effect than a notice given by any other person not a party to the proceedings. The appeal is from the action of the court in refusing to grant her prayer as a person and not as a representative of the estate. This, being personal to herself and children, required an appeal bond, and the appeal was perfected upon the date of the filing of the bond. Holman v. Klatt, 34 Tex. Civ. App. 506, 78 S. W. 1088; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Hicks v. Oliver, 26 S. W. 641; Pryor v. Krause, 150 S. W. 972; Tison v. Gass, 43 Tex. Civ. App. 178, 94 S. W. 376.

We will not discuss the affidavits with reference to diligence or failure of diligence, in preparing the record filed in this court, as presented by the respective parties.

For the reasons above stated, the motion to dismiss will be overruled.
      (gz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONLEY, C. J.

license: Public Domain

text:
    WHITLEY v. GULF, C. & S. F. RY. CO.
    (No. 55.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 3, 1916.
    Rehearing Denied Feb. 24, 1916.)
    1. Carriers <&wkey;69 — Carriage of Freight — Conversion — Evidence.
    In an action against a carrier for conversion, where the testimony of the station agent at the point to which the consignee desired to have the goods reshipped that he had authority to arrange for such reshipment was not contradicted, a finding that an agreement with him for such reshipment was not binding was error.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 217-219, 222, 228, 230, 232-239; Dec. Dig. &wkey;>69.]
    2. Carriers <&wkey;94 — Carriage of Freight — Conversion — Damages.
    In determining damages for the conversion of freight by a carrier, secondhand household fixtures are-regarded as having no recognized or fixed market value, but the court should consider the original cost of the property, the manner in which it has been used, its general condition and quality, its age, etc.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. &wkey;94.]
    3. Evidence &wkey;67 — Presumption—Continuance of Condition.
    In an action against a carrier for the conversion of freight, evidence as to the condition and value of the property when it was stored with a furniture company four months before shipment and eight months before the conversion, and that the goods were so well crated and packed that the carrier waived its usual rule requiring payment of freight in advance, is sufficient to raise the presumption that the value continued the same at the time of conversion as at the time of storage.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. &wkey;67.]

      4. Appeal and Ebbob <§=31008 — Review — Finding op Coubt.
    In an action against a carrier for conversion, where the trial court found that both parties agreed that the carrier had the right to sell the goods at public auction unless an agreement had been entered into barring the right, an assignment of error that the carrier did not have such right will not bo considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8955-3960, 3962-3969; Dec. Dig. <§=31008.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by W. W. Whitley against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded for new trial.
    W. R. Blain, of Beaumont, for appellant. F. J. & C. T. Duff, of Beaumont, for appellee.
   CONLEY, C. J.

On the 26th of October, 1913, the appellant, plaintiff in the court below, filed suit against the Gulf, Colorado & Santa Fé Ry. Co., alleging that on or about the 30th day of August, 1912, there were shipped from Palestine, Tex., a lot of household goods and furniture, consigned to shipper’s order, with instructions to notify plaintiff, who was the owner of said goods, and that said goods arrived in Beaumont over the lines of the defendant corporation, and remained at its warehouse in Beaumont up to the 21st day of December, 1912, when they were by the defendant company unlawfully converted to its own use, to plaintiff’s damage in the sum of $1,750.

The defendant railroad company answered, admitting that the goods were shipped from-Palestine, as alleged by plaintiff, and in defense to plaintiff’s suit pleaded that the goods, after having arrived in Beaumont on or about the 10th day of September, 1912, remained unclaimed in its warehouse until the 21st day of December, 1912, when they were shipped to Galveston to be sold at public auction at what is commonly called the “old hoss sale”; that after the arrival of said goods in Beaumont the defendant on various occasions mailed notices to plaintiff of the arrival of the said freight, and that said notices were received by the plaintiff ; that after said goods arrived in Galveston they were duly advertised, as required by law, and in May, 1912, were sold to various parties, who were the highest bidders at the sale; that the total sum realized for said goods at said sale was $109.10; that the freight and storage charges on the goods amounted to $25.45; that the sale was made for the purpose of defraying said charges; and that there was a balance in the hands of the defendant due plaintiff from said sale of $83.65, which sum was tendered into court.

In reply to defendant’s plea the plaintiff filed his supplemental petition, denying that he received any notice of the arrival of said freight in Beaumont, and alleging that, if the sale took place in Galveston, as claimed by defendant, said sale was unauthorized, by reason of the fact that on the 5th day of January, 1913, inquiry was made by plaintiff of the defendant’s agent at Beaumont, the point to which said goods were shipped, as to the arrival and disposition of said goods, and that on the 6th day of January, 1913, W. O. So Relie, the plaintiff’s agent at Beaumont, notified plaintiff that said goods had been received by the defendant at its freight warehouse in Beaumont, and, because of the nondelivery thereof, had been shipped, on December 21, 1912, to the unclaimed freight-house at Galveston, and instructed and advised plaintiff that, if he would take the matter up with the defendant’s agent at Sara-toga, to which point plaintiff wished to have said goods reshipped by defendant, he, the said agent at Saratoga, would be able to have plaintiff’s goods returned to him at Saratoga, and that in accordance with the instructions given him by the defendant’s agent, W. O. So Relie, plaintiff did call upon the defendant’s agent at Saratoga, and requested and directed him to have said goods reshipped to plaintiff at Saratoga, and that the defendant did then and there, acting through its said agent, agree and obligate itself to ship said goods to plaintiff at Sara-toga, that said goods were then in the possession of defendant in its unclaimed freight warehouse at Galveston, and that the defendant was then in position to ship the goods to plaintiff at Saratoga, and it then and there contracted and agreed to have same returned to plaintiff, but that, disregarding its contract to reship said goods, the defendant, on the 5th day of May, without authority in law, sold the goods.

