author: RICE, J.

text:
    DELANO v. DELANO.
    (No. 5627.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1916.
    On Motion for Rehearing, Nov. 29, 1916.)
    1. New Trial <§=»102(9) — Newly Discovered Evidence — Knowledge oe Materiality.
    In action by one son against another for partition and to equal share in the west half of a tract of land left by _ their deceased intestate mother, the defense being that plaintiff had no interest in the land in the suit because his mother had conveyed to him the east half of the whole tract as an advancement of his whole portion of the estate, although the deed of said east half recited a valuable cash consideration which plaintiff testified was paid, held error, when plaintiff prevailed, to refuse new trial upon convincing affidavits from several persons who lived in plaintiff’s neighborhood, that he had always been, short of money and had been supported hy his mother, etc-, where defendant lived in. a distant county, and where it appeared that prior to the trial plaintiff had testified in the case of the estate of his mother, where the same question was involved, but at that time had failed to make any claim that he had paid any part of the cash consideration stated in the deed; for it could not have been anticipated that plaintiff, after having testified on the same subject in the will case, would so change his testimony as to claim he had made a cash payment, and defendant could not have been prepared to controvert such a claim.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 214; Dec. Dig. <8=5102(9).]
    On Motion for Rehearing.
    2. Evidence <8=>419(2) — Parol Evidence — Consideration — Deed — Contractual Recital.
    In a deed conveying the fee-simple title to an heir of grantor, the recital of consideration of cash paid, and also that grantee’s stepdaughter should receive the same interest in land as his own children, was not contractual and for that reason conclusive against another heir of grantor of the fact that the cash consideration was in fact paid, and that the conveyance was not an advancement within Rev. St. art. 2467, requiring advancements to be brought into hotch potch, for the stepdaughter of the grantee would take nothing under such a stipulation, since his own children did not take anything, the grantee taking the whole fee.
    [E'd- Note. — For other cases, see Evidence, Cent. Dig. § 1912; Dec. Dig. <8=5419(2).]
    S. Evidence <8=5419(5) — Parol Evidence — Consideration — Deed.
    The recital of a paid consideration in a deed is not conclusive on the parties thereto, but may be disproved by parol.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1915; Dec. Dig. <S=>419(5).]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by J. R. Delano against L. S. Delano. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Henderson, Kidd & Gillis, of Cameron, and J. W. Garner, of Rockdale, for appellant. Lyles & Lyles and E. A. Wallace, all of Cameron, for appellee.
   RICE, J.

For many years prior to 1910 Mrs. E. J. Delano and her son J. R. Delano and family lived together on a tract of land constituting the homestead of Mrs. Delano, near Granger. Some time in March of that year she sold said tract of land, and with the proceeds thereof purchased from Joe Wanoreek and wife a tract of 2S0 acres out of the Delgado grant in Milam county, and in consideration therefor paid $1,000 cash, and executed two notes of even date, one for $4,000, due November 1, 1910, and the other for $3,460, due January 1, 1911. Thereafter, on the 25th of February, 1911, she conveyed the east half of this tract to her son, J. R. Delano, reciting a cash consideration in the deed of $4,320. Mrs. Delano 'died intestate in the early part of January, 1913, leaving as her only heirs at law her two sons, L. S.' and J. R. Delano; and the latter brought this suit against his brother, L. S. Delano, for partition of the west half of said tract of land, alleging that they were joint and equal owners thereof.

Appellant answered by plea of not guilty, claiming title to all of the west half of the 280-acre tract, and denied that appellee had any interest therein, -alleging . that their mother purchased the entire tract of 280 acres, paying the consideration therefor, and acquired title thereto in her own right, and afterwards, by way of advancement of his portion of the estate, conveyed the east half thereof to his brother, J. R. Delano, reserving the west half for appellant at her death; that while the deed by his mother to his brother for the east half recited a consideration of $4,320 paid by him, yet, in truth and in fact, no money or other valuable consideration was paid therefor, but that the real consideration was a gift and advancement by his mother to his brother, which was intended to be a charge against him in the partition of her estate after her death.

So that the controlling question in this case is whether or not appellee, under said deed, acquired title to the east half of said land by purchase or by way of advancement. The case was tried before the court without a jury, who found in favor of appellee, and judgment was rendered to the effect that each party owned an undivided half interest in the west hair of said tract of land, and appointing commissioners to partition the same between them, from which judgment appellant prosecutes this appeal.

While there are numerous errors assigned, it will, in our judgment, be only necessary to pass upon the tenth assignment, which complains that the court erred in refusing to grant a new trial on the ground of newly discovered testimony, which appellant claims was material to his defense, and which would probably change the result on another trial, and which he could not have discovered by the exercise of reasonable diligence.

It is not necessary to set out the facts in detail, but it is sufficient to say that appel-lee’s contention was supported alone by the deed from his mother and his own testimony; while appellant’s theory was sustained by the testimony of himself and W. D. Wells, an apparently disinterested witness, together with strong corroborating circumstances.

With reference to the consideration in the deed, appellee testified, in effect, that he paid the same partly in cash and partly by services rendered his mother as follows: (1) That he supported and maintained her without compensation for a period of some 25 years; (2) that he paid the $1,000 mentioned as the cash consideration in the deed from her to him out of his own money; and (3) that she told Mm, if he would effect the sale of her Williamson county land (which he claimed to,have done) and purchase the Milam county -tract, that she would give him one-half of said land. Pie also stated that he paid $80 at one time for her account, and $50 at another, all of which, he asserted, entered into the consideration for her conveyance to him of the- east half of the Milam county land. He further testified that this land was purchased before the Williamson county land was sold, and before she had a purchaser for it. In accounting for the $1,000 so claimed to have been paid by him, he stated that it was the proceeds of. his earnings from the sale of his crops, stock, etc.; that he had accumulated it during a period of years and deposited $500 thereof in the First National Bank of Granger during the fall of 1909, which he drew out some time during that fall and placed it with the Granger State Bank, which was also called the Farmers’ State Bank, and in which last-named bank he had oj)ened an account. It further appears from the evidence that appellee testified as a witness prior to this time in the case of the estate of his mother, pending, in the district court of Milam county, where the same question as here was involved, but he failed to make any claim that he had paid any part of this $1,000 cash consideration mentioned in the deed.

Appellant made a motion for a new trial, to which he attached the affidavits of numerous witnesses who lived at and near Granger in which it was shown that J. R. Delano’s mother supported- him and his family from the rents, of her farm and the pension she drew from the government;- that he never had any money to amount to anything; that at. the time the place at Granger was sold his mother received the. sum of $1,000 cash down with some other land, and also $6,000 in notes; . that she immediately, sent him (J. R. Delano) to Milam county to look at some land; that , the Milam County land was bought; and that this $1,000 cash which she received from tile sale of the Williamson county land was paid thereon. And it was also shown that he did not have anything to do with the sale of the Williamson county land, but that one Jennings, a real, estate agent, made the deal and received his commission therefor.

Stores, one of the affiants,- testified that he lived at Granger and was president of the First National Bank there; that he knew J. R. Delano, and had known him for a good many years; that he examined the books of the First National Bank of Granger for the months of July, August, September, October, November, arid December, 1909, for the purpose of . ascertaining whether J. R. Delano ever had or kept a deposit in said bank, and found that the bank books showed no deposit or business “of any kind with J. R. Delano during the year 1909; that he found no. evi-r dence of Delano’s having drawn $500 from the First National Bank of Granger during that year.

Another witness,. whose affidavit is attached, testified that he had lived in the vicinity of Granger since the summer of 1886; that he had known J. R. Delano and his mother well since the year 1891; that it was generally known in Granger during all these years that his mother was supporting him; it was also generally- understood that he did not have any money ahead. ■

Pope, another one of the affiants, testified that he was 38 years old, and had lived in the vicinity of Granger all of his life; that he had known J. R. Delano and his mother during all of this time; had been in the mercantile business since 1897 continuously; that J. R. Delano and his mother traded with him each year since he had been in the business until they left there; that they ran separate accounts; that his mother paid her account, but that J. R. had not paid his ; that he never paid any part of his mother’s store account, and she paid it from money obtained from her pension and from rents from her little -farm, and the general understanding there was that he had no money.

Evans, another merchant, testified that Mrs. Delano was the person who bought the groceries that were bought for them, and that she paid for the same with her pension money; that J. R. was not of a thrifty nature, but was an easy-going sort of a fellow, and that during all the time that he had known him he had never been prosperous; that his mother cashed her vouchers received from her pension with him, and paid for her groceries out- of same.

John Farr, another witness whose affidavit was attached to the motion, testified that he had known the Delanos since 1882; that he knew that J. R. was hard up for money all the time, and that his mother helped to support him for years and years; that she drew a pension; and that J. R. nearly always used part of it for his living, ■and had the reputation in the county of being hard up for money.

Appellant lived in Coryell, a distant county, and was not supposed to be conversant with the facts set out in his motion for a new trial. The town of Granger was some 40 miles distant from Cameron, where this case, was tried, and it could not have been anticipated that appellee, who had testified on the same subject -in the will case, would so change his testimony as to' claim that he •had paid $1,000 of-the purchase money, when he did not mention that fact on the trial of that case,.though closely questioned with reference to (he whole transaction'; /So,that this is the first, time that appellant had notice of any suc-h claim, and hence could not have-been prepared to controvert it. ■

In view■> of .testimony in -'the. whole-record, we are of opinion that the trial court erred in refusing to grant a new trial, and therefore sustain this assignment. See Wolf v. Mahan, 57 Tex. 171; T. & P. Ry. Co. v. Barron, 78 Tex. 421, 14 S. W. 698; Douglas v. Walker, 42 Tex. Civ. App. 213, 92 S. W. 1026; Horne v. Stockton, 178 S. W. 962; H. & T. C. Ry. Co. v. Jos. Forsyth, 49 Tex. 171.

