text:
    FOX v. HOUSTON & T. C. RY. CO. et al.

    (No. 7428.)
    (Court of Civil Appeals of Texas. Dallas.
    April 15, 1916.
    Rehearing Denied June 10, 1916.)
    1. Carriers <&wkey;318<10)—Injuries to Passengers—Evidence—Suioticiency.
    Evidence examined, and held sufficient to support a verdict for defendant in an action by a passenger to recover for injuries alleged to have resulted from a sudden jerk of the train after slopping at a station.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1313; Dec. Dig. &wkey;318(10).]
    2. Evidence &wkey;>327(2)—Res Gestas.
    A statement, “I am nearly killed,” made by a passenger injured on a train at the time of the injury and in answer to an inquiry, is admissible in action for damages as part of the res gestae.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 379; Dec. Dig. <&wkey;>127(2).]

      3. Appeal and Ebeob ©=>1056(1) — Habmless Eeb'oe — Evidence—Res Gestee.
    • In an action for pergonal injuries, error in excluding testimony admissible as part of the res gestos held not prejudicial in view of all the testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. ©=>1056(1).]
    4. TBIAL <&wkey;2i)5(0) — .INSTEUCTIONS—CONSID-ERED as a Whole.
    Instructions must be read as a whole, and, if when so considered they correctly present the law, error cannot be predicated on a portion alone, which might be said to be on the weight o.f the evidence.
    [Ed. Noth. — For other cases, see Trial, Cent. Dig. § 711; Dec. Dig. &wkey;295(9).]
    5. Appeal and Ebeob <&wkey;692(l) — Evidence— 'Admissibility — Review.
    The action of the court in excluding answers to questions except on cross-examination will not be reviewed, in the absence of the bill of exceptions showing what the answers would have been.
    [Ed. Note. — For other case's, see Appeal and Error, Cent. Dig. §§ 2905, 2906; Dec. Dig. ©=> 602(1).]
    6. Appeal and Ebeob ©=51056(1) — Harmless Ebeob — Evidence.
    In a personal injury action, the refusal of the court to permit plaintiff’s witness, a physician, on redirect examination, to testify as to defendant’s custom of pacing its physicians annual salaries for services including testimony in court, held not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. &wkey;1056(l).]
    7. Evidence ©=>317(3) — Competency—Hearsay.
    Where defendant introduced evidence that plaintiff made no complaint of the injury received, the rule that statements made by plaintiff to others at or near the same time are admissible in rebuttal does not permit the introduction of hearsay statements made by others in reference to plaintiff’s injury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1176; Dec. Dig. &wkey;317(3).]
    8. Depositions <&wkey;95 — Admission op Part in Evidence — Competency op Remainder.
    That an answer to an interrogatory is responsive does not render admissible that portion of the answer which is hearsay.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§. 276, 277; Dec. Dig. &wkey;95.]
    9. Trial &wkey;>43 — Evidence — Admission op Argument of Counsel.
    The admission o,f testimony pursuant to an offer made in answer to argument of opposing counsel is a matter of discretion with the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 123; Dec. Dig: <&wkey;>43.]
    10. New Trial ©=>142 — Misconduct op Ju-ey — Evidence.
    Under a statute authorizing the trial court to consider misconduct of the jury as ground for a new trial and requiring proof thereof to be made in open court, ex parte affidavits of jurors cannot be considered.
    TEd. Note. — For other cases, see New Trial, ■Cent. Dig. § 297; Dec. Dig. ©=>142.]
    11. Appeal and Error &wkey;>977(l) — Misconduct op Jury — Discretion op Coubt.
    Under a statute giving a trial court discretion to set aside a verdict and allow a now trial for misconduct of jury, the action of the
    court will not be reviewed unless there has been an abuse of discretion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3860; Dec. Dig. <&wkey;>977 (1).]
    12. New Trial <&wkey;140(3) — Misconduct op Jury — Sufficiency op Evidence. Evidence held sufficient to sustain the order of the trial court refusing a new trial on the ground of misconduct of the jury.
    [Ed. Note. — For other cases, see New .Trial, Cent. Dig. §§ 287, 302; Dec. Dig. <@=5140(3).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by R. L. Fox against the Houston & Texas Central Railway Company and another. From a judgment for defendants and an order denying a new trial, plaintiff appeals.
    Affirmed.
    H. D. Carpenter and B. Q. Evans, both of Greenville, for appellant. Dinsmore, Mc-Mahan & Dinsmore, of Greenville, Balser, Botts, Parker & Garwood, of Houston, and Terry, Cavin & Mills, of Galveston, for ap-pellees.

      Application, for writ of error pending in Supreme Court.

   TALBOT, J.

This case has been before the appellate courts of the state before. See 156 S. W. 922, and 166 S. W. 693. The suit was brought by the appellant, Fox, against the Gulf, Colorado & Santa Fé Railway Company and the Houston & Texas Central Railway Company to recover damages for personal injuries alleged to have been sustained by his wife, Mrs. Mary Fox, while she was a passenger en route from Celeste, Tex., to Bertram, Tex. The defenses were general denials and pleas of contributory negligence on the part of the appellant’s wife. At the conclusion of the evidence the court instructed the jury to return a verdict in favor of the Gulf, Colorado & Santa Fé Railway Company, and submitted the case as to the Houston & Texas Central Railway Company to the jury on a general charge. The jury returned a verdict in favor of both defendants, and, judgment being rendered accordingly, the plaintiff, Fox, appealed.

There is no controversy over the pleadings, and it is not assigned that the court erred in directing a verdict for the Gulf, Colorado & Santa Fé Railway Company. It appears that on or about the 22d day of December, 1910, Mrs. Fox, appellant’s wife, bought a through ticket at Celeste, Tex., entitling her to passage from Celeste over the road of the Gulf, Colorado & Santa Fé Railway Company to Dallas, and thence over the road of the Houston & Texas Central Railway Company to Hearne, Tex., where Mrs. Fox changed cars to continue her journey to Bertram. Mrs. Fox was accompanied by her little son about 10 or 11 years of age, for whom also a ticket had been purchased entitling him to passage from and to the points mentioned. Mrs. Fox testified, in substance, that as the train of the Houston & Texas Central Railway Company upon which she was traveling approached Hearne, about 2 o’clock in the night, the station was announced and the train stopped; that, while the train was standing still, she arose from her seat and started to disembark; that, after taking a step or two towards the car door, the train was moved with a sudden jerk forward and then backward almost at the same instant of time, which threw her off her balance and to the floor of the car. She said:

“I was just thrown down in a creen, and I felt a pain strike me in the small of my back, and it was very hard, and it hurt me and seemed like it hurt me all over. It seemed like just a little bit of time that I didn’t realize what was going on, I was hurt so bad, and my little boy came to me. He had hold of me the first thing I knew. Right then I felt kind of a numbness, and I was jerking it seemed like, at that time, all over very bad.”

She further testified that her little boy helped her up, and that they went out of the car into the station house at Hearne, where she stayed until about 11 o’clock forenoon of that same day, when she took another train and continued her journey to Bertram, still suffering from her injury. Mrs. Eox further testified that when she started to Bertram she weighed about 151 or 158 pounds and did not have anything the matter with her back and had never suffered with any injury to her back; that a day or two prior to the day she testified she weighed 107 pounds. She further testified that the first few months after she was injured she was strong enough to get about and do some work about the place, but finally got so she could do practically nothing. All of which was attributed to the nature and extent of her injury.

The first assignment of error asserts that:

“The verdict of the jury is contrary to and not supported by the evidence, but is against the evidence, in that the evidence of Mrs. Pox and her son, who testified that the train, after it ran up to the station of Hearne and stopped, gave a sudden, unusual, and unnecessary double jerk, was undisputed, and, when taken in connection with evidence offered by the defendant, makes it a clear ease of undisputed evidence of negligence and injury, and the evidence is undisputed that plaintiff’s wife, when sne fell, received and sustained an injury that caused her to suffer great physical pain and mental anguish, and the evidence as to her injuries was undisputed, and the jury was not authorized to discredit or disregard the undisputed evidence of the plaintiff’s wife and the plaintiff’s son, who testified to the facts that caused her to fall in said train.”

The appellee objects to the consideration of this and other assignments because not briefed in accordance with the rules. The grounds of objection are various, and, while we think some of them are well taken, yet upon the whole we conclude we would not be justified in declining to consider and pass upon the questions sought to be presented. The substance of the assignment now under consideration is, as will be observed, that the undisputed evidence of Mrs. Pox and her son shows that the operatives of the train upon which Mrs. Pox was traveling negligently moved it with an unnecessary and unusual “double jerk,” which caused Mrs. Pox to be thrown to the floor of the car and injured, and that the jury was not authorized to disregard her undisputed evidence, and the evidence of her son, who testified to such movement of the train. We do not concur in the view of the evidence as expressed in the assignment. On the contrary, we think the evidence clearly raised issues of fact as to whether the train was moved with a jerk at the time appellant’s wife was leaving the car at Hearne, and whether the same caused her to he thrown to the floor and injured as claimed. It does not appear from the record sent to this court that Mrs. Pox’s son, who was accompanying her, testified at all, and there is substantial testimony offered by appellee rebutting the testimony of Mrs. Pox and supporting the verdict of the jury.