The defendant, in its supplemental answer, admitted that on the 6th day of January, W. O. So Relie notified plaintiff that the goods had been received by the defendant at Beaumont, and that they had been forwarded to Galveston on December 21st, and that the said W. O. So Relie advised plaintiff to take the matter up with defendant’s local agent at Saratoga, but denied the agent at Saratoga agreed or obligated the defendant to have plaintiff’s goods shipped to Saratoga, and denied the authority of the local agent at Saratoga to make any such agreement, and alleged that, if such agreement was made, the said agent was acting beyond the scope of his employment.

The case was tried before the district judge without a jury, who, after having heard the evidence, rendered judgment in favor of defendant, except as to the sum of $83.65 tendered by the defendant to plaintiff, for which plaintiff was given judgment, to all of which the appellant duly excepted, and perfected an appeal from said judgment to this court.

Upon request of the appellant, the court below filed its findings of act and conclusions of law, which are as follows:

“In compliance with the request of the plaintiff, I file the following as my findings of fact and conclusions of law in the above styled and numbered cause:
“Hirst. I find that on August 30, 1912, there was shipped from Palestine, Tex., consigned to Beaumont, Tex., the household furniture and goods set forth in plaintiff’s petition, consigned to shipper’s order notify W. W. Whitley, and that said goods arrived in Beaumont on September 12, 1912.
“Second. I find that said goods remained in Beaumont, Tex., from September 12, 1912, until December 21, 1912, when they were shipped to Galveston, Tex., to be sold there at public auction at what is termed the ‘old boss sale’; that the freight charges thereon were never paid or tendered at any time.
“Third. I find that all unclaimed freight and freight upon which charges are not paid on the Gulf Colorado & Santa Fé Railway Company is shipped to Galveston, and there sold at public auction at what is commonly termed the ‘old boss sale.’
“Fourth. I find that during the time said goods remained at. Beaumont notice that the freight was on hand at Beaumont was mailed by the defendant to the plaintiff on September 23, 10, 17, and October 3, 7, and November 20, 19Í2; that only one of these notices was returned to the railroad unclaimed, which was the notice mailed on November 20, 1912.
“Fifth. I find that after the arrival of the goods at Galveston they were duly advertised for sale as is required by law covering the sale of unclaimed freight, and were properly sold on May 5, 1913, for $109.10. The parties hereto all admitted that the defendant had the right to take said goods to Galveston and sell same, and that the sale was in all respects proper and regular, unless such right was interrupted or interfered with by the alleged contract or agreement of the local agent at Saratoga to have said goods reshipped. Having found herein that no binding agreement or obligation on the company was thereby made, I find the defendant had the right to make such sale, and that same was legal and valid.
“Sixth. I find that at the time of the sale of said goods there was due on same as freight charges, storage charges, and demurrage charges the sum of $25.45.
“Seventh. I find that W. W. Whitley, after his goods had been forwarded to Galveston, to be there sold, went to the local station agent of the Gulf, Colorado & Santa Fé Railway Company at Saratoga, and notified the said agent that said goods were at Galveston, and that he wanted them shipped to him at Saratoga.
“Eighth. I find there is no evidence that the local station agent of the Gulf, Colorado & Santa Fé Railway Company at Saratoga ever notified the defendant at Galveston, or any of its agents at Galveston, or notified the defendants or its agents at Beaumont, that W. W. Whitley wanted said goods shipped to him at Saratoga.
“Ninth. I find that at the time the plaintiff requested the defendant’s local agent at Sara-toga to have said goods shinned to him at Sara-toga that he did not tender the amount of freight and storage charges due on said goods or any amount whatever.
“Tenth. I find that the only evidence of the value of the goods was the value of said goods during March, 1912, as testified to by Mrs. W. W. Whitley, and that there is no evidence of the value of the goods on August 30, 1912, the date on which they were shipped from Palestine, or on September 12, 1912, the day on which they arrived at Beaumont, or on May 5, 1913, the day on which they were sold at Galveston.
“Eleventh. I find that Mrs. W. W. Whitley packed the goods set forth in plaintiff’s petition during March, A. D. 1912, and delivered them to Wyatt, Mclnnis & Denby to be stored by them.
“Twelfth. I find that said goods were delivered by Wyatt, Mclnnis & Denby to the International & Great Northern Railway Company on August 30, 1912, but there is no evidence of the care and treatment of the goods during the period from the-day of March, A. D. 1912, to August 30, 1912, nor of their condition at any time after delivery to said Wyatt, Mclnnis & Denby at Palestine.
“Conclusions of Law.
“From the above and foregoing findings of fact I conclude as a matter of law:
“First. That the defendant Gulf, Colorado & Santa Fé Railway Company', had a right to sell said goods at public sale at Galveston, and that said sale was legal and valid.
“Second. It is my conclusion that no legal or binding agreement or contract was made by the plaintiff with the local station agent of the defendant at Saratoga with respect to a reshipment of the goods from Galveston to Saratoga, or any other disposition of the goods. I further conclude that tie conversation or statements made by the plaintiff to or with the local agent at Saratoga after January 5th did not, in law, amount to notice to this defendant of any claim or demand by th.e plaintiff relative to said goods they being at the time at Galveston, and that same was not sufficient to prevent said sale, or interfere with defendant’s right to sell said goods._
“Third. It is my conclusion that the measure of damages in a suit for conversion is the value of the goods at the time of the conversion, and that the burden of proof is on the plaintiff to show this value, and that the burden is not discharged by proving (if such was done) the value of the goods at a period of at least five months prior to the date of the conversion, and at least five months prior to the delivery of said goods to the railroad company at Palestine.
“It having been agreed that at some time (not stated) defendant tendered to plaintiff the difference between the amount received from the sale and the freight and other charges, the court renders judgment for plaintiff against defendant for said amount, together with costs (as to costs, there is no objection).”

