author: MOURSUND, J.

text:
    J. H. W. STEELE CO. v. DOVER.
    (No. 5279.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 27, 1914.
    On Motion for Rehearing, Oct. 21, 1914. Rehearing Denied Nov. 18, 1914.)
    1. Appeal and Eeroe (§ 273)—Assignment op Eeeoe—Exception Below—Suppiciency.
    An exception complaining that an instruction on the duty of the master to exercise ordinary care to furnish a servant reasonably safe tools and appliances, and to keep them in a reasonably safe condition, “does not charge the law as applicable to the facts shown by the testimony in this case” is too general to sustain an assignment of error based thereon.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.]
    2. Appeal and Eeeoe (§ 232)—Assignment op Eeeoe—Exception to Instbtjctions.
    An assignment of error, complaining of an instruction on a ground not presented below, could not be considered on appeal.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dee. Dig. § 232.]
    3. Trial (§ 296)—Instructions—Construc-tion—“Simple Tool.’?
    In an employé’s action for injuries due to defective tongs an instruction placing on defendant the burden of inspecting the tongs, weighing 35 pounds, and used to lift rails weighing 900 pounds, from a ship, before furnishing them to employés, and of making such further inspection thereafter as would be required in the exercise of ordinary care, was not erroneous, especially where the question whether the tongs were a simple tool was submitted in another instruction, and it clearly appeared that the tongs were not a simple tool, as a matter of law'.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.

    For other definitions see Words and Phrases, Second Series, Simple Tool.]
    4. Master and Servant (§ 291)—Injuries to Servant—Failure to Inspect.
    Where, in a foreman’s action for injuries due to defective tongs used in unloading steel rails from a ship, there was evidence that an inspection made after the tongs had been in use would have disclosed the defect, it was not error to give an instruction authorizing- a recovery because of defendant’s failure to inspect the tongs, though they became defective while the work was being done.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]

      5. Teial (§ 296) — Instructions—Construction.
    In an action for injuries to a foreman due to defective tongs used in unloading steel rails from a ship, an instruction that plaintiff was chargeable with notice of such defects as “in the ordinary discharge of his duties must have come to his knowledge” was not objectionable as requiring actual knowledge, where the court further charged that he was chargeable with'notice of defects “which were obvious and open to him in the doing of his work, which ordinarily prudent persons would have learned under like circumstances.”
    [Ed. Note. — E'or other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    6. Appeal and Error (§ 263) — Assignment oe Error — Exception Below.
    An assignment of error complaining of an instruction not excepted to below, cannot be considered on appeal.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.]
    7. Master and Servant (§ 293) — Injuries to Servant — Refusal oe Instructions.
    In an employe’s action for injuries due to defective tongs used in unloading steel rails from a ship, an instruction calculated to mislead the jury into believing that plaintiff could not recover if the tongs became defective during the three days that the ship was being unloaded, being erroneous in that it ignored the question whether it was defendant’s duty in the exercise of ordinary care to inspect the tools during such time, was properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.]
    8. Trial (§ 260) — Right to Special Instructions.
    The defendant, in a negligence case, may demand a special charge grouping the specific facts on which he relies, although the court has made a general and abstractly correct presentation of such issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    9. Trial (§ 260) — Refusal oe Instructions Covered.
    In a foreman’s action for injuries due to defective tongs used in unloading steel rails from a ship, a requested instruction that plaintiff could not recover if he knew of the defects, or if a person of ordinary prudence could have discovered same, being covered by an instruction that plaintiff could not recover if the defects were known to him, or must necessarily have come to his knowledge, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    10. Appeal and Error (§ 1050) — Harmless Error — Admission oe Evidence.
    Error, if any, in admitting certain testimony over objection was harmless, where practically the same testimony was admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    On Motion for Rehearing.
    11. Appeal and Error (§ 274) — Exception to Instructions — Sufficiency.
    An exception complaining that an instruction that the plaintiff could not recover by reason of the defects in the tools furnished him, if, by ordinary care, he could have discovered the defects, but that he must be'held to have assumed the risks, was erroneous for failure to charge the law on “assumed risk as developed by the evidence, as fully appears from special charges requested by defendant,” was insufficient to present an objection that the court failed to more specifically instruct on plaintiff’s duty to inspect the tools, and on the issue of assumed risk.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. § 274.]
    12. Appeal and Error (§ 1171) — Decision on Appeal — Misconduct oe Jury — Excessive Recovery — Remittitur.
    Where it appears on appeal that the verdict though for the proper party, is excessive by reason of consideration given by the jury to matters improper to consider, the appellate court will reverse the judgment, unless a remittitur be entered in such amount as wül cúre the harm.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546 — 4554; Dec. Dig. § 1171.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by M. F. Dover against the J. H. W. Steele Company. From judgment for plaintiff, defendant appeals.
    Affirmed conditionally on rehearing.
    Baker, Botts, Parker & Garwood, of Houston, John D. Darrouzet, of Galveston, John T. Garrison, of Houston, and Terry, Cavin & Mills, of Galveston, for appellant. Barkley & Green, of Houston, and Marsene Johnson, of Galveston, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellee sued appellant to recover damages in t.he sum of $40,000 for injuries sustained on or about February 20, 1912, alleging that such injuries were proximately caused by negligence of appellant in furnishing defective tools to work with and an unsafe place to work, and in failing to inspect the tools with which plaintiff worked, and that while plaintiff, as foreman in charge of a gang of men, was unloading steel rails from a ship, the hooks or tongs that were used in unloading said rails were worn, and the handle sprung, and were weak, defective, and worn slick. Appellant answered by general denial, pleas of assumed risk, and contributory negligence. The ease went to trial on July 2, 1913, and resulted in a verdict and judgment for plaintiff for $20,000.

By the fifth assignment complaint is made of the following portion of the charge:

“It is the duty of the master to exercise ordinary care to furnish the servant reasonably safe tools and appliances with which to perform the duties assigned to him, and with which he is called upon to work. It is also the duty of the master to use ordinary care to see that such tools and appliances are kept in a reasonably safe condition. The servant has a right to rely upon the assumption that the tools and appliances with which he is called upon to work are reasonably safe, and he is not required to use ordinary care to see whether this has been done or not.” ' •

One objection made by appellant is that such charge imposes too great a burden upon tile master In that it requires of him the exercise of ordinary care to see that tools and appliances are kept in a reasonably safe condition, thus imposing upon the master the duty of inspection as to common tools and appliances. Another is that it instructs the jury that Dover, though a foreman or vice principal, was not under obligations to inspect any character of. tool furnished. Appellant excepted to the paragraph containing said portion of the charge, but only upon the ground that “it does not charge the law as applicable to the facts shown by the testimony in this case.” Such exception was entirely too general, and cannot be held sufficient to sustain an assignment of error based thereon. The assignment is therefore overruled.

The sixth assignment also complains of paragraph 3 of the charge on- the ground that a portion thereof is upon the weight of the evidence, and that it leaves it to the jury to determine what the master’s duties are. The charge was not excepted to upon the grounds urged, and therefore the assignment is overruled.

By the seventh assignment complaint is made of paragraph 10 of the charge. The first proposition reads as follows:

“This charge is erroneous in that it submits for the determination of the jury the question whether or not the tongs were generally defective, and not reasonably safe for the use in the manner and for the purpose for which they were designed or intended ; the plaintiff having pleaded specially that the defect in the tongs, if any, was by reason of the fact that the tongs 'were worn slick and the handle sprung.”

Appellant has not set out, in the statements under assignments questioning the correctness of the charge, the exceptions filed thereto in the lower court, upon which the assignments are respectively based. We have examined the exceptions contained in the transcript, but find none raising this objection, although three separate exceptions are directed at paragraph 10.

. The second proposition reads as follows:

“Said charge is erroneous in that it instructs the jury that it was the duty of appellant absolutely to furnish their foreman, appellee, with tongs that were reasonably safe, regardless of the fact that the tongs so furnished was a common tool; the fitness of same could be as readily ascertained by the appellee as by the appellant.”

This objection was presented by an exception to the charge, and therefore will be considered. The charge, in addition to other matters, required a finding that the defendant knew of the condition of the tongs, or by the exercise of ordinary care would have known thereof, before the injury, and failed to furnish . plaintiff with tongs that were reasonably safe for use in the service for which they were intended to be used. Such charge imposes the burden upon defendant of inspecting the tongs when first furnished to the employes, and making such further, inspection, while they were being used, as would bb required in the exercise of ordinary care. Appellant’s contention, as enunciated in'the above proposition, is that the tongs was a common tool, the fitness of which could be as readily ascertained by plaintiff as by defendant. But the question was submitted to the jury, in another paragraph of the charge, whether the tongs was a simple tool, and there can be no doubt that, under the authorities, it cannot be said, as a matter of law, that tongs weighing 35 pounds, and used for the purpose of clamping and holding steel rails, weighing about 900 i-pounds, while same are lifted from the hold of a ship and unloaded, is a simple tool which a man of ordinary prudence would not inspect as a precaution against injury to the servant. Pope v. Railway (Sup.) 155 S. W. 1175; Drake v. San Antonio & Aransas Pass Ry. Co., 99 Tex. 240, 89 S. W. 407; G., H. & S. A. Ry. v. Cherry, 44 Tex. Civ. App. 344, 98 S. W. 898'; St. Louis & S. W. Ry. v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 783; H. & T. C. Ry. v. Patrick, 50 Tex. Civ. App. 491, 109 S. W. 1100; Freeman v. Starr, 138 S. W. 1152; Buchanan & Gilder v. Blanchard, 127 S. W. 1153. We think, however, that, regardless of the charge directly submitting the issue whether the tongs was a simple tool, the charge attacked by this assignment was in itself strictly in accord with the decision in the Drake Case, above cited.

The third proposition is lengthy, and the latter portion seems to convey just the opposite meaning to that intended, but we construe it as a contention in substance that the charge is erroneous in permitting a recovery if the tongs became defective while the work was being done. The frequency of inspection required depends upon the nature of the tool and the purpose for which it is used, and the jury was authorized to find, from the evidence in this case, that an inspection should have been made after the tongs had been in use, and that such an inspection would have disclosed the defect. Jernigan v. Houston Ice & B. Co., 33 Tex. Civ. App. 501, 77 S. W. 260; Labatt, Master & Servant (2d Ed.) §§ 1056 and 1060.

The eighth assignment complains of the following portion' of the charge:

“If you believe from the evidence that the hooks or tongs attached to the rail that fell were worn siick, or the handles sprung, and were thereby defective and insufficient to hold such rail, and you further believe from the evidence that such defective condition, if any existed, was known to the plaintiff, or in the ordinary discharge of his duties must necessarily have come to his knowledge.”

In support of the' contention that said charge places too great a burden upon appellant, we are cited to the case of Industrial Cotton Oil Co. v. Lial, 164 S. W. 40, in which a similar charge was criticized by this court, in view of another trial; the case being reversed upon other grounds. In the case of Railway v. Adams, 121 S. W. 876, a similar charge was held not subject to the objection made in this case, and a writ of error was refused by the Supreme Court. It does not necessarily follow that the charge approved by the Supreme Court nor the holding that it did not place too great a burden upon the appellant, for we think the Supreme Court might well have refused the writ on the ground that the charge stated a correct proposition of law in directing a finding for defendant, if the jury found fhe facts mentioned, and therefore was not affirmatively erroneous. Parks v. Traction Co., 100 Tex. 224, 94 S. W. 331, 98 S. W. 1100; Railway v. Lester, 99 Tex. 220, 89 S. W. 752. We still think the expression, “Or in the ordinary discharge of his duties must necessarily have come to his knowledge,” is justly subject to criticism on the ground that such a finding would be equivalent to finding the existence of actual knowledge. The test is, not what knowledge the servant necessarily acquired, but that which an ordinarily prudent man, under like circumstances, would have acquired. In the case of Adams v. Railway, 101 Tex. 5, 102 S. W. 906, the court said:

“We think he does assume the risk of such defects as fall under his observation, and of such patent defects as a man of ordinary capacity and prudence would necessarily observe in them, and in using them to do his work.”

In the case of. Peck v. Peck, 99 Tex. 10, 87 S. W. 248, Justice Williams, after quoting from the Hannig Case, 91 Tex. 347, 43 S. W. 508, said:

“If this needed any elaboration, it was furnished by the reference to the cases cited in that opinion, from which is seen that a servant must be treated as having ‘necessarily acquired knowledge’ of those dangers, although arising' from the negligence of the master, which were obvious and open to him in the doing of his work, which, in other words, ordinarily prudent persons would have learned under like circumstances in rendering the same service.”

In the same case attention is called to the fact that charges are frequently so drawn as to “run the risk of misleading juries, on the one hand, into imposing upon the servant the duty of the master, or, on the other, into exempting the servant, in doing his work, from the observance of that care which every man is expected to use in looking out for his safety.” We think it would be better to state the rule accurately in the charge, by informing the jury that the servant’s responsibility is to be tested by what “ordinarily prudent persons would have learned under like circumstances in rendering the same services.” But, returning to the question presented by this assignment, our attention is directed to the fact that the language objected to by appellant is only a part of the charge on assumed risk. The charge reads further:

“Or which were obvious and open to him in the doing of his work, or which an ordinarily prudent person would have learned under like circumstances in rendering the same services.”

Thus it is seen that appellant firm received the benefit of a charge such as it now contends should have been given in lieu of the portion objected to. The assignment is overruled.

The ninth assignment, although presenting an error, must be overruled because the paragraph of the charge therein attacked was not excepted to upon the trial.

The tenth and fourteenth assignments are overruled for the reasons given in overruling the fifth assignment.

The eleventh assignment is overruled because the special charge requested by appellant submitted an issue covered by paragraph 12 of the charge.

The twelfth assignment is overruled. The special charge was apt to mislead the jury into believing that if the tongs became defective during the time the ship was being unloaded, viz., about three days, then plaintiff could not recover. Such a rule would leave out of considération the question whether, in the exercise of ordinary care, it was the duty .of appellant to inspect the tools at certain intervals during said time.

The thirteenth assignment is overruled.

The fifteenth and sixteenth assignments complain of the failure to give special charges, each of which would have submitted the issue of whether it was the duty of plaintiff to inspect the tools and appliances used in unloading the rails from the ship; the •facts relied upon by defendant to show a defense being grouped in each of said charges. Appellee does not contend that either of these special charges was erroneous, but answers by counter proposition to the effect that the issue was directly and pertinently submitted by the court. Paragraph 12 of the court’s charge reads as follows:

“If you believe from the evidence that the hooks or tongs attached to the rail that fell were worn slick, or the handles sprung, and were thereby defective and insufficient to hold such rails, and if you further believe from the evidence that such defective condition, if any existed, was known to the plaintiff, or in the ordinary discharge of his own duties must necessarily have come to his own knowledge, or which were obvious and open to him In the doing of his work, or which an ordinarily prudent person would have learned under like circumstances in rendering the same services, or if you believe from the evidence that, under the terms and nature of plaintiff’s employment, it was his duty to inspect the tools and appliances with which he is called upon to work, and if you believe from the evidence that if plaintiff, in the exercise of ordinary care, could have discovered the defect, if any, alleged by plaintiff in said hooks or tongs, and as hereinbefore submitted, then, in such event, the plaintiff will be held to have assumed the risk, and your verdict must be for the defendant.”

The matter of duty to inspect is also mentioned in an abstract charge on the respective duties of master and servant; the statement being there made that the .servant does not assume the risk arising from the failure of the master to do his duty, unless, by the terms and nature of the servant’s employment, it is made the duty of such servant to inspect the tools with which he is called up an to work. It is well settled that the defendant lias the right to demand the giving of a special charge grouping the specific facts upon which he relies for a verdict in his favor, and that a general presentation of such issues by the court in the face of such a special charge, although abstractly correct, will not suffice. Southern Construction Co. v. Hinkle, 89 S. W. 809; Railway v. Mc-Glamory, 89 Tex. 685, 35 S. W. 1058; Railway v. Mangham, 95 Tex. 413, 67 S. W. 765. As there was direct evidence pro and con on the issue whether it was plaintiff’s duty to inspect, appellant contends that the charge given by the court, above copied, did not submit the real issue; that it only submitted the issue whether, under the terms and nature of plaintiff’s employment, it was his duty to inspect; and that there was no evidence with regard to the terms of his employment. In order to find for defendant under the court’s charge, the jury must find that under the terms of plaintiff’s employment, and on account of the nature thereof, it was his duty to inspect the tools, and that, in the exercise of ordinary care, plaintiff could have discovered the defect alleged by him to have existed. The charge is rather involved and does not present clearly and fairly the defense urged by defendant. We therefore conclude that one of the special charges, preferably No. 10, should have been given. Assignments 15 and 16 are sustained.

We are of the opinion that the issue sought to be submitted by means of special charge No. 12 was submitted by the court, and therefore assignment No. 17 is overruled. While the special ^charge is long, the gist of it is that plaintiff cannot recover if he knew of the defects in the tongs, or if a person of ordinary prudence would have discovered the same. Both of these matters are covered in paragraph 12, above copied.

The eighteenth and nineteenth assignments are overruled. We do not think there was any error in permitting the Questions, as it was a material inquiry whether the defects in the tongs pleaded by plaintiff would cause a rail to slip out, nor do we think the answers went outside of the defects alleged by plaintiff, and it further appears that practically the same testimony was admitted without objection.

Appellant, by several assignments of error, complains of misconduct of the jury. The assignment with respect to the discussion of the amount to be paid by plaintiff to his attorneys presents a very close question, and we are inclined to the view that the court should have granted a new trial upon the showing made; but, in view of the fact that the questions presented are such that they cannot arise in the same form upon another trial, we will not discuss the evidence relating thereto or pass upon said assignments of error.

Assignments 20 and 21 are overruled. In view of another trial, we will forego a discussion of the facts, and will not consider assignment No. 23, wherein the judgment is claimed to be excessive.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Our attention is called to the fact that the only exception made by appellant to paragraph 12 of the charge was as follows:

“Defendant excepts to paragraph 12 for the reason that the same does not charge the law raising the issue of assumed risk as developed by the evidence, as fully appears from special charges requested by defendant upon the issue.”

It is contended that this exception fails to point out the defects to the charge criticized in our opinion, and therefore such defects were waived; hence that the court was not required to give either of the special charges, the refusal to give which is set up as error in assignments 15 and 16, which were sustained by us. In this connection, it further appears that, in excepting to the failure to give the special charges, no reasons are set out which would have apprised the court of appellant’s theory concerning the general charge. We conclude that the objections stated by us to the general charge should have been named in the exception thereto, and, - not having been mentioned, were waived, and, that being the case, the court could see no necessity for giving, a' special charge on assumed risk. Having prepared a charge which was only excepted to in general terms, and being left to compare it with the special charges to ascertain if in fact it was defective, he cannot be held to have erred for failing to note and correct the defects, or for refusing to give special charges which might be regarded as unduly emphasizing the defense of assumed risk.

This conclusion makes it necessary for us to decide whether there was misconduct of the jury such as requires a reversal of this case. The juror Reifel testified, and it is not contradicted, that he and Cohen were about the only jurors who were in favor of a very low amount; that it was discussed in the jury room that the |attomeys had a contract with the plaintiff and would get half of the amount of the verdict; that a few of them thought the attorneys had a contract with the man, and “they thought they would give the man enough to satisfy him; they thought the attorneys would get about half.” This juror’s testimony is not very satisfactory; in fact, it appears that he was very unwilling, or else did not understand the questions asked him. On cross-examination, being asked whether he considered any evidence at all except that admitted by the judge, he answered that he did not. Cohen was asked to state whether there was “any statement and consideration made by the jury as to the amount of attorneys’ fees or if any amount awarded would have to be paid to the attorneys, to which he replied: “Xes, sir; there was.” Being asked to state what it was, he said: “Well, several jurors remarked that probably he would have to give half of it to the lawyers, and the reason for giving him so much was on that account.” He was then asked:' “On that account?” To which he replied: “Tes, sir.” On cross-examination he testified that the jurors making the statements were just stating their opinions, and did not purport to state facts they knew. He also testified that he took an oath introduced upon the trial of the cause, and nothing influenced him, except the judge’s charge and the evidence. While the juror, upon cross-examination, made the general statement that he observed his oath, which was natural, his testimony shows clearly that he was influenced by the belief that the attorneys would get half. He was one of those in favor of a very low amount; he says the reason for giving plaintiff so much was on account of such belief. Many jurors do not realize the impropriety of taking such matters into consideration, and, after doing so, do not realize that they have not tried the case upon the evidence admitted by the court. This fact makes it difficult to get a trial such as the law contemplates; hence the appellate courts have been very reluctant to deprive plaintiff of his verdict, unless it clearly appears that the amount was influenced by the discussion and consideration of'improper matters. But when it clearly appears that matters have been considered and given weight, which, if permitted to be proved upon the trial, over objection by the other party, would reverse the case, regardless of any proof that they were giv.en weight by the jury, there remains no alternative, except to hold that a material error has occurred. The conviction forces itself upon our minds, upon reading the testimony of these jurors, and the others, that the matter of attorneys’ fees was considered by these two at least in arriving, at the amount of the verdict, and that the consideration thereof caused them to agree upon the large amount awarded in this case. As was said by Chief Justice Ely in the case of Traction Co. v. Casanova, 154 S. W. 1190, in speaking of denials by jurors of being influenced by discussions of the character indulged in:

“We see no particular force in such denial, because the influence of such discussions is so subtle, and appeals to human nature so strongly, that the influence might, in some instances, be exerted without the juror being aware of it.”

In this case Cohen admits that he took the probable attorneys’ fees into consideration, and also that, on account thereof, they gave plaintiff so much. By the side of these admissions, his conclusion, perhaps .in answer to a leading question, that he was influenced only by the evidence and charge of the court pales into significance. Our conviction from the testimony being that the misconduct of the jury was material, and that it affected the amount of the recovery, it becomes our plain duty to reverse the judgment, unless a remittitur be entered in such an amount as wall cure the harm done to appellant by such misconduct.

The first assignment of error is sustained; all others are overruled.

The motion for rehearing is granted, and the judgment heretofore entered by us in this case is set aside. The judgment of the district court will be affirmed, provided a remittitur of one-half of the amount of such judgment is filed within 20 days; otherwise it will be reversed and the cause remanded.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    STATE ex rel. CAVANAUGH et al. v. NELSON et al.
    (No. 726.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1914.)
    1. Quo Warranto (§ 62) — Nature or Proceeding — Appeal—Right to Appeal.
    Though quo warranto to determine the validity of the incorporation of a municipality may be prosecuted by the Attorney General, district or county attorney of the proper county or district, either of his own volition or at the instance of a private relator, an appeal from an adverse judgment by such private relator in which the state did not join as a party was unsustainable.
    [Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 73; Dec. Dig. § 62.]
    2. Quo Warranto (§ 62) — Appeal—Transcript — Filing—Time.
    Court of Civil Appeals rule 7 (142 S. W. x) provides that transcripts and appeals from judgments in quo warranto shall be filed in the Court of Civil Appeals within 20 days after the appeal is perfected. Seld, that a compliance with such rule was jurisdictional, and that a failure to file the transcript within the time specified could not be excused for the mistake, inadvertence, or oversight of the attorneys for both sides and the district judge, all of whom believed that appellants, after perfecting the appeal, had until the convening of the next term of the Court of Civil Appeals, it not being then in session, in which to file the record, and appellants being for that reason granted 40 days in which to do so.
    [Ed. Note. — For other cases, see Quo Warran-to, Cent. Dig. § 73; Dec. Dig-. § 62.]
    Appeal from District Court, Armstrong County; J. N. Browning, Judge.
    Action by the State, on relation of Jerry Cavanaugh and others, against A. V. Nelson and others. From a judgment in favor of defendants, relators appeal.
    On motion to dismiss. Granted.
    W. R. Gibson, of Claude, and John W. Veale, of Amarillo, for appellants. W. A. Wilson and J. S. Stallings, both of Claude, and Gustavus & Jackson, of Amarillo, for ap-pellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

This is a quo warranto proceeding to test the validity of the incorporation of the city of Claude. Appellees have filed a motion to dismiss the appeal upon two grounds: (1) Because the state of Texas 'is not a party to the appeal; and (2) because neither the transcript nor statement of facts were filed in this court within the 20 days prescribed by rule 7 for the Courts, of Civil Appeals (142 S. W. x). The judgment of the court, overruling the motion for new trial, ends with the following language:

“To which order and judgment of the court the relators then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals, etc. It is further ordered that relators have 40 days in which to make up and file their statement of facts and bills of exception herein.”

The state of Texas gave no notice of appeal, and we think the first ground in the motion is well taken. The appeal bond, filed by relators, recites that Jerry Cavanaugh, M. L. Smith, and H. S. Dye, as principals, acknowledge themselves bound to pay to the city of Claude, etc., but the state of Texas is not named in it as a party to the appeal.

This being an action to determine the validity of the incorporation of a municipality, it is a quo warranto proceeding of a public nature.

“The right to file an information in the nature of a quo warranto belongs to the state,_ and the institution of the action is a matter within the discretion of the Attorney General, and the attorney or other authorized state olficer must institute quo warranto proceedings for the redress of injuries to the public right.” 32 Cyc. 1432.
“The nature of proceedings by quo warranto proceedings at common law was such that the sovereign was necessarily plaintiff, and the general rule still is that quo warranto proceedings must be carried on in the name of the state or the people.” Id. 1440.
“The purpose of the quo warranto proceedings often determines who may apply for the writ. The general rule is that, where the remedy is sought for a public wrong, proceedings should be instituted by and upon the relation of the Attorney General.” Id. 1443.
“In proceedings against a municipal corporation to test the validity of its organization or to arrest a usurpation of corporate powers, a private citizen cannot, as a general rule, file the information; but it has been hold that, if the suit is in fact conducted by the proper officer, it is no objection that a private person is named as relator.” Id. 1444.

By force of the statute in this state the Attorney General, district or county attorney of the proper county or district, either of his own accord or at the instance of any individual relator, has the right to ask leave to file an information and to present the petition in a case of this character, but the proceedings is nevertheless one which must be conducted in the name of the state of Texas, and in which the attorneys representing the state have the right to control the litigation. Matthews v. State, 82 Tex. 577, 18 S. W. 711.

32 Gyc. p. 1466, announces the rule that, if the action be to dissolve a corporation, a private relator cannot appeal from a judgment in favor of the corporation, citing State v. Douglas County Road Co., 10 Or. 198.

In Churchill et al. v. Walker et al., 68 Ga. 681, which was an action to try the title to an office, Speer, Justice, said:

“As to the motion to dismiss this writ of error because the state is not a party to the same, we have to say that we think, as the information is filed by the solicitor general as the officer of the state in the Eastern judicial circuit, and for the state, and could be filed in no other name but that of. the state, we cannot say that the state was not a necessary party here. It is not a party, because its officer does not sign the bill of exceptions for the state, nor do other counsel as representatives of the state.”

However, Judge Speer proceeded to dispose of the case on its merits. In our opinion this cannot be done in the instant case, since the state is a necessary party to the appeal, and the matter is jurisdictional. .

With reference to the second ground, we think that is also jurisdictional. In C. B. Livestock Co. v. Parrish, 127 S. W. 854, Speer, Justice, quoting laws of 1907, c. 107, § 2, as amended by General Laws of 1909 (1st Ex. Sess.) c. 34, § 2 (which provides that any party to a suit, wherein a temporary injunction may be granted, refused, or dissolved, may appeal from the order, provided the transcript in such case shall be filed with the clerk of the Court of Appeals not later than 15 days after entry of such order), held that, on account of the particular language of the statute, the time of filing the transcript in such cases was jurisdictional, and the failure to so file it could be waived by the parties, so as to give the appellate court jurisdiction.

In White v. Rowlett, 12 Tex. Civ. App. 378, 34 S. W. 151, Garrett, Justice, dismissed an appeal in a quo warranto proceedings, basing his ruling upon Court of Appeals rule No. 7, which provides that transcripts in appeals from judgments in proceedings in quo warranto shall be filed in the Court of Civil Appeals within 20 days after appeal is perfected.

Judge Speer in the Livestock Co. v. Parrish Case said:

“Ordinarily an appeal is perfected, and the jurisdiction of this court attaches on the filing of the appeal bond, and that may be and doubtless is true under our present statute, in cases of appeal from interlocutory orders in injunction cases. It is further ordinarily true that the failure to file a transcript within the statutory time is not jurisdictional, but may be waived. The reason for this is that the Legislature evidently so intended, as witness the language of article 1015, Sayles’ Annotated Civil Statutes 1897 (R. S. 1911, art. 1608): ‘.The appellant or plaintiff in error shall file a transcript with the clerk of the Court of Civil Appeals within ninety days from the perfecting of the appeal or service of the writ of error: Provided, that for good cause the court may permit the transcript to be filed thereafter upon such terms as it may prescribe.’ Prior to the act of 1907, appeals were not allowed from interlocutory orders in injunction cases. By that act, as amended, * * * it is provided: ‘Any party or parties to any .civil suit wherein a temporary injunction may be granted, refused or dissolved under any of the provisions of this title in term time or in vacation, may appeal from the order of judgment granting, refusing or dissolving such injunction to the Court of OM1 Appeals having jurisdiction of the case, but such appeal shall not have the effect to suspend the enforcement of the order appealed from, unless it shall be so ordered by the court or judge who enters the order: Provided, the transcript in such cases shall be filed with the clerk of the Court of Civil Appeals not later than fifteen days after the entry of the record of such order or judgment granting, refusing or dissolving such injunction.’ * * * In view of the emphatic language above quoted as to the time of filing the transcript and the evident purpose of the Legislature that such appeal should in no event be Jong delayed, we think it quite clear that we have no discretion to permit the filing of the transcript after the time provided by law has elapsed. If we could for good cause extend the time one week, we might do so for any number of weeks, and thus not only delay the hearing of such appeal, but probably do so beyond the time when the case proper would be heard on its merits in the trial court, whereas the appeal, to be of any value to either party, should be determined before the case is reached for trial below. While this consideration, of course, is in no manner jurisdictional within itself, it at least affords a reason, if one were needed, why the Legislature provided that the transcript on appeal from an interlocutory order should not be filed in this court after 15 days from the date of the order appealed from.”

As explaining the action of the Supreme Court in limiting the time of the transcript in quo warranto proceedings in this court to 20 days, this language of article 6401, Vernon’s Sayles’ Civil Statutes, is pertinent:

“ * * * And in cases of appeal to which either party may be entitled the said court shall give preference to such cases and hear and determine the same at the earliest day practicable; and all such appeals shall be prosecuted to the term of the court in session or the first term to be held, if not in session after judgment has been rendered in the district court.”

Article 1638 provides that the petition for quo warranto may be presented in the first instance to the district court of the proper county in vacation for leave to ■ file the information.

Before the promulgation of rule 7 for the Courts of Civil Appeals, the Supreme Court, passing upon the statute with reference to quo warranto proceedings, said it was the intention of the Legislature that this character of action should be speedily disposed of, and held appellants to strict compliance with the requirements of such statute. I. & G. N. Ry. Co. v. State, 75 Tex. 356, 12 S. W. 685; Livingston v. State, 70 Tex. 393, 11 S. W. 115. As an excuse for not filing the record in this court within the required time, appellant’s counsel state, in their reply to the motion to dismiss, that, at the time notice of appeal was given in the trial court, the matter of the time of filing the record in this court was discussed by the court and counsel, and it was determined that a proper construction of the statute governing such matter was that said appeal was perfected by giving notice of appeal, and that appellants had until the convening of the Court of Civil Appeals (it not being then in session) to file their record, which was 44 days from the date of said notice, and that an order was accordingly entered granting appellants 40 days in which to file the record in this court; that within a day or two one of appellant’s attorneys visited the office of the district clerk for the purpose of ordering the transcript, and was informed by said clerk that he could not make up or deliver the transcript until an appeal bond had been executed and filed by the relators, and that he had been so advised and instructed by the district judge; that in view of the instructions of the district judge, they were misled into believing that they had 20 days from the adjournment of said court in which to file said bond, and that they had 20 days from the date of the filing of the bond in which to file the record. It is further stated in the reply to the motion to dismiss that rule 7 was not complied with purely because of an oversight by all parties concerned in the discussion. In our opinion, no sufficient excuse is shown for failure of appellant to file the record in this court. The fact that the attorneys for both sides, and even the district judge,, had overlooked the provisions of rule 7, and that appellants were misled by the district judge, could not be held as grounds for overruling this motion. Mistake, inadvertence, and oversight are rarely ever held as sufficient ground for granting relief under such circumstances. Parker v. Britton, 133 Mo. App. 270,113 S. W. 259; Drinkard v. Ingram, 21 Tex. 650, 73 Am. Dec. 250. The refusal of the clerk to prepare the transcript might have been remedied by a mandamus proceeding. In fact, the record discloses that no application was made for a transcript until September 10th, and no application was made to the official reporter for the statement of facts until September 15th, which was after the expiration of 20 days allowed by rule 7 for filing the record in this court. It would be a dangerous precedent to hold that the excuse presented here is a valid one.

The motion to dismiss is sustained. Dismissed.


author: WALTHALL, J.

text:
    WARD et al. v. CAPLES et al.
    (No. 410.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 5, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Wills (§ 616) — Construction—Interest or Devisee oe Legatee — '“Remainder.”
    A will gave the residue of the estate to the wife for life, with remainder to the testator’s children. It provided that the property should be managed by the wife during her life, and that, if she deemed it to the best interest of the estate, she might, with the written consent of a majority of the children of age oi married, sell or incumber any part thereof, and on the death of the wife all of the estate should be divided equally between the children, the descendants of any deceased child to have that portion to which their ancestor, if living, would have been entitled. Held, that the will created a “remainder” in the children, which is what is left of an entire estate in lands after a preceding part of the same estate has been disposed of, whose regular termination the remainder must await.
    [Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 1418-1430; Dec. Dig. § 616.

    For other definitions, see Words and Phrases, First and Second Series, Remainder.]
    2. Wills (§ 634) — Construction—Interest op Devisee or Legatee — "Vested Remainder” — “Contingent Remainder.”
    Under such will a child took a present fixed right of future enjoyment, and therefore had a “vested remainder,” as distinguished from a “contingent remainder," which arises when it is uncertain whether a use or estate limited in futuro will ever vest; it being the present capacity of taking effect in possession which distinguishes a vested from a contingent remainder.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.

    For other definitions, see Words and Phrases, First and Second Series, Contingent Remainder; Vested Remainder.].
    3. Execution (§ 45) — Interests Subject to Execution — Vested Remainder apteb Life Estate with Power to Sell.
    The interest of a child in land constituting a part of the residuary estate was subject to execution, though the rights of the execution creditor or purchaser could not go beyond the rights of such child, as, to render property subject to levy and sale, it is only necessary that it be owned by the execution debtor at the time of the levy.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 141, 142; Dec. Dig. § 45.]
    4. Execution (§ 41) — Property Subject to —“Trust.”
    The will created no trust relation with respect to the residuary estate which would prevent a sale of the interest of a child under execution, as a “trust” is an obligation in which the person holding the legal title is bound in equity to hold for the benefit of another, and the wife did not hold for any of the children, and was not charged with any duty to them in the management of the real property, but was sole ow'ner of the rents and revenues during her lifetime, while each of the children held a separate estate given in his or her own right.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 49, 89-94; Dec. Dig. § 41.

    For other definitions, see Words and Phrases, First and Second Series, Trust.]
    5. Execution (§ 171) — Enjoining Execution-Creating Cloud on Title.
    A sale of the interest of a child under execution could not he enjoined, on the ground that such sale would cast a cloud on the title of the wife or the other children, as, the will being of record, such sale would cast no cloud on their title.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 794, 795, 813, 825; Dec. Dig. § 171.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Suit by Margaret A. Capíes and others against T. W. Ward and others. From an order granting a temporary injunction, defendants appeal.
    Reversed, temporary injunction dissolved, and cause remanded.
    J. G. McGrady, of El Paso, for appellants. Stanton & Weeks and W. D. Howe, all of El Paso, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WALTHALL, J.

This suit was instituted in the district court of El Paso county, Tex., Thirty-Fourth judicial district, by petition filed on the 3d day of October, 1914, by Margaret A. Capíes, in her individual capacity, as surviving wife of Richard Capíes, deceased, and as independent executrix of the estate of Richard Capíes, deceased, joined by Edward T. Capíes, William J. Capíes, and Richard Capíes, Jr., as plaintiffs, against T. W. Ward, J. J. McGrady, and Peyton J. Edwards, sheriff of El Paso county, as defendants. The petition was sworn to by Mrs. Margaret' A. Capíes, and in the first count alleges in substance these facts:

That on the 10th day of March, 1909, Richard Capíes, who resided in the city and county of El Paso, Tex., executed with due formality a will, disposing of his property as therein set forth, the relevant parts of which will read as follows:

“Fifth: All the rest and residue of my estate, real, personal and mixed, consisting of my half of the community property of myself and my said wife, Margaret Ann Oaples, and such separate estate, if any, of which I may die seized or possessed, or to which I may be entitled, wheresoever the same may be situated, I give and bequeath to my beloved wife, Margaret Ann Capíes, for the term of her natural life, with remainder over upon her death to our five children, Edward Thomas Capíes, Joseph Ca-píes, William Capíes, Richard Capíes, Jr., and Margaret Capíes, share and share alike.
“Sixth: It is my will and desire that my said property shall be managed by my wife during her life, as it has been heretofore controlled by me, as nearly as may be. Should my said wife deem it to the best interest of my said estate that any portion of same should be sold, alienated, conveyed, mortgaged or incumbered, it is my will and desire that she, with the written consent of a majority of our said children, then living, who are of age or married, shall have full power to sell, alienate, convey, mortgage or incumber such part of same as in her judgment and that of the said majority of said children as seem proper and to the best interest of my said estate.
“Seventh: It is my desire that upon the death of my said wife and the termination of the life estate hereby created, that all of my estate, consisting of my half of the community property of myself and my said wife, real and personal, of whatever character, as well as all separate property of whatever character, if any, and wheresoever, of which I may die possessed or be entitled to, or which may have accrued to my estate, shall be divided equally between all of my above named five children then living or their descendants, share and share alike; that is, to say, such descendants of any deceased child shall have that portion to which their ancestor, if living, would have been entitled to.”

The petition further states that Richard Oaples died on the 12th day of July, 1911; that said will was duly probated and admitted to record on the 5th day of September, 1911, and that Mrs. Margaret A. Oaples qualified as executrix; that letters testamentary were issued to her, the order conferring upon her the power and authority over the estate provided for in the will, constituting her executrix and trustee therein; that the estate was duly appraised, and inventory, appraisement, and list of claims were filed and approved in September, 1911; that said appraisers returned as a part of the estate and community property of Richard Capíes and his surviving wife each of the parcels of land set forth in the petition; that Mrs. Capíes, as' executrix and trustee, took possession of all the properties of the estate under the terms of the will and proceeded to carry out its provisions, and that she is at the present time acting as executrix and trustee thereunder.

The petition further alleges that on the 28th day of March, 1914, in cause No. 8972, E. W. Ward, as plaintiff, recovered a judgment against J. A. Capíes, as defendant, in the district court of El Paso county, for the sum of §3,389 and costs of suit, amounting to the sum .of $23.30 and interest at the rate of 6 per cent, per annum from date of judgment; that on the 6th day of April Ward made an assignment of said judgment to said J. J. McGrady, which was noted on the minutes and records ■ of said court; that on the 14th day of September, 1914, the said McGrady caused the clerk of said court to issue a writ of execution upon the judgment against J. A. Capíes, which, by the sheriff, Peyton J. Edwards, was levied upon all of the right, title, interest, and claim of J. A. Capíes (designated as one-tenth undivided interest, subject to the life estate of Margaret A. Capíes, during her life) in and to the real estate described in making the levy, and embracing in the levy all of the real estate of the estate of Richard Ca-píes, deceased, as shown by the inventory of said estate filed. The petition alleges in detail the terms of the will and attaches a copy. It alleges that all of the children named in the will are now living, and that there are now living two grandchildren of said. Richard Capíes; that Margaret Capíes, one of the children, is a minor, and that a majority of those who were to join in any transfer of any part of the real estate of said estate are parties plaintiff, and in fact all, except the defendant in execution, J. A. Capíes. The petition alleges that the estate will suffer irreparable loss and damage in the event of a sale under the execution, and states reasons why the petition for injunction was not sooner filed.

The petition, in a second count, in addition to a description of the property levied on, states the market value of the property to be $598,500, and that the interest levied on is of the market value of $59,850.

Temporary injunction was granted, as prayed for, bond fixed and given, and the writ of injunction served. This appeal is taken from the order of the district judge, made in chambers, granting to appellees the temporary injunction restraining the sale under the execution of the interest of Joseph A. Capíes, defendant in execution.

Appellants present the following assignment of error:

“The judge erred in granting to plaintiffs the temporary injunction on October 3, 1914, in this case, because their petition is insufficient in law to entitle them to any such injunction.”

Under said assignment appellants present their first proposition:

“Richard Capíes having died, leaving a will by which he gave his widow a life estate in his lands, coupled with a power of sale, with remainder in fee to his five children named, equally, the interest of Joseph Capíes, one of the children named, is subject to execution, even though such remainder be subject to a condition subsequent.”.

It is not suggested that the judgment debt- or has any interest in the property levied upon, other than such as he took under the will. The contention of appellees is: (1) that Joseph A. Capíes took no such interest under the will as was subject to execution;

(2) that sale under the execution would destroy the trust provided for in the will;

(3) that the sale of the interest of Joseph A. Capíes under the execution would cast a cloud upon the title of Mrs. Margaret A. Capíes, as life tenant and trustee under the will; (4) that the trust estate in Mrs. Capíes under the will is contingent and uncertain in its character, and to the extent that no definite interest in the estate is in the defendant debtor, Joseph A. Capíes.

It will be seen from the contentions of appellants and appellees to the granting of the injunction that possibly three questions are presented:

Eirst. Is the interest of Joseph A. Capíes in the property levied on subject to execution?

Second. Would the sale under execution cast a cloud upon the title of Mrs. Capíes as life tenant and trustee under the will?

Third. Would a sale under the execution destroy the trust provided for in the will? What kind of interest does the will give to the defendant in execution?

After directing the payment of debts, the will provides for and designates a specific trust to be performed by Margaret A. Capíes in reference to the graves of relatives, and directs that she, in her will or otherwise, provide for trustees to execute the trust after her death. The will then contains paragraph 5, quoted above, in which the testator gives and bequeaths to Margaret A. Capíes all the rest and residue of his real estate for the term of her natural life, with remainder over upon her death to the five children named, including the defendant in execution, share and share alike. The sixth paragraph of the will quoted provides “that my said property shall be managed by my wife during her life.” Then in the same paragraph it is provided that, “should my said wife deem it. to the best interest of my said estate that any portion of same should be sold, alienated, conveyed, mortgaged or incumbered,” with the written consent of a majority of the said children then living, she “shall have full power,” to do so.

The Fourth Court of Civil Appeals of this state, speaking through Associate Justice Neill, defines a remainder to he:

“What is left of an entire estate in lands after a preceding part of the same estate has been disposed of, whose regular termination the remainder must await.” Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584.

It is not claimed in the petition for injunction that the specific trust to be performed by Mrs. Capíes in reference to the graves of relatives so depletes the estate as to make it necessary or uncertain as to whether any part of the real estate devised would be used in performing the trust. The petition shows a present large value of the real estate. We find present all of the essential characteristics of a remainder, that is, a precedent particular estate after the execution of the specific trust, the creation of the remainder by the same conveyance, at the same time as a particular estate; it vests in right during the continuance of the particular estate, and there is no limitation on the remainder, after the fee simple. There is a remainder, and the defendant in execution is a remainderman, under the terms of the will.

The first question to be determined is whether the remainder is vested in the defendant in execution by the terms of the will, or does such interest remain in contingency? What are the characteristics which distinguish the one from the other? Chief Justice Hemphill, in Bufford v. Holliman, 10 Tex. 571, 60 Am. Dec. 223, defines a vested right to be:

“An immediate right of present enjoyment, or a present fixed right of future enjoyment.”

Illustrating the definition given, the learned Chief Justice in the same case says:

“A grant of an estate to A. for life, and after his death to B., * * * is a fixed right of future enjoyment in B., and is, consequently, a vested remainder.”

It is a fixed interest, to take effect in possession after the particular estate of the life tenant is terminated by death. In the same case the court cites with approval 4 Kent, 202, where it was held that a devisee of real estate for life, and after his death to three others, or to the survivor or survivors of them, their heirs, and forever, the remain-derman took a vested interest at the death of the testator. It is the present capacity of taking effect in possession which distinguishes a vested from a contingent remainder. If it be uncertain whether a use or estate, limited in futuro, will ever vest, such use or estate is a contingent remainder. The bequest in the will quoted gives to Mrs. Capíes “an immediate right of present enjoyment” of the real estate of the testator. It would not be claimed that Mrs. Capíes did not take “an immediate right of present enjoyment” in and to the entire estate upon the death of the testator. Applying the above definition of a vested interest, it seems to us equally clear that the five children named, all now living, “took a present fixed right of future enjoyment” in the estate upon the death of the testator. In the case quoted (Bufford v. Holliman) the court held that the provision in the will that the property is to become the property of the remainderman after the death of the life tenant did not hold it in contingency, but was a vested interest immediately on the death of the testator. We have found no case that changes or qualifies the law as expressed by the Supreme Court in the case above referred to, but find a number of cases referring to it with approval. We therefore hold that the defendant in execution, on the death of Bichard Capíes, took a present fixed right of future enjoyment — that is, a vested remainder as distinguished from a contingent remainder — in the property of the estate.

Was the interest of Joseph A. Capíes subject to execution at the time of the levy? All that is required in this state to render property of the debtor subject to levy and sale is that it must be owned by the execution debtor at the time of the levy. Of course, the rights of the execution creditor or the purchaser under the sale cannot go beyond the rights of the defendant debtor. The above has been the rule always in this state, and we need not refer to cases supporting the view expressed. If we are right in our construction of the will that the defendant in execution under the will has a present vested interest in the real estate levied on, it follows that it is subject to levy and sale, unless that by so doing it prevents the execution of some trust expressed in the will, or that a sale under the execution would cast a cloud on the title of some one or more of the appellees. The petition shows neither. It does state that Mrs. Capíes is trustee. A trust is an obligation in which the person holding the legal title is bound in equity to hold for the benefit of another. Mrs. Capíes has the legal title during her lifetime, and is made the manager of the property, but is not holding for any of the children, nor is she charged by the will with any duty to the defendant in execution in the management of the real property. She is the sole owner of the rents and revenues of all the property during her lifetime. Each of the five children named holds the separate interest given under the terms of the will in his and her own right. We see nothing in the will that creates in Mrs. Capíes a trust relation that would prevent a levy and sale of the interest of the defendant in execution. Would a sale under execution cast a cloud on the title of any of the appellees? The rights of the petitioners in the properties levied on are expressed in the will, and the will is of record. A salei under execution would not cast a cloud upon the title of any one of them. We are of the opinion that it was error to grant the temporary injunction.

The case is reversed, the temporary injunction is dissolved, and the cause remanded.


author: McMEANS, J.

text:
    CENTRAL BANK & TRUST CO. OF HOUSTON v. WIESS et al.
    (No. 6603.)

    (Court of Civil Appeals of Texas. Galveston.
    April 21, 1914.
    Rehearing Denied Nov. 12, 1914.)
    1. Contracts (§ 92) — Validity—Insanity-Capacity to Prosecute Business.
    When an issue of insanity arises collaterally, on the determination of the quality of the party’s civil act as valid or invalid, the question is whether, by reason of mental disease, the party was unable to comprehend the nature of the act, its relations, effect, and legal consequences ; it not being necessary, to entitle one to avoid his contracts on the ground of insanity, that his incapacity be so great as to dethrone his reason, or to amount to entire want of reason, but it is sufficient if he is so insane as to be incapable of understanding the subject of the contract, its nature and probable consequences.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. M 411-414, 1153, 1155; Dec. Dig. § 92.]
    2. Executors and Administrators (§ 221)— Indorsement oe Note — Insanity oe In-dorser-Evidence.
    In an action to establish a note as a claim against the estate of an indorser, evidence held to require a finding, as a matter of law, that the indorser had sufficient mental capacity at the time he indorsed the note to bind himself by his contract of indorsement.
    [Ed. Note'. — Por other cases, see Executors and Administrators, Cent. Dig. §§ 901-903%, 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. § 221.]
    Error to District Court, Jefferson County; John M. Conley, Judge.
    Action by the Central Bank & Trust Company of Houston against Byron Wiess and others, as administrators of Mark Wiess, deceased. Judgment for defendants, and plaintiff brings error.
    Reversed and rendered.
    C. R. Wharton, of Houston, and L. B, High-tower, of Beaumont, for plaintiff in error. Barry & Burges, of Beaumont, and Carlton, Townes & Townes, of Houston, for defendants in error.

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Application for writ of error pending in Supreme Court.

   McMEANS, J.

Plaintiff, Central Bank & Trust Company of Houston, brought.this suit Upon a promissory note for $10,000, executed by William A. Grant to plaintiff, dated December 28, 1909, bearing interest from maturity at the rate of 8 per cent, per an-num, and providing for 10 per cent, as attorney’s fees, and alleging that the note was guaranteed by Mark Wiess. Mark Wiess died before the filing of the suit. The note as a claim against his estate had been presented to the administrators, Byron Wiess and Tom Andrus, who refused to allow the claim, and thereafterwards this suit was filed. No judgment was sought against Grant; it being alleged that he is actually and notoriously insolvent.

The administrators resisted the suit on the allegations that the deceased, Mark Wiess, at the time of the execution of said note was, and for a long time prior thereto had been, of unsound mind and incapable of making a binding contract; that one P. E. Pye, knowing this to be a fact, and knowing that his mind had become enfeebled, had begun, long before the execution of said note, to assiduously associate with and cultivate said Wiess, to the end that he might gain his confidence, and thus be enabled to use him and his name for his own selfish purposes; that Pye succeeded in getting the confidence of said Wiess, and was an officer of plaintiff bank, and had induced said Wiess to execute the note sued on for his benefit.

At the beginning of the trial the defendants made admission that the plaintiff had a good cause of action as set forth in the petition, except in so far as it might be defeated in whole or in part by the facts of the answer which might be established on the trial, and assumed the burden of proof and the right to open and conclude. A trial before a jury resulted in a verdict and judgment for the defendants, and plaintiff has appealed.

Appellant by its first and second assignments of error complains of the refusal of the court to give its requested special charge to the jury peremptorily instructing a verdict in its favor; it being contended by appellant that the ündisiiuted proof shows that the deceased, Wiess, at the time he indorsed the note, understood the nature and probable consequences of the act. The circumstances in which the note in question was signed are substantially these; Wiess and Pye together made quite a number of real estate deals, buying property jointly and selling at a profit. They occasionally indorsed each other’s notes; the evidence showing that Pye had indorsed at least two notes for Wiess, one for $20,000, and the other for $10,000, on which Wiess had obtained the money. About the time Wiess indorsed the note in question, Pye had become indebted to plaintiff bank, for borrowed money, in quite a large amount, which the bank was pressing him to reduce. In order to comply with the bank’s urgent request in this regard, Pye induced William A. Grant to execute his note to the bank for $10,000 to discharge to that extent his indebtedness to it, and procured Wiess to guarantee, by his indorsement, the payment thereof. Grant executed this note as a matter of accommodation to Pye. When Wiess indorsed it, or soon thereafter, Pye gave him a writing in which he agreed to protect Wiess against any liability by reason thereof. Wiess had great confidence in Pye’s honesty and business judgment, and resented any question of, or reflection upon, his integrity or business capacity.

The following facts with reference to Mark Wiess, his mental history, habits, and eccentricities, are established by the undisputed evidence: He was at the time of his death 67 years of age, was born and had been reared in Jefferson county, and was a twin brother of William Wiess, a well-known citizen of Beaumont, living at the time of the trial. Early in life he had owned timber, and had been in the lumber business at one time. He had been in the mercantile business and had failed. For a great many years he had dealt in real estate, which appears to have been a hobby of his. He had bought and sold real estate in New York City, St. Louis, Beaumont, Houston, and other places, covering a period of 15 or 20 years. He had always been a very eccentric man; was extreme in his religious views; did not believe in the orthodox religion; had never done so; was extreme in his political views; was what might be called an unreconstructed rebel, and, as far back as 15 or 20 years ago, would become violent in a discussion of politics, and insulted if an offer was made to present him to an officer wearing the uniform of the regular army; was an extremist on the prohibition question, and believed if prohibition carried the country would be ruined. He was a self-willed, obstinate, hard-headed man. When his doctor told him he thought he should not eat certain foods, these were the foods he would prefer to eat and would eat. When his family would try to keep him from borrowing money, or getting in debt, they would have conflicts with him. He would be very much irritated, and say he knew how to attend to his own business. He resented and became -very angry at the slightest interference. During the last few years of his life he was afflicted with Bright’s disease, and it was this malady that finally killed him. He, however, remained active, going about attending to his own affairs, entirely without assistance, until he took to his bed in May, 1910, about 60 days before his death. “Up to that time he had always attended to his affairs in his own peculiar way. He would not take dictation from anybody, and would not take kindly to suggestions even.” “Up to the time of his last illness he kept his account with the bank and drew checks to manage his affairs.” Prior to 1902 Wiess had bought real estate in Houston, and about that time he began to buy there again, rather extensively, and would be in Houston often in connection with his real estate matters. He bought what is known as the old Porter homestead in that year, and sold it at a considerable profit. He bought another piece of property, which he later sold to the Inee-da Laundry at a profit, and made several investments which turned out quite well. He continued his real estate investments in Houston up to the time of his death, and invested very heavily during the last two or three years of his life, both in Houston and in Beaumont. The undisputed evidence shows that both of these cities were steadily advancing during this time, and great profits were to be had in real estate investments advantageously made. Wiess’ most intimate friends never considered his judgment good in real estate.

During the period from about 1907 until 1909 and 1910, one E. E. Pye was dealing extensively in real estate in Houston, and was currently reputed to have made a fortune in these dealings. During all this time there was a continuous boom in real estate in Houston, and everybody was talking of big profits. It was commonly reputed that Pye had made a half million dollars. Mr. Wiess began dealing with him, buying and selling real estate through him. Pye’s investments were usually of a successful character, and in those in which Wiess joined with him they frequently made good profits. When the Central Bank & Trust Company was organized in 1908, Wiess was a stockholder, and subsequently became a director, and was a director 'in December, 1909, and was elected and qualified as director again in 1910. Pye was its president.

The testimony shows that Wiess, who in his earlier married life was greatly devoted to his wife, had undergone a revulsion of feeling toward her. One night shortly before his death he became greatly angered at his wife because of her refusal to sign a deed conveying her homestead, her separate property, and cursed her, telling her that she had blocked every move he had made for years, and threatened to kill her and himself. He then left home, declaring he would never return, but did return the next day, and said nothing of what had transpired the night before. At times he would talk loudly, changing the subject of his remarks quickly, and frequently at such times would get excited and gesticulate wildly. Toward the last he became faded, worn, weak, very much emaciated, and forgetful. His son Y. Wiess committed suicide on March 30, 1909, and this had a very depressing influence upon his mind. He charged himself with being the cause of his son’s death, and suffered great remorse by reason thereof. After Y. Wiess’ death he took a great fancy to V.’s young son, and carried the child everywhere with him, talking to and playing with it in such a way as to frequently annoy others in whose place of business he might be. At one time he developed a fantastic, but impracticable, notion of building a business house to consist of many rooms for shops, all of which would open into a court, and had the plans drawn, but he failed to buy the ground he wanted to build upon and let the notion drop. Much testimony along this line was introduced, and the witnesses who testified to the many eccentric acts and ideas of Wiess also testified that their opinion, based on what they knew of him and of his conduct covering a period of time extending a year or more prior to his death, and embracing the time of indorsing the note in question, was that he was of unsound mind. There was other testimony, however, going to show, and to conclusively show, we think, that however eccentric, however foolishly, he may have talked and acted, and however wild his dreams of accumulating a fortune by land speculation were, his mind was not impaired to such an extent as to render him incapable of knowing what' he was doing when he indorsed the note, or to understand and appreciate the legal effect and possible consequences of his act. He went to Houston frequently during this period, and transacted and discussed business matters with others than Pye. Among these were M. E. Foster, H. Masterson, Guy M. Bryan, and Judge E. P. Hamblen, who testified, in effect, that in their opinion he was mentally sound enough to understand ordinary business transactions. In a transaction with II. Mas-terson he contended with plausibility that he should receive a larger sum of money out of a business deal they had had together than Masterson was willing to concede, and in this conversation told Masterson that lie was indorser on several notes for Pye, and mentioned two that he specially desired to be taken up, and gave as a reason why he should get more money out of the deal that he had to meet some of these notes. He specially mentioned two $5,000 notes held by Kiam. In the period from October 29, 1909, to January 15, 1910, he wrote Pye several letters on business matters, and these were introduced in evidence. These letters indicate that Wiess had a clear conception of the business to which they relate. In one of them he sent his note to the First National Bank for $20,000 for Pye’s indorsement, and in another his note to Hutchings, Sealy & Co. for $10,000, also for Pye’s in-dorsement. One of these letters, written only eight days before Wiess indorsed the note in question, and nearest in point of time, reads as follows:

“Beaumont, Dec. 20, ’09.
“Dear Pye: Received letter .from Judge Hamblen this evening in which he states that you paid $64,750 instead of $62,500 as you stated to me. Therefore the property cost $107,-250 instead of $105,000. Therefore, I am short $400.00 of paying for two-fifths. Therefore I inclose you check for $400.00 which would reduce your payment to $64,350 and increase mine to $42,900 making a total cost of $107,250 and give me two-fifths and you three-fifths. This will 'simplify matters. Therefore, kindly have the deeds read two-fifths and three-fifths. I will show you how we can double our money on our five-sixth of 511 Main street. It is too good to sell at any price. Please close deal tomorrow as I will need all the credit this will give me. I will be at least $125,000 ahead. Send me $2,500 or $5,000 if you can. I’ll secure good as gold.
“Your friend, Mark Wiess.
“I am mighty happy Pye. We are the biggest people in Houston. I have written Judge Hamblen as above.”

The letter he refers to as having been written by himself to Judge Hamblen on the same date, and another also written to Judge Hamblen on the day before, are as follows:

“Beaumont, Dec. 19/09.
“Hon. E. P. Hamblen, Houston, Texas — My Dear Judge: Please find inclosed contract bet. Mr. F. E. Pye & myself which explains itself. I desire that you draw the deed for me, the matter is important as you will see but I have no suggestion to make to you, you will note that one of the interests from the girl that eloped with Sweeney and got married at Richmond is now in the name of the Pye Realty Co. but the deed is not recorded for reasons that Mr. Pye will give you. The two interests that Mr. Pye bought on Friday are in his own name but he will transfer them to the Pye Realty Co. then the Pye Realty Co. will make the transfer to me. Cast deed & in accordance with inclosed contract signed by Mr. Pye & myself. Kindly make a specialty of this Judge as tis vitally necessary for me to have this property in tangible form & greatly oblige.
“Yours faithfully. Mark Wiess.”
“Beaumont, Dec. 20/09.
“Hon. E. P. Hamblen, Houston — My Dear Judge: Yours of date just reed — The mistake was Mr. Pyes — as he stated that he paid 62500 to my 42500 — making a total of $105,000 — It seems he left out an item 2225.00 that he paid which added to the 105,000 makes an increased total of 107250 — and would leave me short of $400.00 of owning a % interest — $400.00 added to 42500 makes a total of 42900.00 paid by me — 42900.00 is % of 107,250.00
“Kindly use your best endeavor to close tomorrow as it is necessary to my financial affairs that it be shown that I have acquired valuable for cash.
“Your friend, Mark Wiess.”

Ray Wiess, a son of Mark Wiess, testified as follows:

“I did not know anything about this indorsement (for Pye) until along about the latter part of April or the first part of May, 1910. I think it was about the 13th or 15th of May that my father took to his bed. I did not find out about this indorsement until the last time he was in Houston. In going down with him from the street car to the house, he told me about this indorsement. He pulled out a paper written by Pye and signed by Pye and his wife, mentioning this indorsement, and that Pye had promised to pay certain notes when they were due and save him harmless. I forget how many there were in the list mentioned. Pie showed me a list of the indorsements he had given for Pye. My recollection is they amounted to $40,-000. There were three $10,000 notes and a $5,000 note. He said he came over to see Pye, and he pulled out this letter and let me read it; that is the first I knew about these indorse-ments, and he said it was all right; that those people for whom he indorsed were good people; he would have no trouble about it, but he was getting weak, and he wanted those things straightened out, and he wanted his name off of all those papers. I had a conversation about indorsements in Beaumont, when he was sick in bed. I think that further conversation was early in May, before he went to bed. I wanted him to let me place these matters in the hands of attorneys, and I told him I thought Pye was a crook. He thought it would cost too much money — Pye was -all right. I had heard in ¡Houston that there was a $5,000 note and a $7,500 note held by Neuhaus Bros, with Father’s indorsement. I asked him about these notes because he didn’t have them listed, and he said he didn’t know anything about any such notes. He said he didn’t know anything about these notes being out, and if there were such notes they were forgeries. So I went back to Houston and went to see Neuhaus Bros, and asked them to show me the notes. They showed them to me, and when I came back to Beaumont and told Father about it, he said they were forgeries. I never criticized his business dealings. I was surprised,' of course, that he was on those notes. I do not remember exactly what I said to him about it. I don’t think I told him he might have them to pay. He said he wanted to be relieved of them — of his indorse-ments. He gave me a list of the notes he had indorsed for Pye when I was here in Beaumont. He voluntarily gave me that list. He didn’t ask me to take the list. He had my sister write a letter giving a list, and told me about the Grant $10,000 note. He wanted me to see Pye and get these notes paid or renewed with some other indorser. He wanted me to do that right away. I could not attempt to repeat his exact words, but he did instruct me to see Pye, and either have these notes paid or renewed with other indorsers and leave him off. He knew where one or two of the notes were, and told me where I could find one or two. He told me one was in Brenham, one was at the Lumberman’s Bank; that I would find the Perry note at the Lumberman’s Bank. This was bothering him all the time of his last illness. He told me he wanted me to see Pye and tell him to carry out his promise. When I went back the next time, I discussed it with him, and told him I didn’t think I could get Pye to do anything. He told me to go back. I don’t know how many times I discussed that matter with him from that time to the time of his death. I suppose I discussed it every time I went there. Up to the last those indorsements were preying on his mind, worried him, and as often as I talked with him he asked me to see Pye about it, and I tried from time to time, and had no success.”

The question to be determined is: Does the evidence show that Mark Wiess, at the time he indorsed the note in question, was insane to such an extent as to be incapable of comprehending or understanding the subject of the contract and its nature and probable consequences? If so, or if there was sufficient evidence to raise the issue, the judgment of the trial court must be affirmed. All the authorities are in substantial accord in holding that:

“When the issue of insanity arises collaterally — that is, upon the determination of the quality of the party’s civil act as being valid or invalid — the question is whether, by reason of mental disease, the party was unable to comprehend the nature of the act, its relations, effect, and legal consequences.” Buswell on Insanity, S 18.

Cyc. vol. 22, p. 1206, states the rule thus:

“The mental defect or disease necessary to entitle one to avoid his contracts on the ground of insanity need not be so great as to dethrone his reason or as to amount to an entire want of reason, but it is sufficient if he is insane to such an extent as to be incapable of comprehending or understanding the subject of the contract and its nature and probable consequences. He must be insane at least to this extent; mere weakness of intellect not being enough.”

The substance of this rule is recognized by all the authorities cited and relied upon by appellee. Thus in Lindly v. Lindly, 109 S. W. 467-, the question was whether the mind of a person at the time of the execution by her of a deed was so impaired that she was incapable of understanding her property rights and the nature and legal effect of the deed. In Caddell v. Caddell, 131 S. W. 432, it was decided as a correct principle that a conveyance executed by one who at the time was laboring under such a degree of mental infirmity as to be incapable of understanding in a reasonable manner the nature and effect of the act he was doing was void.

In Edwards v. Davenport (C. C.) 20 Fed. 756, the rule stated in the earlier cases to the effect that, in order to set aside a contract upon the ground of mental incapacity, it must appear that there was a total deprivation of reason was rejected, and the more modern rule, that it is only necessary to show that the party executing the contract was of such weak and feeble mind as to be incapable of comprehending its nature, was approved. And so in all the other cases cited by appellee the same general rule is stated.

Bearing in mind the general rule, does the testimony in this case show that the mind of Mark Wiess, at the time he indorsed the note of Grant, was so impaired that he did not know and appreciate the effect of his act and the legal consequences that might follow from it? Does the testimony of the witnesses who testified to his eccentricities, vagaries, strong self-will, intolerance, prejudices, forgetfulness, and quick temper prove that at the time he indorsed the note he did not understand the nature and legal consequences of his act? Are the opinions of these witnesses that he was insane, based upon their knowledge of these matters, sufficient to overcome positive testimony that he fully knew and comprehended what he was doing at the time? Does such testimony even raise the issue in the face of such positive testimony? It may be readily conceded that the conduct, words, and disposition of Wiess at times, as testified to by the witnesses for appellees, gave evidence of an unbalanced mind, and justified their conclusion that he was mentally unsound at some times and on some subjects. But when the concrete facts relating to the very act under consideration are looked to, we think that there is no room for any conclusion other than he fully understood and comprehended the nature of his act, and the probable legal consequences of indorsing the note at the time he indorsed it. We are not disposed to attach any greater weight to the testimony of the parties in Houston with whom Wiess had business transactions or discussed business matters, who testified that, in their opinion, he, at such times, was of sound mind, than that of others who testified that, in their opinion, he was not; for- he might have been of sound mind at such times, and not so when he indorsed the note, just as he might have been of unsound mind at the times referred to by appellees’ witnesses, and have been of sound mind when he indorsed the note. For the same reason we attach but little more, but some more, importance to the letters written by Wiess, hereinbefore referred to; their value in the main consisting of the apparent ■ soundness of intellect of the writer in such close proximity of time to the date of Ids indorsement, those copies haying been written only eight and nine days, respectively, from the date of the indorsement. But1 the testimony that we think indisputably proved that Wiess was of sufficiently sound mind to hind himself by his indorsement, under the rule above stated, is as follows: Ray Wiess, the son of Mark Wiess, who says he always sustained amicable relations to his father, testified that he did not know of the indorsement for Pye until the latter part of April or the first of May, 1910; that his father took to his bed about the 13th or 15th of May, 1910; that when he found out about this indorsement his father was in Houston, and that in going from the street car to. the house he told him about it, and—

“he pulled out a paper signed by Pye and his wife mentioning this indorsement, and that Pye promised to pay certain notes when they were due and save him harmless. * * * Pie showed me a list of the indorsements he had given for Pye. My recollection is that they amounted to $40,000. There were three $10,000 notes and a $5,000 note. He said he came over to see Pye, and he pulled out this letter and let me read it; that was the first I knew about these in-dorsements, and he said it was all right; that those people for whom he indorsed were good people; he would have no trouble about it, but he was getting weak, and he wanted those things straightened out, and he wanted his name off all those papers.”

He further testified:

“He gave me a list of the notes he had indorsed for Pye when I was here in Beaumont. He voluntarily gave me that list. He didn’t ask me to take the list. He had my sister write a letter giving a list, and told me about the Grant $10,000 note. líe wanted me to see Pye and get these notes paid or renewed with some other indorser. He wanted me to do that right away. I could not attempt to repeat his exact words, but he did instruct me to see Pye, and either have these notes paid or renewed with other indorsers, and leave him off. He knew where one or two of the notes were, and told me where I could find one or two. He told me one was in Brenham, one was at the Lumberman’s Bank; that I would find the Perry note at the Lumberman’s Bank.”

He further testified:

“This was bothering him all the time of his last illness. He told me he wanted me to see Pye and tell him to carry out Ids promise. * * * Up to the last those indorsements were preying on his mind, worried him, and as often as I talked with him he asked me to see Pye about it. * * *

Prom the testimony of this witness, called to testify by the defendant, and who, as before stated, was the son of Mark Wiess, there is, in our opinion, no doubt that the deceased was sufficiently in possession of his mental faculties at the time he signed the note to understand and appreciate, and did understand and fully comprehend, the nature of his act, its effect, and the legal consequences. That he knew in so doing he incurred a legal obligation to pay the note is shown by his great anxiety to be relieved ■from liability, either by Pye’s paying the note or having it renewed with other indorsers, “leaving him off.” However forgetful he may have been of other matters, he not only remembered all through, the last two months of his illness that he had indorsed notes for Pye, but he kept a list of them, and had his daughter to draw a list of them for the use of his son Ray. Further, he remembered particularly the Grant note, involved in this suit, and told Ray about it. He even remembered where two of the notes could be found —one at Brenham and the other at the Lumberman’s Bank. He remembered that Pye had promised to hold him harmless, and sent word to him to keep his promise. The fact of his indorsements preyed upon his mind and worried him up to the last. Why the worry, why should this prey upon his mind “up to the last,” unless, he was fully conscious of the nature, effect, and legal consequences of his indorsement? When other witnesses speak of his idiosyncrasies and eccentricities, the many seemingly foolish things he said and some that he did, and thereon base their conclusions that he was insane to such an extent as to not be capable of appreciating the legal effect of the act, the answer is that his conversations with his son Ray in regard to the particular act in question conclusively show that he knew what he was about, and indorsed the note with full comprehension of the fact that he thereby incurred the legal obligation to pay it, and that he was conscious of this obligation “up to the last.” It is true that the evidence shows that he disliked to indorse notes for others, and to go in debt; but it is also true that the evidence discloses that he and Pye had indorsed notes for each other, and that Pye indorsed one note for Wiess for $20,000 and another for $10,-000; and, however much Wiess may have disliked to indorse notes for others, it appears that, having been the recipient of favors of that kind at the hands of Pye, he did not feel himself in position to refuse when Pye called upon him for a like favor. There is no doubt that Wiess believed in Pye’s honesty and had great confidence in his business' sagacity, and while such belief and confidence were not justified in the light of facts subsequently transpiring, he then, no doubt, believed that Pye would hold him harmless against liability, but nevertheless he knew that in indorsing the note he was assuming liability.

In view of these conclusions, we are of the opinion that the court should have given the special charge requested by the plaintiff in error, peremptorily instructing the jury to return a verdict in its favor. This conclusion obviates the necessity of our passing upon the other assignments of error presented by the plaintiff in error in its brief.

Defendants in error do not contend that the verdict should be sustained on the ground of undue influence or fraud, and, if raised by the pleadings, such issues were not submitted to the jury.

Tlie judgment of the court below is reversed, and judgment here rendered for the plaintiff in error.

Reversed and rendered.