W. S. Buchanan testified that he was conductor on the train; that he kept a train book, which he had before him when testifying, in which he kept a record; that he assisted passengers off the coach and chair car; that the water tank was from 250 to 300 yards from the station; that on the occasion in question he did not remember any unusual movements of the train; that if the train had moved in such a way as to jerk any one on the train he would have a record of it and a report of it; that he had no record of any such happening, and he did not hear or learn anything about anybody falling on the train.

Hugh Cleveland testified that he was auditor on the train at the time appellant’s wife claims to have been hurt; that when the train stopped at Hearne he would take his position on the platform at the front of the chair car where he could see into the ear, and know when the passengers were out; that he did not see any lady or anybody stumble and fall; that if there had been a jerk of the train backward or forward he thinks he would have noticed it; that no such thing happened there as he recollects; that if he had observed anybody fall it was his duty to get their names and report it. On cross-examination this witness said:

“If there had been a double movement of the train that night sufficient to knock a woman down, I would have noticed that, because that is unusual.”

George Stubblefield, porter, testified:

“On the night of December 22d, or the morning of the 23d, when we were at Hearne, I don’t know anything at all about any accident happening there that night. I don’t know anything about any jerking or unusual movement of the train there. I didn’t hear anything about anybody falling down or getting hurt in the train that night until a long time afterwards, when I was notified.”

Mrs. Pox, wife of appellant, testified that after leaving the train at Hearne about 2 o’clock in the morning she went into the station, and remained in the station until about 11 o’clock in the forenoon; that her son, Otie, went out and bought their breakfast, and brought it into the station, and they ate it there; that about 11 o’clock she took the train and went to MeNeal, where she stayed all night with a family named Fizer. Mrs. Willie Fizer testified that Mrs. Fox came to her home at MeNeal in the late afternoon and spent the night with her; that Mrs. Fox seemed to be in perfect health; that she was very talkative and wanted to help her do things around the house; that Mrs. Fox talked to her about the trip and spoke of the long time she had to remain at Hearne, but she did not say anything about being injured. Mrs. Fox in holding family prayer at witness’ house stated that she had been fortunate in not having any accident of any sort thus far, and that she hoped that she would not on the rest of her journey. W. 6. Fizer testified that Mrs. Fox spent the night at his home; that she acted like she was in good health; that that night in holding family prayer Mrs. Fox said she was thankful she had reached this far on her journey without having an accident, and that she hoped she would reach her sister’s in the same way; that she said nothing about any accident. Mrs. Fox testified that she got to Bertram about 11 o’clock on the same day she left MeNeal, and this was Saturday; that her sister lived about a half or three-quarters of a mile from Bertram; that on the night of the next day, Sunday, she walked from her sister’s home to church, about as far as from her sister’s to Bertram, and walked back; that'during the three or four days she was at her sister’s near Bertram she visited her nieces, Mrs. Dorbandt and Mrs. Ball,’traveling in a wagon. S. S. Dorbandt testified that his wife was a niece of Mrs. Fox; that he saw Mrs. Fox at Bertram the last of December, 1910; that he did not observe any action of Mrs. Fox that suggested any injury physically. Mrs. Cora Dorbandt testified that she was a niece of Mrs. Mary Fox, and that she was the daughter of Mrs. Oox, sister of Mrs. Fox; that she saw Mrs. Fox when she was visiting at Bertram in December, 1910; that Mrs. Fox was at her home once and took supper with her, and she talked with her; that she did not hear Mrs. Fox complain of having received any injury; that she did not notice in the conduct of Mrs. Fox anything which indicated or suggested any physical injury or disability; that she never heard of Mrs. Fox having received any injury on her journey from Hunt county to Burnett county until after Mrs. Fox had returned home.

Mrs. Fox claimed to have been injured on the early morning of December 23, 1910. On April 12, 1911, Mrs. Fox made application to the Lone Star Insurance Union for life insurance, in which application she stated that she had no physical defect. Dr. P. S. Pearson testified that he, on April 12, 1911, examined Mrs. Mary Fox for life insurance, and Mrs. Fox at that time appeared to be in perfect health; she was robust and strong looking, and he judged- her to- be in good health; that on that occasion appellant and his wife asked witness if he thought they would pass the examination, and witness told them that he did not see any reason why they could not, that they were first-class risks as far as he could see. A life insurance policy was issued to her on her application above mentioned, and on an examination by Dr. Pearson. Mrs. Fox testified that the first time a doctor called to see her after she got back home from Bertram was on May 4, 1911, when Dr. Williams was called, and Dr. Williams testified that the first time he was called to see Mrs. Fox was on May 14, 1911. Plaintiffs original petition in this ease was filed in the district court of Hunt county on May 2, 1911. Dr. M. L. Wilbanks testified that he made a careful examination of Mrs. Fox to ascertain her physical condition at the time of a former trial of this ease; that he found no objective symptoms of injury, and nothing indicating abnormality, except the loss of weight represented to him; that there was no curvature of the spine. Dr. D. L. Gaillard testified that he examined Mrs. Fox at the time of the first trial and made a thorough and careful examination; that he found no objective symptoms of injury or disease, though she complained of pain and soreness; that there was no curvature of the spine. In rebuttal of the foregoing, the appellant offered testimony to the effect that on other occasions and to different persons his wife, Mrs. Fox, did speak of having been hurt in an accident while on the trip to Bertram ; but we shall not undertake to give all the testimony bearing upon the issues. We deem it necessary to state only so much of it as may show the correctness of our conclusion that whether Mrs. Fox was injured at the time, and in the manner alleged by appellant, were controverted issues of fact, and that-it was the province of the jury to settle them. The evidence now before this court touching the issues is, in a large measure, the same as it was on the former appeal of the case, and the Supreme Court then said:

“The facts of the accident were proved by Mrs. Fox only, and no other person on the train is shown to have known of the severe lurching of the train. The jury would have been justified in finding against her evidence.”

The appellant offered to prove by Mrs. Fox that at the very time she claims to have been injured her little boy asked her if she was hurt, and that she replied, “I am nearly killed.” This testimony was objected to because hearsay and self-serving. The objections were sustained, and the appellant complains of the court’s ruling. This statement of Mrs. Fox was clearly admissible as a part of the res gestas and it was competent to make proof the same by her. Railway Co. v. Hall, 34 Tex. Civ. App. 535, 80 S. W. 183. But we are of the opinion that it

cannot be fairly said that its exclusion resulted in any material injury to appellant. In other words, we think, in view of all the testimony in the case, that the error of the court amounted to no such denial of the rights of the appellant as was reasonably calculated to cause the rendition of an improper judgment in the case. Rule G2a (149 S. W. x). Full latitude was allowed Mrs. Fox in detailing the manner in which she claimed to have been hurt and the extent of her injuries, and it is not believed that this court would be warranted in saying that it is probable a different verdict would have been rendered by the jury had such declaration been admitted.

The next contention is that the court erred in the fifth paragraph of the general charge in instructing the jury as follows:

“You are charged that the fact of an injury to a passenger alone will not authorize a recovery against a railway company.”

The objection to the charge is that it was upon the weight of the evidence. That portion of the court’s charge complained of is only a part of a paragraph of the charge, and the effect of the whole paragraph, when fairly construed, was to instruct the jury that appellant was not entitled to recover except upon proof of injury to his wife through the negligence of the appellee, and when considered as a whole, which must be done, was not, if in any event it would have been, a charge upon the weight of the evidence.

The fourth assignment of error complains of the court’s action in sustaining objections of the appellee to a hypothetical question propounded to I)r. Williams. In overruling this assignment, it is sufficient to say that the bill of exceptions reserved to the court’s ruling does not show what the answer of the witness would have been, if the question had been allowed. Without being informed of what the answer of the witness would have been, we cannot tell that the appellant has suffered any injury by its exclusion. Except perhaps on cross-examination of the opposing parties’ witness, the rule is so well established that, in the absence of a bill of exceptions showing what the answer would have been had the witness been permitted to testify, the action of the court will not he reviewed on appeal, it is unnecessary to cite authorities in support of the proposition.

It is further assigned that the court erred in refusing to permit the witness Dr. J. A. Smith, on redirect examination, to answer the following question propounded by appellant:

“He (appellee’s counsel) asked you awhile ago about how you was paid for your services. I will ask you if you do not know it is a fact that the railroads pay their physicians by the year a regular salary?”

The question was objected to on the grounds that it was immaterial and not in rebuttal. The objections were sustained, and the appellant excepted. The bill of exceptions recites that:

Appellant “could and would have proved by the witness, if he had been permitted to answer, that the railway surgeons for the defendant, who had testified for the defendant in this case, were paid a regular salary by the year for all their services, including' their services in attending court and testifying when called as witnesses for the defendant in personal injury cases.”

Appellant suggests that the witness Dr. .Smith was asked by appellee’s counsel how he was paid for his services as a witness in personal injury cases for the purpose of discrediting him, but it is not made to appear either in the brief or by the bill of exceptions what answer the witness gave to the question, or that such answer tended in the slightest to discredit him. For aught we know from the record, the answer elicited to the question propounded by appellee’s counsel may have utterly failed to disclose anything that tended to impeach or discredit the witness and hence harmless. If the testimony sought to be elicited by the question of ap-pellee’s counsel failed of its purpose, no rebutting testimony was needed, and the question asked by appellant’s counsel and not allowed was entirely immaterial. But we are inclined to think that in no event was the ruling of the court reversible error.

The appellees propounded to the witness J. K. P. Cox the following interrogatory:

“Is it not a fact that while Mrs. Mary Fox was visiting at your home in Burnett county in December, 1910, you did not hear from any source anything about Mrs. Mary Fox having received any injury on the cars and on her way from her home-to your home?”

And introduced in evidence the following portion of the answer of said witness to said interrogatory, namely:

“I didn’t hear Mrs. Mary Fox while at my home in December, 1910, say anything about receiving any injuries while on the cars from her home to my home.”

The appellant then offered in evidence the remaining portion of said answer, which is as follows:

“I heard some of my children speak of her getting hurt on the way to my home.”

The appellant contends that:

Appellee “having propounded the interrogatory and having availed itself of that portion of the answer that was favorable to it, and the balance of the answer being responsive to the question and being in direct rebuttal of the defendant’s theory that plaintiff and his wife had fabricated the story of Mrs. Fox’s injury and that they had never mentioned the fact until about the 1st of May, 19,11, it was prejudicial error for the court to exclude the balance of the answer offered by plaintiff.”

We think there was no error in excluding the testimony. It was clearly hearsay, and of a very indefinite character at that. It will be noted that the portion of the answer offered by appellant and excluded by the court was simply to the effect that the witness had heard some of his children speak of .Mrs. Fox getting hurt on the way to his home. From whom the children of the witness learned that Mrs. Fox had been hurt on her way to the witness’ home, or how she got hurt, or when and where she got hurt, or when it was that his children, heard that she had received the injury referred to by them, does not appear from the answer excluded, or any other portion of said witness’ evidence. Appellee having introduced the testimony of certain witnesses to the effect that appellant’s wife made no complaint of the injuries for which recovery was sought, for the purpose of showing that her claim was a recent fabrication, it was admissible for the appellant to introduce statements by his wife to others at or near the same time, which tended to prove the occurrence of the accident and injury; but the rule does not authorize the introduction of the statement of a witness that he had heal'd a person other than the party claimed to have been injured “speak” of such injured person having been hurt. That portion of the answer offered by appellant was therefore inadmissible, and the fact that appellee declined to read it in evidence, although perhaps responsive to the question propounded, did not, as said by appellee’s counsel, make the answer any less hearsay or admissible when offered by appellant.

It appears that while B. M. McMahan, Esq., was addressing the jury in behalf of the appellee, he said, in effect, that it was strange plaintiff had never produced a single person who was not related to his wife, or the family, who had ever heard of her being injured on the train at Hearne until after or about the 1st day of May, 1911, and that appellant’s counsel interrupted Mr. McMahan and offered to introduce then in evidence the testimony of two witnesses to the effect that, about three or four weeks after Mrs. Fox returned from her trip to Bertram, they first learned that she and her husband, R. B. Fox, were claiming that she was injured on a railway train during the time of her visit to Bertram. For similar reasons to those given in holding that the testimony of the witness Cox, discussed above, was inadmissible, the testimony here under consideration was inadmissible. Appellant did not offer to show that the witnesses, whose testimony was excluded, “learned” that Mrs. Fox had been hurt in an accident on appellee’s train from Mrs. Fox herself. The testimony was hearsay and self-serving, and the statement of counsel in argument, to which reference has been made, even if improper—a question we need not decide—did not authorize its admission. At least, its admission at such time was a matter of discretion with the court.

The refusal of similar testimony offered during the trial and before argument was begun is made the basis of appellant’s eighth assignment of error, and, for the reason just stated, said testimony was inadmissible and properly excluded.

The ninth and tenth assignments of error assert that the court erred in not granting the appellant a new trial on account of the misconduct of the jurors Dan Dansby and J. H. Briggance. There was evidence to the effect that appellant’s wife had become very much reduced in flesh since the date of her alleged injury, and that she had been using acetanilide tablets. The ninth assignment charges, in substance, that while the jury was deliberating upon a verdict and discussing the issue as to whether appellant’s wife, Mrs. Fox, had been injured at all by the jerk of appellee’s train, the juror Dansby went outside of the record and stated that the acetanilide tablets which the evidence showed Mrs. Fox had been taking was a coal tar preparation, and that from his knowledge as a pharmacist the use of such tablets was calculated to reduce flesh; that the appellee had introduced the testimony of experts as to the effect of drugs on the condition of the flesh of a person taking them; but that such testimony had reference only to opiates included in morphine and other derivatives of opium or bromides and chlorals, and not to such a drug as acetanilide tablets. The tenth assignment is, in substance, that the juror Briggance said to one or more of the members of the jury while they were considering the case that Dr. Hyder, who had testified as a witness, sat in the courtroom a part of the time the case was being tried for the purpose of listening to other witnesses that he might testify for the plaintiff; that Dr. Hyder did not come over from Commerce for the purpose of testifying in the case, but that he came over as a witness before the grand jury, and that Mr. Evans, seeing him, sent him out for Dr. Smith to post him as to what to swear; that he (Briggance) knew Dr. I-Iyder personally and well; and that he was wholly unworthy of belief. The appellee filed a written reply to and contest of the appellant’s motion for a new trial based on the alleged misconduct of the jurors named, and upon the issue thus formed testimony was heard and decided by the court in favor of the appellees. In the statement made by appellant in support of his ninth assignment, he quotes ex parte affidavits purporting to have been made by jurors Dan Dansby, C. B. Boyd, and J. W. Poston, which appear to have been attached to and made a part of appellant’s motion for a new trial. The affidavit of the juror Boyd is also quoted in the statement made in support of the tenth assignment of error.

The statute, authorizing the trial court to consider the misconduct of the jury as a ground for setting aside their verdict and granting a new trial, requires proof of such misconduct to be made in open court, and the affidavits of the jurors mentioned cannot be looked to and considered in passing upon this assignment. In addition, however, to the affidavits referred to, much of the oral testimony of the juror Boyd, taken on the hearing of the motion for new trial, is quoted in the statements in support of the assignments. This testimony of Boyd is to the effect that he understood the theory of the appellee was that Mrs. Eox had not been injured by being thrown to the floor of the railroad car, but that her condition was due to the drugs she had taken; that on the first vote taken the jury stood eight to four in favor of the appellee; that some of the jurors were of the opinion she did not receive the fall claimed by her on the train; that while talking about the case the juror Dans-by said he did not believe Mrs. Eox was hurt; that he believed her condition was caused from the acetanilide tablets she had been taking; that he (Dansby) was a pharmacist and knew what acetanilide tablets contained; that he knew it was a coal tar product and that a person could take so much into the system that it would undermine the digestive organs and cause such person to lose flesh; that such argument was made by Dansby before a verdict had been agreed on and while the case was being discussed; that he heard the doctors testify that medicines that were derivatives of opiates or morphine would make people lose flesh; that if Dans-by had not said a word about coal tar products he would not have agreed to the verdict. In answer to the direct question, that if he would not have agreed to the verdict if Dansby had not said anything about the coal tar preparation, he said: “Well, I don’t know; I might have agreed, and I might not.” Boyd further testified that he talked with the juror Briggance about the doctors who had testified in the case; that Briggance said he did not believe Dr. Hyder’s statement; that Dr. Hyder was there attending the grand jury, and he had just been picked up and gone on the stand and testified after talking with Dr. Smith and without being posted; that he (Boyd) asked Briggance why he did not think Dr. Hyder was telling the truth, and he replied:

“Well, I am in the drug' store with him, and he is a big wind-jammer, and he will do anything or say anything.”

. It appears that only four of the jurors were at any time disposed to find that ap-pellee was liable, and the juror J. W. Poston testified that he was the last of the four to agree to a verdict for the appellee; that he did not hear the juror Dansby say anything about coal tar preparations until after he had agreed to the verdict rendered. He said:

“It was after the last juror had agreed on the verdict before I heard Dan Dansby say anything about this coal tar product and just before we came out of the jury room.”

The juror Briggance, one of the four jurors who at first voted in favor of liability of the appellee, testified:

“I hoard Mr. Dansby say something about acetanilide tablets, but just what he said I cannot recollect, because I did not notice just what he did say. * * * Mr. Reed was the first man to come over. Mr. Pearson read him the court’s charge, and that seemed to change him. I don’t remember the time I brought Dr. Hy-der’s name up. I said I didn’t believe I would take Dr. Hyder’s statement, but I didn’t say he was a big wind-jammer.”

W. E. McCormick, another juror who voted for liability, testified:

“I heard Dan Dansby and Poston and two or three others talking about that coal tar product, but I never paid any attention whatever to what they said, and what Dansby said had no influence on me.”

D. O. Shrader, another juror, testified:

“I remember Dansby saying something about the coal tar preparation, but I do not remember what it was, or whether it was before or after we reached the verdict.”

E. H. Pearson, one of the jurors, testified that he did not hear Dansby say anything about acetanilide tablets. J. B. Reed, another juror, testified:

_ “I was one of the four in favor of the plaintiff when a vote was first taken. I never heard Dansby make any statement about coal tar tablets or acetanilide tablets.”