Appellant, under tlie second, third, and fourth assignments of error, attacks the holdings of the court that there was no valid and binding agreement or obligation on the part of the defendant railroad company to reship said goods from Galveston to Saratoga, and that the agent at Saratoga was without authority to bind the company to reship said goods. The evidence is practically undisputed:

That on or about the 6th of January, 1913, plaintiff received a letter from W. 0: So Relie, agent of defendant company, as follows:

“In reference to your favor of 5th in regard to some household goods shipped from Palestine August 30, 1912, these goods remained in our warehouse unclaimed for four months, and were forwarded to our unclaimed warehouse on December 21st, covered by my waybill 2340. If you will take the matter up with our agent at Saratoga, he will be able to have the goods returned to you at Saratoga.”

That thereafter, he took the matter up with the agent at Saratoga, showed him this letter, and that the agent there stated that he had also received a letter from Mr. So Relie, and that he -would have the goods returned as plaintiff requested, to the plaintiff, at that point, and that he (plaintiff) repeatedly, after receiving the letter, and up to the time he learned of the sale of the goods, tried to have them reshipped to Saratoga. That C. L. Stevens was the agent of the Santa Fé at Saratoga, and that he (Stevens) knew the plaintiff, and that he remembered the plaintiff coming to him about the shipment of household goods. That he (plaintiff) wanted them forwarded to Saratoga. That he could not remember the details of the matter, but that the files at the Saratoga office would probably show all the correspondence affecting the same. That he had been in the railroad business working for the Santa PS 10 or 12 years. That it would have been his duty to write the auditor of the railroad at Galveston to have plaintiff’s goods reshipped to Saratoga, and that he had authority to do this, and that his recollection is that he traced the shipment. That W. O. So Relie, who wrote the letter herein referred to, was the agent of the defendant company at Beaumont at that time. That he knew Mr. Whitley was after the goods in question. That he knew they were in Galveston. That he received a letter from Mr. Whitley making inquiry about them. That he immediately took it up and advised him (Whitley) to consult with the agent at Saratoga, and that the agent at Saratoga had authority to have the goods reshipped from Galveston to Saratoga.

The appellee relies upon the following cases to sustain the judgment of the court, holding that the agent at Saratoga did not have authority to act in the matter of having the goods reshipped from Galveston to Saratoga, to wit: M., K. & T. Ry. Co. v. Belcher, 88 Tex. 549, 32 S. W. 518; G., C. & S. F. Ry. Co. v. Dinwiddie, 21 Tex. Civ. App. 344, 51 S. W. 353.

In the case of M., K. & T. v. Belcher, supra, the plaintiff attempted to recover special damages from the railroad by reason of the delay in the delivery of a carload of cotton seed. The hulls were to be shipped from Sherman to Gainesville. The consignee went to the local agent at Gainesville and told him of the purpose for which the hulls were to be used, and told him of the necessity for prompt delivery. The shipment was delayed and suit was brought against the railroad company. On certified question from the Court of Civil Appeals to the Supreme Court, the certificate containing, among other things, the following statement:

“The evidence does not inform us as to the extent of the power actually conferred by appellant [the railroad company] upon its * * * station agents, etc.,” and “whether notice to the agent at Gainesville was notice to the company, and whether it was within the scope of his agency to transmit the information received to the agent at Sherman,”

—in answering these questions, the Supreme Court said:

“The general rule is that notice to the agent is notice to the principal. The word ‘agent,’ as used in this connection, means the person who has power to act for the principal with reference to the very subject-matter to which the notice relates, and does not include a person who has no such power, though he may have power to act for the principal with reference to similar subjects. The words ‘agent’ and ‘act’ are from the same root, and the above limitation of the use of the former is inherent in its derivation. Prima, facie the person in charge of the station at Gainesville, who is commonly termed the station agent, had no power to act for the company in reference to the making of the contract of shipment of the car of hulls from Sherman. The car did not come within the apparent scope of his agency until it reached Gainesville. Until then he had no power to act for the company with reference thereto, and the use of the word ‘agent’ with reference to him, in the application of the general rule above stated to the facts of this case, is inaccurate and misleading. It follows that the notice to him was not notice to the company. * * ⅜
“Por the same reasons, we do not think it was within the apparent scope of his agency to transmit the information to the agent at Sherman, and therefore his failure to do so would not render the company liable, any more than if the information had been delivered to an entire stranger to the company, and he had failed to transmit. We know of no principle of law requiring an employs to transmit to another employé of a common employer information given him by a stranger in reference to business beyond the scope of his agency, or that will impute knowledge of such information to the other employs or the master upon his failure to transmit. We therefore answer the first question certified in the negative.”

In the case of Railway Co. v. Dinwiddie, supra, the court held that a railroad agent at one station had no authority to contract to furnish cars at another station, and that, if he did make such a contract, he was acting outside the scope of his authority. There was nothing in the record of that case which undertook to disclose what the authority of the agent was in such matters.

The sum and substance of the rule announced by the Supreme Court in the Bel-cher Case is that, in the absence of a showing of authority, a local agent has no right to bind his company concerning matters and transactions beyond his own station, as well as outside of his department of service, and all of the cases since that time, upon examination, will be found to be based upon facts where the record is silent as to the authority of the agent to act. I. & G. N. v. Sammon, 35 Tex. Civ. App. 96, 79 S. W. 854; Railway Co. v. Jackson et al., 99 Tex. 343, 89 S. W. 968; Railway Co. v. Cox, 47 Tex. Civ. App. 84, 103 S. W. 1122; G., C. & S. F. v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 767; Gathright v. Pacific Exp. Co., 105 Tex. 157, 145 S. W. 1185; Railway Co. v. Breaux, 150 S. W. 288; Anderson v. Railway Co., 156 S. W. 358.

The rule as announced is a logical one; for the law of this state doees not fix nor superscribe the duties of a local station agent. The breadth and scope of the duties of such agent is a matter of proof. In the absence of such proof, there is no apparent or implied authority to act.

In the instant ease the testimony is un-contradicted, and the proof unassailed by appellee, that the agent at Saratogo had the power and authority to have appellant’s goods reshipped from the company’s warehouse at ■Galveston to Saratoga, Tex., and in this respect it differs from the other cases cited and relied upon by appellee to sustain the trial court’s judgment.

For the reasons herein stated, we think .appellant’s second, third, and fourth assignments of error should be sustained.

Appellant, in his first assignment of error, attacks the holding of the court that the evidence was not sufficient to establish the value of the goods at the date of their conversion and sale.

The rule in this state seems to be well settled that secondhand household effects are regarded as having no recognized or fixed market value, in cases of the kind under consideration, and in determining the amount of ■damages to be awarded for their destruction the court should consider the original cost of the property, the manner in which it has been used, its general condition and quality, its age, etc., Wells Fargo Exp. Co. v. Williams, 71 S. W. 315; Railway Co. v. Nicholson, 61 Tex. 550.

The record shows that the plaintiff introduced evidence by his wife to the effect that in the latter part of March, 1912, she packed the goods in question at Palestine, and stored them with dealers in furniture in that city to be subsequently shipped to Beaumont, and that she had not seen the goods from the time she packed them; this witness also testifying as to the cost bill value of each item, the age, use, and condition when stored, that the goods consisted of rugs, bed linen, feather pillows, table linen, clothes, pictures, music, furniture, and, among other things, a piano, and the amount which she considered their value to her and to plaintiff at the time they were packed and stored at Palestine.

Mr. So Belle, the agent for the defendant company, testified that it was the custom to ship household goods only when the freight was prepaid, but—

“if household goods are in good condition, are well crated and well packed, sometimes we take them without being prepaid. It is exceptional. The rule is that they be prepaid.”

Appellee contends that the measure of damages for the conversion of property is the value of the goods at the time of conversion, and that the burden of proof was on the appellant to. establish this value by competent evidence, and that the only evidence in this case in respect to the value of the goods or of their condition is confined to the condition of the goods at the time she packed them, which was four months before they were delivered to. the railroad company, and nearly ten months before the date of the alleged conversion.

In the case of Monday v. Vance, 51 S. W. 349, personal property had been sequestered, and a replevin bond subsequently given. The value of the personal property sequestered and replevied was alleged to be $1,000. The proof as to the value of the property was confined to such value at the time it was replevied, and not at the time of the trial, and the court held in that case that such property would be presumed to be of the same value at the time of the trial as when replevied, in the absence of proof to the contrary. A like presumption was indulged by the court in the case of Norwood v. Interstate National Bank, 45 S. W. 927, and again in the case of Levy v. Lupton, 156 S. W. 362.

In the instant case the testimony is undisputed that the personal property involved in this suit was stored in a warehouse under the supervision and control of people who were in the furniture business; that the goods at the time of the delivery to the railroad company at Palestine were in such condition and so well packed as that the general rule and custom to demand prepayment of freight on household goods was waived. Under the testimony of Mr. So Relie, this custom was only exercised when the goods “were in good condition, well crated and well packed.” Shortly after that time the goods came into the possession of the defendant company, and remained under its supervision and control until they were sold in the following May, 1913. There is no evidence of any sort or kind in the record showing that the goods were exposed to the weather, or to any conditions which would causo them to be deteriorated in quality so as to show a depreciation in value between the time they were packed and the time they were alleged to have been converted. Under the circumstances of this case, we think the rule can be applied presuming that they were in the same condition when converted that they were in when left in storage with the furniture company at Palestine. We therefore think appellant’s first assignment of error, for the reasons herein stated, should be. sustained.

In view of the fifth finding by the trial court to the effect that the parties hereto all admit that the defendant company had the right to take said goods to Galveston and sell the same, and that the sale was in all respects proper and regular, unless such right was interrupted or interfered with by the alleged contract of agreement of the local agent at Saratoga to have said goods reshipped, we refuse to consider appellant’s fifth assignment of error, which is, in substance, that the defendant company had no right to sell the goods of appellant in the “old hoss sale.”