For the error pointed out, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

In view of the fact that- the trial court concluded as matter of law that the recital in the deed from E. J. Delano to appellee was contractual, establishing the title thereby conveyed as one of purchase, and that such recital was conclusive on the issue of advancement, appellee contends in his_ motion for rehearing that, since we failed to sustain the eighth assignment, complaining of such conclusion of law, we were in error in reversing the case on the ground of newly discovered testimony, since this testimony, by virtue of such conclusion, would become immaterial and not admissible.

Believing that .the trial court erred in such conclusion of law, we sustain the eighth assignment, and hold that the recitals in the deed are not contractual. The recital referred to reads thus:

“That I, Mrs. E. J. Delano, for and in consideration of the sum of $4,300.00 to me in hand paid by J. R. Delano (my son), the receipt of which is hereby acknowledged, and the further consideration that Annie Roberson, a child of the wife of said J. R. Delano by her former marriage, and who is a half-sister to the children of the grantee herein, shall receive an equal and exact share of the property hereby conveyed, the same as if she were a daughter of my said son, have granted, sold and conveyed, and by these presents do grant, sell, and convey, unto the said J. R. Delano, of the county of Milam,” etc., the following described land, etc. “To have and to hold the above-described, premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said J. R. Delano, his heirs and assigns forever.”

It will be observed that the recital does not bind the grantee to do or not to do anything. It merely recites that Annie Roberson shall receive such an interest in the land as the children of J. R. Delano should receive. And it further appears from such conveyance that his own children did not receive anything, but that he himself took the fee-simple title to the land in question, without remainder to any one. Hence Annie Roberson could take nothing under this stipulation, and such recital had no binding legal effect. The court was therefore in error in finding, as a conclusion of law, that such recital was contractual. It is well settled in this state that the recital of a paid consideration in a deed is not conclusive on the parties thereto, but may be disproved by parol. See article 2467, R. S.; Lanier v. Foust, 81 Tex. 186, 16 S. W. 994; Garrett v. Robinson, 43 S. W. 288; Taylor v. Merrill, 64 Tex. 494; McLean v. Ellis, 79 Tex. 398, 15 S. W. 394; Morrison v. Morrison, 43 Tex. Civ. App. 339, 96 S. W. 100; Johnson v. Elmen, 24 Tex. Civ. App. 43, 59 S. W. 605; Id., 94 Tex. 168, 59 S. W. 253, 52 L. R. A. 162, 86 Am. St. Rep. 845; 6 Am. & Eng. Ency. 779; Meeker v. Meeker, 16 Conn. 383; Bruce v. Slemp, 82 Va. 353, 4 S. E. 692; Sadler v. Huffhines (Ky.) 12 S. W. 715; Barbee v. Barbee, 109 N. C. 299, 13 S. E. 792.

Appellant’s object in assaiiihg this deed was not for the purpose of avoiding it, but for the sole purpose of showing that the land conveyed by it was intended as an advancement to appellee, and that he should be charged with it in the partition of his mother’s estate. Evidence of this character, we think, was admissible, and should have been heard under the authorities above cited.

Believing that the court erred in both the respects indicated, the motion for rehearing is overruled.

Motion overruled.
      ibssFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      ®=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    DROMGOOLE v. KARNES COUNTY.
    (No. 5726.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1916.
    Rehearing Denied Dec. 6, 1916.)
    1. Counties <§=>222 — Officers — Action for Compensation — Statute.
    Under Rev. St. 1911, art. 1366, providing that a county shall not be sued unless the claim upon which suit is founded shall have first been presented to the county commissioners’ court and such court has neglected or refused to audit the same, or any part, a petition, stating that plaintiff had presented to the commissioners’ court a claim in writing for a sum stated, being the amount of balance due him for amounts received and disbursed during said years, as alleged, for an allowance by the court of said amounts, with the request that the court pay plaintiff said sum so due, which statement followed the itemized claim in the petition, although the claim presented to the commissioners was larger than the amount due shown by the sum of items stated, sufficiently shows that the identical claim sued for was presented to the commissioners’ court for allowance, on general demurrer to the petition.
    [Ed. Note. — For other cases,, see Counties, Gent. Dig. §§ 355-359; Dec. Dig. <§=>222.]
    2. Counties <§=>222 — Actions—Petition—Ad Damnum Clause.
    As the ad damniim clause of a petition is merely an effort to state the entire amount plaintiff contends is due on his claim, or will be due when suit is tried, such clauses are disregarded in determining the amount in controversy, when other portions of the petition show no such damages could have been sustained, and should not be held -to show a suit upon a .different claim than the one presented in the petition.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§-355-359; Dec. Dig. <§=>222.]
    Error from District Court, Karnes -County; F.G. Chambliss, Judge.
    Suit by R. H. Dromgoole against Karnes County. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    M. B. Little, of Alto, and T. P. Morris, of Floresville,. for plaintiff in error. Bell & Brown and .J. O. Faitli, all of Karnes City, and Lipscomb & Lipscomb, of San Antonio, for defendant in error.
   MOURSUND, J.

R. H. Dromgoole sued Karnes county, alleging that lie was county treasurer of said county frdm November 16, 1910, to June 2, 1914; that during the months of November and December, 1910, there came into his hands as county treasurer $3,-768.52, belonging to said county, and under the law he was entitled to 2y2 per cent, of said amount for receiving said sum, or the sum of $94.21; that during the same time he paid out on warrants drawn by the commissioners’ court $1,458.68, and was entitled to receive 2% per cent, commission on said amount, or $36.46; that during the year 1911 there came into his hands as county treasurer $40,217.72, belonging to defendant county, and he was entitled to receive as commission for receiving same 2% per cent, or the sum of $1,005.44; that during said year he paid out in warrants drawn on him by said county the sum of $49,283.88, and he was entitled to receive 2% per cent, on said sum as commissions, or the sum of $1,232.09, or the sum of $2,000 for receiving and paying said sums during said year; that during the year 1912, there came into his hands as county treasurer $44,426.32, belonging to said county, and he was entitled to receive as commission for receiving same 2% per cent, or the sum . of $1,110.65; that during said year he paid out on warrants drawn on him by said county the sum of $41,416.77, and he was entitled to receive 2% per cent, on said sum as commissions, or the sum of $1,-035.41, “or $2,000 for receiving and paying out-said sums during said year; that during the year 1913 there came into his hands as county treasurer $46,125.71, belonging to said county, and he was entitled to receive as commission for receiving same 2% per cent., or the sum of $1,153.14; that during said year he paid out on warrants drawn on him by said county the sum of $53,553.88, and he was entitled to receive 2%. per cent, on said sum as commissions, “or the sum of $1,338.84, or the sum of $2,000 for receiving and paying said sums for said year”; that during the year 1914, and up to and including the 2d day of June, 1914, he received as county treasurer $36,075.97, belonging to said county, and he was entitled to receive as commission for receiving same 2% per .cent., or the sum of $901.89; that during the year 1914, and up to and including the 2d day of June, 1914, he paid out on warrants drawn on him by said county the sum of $27,253.62, and he was entitled to receive 2% per cent, on said sum as commission, or the sum of $681.33. Plaintiff’s petition then contains the following allegations:

“Plaintiff represents unto your honorable court that he did not, during the year A. D. 1910, retain any commission on the amount received, or the amount paid out, nor for the years A. D. 1911, 1912, or 1913, nor for the year A. D. 1914, until after the 2d day of June of said year, but that said commissions due plaintiff for receiving and disbursing said sums remained in the treasury of said defendant county, and was used by said defendant county in paying its obligations, and was converted to the use of said defendant county by the commissioners’ court of said defendant county, and was paid out on orders drawn on said plaintiff as county treasurer by said commissioners’ court, or said court’s order.
“Plaintiff represents that there was a balance due him, as commissions as above alleged in paragraphs Nos. 1, 2, 3, 4, 5, and 6 of this petition, the sum of $5,165.89, that defendant converted said sum to the use and benefit of said defendant county by its said commissioners’ court, and that same belonged to plaintiff, and by reason of said defendant’s converting of said money belonging to plaintiff, defendant county became liable to pay plaintiff the said sum due plaintiff, and promised to pay to plaintiff said sums, but, often requested by plaintiff to pay same, 'has refused, and still refuses, to pay to plaintiff said sums of money so due, to plaintiff’s damage in the sum of $5,852.
“Plaintiff alleges that he received from said defendant county the sum of $60 per month during each and every month from the time he qualified and began to-discharge the duties of said office as county treasurer up to the 2d day of June, that said sum was paid as a salary by the warrant of said commissioners’ court acting for said defendant county, and that the amount so received by plaintiff from said county, since his qualification as county treasurer since the said 16th day of November, A. D. 1910, up to and including the 2d day of June, A. D. 1914, amounted to $2,548, which deducted from the said sum of $7,713.89, the amount of commission due plaintiff by defendant county since his election and qualification up to and including the 2d day of June, leaves the sum of $5,165.89, due plaintiff by said county.
“Plaintiff represents to the court that the commissioners’ court of said defendant county failed to fix by an order of said court the rate of commission due plaintiff for receiving the money coming into his hands as county treasurer, and that said commissioners’ court failed to fix by an order of said court the rate of commission for disbursing the funds of defendant county on the warrants of said defendant county, and that said commissioners’ court failed to make any ordei; limiting the commissions of county treasurer until the 2d day of June, A. D. 1914, and that under and by virtue of article 3875 of Revised Statute of 1911, plaintiff was entitled to receive 2y¡¡ per cent, on the amount received by him as county treasurer and a like sum of 2% per cent, on the amount paid out by him for defendant county.
“Plaintiff represents to the court that on the 11th day of August, A. D. 1914, he presented to the commissioners’ court of defendant county a claim in writing for the sum of $5,452, the same being the amount of balance due him for commissions on the amount received and amounts disbursed for said county during said years as alleged for an allowance by said court of said amounts, with request that said court pay to plaintiff said sums so due, but that said commissioners’ court refused to allow plaintiff’s account or claim, in whole or in part, but rejected said account or claim, and refused to pay same or any part thereof, to plaintiff’s damage in the sum of $5,852.
“Wherefore, premises considered, defendant having been cited to answer. herein, plaintiff prays the court that on final trial hereof he have judgment against defendant Karnes county for the sum of $5,852, for costs of suit and for such general and special relief as plaintiff is entitled to in law or equity.”

A general demurrer was sustained to said petition, on the theory that it failed to affirmatively allege that the identical claim sued for had been presented to the commissioners’ court for allowance before bringing suit. Article 1366 (R. S. 1911) reads:

“No county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance, and such court shall have neglected or refused to audit and allow the same, or any part thereof.”

Plaintiff alleged that he presented to the commissioners’ court a claim in writing for the sum of $5,452, the same being the amount of balance due him for commissions on the amounts received and disbursed for said county, “during said years as alleged for an allowance by said court of said amounts, with request that said court pay to plaintiff said sum,so due.” Giving this allegation the aid of every reasonable intendment, we construe it to mean that the claim stated the items set out in the petition, and showed on its face to be a claim for commissions for the years named in the petition, but that the aggregate amount due was stated to be $5,452. He says he presented his claim for an allowance of said amounts which shows that his claim consisted of items, and by reference to the words preceding such statement, it appears that the amounts must be for commissions on the amounts received and disbursed for said county during said years as alleged. There is no comma after the word “alleged,” but it is clear that the words, “as alleged,” were intended to describe the years for which commissions were claimed in the written account as the same years named in the petition. We do not think the fact that the balance claimed was stated at a larger sum than was due would render a petition, which seeks to recover the correct amount, subject to demurrer. The purpose of the statute is to insure that the commissioners’ court shall have an opportunity to pass upon and pay a claim without being burdened with costs of suit. Such an opportunity was afforded in this case according to plaintiff’s petition. The statute contemplates that when a claim is presented the commissioners’ court shall audit it and allow the true amount. The court having failed to audit, the claimant would not be precluded from recovering the amount actually due because an audit would have disclosed that too large an amount was asked for.

But it is argued that in one portion of the petition plaintiff seeks to recover $5,852, and that there is no allegation that a claim for said amount was ever presented to the commissioners’ court. Such amount is mentioned only in the ad damnum clause and the prayer and it naturally follows that the statement thereof was merely an effort to state the total amount plaintiff contended was due on his claim, or would be due by the time the suit was tried. Such clauses are disregarded in determining the amount in controversy when other portions of the petition show no such damages could have been sustained, and the use thereof in a case of this kind should not be held to show a suit upon a different claim than the one described in the petition and presented to the commissioners’ court.

We conclude the petition is not subject to general demurrer.

The judgment is reversed, and the cause remanded.
      tteoFor other cases see same topic and KEY-NUMBER in all -Key-Numbered Digests and Indexes


text:
    POSEY v. ADAM SCHAAF CO.
    (No. 5670.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1916.
    On Motion for Rehearing, Nov. 22, 1916.)
    1. Principal and Agent <§=^103(7) — Authority oi? Agent — Sale — Bona Fide Purchaser.
    Where plaintiff, the manufacturer of pianos, shipped them on consignment to an agent, authorizing him to sell for cash or on credit, reserving only the right to retake possession, if he failed to sell in 90 days or to pay the invoice price, a purchaser for value without notice of the principal’s rights obtained title as against the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 283%; Dec. Dig. <§=^103(7).)
    2. Principal and Agent <§=^103(7) — Authority op Agent — Bona Fide Purchaser — Consideration.
    In such case the consideration paid need only be valuable, and not necessarily adequate, so that a purchaser’s release of a mortgage on a piano executed to him by the agent would be a valuable consideration.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. § 283%; Dec. Dig. 108(7).]
    3. Judgment <§=»199(1) — Notwithstanding Verdict.
    While the court might set aside a verdict in defendant’s favor on special issues, it had no power to render judgment contrary thereto.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367, 374, 375; Dec. Dig. <®=> 199(1).]
    Appeal from Milam County Court; John Watson, Judge.
    Suit by the Adam Sebaaf Company against L. H. Posey. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant,
    E. A. Wallace, of Cameron, for appellant. Paul C. Greene, of Dallas, and R. B. Pool and Morrison & Lewis, all of Cameron, for appellee.
   RICE, J.

Appellee, alleging that be was the owner of a piano of the value of $425, together with stool, cover, and case therefor, of the aggregate value of $12.50, brought this suit to recover title and possession thereof, alleging that appellant had, on the 26th day of February, 1915, unlawfully converted said property to appellee’s damage, and likewise prayed for $100 for detention of the piano, sequestrating said property, which was duly replevied by appellant.

Answering, appellant denied appellee’s ownership of the piano, as well as the value and conversion thereof, and alleged that he purchased it from J. S. Herring, the owner, for a valuable consideration, and that, if Herring was not the owner, appellee had placed the piano in his possession, permitting him to hold himself out as the owner, and authorizing him to sell the same, and that Herring had held himself out as the owner thereof free from any lien or incumbrance thereon; that he, appellant, had purchased same from Herring for a valuable consideration, in good faith, and without any knowledge or notice of any interest therein on the part of appellee by reason of which appellee was estopped from asserting ownership to same.

The case was tried on special issues, and the court rendered judgment in favor of ap-pellee thereon, from which this appeal is prosecuted.

The facts, briefly summarized, show that in September, 1914, appellee shipped to Herring a number of pianos, including the one sued for, under a written contract requiring Herring to pay the freight thereon, authorizing him to sell the same as he saw fit, at such prices as he might place on them; that he was to pay appellee the fixed ' invoice price on each piano, placed at $168; that Herring’s compensation was to be the difference between the invoice price and what he sold for; that all expenses in conducting the business were to be borne by Herring; that if Herring took notes for the pianos he was to guarantee payment thereof; that appellee had no right to reclaim the goods before 90 days, and then only in the event the same were unsold and in case Herring should fail to pay for them at the invoice price. The uneontradicted evidence shows that before appellant claims to have purchased the piano in question Herring mortgaged another of these pianos to him for $100 advanced by him to Herring, and that he thereafter sold the piano in question to' appellant for $153.50, who in payment therefor released the $100 mortgage. The evidence further shows that, in addition thereto, he paid $17 in cash, $20 in freight, and the balance in different payments. Both before and at the time of the transaction Herring asserted ownership of the pianos, and represented that he had purchased them at wholesale, paying cash therefor, by reason of which he could sell them cheap. There was evidence that such pianos sold at retail in Cameron for $425, and the jury found its market value to be $375 at the time of the trial.

The jury, in effect, also found, in response to the special issues, that appellant had purchased the piano from Herring in good faith, for a valuable consideration, without notice of appellee’s claim thereto. It is urged on the part of appellant that the court erred in rendering judgment on this verdict in favor of appellee, and in refusing to render judgment for him thereon. We agree with appellant in this contention. Under the facts and circumstances shown by this record, it is immaterial, we think, whether the contract between appellant and Herring constituted a sale of the pianos or a mere consignment for sale upon commission. In either event, in our opinion, the appellant is entitled to judgment. We are disposed to treat the transaction as one of agency, and that the pianos were consigned to Herring for the purpose of sale upon commission.

The law seems to be that, where an agent who is intrusted with possession of property, with authority to sell the same, makes a sale thereof to a third person for value, without notice of the claim of the principal, it is binding upon the latter, See Morris v. Sellers, 46 Tex. 391, and cases there cited; Columbus Buggy Co. v. Turley & Parker, 73 Miss. 529, 19 South. 232, 32 L. R. A. 260, 55 Am. St. Rep. 550; Parry Mfg. Co. v. Lowenberg, 88 Miss. 532, 41 South. 65; Leigh Bros. v. Mobile & Ohio R. R. Co., 58 Ala. 165; Heath v. Stoddard, 91 Me. 499, 40 Atl. 547; Chickering v. Bastress. 130 Ill. 206, 22 N. E. 542, 17 Am. St. Rep. 309; Winchester Wagon Works v. Carman, 109 Ind. 31, 9 N, E. 707, 58 Am. Rep. 3S2, and notes thereunder; Fitzgerald v. Fuller, 19 Hun. 180; Mechem on Agency, vol. 2, § 867; 31 Cyc. 1353, and notes thereto. And under such circumstance the consideration need only be valuable, and not necessarily adequate. See Sanger v. French Piano Co., 75 S. W. 39, and authorities there cited. The release of the mortgage, under the circumstances recited in the record, must be regarded as a valuable consideration. See same case.

In Mechem on Agency, § 867, it is said:

“And so where an agent authorized to sell and intrusted with possession of the property to be delivered upon the sale is expressly or by implication authorized or permitted to sell in his own name as though he were the owner, and makes a sale in his own name to one who does not know and has no good reason to believe that he is not the owner, a payment made to the agent or a set-off acquired against him before the principal is disclosed will be effective against the principal. An agent so situated is ostensibly the owner of the goods, and the principal who has permitted him to assume that appearance is estopped to assert his ownership as against one who has relied upon the contrary appearance.”

In 31 Cyc. supra, it is stated that:

“When, however, the principal not only intrusts to the agent the possession of the property, but also clothes him with apparent ownership or power to sell, then he will not be permitted to deny the agent’s authority as against third persons who have dealt with him in good faith and with reasonable prudence.”

In Smith v. Clews, 114 N. Y. 194, 21 N. E. 161, 4 L. R. A. 392, 11 Am. St. Rep. 627, it is said that:

“The rightful owner may be estopped by his own acts from asserting his title. If he has invested another with the usual evidences of title, or an apparent authority to dispose of it, he will not be allowed to make a claim 'against an innocent purchaser dealing on the faith of such apparent ownership.”

These holdings are based on the doctrine of estoppel, and seem to us well founded. In Leigh Bros. v. Mobile & Ohio R. R. Co., supra, the court states the general rule to be that:

• • “A sale or a pledge of a chattel by a person who, though he has possession, has no right of property and no authority to sell, confers no title as against the true owner, although the purchaser pays valuable consideration or advances money in good faith and without notice of the title of the true owner.”

However, Mr. Chief Justice Brickell in said case, in. discussing one of the exceptions to said rule, says:

“Another class of cases forming an exception to,the general rule is when the owner, by his own act or consent, has given another such evidence of the right to sell, or otherwise dispose of his goods, as according to the customs of trade, or the common understanding of the world, usually accompanied the authority of sale, or of disposition. Then, if the person intrusted with the possession of the goods, and with the indicia of ownership, or of authority to sell, or otherwise dispose of them, in violation of his duty to the owner, sells to an innocent purchaser, the sale will prevail against the right of the owner. He ought to bear the loss which may follow from his misplaced- confidence, rather than the bona fide purchaser, who relied on the evidence of property, or of authority with which he clothed the possessor.”

In the instant case appellees, the manufacturers of the pianos, shipped them on consignment to their agent authorizing him to sell for cash or on credit, reserving only the right to retake possession in the event he failed to make a sale in 90 days, or failed to pay the invoice price thereof, not only giving possession, but actually conferring upon the agent the power of sale. The agent, under this authority, sells to a third party, without notice, for value, representing himself to he the owner! We think appellant, the purchaser, clearly obtained title as against the true owner, notwithstanding the owner may have been entitled to recover possession from the agent himself. Having intrusted him with possession and invested him with all the indicia of ownership, and with authority to sell, when the agent does the very thing he is authorized to do, is the principal not bound by .the plainest dictates of honesty and fair dealing? We think so. To hold otherwise would place it within the power of ,the principal, who had trusted most, to affirm the conduct of the agent when advantageous to do so, and to disavow it when they regarded it to their interest to take that course.

In addition to this, it is urged by appellant, that the verdict being in his favor on the special issues,, it was error for the court to render judgment in favor of the ap-pellee thereon. The court might have set aside the verdict, but had no power to render judgment contrary thereto. See Davis v. Pullman Co., 34 Tex. Civ. App. 621, 79 S. W. 636; Casey-Swasey Co. v. Fire Ass’n, 32 Tex. Civ. App. 158, 73 S. W. 865; Vernon’s Revised Statutes, art. 1990; Hayes v. Stowers Furniture Co., 180 S. W. 149; Rich v. W. U. Tel. Co., 110 S. W. 95; Waller v. Liles, 96 Tex. 21, 70 S. W. 17; S. W. Tel. Co. v. James, 41 Tex. Civ. App. 560, 91 S. W. 655, 91 S. W. 654.

Believing that the court, on the verdict and the uncontradicted evidence in the record, should have) rendered judgment for appellant, it becomes our duty to reverse and render the judgment in his behalf; and it is so ordered.

Reversed and renderéd.

On Motion for Rehearing.

It is earnestly insisted on the part of ap-pellee in its motion for rehearing that the release by Posey to Herring of the $100 mortgage on the player piano did not constitute a valuable consideration for the purchase of the piano in question, since it contends that Herring, under the evidence, had no right to mortgage same in satisfaction of his own indebtedness to appellant, basing this contention on the case of Low v. Moore, 31 Tex. Civ. App. 460, 72 S. W. 421.

We think this case in its facts with reference to the authority of Herring is entirely distinct and different from the case referred to, and that under the contract between appellant and Herring, Herring was authorized to dispose of the player piano by mortgage or otherwise; but, even if it be conceded that appellee is correct in this contention, and that the release of the mortgage did not constitute a valuable consideration, still the evidence in this case is without dispute to the effect that, in .addition to releasing the mortgage, at the time of the purchase by appellant from Herring of the piano in question, he paid the freight on the piano, amounting to $20, as well as the sum of $17 in cash, aggregating $37, which constituted a valuable consideration, which we do not regard as. inadequate, and is of itself sufficient upon which to base the sale to appellant; for which reason the motion for rehearing is overruled.

Motion overruled.
      «SSsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    MOSSOP v. ZAPP.
    (No. 5700.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1916.
    Rehearing Denied Dec. 6, 1916.)
    1.’ Fraud @=>61 — Exemplary Damages.
    Defendant endeavored to induce plaintiff to trade her bonds with him, but she refused to do so unless her attorney should approve the trade, and defendant went to such attorney, and, when the latter expressed his disapproval, told him that he would give the matter up, but, instead of doing so, went to plaintiff and represented to her that her attorney had approved the trade, which she then consented to make, defendant agreeing, as part consideration, to have a note of plaintiff’s canceled at his expense, but actually writing out the agreement, with fraudulent purpose, so as to require plaintiff to deliver the note to him at her cost. Meld, that defendant was guilty of deliberate fraud, which was the result of a malicious intent and design to injure plaintiff, and which did injure her, .and plaintiff could recover exemplary damages against him.
    [Ed. Note. — Eor other cases, see Fraud, Cent. Dig. § 63; Dec. Dig. <§=»61J 2. Fraud <§^22(1) — Negligence of Defrauded Party.
    Plaintiff, who traded her bonds with defendant, was not negligent in relying on defendant’s statement to her that her attorney had approved the trade, plaintiff having told defendant to submit his bonds to the attorney, and, if he advised the trade, to return and report his approval.
    [Ed. Note. — For other cases, 'see Fraud, Cent. Dig. §§ 19, 20, 22, 23; Dec. Dig. <S=»22(1).]
    Error from District Oourt, Fayette County; Frank S. Roberts, Judge.
    Suit by Mrs. Isolda Zapp against Y. F. Mossop. To review a judgment for plaintiff, defendant brings error.
    Judgment affirmed.
    See, also, 183 S. W. 839.
    John T. Duncan, of La Grange, for plaintiff in error. C. D. Krause, of La Grange, for defendant in error.

      Application for writ of error pending in Supreme Court.

   SWEARINGEN, J.

The issues joined Dy the parties in the trial court are concisely and correctly stated by defendant in error, as follows:

“Defendant in error instituted this suit in the district court of Fayette county, Texas, on October 20, 1914, by petition, in which, for cause of action, she alleged that, on or about May 9, 1914, plaintiff in- error, Mossop, came to her, at her home in Fayetteville, in Fayette county, Texas, and there proposed to trade and sell her bonds of the Pecos & Toyah Lake Irrigation Company, a corporation ; that she then referred plaintiff in error with his proposition to her attorney, and told him that she would be guided in the matter solely by the advice and counsel of her attorney; that thereupon plaintiff in error went and submitted his proposition to her attorney, who, after investigating it and the security therefor, in unmistakablé terms and words announced and stated to plaintiff in error that he did not favor the proposition, and could and would not recommend it, and could not and would not advise defendant in error to invest in said bonds, as he did not consider the security ample, sufficient, and satisfactory, whereupon plaintiff in error stated and announced to said attorney that he would do nothing further in the matter; that he would not return to defendant in error, nor further prevail on her taking said bonds, but would leave directly .for Kansas City, Mo.; that, notwithstanding this, and having misled her attorney by such'statements, plaintiff in error immediately procured a conveyance and returned to her home, which is 14 miles removed from her attorney’s offices, and there renewed his negotiations of said bonds with her, telling and assuring her that her attorney looked with favor upon the proposition and said bonds, and recommended and advised her taking same, and’ that said bonds were fully worth their face value, and the payment thereof was fully and amply secured by first-class and high-grade security, and she would never suffer loss thereon; that all of said statements and representations so made by plaintiff in error to her were and are, and were known to plaintiff in error to be, false and untrue, and were deliberately and .willfully made by plaintiff in error to her for the purpose, as they did do, of overreaching, deceiving, and defrauding her out of her property; that she is not learned in, nor familiar with, such matters, and therein was dependent upon the advice and counsel of her attorney; that she believed plaintiff in error to be truthful, had confidence in his integrity and honesty, and relied and acted upon the statements and representations so made to her by him, not suspicion-ing that he was deceiving and perpetrating a fraud upon her, as he was then doing, as she later learned and discovered, and agreed to take $3,000 of said bonds, paying therefor $1,200 in cash, and agreeing to pay $300 more ahd to transfer and assign to plaintiff in error 60 shares of Alamo Finance stock at an agreed value of $1,500, and plaintiff in error agreeing to release and relieve her from any and all liability, if any, on her note for $500 held by J. C. Speckels, but that, notwithstanding such agreement, plaintiff in error, by acceptance of a written instrument he gave her, studiously, willfully, deliberately, deceptively, and fraudulently sought to charge, obligate, and bind her to deliver and transfer to him said Speckels’ $500 note, and thus fraudulently increase her liability to him and reap from her a far greater consideration for said bonds than was agreed upon, which fraud she did not discover until some time later, when it was pointed out to her by her attorney; that had she known the facts, and the deliberate, studied, and willful imposition, fraud, and swindle perpetrated upon her by plaintiff in error, she would not have parted with her money, and would not have made and entered into such contract and agreements with plaintiff in error, and she invoked the powers of the judge as a chancellor to rescind and annul such contract and agreements, and for adequate relief. She then tendered into court the bonds for such disposition thereof as justice and the exigencies of the case required, and further alleged that the deceptions and fraudulent acts and conduct of plaintiff in error compelled her to bring this suit and incur an attorney’s fee, which she says is reasonably worth $300, and for which she prayed judgment. She alleged that by reason of and as a result from the fraudulent acts and conduct and deceptions of plaintiff in error, she has suffered and undergone much mental anguish and physical pain and suffering, to her great damage in the reasonable sum of $2,000, for which she also prays judgment. And she closes her petition with prayer, reading as follows: ‘Wherefore plaintiff prays that citation issue to defendant as required by law, and that upon hearing she have judgment against defendant, setting aside, annulling; vacating, and canceling the trades, transactions, contract, and agreements between plaintiff- and defendant herein complained of; that she have judgment against defendant-for the $1,200 by her paid to-defendant, as hereinbefore set out, with legal interest thereon from May 9,1914, the date of such payment; that she have judgment against defendant for the attorney’s fees by her in this behalf incurred, or to be incurred, and for all actual and special, exemplary, punitive, and vindictive damages that she may show herself entitled to, and for all costs by her in this behalf incurred or expended, and that she have all such other special and general relief, legal or equitable, that she may be entitled to, and so she will ever pray.’
“Plaintiff in error made general denial, alleged that the attorney’s fee cannot be recovered as actual damages, and could only be considered by the court by way of punitory damages ; alleged that he has no objection to plaintiff, defendant in error herein, having judgment against him for the $1,200 and the $300 note, and, upon failure to return said note for judgment in lieu thereof for $300, alleged that the trade made was greatly to this defendant in error’s interest, but that if she is unwilling to abide by it, he is willing that it be rescinded, but required, before entry of such judgment, that she tender into court or deliver to him or his attorney the bonds.
“Trial upon the issues raised by these pleadings was had before the court, without the intervention of a jury.”

Judgment was rendered for defendant in error rescinding the contract, for $1,500 with interest, and for $150 exemplary damages.

Plaintiff in error complains in his first and fifth assignments of error that the court erred in rendering judgment for exemplary damages. There was ample evidence to the effect: That defendant in error refused to trade for the bonds offered her by plaintiff in error. That she would buy them if her attorney examined them and their security and advised her to trade for them. That she told plaintiff in error to submit the bonds to her attorney, naming him, and if the attorney advised to trade for them, to return and report the attorney’s approval to her. That defendant in error relied upon the integrity of plaintiff in error. That the attorney did examine the bonds, and stated positively to plaintiff in error that he did not approve the bonds, and advised that defendant in error refuse to trade for them. That plaintiff in error thereupon, with a settled purpose to injure defendant in error, prevented the attorney from personally giving his advice to defendant in error by stating that plaintiff in error would not see defendant in error again, had dropped the trade, and would at once leave for a distant state. Having by this false statement deceived the attorney, and in furtherance of his design to injure defendant in error by appropriating to his own use $1,200, at least, of her money, plaintiff in error, without delay, hastened by buggy 14 miles into the country to the home of defendant in error, and there, taking advantage of the trust placed in him by defendant in error, falsely reported to her that her attorney had examined the bonds, approved them, and told defendant in error that the attorney advised defendant in error to trade for them. That defendant in error believed plaintiff in error, and thus, induced by the false statement and conduct of plaintiff in error, made the trade for the bonds, delivering to plaintiff in error her check for $1,200, which was paid. A further circumstance tending to prove the malicious design of plaintiff in error to injure defendant in error was the fact that plaintiff in error agreed, as part of the consideration for the trade, to have canceled at his expense and without further cost to. defendant in error a $500 note executed by defendant in error, and- at that time the basis of a lawsuit against defendant in error by Mr. Speckels, But plaintiff in error, with fraudulent purpose, wrote the agreement, which he signed, in such words as required defendant in error, at her cost, to deliver the note to plaintiff in error. The court, upon this and similar facts in evidence, found that plaintiff in error was guilty of deliberate fraud, and that the fraud was the result of a malicious intent and design to injure defendant in error, and did injure defendant in error. Under such circumstances the law of Texas now authorizes a recovery of exemplary damages as is unmistakably held in the case of Western Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061. Sedg. on D. §§ 359, 367, note 141.

Defendant in error was not negligent in relying upon the statement made to her by plaintiff in error. Barton v. Cox, 176 S. W. 796.

The second, third, and fourth assignments present no reversible error, and are overruled.

The judgment of the trial court is affirmed.
      <S=»For other cases seesame topic ana KEY-NUMBER in ^llíCey.-ÍJuinbered Digests, and In4ex.es,

      Ér=oFor other cases-see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    WALTER v. ROWLAND.
    (No. 5718.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1916.
    Rehearing Denied Dec. 13, 1916.)
    1. New Trial @=>152 — Amendment or Motion — Effect.
    The filing of an amended motion for new trial has the effect of eliminating the original motion, and no part of the original motion not contained in the amended motion can be considered.
    [Ed. Note. — For other eases, see New Trial, Cent. Dig. § 282; Dec. Dig. @=5152.]
    2. Appeal and Error @=>994(2) — Review-Questions of Fact — Conflicting Evidence.
    It is no objection to answers of the jury based on conflicting evidence that the jury apparently gave more credit to witnesses of ap-pellee than to those of appellant, as they have a right to do so.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3902, 3903; Dec. Dig. @=>994(2).]
    3. Interest @=518(1) — Accounts—Allowing Interest.
    In action between two parties, each claiming a balance due from the other, where appellant is found to owe appellee a substantial sum, appellant cannot object to failure of trial court to allow interest on his account against appellee, where appellee has not been allowed interest on his account against appellant.
    [Ed. Note. — For other cases, see Interest, Cent. Dig. § 32; Dec. Dig. @=>18(1).]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Joe J. Walter against W. J. Rowland. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      Leo Tarlton and Ryan, Matlock & Reed, all of San Antonio, for appellant. Ben H. Kelly and Douglas Cater, both of San Antonio, for appellee.
   PLY, C. J.

This is a suit instituted by appellant against appellee to recover certain personal property or its value. It was alleged that appellant leased to appellee about 100 acres of land for a year, that appellant furnished teams and food for them, that ap-pellee bound himself to cultivate the land and plant thereon corn and the farm and vegetable products usually grown on farms in the vicinity, and furnish all labor necessary to raise and harvest all crops planted on the land, and to deliver to appellant one-half of all of said crops. It was alleged that it was also agreed that if any advances in money were made by appellant, they should bear interest at the rate of 10 per cent., and should be repaid out of the first part of the crop belonging to appellee. It was further alleged that appellant had fully complied with the terms of the contract and furnished appellee with two horses and three mules and the necessary farming implements and cash, groceries, and supplies in the sum of $132; that appellee planted about 40 acres in oats, about 30 acres in corn, and about 6 acres in sugar cane, and raised and gathered about 2,500 bales of oates, valued at $750, and about 24 tons of sugar cane of the value ‘of $312, that no division of the crops had been made, but that com, sugar cane, and hay had been removed from the land by appellee, and all the crops at that time on the land were of the value, of $400. There was a prayer for the foreclosure of a landlord’s lien, and a judgment for the property or its value. Appellee answered that he had raised a crop of oats of the value of $750, and cane, Johnson grass, and milo maize worth about $312, 700 bushels of corn worth about $525, amounting in the aggregate to’ $1,587, one-hálf of which belonged to appellee. He denied that appellant made any advances, and pleaded damages for the seizure under a distress warrant, amounts for caring for goats, gathering com, hauling wood, and clearing land. The cause was submitted on special issues, and on the answers judgment was rendered for appellee in the sum of $350.

Appellant filed a motion for new trial and afterwards filed an amended motion for new trial, but the first assignment of error is copied from the motion and is not found in the amended motion for new trial. The filing of the amended motion for new trial, as in the case of any other pleading, had the effect of eliminating the original motion, and nothing could be considered except what was pleaded in the amendment. Rule 14, Dist. and County Courts (142 S. W. xviii); Barrett v. Featherstone, 89 Tex. 579, 35 S. W. 11, 36 S. W. 245. The assignment of error will not be considered.,

The second and third assignments of error are very imperfectly drawn, and under a strict enforcement of the rules should not be considered. They assail the sufficiency of the evidence to sustain the answers of the jury as to the value of the different crops raised on the place. The evidence was conflicting and not as satisfactory as might be desired, but there was evidence to sustain the answer that the crops were of the value of $754.10. One witness at least swore that there were 35 acres of corn which made 20 bushels to the acre, that is 700 bushels, and that it was worth 75 or 80 cents a bushel. That would amount at the lower price to $525, and the cane was estimated at 75 bales of the value of 30 cents a bale, amounting to $22.50. Mrs. Rowland stated that there were 800 bales of oats of the value of 33 cents a bale, or the aggregate value of $264. There were 121 bales of milo maize, which was shown to be worth $13.15. All of these items added amount to $834.68, or $80.65 more than the sum found by the jury. The jury credited the witnesses of appellee, rather than those of appellant, which they had the right and authority to do.

The fourth assignment of error assails the answer of the jury to the issue as to whether appellee did any extra work for appellant, and if so its value, on the ground that there was no evidence to sustain the answer. The jury found that the extra work was done, and that its value was $113, the full amount claimed for it in the petition. There was evidence upon which the jury could base a verdict for the extra services.

The fifth assignment of error attacks the answer of the jury to the second question submitted to the jury, which was as to the value of appellee’s extra services. The statement incorporated in the latter part of the assignment, as well as in a separate statement, refers to $27 worth of the crop appropriated by appellee, about which there was no finding by the jury. The assignment must be overruled.

The sixth assignment of error complains of the amount, $350.25, for which judgment was rendered by the court, claiming that not only $121.20, the amount of advances found by the jury, should be deducted from one-half of the $740.50, the value of the crop appropriated, but that interest on the advances for two years, two months and eleven days, amounting to $26.25, should also have been deducted from appellee’s half of the crop. No interest was prayed for by appellant. Nor does appellant show in his.brief that any agreement as to interest was made, and if it should be held in spite of that fact that interest should be allowed, it would be for only 6 per cent., and it should also be allowed on the value of appellee’s half of the crop as well as on the $113 allowed for extra services. Appellant is in no position to raise the .question of interest.

The seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments of error are grouped, although referring to 14 different issues which appellant desired the court to submit to the jury. The only statement under the 14 assignments is a short excerpt from the testimony of five witnesses on different subjects. The assignments of error are overruled.

There is no assignment of error raising the question of the value of the crop appropriated by appellee, which appropriation was shown by appellee, still the court must have considered it in arriving at the amount of the judgment. The value of the crop used by ap-pellee was shown to be $27, one-half of which belonged to appellee and the other half, $13.50, belonged to appellant, and it, together with the advances, must have been deducted from the $113 for extra work, and the value of appellee’s one-half of the value of the whole crop appropriated by appellant. Appellant admits that under the findings of the jury appellee’s half of the crop was $377.05, which, with the $113 for extra services, amounts to $490.05. Deducting from that sum the $134.20 owed by appellee, and there remains $356.85, or $5.60 more than appellee was allowed by the judgment.

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


text:
    TEXAS-MEXICAN RY. CO. v. SUTHERLAND.
    (No. 5733.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1916.)
    1. Judgment <@==>199(1) — Entry of Judgment fob Amount Sued fob After Verdict fob More.
    In an action for damages to cattle in transit, where plaintiff sued for ' $800, but the jury found on a special issue that the damage proved was $817.88, whereupon plaintiff moved the court to enter judgment for the amount sued for, which was done, the court properly granted plaintiff’s motion, since where the amount of damages is in excess of that sued for, but not in excess of that proven, it is proper practice to eliminate the excess and enter judgment for the amount alleged, either upon motion of the successful party or upon the court’s own motion.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 367, 374, 375; Dec. Dig. <@=> 199(1).]
    2. Carriers <@=>231 — Carriage of Live Stock — Action fob Injuries — Judgment on Verdict — Special Issues.
    In an action against the initial carrier for entire damage to an interstate shipment of cattle in transit, where plaintiff proved his damages, the issues of negligence and amount of damages were submitted by special issues, to which no objections were made, and the jury, by their answers, found that the damage was caused by the negligence of the defendant and its connecting carriers, finding the damages- to be $817.88, it was the duty of the court to enter judgment for plaintiff for the amount found by the verdict, less an amount deducted to conform to plaintiff’s pleading, and the other special issues submitted were immaterial to plaintiff’s right to judgment, so that court properly refused to set aside a finding, as unsupported by evidence, that the amount of damage caused by a connecting carrier was $491.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. <@=>231.]
    3. Carriers <@=>230(13) — Carriage of Live Stock — Action for Injuries — Finding of Damages — Destruction by Special Issues.
    In an action against the initial carrier for entire damages to an interstate shipment of cattle, where the court submitted special issues which sought to apportion the amount of damage to each of the connecting carriers, none of which were parties, such special issues and the answers thereto could not destroy the specific finding, as to the total damage caused, supported by evidence.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. <@=>230(13).]
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Suit by G. W. Sutherland against the Texas-Mexican Railway Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Asher R. Smith and R. L. Bobbitt, both of Laredo, for appellant. Dougherty & Dough-erty and H. S. Bonham, all of Beeville, for appellee.
   SWEARINGEN, J.

This is a suit by ap-pellee, G. W. Sutherland, against the appellant, the Texas-Mexican Railway Company, as the initial carrier for damages to a shipment of cattle transported from Norway, Tex., to the National Stockyards in the state of Illinois.

Appellee alleged that he delivered to defendant seven carloads of cattle, consisting of 182 head, for interstate transportation by defendant and its connecting carriers between the points above named; that defendant and the connecting carriers, in disregard of their duty and through negligence, roughly handled and delayed the transportation of said cattle and failed to deliver them at their destination within a reasonable time, to appellee’s injury in the sum of $800. Appellant answered by general and special denials. The case was submitted on special issues to the jury, which found the damage in the sum of $817.88. Upon appellee’s motion, judgment was rendered for $800, the amount sued for.

Appellant’s first assignment presents the proposition that a verdict in excess of the amount sued for constitutes reversible error, notwithstanding the successful litigant moved to enter judgment for the amount sued for, and that the court granted the motion and rendered the judgment accordingly.

Plaintiff sued for $800. for damages for loss on his cattle caused by negligence and delay in transportation by appellant. The jury found upon a special issue that the damage proved was $817.8S. Appellee moved the court to enter judgment for the amount sued for, if800. Judgment was rendered for $800. The court did not commit error by granting appellee’s said motion. Old River Rice Irr. Co. v. Stubbs, 137 S. W. 154; Galveston, etc., Ry. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 622; Brown Grain Co. v. Tuggle, 141 S. W. 821; Johnson v. Oswald, 151 S. W. 1164.

Had the petition alleged various items or principal and interest, and the verdict had been in excess of the amount sued for, without showing what items were allowed or what amount was found for principal and what for interest, the court could not find the facts in disregard of the jury’s findings; but where the amount of damages is in excess of that sued for, but not in excess of that proven, it is proper practice to eliminate the excess and enter judgment for the amount alleged either upon motion of the successful party or upon the court’s own motion.

In H. & T. C. Ry. Co. v. Shults, 90 S. W. 506, and Goggan v. Evans, 12 Tex. Civ. App. 256, 33 S. W. 891, relied upon by appellant, the petitions alleged separate items or principal and interest, and it could not be determined what amount of either the jury allowed.

The first assignment is overruled.

The second and third assignments are disposed of by the same reasons as the first, and the second and -third assignments are overruled.

Under the fourth assignment it is contended that the court erred because it refused to set aside the finding of the jury that the amount ■ of the damage caused by one of the connecting carriers was $491. The reason assigned in appellant’s motion for setting the finding aside was that there was no evidence to support the finding.

This was an interstate shipment, from Norway, Tex., to the National Stockyards in the state of Illinois. The suit was against the initial carrier, the appellant, for the entire damages. Appellee proved his damage. The issues of negligence and amount of damage were submitted by special issues to which no objections were made. The jury, by their answers, found that the damage was caused by the negligence of appellant and its connecting carriers, and found the damage to be $817.88. Upon these facts found by the jury it was the duty of the court to enter judgment for the plaintiff for the amount found by the verdict (less the amount deducted to conform to appellee’s pleading). The other special issues submitted to the jury were immaterial to appellee’s right to the judgment.

The court did submit special issues which sought to apportion the amount of damage to each of the connecting carriers, none of which were parties to the suit. Such special issues and the answers thereto cannot be permitted to destroy the specific finding as to the total damage caused, as there was evidence to support the finding of the total damage. City of San Antonio v. Marshall & Co., 85 S. W. 315-318; Texas & P. Ry. Co. v. Eddleman, 175 S. W. 775; H. E. & W. T. Ry. Co. v. Hooper, 184 S. W. 347; Pecos & N. T. Ry. Co. v. Meyer, 155 S. W. 310.

The fourth assignment is overruled.

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


author: WALTHALL, J.

text:
    HILL et al. v. FIRST STATE BANK OF OAKWOOD.
    (No. 620.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 9, 1916.
    Rehearing Denied Dec. 7, 1916.)
    1. Partnership <@=>127 — Liabilities as to Third Persons — Trading Partnership.
    Where a partnership agreement provided that each of three partners should share profits and losses alike, in a business of buying timber and the manufacture and sale of ties therefrom, and the parties actually carried on a business of securing timber and making ties in mills owned or controlled by them, and sale of such ties, the firm, both in its formation and management, was a trading partnership, although the agreement contained a provision that no one of the partners should create a debt or obligation against the firm except with the written consent of all ^parties.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 192; Dec. Dig. <S=>127.]
    2. Partnership <§=>216(3) — Actions against-Firm — Pleading—Variance.
    Although a partnership note bore a different firm name from that found in the partnership contract proven, there was no variance between allegation and proof, where the managing partner testified that the original name had been changed to that alleged before the-execution of the note.
    [Ed. Note. — For other cases, see Partnership,. Cent. Dig. § 418; Dee. Dig. <§=>216(3).]
    3. Partnership <@=> 146(2) — Authority of-Partner — Execution op Note.
    Where a managing partner was requested by other partners to secure funds from any bank or individual, and had express consent, to “act unrestricted” in all matters pertaining-to the interests of the company, he had sufficient authority to execute a note, so that a. ratification of such note by the firm was not necessary.
    [Ed. Note. — For other cases, see Partnership,. Cent. Dig. § 248; Dec. Dig. <§=>146(2).]
    4. Evidence <@=>373(4) — Documentary Evidence — Note.
    Where the undisputed evidence of a managing partner showed that he had express authority to execute the note sued upon, there-was no error in admitting the note as evidence, although the defendants had denied its execution.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1586; Dec. Dig. <@=>373(4).]
    Error from District Court, Anderson County; John S. Prince, Judge.
    Suit by the First State Bank of Oakwood against Joe L. Hill and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Gordon Bullitt, of San Antonio, for plaintiffs in error. N. B. Morris, of' Palestine, for defendant in error.
   WALTHALL, J.

This suit -was brought by defendant in error against Joe L. Hill, J. M. Dobie, and Wm. A. Erisby, to recover upon a promissory note in the sum of $708.62, interest and attorney’s fees, executed by Wm. A. Erisby to the bank for and on account of the San Antonio Lumber & Tie Company, and alleging that plaintiffs in error were partners engaged in the sawmill, lumber, and tie business, and doing business as such under the firm name of San Antonio Lumber & Tie Company with Wm. A. Erisby acting for the firm as general manager, and that, acting as such, and within the scope of his authority, and for the use and benefit of said firm, executed and delivered to said bank the promissory note sued on.

Hill and Dobie answered by general demurrer and special exceptions, denied some allegations in the petition, and admitted others, denied that they were at any time members of the alleged partnership, and alleged: That the only business relation existing between defendants was by- virtue of a written -agreement in which they and their codefend-ant, Erisby, entered into a nontrading and noncommercial partnership, to sell hardwood, lumber, and cross-ties under the firm name of San Antonio Tie Company. That among other provisions, the partnership agreement provides:

“The business shall be conducted in the name of San Antonio Tie Company, and neither party shall create a debt or obligation against said firm except by a written consent of all parties.”

That said provision in said partnership •agreement was known to the bank at the time of the making of said note. That the note was made by Frisby without the knowledge or consent of defendants Hill and Dobie, and that Frisby was therefore acting beyond the scope of his authority in executing the note.

The bank, by supplemental pleading, denied the facts stated in the answer; alleged that at the time of making said note, the partnership business was known to the bank as alleged by it, and that defendants did business with it by that name; but that if its firm name was in fact the San Antonio Tie Company, the bank had no knowledge of the difference in name, and that the same persons composed the San Antonio Tie Company as partners, and are one and the same -concern and identical in .membership, and that said note was executed for their benefit; that if Frisby did not have authority from Hill and Dobie to execute the note, after the note had been executed for the benefit of said three members, with full knowledge that same had been executed, they each jointly and severally ratified and acquiesced in and approved the act of Frisby in making the note, and got the benefit of the proceeds realized upon said note. The cáse was tried without a jury. Judgment was rendered in favor of the bank.

In the first assignment, it is claimed that the evidence shows that the partners were engaged in a nontrading and noncommercial partnership, and that it was error to render judgment against plaintiffs in error, because: First, it was not shown that Frisby had authority from Hill and Dobie to make the note; second, it was not alleged or shown that it was the usage or custom of the partnership to permit Frisby to borrow money or make notes in the name of or for the partnership. The part of the contract disclosing the purpose for which the partnership was formed recites:

“Whereas, Joe L. Hill has the assurance of securing a contract, to furnish ties for the building of the A. S. R. & M. R. R., and whereas, it is desired by him to secure the assistance of J. Mi. Dobie and W. A. Frisby, the said Dobie agrees to render such financial aid as may be required to carry out the contract aforesaid. He further agrees to make the necessary bond in order to secure the contract with said railroad company; and whereas, the said 1-Iill and Frisby have already made contracts for timber to manufacture said ties, the said Frisby agrees to give all of his time and energies necessary and to superintend and see to the management, to the making and shipping of said ties, and agrees to keep all necessary records and books showing number of ties made and delivered, so that at all times any of the parties may know how many have been shipped, their cost and how many are on hand and to make invoices and bills of lading covering car shipments, so that at any time any of the parties may know the number of ties shipped and the amount paid therefor and amount due for said ties, and he further agrees that as soon as ties are shipped to send bills of lading and invoices to the State Bank & Trust Company at San Antonio, Texas, to be placed to the credit of the contracting parties in the name of the San Antonio Tie Company, said moneys to be used only to pay necessary expenses of the tie business, including the expense already incurred by the said Frisby and Hill in securing timber lands, etc., and whenever any expense is incurred vouchers are to be issued for each item thereof, i. e., the purpose of each cheek shall be explained. The said J. M. Do-bie agrees to furnish the money or credit which may be necessary to properly conduct the said business, said amount not to exceed at any one time, prior to the commencement of the tie shipments as above stipulated, the sum of $1,-000.00, said money or credit to be furnished where the same shall be required by the said Joe L. Hill to pay the necessary expense in securing timber for the making" of said ties, and such other expenses as may be necessary to enable the said Hill to carry out the contract with said railway company.”

The contract then provides that each of said parties shall bear one-third of the losses and share alike in theHet profits, the business to be conducted in the name of San Antonio Tie Company, and that neither party shall create a debt or obligation against said firm except with the written consent of all parties.

Prisby testified:
“Tlio note attached to plaintiff’s petition and just introduced in evidence was executed and delivered to the plaintiff by me. I executed the note because it was necessary to obtain the money to carry on the business, and because at that time the company was unable to secure further credit and assistance from the bank it did business with in San Antonio, Tex., as represented to me by said Joe L. Hill. He suggested I should secure funds from any bank or individual that I could make the arrangements with. I got the full face value of the note, and used the money in operating the mill and paying off the men who were working for the company. * * * I was the general manager for said company. I was authorized as the general manager for said company and as a member of said firm, and also by the express consent given me by the other members, to act unrestricted in all matters pertaining to the interest of said company.”

Prisby testified to a change in the name of the firm to San Antonio Lumber & Tie Company; the change was made before the note sued on was made; did not remember to have shown the contract of partnership to the bank before he got the money, or tell the bank about the contract. He transacted all the business connected with the mills, the buying and selling, at the" time of making the note. He further said:

“When I made that note it was placed to the credit either of myself or the company, I don’t know which. I paid debts out of it, labor and material and things of that kind that were used at the different mills. The San Antonio Lumber & Tie Company owned the mills. * * * The San Antonio Tie Company was engaged in the manufacture and sale of ties. They manufactured their ties from steam sawmills. The San Antonio Lumber & Tie Company was engaged in the same business, but changed the name for the purpose of handling the lumber. It was engaged in the manufacture and sale of lumber and ties.”

The note, the partnership contract, and the evidence given by Prisby constituted all of the evidence offered. It is quite clear that the partiiership, both in its formation and in its management, was a Trading partnership. The Supreme Court of this state, in Randall v. Merideth, 76 Tex. 669, 13 S. W. 576, quoted with approval the definition of a trading partnership, given in Kimbro v. Bullitt, 22 How. 268, 16 L. Ed. 313, where it is said:

“Wherever the business, according to the usual mode of conducting.it, imports, in its nature, the necessity of buying and selling, the firm is then properly regarded as a trading partnership, and is invested with all the powers, and subject to all the obligations, incident to that relation.”

The Supreme Court, in the same case, for a fuller definition, quotes from Bates’ Partnership, § 327, the following:

“If the partnership contemplates the periodical or continuous or frequent purchasing, not as incident to an occupation, but for the purpose of selling again the thing purchased, either in its original or manufactured state, it is a trading partnership; otherwise, it is not.”

The partnership contract and the evidence in this case show that the business contemplated by Hill, Doble, and Erisby, and that as actually conducted by them, was to secure timber for making ties, to make ties of the timber in 'mills owned or controlled by them, and to sell the ties, in the prosecution of their business. But aside from the question of the nature of their partnership, the uncon-tradicted evidence of Prisby discloses that he was given “express consent by the other members” of the partnership “to act unrestricted in all matters pertaining to the interest of the partnership.” At the suggestion of Hill, he made the note sued on in behalf of the partnership, secured the proceeds, and made use of it in paying for labor and material used by the partnership. The assignment is overruled.

The second and third assignments are without merit, and are overruled.

The fourth ground of error is based on the assumption that the partnership was a non-trading concern, and what we have said in disposing of the first ground necessarily applies to the fourth.

The evidence of Prisby shows that before making the note, the style of the firm had been changed from its original name to the San Antonio Lumber & Tie Company. There was no variance between the allegation and proof, as claimed in the fifth ground of error.

The sixth ground asserts error in rendering the judgment, as there was no ratification. If, as stated by Prisby in the evidence quoted above, he was requested by Hill to “secure funds from any bank or individual that I could make arrangements with,” and “by the express consent given me by the other members thereof to act unrestricted in all matters pertaining to the interest of said company,” we think sufficient authority to authorize the making of the note. A ratification was not necessary to fix liability where the authority to make the note was given in advance of its execution.

There is no merit in the remaining assignment, claiming error in admitting the note as evidence on the ground that plaintiffs had denied the execution of it. The undisputed evidence of Prisby, quoted above, shows that he had express authority to execute the note.

We find no error in rendering the judgment, and the case is affirmed.
      <g£7>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGG-INS, J.

text:
    THORNE v. DASHIELL.
    (No. 616.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1916.
    Rehearing Denied Dec. 7, 1916.)
    1. Appeal and Ebeoe <®^>499(4) — Recobd— Scope — Pbeseevation oe Exceptions.
    Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 1971 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 1971), to require objections ’to the court’s charge to be made before the charge is read to the jury, applies to peremptory instructions, so that, in the absence of record showing that objection to a peremptory charge was made before it was read to the jury, the objection cannot be considered on appeal.
    [Ed. Note.—For other cases, see Appeal and •Error, Cent. Dig. § 2298; Dec. Dig. <@=>499(4).]
    2. Appeal and Error @=>544(1) — Scope — Preservation op Exceptions.
    Where no bill of exceptions was taken to refusal of requested instructions, as required by Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 2061 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), assignments of error based on such refusal will be overruled.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2412; Dee. Dig. <S=> 544(1).]
    3. Injunction @=>163(1)—Temporary Writ-Dissolution.
    There can be no error in dissolution of a temporary injunction issued at the beginning of a suit for plaintiff, in the absence of reversible error in the final judgment which was adverse to him.
    [Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 357, 363, 364, 368; Dec. Dig. <@=> 163(1).]
    4. Appeal and Error <@=>301 — Assignments op Error Not Embraced in Motion por New Trial.
    Assignments of error not embraced in the motion for new trial, which,' under Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), constitutes the assignments of error, cannot be considered.
    [Ed. Note—For other cases, see Anpeal and Error, Cent. Dig. §§ 1743,' 1753-1755; Dec. Dig. <@=>301.]
    Appeal, from Leon. County Court; C. D. Craig, Judge.
    Suit by N. E. Thorne against B. D. Dash-iell. Judgment on peremptory instruction for defendant, and plaintiff appeals.
    Affirmed.
    J. M. Chatham, of Centerville, and W. H. Reid, of Somerville, for appellant. Wm. Watson and L. T. Dashiell, both of Centerville, for appellee.
   HIGG-INS, J.

Thorne brought this suit to cancel two promissory notes executed and delivered by him to appellee and to enjoin the negotiation thereof. Upon trial, a peremptory instruction was given in favor of the defendant, in accordance wherewith verdict was returned and judgment rendered.

Various assignments relate to the correctness of the court’s action in giving the peremptory instruction. Appellant filed written objections to the instruction, but there is nothing in the record to show that they were presented to the court before his charge was read to the jury as is required by article 1971, Rev. St., as amended by chapter 59, General Laws 33d Legislature, p. 113. The provisions of this act were considered at some length by the Supreme Court in Railway Co. v. Dickey (Sup.) 187 S. W. 184, and it was distinctly held that there must be some authentic record of the fact that the objections to the charge urged upon appeal were in fact presented to the trial court, and presented before his charge was read to the jury.' For the want of any such record in this case, the majority are of the opinion and hold that all assignments, urging objection to the charge, should be overruled. This conclusion is inevitable under the Dickey Case, unless it be that a peremptory charge is not a charge within the purview of the act mentioned. The majority of the court are of opinion that the act is applicable to such charges. It has been so held by nearly all of the various Courts of Civil Appeals. Railway Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Feldman, 170 S. W. 133; Case v. Folsom, 170 S. W. 1066; Bohn v. Burton-Lingo Co., 175 S. W. 173; Wiekizer v. Williams, 173 S. W. 288; Railway Co. v. Wilson, 176 S. W. 619; Denison, etc., v. McAmis, 176 S. W. 621; Donaldson v. McElroy, 184 S. W. 1100; Commonwealth, etc., v. Bryant, 185 S. W. 979; Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Walker v. Haley, 181 S. W. 559. See, also, expression of opinion by Associate Justice Hawkins of the Supreme Court in Beaty v. Railway Co. (Sup.) 185 S. W. 298; at page 304.

Chief Justice Harper does not concur in this view, being of the opinion that a peremptory charge is not “a charge on the law of the case,” nor does it submit issues of fact as affirmatively required by the concluding sentences of article 1971; therefore does not constitute a charge within the meaning of said article, and that it has no application to such charges. The majority believe such a charge to be a concrete application of “the law of the case” to the facts, and that it is within both the letter and spirit of the act noted, and to hold otherwise would be in obvious conflict with the legislative intent; that the Legislature did not contemplate any distinction between peremptory, charges and an ordinary charge presenting the case pro and con and to make such a distinction would, in no little degree, impair that beneficial effect of the act, which required a party to present any and all objections he might have to a charge to the trial court, so that if they were meritorious, the error would be then and there detected and corrected.

Certain assignments complain of the court’s refusal to give special instructions requested by appellant. These are overruled because no bill of exception was taken to : such refusal as the act above noted requires. : Railway Co. v. Dickey, supra.

The seventh and eighth assignments complain of the dissolution of the temporary injunction which was granted at the beginning of the suit. Manifestly there could be no error in this respect, unless there be some reversible error in the judgment rendered in defendant’s favor on the trial upon the merits. None such is presented by this record.

The ninth assignment is too general to be considered. Furthermore, it is not embraced in the motion for a new trial which constitutes the assignments of error under chapter 136, General Laws 33d Legislature.

Affirmed.
      fficsPor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      <S=>For other eases see same torio and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    CARR v. PECOS VALLEY STATE BANK et al.
    (No. 633.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1916.)
    Appeal and Error <@=499(4) — Record — Scope — Preservation op Exceptions.
    Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 1971 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 1971), to require objections to the court’s charge to be made before the charge is read to the jury, applies to peremptory instructions, so that, in the absence of record showing that objection to a peremptory charge was made before it was read to the jury, the objection cannot be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <@=3499(4).]
    Appeal from District Court, Reeves County ; W. A. Hudson, Judge.
    Action by the Pecos Valley State Bank against H. V. Carr. Judgment on perémp-tory instruction for plaintiff, and defendant appeals.
    Affirmed.
    B. W. Baker, of Barstow, for appellant. Buck & Fleming, of Pecos, for appellee.
   HIGGINS, J.

In this case, appellees sought to recover upon certain notes executed by H'. V. Carr and R. I. Carr, together with foreclosure of deed in trust given to secure the payment of the notes. Appellant, I-I. V. Carr, -set up a homestead claim to a portion of the land upon which foreclosure was sought. The case was tried before a jury, and a peremptory instruction given in appellees’ favor, in accordance wherewith verdict was returned and judgment rendered.

Appellants’ only assignment of error complains of the court’s action in giving the peremptory instruction, it being asserted that the evidence was sufficient to raise the issue as to whether or not the premises upon which foreclosure was sought was his homestead at the time’ the lien was attempted to be placed thereon. In Railway Co. v. Dickey, 187 S. W. 184, it was held by our Supreme Court that there must be some authentic record that objections to the general charge urged on appeal were in fact presented to the trial court, and presented before the charge was read to the jury. The record here presented is silent in this respect, for which reason the majority are of opinion that the assignment cannot be considered upon its merits. They are of the opinion that chapter 59, General Laws 33d Legislature, applies to a peremptory charge given by the court. It has been so held by most of the Courts of Civil Appeals. See Needham v. Cooney, 173 S. W. 979; Railway Co. v. Wheat, 173 S. W. 974; Railway Co. v. Feldman, 170 S. W. 133; Case v. Folsom, 170 S. W. 1066; Bohn v. Burton-Lingo Co., 175 S. W. 173; Wickizer v. Williams, 173 S. W. 288; King v. Gray, 175 S. W. 763; Railway Co. v. Wilson, 176 S. W. 619; Denison, etc., v. McAmis, 176 S. W. 621; Donaldson v. McElroy, 184 S. W. 1100; Commonwealth v. Bryant, 185 S. W. 979; Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Walker v. Haley, 181 S. W. 559; Tel. Co. v. Huffstutter, 188 S. W. 455; Thorne v. Dashiell, 189 S. W. 986, recently decided by this court and not yet reported. See, also, dissenting opinion of Justice Hawkins, of Supreme Court, in Beaty v. Railway Co., 185 S. W. 298, at page 304.

Chief Justice HARPER does not concur in' this view of the majority, being of the opinion that the act in question does not apply to a peremptory instruction. His views upon this question are stated in Thorne v. Dashiell, supra.

But if the giving of the instruction could properly be considered upon' its merits, the entire court is of the opinion that such action was proper, since the admitted facts show that appellant was precluded from asserting any homestead rights in the lands upon which foreclosure was sought under the rules announced in Haswell v. Forbes, 8 Tex. Civ. App. 82, 27 S. W. 566; Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301; Leslie v. Elliott, 26 Tex. Civ. App. 578, 64 S. W. 1037; Mortgage Co. v. Scripture, 40 S. W. 210; Carden v. Short, 31 S. W. 246; Harmsen v. Wesche, 32 S. W. 192; White v. Dabney, 46 S. W. 653; Watkins Land Co. v. Temple, 56 Tex. Civ. App. 65, 119 S. W. 728; Moerlein v. Mortgage Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948.

Affirmed.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered 'Digests and Indexes