The testimony of the jurors is not entirely in accord as to when the statements relied on as misconduct were made. The condition of the testimony is perhaps such as would warrant a finding that they were made before the verdict was agreed on, or a finding that they were made after it was agreed on. Neither of the jurors, as we understand their testimony, was influenced by the unauthorized statements, except the juror Boyd. He testified at first that without such statements he would not have agreed to the verdict, but afterwards stated, in effect, that he did not know whether he would or would not have agreed to the verdict rendered if such statements had not been made. There is also-some conflict as to the statement made by the juror Briggance in reference to the witness Dr. I-Iyder. The extent of his statement in regard to this witness, according to his testimony, is that he did not remember the time during the deliberations of the jury that he brought Dr. Hyder’s name up; that he said he did not believe he would take Dr. Hyder’s statement; but that he did not say he was a big wind-jammer. It does not appear by his testimony that he stated that Dr. Hyder “would do anything or say anything.” But, however these things may be, the statute leaves it to the discretion of the trial court to set aside a verdict for misconduct of the jury, and the appellate courts will not interfere with exercise of such discretion, unless it clearly appears that the same has been abused. It has been repeatedly so held by the Supreme Court and Courts of Civil Appeals of this state. Kalteyer v. Mitchell, 102 Tex. 393, 117 S. W. 792, 132 Am. St. Rep. 889; Id., 110 S. W. 462; Railway Co. v. Blalack, 128 S. W. 706; Railway Co. v. Brown, 140 S. W. 1172; Railway Co. v. Blue, 46 Tex. Civ. App. 239, 102 S. W. 128; Railway Co. v. Gray, 105 Tex. 42, 143 S. W. 006. In Kalteyer v. Mitchell, 110 S. W. 462, the court said:

“The statute * * * which permits the dangerous practice of impeaching and destroying a verdict of a jury by testimony of members of the jury has a saving clause, which places the granting of a new trial on the ground of misconduct of the jury in the discretion of the trial court, and this court will never interfere with the exercise of such discretion unless there appears a gross abuse of the same.”

The trial court heard all the evidence introduced at the trial of the case and on the motion for a new trial. He not only heard the witnesses testify, but saw them and “could form safer conclusions thereby than this court can from the record.”

The contention of the appellant that the expert testimony showing the effect of certain drugs on the condition of a person’s flesh, and its tendency to reduce flesh, “did not touch the effect of such drugs as acetan-ilide,” is not in our opinion borne out by the record. Dr. Cantrell testified that the habitual use of such drugs as opiates, drugs that upset the digestion and dull and benumo the nervous system until it will act for days or weeks without performing its functions properly, are the most active and the quickest in producing disease, and that “opiates” in the proper meaning of the word includes narcotics of all kinds; that the use of such drugs will upset the digestion and dull the nervous system just as sure as it is persisted in, and will cause neurasthenia. Dr. Wil-banks said that the frequent use of such drugs affected the digestion and reduces flesh. To the same effect is the testimony of all the doctors who testified on the subject. The juror Dan Dansby, on the hearing of the motion for a new trial, testified that he told the jury that acetanilide tablets were a coal tar product; that it was a product of opiates, but a derivative of coal tar; that the continued use of it would have a bad effect on the system; that it might-have a tendency to break down the system. Thus it appears, we think, that the statement of Dansby to the jury while in the jury room concerning the nature and effect of acetanilide is not materially different from the testimony offered on the trial of the case upon that subject, but is in harmony therewith, and that this court would not be warranted in saying that the trial court was not justified in concluding that such statement of the juror Dansby did not result in any injury to appellant. At all events, there does not appear to be such a Clear abuse of the discretion of the district court in refusing a new trial on the ground of the misconduct of the jury as would warrant this court in holding that such refusal was reversible error.

The evidence supports the verdict, and the judgment of the court below will be affirmed.

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

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


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. BEAVERS.
    (No. 583.)

    (Court of Civil Appeals of Texas. El Paso.
    May 18, 1916.
    Rehearing Denied June 8, 1916.)
    1. Stipulations <&wkey;14(5) — Abiding Other Suit — Right to Continuance.
    Where several suits by various plaintiffs against one defendant were pending and all parties agreed in one stipulation to await judgment in one of the suits, and take judgment in accordance therewith, the suits being independent and the result of one not being governed by the result of others, it was not error to refuse continuance asked in order to allow all the parties to be made parties, to one suit, since they were not necessary to its determination, and there was nothing in the stipulation indicating intention to consolidate the suits.
    [Ed. Note. — For other cases, see Stipulations. Cent. Dig. § 29; Dee. Dig. <&wkey;14(5).]
    2. Stipulations &wkey;ll — Validity.
    An action cannot be defeated as based on an invalid stipulation, where it was brought on a fraudulent contract for the sale of stock, and the stipulation was made only as a means of establishing the right to judgment.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 23; Dec. Dig. <&wkey;ll.]
    3. Stipulations <&wkey;ll — Validity—Unilateral Agreement.
    A stipulation by which defendant agreed to permit judgment against it in one suit if such judgment were rendered in a similar suit, and plaintiff, agreed to await judgment in the other suit before prosecuting his action, thus postponing immediate collection of moneys due, is not unilateral.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 23; Dec. Dig. <&wkey;ll.]
    4. Attorney and Client <&wkey;86 — Authority oe Attorney — Binding Eeeect.
    A client is bound by the act of his attorney in signing a stipulation filed in an action in which the attorney is employed.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 155-160; Dec. Dig. <&wkey; 86.]
    5. Stipulations <S=x>12 — Withdrawal—Time.
    That one party refuses to be bound by a stipulation signed by his attorney and filed in an action pending does not invalidate the stipulation as to other parties, after determination that there is no cause of action against such party.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 66; Dec. Dig. <&wkey;>12.]
    6. Appeal and Error <S=»1052(5)' — Review-Harmless Error — Admission op Evidence.
    Where testimony objected to is rendered immaterial by the finding that the defendant, as to whom it was offered, was not liable to the plaintiffs in the action, its admission is no ground for reversal of the judgment against other defendants, where, without it, there is still sufficient evidence to sustain the judgment, which would not have been affected by its exclusion.
    .[Ed. Note. — For other cases,, see Appeal and Error, Cent. Dig. § 4175; Dee. Dig. &wkey;1052(5).]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Suit by G. H. Beavers against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff and defendant appeals.
    Affirmed.

      Speer & Brown, and Bowlin & Kearby, all of Ft. Worth, for appellant. C. D. Russell, of Plainview, Jas. A. Stephens, of Benjamin, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

      Application '£or writ of error pending in Supreme Court.

   HARPER, C. J.

This is an appeal from a judgment in favor of G. H. Beavers and against the Commonwealth Bonding & Casualty Insurance Company, which judgment rescinded, canceled and held for naught a subscription contract between the parties, and ordered the surrender of and canceled certain notes executed by Beavers in part payment for certain stock, and decreed to appel-lee certain moneys, which were the proceeds of the sale of securities given to the bonding company in partial payment for the stock issued to appellee, and, further, that the certificates of stock so issued to appellee be surrendered to the bonding company. Said judgment was so entered upon a finding that the subscription contract was void because induced by false and fraudulent representations made by the promoters, agents, etc., of the bonding company. This is one of a number of actions instituted by different parties against the same bonding company upon substantially the same allegations for cause of action. The case of Commonwealth Bonding & Casualty Co. v. E. P. Bomar, reported in 169 S. W. 1060, is one of the number referred to, and contains a statement in detail of the contentions of the parties. During the progress of the trial of said above cause, the parties entered into a stipulation hereinafter copied in full, which, in effect, is a final adjudication of the questions of law and fact in this case, if said stipulation is binding upon the appellant, unless the court erred in refusing to grant a continuance or in admitting certain testimony, or was in error in holding that the parties to the other suits were not necessary parties to this, for which the cause must be remanded. In the stipulation, after naming some 40 parties plaintiff, with the style of their suit and in what court filed, the document reads:

“We, the undersigned attorneys, L. W. Dalton, James A. Stephens, and Montgomery & Britain, who are attorneys for .the plaintiffs in all the above-entitled causes, and Miller and Stephens, who are attorneys for the defendant, Commonwealth Bonding & Casualty Insurance Company in -all the above-entitled causes, and McLean, Scott, McLean & Bradley, who are attorneys for It. T. Stuart in all the above-entitled causes, some of which cases are filed and some to be hereinafter filed in the district court of Baylor county, Texas, hereby enter into and make the following agreement:
“First. It is agreed that L. W. Dalton, as attorney for each of the following named parties, to wit, John Haynes, of Silverton, Texas, R. F. Smythe, of Plainview, Texas, L. D. Die, of Plainview, Texas, Edgar Allen, J. H. Reed and J. F. Leathcrwood, shall file suits against the Commonwealth Bonding & Casualty Insurance Company for the rescission of the stock subscription contract by which each of said parties agree to take certain stock in said Commonwealth Bonding & Casualty Insurance Company and for cancellation of the notes given by each of said parties for such stock and the recovery of whatever money may have been paid by each of said parties and that suit may be also filed for S. C. Hickman. And it is further agreed that said Commonwealth Bonding & Casualty Insurance Company shall answer, plead over against R. T. Stuart, and ask for recovery against him for whatever amount may be recovered against the Commonwealth Bonding & Casualty Insurance Company, by the plaintiff.
“Second. It is further agreed that said causes above referred to to be hereafter filed and all cases of every character pending in the district courts of Baylor and Knox counties, Texas, between the parties hereto shall be continued and none of said causes tried until the final determination of the case of E. P. Bomar v. John Scharbauer et al., No. 1773, in the district court of Baylor county, Texas, which said cause has been tried in said district court and a judgment therein rendered for the plaintiff E. P. Bomar, against the defendant Commonwealth Bonding & Casualty Insurance Company for the rescission of a subscription contract made by him to the stock of said Commonwealth. Bonding & Casualty Insurance Company, and the recovery of all moneys. paid by him to said company, and the cancellation of all notes executed by him to said company, and judgment has further been rendered in said cause in favor of said Commonwealth Bonding & Casualty Insurance Company against the defendant R. T. Stuart, for the sum of $500.00 as promotion fees.
“It is further agreed that in the event that judgment in the case of E. P. Bomar v. John Scharbauer et ah, above referred to, shall finally be affirmed by the appellate courts of this state, either in whole or part, that is, if said judgment shall finally be affirmed for the cancellation of the obligations given by said Bomar and for the recovery of the sum of $1,000.00 which the evidence shows in said case was paid to the Commonwealth Bonding & Casualty Insurance Company, and for the sum of $500.00, which the evidence in said case shows was paid for promotion, then it is agreed that a like judgment shall be'rendered in each of the above-entitled causes for the cancellation of the obligations given by the plaintiff in each of said causes, and for the recovery of all moneys paid by each of said plaintiffs to the Commonwealth Bonding & Casualty Insurance Company, or for promotion fees, but if said judgment shall be affirmed in part only, that is, if said judgment should be affirmed for the recovery only of such moneys as were received by the Commonwealth Bonding '& Casualty Insurance ■ Company and of the obligations given, to said company or transferred to it, then a like judgment shall be rendered in each of the causes above referred to. No judgment against John .Scharbauer shall be rendered in any of said causes.
“It is further agreed that in the event a judgment in the case of E. P. Bomar v. John Schar-bauer et al. shall be recovered by the Appellate Court, then in that event this agreement shall not affect the right of the plaintiffs' in each of the causes above named, and referred to in this agreement, to try said causes upon the merits, and all parties shall be relieved from the effect of this agreement except in so far as the same provides for a continuance of said causes above named until the final disposition of the case of E. P. Bomar v. John Scharbauer et al.
“Witness our hands,” etc.

Should the trial court have granted a continuance so that the other parties to the above agreement could be made parties to this suit? It is apparent that the stipulation, is a several one as to each and all parties. While it is in one document, with the style and number of each case upon it, nevertheless we think it clearly an agreement that judgment should be taken in each case wherever pending. There is no intimation in it that the cases named therein were to he consolidated, but if there were such a provision in the stipulation and the court refused to consolidate, still it could not be reversible error under the facts of this case; for if the stipulation bound the bonding company as a confession of judgment, it could make no difference whether one judgment were taken in 40 eases or 40 judgments be taken, except, possibly as a matter of costs. The parties to the other suits were in no sense necessary parties to this suit, unless by the stipulation they bound themselves to become so, as a matter of convenience. Their causes of action were separate and distinct from this one, and they were "in no way interested in the result of this suit. Any judgment entered in this cause could in no way affect the parties or their interests to the other suits. So, since we find no express provision in the stipulation that the cases should be consolidated and nothing to indicate that such was the intention of the parties at the time of its execution, we must conclude that it was not the intention of the parties to consolidate.

And the only question to be determined is, Was the stipulation upon which the judgment was entered a valid and binding agreement? Appellant, by proposition under second assignment, suggests that this suit is based upon the stipulation between the attorneys, and that it' is unilateral. This suit is not based upon the stipulation, but upon the fraudulent contract for the purchase of stock, and that contract was in no sense unilateral. The stipulation is simply the means by which plaintiff established his right to judgment. As to the propositions that the stipulation is unilateral, invalid, because not signed by the parties, nor ratified, as to whether it was signed and afterwards ratified under a misapprehension of the facts by the directors of the bonding company, as to whether it was rescinded by the company, as to whether it was breached by the parties plaintiffs, and as to whether these questions should have been submitted to the jury, as raised by the second and eighth assignments, we answer: In Porter v. Holt, 73 Tex. 447, 11 S. W. 494, it was held that:

“Agreements of counsel made during the progress of a cause ordinarily tend to the dispatch of business, and should be favored by the courts. The agreement should not be set aside at the instance of either party when the party invoking such action has obtained an advantage under it, or when its withdrawal will place the opposite party in worse position than if it had never been made.”

The theory upon which the proposition that the stipulation is unilateral is urged is that if, the Bomar Case was affirmed, then the bonding company was bound, but, if not, that the plaintiff in each of the cases could nevertheless prosecute their suits upon their merits. True, appellant, by this stipulation, admitted that the appellee and the other parties to it had meritorious causes of action, in other words, by it confessed judgment, and that they, the several plaintiffs, did not bind themselves in like manner, but the latter did forego the immediate prosecution of their suits, which postponed the collection of their moneys. And the bonding company was thereby relieved of the expense and trouble of attending the trials of the several causes of action in the several courts, with its witnesses, etc. At least it would have been so relieved if it had abided by the stipulation. And it has gained the advantage of retaining the moneys in its possession which it might otherwise have had to deliver sooner. Without quoting it, we find the facts in this case to conclusively show that the agreement was signed by the attorneys; that the attorneys had full authority to bind their respective clients; that if appellant’s counsel did not have authority to bind it, the directors with full information afterwards, by resolution spread upon its minutes, in all things, ratified it; and that its attempted rescission came after it had received the benefit of the stipulation and therefore could have no legal effect.

And as to the stipulation being nullified because Stuart after it had been executed declared that he would not be bound by it, he was bound by the act of his attorneys, and he could not, by a simple declaration, withdraw from it, but it seems to us that if he could have so done, and did, since the court in Bomar v. Scharbauer et al. holds that the appellant has no cause of action against him under the facts, he is no longer a necessary party to the stipulation nor to the cause of action, and there is no question that the facts as to all parties including Stuart are the same in this case as in the Bomar Case, and no such question could be raised by the stipulation; the parties have admitted them to be the same.

It follows that the testimony of the witnesses, the admission of which is complained of by,the third, fourth, fifth, sixth, and seventh assignments, was immaterial, becáuse it is not likely that it would have affected the final result of the cause in any way. Said testimony being concerning the things said and done at the director’s meeting in reference to the ratification of the contract, or stipulation, and as to Stuart’s statement that he would not be bound by the stipulation, the court having instructed a verdict and we having concluded that there was sufficient evidence other than that complained of, to sustain the judgment, for these reasons the admission of the testimony was not error such as to require a reversal of this cause.

Finding no error in the record, the judgment of the trial court is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PER CURIAM.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. BRANNIN.
    (No. 576.)
    (Court of Civil Appeals of Texas. El Paso.
    May 18, 1916.
    Rehearing Denied June 8, 1916.)
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Ten separate actions by R. S. Brannin and by nine others against- the Commonwealth Bonding & Casualty Insurance Company. Judgments for plaintiffs in each case, and defendant appeals.
    All judgments affirmed.
    Speer & Brown and Bowlin & ICearby, all of Pt. Worth, for appellant. Jas. A. Stephens, of Benjamin, and Carrigan, Montgomery & Britain, of Wichita Palls, for appellees.
   PER CURIAM.

It having been agreed between the parties to this suit, and in the nine others included in this memorandum opinion, that they present the same questions as those presented in Commonwealth Bonding & Casualty Insurance Co. v. G. H. Beavers, 186 S. W. 869 (the opinion in the latter ease this day handed down), and, further, that the same judgment should be entered as that in the latter ease, in accordance with the said agreement, we enter our judgment of affirmance in each of said cases as follows:

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. Prank Patton, Appellee, No. 577.

Commonwealth Bonding & Casualty Insurance. Company, Appellant, v. W. E. Moorehouse, Appellee, No. 578.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. W. T. Ward, No. 579.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. T. M. Anderson, No. 580.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. W. A. Brown, Appellee, No. 581.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. Tom Adams, Appellee, No. 582.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. E. M. Coffman, Appellee, No. 584.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. Louis Chesser, Appellee, No. 585.

Commonwealth Bonding & Casualty Insurance Company, Appellant, v. D. M. Morrison, Appellee, No. 586.


text:
    WILLS v. TYER et al.
    (No. 570.)

    (Court of Civil Appeals of Texas. El Paso.
    May 11, 1916.
    Rehearing Denied June 15, 1916.)
    1. Principal and Surety <&wkey; 118 — Release oe Principal. Where a principal establishes a defense in bar, or is released from his obligation, his sureties, also are released. [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 286-295; Dec. Dig. &wkey;> 2. Bills and Notes <&wkey;301 — Release oe Maker — Eeeect on Indorser. Where a note was obtained by false and fraudulent representation without consideration and plaintiff was not a bona fide holder without notice, releasing the maker from liability, an. in-dorser of the note was released with the principal. [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. <&wkey;> 301.]
    Error from Taylor County Court; E. M. Oversliiner, Judge.
    Suit by W. A. Tyer against R. A. Hart and another. From a judgment for plaintiff against both defendants, the named defendant appealed to the county court. From a judgment of the county court for plaintiff against defendant J. E. Wills only, by default, and that plaintiff take nothing against defendant R. A. Hart, defendant J. E. Wills brings error.
    Reversed and remanded.
    Cunningham & Oliver, of Abilene, for plaintiff in error. Sayles, Sayles & Sayles and Dallas Scarborough, all of Abilene, B. K. Isaacs, of Ft. Worth, and H. N. Hickman, of Abilene, for defendants in error.

      Application ior writ oí error pending in Supreme Court.

   HARPER, C. J.

This suit was filed in the justice court of Taylor county by W. A. Tyer, against R. A. Hart and E. J. Wills, upon a note made by R. A. Hart, payable to himself and by said 1-Iart and J. E. Wills indorsed to plaintiff for value. The transcript from the justice court shows that both of said defendants were duly served with citation. That judgment was entered in favor of plaintiff against both of said defendants. That an appeal was perfected from said 'judgment by the said R. A. Hart to the county court. The judgment of the county court from which this appeal is taken is in favor of said plaintiff, Tyer, and against J. E. Wills, only, by default, and that plaintiff take nothing against defendant R. A. Hart. Wills brings the cause here for review by writ of error.

Findings of fact by the trial court (no statement of facts in the record):

“(1) That prior to, on, and after the 10th day of February, 1912, the plaintiff, W. A. Tyer, was the district sales manager, and T. J. Caldwell was the local sales agent and subagent of the said W. A. Tyer and the Improved Brick & Stone Company of Byhalia, Miss., a corporation, duly organized under and by virtue of the laws of Arizona, but not having a permit or authorized to do business in the state of Texas, for the sale of a formula for the manufactory of artificial brick and stone, which said formula was owned by the said Improved Brick & Stone Company of Byhalia, Miss.
“(2) That on or about- the 10th day of February, 1912, the said T. J. Caldwell by and on the authority of Ms said district sales manager, the said plaintiff W. A. Tyer and the above said corporation, orally and in writing contracted, promised, and agreed to deliver to the defendant R. A. Hart in consideration of the payment by the said Hart to the said Caldwell as local agent as aforesaid, and for the benefit of said corporation the sum of $300, $150- cash, and the execution and delivery to the said Caldwell for the benefit of the above said corporation the said Hart’s note for the sum of $150 a one-half interest in the exclusive right to use in Nolan county, Tex., said formula.
“(3) That representations were made to the defendant R. A., Hart that the brick or stone made from this formula were capable of being used where ordinary brick and stone are now used, that the same were practicable and feasible and could be made and marketed upon a paying basis and were of a valuable nature, and that the same could be made under the directions of said formula for $3.00 to $4.00 per thousand and cost of chemicals, and that the said formula was patented.
“(4) That the above said contract and agreement and representations were made upon the authority and approval, and indorsement and instructions of the plaintiff W. A. Tyer, and said corporation.
“(6) That the defendant R. A. Hart in compliance with said contract and agreement and relying on said representations above set out, paid to the said Caldwell as above said, the sum of $150.00 cash, and executed his said note for the sum of $150.00 cash, and executed his said note for the sum of $150.00 and delivered the same with its indorsements to said Caldwell for the benefit of said corporation, same being the note sued upon by the plaintiff, W. A. Tyer.
“(0) That said representations were false and fraudulent and were made for the purpose of inducing the defendant Hart to execute the said note herein sued upon, and that the said Hart acted and relied upon the same to his damage.
“(7) That the said W. A. Tyer had notice of the false and fraudulent representations here-inabove set out and that he did not pay a valuable consideration for the note sued upon.
“(8) That the defendant J. E. Wills indorsed the note sued upon.”

Conclusions of law:

“1. The court concludes as a matter of law that the representations made to the defendant Hart were false and fraudulent and were made for the purpose of inducing the said Hart to execute the note sued upon, and that the defendant Hart relied and acted upon the same believing them to be the truth, to his damage.
“2. That the plaintiff Tyer is not a bona fide holder for value without notice of the note sued upon.
“3. That the consideration for the note sued upon has failed and the note is not a binding obligation on defendant Hart.
“4. That the note sued on was given for the benefit of a foreign corporation not authorized to do business in Texas, which corporation had no authority to maintain any suit in Texas on such note, and plaintiff Tyer is likewise precluded from suing in Texas on such note.
“5. The defendant J. E. Wills is liable as an indorser of the note su'ed upon, and, not having appeared in this court, judgment should be rendered against him.”

Appellant urges several assignments which in effect present two propositions of law: First, where the payee of a note cannot recover against the principal on account of inherent vice, such as a failure of consideration, he cannot recover against the surety; second, no judgment can be rendered against a surety upon a note until judgment has been rendered against the principal, unless it first be shown that the principal is dead notoriously insolvent, or his residence unknown, or that he is without the state, where the processes of law cannot be served upon him.

The general rule is that that which releases the principal from his obligation releases the surety. Gourley v. Tyler & Simpson, 15 S. W. 731.

The sureties are not bound where the principal establishes a defense in bar. Thompson v. Chaffee, 39 Tex. Civ. App. 567, 89 S. W. 285.

The trial court, by his findings of fact and conclusions of law, has found as a fact that the note was obtained by false and fraudulent representations; that the plaintiff was not a bona fide holder without notice ; that the consideration had failed, etc.; that therefore defendant Hart was not liable. There is no statement of facts in the record, so ,we cannot here at this time determine the correctness of the conclusions; but,, upon such findings of fact, the surety Wills is in law released with his principal obligor. 1 Black on Judgments (1st Ed.) § 209; Burden v. Cross, 33 Tex. 685; Jones v. Ritter, 32 Tex. 717.

The cause must therefore be reversed and . remanded, and it is so ordered.
      <S^>For other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    STEPHENVILLE NORTH & S. T. RY. CO. v. STEWART.
    (No. 5617.)
    (Court of Civil Appeals of Texas. Austin.
    March 29, 1916.
    Rehearing Denied June 14, 1916.)
    Trial c&wkey;260(l) — Instructions—Covered by the Charge.
    It is not error to refuse a requested instruction the law of which is covered and applied in the court’s charge to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    Action by W. B. Stewart against the Stephenville North & South Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Marshall Ferguson, of Stephenville, for appellant. Eidson & Eidson, of Hamilton, for appellee.
   KEY, C. J.

This is a county court case in which the plaintiff alleged and proved a failure on the part of the railway company to properly construct its roadbed over his land, and as a result of which his land and crops were damaged by flood waters. He alleged that his land was damaged $500 and his crops $100. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $141.56 damage to his land, and $90 damage to his crops, and the defendant has appealed.

The ease is presented in this court upon only two assignments of error, one of which complains of the trial court’s refusal to give a certain requested instruction, and the other charges that the verdict is excessive as to the amount allowed for injury to the plaintiff’s crops. The law announced in the refused instruction was covered and applied in the court’s charge to the jury, and therefore no error was committed in refusing that instruction. On the other point we have examined the statement of facts, and find some testimony tending to support the finding of the jury as to the amount of injury to the plaintiff’s crops; and, while that testimony is not as satisfactory as it might have been, we cannot say that it does not support the verdict.

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

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


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. DOWNS.
    (No. 5635.)
    (Court of Civil Appeals of Texas. Austin.
    April 19, 1916.
    Rehearing Denied June 7, 1916.)
    Appeal and Ebrob <&wkey;26S(3) — Review—Objections to Instructions.
    There being no formal bill of exceptions, and the record showing merely that, when the case was called, appellant presented written objections to the charge given, and requested a special charge, and the court merely indorsed on both documents his signature after the word “refused,” held, under the act of 1913 (Acts 33d Leg. c. 138) amending' the Revised Statutes in reference to objections to charges given and-refused and bills of exceptions, that appellant waived his objections to the court’s charge and the refusal of requested instructions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525; Dec. Dig. <&wkey;> 263(3).]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Action by Walter Downs against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. Hamilton & Murphree, of Waco, and J. A. Kibler, of Houston, for appellee.
   KEY, C. J.

This is a damage suit, the trial of which resulted in a verdict and judgment for the plaintiff, and the defendant has appealed. Only two- assignments of error are presented by appellant, one complaining of a certain paragraph of the court’s charge to the jury, and the other complaining of a refusal to give a requested instruction. Appellee objects to a consideration of either of the assignments referred to, because the record does not show that the objections to the charge were presented to the trial judge before he read it to the jury, and does not show that notice to opposite counsel of such objections was given, nor that appellant excepted to the action of the court in not sustaining the objections urged; and a similar objection is made in reference to- the special charge that was requested and refused.

These objections are predicated upon the act of 1913 (Acts 33d Leg. c. 138) amending the Revised Statutes in reference to objections to charges given and the action of the court in refusing requested instructions, and to bills of exception. In the case at bar there is no formal bill of exception, and the record merely shows that on the day the case was called appellant presented to the trial court certain written objections to the charge given to the jury, and requested the court to give a special charge. The judge made this indorsement, and no other, upon each of those documents: “Refused. Rich’d I. Mun-roe, Judge.” In Railway Oo. v. Bartek, 177 &. W. 145, and Railway Oo. v. Bland, 161 S. W. 504, this court considered and construed the act of 1913, and held that similar proceedings to those contained in the record in this case did not comply with that act. We are satisfied with the correctness of our rulings in those cases; and, for the reasons therein stated, we hold that appellant has waived its objections to the court’s charge and to the refusal of the requested instruction. This being the case, and without expressing any opinion upon the questions sought to be presented, we affirm the judgment.

Affirmed.


text:
    SOUTHERN TRACTION CO. v. FRAZIER.
    (No. 5628.)
    (Court of Civil Appeals of Texas. Austin.
    April 12, 1916.
    Rehearing Denied June 14, 1916.)
    Appeal and Error <S^v>1052(5) — Haemless Eeeob — Vebdict fob Appellee Probable in Ant Event.
    In an action for damages to automobile wrecked by a street ear, alleged error in admitting testimony held not reversible, where other testimony not objected to, and the amount of the verdict rendered it wholly improbable that the result would have been different had the testimony referred to been excluded.
    |Ed. Note. — For other cases, see Appeal and Error^ Cent. Dig. § 4175; Dec. Dig. <&wkey;>
    Appeal from District Court, McLennan County; Tom L. McCulloch, Judge.
    Action by John H.- Frazier against the Southern Traction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Nat Harris and Spell & ganford, all of Waco, for appellant. Williams <& Williams, Edgar Harold, Tirey & Tirey, and Alva Bryan, all of Waco, for appellee.
   KEY, C. J.

Appellee sued appellant for damages for injuries to an automobile, which was wrecked by a street car belonging to appellant and operated in the city of Waco. The verdict and judgment went in favor of appellee, and awarded him $400 as damages, and the appellant has brought the case to this court upon three assignments of error, the first charging that the trial court committed error in not granting appellant a new trial, for the reason that the great preponderance of the evidence showed that appellee was guilty of contributory negligence, and the other two assignments complain of the admission of certain testimony. If appellee told the truth as a witness, he was not guilty of contributory negligence; and, although other witnesses may have testified differently, it was tile province of the jury,. if they saw proper, to give credence to his testimony, and therefore we overrule the assignment which assails the verdict.

Nor are we prepared to hold that the court committed error in its rulings upon the admission of testimony; but, if we should do so, other testimony not objected to and the amount of the verdict render it wholly improbable that the result would have been different if the testimony referred to had been excluded.

So our conclusion is that no reversible error has been shown, and therefore the judgment is affirmed.

Affirmed.
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author: RICE, J.

text:
    HENDERSON v. McDANIEL.
    (No. 5651.)
    (Court of Civil Appeals of Texas. Austin.
    May 31, 1916.)
    1. Bilis and Notes &wkey;5lSl — Pleading—Admission— Effect oe.
    In an action on a note, where the answer did not deny the averments of the petition that plaintiff was a bona fide purchaser for value without notice and before maturity, but set up other facts as a defense, those averments were admitted, and unless the defense was good, the holder was entitled to judgment.
    [E'd. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1530-1532, 1559-1561; Dee. Dig. &wkey;>481.]
    2. Bills and Notes <&wkey;373 — Bona Fide Pcjb-chasers — Defenses.
    The defense that a note was procured through fraudulent representations, and that after execution of the note the payee refused to redeliver it, or to carry out his agreement, is not good as against a bona fide purchaser for value and without notice before maturity.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966 — 970; Dec. Dig. 373.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by Upton Henderson against J. S. McDaniel, begun in justice court and appealed to county court. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.
   RICE, J.

Appellant brought this suit in the justice court of Brown county against ap-pellee, to enforce the collection of two promissory notes executed by the latter, each for the sum of $75, of date October 11, 1905, and payable to the order of John W. Staton, bearing 10 per cent, interest from date, one payable October 1, 1906, and the other October I, 1907, providing for the usual attorney’s fees in the event of suit thereon; alleging that thereafter, and before maturity, said John W. Staton transferred the notes for a valuable consideration to S. N. McDaniel, who thereafter, before maturity thereof, sold and transferred both notes to appellant for a valuable consideration, without notice of any defense thereto. After general demurrer and plea of limitation, appellee, by sworn answer, alleged that the notes sued upon were procured from him by Staton by fraudulent representations, .whereby he was induced to sign the same, the substance of ■which was- that Staton agreed with him to enter into a written contract, whereby he would obligate himself to return to defendant the notes sued on at his request, if for any reason he could not work the patent right territory for which the notes were given in payment; that, relying upon said agreement, he signed the notes, and demanded from Staton such contract and agreement; that the notes, when signed were in a blank book, and that Staton took the book from his hands, saying that he had to have it to write on, and, after procuring said notes, refused to execute and deliver to him such contract, whereupon he immediately demanded the return of his notes, which Staton refused to deliver to him, or to execute said contract. There .was a trial before the court without a jury, resulting in a judgment in favor of ap-pellee, from which appellant appealed to the county court, where the case was continued from term to term, until April 26, 1915, when it was dismissed for want of prosecution, but, at the succeeding June term, the case, upon the application of appellant, was reinstated, and subsequently, an amended answer was filed on the part of appellee, Setting up substantially the same defenses; urged in the justice’s court, but said answer contained no general denial or special denial of the material allegations of appellant's petition.

On the 21st of July, 1915, the case was submitted to the jury on special issues, upon the answers to which judgment was rendered for appellee after the court, however, had first overruled appellant’s motion to set aside the special findings of the jury, as well as his motion to have the court make its findings on the undisputed facts upon which issues were not submitted to the jury, from which judgment appellant prosecutes this appeal, urging by his first assignment that the court erred in rendering judgment for appellee, and in not rendering judgment for him on the admitted facts under the pleadings that the appellant was the owner and holder of the notes sued on; that he purchased same from S. N. McDaniel before maturity of either, paying value therefor; that they were past due and unpaid, and on the special findings and verdict of the jury based on uncontro-verted evidence that appellant had no knowledge or notice, at the time or before the time he obtained said notes, of any claim of invalidity therein; urging by his proposition thereunder that appellee, by failing to deny, admitted the truth of appellant’s allegations that the notes sued upon were executed by appellee; that appellant had purchased same in good faith for value before maturity; and that the notes were past due and unpaid. We deem this a sound proposition. See Bau-man y. Chambers, 91 Tex. 108, 41 S. W. 471; Mentz v. Haight, 97 S. W. 1076; Wabash R. R. Co. v. Newton, Weller & Wagner Co., 110 S. W. 992. The rule seems to be well settled that a material allegation in the pleading which is not traversed is so far admitted that it is not competent for either party to disprove it. The failure on the part of ap-pellee to , deny appellant’s contention that the notes were transferred to him for value before maturity, .without notice of the defects therein, was tantamount to an admission of the truth of such allegations. This being the law, appellant was entitled to a judgment in his favor, provided, of course, the special de-' fense urged on the part of appellee was not well founded.

We may say in passing, however, that the uncontradicted evidence seems to support appellant’s contention that he is an innocent purchaser for value before maturity, and without notice of the defense urged. By the making and delivery of the notes to Staton, appellee placed it in the power of the former to make just such disposition of them as appellant claims was done in this case. While the defense urged by appellee would be good as between him and Staton, still, it cannot be held to be such as against appellant, the admitted bona fide purchaser for value, before maturity. See Mulberger v. Morgan, 34 S. W. 149; Texas Banking & Inst. Co. v. Jas. D. Turnley et al., 61 Tex. 366; Davis v. Gray, 61 Tex. 506; Worsham v. State, 56 Tex. Cr. R. 253, 120 S. W. 439, 18 Ann. Cas. 134; Hardie & Co. v. Wright et al., 83 Tex. 345, 18 S. W. 615; Garlitz v. Runnels Co. Natl. Bank, 152 S. W. 1151; Thompson v. Samuels (Sup.) 14 S. W. 143; State Bank of Chicago v. Holland, 103 Tex. 266, 126 S. W. 564.

Believing that the court erred in rendering judgment on the verdict in favor of appellee, it becomes our duty to reverse the same and to here render judgment in favor of appellant; and it is so ordered.

Reversed and rendered.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes


author: SWEARINGEN, J.

text:
    CITY OF SAN ANTONIO v. JOHNSON.

    (No. 5748.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 31, 1916.
    Rehearing Denied June 14, 1916.)
    1. Municipal Corporations &wkey;>958 — Charter — Construction—Constitutional Provisions — ^“Barred.”
    Charter of San Antonio, § 123, providing that all taxes delinquent for ten years before any suit is filed to collect the same shall be barred by limitation, is not violative of Const, art. 3, § 55, providing that the Legislature shall have no power to release or extinguish, in whole or in part, any indebtedness, liability, or obligation to the state, or any county or other municipal corporation, since the word “barred” does not mean released or extinguished, but is a plea or peremptory exception of a defendant to destroy the plaintiff’s action; an impediment, obstacle, or preventive barrier.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2023-2037; Dec. Dig. &wkey;>958.
    For other definitions, see Words and Phrases, Barred.]
    2. Statutes &wkey;>120(2) — Construction—Constitutional Provisions.
    Charter of San Antonio, including section 123, is not violative of Const, art. 3, § 35, providing that, except appropriation bills, no bill shall contain more than one subject, which shall be expressed in its title, since Const, art. 11, § 5, in 1993, • read “cities having more than ten thousand. inhabitants may have their charters granted or amended by special act of the Legislature.”
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 169; Dec. Dig. &wkey;cl20(2)J
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by the City of San Antonio against J. B. Johnson for foreclosure of a tax lien. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Geo. R. Gillette, Robt. G. Harris, and R. J. McMillan, all of San Antonio, for appellant. Leonard Brown, of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   SWEARINGEN, J.

This suit was instituted by appellant against appellee, to collect taxes for the years 1881, 1885, and 1894 to 1908, inclusive, and for foreclosure of tax lien on certain property belonging to appel-lee, properly assessed for the taxes sued for. Appellee pleaded that under section 123 of the charter of appellant, which became operative in 1903, the taxes for the years 1881, 1885, and 1894 to 1902, inclusive, were barred by limitation. The case was tried without a jury upon an agreed statement of facts. Judgment was rendered in favor of appellee for the taxes and liens for the years 1881, 1885, and 1894 to 1902 inclusive, and in favor of appellant for the other taxes and foreclosure of liens therefor.

The first error assigned is as follows:

“The court erred in rendering judgment upholding the validity and constitutionality of section 123 of defendant city’s charter, in that said section is not in terms, intention or effect a limitation upon suits for taxes, but bars the debt, liability or obligation of the taxpayer to the city of San Antonio, contrary to and in violation of article 3, § 55, of the Texas Constitution.”

Section 123 of the charter reads:

“All taxes delinquent for ten years before any suit is filed to collect the same shall be barred by limitation; provided, that this section shall not affect judgments already rendered, nor suits pending when this act takes effect, nor the validity of tax titles hereinbefore made, and provided further, that this section shall not take effect until one year after the passage of this act.”

Section 55, art. 3, of the Constitution, which appellant claims is violated by section 123, reads:

“The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual, to this state, or to any county or other municipal corporation therein.”

Had section 123 used the word, “released” or “extinguished,” appellant might, with some plausibility, have contended that section 123 is contrary to section 55, art. 3, of the Constitution. But the word, “barred” does not mean released nor extinguished. “Bar” means, as stated in appellant’s learned brief, “a plea or peremptory exception of a defendant to destroy the plaintiff’s action; an impediment, obstacle, or preventive barrier.” 5 Cyc. 514. The impediment, obstacle, or preventive barrier that destroys appellant’s action in this present case is the fact that the city allowed taxes to be and remain delinquent for a period of ten years before filing suit to recover them.

Appellant cited the opinion of Chief Justice Willie, in Willis v. Stroud, 67 Tex. 516, 3 S. W. 732, and it is interesting to note that the distinguished jurist uses the expression, “such a judgment was held barred,” and the expression, “when limitation would bar it ljudgment].” What was meant was that an action of scire facias or action of debt brought on the judgment was barred.

By section 123 in the charter, the legislature fixed a period of limitation to suits by the city of San Antonio for the collection of taxes, which the Legislature had the unquestioned power to do. City of Houston v. Stewart, 40 Tex. Civ. App. 506, 90 S. W. 49; Link v. City of Houston, 94 Tex. 378, 59 S. W. 566, 60 S. W. 664; Ollivier v. Houston, 93 Tex. 201, 54 S. W. 940, 943.

The first assignment is overruled.

There is no merit in the second assignment, and it is overruled.

The third assignment is as follows:

“The court erred in rendering judgment upholding the validity and constitutionality of section 123 of defendant city’s charter, because the act, within which said section is embraced, violates the requirements of article 3, § 35, of the Texas Constitution, in that said act embraces more than one subject, and but one subject is expressed in the title thereto.”

Section 35, art. 3, is as follows:

“No bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall bo void only as to so much thereof as shall not be so expressed.”

Section 5, art. 11, of the Constitution, in 1903 read as follows:

“Cities having' more than ten thousand inhabitants may have their charters granted or amended by special act of the Legislature.”

This last-mentioned provision of the Constitution empowers the Legislature to include in the city charter any and all provisions germane to a municipal corporation without reference to any other law. Taxation and limitation upon the collection thereof are certainly germane. The law pertinent to this question is aptly stated by the Supreme Court of Texas, as follows:

“It is the purpose of the Constitution that the grant of power in the charter of a city having more than 10,000 inhabitants shall be complete without reference to any other law, notwithstanding it would be easy to provide for the exercise of the greater number of privileges granted to such cities by a general law applicable alike to a.ll of them.” City of Dallas v. Western Elec. Co., 83 Tex. 243, 18 S. W. 552: City of Oak Cliff v. State, 97 Tex. 389, 79 S. W. 1.

The third assignment is overruled.

The rule of law above discussed also disposes of the question raised by the fourth assignment of error, which is accordingly overruled.

There is no error in the judgment of the trial court, and it is affirmed.
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text:
    ARTHE-LEVY-BERNHARD CO. v. McBURNETT.
    (No. 5634.)
    (Court of Civil Appeals of Texas. Austin.
    May 24, 1916.)
    Sales <®=»181(11) — Action bt Seller for Price — Evidence—Delay and Fitness of Goods. In an action for umbrellas sold, evidence that contrary to contract the shipment was too late for holiday trade and the goods were not as ordered and were not accepted held to sustain verdict for defendant. [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 486, 487, 490; Dec. Dig. &wkey;181(ll).]
    Error from Tom Green County Court; Oscar Prink, Judge.
    Action by the Arthe-Levy-Bernhard Company against C. C. McBurnett. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.
    J. J. Sheppard and W. A. Anderson, both of San Angelo, for plaintiff in error. James P. Dumas and L. W. Elliott, both of San Angelo, for defendant in error.
   RICE, J.

This suit was brought by plain-

tiff in error, a private corporation, against defendant in error, on a certified account to recover the sum of $4,66.50, for a shipment of umbrellas, made by it to him on the 23d of November, 1912. Defendant in error interposed first the two-year statute of limitation, and for special defense alleged: (a) That said shipment was to be delivered within a specified time, to wit, on or about the 1st of November, 1912, or, in any event, in ample time for defendant to have same on display in his store in San Angelo during the entire holiday season, and that the same was not delivered to him until the 14th of December, too late for sale during that season; (b) that by the terms of said contract of sale the umbrellas were to be of the kind known in the trade as detachables, meaning thereby the kind having handles that could be detached and another substituted; also that the umbrellas were to have silver handles, whereas a large portion thereof had handles that were not detachable, and a considerable portion thereof had handles other than silver handles; that upon receipt of same, for the reasons above set forth, defendant declined to accept and pay for them, and notified the plaintiff that he held them subject to its order;' and thereafter, plaintiff having refused to receive same, defendant in error shipped them back to plaintiff, prepaying freight charges thereon. The case was tried before the court without the intervention of a jury, and judgment rendered in favor of defendant in error, from which this writ of error has been sued out.

The first assignment urges that the trial court erred in rendering judgment for plaintiff for the amount sued for. Defendant in error objects to a consideration of this assignment, on the ground that the same is vague and indefinite and not sufficiently specific, citing in support of that contention the following authorities: Yemen’s Sayles’ Rev. Civ. Stats, vol. 1, art. 1612; Rules of Practice, 67 S. W. xv; Brown v. Brown, 142 S. W. 23; Stephenville Oilmill Co. et al. v. McNeill, 67 Tex. Civ. App. 252, 122 S. W. 911; Jefferson Fire Ins. Co. v. Greenwood, 141 S. W. 319; Garrison et al. v. Ochiltree et al., 50 Tex. Civ. App. 397, 111 S. W. 445; Hess v. Webb, 103 Tex. 46, 123 S. W. 111; Citizens’ State Bank of Toyah v. O’Neal, 134 S. W. 1183; Willis v. Hatfield, 133 S. W. 929, and cases there cited. Notwithstanding the authorities seem to support the contention .of defendant in error, we are inclined in the present case to consider the assignment. Defendant in error testified that he ordered the goods in controversy from John C. Arthe in New Orleans in the latter part of September, 1912, .and they were to be shipped at once, so that they would reach him not later than November 1st, as it was understood at the, time that he wanted them for the holiday trade, but they did not reach him until the 14th of December, which he considered toó late, as he did not have time to make the proper display, so wrote plaintiff at once that he would not accept them; that he opened the boxes and found that some of the umbrellas were not of the kind ordered; that some. of the handles were not detachable; that he ordered only detachable handles, and some of them were old stock and with gold handles; that he did not order any gold handles; that as he did not get them in time for his trade, and as he could reach no agreement with plaintiff, he shipped them back; that he paid the freight on the goods both ways. The court found that plaintiff failed to comply with the contract of shipment, and failed to ship the umbrellas within the time agreed upon. There was a conflict in the testimony, plaintiff in error offering evidence showing that there was no agreement on their part to ship the goods so as to arrive on or about the 1st of November, as claimed by defendant in error, asserting that it was understood that they were to be made up and could be shipped so as to reach defendant in error in time for the holiday season. The court resolved this conflict in favor of defendant in error, and we see no reason to disturb his judgment. Defendant in error was, under the finding within his rights when he declined to receive the shipment, and notified plaintiff that he would hold the goods subject to its order, because of the delay in delivery and the failure of the goods to conform to those ordered. See Plotner & Stoddard v. Markham, 122 S. W. 444; Brantley v. Thomas, 22 Tex. 275, 73 Am. Dec. 264; Simkins on Contracts & Sales, 768, and authorities there cited; Story on Sales, § 138; 2 Parsons on Contracts, 789.

It is also urged on the part of plaintiff in error that the court improperly sustained defendant in error’s plea of limitation. The finding, however, being based on the ground of plaintiff in error’s failure to comply with the contract, the assignment finds no support in the record, and hence it is unnecessary to consider this question.

Finding no error in the proceedings of the trial court, its judgment is, in all respects, affirmed.

Affirmed.
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