author: RICE, J. KEY, C. J.

text:
    MILLER et al. v. FIRST STATE BANK & TRUST CO. OF SANTA ANNA.
    (No. 5490.)
    (Court of Civil Appeals of Texas. Austin.
    May 12, 1915.
    On Motion for Rehearing, July 2, 1915.
    On Appellee’s Motion for Rehearing, March 29, 1916.)
    1. Appeal and Erbor <@=»188 — Reservation op Grounds — Defective Service of Process.
    On appeal from the denial of a motion to set aside a default judgment, the sufficiency of service will not be considered, where it was not raised in the original motion to vacate, nor in the answer, but is presented for the first time in an amended motion to vacate not properly verified.
    ' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1190-1204; Dee. Dig. <§==> 188.]
    2. Judgment &wkey;>145(2) — Setting Aside Default^— Sufficiency of Application.
    To set aside a judgment by default the motion must show a meritorious defense as well as a sufficient excuse for failure to appear and answer.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 271, 293; Dec. Dig. &wkey;145(2).]

      On Motion for Rehearing.
    3. Judgment <&wkey;17(2) — Judgment by Default — Requisites—Sebvice OE PROCESS.
    To authorize a judgment by default, the sheriff’s return must show service of citation upon defendants in the manner required by statute, even though the judgment shows that defendants were legally served.
    [Ed.- Note. — For other cases, see Judgment, Dec. Dig. (2).]
    4. Oobporations <&wkey;507(13) — Actions—Serv-aos of Process.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1860, requiring the citation in suits against corporations to be served on one of the officers of the company named therein or some agent of the company, a citation showing service only, upon the company by name is insufficient, since to be binding service must be upon the identical officer or agent or one of the officers or agents prescribed by the statute.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1995-1997, 2000; Dec. Dig. &wkey; 507(13).]
    5. Judgment <&wkey;17(10) — Judgment by Default — Service of Process.
    Where the petition or citation in an action against a corporation fails to direct upon whom service is to be made, then, in order to sustain a judgment by default, proof must be made when judgment is taken that the citation was served upon some one of the officers or agents named in the statute.
    [Ed. Note. — For other cases, see Judgment, Dec. Dig. &wkey;>17(10).]
    6. Partnership <&wkey;204r — Action — Process-Service.
    Jurisdiction to enter judgment by default against a partnership cannot be obtained by service on the partnership itself, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1863, requiring process to be served on a member of the firm.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 376-381; Dec. Dig. <@^204.]
    7. Judgment <&wkey;143(l), 145(2) — Setting Aside Default — Sufficiency of Application.
    Where no legal service is had upon defendant, a judgment by default may be set aside without showing a meritorious defense or a sufficient excuse for failure to appear; the judgment being void for want of jurisdiction.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269, 271, 278, 279, 283, 285, 293; Dec. Dig. &wkey;143(l), 145(2).]
    On Appellee’s Motion for Rehearing.
    8. Chattel Mortgages <&wkey;229(2) — Conversion of Mortgaged Property — Actions— Answer.
    In an action on notes, and to establish a mortgage lien on live stock and cotton, and to recover for conversion of part of such stock and cotton, an answer alleging that, if defendants purchased any cotton on which plaintiff held a valid lien or mortgage, the money paid by them therefor to the seller was by the seller paid to plaintiff in partial satisfaction of the demands sued upon by plaintiff, and that the seller paid to plaintiff the market value of the cotton less the cost of picking it, stated a meritorious defense.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 481, 483; Dec. Dig. &wkey;> 229(2).]
    9. Judgment <&wkey;163 — Setting Aside Default — Form and Requisites of Application.
    On an application to set aside a judgment by default, it was proper for the court to consider the answer filed in connection with the motion in determining whether the motion disclosed a meritorious defense, though the verification of the answer was made on information and belief, without setting out the facts on which the belief was founded.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 323; Dec. Dig. <&wkey;163.]
    10. Judgment &wkey;>143(13) — Setting Aside Default — Form and Requisites of Application.
    A motion to set aside a judgment by default alleged that defendants lived 55 miles from C., the' place of trial, that the only available route was by rail via B., and in order to attend court they would have to spend a night in B. and proceed to C. the next day, that the trip was tedious and expensive, that their attorney assured them they could reach C. in time to answer and defend the suit by leaving home on the morning of the day the case was to be called, and that, if plaintiff’s attorney took judgment by default before their arrival, the court would set it aside, stating that he was well acquainted with the attorneys for plaintiff and had frequently exchanged courtesies with them, and that they would not insist upon judgment by default until after appearance cases were called for orders, that on the morning of September 8th they started for C. in an automobile, leaving home at 7 a. m., that a blowout delayed them for some little time, and that after repairing it they proceeded to C., arriving there a few minutes after the judgment was entered. Held, that this showed due diligence, and the motion to set aside the default judgment should have been granted.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 286; Dec. Dig. <&wkey;> 143(13).]
    11. Appeal and Error <&wkey;1173(l) — Disposition of Case — Reversal—Coparties.
    Where a member of a firm was sued only as a member of the firm, and therefore could not be held liable otherwise, and judgment was apparently rendered against him individually, pursuant to the statute making a judgment against a partnership collectible out of the individual property of the members of the firm served with citation, a reversal as to the firm required a reversal as to him, though he did not appeal, as plaintiff was not entitled to judgment against him, if not entitled to a judgment against the firm, and the statute prescribing that only one final judgment shall be rendered had application.
    [Ed. Note. — For other cases, see Appeal and Eryor, Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. &wkey;1173(l).]
    12. Appeal and Error <&wkey;1173(2) — Disposition of Case — Reversal—Coparties.
    The reversal of a judgment against appealing defendants did not require the reversal of a judgment against nonappealing defendants upon separate and distinct causes of action, in which no recovery was sought or had against the appealing defendants, as the statute prescribing that only one final judgment shall be rendered did not apply.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4568, 4656; Dec. Dig. <&wkey;> 1173(2).]
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    Action by the First State Bank & Trust Company of Santa Amia against R. F. Miller and others. From a denial of a motion to set aside a default, defendants appeal.
    Reversed and remanded in part, and affirmed in part, on rehearing.
    Shropshire & House, of Brady, for appellants. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.
   RICE, J.

This suit was brought by appel-lee against R. E. Miller, L. E. Miller, W. S. Gattis, James D. Gattis, Jim Bell, O. D. Mann ■& Sons, a partnership, and William Connolly & Co., a private corporation, all of McCulloch county; and against J. R. Ran-ey Company, a corporation, and Sam Woodward, of Coleman county, to enforce collection as against R. P. Miller, principal, and Raney Company as indorsers on a note for $250, with interest and attorney’s fees, less a credit of $17.50; and as against said Miller and the two Gattises for balance on a note of $109, with interest and attorney’s fees, and on a note for $677.41 and $100 attorney’s fees, less certain credits; also to establish a mortgage lien on certain live stock and cotton, and as against the other defendants for conversion of part of said stock and 12 bales of cotton stating the aggregate value of such property alleged to be converted at $970. No value as to said other mortgaged property was stated, nor was a foreclosure thereon asked. An amended petition was filed September 3, 1914, stating that such other property described in the mortgage was not in existence, and averred that as to it no foreclosure was prayed.

On the 8th of September, when the appearance docket of said court was called, no answer having been filed on the part of .appellants, judgment by default was taken as against all of said parties except W. S. Gat-tis, Raney Company, and Woodward, the case as to first two being dismissed, but wont in favor of the latter on the ground of his having a prior mortgage on the live stock. Within 20 minutes after the entry of such default judgment, these appellants, Mann & Sons and Connolly & Co., with their attorney, arrived in Coleman, and upon entering the courthouse yard they met counsel for appel-Jee, whom they apprised of the fact that they had just arrived with their answer for the purpose of filing same and trying said cause, requesting him to return with them to the courthouse to set same down for trial, which said attorney declined to do, informing them that he had just a short while before, on the calling of the appearance docket, taken a judgment by default against them, and, upon his declining to agree that the same should be set aside, counsel for appellants filed in said court, about 2 o’clock on said day, their answer, and also their motion to vacate said judgment, in which said motion they set up their plea of personal privilege to be sued in McCulloch, the comity of their residence, also a plea of misjoinder of parties, and alleged that they had a meritorious defense, without stating what it was. They afterwards, on the 16th of September, filed an amended motion to vacate said judgment which, in addition to the matters set out in the original motion, asserted that Connolly & Co., who were sued as a corporation, were not in fact a corporation, and that the service upon McKenzie, their alleged secretary, was not in fact sufficient legal service, and that as to Mann & Sons said service was not sufficient, because O.' D. Mann, upon whom the citation was served, was not in fact a member of the said partnership and never had been; asserting, also, that the amount in controversy was more than $1,000, in that it was a suit to foreclose a mortgage on property of greater value than $1,000, and also that the amount sued for was over $1,000. And as an excuse for not sooner filing their answer, they alleged: That they lived at Brady, 55 miles from Coleman. That the only available route from Brady to Coleman was by rail via Brownwood, and in order to attend said court they would have to go from Brady to Brownwood and spend the night in the latter place, and proceed to Coleman the next day; that such trip was tedious and expensive. That upon receiving citation they promptly referred the matter to their attorney for attention, who stated that he would have to be at Austin on the 5th, but that he would attend the trial at Coleman on the 8th, assuring them that they could reach 'Coleman in time to answer and defend their suit by leaving Brady on the morning of September 8th; likewise stating to them that, in the event plaintiff’s attorney should take judgment by default before their arrival, then the court would set same aside and permit them to file their pleadings; stating that he was well acquainted with the attorneys representing the plaintiff, with whom he had frequently exchanged courtesies, and that they would not insist upon a judgment by default till after the aijpearance cases were called for orders. That, relying upon such statements and assurances by their said attorney, they awaited his arrival from Austin, he returning earlier than expected. Securing an automobile on the morning of September 8th, these appellants, with their attorney, started for Coleman, leaving Brady at 7 a. m. That a few miles south of Coleman they had a blow-out in one of their tires, which delayed them some little time. That, after repairing same, they proceeded to Coleman, arriving there after judgment by default had been entered.

The court overruled the motion to vacate the judgment, from which appellants have prosecuted this appeal, urging, first, that the court had no jurisdiction, in that the valué of the property mortgaged exceeded $1,000. We overrule this contention, first because the amount sued for did not exceed $1,000; and further for the reason that the original petition did not seels a foreclosure upon the other ' property mentioned in the mortgage nor state its value, and did not indicate that such property was in existence; and the amended motion upon which appellee went to trial alleged that the other property described in the mortgage was not in existence at the time of filing the original petition, and expressly declared that it sought no foreclosure thereon, for which reason it did not appear from the face of the petition that the court was without jurisdiction. See Cantrell v. Cawyer, 162 S. W. 919.

The question as to the sufficiency of the service, we think, is improperly raised. Neither the original motion to vacate nor the answer present this question, and it is for the first time raised in the amended motion to vacate the judgment, which is not properly verified. Appellants in their answer not having denied under oath the partnership and incorporation as alleged, as required by article 1906, Vernon’s Sayles’ Civ. Stat., no issue was raised with reference thereto.

We think appellants’ amended motion to set aside the judgment by default was properly overruled for the further reason that it failed to show a meritorious defense and a sufficient excuse for failing to appear and answer. In the absence of either, they were not entitled to have the same set aside.

“The rule seems to be well established in this state (Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833, that, in addition to excusing his absence or failure to plead, the appellant must show by sufficiently circumstantial statement that he has a meritorious cause of action or defense; stating generally that he has a meritorious cause of action or defense is not sufficient. Enough should be stated, supported by affidavit, to show at least a prima facie case. Courts ought not in such cases set aside judgments rendered except upon a showing which, if true and unexplained, would change the result on a subsequent trial” — citing Cowan v. Williams, 49 Tex. 380; Montgomery v. Carlton, 56 Tex. 431; Contreras v. Haynes, 61 Tex. 103.

See, also, Foster v. Martin, 20 Tex. 119; Gillaspie v. Huntsville, 151 S. W. 1114; Schliecher v. Markward, 61 Tex. 99; Sharp v. Schmidt & Zeigler, 62 Tex. 263; Tinsley v. Corbett, 27 Tex. Civ. App. 633, 66 S. W. 913; Chambers v. Gallup, 30 Tex. Civ. App. 424, 70 S. W. 1009; W. U. T. Co. v. Skinner (Civ. App.) 128 S. W. 715; Bartlett v. Jones (Civ. App.) 103 S. W. 706.

In Foster v. Martin, supra, Mr. Justice Wheeler says:

“The motion to set aside the judgment was in the nature of a motion for a new trial. To entitle the defendant to have the judgment set aside, as a matter of legal right, he should have brought his application substantially within the rules governing the granting of new trials. He should have made Ms application within the time prescribed, or shown some sufficient excuse for his neglect. His application should have shown a sufficient excuse for his failure to appear and make his defense to the action within the time allowed for pleading, and also that he had a meritorious defense. The application is deficient in all these particulars.”

In Sharp v. Schmidt & Zeigler, supra, Mr. Chief Justice Willie says:

“It is fully established by our own decisions that, ‘notwithstanding an illegal writ or service of process, a court of equity will not interfere to set aside a judgment until it appears that the result will be different from that already reached.’ Schleicher v. Markward, 61 Tex. 103; Kitchen v. Crawford, 13 Tex. 516. To make this appear the petition should aver matters which amount to a good defense to the original action. The nature of the defense must be given, so that the court for itself may determine the conclusion of law as to whether or not it is a good defense, and would produce a different result if proved upon another trial. The plaintiff’s oath to such a conclusion is not sufficient.”

Besides this, the motion was not properly verified. The affidavit was as follows:

“Before me, the undersigned authority, on this day personally appeared J. E. Shropshire, known to me to be the attorney for the defendants named in the foregoing motion, and upon oath stated that upon Ms own knowledge he believes the allegations of fact and statements contained in said motion are true.”

In Ruling Case Law, vol. 1, p. 770, § 15, it is said:

“An affidavit should always be made by one having actual knowledge of the facts, if possible, and its allegations should be full, certain, and exact; a bare statement of one’s belief being immaterial, unless the case is one where an affidavit as to belief only is required.”

Again, on page 772, § 18, same volume, it is stated:

“Affidavits upon information and belief should allege facts definitely, and also set forth the sources of the affiant’s information and the grounds of his belief, to enable the judicial mind to determine whether the belief is well or ill founded. Inasmuch as an affidavit upon information and belief cannot supply the place of a positive allegation, affidavits of this nature cannot ordinarily be used except when authorized by statute.”

See, also, Texas Farm & Land Co. v. Story, (Civ. App.) 43 S. W. 933; Scheffel v. Scheffel, 37 Tex. Civ. App. 504, 84 S. W. 408; Graham v. Brown, 69 Tex. 323, 7 S. W. 342; Smith v. Banks, 152 S. W. 449; Whitemore & Co. v. Wilson, 1 Posey, Unrep. Cas. 213.

The motion did not set up any facts showing a meritorious defense. It is true, however, that it referred to the answer for such defense; but, even if we could consider the answer for this purpose (which is doubtful under the authority of Runge v. Franklin, supra), still, said answer is not properly verified, in that the verification is also made on information and belief, without setting out the facts upon which such belief is founded.

The excuse set up for failing to answer is insufficient. The parties were served in ample time and could have been present with their counsel at court, if they had left Brady the day before by rail. It is not sufficient to say that the trip would have been expensive and tedious. Furthermore, had they left an hour earlier in the morning by auto, they would have arrived at court, it seems, before judgment was entered. They should have anticipated just such, a' contingency as happened and started earlier.

Finding no error in the action of the court in overruling the motion to set aside the judgment by default, the same is affirmed.

Affirmed.

On Motion for Rehearing.

Appellants have filed a motion for rehearing, assailing the judgment affirming this case, among other reasons: First, that the court below was without jurisdiction to render any judgment as against Connolly & Co. and Mann & Sons, on the ground of want of legal service on them or either of them. Second, because the judgment as rendered was in excess of $1,000.

To authorize a judgment by default, the sheriff’s return must show' service of citation upon the defendants in the manner required by the statute, and this is true, even though the recitals in the judgment show that the defendants were legally served. Roberts v. Stockslager, 4 Tex. 309; H. & T. C. R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 80S; Treadway v. Eastburn, 57 Tex. 214; Burditt v. Howth, 45 Tex. 466; Wheeler v. Ahrenbeak, 54 Tex. 536. William Connolly & Co. were sued as a corporation. In suits against corporations our statute (article 1860, Vernon’s Sayles’ Rev. Civ. Stats.) requires that Ithe citation shall be served on one of the officers of the company named therein, or some agent of the company. In the present case the citation only showed service was made upon William Connolly & Co. This return does not conform to the statute, and is therefore insufficient. The general rule is that the service of process, to be binding upon a corporation, must be made upon the identical officer or agent, or one of the officers or agents prescribed by the statute. Clark & M. on Corporations, § 267; El Paso & S. W. Ry. Co. v. Kelly, 83 S. W. 859. Neither the petition nor citation sets out the name of the president, secretary, or treasurer of such company, nor is the name of any agent representing it given therein, nor does it direct upon whom service should be made; but the company’s name alone is set forth in the petition and citation, and the record fails to show that before judgment was taken by default proof was made that said citation had been served upon the president, secretary, or any agent of such corporation, as required by law. Where the petition or citation fails to direct upon whom service is to be made, as in the instant case, then, in order to sustain a judgment by default, proof must be made at the time when judgment is taken that the citation was served upon some one of the officers or agents named in the statute, which was not done in the present case; the service is therefore insufficient to confer jurisdiction over said corporation. El Paso & S. W. Ry. Co. v. Kelly, supra; G. H. & S. A. Ry. Co. v. Gage, 63 Tex. 568; H. & T. C. R. Co. v. Burke, supra.

Again, suit was brought against O. D. Mann & Sons, an alleged copartnership, consisting of O. D. Mann and others unknown to plaintiff. The citation followed the petition in this respect, commanding the officer to summon O. D. Mann and O. D. Mann & Sons, a partnership, composed of the parties above stated, and the sheriff’s return recited that it was served by delivering to each of the defendants in person a true copy of this citation, stating that O. D. Mann & Sons were served as well as O. D. Mann individually. The testimony of Mr. Shropshire, however, on motion for new trial and to vacate the judgment, showed that O. D. Mann was not in fact a member of said partnership, and this was not controverted. This being true, no judgment whatever could lawfully be rendered against said firm of O. D. Mann & Sons, for the reason that no member of said firm had been served, as required by article 1863, Vernon’s Sayles’ Rev. Civ. Stats.; and the attempt to serve the firm itself was futile, because it was not an entity under the law. See Frank v. Tatum, 87 Tex. 204, 25 S. W. 409. Under the doctrine of said case, it would seem that the suit against Mann & Sons was improperly brought, in that it failed to give the names of all of the partners; but, apart from this, the attempted service was defective and insufficient, for which reason no judgment should have been rendered against Mann & Sons.

There was no allegation that O. D. Mann had converted any of the property upon which plaintiffs claim to have had a mortgage, for which reason judgment against him was improperly rendered. Besides this, it appears that the aggregate amount of the judgment rendered wras in excess of $1,000. Therefore the court had no jurisdiction to render the same.

In order to set aside a judgment by-default, it is not necessary to show a meritorious defense or negative a want of diligence on the part of the defendants, where no legal service is had upon them. This is required only where legal service has been had. It is immaterial that appellants, after judgment was rendered by default, filed an answer to the merits in connection with their motion to vacate the judgment, because the judgment was void for want of jurisdiction at the time it was in fact rendered, and appellants therefore had the right to have it set aside.

For the reasons indicated, the motion for rehearing is granted, the judgment is reversed, and the cause remanded.

On Appellee’s Motion for Rehearing.

KEY, C. J.

The nature of this case is sufficiently stated in the original opinion prepared by Mr. Justice RICE, when the judgment of the trial court was affirmed, and in his subsequent opinion, prepared when appellants’ motion for rehearing was granted, and the judgment referred to reversed, and the cause remanded, though we may make some addition thereto in the course of this opinion. After our last decision was made, and in due time, counsel for appellee, Eirst State Bank & Trust Company, presented a motion for rehearing, accompanied by an elaborate and able argument, assailing the grounds upon which this court based its judgment of reversal; and while authorities cited and argument made have caused us to doubt the correctness of the reasons given for reversing the case, still we are of opinion that, in so far as the appellants are concerned, the judgment of reversal should not be set aside, though we concede that the case should not have been reversed as to judgments rendered against parties who have not appealed, except as to judgment against 0. D. Mann.

The only parties who have appealed are William Connolly & Co. and O. D. Mann & Sons; and upon further consideration we have reached the conclusion that as to them the trial court committed error in not setting aside the judgment by default rendered against them and O. D. Mann, for the reason that their amended motion, asking to have that judgment set aside, set up a meritorious defense, and disclosed a sufficient excuse for not having filed their answer before.the default docket was called, and that this court fell into error when it ruled otherwise in the original opinion filed herein. In addition to the facts stated in the opinion referred to, we copy as follows from the answer filed in the court below by appellants on the same day that the judgment by default was rendered:

“Eurther answering in this behalf, these defendants would show to the court that, if they did purchase any of the cotton on which plaintiff held a valid lien or mortgage, they here charge that the money was paid by them, in so purchasing from It. F. Miller or L. E. Miller, to the said R. E. Miller, and that the said R. E. Miller, after receiving said money, paid the same over to the plaintiff in partial satisfaction of the demands herein sued upon by the plaintiff. Wherefore, in the event of such payment, plaintiff should not be now permitted to recover of and from these defendants the value of any cotton thus converted after the plaintiff has been paid the full market value of the same by the defendant R. B\ Miller. In this connectionthese defendants charge that the defendant R. E. Miller paid over to the plaintiff the market value of said cotton, less the cost of picking same, and that the cost of picking the same constituted a claim against said cotton superior to the mortgage lien of plaintiff thereon.”

In appellants’ amended motion to vacate the judgment by default they alleged, among other things:

“That the order granting judgment by default against these defendants must have been entered against them but a few minutes before their arrival and appearance and tender of their pleadings therein. That upon their arrival these defendants tendered pleadings of the following nature: (a) A plea to the venue, showing that the plaintiff had no legal right to compel said defendants to appear and defend this cause in Coleman county, Tex.; (b) a plea of misjoinder of parties defendant and cause of action; (c) a general exception to said pleadings because of misjoinder of parties defendant; and (d) a plea to the merits of said cause of action, praying in the alternative that, in the event that their special pleas should be overruled, said defendants should be heard upon their answer showing a meritorious defense to the cause of action. That all of said pleas are here referred to and made a part hereof, for the purpose of being considered by the court in connection with this motion to vacate said judgment by default.”

We think it was proper for the court below to consider the answer filed by appellants in connection with the motion to vacate the judgment by default, and that, when so considered, the motion disclosed a meritorious defense; and we are also of opinion that the diligence shown by the motion was as much, and perhaps more, than that shown in the recent case of International' Travelers’ Ass’n v. G. L. Peterson, 183 S. W. 1196, decided by this court. In granting a rehearing in that case, we cited and quoted from 'Dowell v. Winters, 20 Tex. 794, in which case there was no more diligence than in this or the Peterson Case. The Peterson Case is also authority upon the question of verification of the motion to vacate and the answer referred to in the motion, as there is no substantial difference between the two cases in that respect.

So, if it be conceded, as contended by counsel for the bank, that the filing of the motion to vacate the default judgment upon other grounds than the question of notice or service of citation cured whatever defect may have existed in that regard, still we are of opinion, for the reasons just stated, that appellants are entitled to a reversal of the judgment and to a trial upon the merits; and this conclusion is reached without reference to the so-called statement of facts, which counsel for appellee contend should not be considered. We agree with appellee’s counsel that this court fell into error when it held that the amount sued for was not within the jurisdiction of the county court; but, as stated above, we rest our reversal of the case upon our present conclusion that the motion to vacate the judgment disclosed a meritorious defense, and a sufficient excuse for appellants not having filed their answer presenting such defense before the default docket was called.

Except as to the judgment against O. D. Mann, we also agree with counsel for appellee that the judgment in its favor against parties who have not appealed should be affirmed, and that the judgment of this court reversing the case as to them is erroneous. As to O. D. Mann we hold that the judgment should be reversed for the reason that he was not sued otherwise than as a member of the firm of O. D. Mann & Sons, and we suppose that the court below rendered judgment against him individually because of the fact that the citation which was issued against the firm of O. D. Mann & Sons was served upon him as a member of the firm. It is provided by statute that a judgment against a partnership is collectible out of the partnership property, and out of the individual property of the members of the firm who have been served with citation ; and no doubt it was upon this theory that the judgment was rendered against O. 'D. Mann individually. In fact, he was only sued as a member of the firm, and therefore could not be held liable otherwise; and it necessarily follows that, if the appellee is not entitled to a judgment against the firm, it is not entitled to any judgment against O. D. Mann individually. In other words, the cause of action is one and the same against O. D. Mann and the firm of O. D. Mann & Sons, and therefore the statute, which prescribes that only one final judgment shall be rendered, has application, and for that reason a reversal as to one operates as a reversal as to all, though only one may have appealed. But, as to the judgments rendered in favor of the bank against the other defendants, that statute does not apply, because those judgments were based upon separate and distinct causes of action, in which no recovery was sought or had against O. D. Mann or O. D. Mann & Sons. 'Danner v. Walker-Smith Co., 154 S. W. 295.

So our conclusion is that, in so far as ap-pellee’s motion for rehearing asks to have our former judgment reversing the case as between appellee and appellants Wm. Connolly & Co. and O. D. Mann & Sons and O. D. Mann, individually, set aside it should be overruled, but that the remainder of this court’s judgment of reversal should be set aside, and judgment of the court below affirmed; and it is so ordered.

Motion overruled in part, and in part granted.
      <5&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=oFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    RODGERS et al. v. CENTRAL BANK & TRUST CO.
    (No. 7047.)

    (Court of Civil of Texas. Galveston.
    Feb. 18, 1916..
    Rehearing Denied March 16, 1916.)
    1. Banks and Banking <&wkey;64 — Authority of Officers — Liquidation.
    The former president of the defendant bank became considerably indebted to the institution, whereupon land which he owned was conveyed to the bank. Thereafter 7 of the 15 directors, including the succeeding president, authorized him to convey such land to another, who paid into the bank $5,000 to be credited upon the former president’s obligations. After this was done, the bank went into liquidation, and lender, making the payment, demanded reimbursement, whereupon, the property being reconveyed, the succeeding president of the bank, who was its liquidating officer, executed its note which was indorsed by defendants, and out of the proceeds the indebtedness was paid. Rev. St. 1911, art. 378, declares that the board of directors of every bank shall meet at least once a month and pass on the business of the bank, and that no bills payable shall be made and no bills shall "be rediscounted by the bank without consent of the board of directors. Held that, in view of the fact that the original transaction was authorized only by 7 of the 15 directors, the bank did not become obligated to satisfy the note, and hence the second president as liquidating officer could not thereafter bind the bank by note executed to obtain funds to discharge the first, particularly as the _ subsequent note was not authorized by the directors; consequently, the indorsers having paid the note are not entitled to reimbursement.
    [Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. § 125; Dee. Dig. &wkey;>64.]
    2. Banks and Banking <&wkey;>64 — Authority of Officers — Liquidation.
    Where the assets of a bank are being liquidated, the liquidating officer, though its president, is not entitled to execute notes of the bank to take up former indebtedness.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 125; Dec. Dig. <&wkey;64.]
    Appeal from District Court, Harris County; E. R. Campbell, Special Judge.
    Action by Richard Rodgers and others against the Central Bank & Trust Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    John G. Tod and Kittrell & Kittrell, all of Houston, for appellants. C. R. Wharton and Jno. C. Townes, Jr., both of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellants, Richard Rodgers, John G. Tod, and M. E. Foster, against the appellee, to recover the sum of $5,000 and interest which plaintiffs alleged they had been compelled to pay as accommodation indorsers upon a note executed by appellee. Plaintiff’s petition, among other allegations in regard to the note for the payment of which they ask reimbursement from the defendant, contains, in substance, the following: That at the time of making the note and before the negotiation thereof by defendant, as hereinafter set forth, the plaintiffs, at the special instance and request of the defendant and solely for its accommodation, indorsed said note, and thereby became liable, undertook and promised to pay said note when it became due in the event defendant failed to pay same. It is averred that subsequently the plaintiffs as indorsers upon said note were compelled to pay the same, and that all of the money which was paid by them, as in-dorsers was paid for the use and benefit of the defendant, which amount the defendant bank became liable to pay plaintiffs. The answer of defendant avers that the note indorsed by plaintiffs and for the payment of which they seek reimbursement was executed without lawful authority .by one F. W. Vaughan, formerly president of the defendant bank; that he was not authorized by the directors of the bank to execute the note; that the bank received no benefit from the note; that at the time of the execution of the note it was not a going concern, but Bad gone into voluntary liquidation; that Vaughan was pretending to act as liquidating agent at the time of this transaction, but he had no authority as president of the bank to execute and deliver the note sued on; that the transaction was at its inception void, and the plaintiffs, by becoming indorsers thereon, did so voluntarily; that they were not requested to do so by the directors of the Central Bank & Trust Company; that at the time of these transactions the defendant was a bank organized under the laws of the state of Texas, with authority to conduct the business of receiving money on deposit, paying interest thereon, buying and selling exchange, gold and silver coin, loaning money, and doing such other things as are authorized by the banking laws of this state; that these laws do not confer authority upon said bank to execute notes of the character sued on and procure indorsers thereon and to become liable in such transactions; that these things were all ultra vires. The answer also contains a recital of all the negotiations and facts leading up to and in explanation of the execution of said note. The cause was tried in the court below without a jury, and the judgment rendered was that plaintiffs take nothing by their suit.

The trial judge, at request of plaintiffs, filed his conclusions of fact and law. We adopt as our fact conclusions the findings of fact filed by the trial judge, which are as follows:

“On March 16, 1910, F. E. Pye, who had been president of the Central Bank & Trust Company, a state bank, created and existing under the laws of the state of Texas regulating state banks, was indebted to said bank in very large sums of money, aggregating more than $30,000, which said indebtedness was represented by unsecured notes and overdrafts. He approached John G. Tod, H. L. Mitchell, M. E. Foster, and F. W. Vaughan and asked them to indorse his two notes of $5,000 each, which he would place with certain banks outside of the city of Houston and procure $10,000 to be paid and applied on his indebtedness to the Central Bank & Trust Company, and agreed that if they would indorse said notes for him he would transfer to them, or some one for them as trustee, certain valuable property which he had in the city of Houston, which was commonly known as the Lombardi property, and hereinafter described. They agreed to do this. The notes were indorsed and discounted, and Pye, on March 16, 1910, conveyed the property to John G. Tod, by general warranty deed, absolute upon its face, reciting a consideration of one dollar. The deed was recorded in the deed records of Harris county on' the same date, and its purpose was to secure the liability of the above-named indorsers upon the two notes referred to, and thereafterwards, to secure the 'Central Bank & Trust Company on account of the balance of Bye’s indebtedness to it, and Tod held the property under this deed for such purposes.
“On April 19, 1910, a state bank examiner demanded that the title to said property described in said deed should be conveyed to the Oentral Bank & Trust Company, and Tod thereupon, for a nominal consideration, conveyed the property to it, the deed being one of general warranty, conveying absolute title, and the same was filed and recorded, but it was understood that the same was held to secure the indebtedness of Pye, as above stated.
“On May 6, 1910, the following paper was executed:' ‘Mr. F. W. Vaughan, President, Central Bank & Trust Company, City — Dear Sir: You are authorized to convey lots 3, 4 and 5 and half of 11 and 12 in block 96, in the city of Houston, S. S. Buffalo bayou, to Southern Loan & Investment Company upon it paying into the hank $5,000 to be applied to the credit of F. E. Bye’s obligations, the Southern Loan & Investment 'Company executing an agreement binding said company to reconvey said property upon request of the bank upon it being repaid such sum of five thousand dollars. Yours truly, John G. Tod. Richard Rodgers. C. L. Bering. F. W. Vaughan. N. A. Sayre. August De Zavala. H. L. Mitchell. May 6, 1910.’
“The persons who signed the foregoing paper were 7 of the 15 of the board of directors of the Central Bank & Trust Company, and the property described therein is the property referred to in the deed described in the foregoing paragraphs. There was no meeting of the board of directors authorizing this action, and nothing appears upon the minutes of the directors in reference thereto, and said paper seems to have been informally signed.
“On May 6, 1910, a state bank examiner was insisting that the amount of Pye’s unsecured indebtedness and overdraft to the Central Bank & Trust Company should be reduced or secured, and threatened to close up the institution if the same was not done, and upon said date the Central Bank & Trust Company, by F. W. Vaughan, president, conveyed the property here-inbefore described to the Southern Loan & Investment 'Company, a corporation, of which Jesse H. Jones was president; the consideration recited being one dollar, the deed being one of general warranty and subject to all liens against the property at the time of the delivery of the same. At the time of the execution and delivery of said deed, the Southern Loan & Investment Company delivered to the Central Bank & Trust Company its note for $5,000, which said note the Central Bank & Trust Company discounted to some other institution, receiving the sum of $5,000 in cash, which was placed to the credit of F. E. Pye, and was used in paying and reducing his indebtedness to the Central Bank & Trust Company. Thereafter, on May 18, 1910, before the maturity of said note, it was paid by the Southern Loan & Investment Company; and thereafter said Southern Loan & Investment Company held whatever title had been conveyed to it by the deed above mentioned, as security for the repayment to it by said Central Bank & Trust Company of said sum of $5,000.
“In the latter part of May, 1910, the Central Bank & Trust Company went into liquidation, and F. W. Vaughan, its president, remained in charge of its affairs as liquidating agent; but said bank liquidated through the Lumbermen’s National Bank of Houston, Tex., and transferred to said last-named bank all of its valuable assets.
“On July 2, 1910, the Southern Loan & Investment Company was demanding that it be repaid the $5,000 that it had paid out in the manner above stated, but offered to reconvey the land that had been transferred to it on May 6, 1910; and on July 2, 1910, the Central Bank & Trust 'Company, acting or purporting to act, through F. W. Vaughan, its president, executed its note for the sum of $5,000, payable to its own order, due October 1, 1910, bearing 10 per cent, interest from date, and procured Richard Rodgers, John G. Tod, and M. E. Foster, plaintiffs in this suit, who were also directors and stockholders of said corporation, to become indorsers on the same. .This note was discounted by the Lumbermen’s National Bank for the sum of $5,000, and same was paid to the Southern Loan & Investment Company to cover the advance or payment that it had theretofore made in the manner as ajjove stated, and to obtain a reconveyance of the property which had theretofore been conveyed to it by the Central Bank & Trust Company. Said note was not paid by the Central Bank & Trust Company at its maturity, and these indorsers were compelled to pay the same, and they have filed this suit against the Central Bank & Trust Company to be reimbursed for the amount that they have •so paid as indorsers.
“By deed dated January 21, 1911, the Southern Loan & Investment Company, for a recited consideration of one dollar, reconveyed the property above described to the Central Bank & Trust Company, but said deed was not placed of record; and 'thereafter, by deed dated August 25, 1911, which was placed of record, the Southern Loan & Investment Company, for a recited consideration of one dollar, conveyed said premises to M. E. Foster and H. L. Mitchell, said deed being in the nature of a quitclaim deed.
“At the time of the conveyance of said property by Pye to Tod, there was a vendor’s lien upon said property in favor of C. Schwartz; and on September G, 1910, there was a judgment of foreclosure in the district court of Harris county in favor of Conrad Schwartz against Pye and others, for the principal sum of $40,-O06. The judgment recites that at a sale of the property the proceeds of the property should be applied: First, to the payment and satisfaction of all costs; second, to the payment and satisfaction of Schwartz’s judgment; third, to the payment and satisfaction of the indebtedness of Pye to interveners, M. E. Foster, F. W. Vaughan, I-I. L. Mitchell, and John G. Tod, in the sum of $10,000, with interest at 8 per cent; fourth, to the payment and satisfaction of the indebtedness due by Pye to the Central Bank & Trust Company; and, fifth, any balance remaining to be paid to defendant Pye, his heirs or assigns.
“There was a sale under the deoree described in the foregoing paragraph on June 6, 1911, and the sheriff, acting under an order of sale issued under that judgment, conveyed the property to Norman G. Kittrell, Jr. On the same day Norman G. Kittrell, Jr., conveyed said property to M. E. Foster and H.' L. Mitchell for a recited consideration of $45,500, paid as follows: $5,500 cash, and the 'balance of $40,-000 evidenced by the note of the vendees, of even date with said deed, payable to the order of the said Norman G. Kittrell, Jr., five years after date, with interest at the rate of 7 per cent, per annum, to secure which the vendor’s lien was retained in said deed.
“By deed dated August 28, 1911, M. E. Foster and II. L. Mitchell conveyed said property to William A. Wilson, for a recited consideration of $58,000, in the following manner: $40,-000 by the assumption of the note of Foster and Mitchell above referred to, which is recited to have been transferred and assigned to Conrad Schwartz, and $18,000 represented by the three promissory notes of said Wilson, two for $5,000 each, and one for $8,000, payable June 1, 1912, bearing interest at 7 per cent., to secure all.of which the vendor’s lien was retained in said deed.
“The evidence does not show that there was any equity in said property over and above the amounts named in the judgment of September 6, 1910, which were superior or prior to the judgment therein rendered for the defendant herein; but we find that the said Vaughan and the plaintiffs herein believed, at the time of the execution and delivery of the note herein 'sued upon, that there was an equity in said property which would be beneficial to the Central Bank & Trust Company.
“I find that there was no meeting of the board of directors of said Central Bank & Trust Company, nor do the minutos show any such meeting, at which any of these transactions were ever discussed or authorized. I find that the board of directors, as such, never discussed, authorized, or ratified the act of F. W. Vaughan, as president, in executing the note of July 2, 1910, upon which this suit is predicated, or in procuring the indorsements of the plaintiffs thereon.
“After May 6, 1910, the Central Bank & Trust Company ceased to do 'business in the usual course of business, and thereafter its doors were closed; but there were, after that time, frequent meetings of the directors of said bank in reference to its business.”

Appellants have grouped their several assignments of error and submit thereunder but one proposition, which is as follows:

“When a bank, while a going concern, makes a note in the ordinary course of business as a means of raising money, which note is secured by what is believed by the president and directors to be a valuable equity in real estate, and before the maturity of the note the bank goes into liquidation and turns over to another bank its readily convertible assets to pay its depositors, but the president is appointed ‘liquidating agent,’ and the directors continue to hold meetings, and the holder of the note given to borrow money demands payment, and the bank is unable to pay it, but the money can be raised if the president and ‘liquidating agent’ will give the note of the bank indorsed by three parties, and the note is given indorsed by three parties (the appellants), which note is received by the creditor of the bank, and converted into cash, and the first note- is paid and the real estate released and reconveyed to the bank, the indors-ers who are compelled to pay the note last given are entitled to recover the amount from the bank, being subrogated to all the rights of the holder of the first note, and the bank is estopped to deny its liability.”

We do not tliink this proposition can be sustained. It assumes that the transaction between Jones and the appellee bank was one which arose in the usual course of business of the bank, and by such transaction the bank became bound to pay Jones upon demand the sum of $5,000. It seems to us that it was an extraordinary and unusual proceeding for a bank to borrow money for the purpose of discharging an obligation to itself of one of its debtors. If by the conveyance of the property to Jones in consideration of the $5,000 note executed by him the president of the bank only intended to bind the property received by the bank from Pye as security for his indebtedness, such an agreement might have been permissible and the amount received' from Jones credited on Pye’s indebtedness. This was all that the instrument before set out signed by 7 of the 15 directors of the bank authorized, and we do not think the bank was bound by any. understanding that it would become liable to Jones for the $5,000. The statute under which appellee bank was organized and operated contains the following provision:

“The board of directors of each and every bank organized under this act shall meet -at least once per month and pass upon the business of the bank back to the previous meeting of the board, and shall keep a written record of its approval or disapproval of each and every loan, * * * and no bills payable shall be made and no bills shall be rediscounted by the bank except with the consent of the board of directors.” Section 6, c. 10, Acts 1st Called Session 29th Leg.; article 378, Rey. Stat. 1911.

It seems clear to us that the instrument before set out, executed by less than a majority of the board of directors, cannot be regarded as a written record of the consent of the board of directors that the president could borrow from Jones the $5,000 and bind the bank to repay the loan.

In this view of the matter, Jones' had no enforceable claim against the bank. If it be conceded, however, that Jones had an enforceable claim against the bank for the $5,000, the president, after the bank had gone into liquidation, had no authority to execute the note of the bank for said amount, notwithstanding the fact that he was acting as “liquidating agent” for the bank. White v. Tudor, 24 Tex. 639, 76 Am. Dec. 126; Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788, 30 L. Ed. 864; Schrader v. Manufacturers’ Bank, 133 U. S. 67, 10 Sup. Ct 238, 33 L. Ed. 564. We think the note of July 2, 1910, for the payment of which appellants seek reimbursement from the bank, was not an obligation of the bank, and therefore it cannot be held liable to reimburse appellants for the payment of said note. We also agree with the trial judge that there is no question of estoppel or subrogation in the case.

It follows that the judgment of the trial court should be affirmed, and it has been so ordered.

Affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IÚFF, C. J.

text:
    JAMES et al. v. DOSS et al.
    (No. 936.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 1, 1916.)
    1. PARTNERSHIP &wkey;203 — DISSOLUTION — Abatement anb Revival.
    An action by plaintiffs individually to recover certain property purchased by defendant .from a firm composed of the plaintiffs would not be abated, as the fact that there was no partnership when the suit was brought was a matter of evidence to be shown at the trial.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 375; Dec. Dig. &wkey;203.]
    2. Evidence <&wkey;461(3) — Parol Evidence — Gontract^-Sale.
    Parol testimony was' inadmissible to show that the subject-matter of a contract of sale of personal property was other than that designated by the contract.
    fEd. Note. — For other cases, see Evidence, Cent. Dig. § 2129; Dee. Dig. &wkey;461(3).)

      S'. ‘ Sales <&wkey;38(8) — Contract — Fraud —■ Knowledge op Buyer.
    The purchaser under a contract for the sale of personal property signing the contract without any fraud inducing. him thereto, and after reading- it and having it read to him, and declaring /that it-was correct and was the contract, knowing' that it did not convey certain personal property, was not deceived in respect to the property' described and conveyed by the contract.
    fEd. Note. — For other cases, see Sales, Cent. Dig. § 77; Dec.'Dig. &wkey;38(8).) ■
    4. Sales <&wkey;38(7) — Fraud—Concealment.
    f Where a fact lies open equally to both partiesvwith full opportunity for examination, and the buyer undertakes to examine for himself without relying on the seller’s statements, it is no evidence of fraud that the seller knew facts not known to the buyer, and concealed them from him A
    [Ed. Npte. — For other cases, see Sales, Cent. Dig. § 75; Dec. Dig. &wkey;38(7).]
    5. Evidence <&wkey;461(3) — Parol Evidence' — Contract oe Sale.
    In the absence of fraud, accident, or mistake, it is not permissible to prove by parol that other property than that described in a contract for the sale of personal property was intended to be conveyed, and thereby add to or contradict the contract, as it is the . best evidence of the intention of the parties.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2131; Dec. Dig. &wkey;461(3).]
    6.. Evidence <&wkey;441(l) — Parol Evidence — Contract Partly in Writing.
    The rule that where there is a verbal contract and part of it is reduced to writing, parol evidence may be offered to show that which was not contained in the writing, applies only when it is collateral and relates to a subject distinct from that to which the written contract applies, and which is not so closely connected with the principal transaction as to form a part of it.
    [Ed. Note. — For other cases, see Evidence,; Cent. Dig. §§ 1745, 1756-1763, 1765, 1825, 2030; Dec. Dig. &wkey;441(l)J
    7. Evidence c&wkey;397(2) — Written or Oral Contract — Presumption.
    Where a writing is couched in such terms as to be plain and without any uncertainty as to the object or extent of the agreement, it is conclusively presumed that the whole agreement of the parties was reduced to writing.'
    [Ed. Note. — For other eases, see Evidence, Dec. Dig. <i&wkey;397(2).]
    8. Trial <@=»252(5) — Instructions — Issues —Evidence.
    In an action for personal property consisting of furniture and fixtures claimed not to have been included in the contract of sale, a charge that defendant, in reconvention, might recover a stove, was properly refused, where the un-contradicted evidence was that it was not a part of the furniture and fixtures.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 600; Dec. Dig. <&wkey;>252(5).]
    9. Sales <&wkey;69 — Description — Construction.
    A contract for the sale of personal property, describing “store and office furniture and fixtures, now in the one-story building on lot,” etc., and “merchandise” in the grocery line, without reference to an invoice except to fix the price of merchandise, did not cover two horses, a delivery wagon, and a set of double harness.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 183; Dec. Dig. &wkey;>69.]
    Appeal from Donley County Court; J. C. Killough, Judge.
    Action by W. M. and A. S. Doss against W. H. James and another with plea in reconvention by defendant James. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Simpson & -Steed, of Clarendon, for appellants. W. T. Link, of Clarendon, for appel-lees.
   I-IÚFF, C. J.

The appellees, W. M. and A. S. Doss, sued appellants, W. H. James and Luther Skelton, for two korses, one delivery-wagon, and a set of double harness. The appellants answered at length and appellees replied by supplemental petition at length. The property belongs to the appellees, if it did not pass by a certain contract of sale, and a bill of sale to the appellant James, of a certain grocery business and the furniture and fixtures of the office and store.

At the end of the testimony the trial court instructed the jury that the property sued for did not pass under the contract of sale and the bill of sale, and that they would find for the appellees; which the jury did, affixing the value of each article, and judgment was rendered accordingly. There is no assignment that the court erred in so instructing a verdict, or that there was an issue raised by the evidence for the jury to decide. The assignments presented by the brief of appellants relate to the refusal of the court to give certain requested instructions, and to his action in sustaining an exception to the appellants’ plea of abatement.

The eleventh assignment, which is the last briefed, asserts error in the action of the court in sustaining the exceptions of appellees to the plea in abatement. The appellees sued, as individuals, to recover the property. It is asserted the property was purchased by appellant James from Doss Bros., and not as individuals, and that the appellees make no allegation that they compose the firm of Doss Bros, or were members of such firm. If the property did not belong to the individuals, but to some partnership, it might, under certain circumstances, defeat a recovery ; but we do not see how this should abate the suit. If, when the suit was brought, there was no partnership, the property would belong to the individual members of the former partnership. This was a matter of evidence, to be produced upon the trial. We see no material error committed by the trial court in sustaining the exception. This assignment will be overruled.

The first three assignments, the eighth, and the ninth assignments assert there was error in refusing the specially requested charges of appellants, requested by them therein. Under each of the assignments the following proposition, or one similar, is made:

“Matters of consideration may be shown by parol testimony where such testimony shows that certain articles of property were a part of the consideration for a written contract. The person claiming said articles of property, as a part of the consideration for said contract, is entitled to have the jury instructed .to find in favor of his claim, provided they believed such. testimony.”

In this case the appellees owned a grocery store in the town of Clarendon, and through the assistance of one Moore, á contract of sale was effected with, appellant James. A contract was reduced to writing, which the parties signed on the 6th day of August, 1915. The clause bearing on the question at issue -is as follows:

“Doss Bros. sell, to W. H. James their store and office furniture and fixtures, now in their store building on lot 3, block 1, in Clarendon, Texas, for an agreed consideration of $1,350.00; also their stock of merchandise in same building at the inventory price of same, of all merchandise as invoiced to them recently by M. W. Headrick, and all other merchandise at the wholesale cost of same with freight and drayage added, and inventory of same will begin as soon after the signing of this contract as it is convenient to do so, to both parties hereto.
“Party of the second part agrees to accept said fixtures at the price named and the merchandise as invoiced in accordance with this contract, as soon as same is invoiced and the aggregate value thereof computed, and to pay for the same in accordance with agreement by and between parties,” etc.

On the day following a bill of sale was executed by appellees to James, which described the property as follows:

“All of the goods, wares and merchandise, as per the inventory made this date of same, also of the store and office furniture and fixtures, all while, in the one-story composition roofed brick building located on lot 3, block 1, in Clarendon, Texas, being the store building now occupied by us as a grocery store,” etc.

When James went to the store to look at it, he was shown, the Headrick invoice, which was in a book and which showed a complete inventory of the groceries. After totaling the amount of groceries and leaving some blank pages, following it on a page headed “Fixtures,” the items were entered showing the fixtures and total for fixtures, $1,585. A line was then drawn under this total. Following on the same page are the items, “One delivery wagon and harness, $158.35; two horses, $140.00.” These two last items, it is admitted by the parties hereto, are the property in question. James claims this property was to have gone to him under the $1,350 consideration for furniture and fixtures.

The appellees testify to the contrary. We do not think the propositions of appellants applicable to this character of contracts, and the facts of this case. The consideration in this case received for the $1,350 agreed to be paid was contractual in its nature. It was not, in its nature, a- receipt for money, which may be explained. The appellants sought to have the written contract with reference to the subject-matter therein conveyed shown to be other than the writing designated, and thereby contradict the writing by parol. This is not permissible. Matheson v. C-B Live Stock Co., 176 S. W. 734, in which this court, through Judge Hall, discussed this question and reviews various authorities. McCullough v. Bank, 58 Tex. Civ. App. 160, 123 S. W. 439; Rapid Transit Co. v. Smith, 98 Tex. 553, 86 S. W. 322; 17 Cyc. 659 (g).

The fourth, fifth, and seventh assignments urge that the trial court erred in refusing to charge the jury in effect if the verbal contract was that the property sued for was agreed to pass by tbe transfer, and that through the fraud of the appellees it was omitted from the writing, the jury should find for appellants.

The appellant James contends that the property sued for was so to pass, while Moore, the agent who brought about the trade, and the appellees contend it was not to be in the trade. James contends that one Be-ville, who drafted the contract at the instance of Moore, left out this particular property. Mr. Beville testified that Mr. Moore came to him to draw the contract and told him to draw it just like the contract from Headrick to Doss Bros., when they purchased from him, except he said the wagon, team, and harness were not in the trade,- and should not be included in the contract, and also some land that figured in the Headrick contract. James testified:

That he and Doss went to Beville’s office to draw up the contract, and Beville said Moore had already told him to draw the contract, and he then said to come back in 30 minutes and he would have it ready, and that they went back and signed the contract. “Before we signed it, Beville handed me a copy and W. M. Doss a copy, and he kept a copy and read it all aloud to us, and I read it myself, and when he finished he said, ‘Now is that correct — is that your contract?’ I said it was and then signed up. the contract.”

He also testified, after Beville told him Moore had asked him to draw the contract:

“We (James and Doss) told him what to put in it, but I did not know then that he had been loaded.”

The appellant James was not induced to sign the contract without knowing its contents. He read the contract and it was read to him. He then declared the writing was correct and that it was the contract. There was no fraud inducing him to sign a contract that was not the contract. He knew then it did not convey the horses, wagon, and harness. If the agreement was that they should be conveyed, he then knew the contract did not convey them, and did not include them, and he should not have signed the contract. We cannot conceive of a fairer method to all parties than was used in this case in getting before them the exact terms of the writing. There was not the least deception that we can perceive in getting James to sign a contract which was not the contract Tames did not rely on representations made to him' as to its contents, but read and had it read to him. Before he signed he knew as much about it as he ever knew. If he had not known the contents before he signed it, and relied upon representations as to its contents, the law would not require of him diligence to learn the contents. This case does not fall under the rule announced in Labbe v. Corbett, 69 Tex. 503, 6 S. W. 80S; Taber v. Eyler, 162 S. W. 490. Where a fact lies open, equally to both parties, with equal opportunities for examination, and the vendee undertakes to examine for himself without relying on statements of the vendor, it is not evidence of fraud in such case that the vendor knew facts not known to the vendee, and conceals them from him. In this case there was no representation made as to the contents of the writing upon which James claims to have relied, and to have been deceived thereby. Hawkins v. Wells, 17 Tex. Civ. App. 360, 43 S. W. 816; Stith v. Graham, 146 S. W. 661; Carson v. Housels, 51 S. W. 291, and cases by this court; Wright v. Bott, 163 S. W. 360; Parker v. Shrimsher, 172 S. W. 170 (10 and 11). The court properly refused the charges requested as to fraud.

By some of the above assignments and the propositions thereunder, it appears that the appellant contends that the intention of the parties to a written contract may be shown by parol. The written contract is the best evidence of the intention of the parties to the agreement. All previous negotiations and agreements are, as a rule, merged in the writing. In the absence of fraud, accident, or mistake, it is not permissible to prove that other property than that described in the writing was intended to be conveyed, - and thereby add to or contradict the writing.

It. is also contended that, when there is a verbal contract and part of it is reduced to writing, parol may be offered to show that which was not contained in the writing. This rule applies only when it is collateral. It must relate to a subject distinct from that to which the written contract applies. It must not be so closely connected with the principal transaction as to form part of it.

When the writing is couched in such terms lis to be plain and without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties was reduced to writing. Seitz v. Brewer, 141 U. S. 510, 12 Sup. Ot. 46, 35 L. Ed. 837.

“To allow a party to lay the foundation for such parol evidence by oral testimony that only part of the agreement was reduced to writing, and then prove by parol the part omitted, would be to work in a circle, and to permit the very evil which the rule was designed to prevent.” Thompson v. Libby, 34 Minn. 374, 26 N. W. 1; Sunderland v. Hackney (Mo.) 181 S. W. 1192; Fuqua v. Pabst, etc., 36 S. W. 479.)

In addition to what has béen said under the assignments first herein mentioned, we notice the charge under the ninth assignment sought the recovery of an oil stove, which it is contended was on the Headrick invoice, and part of the fixtures, and valued at $5, for which appellants sue in reconvention. If the charge had been so framed as to submit the issue whether the stove was in the store, and part of its fixtures, when the contract was drawn, it' would have been proper to have given it, if the facts Would support a finding that it was part of the fixtures at the time of the contract; but the evidence is uncontroverted that it was not a part of the furniture or fixtures at the time of the trade, but was then in the possession of Moore and not part of the store. Even if the charge had been otherwise correct, under the facts of this case the court properly refused the charge.

The tenth assignment is a complaint lodged on the ground that the trial court refused to instruct the jury as follows:

“You are instructed that a fair and reasonable interpretation of the contract introduced in evidence shows that the property sued for by the plaintiff is included in the terms thereof, and that said written contract does cover and convey all the property listed on the original Headrick inventory. You are therefore charged 'that if you find and believe from the evidence that the property sued for by the plaintiff was included on the said Headrick inventory, then it will be your duty to find for the defendant and against the plaintiff.”

The horses, wagon, and harness cannot he said to fall under the description of “store and office furniture and fixtures, now in the one-story building on lot,” etc., for the consideration of $1,350. Certainly they were not included under the term “merchandise” in the grocery line. It will be noted that the Headrick invoice was not referred to except to get the price of the merchandise invoiced by Headrick. Furniture and fixtures were purchased in a lump sale and at an agreed price, $1,350. The Headrick invoice had nothing to do with that part of the contract. The property sued for did not fall under store and office fixtures then in the building. The court was correct in refusing the charge as requested. If there was ambiguity in the contract, which we do not find, as applied to the facts of this case, it may be that it should have been submitted as a question whether the property was included in the contract and whether it was intended that the Headrick inventory was intended to describe the property conveyed; but the court, under this contract as we view it, was not authorized to instruct that under the written contract the property sued for was conveyed, and that all property in the original Headrick invoice was covered by it. We believe the trial court took the correct view of this case and properly refused the charges requested. There is, as stated by us in the outset, no complaint that the trial court instructed a verdict for the ap-pellees, and we think the requested charges were properly refused. •

The case will be affirmed.
      i&wkey;>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and'lndexeh


author: WILDS ON, C. J.

text:
    JOYCE v. CITY OF MT. VERNON.
    (No. 1578.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 24, 1916.)
    1. Deeds <&wkey;155 — Conditions — Consteuotion oe Deed.
    A deed donating land to the trustees of a town for the purpose of building an academy and providing that if such trustees laid off the land into lots and sold them and applied the proceeds to the building of an academy, then the grantors relinquished their right, title, and interest, did not show an intention to make the application of the proceeds to the construction of the academy a condition precedent to the vesting of title in the trustees and the title vested when the land was subdivided into lots, as otherwise the trustees would have no title which they could convey upon contemplated sales.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 488-495; Dec. Dig. &wkey;155.]
    2. Municipal Cobpokations <&wkey;42— Town Sites — Evidence—Plats.
    A copy of a plat claimed to be a plat of a town site showed that the blocks east of R. street were numbered consecutively from 1 to 15, that those west of R. street were numbered from 15 to 24, that those between R. street and T. street, one block west, were numbered Í5,18, 19, 22, and 23, while those west of T. street were numbered 16, 17, 20, 21, and 24. Another plat claimed to be a plat of the town site showed the west side of T. street as the boundary line of the town site, thus omitting the blocks west of T. street and showing the other blocks to be numbered as shown on the first plat. Held, that the numbering indicated that the blocks were all a part of one subdivision, and that if those shown on the second plat were a part of the original town site, those west of T. street were also a part of it, and hence a judgment based upon a finding that the west line of T. street was the west line of the town site was unsupported by and contrary to the evidence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 118, 119; Dec. Dig. <&wkey;42J
    3. Evidence <&wkey;379 — Documentaey Evidence — Maps and Plats.
    A plat claimed to be a plat of a town site which was either copied from another plat, the authenticity of which was not proved and the absence of which was not accounted for, or was based on a survey not made in conformity to the subdivision of the land made by the town trustees and made from no data except the old plat mentioned and the field notes set out in the deed of the town site to the town trustees, was inadmissible in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1656; Dec. Dig. <S&wkey;379J
    4. Evidence &wkey;>379 — Documentaey Evidence-Maps and Plats.
    A plat copied from an alleged plat of a town site which was not shown to be the original or correct plat of the town site or to be lost or destroyed or for other reasons not to bo producible, was not admissible, except to show that the land had been laid off into lots, as required by a conveyance of the town site to the town trustees.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1656; Dec. Dig. <@==3379.]
    Appeal from District Court, Franklin County ; J. A. Ward, Judge.
    Suit by the City of Mt. Vernon against J. W. Joyce. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    R. T. Wilkinson, of Mt. Vernon, for appellant. L. W. Davidson and B. O. Shurtleff, both of Mt. Vernon, for appellee.
   WILDS ON, C. J.

The suit was by appellee to recover the title and possession of a strip of land claimed by appellant to be a part of block 21 (according to the plat of the town of Mt. Vernon), owned by him, but which appellee claimed to be a part of Taylor street in said town. The trial court found in favor of appellee’s contention, and rendered judgment accordingly.

It appeared from the evidence admitted at the trial that in April, 1849, one Keith and his wife, by a quitclaim deed, donated and conveyed to certain parties as trustees of the town of Mt. Yernon a tract of land 362 varas wide by 383 varas long, describing same by metes and bounds, on conditions stated in the deed as follows:

“We, the said Stephen Keith and Rebecca Keith have donated to the trustees of the town of Mt. Vernon, and their successors in office, the above-described tract of land for the purpose of building an academy for the purpose of promoting education. Now if the said trustees aforesaid lay off said land into lots and sell them and apply the proceeds to the building of said academy, then we, the said Stephen Keith and Rebecca Keith his wife, do relinquish all our right, title and interest, and forever quitclaim to said land.”

Appellant insisted in the court below, and insists here, that the testimony was not sufficient to show an acceptance of the donation, and that the deed therefore was inadmissible as evidence; and, further, if the deed was admissible, notwithstanding the absence of proof that the donation had been accepted, that the judgment nevertheless was not warranted because it was not shown, he asserts, that the land was laid off into lots, sold, and the proceeds applied to the building of an academy. It is true, we think, that it was not shown that the proceeds of the sale made of the lots were devoted to the construction of an academy. But if the deed should be construed as requiring the trustees, as a condition precedent to the vesting of title in them, to not only subdivide the land into lots, but also to sell same and use the proceeds in building an academy, the title could never thereby vest in them, for if the deed should be so construed, the trustees, instead of being such for the town of Mt. Vernon, as they were declared therein to be, would be mere agents for the grantors, with power to subdivide and then negotiate sales of the land and use the proceeds in constructing an academy. That such was not the intention of the grantors is clear from the face of the instrument. Evidently their intention was to pass the title to the trustees if and when they laid off the land into lots;- for the grantors, it is plain, contemplated a sale, and conveyances of the title by the trustees to purchasers, when the land was subdivided into lots. This could not have been done if the title did not vest in the trustees when they had laid the land off into lots, for they could not have passed to purchasers a title they did not have. The purpose and intent of the parties as evidenced by the language used in the instrument should, of course, control in construing its meaning. That purpose and intent as so disclosed was, we think, to vest the title to the land in the trustees when they subdivided it into lots. If the deed should be so construed, then the question to be determined to disclose appellant’s contention with reference to this phase of the case is this: Was there testimony to support a finding that the-trustees had the land laid off into lots? If there was such testimony, then, of course, appellant’s objection to the admissibility of the deed on tire ground that there was not, as well as his contention that the judgment was not warranted because of the absence of such testimony, was without merit. We are-of opinion there was testimony to support such a finding, but, as the cause is to be remanded for a new trial, will not discuss it, further than to say that it appeared that as-long ago as 1871, at least, the land had been subdivided into lots and streets, and had become and is yet the site of the city of Mt Vernon. There was no direct testimony that the subdivision was made by the trustees, but the circumstances were such, we think, as to warrant the inference that it was made by them.

The witness Weaver identified a map or plat offered by appellee as evidence as a copy made by him in 1870 or 1871 of a plat of the-town of Mt. Vernon, then in the possession, of one John A. Brooks. The court admitted the plat over appellant’s objection thereto on the grounds: (1) That it was irrelevant, immaterial, and hearsay; and (2) that it had not been shown that the Brooks plat was the original nor a correct plat of the town; and over appellant’s objection, on the ground that same was hearsay and immaterial, permitted Weaver to testify that “the people who-sold property in Mt. Vernon and who owned property in said town recognized the Brooks plat as a true and correct plat of the town.” The plat in question was as follows:

It was shown that in 1897 the commissioners’ court of Franklin county employed' J. H. King and G. E. Cowan to resurvey the Mt. Vernon site tract of land, and so established the location of the streets and blocks in the town, and that King and Cowan in 1898 reported the result of a survey they had made-to that court, attaching thereto a plat as follows:

Cowan testified- that in making the survey he and King used a plat which King obtained from Charlie Vaughan, and which purported to be a copy of the original plat. The Vaughan plat was not offered in evidence and we do not know from the record whether it was like either the King and Co-wan plat or the Weaver plat or not. The court admitted as evidence the report, including the plat attached thereto copied above, made by King and Cowan, over appellant’s objection thereto on the grounds: (1) That .same was immaterial, irrelevant, and hearsay; and (2) that the original plat of the town was the best evidence.

The court by his judgment determined that Taylor street was located where it is shown on the King and Cowan plat to be. If his determination is correct, then it is plain that the fractional lots or blocks marked “16,” “17,” “20,” “21,” and “24,” on the Weaver plat are not a part of the town site. And yet the numbering of those lots or blocks, when looked to in connection with the numbering of the blocks lying immediately east of Taylor street, if it does not show, tends strongly to, that they were a part of that site. The blocks east of Rusk street it will be observed, are numbered consecutively from 1 to 14, inclusive, on each of the plats; and west of Rusk street,. consecutively from 15 to 24, inclusive, on the Weaver plat; while on the King and Cowan plat the blocks west of that street, instead of being numbered consecutively, are numbered, respectively, 15, 18, 19, 22, and 23. To our minds the numbering indicates that the lots and blocks numbered from 1 to 24, inclusive, were all a part of one and the same subdivision made of a tract of land, and that if those shown on the King and Cowan plat were a part of the original town site those numbered 16, 17, 20, 21, and 24 also were a part of it. If they .were, then it is plain that the west boundary line of Taylor street is not the west boundary line of the town site tract, as shown by the King and Cowan plat and determined by the court, but that same is east of that line the width, as it may be determined to be, of said lots or blocks numbered 16, 17, 20, 21, and 24. If therefore, we thought the King and Cowan map was admissible as evidence to show the location of Taylor street, we would feel bound to reverse the judgment because unsupported by and contrary to the evidence. But we do not think the plat was admissible. If it was not a copy of the Vaughan plat, the authenticity of which as the original plat was not proven, nor the absence of which was not accounted for, it appeared to have been based on a survey not shown to been in conformity to the subdivision of the Keith land made by the trustees; for the only data, except the Vaughan plat, t(he testimony showed King and Cowan to have had when they resurveyed the land was the field notes thereof as set out in the deed of the Keiths to the trustees. Nor do we think, in the absence, as was the ease, of a proper predicate for its introduction as evidence, the Weaver plat was admissible. It was, admittedly, a copy of the Brooks plat, and it was not shown that the Brooks plat had been lost or destroyed, or for other reason was not producible. We know of no rule of evidence which authorized the admission of the Weaver plat for any other purpose than to show that the land had been “laid off into lots,” in the absence of proof, showing either directly or circumstantially, that the Brooks plat, of which it was a copy, was the original or a correct plat of the town site tract, and in the absence of further proof showing that it could not be produced as evidence.

If, treating the plats as a part of the evidence, it nevertheless was not sufficient to support the judgment rendered, of course if they should not be considered as a. part of it, as we think they should not, the testimony was not sufficient. On that ground, therefore, the judgment will be reversed, and the cause will be remanded for a new trial.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '