author: DUNKLIN, J.

text:
    SANDERS et al. v. MOORE et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 19, 1913.
    Rehearing Denied May 17, 1913.)
    1. Adverse Possession (§ 117) — Findings.
    A special finding as to how long a certain strip had been inclosed was properly refused in
    •trespass to try title, where the court found that all of the land sued for had been in defendants’ peaceable and adverse possession since 1886.
    (Ed. Note. — For other cases, see Adverse Possession, Dec. Dig. § 117.]
    2. Appeal and Error (§ 1071) — Harmless Error.
    Any error in finding that plaintiff in trespass to try title failed to show that the land was included in the boundaries of his section was harmless to plaintiff where the court’s finding was in defendants’ favor under the ten years statute of limitations.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.]
    3. Adverse Possession (§ 31) — Notice to Owner — Knowledge—Presumption.
    Plaintiffs were presumed to know the true location of their boundaries and were bound to take notice of the inclosure of a part of their land.
    [Ed. Note. — F'or other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. § 31.]
    4. Trespass to Try Title (§ 35) — Pleading —Not Guilty.
    Under a plea of not' guilty in trespass to try title, evidence was admissible that the south boundary of the land claimed had been agreed on by the predecessors in title of the parties hereto as the correct boundary between the surveys.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Suit by J. A. Sanders and another against Mrs. M. J. Moore and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    J. C. Randel, of Anson, for appellants. Kirby & Davidson, of Abilene, for appellees.

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

   DUNKLIN, J.

J. A. Sanders and I. H. Elder instituted this suit in trespass to try title to recover a strip of land consisting of about 73 acres in Jones county. In addition to a plea of not guilty the defendants interposed pleas of limitation of five and ten years and from a judgment in their favor plaintiffs have appealed.

The suit was tried without a jury and the trial judge filed findings of fact and conclusions of law which are as follows:

“First. Plaintiffs showed a regular chain of title from the state of Texas to themselves, to the north 200 acres of section 8, block 16, Texas & Pacific Railway Company survey of which the land in controversy was claimed' by them to be a part.
“Second. Defendants and those through whom they claim have had peaceable and adverse possession of the land described in plaintiffs’ petition, using and enjoying same since the suinmer of 1886 to the time of the trial.
“Third. T. N. Beard, who acquired, all of section 8, block 16, on November 18, 1889, agreed with the Montgomerys, who then had possession of the land in controversy, on the south Une of the land described in 'plaintiffs’ petition as the boundary line between the said Beard and the said Montgomerys from the, time said agreement was made, and said T. N. Beard aixd those claiming under him down to September 11, 1006, the time plaintiffs acquired title to the north 200 acres of section 8, which title they hold under the said T. N. Beard, recognized and acquiesced in said line as being- the boundary between •said parties, and neither the said T. N. Beard nor any person claiming under him ever asserted any title to any part of the land north of said line, until plaintiffs filed this suit.
“Fourth. Plaintiffs failed to show that the land in controversy was really included in the boundaries of section S, but in view of the other facts in the case, this becomes immaterial.
/‘Prom the foregoing findings of fact, I conclude as a matter of law as follows:
“Defendants have title to the land in controversy under the 10 years statute of limitation, and the boundary having been agreed upon as above found, said agreement is binding upon the plaintiffs who claim under the said T. N. Beard, and they are not entitled to recover herein.”

The evidence shows without dispute that the east end of the fence on the south boundary of the land in controversy was moved south about 15 feet, thus including within the inclosure a strip 15 feet wide which was not within the original inclosure under which defendants claim title by limitation.

By the first assignment of error appellants complain of the refusal of the trial court to comply with their request for a special finding as to how long the strip last mentioned had been inclosed. The court found that all the land sued for by plaintiffs had been in peaceable and adverse possession of the defendants since the summer of 1886. This was sufficient and there was no error in refusing the request for the additional finding mentioned.

It is next insisted that the evidence conclusively shows that the strip of land last mentioned had not been inclosed “for the space of 10 years, but shows only to be inclosed since some time in the year 1901 or 1902.” The suit was instituted March 8, 3912. Hence, if the strip was inclosed any time prior to March 8, 1902, the defense of the 10 years limitation was sustained. Furthermore, we are of the opinion that the evidence was sufficient to sustain a finding that it was inclosed more than 10 years prior to the institution of the suit and that defendants and those through whom they claim had had peaceable and adverse possession of the same during all that time.

The third assignment reads as follows: “The court erred in holding that there was an agreement between one T. N. Beard, a former owner of north part of said section No. 8, and the defendants as to the boundary lines I between section No. 8 and section- No. 5.” The | proposition submitted under that assignment reads: “The mere conclusion of the witness that there was an agreement between two parties on a boundary line is not sufficient evidence to show a binding agreement.” In ■ the'statement following this proposition even the testimony set out, to which no objection ■appears in the record, shows more than a mere conclusion of the witness that there was stjch an agreement; it is direct and positive ■evidence of such agreement.

It is next insisted that the court erred in sustaining the plea of 10 years limitation for the reason that the evidence shows that J. R. Montgomery, through whom defendants claim limitation, did not hold the land by limitation but by deed. While this witness testified that it was never his intention to hold any land except that described in his deed, it is quite clear from his testimony that he thought the description in his deed included the land in controversy; that he placed his fences accordingly and that he claimed all the land within that inclosure adversely. Furthermore, the evidence tends to show that the description of the land in the deed under which he claimed was sufficient to include the land in controversy.

By another assignment it is insisted that at all events the evidence does not clearly show that the strip of land 15 feet wide and mentioned above was inclosed for 10 years prior to the institution of the suit. In this assignment, as in the third noted above, it is insisted that “the testimony of the defendants conclusively shows that the fence along the south side of the Moore tract was moved south 15 feet' some time in the years 1901 or 1902.” As already stated, if it was so moved prior to March 8, 1902, the 10 years limitation was complete. While some of the evidence tended to show that the fence was moved subsequent to 1902, still we are of the opinion that there was other evidence sufficient to sustain the court’s finding on the defense of 10 years limitation for the 15-foot strip.

The finding that plaintiff failed to show that the land in controversy was really included in the boundaries of section 8 is assailed by another assignment. If that finding be incorrect, the error was harmless in view of the finding in defendants’ favor on the plea of 10 years limitations.

It is further insisted that the evidence shows that defendants’ possession was taken and held in such manner as to evince a fraudulent purpose on the part of defendants and those under whom they claim to conceal the true boundary between section 8 and section 5. Hence such suppression was not available for the purpose of invoking the plea of limitation. The facts relied upon to support this contention were as follows: Section 5 adjoining section 8 on the north was conveyed by the Franko-Texan Land Company to J. V. Trapscott who in turn conVeyed it to John H. Montgomery. In the deed from the Franko-Texan Land Company to Trapscott the length of the east boundary line of section 5 was given as 379 varas while in the deed from Trapscott to John H. Montgomery the length of that line was given as 713 varas and the fence on the south boundary line of the land in controversy was built to conform to what would have been the south boundary of section 5 if its east boundary had been 713 varas in length. Even though it should be said that Montgomery in taking the deed from Trapscott knew that the east boundary of section 5 was not more than 379 varas in length, we are yet unable to perceive how that fact ■would constitute such a fraud on the plaintiffs as would prevent Montgomery and his subsequent vendees from invoking the statute of limitation. Plaintiffs were presumed to know the true location of their north boundary line and were bound to take notice of the inclosure of a part of their land whether the inclosure was by virtue of an erroneous description in the deed to Montgomery or without a deed, and the fact that Montgomery’s deed' contained a description which would include a part of plaintiffs’ land placed plaintiffs in no worse position than Montgomery’s possession without such a deed.

By another assignment the contention is made that the court erred in finding that the south boundary of the land claimed in the suit had been agreed on by T. N.' Beard, the former owner of section 8, and the Montgomerys who were former owners of section 5 as a ‘correct boundary line between those two surveys. The basis of this contention is that defendants did not plead such an agreement. Such a plea was unnecessary for the reason that the defense was available under the plea of not guilty. Johnson v. Flynt, 75 Tex. 379, 12 S. W. 1120. Furthermore, the finding of the court upon the plea of 10 years limitation was sufficient of itseif to support the judgment.

By the ninth and last assignment it is insisted that the facts show this suit to be ,a suit to establish a boundary line between section 8 and section 5 and that the statute of limitations did not apply. As noted already the suit was in the form of trespass to try title and in addition to the plea of not guilty defendants interposed pleas of limitations. The evidence in the record was sufficient to show possession by appellees adverse to appellants. The description of the land contained in the more recent deeds under which they claim title covered the land in controversy and the evidence warranted a finding that appellees never recognized the validity of appellants’ claim of record title to the land. Such being the pleadings and evidence, the controversy was not merely one to establish the true boundary line between the properties claimed'by'the parties as shown by their respective deeds, but was essentially a suit in trespass to try title. Hence the assignment now under discussion is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    TRIPP BROS. v. McCORMACK.
    (Court of Civil Appeals of Texas. El Paso.
    May 15, 1913.)
    1. Aijpeal and Error (§ 1050) — Harmless Error — Admission oe Evidence.
    In an action on a note, where defendant alleged that it was given for the price of goods purchased by him, and which were returned to and received by plaintiff in settlement and satisfaction of the note, the admission of defendant’s ' testimony ' as to the value of the goods and the price at which they were returned, which he based on catalogue prices, if erroneous on the ground that the catalogue was the best evidence, was harmless, since the value of the goods was wholly irrelevant; the only issue being whether they were returned to and received by plaintiff in full satisfaction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ■§§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    2. New Trial (§ 97) — Grounds—Surprise.
    Where defendant’s answer clearly indicated his defense, and plaintiffs did not apply for a continuance in order to procure rebutting testimony, they could not claim that they were surprised by his testimony as a ground for a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 195-198; Dec. Dig. § 97.]
    Appeal from Brazoria County Court; J. W, Munson, Judge.
    Action by Tripp Bros, against J. T. Mc-Cormack. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    H. Grass; of Alvin, and Masterson & Rucks and Munson & Munson, all of Angleton, for appellants. Geo.. H. Currier, of Houston, and Louis J. Wilson, of Angleton, for ap-pellee.

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

   HIGGINS, J.

Tripp Bros, filed suit in the justice court against McCormack upon an open account amounting to $30.19 and a promissory note in the sum of $93.67. After trial in that court, the cause upon certiorari was thereafter tried de novo in the county court, resulting in judgment for the defendant, from which this appeal is prosecuted.

McCormack in his answer averred that the note sued upon was executed in consideration of certain articles of machinery sold and delivered to him, and specifically described in his answer; ’ that said articles were not suitable for the purpose for which they were sold and he had returned the same to Tripp Bros, in settlement and satisfaction of the note sued upon; and that plaintiffs had so received the same. Upon the trial McCormack testified as to the values of the articles which he had purchased and tlie price at which they had been returned, and he testified that his memorandum of prices was based upon catalogue prices, and objectioü was urged to the admission of his testimony as to such values upon the ground that the catalogue itself is the best evidence of the value of the property. The testimony with reference to such values was wholly irrelevant to the decisive issue in the case. The decisive issue was not the value of the property purchased and returned, but whether or not the articles had been returned by McCormack and received by Tripp Bros, in satisfaction and payment of the note sued upon. The case was tried before the court, and the admission of this irrelevant testimony, if erroneous, is not reversible.

The second assignment complains that the judgment is contrary to the great preponderance of the evidence, and a reversal is asked upon this ground. We have examined the testimony, and find the same amply sufficient to support the judgment of the court.

One of the grounds of the motion for a new trial was that appellants were surprised by the testimony of the defendant. His answer clearly indicated what his defense would be, and, if appellants desired time to procure rebutting testimony, they should have applied for a continuance of the cause; not having done so, and having proceeded to trial, they could not thereafter claim to be surprised. The third assignment is therefore overruled.

Affirmed.

McKENZIE, J., did not sit in this case.


text:
    WALKER GRAIN CO. et al. v. HOOD COUNTY MILL & ELEVATOR CO. et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 26, 1913.)
    1. Sales (jj 441) — Breach ox Warranty — Actions for Damages — Sufficiency of Evidence.
    Evidence, in an action for damages for breach of warranty of a car of wheat, hold to sustain a finding that plaintiff was compelled to pay the amount of the draft for the wheat before it was permitted to inspect it.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1277-1283; Dec. Dig. § 441.]
    2. Sales (§ 441) — Breach of Warranty — Actions for Damages — Sufficiency of Evidence.
    Evidence, in an action for breach of warranty of a car of wheat sold, held to sustain a finding that the wheat was damaged when it was loaded into the ear for shipment.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1277-1283; Dec. Dig-. § 441.]
    3. Appeal and Error (§ 1071) — Harmless Error — Findings.
    A finding that defendant was a corporation instead of a partnership was harmless, if erroneous, where judgment was rendered against it as a partnership.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.]
    Error to District Court, Hood County; W. J. Oxford, Judge.
    Action by the Hood County Mill & Elevator Company against the Ft. Worth Grain & Elevator Company, in which the Walker Grain Company and another doing business under that name were made defendants together with a third party. Judgment over in favor of the Ft. Worth Company against the Walker Grain Company, and the latter company brings error.
    Affirmed.
    Harris, Harris & Young and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for plaintiff in error. Hiner & Dean and B. M. Estes, all of Granbury, and Spoonts, Thompson & Barwise, of Ft. Worth, for defendants in error.

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

   DUNKLIN, J.

This suit was instituted by the Hood County Mill & Elevator Company against the Ft. Worth Grain & Elevator Company to recover damages for a breach of warranty of quality of a car load of wheat purchased by the plaintiff from the defendant and for which plaintiff paid the sum of ?1,'490.60. It was alleged that the wheat was warranted to be #2 soft wheat and that it proved to be a very inferior grade. The Ft. Worth Grain & Elevator Company made the Walker Grain Company and J. L. Walker, doing business under that name, parties defendant and also the Ft. Worth & Rio Grande Railway Company, alleging that the wheat had been purchased from the Walker Grain Company under the same warranty of quality, and praying for judgment over against that company for whatever amount that the plaintiff might recover against the Ft. Worth Grain & Elevator Company; also for judgment over against the railway company upon the allegation that, if it should be proven that the wheat was in a damaged condition at the time it was received by the plaintiff and if it was in good condition at the time it was purchased from the Walker Grain Company by the Ft. Worth Grain & Elevator Company, then the railway company was liable to the Ft. Worth Grain & Elevator Company for such damage. The defendant Walker Grain Company filed an answer alleging that the wheat was #2 soft wheat and in good condition at the time it was loaded in the cars at Blackwell, Okl., from whence it was shipped into Texas, and that if it reached the plaintiff in a damaged condition then, the damage was the result of the negligence of the railway company in handling it, and upon such allegations the Walker Grain Company also sought judgment over against the railway company for any sum that might be assessed against the Walker Grain Company. A jury was waived and the case tried before the court, who filed finding of fact and conclusions of law, and judgment was rendered in favor of the plaintiff against the Et. Worth Grain & Elevator Company, and in favor of that company in the same sum over against the Walker Grain Company and J. L. Walker doing business under that name, and in favor of the railway company as against its two codefend-ants. From that judgment the Walker Grain Company has prosecuted this writ of error.

The evidence shows that the wheat was shipped from Blackwell, Okl., and that it was not unloaded until it reached Gran-bury, where it was delivered to the plaintiff, having been sold by the Walker Grain Company to the Et. Worth Grain & Elevator Company and sold by the latter company to the plaintiff. The evidence further showed that the Ft. Worth Grain & Elevator Company drew a draft on the plaintiff for the purchase price of the wheat with bill of lading attached; and the plaintiff in error has assigned error to the finding by the trial judge that plaintiff had to pay the amount of the draft before it could inspect the wheat. The bill of lading having been attached to the draft, it is quite evident that possession of the bill of lading could not be obtained until the draft was paid, and it was entirely reasonable for the trial court to conclude that the wheat could not be inspected in the absence of a presentation to the railway company of the bill of lading.

Error has also been assigned to the finding by the trial judge that the wheat was in a damaged condition at the time it was loaded into the car at Blackwell, Okl., for shipment. The contention is made .that this finding was without support in the evidence in view of the testimony of C, B. Webster, who loaded the wheat into the car, and A. McFarland, the official grain inspector of Blackwell, Okl., who inspected the wheat, both of whom, testified that the wheat was #2 soft wheat and in good condition at the time it was loaded into the car. D. G. Gogdell testified that the wheat was in a bad condition at the time it was received at Granbury; that it was damp, moulded; and that it appeared to have been rained on, or at all events put in the car in a damp condition and that the warm weather had caused it to mould. There was also testimony to show that this damp and moulded condition was not due to any defect in the car in which it was shipped. This evidence was sufficient to sustain the finding of the trial judge.

Error has been assigned, also, to the finding by the trial judge that the Walker Grain Company was a corporation and to the conclusion reached that the Ft. Worth Grain & Elevator Company was entitled to a judgment against it as a corporation. The judgment rendered against the Walker Grain Company designates that defendant as the “Walker Grain Company and J. L. Walker doing business under said firm name.” If the finding by the trial judge that the Walker Grain Company was a corporation was erroneous, clearly, the error was harmless in view of the fact that the judgment was rendered against it as a firm.

It is further insisted that the amount of damages awarded was not supported by the evidence. This contention is based upon evidence of some of plaintiff’s employés showing what was realized out of the wheat and tending to show that plaintiff realized an amount equal to the amount it had paid for the wheat. The testimony showed that some of the wheat was ground into flour, but that a good portion of it was sold for feed. The amount which the plaintiff was able by good management to realize out of the wheat does not necessarily determine its market value at the time plaintiff purchased it. The testimony of its market value introduced by plaintiff’s witnesses was ample to support the finding now under discussion.

The judgment is affirmed.


author: TALBOT, J.

text:
    PARK v. PYLE et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 3, 1913.
    Rehearing Denied May 24, 1913.)
    1. Trusts (§ 30%) — 'Constructive Trusts— Contract between Parties. ‘
    Under an agreement reciting that defendant, plaintiff, and another held notes secured by liens upon the furniture and general assets of a newspaper with which they had contracted for advertising space, and providing that all money collected under such advertising contract should be paid to defendant and by him deposited in a certain bank, to be kept there as a separate fund for the use and benefit of the parties, in stated proportions, that each month the money on deposit should be distributed between them equally, and that after $7,500 had been collected all future collections should be divided ratably, there was no such trust relation between defendant and plaintiff as to require defendant, out of the money collected from the sale of space under such contract, tó pay plaintiff’s subsequent note secured by pledge of the notes referred to in the contract or to prohibit defendant’s purchase of such pledged notes. • -
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 41, 41%; Dec. Dig. § 30%.]
    2. Trial <§ 251) — Instructions—Applicability to Issues.
    In an action to recover money based on the theory of a trust alleged to have been created by a contract between the parties, held,, that an instruction that defendant must have bought notes, pledged by plaintiff as collateral, in good faith and in due course of business was objectionable as injecting foreign issue into the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    3. Trial (§ 243) — Conflicting Instructions.
    In an action to enforce a trust rising out of a contract and out of defendant’s purchase of plaintiff’s notes sold by the bank to whom he had given them as collateral, instructions held
      conflicting.as giving no affirmative and definite rule to enable the jury to properly determine the issue involved.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.]
    4. Trial (§ 253) — Instructions—Ignoring Issues.
    In an action to establish and enforce a trust under a contract whereby defendant was to collect and apply certain amounts on notes owned by plaintiff, among other notes, instructions as to defendant’s liability hold erroneous as ignoring the issue whether defendant was not the owner of the notes under his purchase at a sale by a bank to which plaintiff had pledged them to secure a debt.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig: § 253.)
    5. Trial (§ 255) — Instructions—Error ox Omission — Absence of Request for Special Charge.
    An error Of omission in an instruction furnishes no ground for complaint in the absence of a requested charge covering the matter.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by O. P. Pyle against Milton Park and others. Judgment for plaintiff, and defendant Park appeals.
    Reversed and remanded.
    J. C. Muse and W. L, Crawford, both of Dallas, for appellant. M. L. Dye, of Dallas, for appellees.

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

      For other cases see tame topic and section NUMBER irnDec. Dig. & Am. Dig.-Key-No. Series & Rep'r Indexes

   TALBOT, J.

This is an appeal from a judgment in favor of appellee, Pyle, against appellant for the sum of $2,641.24, with interest thereon from June 10, 1912, at the rate of 6 per cent, per annum.

On March 14, 1907, Milton Park, the appellant, sold to the Farmers’ Educational & Co-Operative Union Publishing Company, O. P. Pyle, and George B. Latham certain printing presses, etc., and received the several notes of said parties therefor in the sum of $500 each, all dated March 14, 1907, and bearing interest from date, providing for 10 per cent, interest and attorneys’ fees, and secured by a recorded lien upon the property sold. Five of these notes were unpaid, aggregating $2,500; besides interest. On April 6. Í00S, said above company, Pyle, and Lath-am sold said property to Aaron Smith and M. S. Sweet, of Ft. Worth, for the sum of $2,500 cash, and 22 or 24 notes (the exact number being in dispute) of said date, executed by Smith & Sweet to said company, 11 or 12 of said notes being for $345 each, and 11 or 12 of them being for $405 each, all bearing 8 per cent, interest from date, and providing for 10 per cent, attorneys’ fees; and the further consideration of the assumption of Park’s debt secured by a superior lien on said property. In this sale Latham became the owner of the 11 or 12 $345 notes, and O. P. Pyle the owner of the 11 or 12 $405 notes. On the 19th of October, 1908, Milton Park, O.. P. Pyle, and George B.. Latham entered into a written agreement with Smith & Sweet whereby 7,000 inches of advertising space might be sold in the paper of Smith & Sweet by said Pyle, Latham, and Park, and the proceeds applied upon said notes; Smith & Sweet undertaking to publish same in their said paper. Said sale of advertising space to terminate June 1, 1910, except under conditions, provided the user of said advertising space to be in settlement of all notes remaining unpaid and specified. So far as necessary to state, the last-mentioned contract provides: “When above conditions have been complied with, and the 7,000 inches of space have been used, by parties of the first part, parties of the first part agree to cancel all notes now held by each and all of them and deliver same to parties of the second part, to wit: Five notes of five hundred dollars each executed on March 14, 1907, by O: P. Pyle, and George B. Latham and payable to Milton Park and due, respectively, January 1, 1909, July 1, 1909, January 1, 1910, July 1, 1910, January 1,1911, and assumed by parties of the second part, and ten notes payable to the Farmers’ Educational & Co-Operative Union Publishing Company, and now held by O. P. Pyle for four hundred and five dollars each, and ten notes for three hundred and forty-five dollars each, payable to the Farmers’ Ed-, ueational & Co-Operative Union Publishing Company, now held by George B. Latham, all of which notes were executed by Aaron Smith and M. S. Sweet on the 6th day of April, 1908. The first two notes of the ten notes mentioned above are due and payable April 1, 1909, and two notes of like amounts become due every six months thereafter until October 1, 1913. Space used under this contract is to be credited on above notes as used. Whether the entire seven thousand inches of space is used or not by June 1, 1911, the remainder, if any, of the above indebtedness of Smith & Sweet, including principal and interest, is hereby agreed to be canceled on that date and held void and of no effect, and all notes, if any unpaid, and the deed of trust are to be cancele.d and delivered to said Smith & Sweet. The moneys accruing from the execution of this contract shall be applied to the liquidation of the notes herein named in their respective order as per the original contract.” “Failure to carry out any or all the provisions of this contract by the parties of the second part shall in no way affect existing contracts and agreements heretofore made by them.”

On October 19, 1908, Pyle, Park, and Lath-am executed the following written agreement. Viz.': “Whereas, Milton Park, O. P. Pyle and George B. Latham hold certain notes, which áre secured by liens upon the office furniture,5 fixtures, type and general assets of the National Go-Operator, a newspaper published in the city of Ft. Worth and owned by Aaron Smith and M. S. Sweet, and whereas the said Park, Pyle and Latham have entered into a contract with said Smith & Sweet, dated October 19, 1908, for 7,000 inches of advertising space in said newspaper, which said contract is here referred to and made a part hereof; and whereas it is not specifically agreed as to the rights of the said Park, Pyle and Latham among themselves as t'o the handling and application of the proceeds of said advertising, it is hereby agreed: First. That all money collected by and for the said Park, Pyle and Latham under' said contract shall be paid to the said Milton Park as trustee, and by him deposited in the Gaston National Bank of Dallas, Texas, and shall be there kept as a separate fund in the name of said Milton Park, special, and for the use and benefit of said Park, Pyle and Latham. Second. On the 15th day of each month the money on deposit shall be distributed to said Park, Pyle and Latham equally after deducting all expenses and charges against same. Third. All advertising contracts shall be made payable to said Milton Park. Fourth. After the sum of $7,500 has been collected and paid out to the parties, as provided in paragraph 2 hereof, all future collections shall be divided, after deduction of all expenses, as follows: To Milton Park V35> to 0. P. Pyle 16/35 and to George B. Latham 12/s<¡. But all money collected over $7,500 shall be credited pro rata on notes held by O'. P. Pyle and George B. Latham.”

On October 20, 1908, appellee Pyle borrowed $300 from the Commonwealth or Gaston National Bank, and gave his note of that date therefor due January 1, 1909, bearing interest at the rate of 10 per cent, per an-num, and further promising to pay 10 per cent, as attorneys’ fees if sued on or placed in the hands of an attorney for collection. On November 18, 1908, Pyle borrowed from the same bank the further sum of $200, giving his note therefor, bearing interest at the rate of 10 per cent, per annum and providing for attorneys’ fees, due January 1, 1909, with appellant Park as security thereon. At the time Pyle got the said $300 and executed his note therefor, he delivered to the bank as collateral security for its payment ten of the $405 notes received by him in the sale of the printing outfit to Smith & Sweet, and executed and delivered to the bank an instrument in writing or power of attorney, whereby the bank was expressly authorized, in case of default in the payment of said $300 note at maturity, or any other indebtedness due said bank by the said Pyle, without notice to Pyle or any one else, to sell at private or public sale said securities and to deliver the ' same to the purchaser thereof; the proceeds to be applied first to the cost and expense incurred in the transaction and then to the payment of 'the indebtedness thereby secured. Neither the $300 nor the $200- note-was paid at'maturity, and there is evidence to the effect that thereafter, on or about the 4th day of February, the bank, in-accordance with the terms of the written instrumént or power of attorney referred to, sold the ten collateral notes of $405 each to Milton Park at and for the sum of $507. There'was further testimony adduced to the effect that, after the purchase and acquisition of said ten notes of $405 each by appellant, Park, he, Joined by the Farmers’ Educational & Go-Operative Union Publishing Company and- George B. Latham, executed a written instrument transferring to one C. D. Reimers, who had become the purchaser of or was negotiating a purchase of the printing press outfit heretofore mentioned, the five unpaid notes of $500 each due Park, the ten notes of $345 each due Latham, and said ten notes of $405; that for this transfer of said notes, and probably for the balance of the 7,000 inches of advertising space, contracted for by the contract of October 19, 1908, there was paid to appellant the sum of $5,600; that before this sale to Reimers appellant had collected under and by virtue of said advertising contract the sum of $1,333.91.

The substance of appelleeis contention, as shown by his pleading, is that appellant, Park, was- by the terms of the contract entered into between Park, Pyle, and Latham, on October 19, 1908, made a trustee for the collection and preservation for the parties at interest of all money realized on the advertising space contract; that as such trustee he had realized on said contract the sum of $6,933.91, being the aggregate of the two amounts above mentioned, and had wrongfully ■ converted his (Pyle’s) interest therein to his (Park’s) own use. Appellant’s contention seems to be that he was in no sense a trustee for Pyle or Latham; that he was simply. an agent in the collection of money under the advertising contract; that there was no duty, trust, or obligation resting upon him to pay Pyle’s notes to the bank for borrowed money to prevent a sale of the collateral notes; that he was never instructed by Pyle to pay said notes to the bank out of funds coming to him on the advertising ■contract, or any other fund; that Pyle never furnished him any money with which to pay said notes, and that he had never agreed to pay the same; that by his purchase under the sale made by the bank he became the owner of the ten collateral notes for $405 each, and was entitled to the proceeds realized» from the sale thereof to Reimers; that the total amount received by him on the sale to Reimers and theretofore on the- advertising contract was not equal to the amount due him on his five $500 notes and the ten $405 notes bought under the bank’s sale; and that he was entitled to the whole of the fund, less the interest of Latham,.as the owner of. the ten $345 notes.

Appellant’s assignments of error need not be stated and discussed in detail. The eighth and ninth assignments .complain of the following paragraph of the court’s charge: “If you find and believe from the evidence that the defendant Park bought the said ten $405 notes from the Commonwealth NationaJ. Bank in good faith on the occasion referred to, and they were sold to him by said bank in due course of business, then you are instructed to find against plaintiff on his claim for a division of the said $5,600.” These assignments assert, respectively, that this charge is erroneous because it required the jury to find, in order to return a verdict in favor of appellant: (1) That his purchase of the ten $405 collateral notes at the sale thereof by the Commonwealth National Bank was “in good faith”; (2) that said notes were purchased in “due course of business”; (3) that it was confusing and contradictory of the tenth paragraph of the charge. We think the objections are well taken and of themselves require a reversal of the case. The record does not, in our opinion, disclose the existence of any such trust relation between the appellant, Park, and the appellee, Pyle, at the time of the sale and purchase of the collateral notes, that would inhibit a purchase of said notes by Park. The contract entered into between Park, Pyle, and Latham on the 19th day of October, 1908, simply made Park an agent for the collection and distribution of the money realized on the contract with Smith & Sweet for advertising space, as in said contract directed, and did not create, in our opinion, any trust relation between Park and Pyle for the payment of Park and Pyle’s debt to the bank out of money he may have had in his possession collected on said contract. The charge in requiring the jury to find that Park bought the collateral notes “in good faith” was calculated to mislead and induce the jury to believe that in the opinion of the court the agency of Park for the collection of money on the advertising space contract created some such trust relationship between Park and Pyle as made it, in the exercise of good failh, obligatory upon the forrnei' to pay off Pyle’s notes to the bank, if Park then had in his hands sufficient money collected on said contract to do so, and that his failure so to do was an act of bad faith towards Pyle, or for some other reason may not have acted “in good faith” in the purchase of said collateral notes. The requirement that appellant must have bought the notes “in due course of business” was practically a peremptory instruction against him on the issue to which the charge in question related. There was no pretense that the notes were sold and purchased in the due course of business. On the contrary, it was conclusively shown that, if sold at all, the notes were sold under a special contract or power of attorney authorizing such sale in the event the indebtedness, secured by their hypothecation with the bank, was not,paid at maturity. It is clear, we think, especially in view of the character of this litigation, that the errors in the charge under consideration were highly calculated to prejudice the rights of appellant. By the language of the charge complained of there were injected into the case foreign issues and a burden imposed upon appellant which we think the evidence did not justify.

The instruction also seems to be in conflict with the tenth paragraph of the charge in that said tenth paragraph tells the jury, in effect, that if Smith & Sweet did not breach the advertising space contract, and Park became the purchaser of the ten $405 collateral notes and sold them to Reimers in cancellation thereof and said advertising contract, to find against Park as to the $5,600 got from Reimers, whereas in the eleventh paragraph they are told that if Park bought said ten notes, etc., to find in his favor and against Pyle for a division of said $5,600. Thus no affirmative or definite rule or guide was given the jury to enable them to properly determine the issue involved.

Complaint is also made of the eighth paragraph of the court’s charge, which reads as follows: “You are instructed to ascertain from the evidence the amount of money collected.by the defendant Park on the claim of $1,333.91, and to such amount add the $5,600 collected- by him from Reimers, which sum will stand as a charge against the defendant Park. Then you are further instructed that, if you find and believe from the evidence that Sweet & Smith failed and refused to comply with their part of the 7,000-inch space contract, under the provisions of said contract all the parties thereto were restored to their former rights under the pre-existing contracts, and the defendant’s Park’s five notes for $500 would still be a first lien on all the property sold to Sweet & Smith, and he would be entitled to a portion of the fund collected sufficient to satisfy said $500 notes and interest, and the balance of said fund should be divided between Latham and plaintiff as their respective interests might appear.” We think the learned trial judge inadvertently fell into an error here. This instruction was prejudicial error for the reason that it ignored the issue of whether or not the appellant became and was the absolute owner of the ten $405 notes by purchase from the bank and was calculated to mislead the jury and cause them to believe that appellant, in any event, should be charged with the $5,600 received from Reimers and whatever amount he collected prior to the Reimers’ transaction on the advertising contract, save and except such an amount thereof as was necessary to pay off and satisfy his five notes of $500 each executed and delivered to him as a part of the original purchase money for the printing press outfit.

As will be observed, the charge, after telling the jury that Park’s five notes for $500 “would still he a lien on all the property sold to Sweet & Smith, and that he would be entitled to a portion of the fund collected sufficient to satisfy said $500 notes,” proceeds to instruct them without qualification that “the balance of said fund should be divided between Latham and plaintiff (Pyle) as their respective interests might appear.” The evidence was insufficient to show that Park was a trustee or agent of Pyle, in any of the matters alleged, or issues arising under the evidence, as to the payment of appellee’s notes held by the bank, the sale of the collateral notes or their purchase by Park, and if Park, at a sale made of said collateral notes in accordance with the terms of the written instrument given by Pyle to the bank, became the purchaser of said col-laterals, then Pyle had no interest in the $5,600 received from Reimers. The other assignments, unless the matter complained of in some material way conflicts with the views we have expressed, point out no reversible error.

There are assignments charging that the court erred in failing to give certain instructions, but, if such failure was error, it was an error of omission and furnishes no ground for complaint in the absence of a requested special charge covering the matter. There are other assignments complaining of certain supposed errors in the court’s charge, but a reading of the charges complained of disclose that they were statements of the appellee’s pleadings or contentions which were not only proper but important for the jury to understand.

For the reasons indicated, the judgment is reversed, and the cause remanded.


text:
    DAVIS et al. v. PARKS et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 10, 1913.
    Rehearing Denied May 31, 1913.)
    1. Appeal and Error (§ 301) — Motion for New Trial — Necessity.
    The overruling of a general demurrer going to the foundation of the action, if error, is fundamental and need not be assigned as error in the motion for a new trial in order to be reviewed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    2. Appeal and Error (§ 301) — Motion for New Triai^-Specification of Error — Necessity.
    In view of the statute, any ruling which appears of record, such as the overruling of special demurrers to the petition, may be considered on appeal, though not assigned as error in a motion for a new trial pursuant to Court of Civil Appeals rules; rule 24 (142 S. W. xii) requiring that all grounds of error relied on be specified in the motion for new trial to be considered on appeal.
    [Ed. ATote. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dee. Dig. | 301.]
    3. Schools and School Districts (§ 22)— Organization — Validity.
    Const, amend. 1909, § 3a, provides that every school district heretofore formed, whether the territory embraced within its boundaries lies wholly within a single county or partly in two or more counties, is hereby declared to be “and from its formation to have been a valid and lawful district, and that all bonds heretofore issued by such districts, which have been approved and registered, are declared to have been issued in conformity with the Constitution and laws and binding upon the district.” Held, that the constitutional amendment validated districts from their formation which were invalid because of want of constitutional authority to create them, though they were subsequently subdivided into other districts, and the fact that the district had been adjudged invalid by the Supreme Court before the enactment of the amendment would not prevent it from being validated by the amendment.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 41; Dec. Dig. § 22.]
    4. Schools and School Districts (§ 32)— Changes in District.
    An independent school district is not exempted from change by the Legislature.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-54;' Dec. Dig. § 32.]
    5. Schools and School Districts (§ 32*)— Change of Boundaries.
    Where there was no law authorizing the change of boundaries of an independent district, the fact that the president of the school board of a district was notified and heard in proceedings to detach a part of the district and place it in the district of another county would not validate the change; it being invalid for want of authority.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-454; Dec. Dig. § 32.]
    6. Schools and School Districts (§ 24)— Organization of District — Collateral Attack.
    If the organization of an independent school district was not wholly invalid, it could be attacked for irregularities in its organization only in a direct proceeding brought for that purpose and not in a collateral proceeding.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 42, 45, 47 — 49; Dec. Dig. § 24.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Suit by J. W. Parks and others against Jeff Davis and others. From a decree for plaintiffs, defendants appeal.
    Reversed, and decree rendered for appellants.
    Collins, Cummings & Shurtleff, of Hills-boro, for appellants. R. S. Neblett and R. R. Owen, both of Corsicana, for appellees.

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

   TALBOT, J.

This suit was brought by the appellees to enjoin the appellants, who are trustees of the Mertens independent school district, from issuing bonds and levying taxes for school purposes in said district. A general and several special demurrers, urged by defendants to plaintiffs’ petition, were by the trial court overruled, and by appropriate assignments of error these rulings are presented for review. The petition alleges that tlie Mertens independent school district embraces within its limits territory lying in Hill, Ellis, and Navarro counties, and that each of the plaintiffs own land situated in said district subject to taxation for state, county, and local school purposes; that, unless defendants, who were acting, or purporting to act, as the trustees and school board for the said Mertens independent school district, were enjoined and restrained, they would attempt to levy and collect a tax upon the property of plaintiffs situated in said district, and would issue a bond and bonds in the name and under the guise of the law in the sum of $12,500 and burden the property of the plaintiffs to pay said bonds, would fix a tax as a lien and charge upon their said property for the period of 40 years and force plaintiffs annually to pay taxes for the liquidation of the principal and interest on said bonds; that defendants have no authority, right, or power to levy and collect such tax or to issue such bonds for the reason that said district has never been incorporated and defendants are not legal trustees; “that on March 18, 1905, the village of Mertens had not been incorporated for municipal purposes, but on said date, to wit, March 18, 1905, an election was held in Mertens for the so-called Mertens independent district to determine whether Mertens, with the territory surrounding said village of Mertens and constituting the so-called Mertens independent school district, should be incorporated for school purposes only; that, in said election for the incorporation of the Mertens district for school purposes only, there were cast ‘for incorporation’ 52 votes, and ‘against incorporation’ 34 votes; that in said election many persons voting for incorporation of said district voted illegally and without any right or authority; that many of said persons voting for incorporation lived in Ellis and Navarro counties and went into Hill county and voted illegally in Hill county in said incorporation election; that said election for incorporation was null aud void, because there was never any order issued by the county judge or commissioners’ court of either Ellis or Navarro counties for such election; that no polling places were provided in Navarro and Ellis counties at Which the voters residing in these respective portions of the district could lawfully cast their ballot in the counties of their residence, and that the only polling place provided was at Mertens in Hill county at which those voters in the district residing in Navarro and Ellis counties could not legally vote; that, after the votes illegally cast for incorporation as above alleged are deducted from those counted for incorporation, there will remain considerably less than the requisite number of votes for incorporation to carry the election ‘for incorporation’; * * * that said null, illegal, and void election for incorporation of Mertens for school purposes only is the only authority for the acts of the defendants as the trustees of Mertens independent school district, and is the only authority they have to act as the alleged trustees of such district.”

Plaintiffs further allege “that the validity and legality of the so-called Mertens independent school district, formed and incorporated as hereinbefore shown, was called in question by a suit filed in the district court of Navarro county, Tex., on July 1, 1906, entitled J. W. Parks et al. v. R. C. West et al., No. 6,839, on the docket of said court, and said suit was tried in said district court and was appealed to the Court of Civil Appeals and the Supreme Court of Texas, which last court held that said Mertens independent school district was illegally formed and was invalid; * * * that by the said mandate of the Supreme Court, which is now the judgment of this court, binding upon defendants, who are the successors of the defendants in the cause of Parks v. West, above mentioned, said defendants were perpetually enjoined and restrained from collecting, or attempting to collect, a tax in the Mertens independent school district; that the matter of the validity and legality of the Mertens independent school district has already been judically determined and ascertained and the determination by the Supreme Court that said district was illegally formed and was invalid is now a matter which is concluded by the judgment of the Supreme Court, as above shown; and plaintiffs say that defendants are now acting in violation of the judgment of the district court of Navarro county and of the Supreme Court of Texas in that they, acting as the board of trustees for the so-called Mertens independent school district, did on March 5, 1912, order an election to be held in such district on April 8, 1912, for the purpose of voting on said district bonds in the sum of $12,500 and to vote a tax on said district for the purpose of paying said bonds at maturity, said bonds due and payable 40 years from date; and they are arranging to hold, and intend to hold, on said date said election. * * * Plaintiffs further allege that on March 5, 1912, defendants, purporting and claiming to act as the school board for Mertens independent school district, made and entered an order calling for a bond election in said district for the purpose of determining whether or not said district would vote upon itself bonds to the extent of $12,500 due and payable 40 years from date, and to levy and to collect annually a tax on the property in said district to pay said bonds at maturity and all interest thereon, said bonds to bear 5 per cent, interest per annum payable annually; that in the order for said election no limit is placed upon said trustees or their successors as to rate at which such taxes shall be levied and collected, and plaintiffs say that said order is null and void because of its indefiniteness or uncertainty in this respect, and they say that defendants may and will levy said taxes at a rate much greater than the law permits and allows; that said order for the bond election is null and void in that it does not describe with any certainty and particularity the territory to be included in such district but is general, indefinite, and uncertain.”

It is further alleged “that, as to the plaintiffs and the residents of the Mertens district who reside in Navarro county, said defendants have no right, jurisdiction, or authority, or power to levy the said proposed tax on their property or to burden the same with bonds as hereinbefore stated, for that during February and March, 1906, the commissioners’ court of Navarro county, proposing to act, and having the power to act, in the premises, upon the petition of plaintiffs and others residing in the Navarro county portion of said Mertens independent school district, placed the Navarro county portion of said Mertens district in and made such territory a part of the Park Goodman school district No. 84, and eliminated and excluded such territory from the Mertens district; that due notice was given to the trustees of the Mertens independent school district of this proposed action of the commissioners’ court of Navarro county, and said trustees were represented and appeared before the commissioners’ court in the proceedings to detach such territory from the Mertens district and attach it to the Park Goodman district No. 84 in Navarro county, Tex., and plaintiffs say that said defendants are wholly without authority to act as to the people living in, and the territory of, said district in Navarro county; that the Ellis county portion of the Mertens district has by the commissioners’ court of Ellis county, in a proceeding in which the trustees of Mertens district were represented and heard, been detached from the Mertens district and has been annexed and added to the Shady Grove district in Ellis county and afterwards added to Milford school district in Ellis county, and plaintiffs say that defendants are wholly without authority and power to act as to the people and territory of said Mer-tens district being and lying in Ellis county; that a portion of the territory of said Mertens district has by the concurrence of Richland school district and the trustees of Mertens district been annexed to Richland school district in Hill county.”

Plaintiffs further allege “that after the decision and judgment of the Supreme Court of Texas in the case of J. W. Parks et al. v. R. O. West et al., above referred to, on the 17th day of June, 1908, the several boards of school trustees for the Mertens school district have voluntarily abandoned and relinquished any claim or right said Mertens district ever had over the territory of said district lying and being in Navarro county, and all of said school boards elected since the decision in said cause above mentioned have agreed and consented that the Navarro county territory in such Mertens school district could be incorporated into school districts in Navarro county, and that the Ellis county portion of the Mertens district could be incorporated into school districts in Ellis county, and said boards of trustees for the Mertens district have waived every right to claim such portions of said district to belong to and be a part of said district at Mertens, and plaintiffs say that said trustees, defendants herein, are estop-ped and precluded from now setting up any claim to said portions of the old Mertens district. Plaintiffs further allege that the defendants have ordered an election for the Mertens independent school district to be held on April 8, 1912, for the purpose of issuing bonds in the sum of $12,500 and levying taxes to pay the same, with interest thereon; that plaintiffs are informed and believe that, while the Navarro and Ellis county portions of the Mertens district in which plaintiffs live is no part of the Mer-tens district now, defendants assert that such territory still.is a part of the Mertens independent school district and assert further that it is their purpose to vote said bonds and taxes on the Mertens district to include the Navarro and Ellis county territory; that unless defendants are restrained and enjoined and do proceed, as they threaten to do and will do, to levy such special tax upon the real property aforesaid of the plaintiffs and issue the said bonds so voted upon, such acts will result in great and irreparable injury to plaintiffs and each of them, for which they have no adequate remedy at law, wherefore plaintiffs pray that on final hearing defendants and each of them be perpetually enjoined and restrained from holding said bond election, and declaring the result of same, from levying, or attempting to levy, the tax hereinbefore described, from collecting, or attempting to collect, said tax, and from issuing, or attempting to issue, sign or circulate, sell or dispose of the bond or bonds hereinbefore described; that upon final hearing the so-called Mertens independent school district be declared invalid and illegal; that upon final hearing upon proof of the facts hereinbefore stated the defendants and their successors be perpetually enjoined from levying, or attempting to levy, such tax, from collecting, or attempting to collect, said tax, and from issuing, or attempting to issue, float, sell, sign, or dispose of said bonds, and plaintiffs pray for all costs of suit and for all other and further relief, general and special, legal and equitable, to which from the premises they may be entitled.”

The assignments of error, with one exception, complain solely of the court’s action in overruling defendants’ general and special demurrers to the petition of plaintiffs, and upon the correctness of these rulings depends, in our judgment, the right of plaintiffs to maintain this suit and secure the relief sought. Appellees, however, object to a consideration of appellants’ assignments of error because the record fails to show that appellants, as required by amended rule 24 promulgated by the Supreme Court for the government of the Courts of Civil Appeals. (142 S. W. xii), filed in the court below a mo-" tion for a new trial calling that court’s attention to the errors here assigned. That rule plainly makes it incumbent upon the party cast in the suit to file in the trial court a motion for a new trial distinctly specifying therein all grounds of error relied on in order1 to avail himself of such errors on appeal, unless the same are fundamental; but in the recent case of Railway Company v. Beasley (Sup.) 155 S. W. 183, the Supreme Court has held that the giving or refusing of charges, and, in effect, any other ruling which appears of record, need not, because of the statute on the subject and its construction in former decisions of that court, be included in a motion for a rehearing in the trial court. However, the objections to a consideration of the assignments in' this case are not well taken, for the reason that, if the court erred in its rulings on defendants’ demurrers such errors, in our judgment, are fundamental, or, according to the decision in the case of Railway Company v. Beasley, supra, are not of such character as must be embraced in a motion for a new trial in the court below in order to be made available as a ground for reversal on appeal.

The exceptions of the defendants to the plaintiffs’ petition we regard as nothing more in effect than a general demurrer, going to the very foundation of the action, and it is well settled in this state that the overruling of such demurrer, if error, is fundamental. Hall v. Johnson, 40 S. W. 47; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518.

But if the matters excepted to in defendant’s special demurrers cannot be reached by a general demurrer, still appellants’ assignments challenging the correctness of the court’s rulings on these demurrers, although such ruling may not constitute fundamental error, is entitled to consideration under the decision in Railway Company v. Beasley, supra. The question then is, Did the trial court err in overruling defendants’ general demurrer and special exceptions or either of them?

The special demurrers except: (1) To that part of the petition which alleges that the Mertens independent school district was not properly and legally organized, upon the ground that the same involves a collateral attack upon the organization of said district ; (2) to that portion wherein it is alleged that the school district in question has been held to be invalid by the district court of Navarro county, Tex., and the Supreme Court of the state of Texas, in the case of Parks v. West, for the reason that since said judgment and decision of said courts the people of the. state of Texas have adopted an amendment to the Constitution of the state of Texas declaring the said school district to be valid, and to have been valid since its organization; (3) to that portion wherein it is alleged that school districts have been organized out of the territory constituting the Mertens independent school district in the various counties composing said district for the reason that, after the adoption of the constitutional amendment declaring the said Mertens independent school district to have been valid from the time of its formation, it was impossible for legal school districts to have been formed out of the territory included in said Mertens independent school district; (4) to that part which alleges that defendants are without authority to act as school trustees of the Mertens independent school district, for the reason that the authority of the defendants cannot be questioned in a proceeding of this kind, but could only be questioned in a quo warranto proceeding or a suit by a person having an interest in the suit and acting under and by the authority of the state of Texas; (5) to that part which alleges that the order for the bond election is void because the boundaries are not set out with certainty, because the same is a collateral attack upon the organization of said district; (6) to that part which alleges that the trustees of the Bler-tens independent school district abandoned territory to districts afterwards formed and consented to the formation of said new districts, and are therefore estopped to claim a right to act as trustees of said Mertens independent school district, because the existence of said district could not be affected in any manner by such action.

We are of the opinion the court erred in overruling the demurrers. Admitting, as must be done for the'purposes of the demurrers, that all the facts alleged are true, yet, under the statute, the organic law as recently amended, and the decision in Gillespie v. Iightfoot, 103 Tex. 359, 127 S. W. 799, they furnish no cause of action for the relief asked. Since the school district in question was held in Parks v. West, 102 Tex. 11, 111 S. W. 726, to be forbidden by the Constitution, an amendment to that instrument has been adopted, which reads as follows: Sec. 3a. “Every school district heretofore formed, whether formed under the general law or by special act, and whether the territory embraced within its boundaries lies wholly within a single county or partly in two or more counties, is hereby declared to be, and from its formation to have been, a valid and lawful district. All bonds heretofore issued by any such districts which have been approved .by the Attorney General and registered by the comptroller are hereby declared to be, and at the time of their issuance to have been, issued in conformity with the Constitution and laws of this state, and any and all such bonds are hereby in all things validated and declared to be valid and binding obligations upon the district or districts issuing the same. Each such district is hereby authorized to, and shall, annually levy and collect an ad valorem tax sufficient * * * to redeem the same at maturnity, not to exceed such a rate as may be provided by law under other provisions of this Constitution. And all trustees heretofore elected in districts made up from more than one county are hereby declared to have been duly elected, and shall be and are hereby named as trustees of their respective districts, with power to levy the taxes herein authorized until their successor shall be duly elected and qualified as is or may be provided by law.” The adoption of this amendment had the effect to cure the infirmity in districts of the character of the Mertens district, "due to the want of constitutional authority to form them, and validates such district from their original formation, even though they may have been irregularly created and subsequently subdivided into other districts.

This, in substance, is the holding in Gillespie v. lightfoot, supra, as we understand that decision. In that case it is said: “The school districts referred to in the first clause (of the amendment) are declared to be, and from their formation to have been, valid and lawful districts. Whether they were in truth valid or not, under the law as it existed before, they are to be treated now as if they always were and yet are valid. By the express language of the people, the law which made them formerly invalid, according to our decision in Parks v. West, is changed so that they are henceforth to be regarded as continuously lawful from their formation.” In Gillespie v. Lightfoot, the Supreme Court was dealing with an independent school district named the “Mart high school,” which, like the Mertens district, embraced originally territory from three contiguous counties, but which, after the decision in Parks v. West, and before the amendment to the Constitution above quoted, had been dismembered and practically destroyed by the town of Mart assuming control of. its own schools and the action of the respective commissioners’ courts of Falls and Limestone counties in withdrawing and distributing the territory of those counties, which formed a part of the “Mart high school” district, into common school districts. In discussing the authority of the commissioners’ court to make such a distribution and its effect upon the Mart high school district, the Supreme Court, speaking through Mr. Justice Williams, after declaring that both the independent district and the common school district could not be regarded as existing, says, in effect, that the rule is in such case that the independent districts are to be considered as having always had a lawful existence; that, since they were formed under the general law or by special act, their legality is established by the very language of the first clause of the amendment; that “while- others, such as those subsequently formed in the same territory, are also within the words “heretofore formed,” it cannot be said of them, consistently with the assumption of the original and continued validity of those first formed which the amendment requires us to make, that they were “formed under the general law or by special act,” for the reason that no such authority over valid independent school districts as that exercised by the authorities of the town and counties over the Mart high school district was given by law to those bodies. He further says: “Viewed as valid districts, those of the kind to which Mart high school belonged were quasi corporations, the officers of which exercised control over all the territory included in them for the purpose of supporting and conducting the public schools therein, and the school laws regulating the formation of independent school districts seem to exclude the existence of any such power over the territory of one lawfully constituted as the commissioners’ courts of Palls and Limestone counties and the authorities of the town of Mart exercised over the district in question. Such districts are established in order that the territory in them may be utilized for the maintenance of their schools, and, for such purposes, they are put in the control of trustees chosen by their own people. They become legal entities, with power to levy taxes, incur obligations, maintain and conduct schools, for which purposes the property situated in them is liable to be taxed. The power of commissioners’ courts to change their boundaries, given by section 52 of the act of 1905 (page 277) is subject to limitations which show that it was not intended thereby to authorize action such ias that taken by the courts of Palls and Limestone counties with respect to the territory of lawfully constituted independent school districts. That action evidently was taken because of the decision of this court holding such districts as the Mart high school to be invalid and because it then had- no legal existence as an obstacle to the course taken, and not as the exercise of the power given by the statute referred to merely to change boundaries. That the town of Mart would not have had power to take itself out of a legal independent district in which it had been lawfully included is evident from the provisions of the act of 1905 (sections 149, 151, pp. 302-303). We think, therefore, it may safely be assumed that, without legislative authority existing beyond any in the then existing laws, a lawfully constituted independent school district could not have been disestablished by such action as was taken by the authorities of the town and counties.”

By the foregoing construction of the constitutional amendment, it is settled that the Mertens independent school district is to be treated as valid from the beginning, and having become a legal entity, with power and authority to incur obligations and levy taxes upon the property situated in it for the purpose of maintaining and conducting schools therein, could not be disestablished by the action of the commissioners’ courts of Hill, Ellis, and Navarro counties in withdrawing the territory of their respective counties from said district and consolidating the same with othqr school districts or creating other districts out of it, without “legislative authority extending beyond any in the then existing laws.”

That independent school districts, such as the Mertens district, are not exempted from ■change by the Legislature or under its authority, is affirmed by the decision in Gillespie v. Lightfoot, but that no such authority for the change attempted to be made in the Mertens district existed at the time of such attempt is also affirmed by the decision mentioned.

There being no law authorizing the change attempted to be made, the fact that the president of the “Mertens district school board” was notified and heard in the proceedings to detach the Navarro county portion of the Mertens district and place it in a school district in that county becomes immaterial. That portion of the opinion in Gillespie v. Lightfoot declaring that the Mart high school district “could not have been disestablished by such action as was taken by the authorities of the town and counties” does not appear to have been based upon a failure to give notice of such proposed action. Indeed, it does not appear from the report of the case that such notice was not given. Nor do we think the instant case is materially different from Gillespie v. Lightfoot because its original creation was adjudged invalid for want of constitutional authority in the case of Parks v. West. We do not believe because the status of the Mertens independent school district had been judicially determined before the constitutional amendment, declaring all such districts theretofore formed to be valid from their formation, took effect interposed any obstacle to its validation by such amendment. Appellees cite no authority against this view, and it seems to be sustained by Hammond v. Clark, 136 Ga. 313, 71 S. E. 479, 38 L. R. A. (N. S.) 77. As authority for the proposition that the action of the commissioners’ courts of Navarro and Ellis counties in detaching that portion of the territory situated in their respective counties from the Mertens district was authorized by law, and that created out of the same could not be invalidated by the adoption of the constitutional amendment, appellees cite the cases of Tomlinson v. Hunnicutt, 147 S. W. 612, and State ex rel. Johnson v. Dudley, 153 S. W. 1156. These cases sustain the proposition in the ease of common school districts, but as applied to independent school districts do not purport to be and are not authority sustaining the proposition. If so, then they are, in our opinion, in conflict with the views expressed by the Supreme Court in Gillespie v. Lightfoot and at variance with the views of this court.

Touching the allegations of the petition, excepted to by appellants, to the effect that the laws regulating the creation of independent school districts were not followed in the organization of the Mertens district, it may be said there was a substantial, if not a strict, compliance with the provisions of the law on the subject; that, if for any reason urged the district was formed without a compliance with the laws prescribing the method arid manner of organizing such districts, its creation was validated and made legal by the amendment to the Constitution adopted in 1909.

Besides, such districts having been declared to be and from their formation to have been valid and lawful, by said constitutional amendment their corporate existence and the rights of the trustees to exercise their functions, etc., could not thereafter be questioned in a collateral proceeding on account of a failure to strictly comply with the provisions of the law prescribing the procedure for their organization. Their invalidity for such reason (that is, irregularities in their creation) could only be shown in. a direct proceeding instituted for that purpose. El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; White v. Quanah, 27 S. W. 839; Coffman v. Goree Independent School District, 141 S. W. 132; Wilson v. Brown, 145 S. W. 639.

The eighth and last assignment of error need not be considered. From what has been said it follows that, in the opinion of this coui't, plaintiffs’ petition showed upon its face that they were not entitled to the injunction and relief therein prayed for, and therefore that defendants’ demurrers thereto should have been sustained; and the cause having been tried on its merits, and having been fully developed by the pleadings and evidence, we will proceed to render such judgment in this court as should have been rendered in the district court.

It is therefore ordered that the judgment of the district court be reversed and rendered in favor of appellants, dissolving the injunction, and dismissing the cause.


author: RASBURY, J.

text:
    FIRST STATE BANK OF MT. CALM v. FAIN et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 10, 1913.
    Rehearing Denied May 31, 1913.)
    1. Venue (§ 28)—Domicile of Parties— Statutory Peovisions.
    The cashier of a bank, who was a minor while employed as cashier, whose father did not reside in the county in which the bank was located, and who was never in that county after attaining his majority, except while under arrest on a criminal charge, was not a resident of that county so as to permit an action against him and the surety on his bond to be brought therein under Rev. Civ. St. 1911, art. 1830, § 4, which provides that, where there are two or more defendants residing in different counties, suit may be brought in any county where any one of the defendants reside, since the residence of a minor in law is that of his father.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 42; Dec. Dig. § 28.]
    2. Venue (§ 68) — Motion for Change — HEARING AND DETERMINATION — EVIDENCE.
    In an action against the cashier of a bank and the surety on his bond brought in the county where bank was located, where the surety filed a plea of privilege and showed that the cashier while so employed was a minor, the burden was on plaintiff to show a legal or actual emancipation permitting him to acquire a residence in that county separate from the residence of his father.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 121; Dec. Dig. § 68.]
    3. Venue (§ 14) — Actions on Contract — Place oe Performance.
    The surety on the bond of a bank cashier, which recited that the cashier was to perform certain duties for the bank and required the surety to make good any losses due to his acts, could not be sued in the county where the bank was located under Rev. Civ. St. 1911, art. 1830, § 5, which provides that, where a person has contracted in writing to perform an obligation in a particular county, suit may be brought in that county, since the obligation of the surety was entirely separate from the obligation of the cashier, which was to be performed in the county where the bank was located.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 21, 27; Dec. Dig. § 14.]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Action by First State Bank of Mt. Calm against E. C. Fain and another. From a judgment changing the venue after a trial on defendants’ plea of privilege, plaintiff appeals.
    Affirmed.
    Duther Nickels, of Austin, for appellant. Jno. W. Davis, of Waco, for appellees.

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

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

   RASBURY, J.

Appellant sued E. C. Fain, Jr., and J. R, Milam in the court below upon a fidelity bond executed in favor of appellant by Fain as principal, and Milam as surety, alleging that Fain’s legal residence was in Hill county, but that at the time suit was filed he was without the boundaries of the state of Texas and his whereabouts unknown, and that Milam resided in McLennan county. The bond recited that Fain was appellant’s cashier and as such he would receive, control, and have access to and be chargeable with money, property, and other things of appellant bank, and its customers. The condition of the bond was that Fain should “well and faithfully perform all of his duties,” and upon failure to do so Milam agreed to “hold the bank harmless for any loss occasioned by any act of such officer until all his accounts with the bank shall have been fully settled and satisfied.” The suit was to recover defalcations by Fain to the full penalty of the bond. Service of citation upon Fain was by publication under authority of the statute. The service upon Milam, who resided in McLennan county, was personal. Milam, by appropriate plea, asserted his privilege to be sued in McLen-nan county, negativing those exceptions in the statute that would confer venue upon the district court of Hill 'county. Upon call of the case jury was demanded, and to the jury the issues of fact under the plea of privilege were submitted, and upon which the jury found for Milam, and in accordance with which the court entered judgment changing the venue of the suit to McLennan county and directing the clerk to make up transcript of the record and transmit the same with the original papers to the clerk of the 'district court of McLennan county, Tex.

The undisputed facts, as far as were developed on the hearing of the appellee’s plea for a change of venue to the county of his residence, are that Fain entered the employ of appellant as its cashier in June, 1907, and remained with the bank until January 1, 1909. After leaving the bank, Fain was away from Hill county until the spring or summer of the same year (1909), when he was arrested and brought back upon criminal process issued upon an indictment for certain defalcations while in the employ of the bank. In the spring or summer of 1910, Fain left the state of Texas and went to New Orleans. When last heard of he was in the state of Georgia. He has had no actual residence in Hill county since he left there in January, 1909. Fain was born May 24, 1888, and at the time he entered the employ of the bank and when he quit or was discharged in January, 1909, his father, E. O. Fain, was residing in Weatherford, Parker county, Tex., and had resided there for 40 years prior thereto. The petition in the instant case was filed February 3, 1912. As we have said, there was no personal service of citation upon Fain; service was by publication.

There are many assignments of error contained in the brief, which raise correct questions of law, and which might, under a different state of facts, present error, and we are not to be understood as overruling them. From our view of the case it does not seem necessary to discuss them, except academically, which we pretermit for obvious reasons.

Under the undisputed facts just recited, appellant asserts that Fain acquired a. legal residence in Hill county, and that it had the right to bring its suit in that county under the fourth section of article 1830, R. S. 1911, permitting the bringing of the suit in the county of the residence of either of the defendants, whether he was then actually within the county or state. But appellee Milam asserts in reply that the evidence is undisputed that Pain was a minor when he first tools up his residence in Hill county and was yet a minor when he left, and, that being true, his residence was that of his father, and that all other questions are immaterial. The statement of both the facts and the law seems to us correct. Fain left Hill county in January, 1909, and only returned when arrested and then involuntarily. He became 21 years old May 29, 1909, and at no time since said date is anything shown tending to establish residence in Hill county. That the residence of a minor in law is that of the father is now the settled rule in this state. Lanning v. Gregory, 100 Tex. 310, 99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809.

In this connection the evidence does not show, nor is it urged in the brief of appellant, that Fain had either in fact or in law been emancipated. Appellant does make the claim that it was the duty of appellee to show that Fain had not been emancipated. When Milam established Fain’s minority, the burden of establishing either legal or actual emancipation shifted to appellant under well-known rules. Appellant also contends that it was not necessary to sustain the venue in Hill county for Fain to have actually been a resident of that county at the time suit was filed. This contention is based upon those cases which hold that if a person maintain a residence in more than one county, residing alternately or a part of his time in both counties, he may be sued in either. Pearson v. West, 97 Tex. 238, 77 S. W. 944. The statement of the rule precludes its application if the minor’s residence follows his father’s since under the latter rule it would be necessary to show residence by the father of Fain in Hill county, rather than residence by Fain.

It is also contended by appellant that the venue of the case was properly laid in Hill county for the reason that Milam’s obligation under the bond was performable in Hill county, and hence within the fifth exception of the statute permitting defendants who are inhabitants of this state to be sued in a county other than that of his domicile. Article 1830, § 5, R. S. 1911. We think it clear that the bond sued upon in no respect required Milam to perform his obligation as surety in Hill county. His obligation in simple language is to pay the bank any losses due to the acts of Fain. The bond is silent concerning where he shall pay the losses, if any result. Nor is there anything in the bond which, by implication, can be said to be an agreement to pay in Hill county. The recitals in the bond that Fain was to perform certain duties to be in behalf of a bank doing business in Hill county, and as a consequence liis duties performable there, does not furnish sufficient basis for holding that Milam should pay his losses in that county. The performance of the duties of cashier was Fain’s contract. To make good Fain’s losses was Milam’s contract The agreements were separate and independent. Milam, it occurs to us, had nothing to do with the performance of Fain’s duties. He might have been both incompetent and incapable, and yet no losses have resulted and as a consequence no liability on the part of Milam. We mention this only to illustrate the separateness of the undertaking of Fain and Milam and as a reason why the performance of Fain’s duties in Hill county furnishes no reasonable basis for the conclusion that Milam was to in like manner perform his liability in case of loss in said county. Cohen v. Munson, 59 Tex. 236; Lindheim v. Muschamp, 72 Tex. 35, 12 S. W. 125. The case of State v. Woodville, 13 Tex. Civ. App. 217, 35 S. W. 861, it occurs to us, is not applicable here. The facts in that ease present an entirely different situation from that developed in the instant case. AVoodville was a liquor dealer in 'Nacogdoches county, and the statutory bond he was required to give was in effect that he would conduct his saloon in that county as required by law. The obligation, of his sureties was that he would do that and do it in Nacogdoches county. What we have just said is enough to illustrate the difference in the instant case and the Woodville Case, supra. Much more could be said to differentiate the two cases.

Finding no reversible error in the judgment of the court below, it is affirmed.


text:
    RICHARDS et al. v. CREIGHTON et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 12, 1913.
    Rehearing Denied May 17, 1913.)
    VENDOR AND PURCHASER (§ 341) — OPTION— Election — Performance—Instructions.
    Plaintiffs, having purchased from defendants a certain block H. in a city addition, by mutual mistake, the deed conveyed another block designated “G. in the same addition. The mistake having been discovered, a written contract was made by which the vendors should grade block G. in a certain manner, the grading to be completed by February 1, T910, and on completion the vendees would accept that block in the place of block H. and pay the vendors an additional sum. Held that, under the rule that time is of the essence of option contracts, the court properly refused to charge that, if defendants attempted to exercise the option and failed in part only, then the measure of plaintiffs’ damages would be the difference between the cost of grading block G. if done, and what it would cost if completed according to the terms of the option, and charged that, if defendants failed on or before the dates specified or within a reasonable time thereafter to grade block G. according to the terms of the option, then plaintiffs were entitled to recover the money paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dec. Dig. § 341.]

      Error to District Court, iPalo Pinto County; W. J. Oxford, Judge.
    Action by J. R. •Creighton and others against Frank Richards and others. Judgment for plaintiffs, and defendants bring error.
    Affirmed.
    McKenzie & Kinchen, of Ft. Worth, for plaintiffs in error. Penix & Eberhart, of Mineral Wells, for defendants in error.

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

   DUNKLIN, J.

W. M., C. L., and J. R. Creighton purchased from Frank Richards and Geo. T. Liles, block H in the O’Neall & Cunningham addition to the town of Mineral Wells; but by mutual mistake the deed executed by the vendors to consummate the sale described the property conveyed as block G, which was another block in the same addition. Thereafter the parties entered into a contract in writing which, after reciting the mistake together with the further recitation that the purchasers had paid to the vendors the sum of $700 for the property conveyed, stipulated that Richards and Liles should have the option to do one of three things, upon the doing of which the purchasers would accept block G in lieu of block H. The third option given to Richards and Liles is the only one material to be mentioned. That was an option to Richards and Liles to grade block G in a certain manner stipulated, the grading to be completed February 1, 1910, and upon the completion of which the Creigh-tons were to pay to Richards and Liles an additional sum of $150. The Creightons instituted this suit against Richards and Liles to recover the $700 paid for block H, alleging the purchase of that block and the failure of the defendants to convey the same, and from a judgment in favor of the plaintiffs for $700 with interest thereon at the rate of 8 per cent, per annum from January 1, 1908, until the date of the judgment, with foreclosure of lien on block G, the defendants have prosecuted this writ of error.

The only defense urged was that the defendants had exercised the third option and had graded block G in compliance with the terms of the option. The evidence showed without controversy that defendants began the work of grading prior to February 1, 1910, and the defendants introduced testimony tending to show that it was completed in accordance with the terms of the option on or before that date. But according to testimony introduced by the plaintiffs the work was never completed at any time in the manner stipulated in the contract.

Plaintiffs in error have assigned error to the court’s refusal of an instruction requested by them in effect that, if defendants attempted to exercise the option above mentioned and failed in part only, then the measure of the plaintiffs’ damages would be the difference between the costs of grading block G as done and what it would cost if completed according to the terms of the option. There was no error in refusing this instruction. . The general rule is that time is of the essence of option contracts, and there is nothing in this record tending to show any exception to that rule in plaintiffs in error’s favor. Furthermore, in the court’s charge to the jury plaintiffs’ right to a recovery was made to depend upon a finding “that the defendants failed on or before February 1, 1910, or within a reasonable time thereafter,” to grade block G in accordance with the terms of the option, and the jury were further instructed that, if they should find that the grading was completed on or before the date mentioned “or within a reasonable time thereafter,” then they should return a verdict denying plaintiffs a recovery and awarding defendants the sum of $150 against the plaintiffs. Interpreted in the light of this charge, we have a finding by the jury that defendants did not complete the grading even within a reasonable time after February 1, 1910. Under the terms of the option they were not legally bound to do the grading, and, if they did not exercise the option given them by the contract to satisfy plaintiffs’ demand, clearly plaintiffs had the right to sue for a rescission of the contract of purchase and sale of block H and to recover the purchase price paid therefor.

The charge given is assailed by different assignments, and there is also an assignment to the order overruling defendants’ motion for a new trial. The propositions submitted under these assignments present substantially the one contention that the charge had no sufficient predicate in the plaintiffs’ pleadings and the evidence introduced. As shown by the statements noted above, this contention is without merit.

The judgment is affirmed.