It follows that this cause will therefore be reversed and remanded for a new trial; and it is so ordered.
      &wkey;sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    BRUCE v. CITY OF GAINESVILLE.
    (No. 8408.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 15, 1916.
    On Rehearing, Feb. 19, 1916.)
    1. Municipal Corporations <§=720 — Public Market Place — Regulation—Police Power — Eppect op Grant.
    That land was granted to a city to be used for a public trading and market square, open to the public generally, did not deprive the city of its right, in the proper exercise of its police powers, to regulate trading thereon.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1536-1541; Dec. Dig. <§=720.]
    2. Municipal Corporations <§=5720 — Public Market Place — Regulation—Validity.
    Under the Gainesville City Charter, art. 2, § 23, providing that the city council may make all needful regulation as to the sale of farm 'products, and article 3, § 7, authorizing the council to assess, license, and tax hawkers and peddlers, the city had power to enact an ordinance, prohibiting persons engaged in the business of purchasing farm products from others from displaying and selling such products in the public market place maintained by the city, and streets and .alleys adjacent thereto.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1536-1541; Dec. Dig. <§=720.]
    3. Municipal Corporations <§=720 — Public Market Place — Regulation—Validity op Ordinance — Classification.
    An ordinance, prohibiting the use of the public market square and streets and alleys adjacent thereto to sell or display farm products and exempting therefrom those who sold or displayed products grown on land owned or controlled by them was not invalid because of discrimination against nonproducers.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1536-1541; Dee. Dig. <§=720.]
    4. Constitutional Law <§=48 — Validity of Classification — Presumption.
    Where there could have existed a state of facts justifying the elasssification made by a statute, the courts will assume that it existed.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. <§=48; Statutes, Cent. Dig. § 56.]
    5. Municipal Corporations <§=720 — Public Market Square — Regulation—Validity of Classification — Presumption.
    An ordinance, prohibiting the use of the market square and streets and alleys a'djacent thereto to sell and display products grown on land not owned or controlled by the seller was not merely to confer a special privilege on the producing classes, but to afford citizens of the city an opportunity at all times to secure fresh farm products and exclude those which are stale.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1536-1541; Dec. Dig. <§=720.5
    On Rehearing.
    6. Courts <§=247 — Court of Civil Appeals — Certifying Questions to Supreme Court.
    In cases in which the Supreme Court has jurisdiction on a writ of error, the Court of Civil Appeals will decline to certify a question to the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752; Dec. Dig. <§=247; Appeal and Error, Cent. Dig. § 1773.]
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    Injunction by G. W. Bruce against the City of Gainesville. From an order refusing to grant a temporary injunction, plaintiff appeals.
    Affirmed.
    J. T. Adams, of Gainesville, for appellant. Davis & Davis and W. G. Howeth, all of Gainesville, for appellee.
   CONNER, C. J.

This is an appeal from an order of the district court of Cooke county refusing to grant a temporary writ of injunction. Appellant’s petition for the writ attacks the validity of the following ordinance passed by the city of Gainesville:

“An ordinance, prohibiting the use of the market • square and the streets adjoining thereto, for the purpose of vending or displaying goods, wares, merchandise, or produce or other articles, or for the purpose of peddling goods, wares, merchandise or produce or other articles. Exempting from the provisions of this ordinance, persons who vend, display or peddle goods, wares, merchandise and other articles raised or grown upon land owned, rented or controlled by him. Providing a penalty for violating the ordinance and declaring an emergency.
“Be it ordained by the city council of Gaines-ville.
“Section 1. It shall hereafter be unlawful for any person to use the market square or any of the streets or alleys adjacent thereto in the city of Gainesville, Cooke county, Texas, for the purpose of vending or displaying goods, wares, merchandise, produce or other articles. Provided however that this ordinance shall not apply to any person who himself offers for sale, vends, displays or peddles nothing except products raised or grown or produced by himself, or any member of his family residing with him upon property owned, rented or controlled by him.
“Sec. 2. Any person who violates any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one dollar nor more than one hundred dollars.
“Sec. 3. The fact that there is now no ordinance regulating the use of the market square in the city of Gainesville, Texas, or the streets adjacent thereto, and the further fact that raisers and growers of produce are being deprived of the benefits of the market square and by reason of persons who buy and sell and peddle such produce taking stands for days at a time, create an emergency -and an imperative public necessity that the rule requiring ordinances to be read on three several meetings of the council should he suspended and this 'ordinance be placed upon its third and final reading and passage and that it take effect from and after its passage and said rule is hereby suspended and that this act take effect from after its passage and it is so ordained.
“Unanimously adopted by the council, this the 7th day of Sept., 1915. J. Z. Keel, Mayor. “Attest: E. M. Johnson, City Secretary.”

Appellant alleged, in substance, that the block of land to which the ordinance relates had been purchased by the city in 1910, certain citizens of the city and county named having contributed $2,000 of the purchase money; that as a part of the consideration for the deed it was provided that said— “land shall be designated and set apart by said city as.a public market place and maintained as such permanently and kept in good sanitary condition.”

That it was the intention of the grantors in the deed, and of the city in accepting the transfer, that the block of land should he used for a public trading and market square, as a place where all citizens of the county and public generally could go, free of charge, and expose all character of farm products, fruits, vegetables, and live stock for sale or trade, and where any and all such property could be sold, bartered, and exchanged; that upon the acquisition of said property the city prepared said block of land for the purpose so indicated and dedicated the same to that use, and has continually so maintained it since. It was further alleged that:

“The plaintiff is now engaged in farming and producing farm products and fruits and vegetables, and is also engaged in buying up farm products and fruits and vegetables, and selling the same from his farm wagon on said public market square at retail to the public generally throughout the county, and has been so engaged many years, and has built up and established a demand for the fruits and vegetables and farm products produced and purchased by him from others; that his net profits arising out of the purchase and sale of such farm products and fruits and vegetables equaled the sum of $40 per month, which sum he was realizing out of his business at the time of the adoption and publication of the ordinance complained of.”

It was further alleged that the enforcement of the ordinance quoted exposed the plaintiff to vexatious and oppressive criminal prosecutions, and deprived him of valuable property rights, and it is insisted that the ordinance is void in that it is discriminating, restricts the right to engage in a legitimate trade, and is in violation of the contract made with the parties who sold the market square to the city. •

It is not alleged, nor does it otherwise appear from the proceedings, that the plaintiff was a party to the contract under which the city acquired the property, so that, if at all, it is by indirection only that a right of action in appellant exists for a breach of its terms. The city made no agreement with appellant to dedicate and use the block of land conveyed as a market place, and those who were parties on the face of the agreement are not complaining. But in no event do we think that the conveyance to the city or agreement alleged should receive a construction that would deprive the city of a proper exercise of its police powers. Appellant alleges that he is engaged, not only in producing farm products, fruits, and vegetables, but also that he is engaged in purchasing—

“from other farmers farm products and fruits and vegetables, and has been for many years displaying and selling the same from his farm wagon stopped on the said public market and trading square.”

It is not pretended that the appellant is prohibited by the ordinance or has been in any manner impeded in the sale of farm products, fruits, and vegetables produced by him. So that, at least the question resolves itself into whether the ordinance is a valid exercise of the legislative powers of the city of Gainesville in prohibiting persons who are engaged in the business of purchasing farm products from others and displaying and selling the same on the market square.

Appellant sets out section 23, art. 2, of the charter of the city, which is a special one providing that:

“The city council shall have the power and authority to make all needful and necessary regulations in regard to butchers and persons selling meats, farm products, fish, vegetables, and fruits, and all foodstuffs and to require the same to be inspected and condemned if not found wholesome, and to provide penalties for violations thereof.”

Also section 7, art. 3, providing that:

“The city council shall have power to assess, license, and tax hawkers, peddlers, and auction-, eers,” etc.

And it is contended that the power thus given to the city is the power to regulate and tax, and not to prohibit, as the ordinance complained of provides. It is admitted, however, that the charter contained further provisions conferring upon the city'the general right to control the public streets, alleys, and public grounds of the city and to abate nuisances, and we think under this general power the ordinance in question must be maintained. It is to be observed that the ordinance contains a clear classification of the persons who are prohibited from the use of the market square, as appellant sought to do. All persons within the nonproducing class are by the ordinance treated alike. As between them there is no discrimination. Nor is there any preference right or discrimination made between the persons within the general classification of producers of farm products, vegetables, etc. As such, plaintiff, in common with all other persons, is, under the terms of the ordinance, entitled to the use of the square. And under the wide range given to legislative bodies in classification generally, we cannot see how appellant has legal cause to complain on this ground. As said by our Supreme Court in the case of Supreme Lodge, U. B. A. v. Johnson, 98 Tex. 5, 81 S. W. 19:

“The Legislature may classify persons, organizations, and corporations according to their business, and may apply different rules to those which belong to different classes.”

In this respect there can be no difference in a classification made by the Legislature and in one made by the legislative body of an incorporated city given legislative powers in the control of its public streets, alleys, and grounds, and, as was said in the case of Nolen v. Riechman (D. C.) 225 Fed. 812, cited by us in the case of Auto Transit Co. v. City of Ft. Worth (No. 8304) 182 S. W. 685 to which we also refer for a discussion of the subject:

“The presumption is always in favor of the validity of legislation; and if there could exist a state of facts justifying the classification or restriction complained of, the courts will assume that it existed.”

It is in effect insisted that the object of the ordinance in question was to confer upon the producing classes an especial privilege, but we cannot say that this was the only object of the ordinance. It is admitted that the city has such police powers as is necessary to protect the life, health, and safe-being of its citizens, and it may be well said that the object of the ordinance was to afford citizens of the city of Gainesville an opportunity at all times to procure fruits, vegetables, and farm products generally, fresh from the soil, and to exclude stale vegetables and other deteriorated farm products secured and exhibited by nonproducers. As illustrating the thought there suggested, we may refer to the ease of St. John v. New York, 201 U. S. 633, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 Ann. Cas. 909. The ordinance there under consideration was intended to prevent the sale of adulterated and unwholesome milk, and provided certain penalties for the sale of milk below a specified standard. The ordinance it seems also provided for the taking of samples of milk exhibited for sale in creameries and factories, and that if upon an analysis it was found that the sample inspected was below the specified standard, an analysis of the milk as it came from the cow of the producer might also be made, and if the analysis of the sample was not lower than the analysis of the fresh milk, then the penalties of the act would not apply to the producer'. Such exemption, however, was made not to apply to the nonproducing seller of the milk, and the ordinance was complained of, as here, on the ground that it was discriminating. The court, however, held that it was within the power of the city to make the classification indicated, that it was not unreasonable, and the ordinance was upheld as a valid exercise of the police powers of the city.

The case of Ex parte Bradshaw, 70 Tex. Or. R. 166,159 S. W. 259, is closely in point. The ordinance there considered is very similar to the one here under consideration. It made it unlawful to use streets or alleys embraced within the fire limits of the city for the purpose of vending, displaying, or peddling goods, but provided that the ordinance should not apply to one offering for sale any product raised upon property controlled by himself. It was held by our Court of Criminal Appeals, speaking through Justice Prendergast, that no vested right existed in persons to make a market of the streets and public places of an incorporated town, and that to deny them the privilege of so doing is not to deteriorate any of their property rights, and the ordinance under consideration was upheld on the theory that the classification between producing and nonproducing persons made by the ordinance was a reasonable and valid exercise of the powers of the city.

Without further discussion, we conclude that the order of the court below denying an injunction sought must be upheld, and the judgment affirmed.

On Rehearing.

We have again considered the question presented and discussed on original hearing, and think that, whatever force should be ascribed to the authorities cited in behalf of appellant on his motion for rehearing, we must adhere to the conclusions originally announced, particularly in view of the opinion of our Court of Criminal Appeals in the case of Ex parte Bradshaw, 70 Tex. Cr. R. 166, 159 S. W. 259, construing an ordinance very similar to the one attacked in this case.

In answer to the suggestion that wa certify the question involved to the Supreme Court for its determination, we will add that it has been the ordinary practice of this court, in cases in which the Supreme Court has jurisdiction upon a writ of error, to decline to certify. See Day v. Mercer, 175 S. W. 764.

It is accordingly ordered that the motion for rehearing be overruled.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    AVERY CO. OF TEXAS v. STAPLES MERCANTILE CO.
    (No. 5595.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.)
    1. Evidence @=434 — Parol Evidence Rule —Written Instruments.
    While parol evidence is not ordinarily admissible to contradict the terms of a written contract, purchasers of an automobile truck who were deceived into believing that they were buying a new truck when, in fact, the truck was secondhand, cannot be denied relief on account of fraud, because the order blank contained a written warranty providing only for replacing broken parts and guaranteeing against defective material and workmanship; the parol evidence rule not applying in case of fraud.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Doc. Dig. <©=>434.]
    2. Sales <§=>266 — Rights oe Purchaser — New Article.
    A purchaser of an automobile truck from a manufacturer is entitled in the absence of special agreement to assume that it is new.
    [Ed. Note. — For other cases, see Sales, Cent, Dig. §§ 743, 746, 747, 754-759; Dec. Dig. <©=> 266.]
    3. Sales <©=>397 — Actions—Petition.
    Where the purchasers of a motor truck contended that it was secondhand and wholly unfit for use, they may plead and prove amounts expended in attempting to operate the motor as a circumstance establishing that it was defective ; no recovery for such amounts being sought.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1136; Dec. Dig. <§=>397.]
    4. Sales <§=>288 — Rescission — Ground of Rescission.
    . Where a motor truck was sold under a warranty of materials and workmanship for one year, the buyer’s failure to repudiate the contract as soon as it discovered that the truck was useless will not bar recovery where the contract was repudiated within a year.
    (Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 817-823; Dec. Dig. @=288.]
    5. Trial @=141-JTury Questions — Issues.
    It is unnecessary to submit to the jury matters admitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. @=141.]
    6. Sales @=391 — Secondhand Articles — Price.
    Where the seller of a motor truck representing that it had been used occasionally for demonstrating, deducted $50 from the price of $2,100, the deduction is no ground for defeating an action by the buyer to recover the purchase price; the truck being secondhand and wholly unfit for use.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1110-1127; Dec. Dig. @=>391.]

      7. Sales @=392 — Purchase Price — Recovery.
    Where a motor truck sold was wholly worthless, the buyer may recover the purchase price paid without returning the truck.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1128-1131; Dec. Dig. @=392.]
    8. Sales @=397 — Contracts—Warranties.
    Where a motor truck was sold under a guaranty of materials and workmanship for one year, and the buyer sought to recover the price paid on the ground that the truck was wholly useless and secondhand, testimony of the buyer that the seller agreed, in case of any trouble, to furnish a skilled mechanic to place the truck in condition, was admissible-to show good faith of the buyer in requesting that a mechanic be sent; such evidence not tending to vary the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1136; Dec. Dig. @=397.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Action by the Staples Mercantile Company against the Avery Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. M. Wurzbach, of Seguin, and Burgess, Burgess, Germany & Chrestman, of Dallas, for appellant. Greenwood & Short and Dib-rell & Mosheim, both of Seguin, for appellee.
   CARL, J.

Appellee sued appellant for $2,050 paid as the purchase price by appel-ee from appellant of one model type A Avery farm truck. The sale of the truck was about August 4, 1918, and the notes given in part payment therefor were paid about their maturity, October 1, 1913. Alfred Koebig was' originally made a defendant along with the Avery Company of Texas, since he was the local agent who effected the sale of the truck, but he was subsequently dismissed from the suit. More of this later in the opinion.

The petition charges that, when the purchase was completed, appellee was requested by appellant’s agent to sign an order blank addressed to Avery Company of Texas at Dallas, Tex., requesting the shipment of the truck, which order blank contained the following warranty:

“We guarantee Avery motor trucks against defective material and workmanship for a period of one year from date of shipment, and will replace free of charge f. o. b. factory any parts broken by reason of such defects, provided such parts are returned to Dallas for our inspection (transportation charges to Dallas prepaid), tagged with the name of the sender, the number of the truck from which the part or parts were taken, and the reasons for returning.
“This guarantee does not apply to tires, chains, or special equipment which are not manufactured by Avery Company, but are covered by the regular manufacturer’s guarantee.
“This guarantee does not apply to claims arising from accident, misuse, or neglect in connection with machinery thereby purchased.
“The purchaser understands and agrees that no other guarantee of Avery motor trucks is made or authorized to be madé by the company or its agents other above set forth.”

The petition further alleges that the order blank constituting the contract for the purchase did not contain the entire contract, and did not intend or propose to express or do more than secure appellee’s obligation to purchase and pay for the truck, and alleges that the truck was either defectively constructed, or constructed of defective material, and “was worthless and of no value,” as a truck machine. The efforts put forth to make the truck do the work for which it was purchased are set forth, and notice is alleged to have been given appellant of such defects and of its failure to do the work for which it was purchased, and that finally the machine went to pieces, could not be operated at all, and was wholly worthless, and was secondhand when purchased. Ap-pellee charges' that it was deceived by appellant at the time <5£ the purchase in that same was sold for a new machine, but was secondhand, and that its value at the time was only nominal, but, if it had been as represented, it would have been worth the contract price, for which this suit is brought as damages.

Appellant answered with numerous exceptions and denials, and denied specially that it ever sold the machine to appellee, but that Alfred Koebig had bought a machine on the same date from appellant, and that no representations were made except as contained in the written contract. It then sets up and relies on that written warranty, and pleads estoppel on the ground of laches, knowledge on the purchaser’s part, and under the terms of the written contract of sale.

The case was tried before a jury, resulting in a verdict in appellee’s favor for the amount sued for, upon which a judgment was entered.

The first assignment is to the effect that the court erred in overruling the general demurrer to the petition because the allegations of the petition do not show that the terms of the warranty were complied with by the plaintiff by returning defective parts, etc. This must be overruled, because we think the allegations were sufficient to show a cause of action for fraud; it being alleged that appellant deceived appellee by selling a machine as new, when, in fact, as alleged, it was an old secondhand truck "which was worthless. This assignment, together with the second and third, which are based upon the overruling of the general demurrer, will be overruled.

It is elementary that, as a general rule, parol testimony is not admissible to vary the terms of a written contract; but there is no such sanctity about a writing that parties may not be permitted to go back of it and show that there was such fraud practiced in the procurement of the same as to vitiate the writing. By reason of various representations which appellee maintained were false, such, for instance, as that the truck was a new one, when, in truth, it was an old secondhand, worthless pile of junk, they were induced to sign the order containing the statements herein referred to, stating that this writing contained the whole agreement with reference to warranties, etc. The law never countenanced a rule which would deny a man the right to take advantage of fraud which had been practiced upon him. A contract was never drawn in language strong enough that fraud in its procurement may not penetrate and destroy. The very basic idea of a contract is that the minds have met in an agreement upon the matters, the subject-matter of the contract. It presupposes that the parties understand the elements entering into the agreement, and, if one party has deceived the other and withheld facts the other should know, or has misled him as to the facts upon which the agreement is based, there is no such contract that the law will not permit the light of investigation to be turned on it with a view of ascertaining whether it is enforceable. The late Justice Neill, speaking for this court in U. S. Gypsum Co. v. Shields, 106 S. W. 726, said:

“If a party were denied the right to show facts which prevent a writing from constituting a contract, such a writing would be free from all defenses and outside of all rules which determine the validity of contracts. * * * The evidence objected to was not introduced for the purpose of varying the terms of the writing sued upon, which it did not tend to do, but to the end of showing that defendant was induced to sign the paper by the fraudulent representations of the plaintiff.”

And this opinion was affirmed by the Supreme Court in 101 Tex. 473, 108 S. W. 1165.

See, also, Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. 1062, where a subscription blank to corporation stock recited that no conditions, representations, or agreements other than those printed therein should be binding on the corporation, and Justice Hendricks, speaking for the court, said, in substance, that parol evidence that the contract had been obtained from the plaintiff on false representations as to the amount of the corporation’s capital stock which had been actually paid was admissible to show that the contract, by reason of the fraud, never, in fact, came into existence, and was not objectionable as varying the terms of the written subscription.

Furthermore, the warranty in this case was evidently intended only to cover defective parts, and, since it is alleged that the whole truck was worthless for the purposes for which it was purchased and was secondhand, we do not see that there would be any variance. When a man buys an article in the marts of trade, we think, in the absence of a special agreement or of knowledge on his part to the contrary, that he has a right to presume that the article is new, and such as is customarily offered for sale in that line. Assignments fourth to eighth, both inclusive, are overruled.

The allegations as to the amount expended in endeavoring to get the motor to operate were not improper as a circumstance tending to show that the motor was defectively constructed, and no recovery sought therefor. The ninth assignment is overruled.

The court did not err in overruling defendant’s special exception No. 10, to the effect that the plaintiffs had waived any rights they may have had under the contract by ratification and acceptance of the machine by keeping and using it, because even under appellant’s theory of the warranty they had one year, and as soon as it was fully tested and ascertained that the-machine would not do the work it was repudiated. The tenth assignment is overruled, and the eleventh, being without merit, is overruled. The trial court properly refused to direct a verdict for appellant. The twelfth assignment is without merit, and is overruled.

There was no necessity to submit to the jury as to whether the truck had been used, because it may be taken as conceded that the truck had been used for demonstrating purposes, and because the warranty covered it for one year. If the charge was intended to cover the issue that the truck was a worthless secondhand one, it was insufficient for that purpose, and was correctly refused. The case was tried upon the theory that there was a general warranty of the whole car for one year, in addition to the special warranty as to parts which were to be returned if defective, etc. And an issue was submitted to the jury as to whether the truck was worthless for the purposes for which it was designed at the time it was purchased, and the jury said it was worthless. The thirteenth assignment is overruled.

There is no doubt the truck was sold for $50 off on account of the fact that it was represented that the ear had been used a little for demonstration purposes. Walter Schultz, who made the purchase, said that, when he and Koebig went to San Antonio to buy the machine, they looked at this one and told the agent they preferred one that had not been used, but the agent said:

“Why, this machine has only been used for demonstrating to prospective buyers. The same guaranty covers it. You can run it around town a few times, and it wiU look like it has been used a little.”

But he stated that it was as good as new, and Schultz thought he was buying a new truck that had only been used for demonstration purposes moderately, for which use the price was cut $50. The price they had made was $2,100, but it was sold for $2,050. So the selling price could make no difference.

This is not a suit for rescission of the contract of sale, but is an action to recover money' paid for a worthless machine, and, where goods are shown to be worthless, it is not necessary to return same. Gutta-Percha & Rubber Mfg. Co. v. City of Cleburne, 107 S. W. 157; Westinghouse Electric & Mfg. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; Ash v. Beck et al., 68 S. W. 53; Hailwood Cash Register Co. v. Berry et al., 35 Tex. Civ. App. 554, 80 S. W. 857.

The testimony complained of being admitted, under the twenty-fourth assignment, was not admitted to vary the terms of the written contract, but was:

“Mr. Peters stated to me that, if at any time we had any trouble with the truck, they would send a machinist, no matter where it was, to repair it and get it in good running order.

It seems to have been admitted to show the appellee’s good faith in requesting that a skilled mechanic be sent to repair the car.

All assignments not specifically mentioned are overruled, and the judgment is affirmed.
      <S=For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      ©=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes