source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    PYLE v. PYLE et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 4, 1913.
    Rehearing Denied June 28, 1913.)
    1. Deeds (§ 211) — Judgment (§ 461*) — Sufficiency of Evidence — 'Validity—Mental Incapacity.
    In an action to set aside a deed given to pay community debts and a judgment confirming the conveyance, evidence held sufficient to warrant the jury in finding that the grantor was insane at the time he made the conveyance and at the time the judgment was rendered, and that the grantee had knowledge of such insanity.
    LEd. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211; Judgment, Cent. Dig. §§ 892, 893, 895; Dec. Dig. § 461.]
    2. Cancellation op Instruments (§ 51)— Judgment (§ 463) — Equitable Relief— Instbuction — Insanity.
    In such an action ^an instruction which required the jury to find that the grantor was insane at the time he executed the deed, that the grantee knew of such insanity, and fraudulently procured the conveyance by undue influence for less than the property was worth, and that the grantor was still insane at the time the judgment was rendered, before they could find for the plaintiffs, was as favorable to the defendant as he could ask.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 108; Dec. Dig. § 51; Judgment, Cent. Dig. § 896; Dec. Dig. f 463.]
    3. Insane ' Persons (§ 100) — Judgment against — Validity.
    A judgment against an insane person is voidable only, not void.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 179-184; Dee. Dig. § 100.]
    4. Insane Persons (§ 100) — New Trial (§ 15) — Vacating—Insane Defendant.
    Where a judgment has been rendered against an insane person by a court which is ignorant of his insanity, which judgment confirms a voidable conveyance by the lunatic, the judgment may be set aside by an action brought for that purpose, or by an application for a new trial, upon an offer to restore the consideration, or a proper showing of facts which avoid the necessity of restoration.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 179-184; Dee. Dig. § 100; New Trial, Cent. Dig. § 21; Dee. Dig. § 15.]
    5. Insane Persons (§ 66) — Conveyances— Remedies.
    Where a grantee, who had fraudulently secured a conveyance of land from his brother, knowing that he was insane, and had thereafter brought suit to confirm the deed and secured a judgment, had conveyed the property to an innocent purchaser before the action to set aside the deed and judgment was instituted, the guardian of the insane person may recover damages against the grantee.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. § 66.]
    6. Insane Persons (§ 66) — Conveyances— Remedies — Measure of Damages.
    In such an action, the measure of damages is the difference between the amount paid by the grantee and the actual value of the land, not the price for which the grantee sold it.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. § 66.]
    7. Husband and Wife (§ 274) — Community Property — Rights of Heirs — Actions.
    Where a surviving husband was insane at the time he conveyed community property for the ostensible payment of community debts, and a judgment confirming the conveyance had been obtained against him and the minor children, in an action in which both the court and guardian ad litem were ignorant of the-grantor’s insanity, the judgment is not binding upon the children, but may be set aside by their permanent guardian.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. S 274.]
    8. Husband and Wife (§ 273) — Rights of Survivor — Conveyance to Pay Community Debts.
    A surviving husband can convey community property to pay community debts, even without administration, if he is sane and the transaction is free from fraud.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    9. Husband and Wife (§ 274) — Right of Heirs — Actions.
    In an action to set aside a judgment confirming, as against minor children, a conveyance by their father of the community property after their mother’s death, which conveyance was made while he was insane, ostensibly for the payment of community debts, the fact that the guardian ad litem of the children in the former proceeding testified at the later trial that he then thought that the father was sane at the time the former judgment was rendered does not affect the right of the children to have the deed set aside.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. § 274.]
    10. Trial (§ 260) — Requested Instructions —Instruction Already Given.
    A requested charge which is already covered in the court’s main charge is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]

      Appeal from District Court, Wilbarger County; S. P. Huff, Judge.
    Suit by T. J. Pyle and others against J. G. Pyle. Judgment for the plaintiffs, and defendant appeals.
    Affirmed.
    Read & Lowrance, of Dallas, and L. P. Bonner, of Vernon, for appellant. Mathis & Kay, of Wichita Palls, and Storey & War-lick, of Vernon, for appellees.

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

   HENDRICKS, J.

This suit was instituted in the district court of Wilbarger county, Tex., on January 24, 1912, by T. J. Pyle, Mrs. Anabel Swink, joined by her husband, J. W. Swink, Mrs. E. C. Pyle, William S. Pyle, Elizabeth Lou Pyle, and Richard Maxwell Pyle, minors, by their next friend, T. J. Pyle, and R. M. Pyle, by his next friend, T. J. Pyle, against J. G. Pyle.

On the 11th day of July, 1907, R. M. Pyle, who on account of his insanity is represented here by his next friend, T. J. Pyle, and his children by former wife, who are the other plaintiffs in this cause, were the owners of section No. 24, block 13, H. & T. C. Ry. Co. survey — the children and their father each owning an undivided one-half interest — and upon the said date the said R. M. Pyle executed and delivered to his brother, the defendant J. G. Pyle herein, a deed to said section of land, which is attempted to be sustained in this suit on the basis of the existence of community debts, and the conveyance of the land for the purpose of paying the same; and thereafter in 1908 J. G. Pyle brought suit in the district court of Wilbarger county, Tex., against R. M. Pyle, in trespass to try title, also making his children by the former wife parties defendant in said cause, the minors being represented in said action by a guardian ad litem; and upon the 19th day of September of that year a judgment was entered against R. M. Pyle and his said children as the result of said suit, for the purpose of divesting the title into J. G. Pyle, based upon the proposition, as apparent from the record in this cause, that the deed executed by R. M. Pyle on the 11th day of July, 1907, was a conveyance of community property for the purpose of paying community obligations; and this present action, while containing allegations of a direct attack, principally predicated upon the insanity of R. M. Pyle and the fraudulent procurement of said deed from him by J. G. Pyle, and the covinous procurement of the judgment in trespass to try title, was, however, in reality resolved into an action for damages against the said J. G. Pyle, it having been admitted and agreed that said J. G. Pyle sold said section 24 to innocent parties, the cause having been tried by the court and the parties thereto upon said admission and the theory indicated.

A solution of this cause of action is principally determined by the proposition whether or not the testimony sufficiently suggests the insanity of R. M. Pyle, for the purpose of submitting that issue to the jury. R. M. Pyle, who executed said deed, now in the state asylum, after an inquisition of insanity, was a farmer, owning the particular section of land in controversy and other land constituting his homestead, and some live stock, and to a certain period the record indicates had been an ordinarily successful husbandman, and the particular section of land is principally all prairie land and subject to cultivation, except about 50 acres, and which constituted a part of the community property of himself and his first wife, who died in 1905.

A. Richie, a man 60 years of age, and who had lived in Wilbarger county for 21 years, and who had been a neighbor of R. M. Pyle for several years, testified that the first time he noticed anything wrong with Mr. Pyle was when one of his boys was killed — breaking his neck while ploughing — several years before his first wife’s death, saying that he “got rattled over this and kept getting worse, and after his wife died he was rattled from that time on,” and that the actions of Pyle at the grave of his first wife in 1905 attracted his attention, “making a rattling crazy talk, * * * ” and that he announced “that he (Pyle) thought it was a kind of a judgment sent on him for the kind of life he had lived; he was not at himself at all,” and that “after his wife died Pyle lost interest in his farm and lost two crops, and did not pay for the thrashing or anything else, and went off and married and did not have money enough to get back on, * * * and whenever I was with him he seemed to want to get rid of everything he had and live a consecrated life. He said what he had seemed to be tainted. * * * He was liberal at one time, and then again he was stingy; and then he would take a notion that if he owed anything and did not pay it before the sun went down he did not owe it.” And Pyle said that a certain man who owed him money “wanted to pay him (the debt), but he would not let him because he let the sun go down, and that that fellow did not owe him a cent.” This witness also testified as to the conversion of Pyle, in 1906, to the principles of a “Holiness” religious sect, who were required by the community to leave that section of the country after quite a protracted meeting, and that Pyle said that he had professed and had got the second blessing — claimed that he was a Divine Healer — “said he could heal any sick man, and he went wild on that. He went wild on hypnotism. He said there was nothing in this thing of giving children medicine, and the next time I saw him he had a cure-all, and it was stagnant water. * * * He said that he was going to have a home for fallen women, and was going to own the land around there, * * * and that he was going to give up everything he had.” When this witness asked Pyle in regard to the protection of his family, he said the Lord would take care of them; and further stated “that he was going to be good to Mrs. Richie and I, and that he was going to give us a place.” Pyle had invented a weed killer, which was a grate, constructed to burn coal and to be dragged over the weeds, although this witness said he “never talked to Mr. Pyle much about his weed destroyer— he would get too wild about that.” We infer from this testimony that the observations of this witness were to a great many of the peculiar manifestations of Pyle before the execution of the deed by Pyle to his brother of section 24, in July, 1907.

T. J. Pyle, now 23 years of age, and having been 15 or 16 years of age at the time of his mother’s death, testified to the peculiar actions of his father at the grave of his mother — preaching a short sermon to the people as to the life he had lived, attributing the death of his wife to that fact — and, according to the second wife’s testimony, within a period of three months was engaged to be married to her, whom he had not seen for over 25 years, and whom he married within 4% months of his first wife’s death. T. J. Pyle said that his attention was first called to the condition of his father’s mind when he left a $3,000 wheat crop to rot 'for the purpose of going to Tennessee and marrying, this witness being the oldest boy at home at that time, and further said that after the death of his mother his father began to rent ■ out his property, and get rid of it, paying special attention to religion, and, as this witness expressed it, “some Holiness came to Harrold and held a meeting, and it was not unta a few days that they had father going it, and he never paid any attention to anything but the Bible from that time on” — stating that these people were there about three weeks, and that his father “would get up and preach and get out in town and talk and profess to be sanctified; and so at this time he began fasting, so that X might be saved, and he fasted three or four days, and I told him I was all right, and he went to eating again, and then went to church and told them what he had done. * * * ” He also had a horse which he decided to make fast in order to get the devil out of him and for that purpose kept him up for several days; this witness stating that his father “got worse in 1907 than he was in 1906,” after he joined the new sect, and that he did not undertake to take care of his property after he professed sanctification. “ * * * He said (meaning his father) he was going to get up a band of men of drunkards and gamblers and start a kind of Holiness band, * * * travel in a special car,” abandoning that method of locomotion and substituting therefor a string of automobiles, with an attachment of big hooks on the wheels, for the purpose of going to Africa — decided that the negroes were the best tribe, and that they were the only ones that were going to be saved, discussing this matter for about a year — “the clouds,” said this witness, “would come up and he would see things he was going to do in Africa, and said that it would not do for us to own anything, * * * and that he was going to buy 13 square miles of land around Harrold.” * * * My father invented a weed killer in 1906, and claimed that he was going to get a patent * * * and sell it for a million dollars. It was just a grate with a fire in it * * * and after he invented this he built a fire in it and drug it about as far as across this room, and he finally forgot it.” He claimed he had a negro at Et. Worth that he was going to hypnotize, and after having placed him in that condition, he would compel him to look through the earth and find gold mines and oil.

His second wife testified to some of. the matters mentioned above, and further said that her husband came to her in 1907, stating that he was in trouble and wanted to sell this particular section of land and had not the mind to do it, and that he could not attend to business under the circumstances and do what he ought for the Lord, and also stated “that he had no business with this land, and that as soon as he could get rid of it he could do what God wanted him to do; * * * that he did not want his children to have anything”; and after he converted his property into money he claimed that he was going out as an evangelist, expressing some anxiety as to what he would do with her during this period, and that on this evangelical tour he would take the Holiness people with him, and would also be accompanied by 10 souls and a yellow dog. She furthér testified that from the time of the meeting at Harrold her husband “took the least care of things — the least of any man X ever saw.” During one of the prior conservations with reference to disposing of his property, to obtain a surplus for religious purposes, he stated he wanted to put his property in the hands of his brothers who would dispose of the land and pay off the debts, which seemed to be greatly on his mind.

The witness W. G. Chesner, who knew Pyle in Fannin county 30 years before, and rented some land from him in December, 1907, and who had not seen Pyle for 12 years, stated that he “noticed there was something wrong with Pyle, after I had been there a few days.” Spoke of Pyle and another neighbor having a quarrel over the rake, the neighbor striking Pyle with the rake, who began to laugh and turned the other cheek and told him to hit again. This witness further stated that he “saw J. G. Pyle in 1908, who seemed to recognize that Dick (R. M. Pyle) was off, and said that he thought I could manage Dick and get along with him,” and that J. G. Pyle informed this witness that R. M. Pyle had written him a letter in regard to his financial trouble, testifying that he (J. G. Pyle) “seemed to think that his brother went off with the sanctified people and was not taking care of things * * * and that he thought he could trade the place better than R. M. Pyle.”

Another witness testified that in April or May, 1907, he offered R. M. Pyle $12.50 per acre for section 24, in controversy, and wanted to purchase the land as an investment, offering two-thirds cash and the balance on time, which was refused; the testimony showing that R. M. Pyle conveyed the property to his brother in July, 1907, for $10 per acre, about $2,000 of which is represented by old debts claimed by J. G. Pyle to have been owing by R. M. Pyle, although barred by the statute of limitations, $1,000 of which amount' J. G. Pyle claimed, with the accumulated interest, represented an amount due for the sale of a jack made to his brother several years before the conveyance of this land; W. S. Pyle, the oldest son of R. M. Pyle, testifying, however, that said jack was kept by his father for his uncle on the shares until the animal died, and that he never heard of any sale to his father or any claim of ownership by the latter to the animal, and that his father was a “man that related his affairs,” J. G. Pyle stating that the sale was for the principal sum of $500, the other $500 of this $1,000 representing the accumulated interest.

It is apparent from the testimony of the wife of R. M. Pyle, and of the witness Pelty, a neighbor, that the defendant J. G. Pyle, at the time of the execution of the deed in 1907, and the institution of the suit by him in 1908, was cognizant of the mental condition of his brother.

Excluding the debts barred by the statute of limitation (which the jury probably found did not exist) the real consideration of the conveyance from R. M. Pyle to his brother was the sum of $4,200; and the verdict of the jury, when you consider the amount found in favor of J. G. Pyle, against the two children, barred by limitation, indicates that the value of the 640 acres of land upon the date the deed was executed was $10,744, and we so find. We conclude that at the time the deed was made, and at the date the judgment was rendered, the mental impairment of R. M. Pyle was such, as to the management of his affairs, and as to an understanding of the consequences of his acts, he was an insane person in law, and that the evidence was sufficient to raise the issue. We believe that the symptoms mentioned, and the delusions manifested by R. M. Pyle, indicate a weakened intellect at such time, and that while it is true a man may be an extremist on religion and sane upon business matters, there is sufficient evidence justifying the verdict of the jury that the loss of reason affected his understanding of matters of his own welfare. Clevenger, in his work on Medical Jurisprudence of Insanity, vol. 1, p. 50, quoting Spitska, classifies and separates the delusions of the insane into systematized and unsystematized, and claims that the classification is an important one. He says: “The systematized delusion, one that is logically arranged, explained, and defended, occurs in but two forms of insanity; paranoia and hysterical insanity. Reasons can be given by such deluded patients for all their affirmances relating to the delusion. Unsys-tematized is the common delusion of other insane. * * * Both the systematized and unsystematized delusions may be held by .an insane person for a longer or shorter period. * * * Unsystematized notions of the insane may be fixed or exist for quite a while, as when a maniac harps for a weelo or so upon one subject. This fixation for the time does not constitute the delusion a systematized one, for no attempt to explain why this one subject is uppermost is made by the insane mind, and therefore this fixed delusion is unsystematized.” As we understand the authorities on insanity, there may be insanity upon a subject accompanied- with the power of reasoning to justify the delusion, which is not an interference in law with the acts of such a person in other matters as to constitute him mentally incompetent until the derangement pervades the intellect more completely, and affects his consciousness in other directions. This record does not indicate any process of reasoning on the part of this subject, justifying his insane delusions, but are variable in matters of religion, with some ideas of social reform, and which the evidence indicates, to some extent, with reference to a conception of his business matters and the preservation of his property, as well as the welfare of himself and family, his reason to some extent has been affected. From the condition of the testimony, the jury could have decided either way. Some of his business acts — a great many of them — indicate that as to such matters he was not insane, and his management of the suit for his brother, against himself and children, for the purpose of validating the deed he had previously given is compatible with intelligence to the point of shrewdness, but not incompatible with insanity, nor with the broader proposition as to his lack of conception of the consequences of his acts — the insane may pursue a systematized course of conduct which may have all the earmarks of sanity in a sense, but, when considered as a whole with reference to his condition, is also the act of an unbalanced mind.

First. We regard the assignment of error, challenging the action of the trial court, in submitting the following charge to the jury, as the most important and controlling question in this record: “If you shall find from a preponderance of the evidence that on July 11, 1907, R. M. Pyle made and delivered to J. G. Pyle, the defendant, a deed to section No. 24, block 13, H. & T. C. Ry. Co. surrey, In Wilbarger county, Tex., and at tbe time of doing so R. M. Pyle was insane and then incapable of comprehending or understanding the nature of such transaction; and if you find the defendant, J. G. Pyle, then knew R. M. Pyle’s mental condition, or was in possession of facts which, if pursued with reasonable diligence, would have led to such knowledge; and if you find that the consideration for said conveyance was to pay community debts owing by the community estate of R. M. Pyle and his deceased wife, D. Z. Pyle; and if you further find that the defendant, J. G. Pyle, through his influence over his brother, R. M. Pyle, while in that condition, if he in fact was insane, fraudulently induced him to make such conveyance; and if you find that the land was in value greatly in excess of the consideration paid thereon; and if you find, taking into consideration the condition of R. M. Pyle and the price paid for the land, that the same was unfair; and if you further find that in order to further secure such conveyance the defendant, J. G. Pyle, instituted suit in this court against R. M. Pyle and his children, the plaintiffs in this case; and if you find that at the time the judgment was rendered the said R. M. Pyle'was insane — if you so find, your verdict should be for the plaintiffs herein.” An analysis of this charge required the jury to find the insanity of R. M. Pyle at the time of the execution of the deed, his brother’s knowledge of his insanity, and the fraudulent procurement by him of said deed on account of the latter’s influence over the former — a disproportion between the value of the land and the consideration paid — and to further find that J. G. Pyle, for the purpose of securing such a conveyance, instituted the suit producing the judgment in question, and that at the time of the rendition of the same R. M. Pyle was insane.

We believe this charge is as favorable to the appellant as he could expect under the law. If the appellees had instituted an action of direct attack upon the judgment, the fact of insanity at that date and the date of the deed would have been sufficient, we believe, to have justified an annullment of the judgment, at least by R. M. Pyle. Of course a judgment against an insane person is not void — it is only voidable — but it is settled that where a judgment has been rendered in the ignorance of some fact which would render the judgment void or voidable, the error at common law could be corrected by the writ of error eoram nobis, superseded and not now in use in this state. And the Supreme Court of this state announced this doctrine to the extent of granting the power to a Court of Civil Appeals, where it had rendered a judgment against a married woman upon a supersedeas bond in ignorance of her coverture, exhibited to that court upon motion, accompanied by supporting affidavit (Cruger v. McCracken, 87 Tex. 586, 30 S. W. 538), and in this case, in discussing judgments of this character and the remedy applicable thereto for the purpose of reviewing the same, the Supreme Court said: “This may take place by reason of the coverture, infancy, or death of one of the parties, when the fact is not shown by the record at the time the judgment is rendered” — holding that the Court of Civil Appeals in that instance should have acted upon the motion presented for the purpose of vacating the judgment, and, if satisfied of the existence of the cover-ture, should have annulled the judgment. In the ease of Wallis, Landes & Co. v. Stuart, 92 Tex. 571, 50 S. W. 567, there was a review of a cause in which a judgment had been rendered against a minor for the value of certain merchandise, and the plaintiff in that suit knew that the defendant was a minor, and had brought the suit against the minor as a person sui juris, without taking any notice of his minority, or having a guardian ad litem appointed to represent him in the cause. This judgment, was not appealed from, but the minor sued directly in the same court to set aside the judgment, alleging- his minority when the judgment was rendered; that the merchandise sold to him was not necessaries, and at the time of the judgment he neither had the goods nor the proceeds of same, which allegations were sustained by the evidence; no issue of fraud in the procurement of the judgment was raised by the pleadings or submitted to the jury, and the question was certified to the Supreme Court whether the minor’s petition was “sufficient to entitle the appellee to have the judgment set aside upon the bare allegations, for cause, that he was a minor when the judgment was rendered, and that the merchandise was not for necessaries, without alleging fraud- in the procurement of the judgment or some equitable reason therefor.” Justice Brown said that such a judgment against a minor was erroneous, and may be set aside in a proceeding brought directly for that purpose, and, answering the question certified, further said: “In this case, as we understand from the statement accompanying the questions, the defendant in the judgment brought in the court in which it was rendered a suit to set it aside, alleged that he was a minor, that he was sued as an adult, and that he was not defended by a guardian, and also facts which showed a lawful defense to the action. We think the proceeding was competent, and that upon proof of his allegations he was entitled to have the judgment vacated and a new trial awarded.” The case of Ammon v. Wiebold, 61 N. J. Eq. 351, 48 Atl. 950, decided by Vice Chancellor Pitney (now on the Supreme Court of the United States) is instructive upon the question, and in the course of this opinion he says: “It is quite clear to my mind that the practice in cases of infants and lunatic defendants must be the same.” In that cause it was a decree pro eonfesso against a lunatic defendant without an answer, and this chancellor further said: “In this respect, what difference is there between an infant and a lunatic? How can a bill be declared to be taken as confessed against a lunatic any more than it can be against an infant? A lunatic cannot confess anything and cannot admit anything. * * * For this reason it seems to me that it is the duty of a complainant in this court, who knows that the defendant against whom he seeks relief is incapable, by reason of mental defect, of attending to his own business, to make that known to the court, and have a guardian appointed for him. This seems to be the result of an examination of the English cases. * * * Mr. Shelton tells us that Lord Eldon compared the practice with regard to infants with that in respect to lunatics.” This was a cause where a party, knowing that another was an incompetent, had purchased a mortgage against some property which had descended to the lunatic, obtained a decree pro eonfesso; and this chancellor further said: “If in this case the complainant had merely made an innocent mistake in practice, or had been ignorant of the mental condition of the defendant, and the pendency of the proceedings had actually been brought to the attention of the friends of the defendant in time to enable them to protect the interests of their relative, little harm would have resulted from the irregularity, for the defendant had no defense to the mortgage. But this is not the case. I am satisfied that the complainant and Mrs. Baack colluded together to take advantage of the disability of the defendant, for the purpose of procuring her equity in the premises by legal proceedings. This, as above remarked, was an inequitable and unjust use of the process of the court, and must be dealt with accordingly.” Mrs. Baack was a relative of the lunatic, who acted in conspiracy with the plaintiff in the former suit, and the court vacated the judgment, set the sale of the property aside (the fraudulent litigant having purchased the property at his own sale), compelling an assignment of the mortgage to a person procured by the guardian of the incompetent. There is a condition of parallelism running through the law as to the similarity of legal status between that of an infant and a lunatic, not only with reference to procedure, but as to their property rights; the legal effects of their actions, with reference to their property, in dealing with others, and the penalty resultant to others in dealing with them, in certain eases may work an individual hardship, but with regard to which, in preserving the symmetry of the law, and the policy of the same with reference to their protection, the courts have extended the rules in their favor inappropriate for us to even criticize or attempt to reverse; and from the logic of these cases and the principles announced, wé think this cause should be maintained.

If R. M. Pyle was sane at the time he conveyed the land to his brother, and he owed community debts and sold the land for that purpose, and the transaction was free from fraud, of course he conveyed the title of the land to his brother. If E. M. Pyle was insane at that time whether J. G. Pyle knew it or not, the deed itself could have been avoided by a restitution of the consideration, if not spent or squandered. If insane at the time the judgment was rendered validating the deed, and insane at the time the deed was executed, by analogy from the case of Wallis, Landes & Co. v. Stuart, supra, the judgment could have been set aside upon direct attack, and new trial awarded, especially upon allegations exhibiting a proper avoidance of the necessity of restitution, at least by R. M. Pyle. On account of the judgment being voidable and not void, the authorities outside of this state seem to be unanimous that an innocent purchaser at a sale, if it had been a judgment ordering the sale of the lunatic’s property, would have been protected by such judgment and sale, and the same protection might be afforded a similar purchaser of the property from J. G. Pyle; the judgment being a link in the chain of title. Crawford v. Thomson, 161 Ill. 161, 43 N. E. 617; Dunn v. Dunn, 114 Cal. 210, 46 Pac. 5; Rau v. Katz, 26 La. Ann. 463; Heard v. Sack, 81 Mo. 610.

But with this question we are not concerned, as there is an admission in this cause that the purchaser of this property from J. G. Pyle was an innocent purchaser, and the case was tried upon that theory. The testimony in this cause clearly raises and suggests the knowledge of the defendant, J. G. Pyle, of the insanity of his brother at the time he procured the deed and the judgment; the jury resolved it. The evidence also clearly raises the question of a partial fictitious consideration entering into the conveyance — an evidence of fraud — and which R. M. Pyle, the insane defendant, testified to in the other cause. Clearly, under all the facts, the guardian or next friend of R. M. Pyle would have had the right to have vacated this judgment against J. G. Pyle by direct attack upon proffer of proper equity, and have the land restored, if in the possession of J. G. Pyle; and, if admitted that the land has been sold to an innocent purchaser, upon the proper alternative allegations for damages, would the guardian of the lunatic and the other co-owners, the children, have the right to maintain the suit for damages? We admit we are unable to find an authority directly in point upon the former, question; and, in so far as we are able to ascertain, the second proposition, or any similar question, is undecided. As to the first question, it is certain that if a prospective purchaser fraudulently induces the owner of land to convey the same to him, and he in turn sells the land to another, the owner defrauded is entitled to damages for the fraud. In the case of Mountain v. Day, 91 Minn. 252, 97 N. W. 884, where the vendee had fraudulently procured a deed from the owner, the Supreme Court of Minnesota said there is no difference between that of a fraud by the vendee who buys the land than of a vendor who’ sells it — “the party making misrepresentations cannot escape their legal effect, even though he be a prospective purchaser.” Judge Clark of the Supreme Court of North Carolina, in the case of Odom v. Riddick, 104 N. C. 515, 10 S. E. 609, 7 L. R. A. 119, 17 Am. St. Rep. 686, in discussing the contracts of the insane, said that, “such persons, being incapable in point of capacity to enter into any valid contract, or to do any valid act, every person dealing with them knowing their incapacity is deemed to perpetrate a meditated fraud upon them and their rights,” quoting Story, Eq. Jur. § 227, and citing Adams, Eq., 183, to the same effect. The case of Sprinkle v. Wellborn, by the Supreme Court of North Carolina, 140 N. C. 163, 52 S. E. 666, 3 L. R. A. (N. S.) 180, 111 Am. St. Rep. 827, cited by appellant upon the measure of damages, quotes Lord Hardwicke, to the same effect. This latter case held the action of damages was appropriate against the party who had procured a deed from an insane person, with knowledge of his insanity and had resold the property to another. Of course there may be cases where there is fraud without damages, and although we are unable to find a case in point upon the proposition where the fraudulent deed from an insane person is merged into a fraudulent judgment, and the property then resold (in this case admitted to have been to an innocent purchaser), still a remediless suitor is a rarity in law; and, all the analogies- of the law supporting it, we hold the action will lie.

In connection with the discussion of the nature of the action, the matter of the measure of damages is pertinent; appellant contending that the trial court in this instance improperly charged the jury in this respect, which was a submission of a difference in .the value of • the property at the date it was fraudulently procured by deed and the amounts paid by J. G. Pyle and assumed at that date, with a difference of interest figured to the time of verdict upon-both amounts, which we believe to be correct. It is true the ease of Sprinkle v. Wellborn (N. C.), cited by appellant, supra, is suggestive of a different measure, but to us is irrational when you sound the doctrine of compensation, which should be the resultant injury to appellees as the procured effect of an efficient fraud. The true measure of damages — unless it is arbitrarily settled by some standard rule — should always equal the loss inflicted upon the injured party. If A. fraudulently procures 100 head of horses from B. at $50 per head when they are worth $100, B.’s loss is $50 per head. We are not concerned with a difference between a represented value and an actual value in this instance; and hence if A. procures a conveyance of land from B. by fraud for $1,000, the contract price, and conveys it to C., and it is worth $2,000, B. has lost $1,000. Justice Ely of the Fourth district, in the case of Ellis v. Barlow, 26 S. W. 908, held “that one who by false representations procured an assignment of a judgment to him under its face value, the measure was the difference between the face value (which was its actual value) and the amount paid. The Supreme Court of this state held, in the case of Greenwood v. Pierce, 58 Tex. 133, that where a purchaser was misled to receive a deed to property upon fraudulent assurances as to the future location of a railroad, the measure of damages is the difference, between the contract price and the actual value of the property, which seems to be the universal rule in all jurisdictions where there is not a represented value. The Supreme Court of the United States, in the case of Sigafus v. Porter, 179 U. S. 116, 21 Sup. Ct. 34, 45 L. Ed. 116, held the same rule, sustaining a verdict for over $300,000, where the vendor perpetrated the fraud upon the vendee. The appellant in this cause is contending for the North Carolina rule that the measure should have been the difference betwe'en the amount J. G. Pyle received for the land when he sold it to the innocent purchaser and the amount paid by him to this brother. It is to be noted that appellant in his assignment of error merely complains that the court submitted an improper measure, with the propositions subjoined that the difference he designates is the proper measure, without indicating any injury. Appellant is shown to have traded section 24 for other land, paying a difference himself in money, and such a rule, to work it out, would be complicated in this instance. As the rule of damages is one of compensation, and not of arbitrary standard in this instance, we believe no injury is shown. The Supreme Court of Minnesota, in the case of Mountain v. Day, supra, where a vendee was acquainted with the property and the vendor was not, and the vendee fraudulently procured a deed to the same, from the vendor, the court announcing the true rule of damages as the difference in the contract price and the actual value of the land, where the trial court applied a different rule, further said: “In any event, the court’s attention should have been called to the fact that the rule was not accurately stated, if considered prejudicial.” 91 Minn. 253, 97 N. W. 885. Of course there is no contract price as the insane appellee, R. M. Pyle, could not make a contract, but the criterion of loss should be the same; that is, the amount paid under a purported contract with an insane man, and the actual cash value of the property, at least we hold it under appellant’s assignments.

Second. With reference to the question of the binding force of the judgment upon the children, raised by appellant’s thirteenth assignment of error, on account of the trial court haying overruled a special exception, addressed to the petition, raising the question, we think the petition was sufficient as against the exception, hut we prefer to go deeper into the question.

Of course the power exists in the survivor, unaccompanied with fraud, to convey the community property to pay community debts, even without administration, and divest the title of the children, but an insane parent could not do it; and for a stronger reason, insanity, coupled with fraud and knowledge of the purchaser of conditions, it could not he done. The power of the parent is derived from conditions, and when the court rendered the judgment in this cause, attempting to validate the deed, it was presumably based upon proof of the conditions, which was also proof of the power, in order to vitalize the deed. One essential fact, however, was unknown to the court in that proceeding, as shown by this proceeding, the insanity of R. M. Pyle, and upon whose sanity the existence of the power depended when he executed the deed; and upon whose sanity the validity of the judgment depended when the court attempted to merge the deed into the judgment. We have seen from the two cases by the Supreme Court of this state (Wallis, Landes & Co. v. Stuart, and Cruger v. McCracken, supra) “when a fact of this character is not shown by the record to the court at the time the judgment was rendered, such judgment is erroneous, and may be set aside by a proceeding brought directly for that purpose” — -and fraud would of course add strength to the proceeding. The guardian ad litem, appointed to represent the children was ignorant, as well as the court, of the insanity of R. M. Pyle; and the temporary guardian in law of the minors representing their interests, in entire substitution of the ability and power of the children to represent themselves, without this knowledge, could not defend against it.

The belief of the guardian now, based upon his observation of the acts of R. M. Pyle when the judgment was rendered, that he was then sane, does not impair the argument, or devitalize the principle, asserted. The permanent guardian of these children, upon proof of the conditions in this case, could set aside this judgment; and, the property having been conveyed to an innocent purchaser, we hold the minor children have the same alternative action for damages, which the guardian of the lunatic has in this case.

Third. The refusal of the appellant’s special charge, complained of by his seventh assignment of error, was proper; the trial judge sufficiently covered the matter in his main charge. The contention for an instructed verdict, and the question of the insufficiency of the evidence to sustain the judgment, are sufficiently disposed of by our discussion of the evidence. We have carefully reviewed the assignments, and it would be unprofitable to discuss the remainder, and they are overruled.

The judgment is affirmed.

HUFF, C. J., not sitting.


author: HUFF, C. J.

text:
    NEWMAN et al. v. TARWATER.
    (Court of Civil Appeals of Texas. Amarillo.
    June 14, 1913.)
    1. Bills and Notes (§ 302) — Liability oar Indorsee to Maker — Failure oe Consideration.
    In an action against a maker and payee of a note, which the payee indorsed over to an innocent third party, where it appeared that the maker delivered the note to the payee in payment for an insurance policy, but that the payee failed to pay the amount of the premium to the company, as he agreed, or even to notify the company that he had accepted the note for the premium, by reason whereof the policy was canceled, the consideration for the note had failed, and the maker was entitled to a judgment over against the payee for the amount.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 622, 643-646; Dec. Dig. § 302.]
    2. Evidence (§ 357) — Letters—Admissibility.
    Where an insurance agent who took a note for the premium on a policy failed to pay the amount to the company, as he agreed, on account of which the policy was canceled, a letter from the company to the policy holder canceling the policy, which was shown to the agent, was admissible in evidence against him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1492-1499; Dee. Dig. § 357.]
    3. Appeal and Error (§ 1050) — Harmless-Error — Fact Otherwise Established.
    If the admission of the letter in evidence was error, it was harmless, where it was not denied that the agent had failed to pay the money as agreed.
    [Ed. Note. — For other cases, see Appeal and Error, 'Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050.]
    Appeal from Childress County Court;. Frank W. Freeman, Judge.
    Action by the Norris Implement Company against W. C. Newman and N. E. Tarwater. From a judgment against the defendant Newman in favor of the defendant Tarwater, the defendant Newman appeals.
    Affirmed.
    Jno. W. Davidson, of Childress, and G. E„ Hamilton, of Matador, for appellant. Jos.. H. Aynesworth, of Childress, for appellee.

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

   HUFF, C. J.

W. C. Newman, as agent of the American Home Life Insurance Company, sold to M. E. Tarwater a life insurance-policy in said company May 5, 1910, for the sum of $3,000. In payment for the same Tarwater executed his note for the sum of $151.65, payable to the order of Newman. Newman indorsed the note to the Norris Implement Company. After its maturity, the Norris Implement Company sued Tarwater, as principal, and W. C. Newman, as indorser. Both Tarwater and Newman admitted their liability on the note as sued on to the Implement Company. Tarwater, however, pleaded over against his codefendant Newman, setting up the fact that he gave the note for an insurance policy in the American Home Life Insurance Company and the consideration for the note had failed, in that Newman had agreed to pay the cash due the Insurance Company on the first premium. This he did not do, and in consequence thereof the policy was canceled and he prayed for judgment over against Newman, and upon trial was awarded such judgment by the county court of Childress county.

The policy was delivered to Tarwater by Newman, as agent of his principal, the Insurance Company. The facts are uncontroverted that the cash was not paid by Newman to the company, as he had agreed to do upon the execution of the note, and the money was not remitted by him until long after the institution of the suit on the note. The appellant asserts the issue is whether the policy was canceled, and whether the Insurance Company was liable, and asserts there is no evidence to sustain the judgment of the court on the question. Tarwater got the policy, but got notice from the Insurance Company a few days later that the cash had not been paid, and that the policy was therefore canceled. He notified Newman of the receipt of this notice, and Newman promised to send the money, but did not do so. The judgment of the trial court establishes the fact that the policy was canceled because of the nonpayment of the premium on the policy. It is urged that the facts are not sufficient to support the judgment. It is an admitted fact that Newman did not pay the cash due the company, or report to the Insurance Company that he had taken Tarwa-ter’s note for the premium due thereon. On July 27, 1910, the policy was marked “Not taken.” Tarwater testifies the company never issued to him a receipt for the payment of the premium, or that it was not turned over to him by Newman. All premiums were due and payable at the home office, or at its pleasure it could appoint a collector to receive such payment at other places, but only in exchange for its regular receipt signed by its president or secretary, and countersigned by the collectors designated. The conclusion cannot be escaped in this case that the company had entered the policy not delivered and canceled. It did not get the cash for the “nets” due it, and was not notified that Newman had a note for the premiums. Its receipt for the premium was not delivered to Tarwater. It had sent the receipt to Newman with the policy. This receipt he did not deliver to Tarwater. At the time of the institution of the suit, in so far as Tar-water was concerned, he had no policy — the thing he thought he was buying. It is now asserted that the company would have been liable, because the note had been taken by Newman. Be that as it may, the beneficiary in the policy would have been required to prove the payment of the cash or the execution of the note for the policy, which, under Newman’s conduct, would have been difficult, if not impossible. We do not think Newman is in a position at this time to make such elaim, when he failed and refused after repeated requests from the company, as well as from Tarwater, to report what he had done with the policy, and to pay the cash therefor.

It is urged that the introduction of the letter from the Insurance Company to Tarwater, to the effect that the policy issued to him was canceled for nonpayment of the premium, was' error. If so, it is harmless. The facts establish without controversy the cash was not paid by Newman. He did not report a note for the premium or deliver a receipt therefor, and the policy was entered “Not taken,” and canceled. Newman gave nothing for the note, but got it by causing Tarwater to believe that he would pay for it. Generally, the letter would not be admissible; but, when Tarwater went to Newman and notified him of its receipt and the condi-tion of his policy, and Newman then promised to send in the money and get the matter straightened out, and when he did not do so, we see no reason why it was not notice to Newman that the policy was canceled by reason of his (Newman’s) default. It was part of the transaction, and brought home to him the loss sustained by Tarwater. He did not then adjust the matter, but let the policy remain in that condition. We think this ease falls under the rules announced in the case of Saldumbehere v. Haddock, 19 Tex. Civ. App. 653, 48 S. W. 197. We do not think the evidence in this case shows a waiver by the Insurance Company of the return of the cash premium; but, on the contrary, it was insisting on it, and canceled the policy because of that fact, of which Tarwater notified Newman, and Newman agreed to attend to it at once, which he did not do, thereby depriving Tarwater of the policy for which the note was given. We think Newman’s conduct in this case clearly caused a cancellation of the policy, and that the note was without consideration, and that he should respond in damages for his conduct

The judgment is affirmed.


text:
    PORTER v. MEMPHIS LAND & COMMISSION CO. et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1913.
    Rehearing Denied June 28, 1913.)
    1. Frauds, Statute of (J 110) — Real Property — Exchange — Description — Sup-eiciency OP.
    A description of land in a contract of sale as 263 acres a specified distance N. E. of M., coupled with recitals that an incumbrance existed of about 88,140, that it had been inspected and accepted by the purchaser, and that the vendors were to have possession to January 1st to gather their crops, was sufficient within the statute of frauds, since the last recital implied possession by the vendors, and it and the others refer to facts which can be used to aid the description.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 225-236; Dec. Dig. § 110.]
    2. Appeal and Error (§ 1050) — Harmless Error — Admission op Evidence.
    The admission of evidence that plaintiff was at all times ready to comply with the contract, over objections that it was not.alleged that plaintiff could have complied, and that the question and answer were a legal conclusion and an opinion, if error, was without prejudice, where the defendant had refused to comply with his part of the contract before plaintiff’s time to comply had expired.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Vendor and Purchaser (§ 303) — Performance — Rescission — Demand — Tender-Necessity por.
    Where the purchaser refused to comply with a contract for the sale of real estate before the vendor’s time for performance had expired, it was unnecessary for the vendor to tender his deed and abstract and demand performance, though without such refusal such tender and demand would have been essential.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 851-861;. Dec. Dig. § 303.]
    Appeal from Hall County Court; Jno. D. Bird, Judge.
    Action by the Memphis Land & Commission Company and others against M. L. Porter. From a judgment for plaintiffs, the defendant appeals.
    Affirmed.
    Taylor & Humphrey,' of Henrietta, for appellant. H. D. Spencer, A. S. Moss, and J. V. Leah, all of Memphis, for appellees.

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

   HENDRICKS, J.

The appellee sued the appellant, M. L. Porter, upon a check for the sum of $500, and upon the following contract as liquidated damages, alleging the failure of appellant to comply with said contract to convey the land in exchange described therein: “State of Texas, County of Hall. The memorandum of agreement this day entered into by and between R. L. Moreman of Hall county, Tex., parties of the first part, and M. L. Porter of Clay county, Tex., party of the second part, withesseth: That the party of the first part hereby sells to the party of the second part 263 acres of land 1% miles N. E. of Memphis, Tex., for $40 per acre, total $10,520, placed on his Bellevue property, and it is agreed and understood that the second party is to make the first payment on said land with two certain described houses, one five and one seven room house located in the town of Bellevue, Tex., and priced at $3,500. Now, there being an in-cumbrance of about $8,140 on said 263 acres above described,' it is agreed that the party of the second part is to assume all incum-brance, and, if the $3,500 valuation amounts to more than the equity in the land of the first party, then the first party is to execute notes back on the Bellevue houses to the amount of the difference in the equities as it may appear, said notes to be payable in one and two years from date at 8 per cent, interest. Now that the second party having inspected the land and accepted it on the above terms, it is agreed that the parties of the first part shall have time to go and inspect the Bellevue property, and on inspection find it as represented and wish to accept it as above stated, then this deal shall be agreed to by both parties, and considered made, and only pending the getting up of the deeds and abstracts of each tract of land sought to be conveyed, and each party is to have as much as 30 days in which to get up his papers. Said second party is to give possession September 1, 1912; but the said parties of the first part are to hold possession until January 1, 1913, for the purpose of gathering the crop now growing on said land. After inspection and acceptance of the Belle-vue property, each party agrees to put up as liquidated damages $500 to the Memphis Land Company, to be held by them in case either party fails or refuses to comply in any way with the above contract. Witness our hands this the 5th day of August, 1912. Parties of the First Part: B. W. Moreman, R. L. Moreman. Party of the Second Part; M. L. Porter.”

We regard the controlling question in the case whether or not the contract, with reference to the matter of the description of the 263 acres of land, is sufficient under the statutes of frauds. And, if so, we think under the evidence that appellee should recover.

The testimony is conclusive that upon the 6th day of August, the contract having been executed upon the 5th, the Bellevue property was inspected and accepted, hence the deal was then concluded under the terms of the contract, and we also find from the testimony that M. L. Porter, the appellant herein and defendant in the lower court, breached the contract before the expiration of the time in which it is recited the deeds and abstracts could be prepared and tendered by calling the trade off. We think the description, “263 acres of land, 1 Yz miles northeast of Memphis, Tex.,” of itself would be insufficient to meet the requirements of the statute of frauds; but the contract refers to an in-cumbrance of about $8,140 upon the land, and makes a recitation of a past fact which can be made certain, that the land (meaning the 263 acres) had been inspected by the second party, and had been accepted, and further recites that the parties to the contract, the Moremans, who are to convey the land, are to hold possession of the same until January 1, 1913, for the purpose of gathering their crops growing upon said land— clearly implying, we think a recitation of possession by the Moremans of the land by that expression in the contract.

If the description of the land in the contract was confined to the recitation, “263 acres of land, 1% miles northeast of Memphis, Tex.,” we would be inclined to agree with appellant that the case of Price v. Hays, 139 S. W. 810, decided by the Kentucky Court of Appeals, might apply, in which cause was considered a contract containing a description of “about 150 acres of land near Otter Creek station, one mile north of Rineyville, Hardin county, Ky., on I. C. R. R.” However, the Kentucky Court of Appeals, in passing upon that description, refers to the case decided by the same court, of Campbell v. Preece, 133 Ky. 572, 118 S. W. 374, nearer in point. In the latter cause, the Supreme Court of Kentucky discussed a contract made up in part of the following receipt: “$265.00. Phelps county, March 31, 1899. Received of Joseph Preece $265 as part payment of the land sold him by myself on the Shanty branch.” The court said: “The writings speak of the transaction in the past tense. It refers to the land which Campbell had sold to Preece. If it had stated, ‘the land where Joseph Preece now lives,’ or the land ‘where Joseph Preece lived in 1899,’ it would not be questioned that the description would have been sufficient. Parol evidence is al-always receivable to identify the land spoken of in the writing, but not to designate it.” And the court further said: “It is never good to refer to a future event, as that could not have been certain when the memorandum was made. But a general reference to an existing or past event is good, for that which has transpired is changeless. * * * ‘The place where I live’ identifies one place only, and is susceptible of being shown definitely and unerringly;” and referring to the terms of that contract, the court further said: “The place which I sold to A. is always susceptible of identification, and, if I had sold but one place to A., it is as certain as would have been a more particular description. It is from such instances that the maxim has arisen, ‘That is certain which can be made certain.’ ” Hence we have from the terms of this contract a certain extrinsic fact referred to, that is, inspection of this property and its acceptance by the party who was to receive the conveyance, as well as a clear implication from the contract that the other party had the possession of the land. We think the contract sufficient within the statute of frauds with reference to description, and overrule all assignments based upon that question.

Appellant raises the question that the following testimony was not admissible, because it is not alleged that the appellee could have complied with the terms of the contract, and because the question and answer noted is a legal conclusion» and an opinion of the witness: Q. “Now, Mr. Moreman, I will ask you if you were at any time and all times ready and willing to comply with your part of the contract? A. Tes, sir; I was.”

Appellee had alleged that he was ready and willing at all times to comply with the terms of the contract, which, upon the development of the testimony, we take it the pleading was sufficient for the reason that the evidence disclosed that appellant had abandoned the contract before the time had expired in which the Moremans had the right to comply, and the tender of the abstract and the deed by them would have' been ineffectual on account of appellant’s conduct. It is clear the latter would have refused an abstract and a deed if tendered to him. We think the following language of the Supreme Court of Illinois, in the case of Bucklen v. Hasterlik, 155 Ill. 432, 40 N. E. 564, is peculiarly appropriate to the decision of this question: “It is also insisted that ap-pellee, not having actually tendered deed to appellant, is not entitled to the earnest money. * * * The rule is that a tender is never required, nor is its omission ever prejudicial, where, from the circumstances, it is clear that such tender, if made, would have been refused. The law does not require the performance of a mere idle act, or one which would be useless, and appellant had never at any time indicated that, if the deed were tendered on this title, he would accept it. Where a vendee objects to a title, a tender of a deed which he declares he will not accept is unnecessary.”

Appellant’s refusal to comply eliminates the necessity of the Moremans offering something. which is clear would have been refused. If appellant had not called off the trade, of course, in order to recover, appellee should have pleaded and proven that it had complied with the contract, that is, alleging a. tender of an abstract and deed under the terms of the contract; but appellant has obviated this prerequisite by his repudiation of the contract, and practically offers no defense upon the merits except the statute of frauds. The testimony admitted, if error, did not prejudice the cause.

We think it is clear from the decisions that under the terms of this contract and the evidence the parties thereto specifically intended that the checks were to constitute liquidated damages, anfl we believe that a discussion of other assignments would he unprofitable, and conclude that the cause should be affirmed.


text:
    HEFLIN v. EASTERN RY. CO. OF NEW MEXICO et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1913.
    Rehearing Denied June 28, 1913.)
    1. Evidence (§ 471) — Opinion.
    In an action for an injury to a boy caused by Ms falling from a depot platform under a freight train as it passed, or by being knocked thereunder by a car door swinging open, testimony of a witness who saw the boy just before the accident, that it was his impression that the boy was standing swinging his foot at the train as it passed, was not inadmissible as opinion evidence, as the testimony of the witness indicated that he was testifying as to his recollection of his personal observation of what the boy was doing just before the accident.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    2. Appeal and Error (§ 730)— Assignment of Error — Reasons and Ground of Objections.
    An assignment of error because of the court’s refusal of a request to charge is insufficient when it does not appear therefrom upon what ground the complaint is based, and the statement of facts does not set forth sufficient facts to enable the court to determine whether such charge was improperly refused.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.]
    3. Negligence (§, 141) — Railroads — Contributory Negligence — Children.
    Where the evidence showed that plaintiff was a boy of 16 years, but a man in size, weighing 135 pounds, and had lived in and around the railroad depot nearly three or four years, and there was no suggestion that he was not of sufficient discretion to appreciate the danger of a near approach to a moving train, it was not error to refuse plaintiff’s request that to prevent a recovery because of contributory negligence the plaintiff must have failed to exercise that degree of care that a person of his age, maturity of judgment, and discretion would have exercised under the circumstances.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.]
    Appeal from District Court, Parmer County; D. B. Hill, Judge.
    Action by Andrew Heflin by bis next friend against the Eastern Railway Company of New Mexico and others. From a judgment in favor of defendants, plaintiff appeals.
    Affirmed.
    See, also, 155 S. W. 188.
    R; R. Hazlewood, of Amarillo, for appellant. Madden, Trulove & Kimbrough, of Amarillo, Carl Gilliland, of Hereford, and Terry, Cavin & Mills, of Galveston, for appel-lees.

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

   HUFF, C. J.

This was an action brought in the district court of Parmer county for Andrew Heflin by his next friend, his father, Y. D. Heflin, and for himself, Y. D. Heflin, against the Eastern Railway Company of New Mexico, the Pecos River Railway Company, the Atchison, Topeka & Santa Fé Railway Company, and the Pecos & Northern Texas Railway Company, to recover damages for an injury received by Andrew Heflin at the depot in Texico, N. M.

The allegations are substantially that the plaintiff, Andrew Heflin, together with his mother, went to the depot at Texico to purchase a ticket to Clovis, N. M., and alleged as follows: “That plaintiff’s son thought the passenger train on which he and his mother expected to take passage was due to arrive at said station within about five minutes; but, when he heard said freight train whistle for said station, he supposed it was the passenger train, and that it would approach said station at a safe and reasonable rate of speed, and would stop at said station for at least five minutes, as was and had been for a long time its habit and custom to do. That the said son had the money to purchase his ticket, and just as plaintiff’s son, Andrew, was intending to enter said station and purchase a ticket to Clovis, as aforesaid, and while -on the platform, and-within a few feet of the station door, as aforesaid, some one standing on said platform spoke to plaintiff’s son, and, as he turned partly around to reply, said freight train passed said station at a high and dangerous rate of speed, to wit, more than 30 miles per hour. That before plaintiff’s son Andrew realized that it was not the passenger train he was expecting, and before he had time to get into the station or to get further away from defendant’s track, one of the doors of a freight or refrigerator car in said train, or some other object projecting from one of said cars, struck plaintiff’s son, Andrew, the plaintiff herein, on the back and knocked him under the wheels of said freight train, which mangled and crushed plaintiff Andrew’s right leg so badly that it was necessary to amputate it, and otherwise bruised, mangled, and injured plaintiff, Andrew Hef-lin, as hereinafter set forth.”

All the defendants answered by special and general demurrers, and general denial, and special answer, denying the partnership under oath, and setting up contributory negligence on the part of the plaintiff, Andrew Heflin. The facts substantially show that the plaintiff, Andrew Heflin, was 16 years of age in April before he was hurt in August, and that on the 5th day of August, 1909, he and his mother went to the depot for the purpose of purchasing a ticket to Clovis, N. M.,that he heard the train whistle some half mile from the depot and, supposing it to be the passenger train, went to the depot, in order to take the train, and, after he heard the approach of the train, that he stopped on the platfrom and glanced up and saw the engine coming about a mile away, and he thought it was the passenger train, and came down to the platform to get a ticket. “On the way down, I saw Ross Duncan and Sheriff .Stevens, and his little boy that I knew. They were right along by the office window of the station; they were five or ten feet from the opening between the baggage room and the express office — down next to the window of the telegraph office. I walked up by Ross Duncan and passed right on by him and Sheriff Stevens and saw Ross Duncan, and then came back. I went on the right side of Mr. Stevens, going north, and the little Stevens boy. They were between me and the track. X went right by them, and came back on the left side of them, and went back to see Ross Duncan. Ross Duncan is a druggist about 21 years old. I asked him, Ross Duncan, for a cigarette, and he gave it to me, and X rolled it, and while I was rolling it something hit me in the back — just about the time I got the cigarette rolled. I had not lighted the cigarette. My back was turned to the east at the time I was struck— sorter angling from the track. X was standing something like three or four feet from the track I think, at the time I was struck— I would have been a safe distance. Not very much of the train had passed at the time I was struck, maybe three or four cars. I do not know how many engines the train had. Didn’t have time to notice. I didn’t realize until after I had been struck that it was not the passenger train. I think a car door struck me, because when I fell I saw a door come over me — an object of some kind that I think was a door. I am certain I saw some object pass over me that looked like a door, and I think it was a car door. No part of the train had struck me until this object — door or whatever it was — struck me. It never interfered with me up until that time. I was not unconscious at any time during the struggle there, and I knew what I was doing in endeavoring to keep out from under the train.” He further testified: “I did not suspect it was a freight train and not a passenger train. When I looked up and saw this object, saw then, for the first time, that it was a freight train. This car that struck me was three or four cars back in the train. Not more than that, or -I would have noticed it. I was not too busy with the cigarette to notice the train, but I thought it was a passenger train. When the engine passed me, I knew it was going along, and I naturally supposed there were some ears behind it. I didn’t look to see what kind of a train it was until it struck me.” Some of the witnesses for plaintiff put the speed of the train, as it passed the depot, at 25 to 30 miles per hour, while the witnesses for defendants placed it at 8 or 10 miles an hour. There is considerable conflict in the testimony as to the exact position or place that Heflin was standing at the time he was struck. His testimony is substantially all there is that it was a door that struck him, except his mother says she saw a door open. The defendant in error’s witnesses all testify that the doors were closed and sealed, and none of them were open. The defendants introduced two witnesses, one Mr. Oriswell, who testified that he saw the boy standing on the platform just before he was struck, and that it was his impression that he was swinging his foot toward the train as it went by; that he did not see him just at the time of the accident, but saw him just before and just after. This witness had gone to the station and purchased his ticket to leave on the passenger train for Clovis, and was a stranger practically in the town. Another witness for defendants, Mr. W. H. Hazen, states that he saw plaintiff about the time of the accident, and, as the train passed, plaintiff first came up to the car, and he was “kind o’ grabbing at the car with his hands — kind o’ striking at them all along — was not trying to catch them, and after that he lifted up his foot, kicking at the steps as they passed by,” and “I would judge that his foot went into the bottom step, and his leg went under, and he was jerked off the platform and went under the car.” We believe this is a sufficient statement of the issues, as presented by the pleadings and the evidence, to dispose of the questions raised by the assignments. The jury rendered a verdict for the defendants, and judgment was rendered in accordance therewith.

The court admitted the following testimony of the witness Criswell: “I was under the impression that he was swinging his foot toward the train as it went by. * * * My impression was that he was swinging his foot towards the train as it went by.” Plaintiff in error objected to the evidence because it called for a conclusion or opinion of the witness upon a question upon which he had not qualified himself to speak, and which should be passed on only by the jury from the facts before them, and on facts not authorizing expert opinion or conclusion. Mr. Criswell was at the depot for the purpose of taking the passenger train to Clovis. He had purchased his ticket and walked out on the platform, and saw plaintiff in error near the place of the injury. He testified: “I did not see him caught by the train, but only noticed him prior to and after the accident. I could not say positively how the accident occurred, not having seen it. I saw the young man before the train ran over his foot, and when I first saw him he was standing on the platform, and I was under the impression that he was swinging his foot toward the train as it went by. I never noticed him particularly; but my impression was that he was swinging his foot towards the train as it went by.” The answer of the witness indicates lie was testifying to Ms recollection of Ms observation of wbat the boy was doing just before lie was injured, if so, the testimony was admissible, and the court did not err in admitting the same. Wigmore on Evidence, vol. 1, § 658, says: “ ‘Belief’ or ‘impression’ may signify merely the degree of positiveness of Ms original observation of the facts. The witness may have actual observation of the matter in hand; but the result may have been a not very definite or positive impression. For example, he saw a man and ‘thought’ that it was the accused. In such cases there is no legal objection whatever to receiving such impression as the witness gained from his observation. In other words, the degree or quality of Ms knowledge, so far as there was actual personal observation by him, is no ground of objection.” Id. 727. “Nevertheless it is clear that the law cannot and does not reqmre absolute certainty of observation. A mere deficiency in the quality of observation is of itself no good reason for excluding whatever result the observer did actually obtain.” Should it appear that the witness is only speaking from mere guess or rumor, and not from his own personal observation, then such impression should be excluded. If speaking from personal observation, then he has only an indistinct recollection and can venture only an “impression.” In the case of Harris v. Nations, 79 Tex. 413, 15 S. W. 263, it is said: “When he has been in position to know the facts, but his memory has grown dim, what he thinks he recollects is, if relevant, proper to be admitted and to be weighed in connection with the other testimony in the case.” Ry. Co. v. Parrish, 43 S. W. 536; 4 Words & Phrases, p. 3444. The witness purports to give the impression of his personal observation of what plaintiff in error was doing just before the injury and his recollection of that occurrence. We think the testimony falls within the rule stated by Wigmore on Evidence.

The evidence upon which plaintiff in error sought to recover in this ease is based upon the testimony of a similar nature. He testified: “I think a door struck .me — an object of some kind that I think was a door. I always will believe it was a door.” The evidence of plaintiff in error was admissible, if at all, for the reason that what he thought or believed only went to “the degree of positiveness of Ms original observation.” He did not have positive knowledge that it was a door; he thought and believed it to be a door from Ms then observation.

Plaintiffs in error complain of the action of the court in refusing their requested charge No. 1. The defendants in error object to the assignment because it does not appear therefrom upon what grounds complaint is based, and because the statement does not set forth sufficient facts to enable the court to determine whether or not said charge was improperly refused. We think the objections were well taken; but we will consider this assignment as presented. The charge requested is as follows: “In order to prevent a recovery by Andrew Heflin in this case on account of contributory negligence, you must believe from the evidence that he failed to exercise that degree of care and prudence for his own safety that persons of his age, maturity of judgment, and discretion would have exercised under the circumstances.” The evidence set out by plaintiffs in error under the assignment is: “Andrew Heflin was 16 years old in April before he was injured in August.” There is no allegation in plaintiffs’ petition or any reply to the.plea of contributory negligence that plaintiff was inexperienced and did not have sufficient understanding to know the danger from a moving train. The facts show he was 16 years and 4 months old when he was hurt, and was a man in size, weighing about 135 pounds. He had gone to school, and was advanced to the sixth grade. He had worked in his father’s pool hall something like a year before he was injured; had worked some in the telephone office, and some in the livery stable; had lived some two or three years in Texieo, and was frequently at and around the depot at that place, arid for four years had lived in Texas, in 300 or 400 steps of* a railroad station. There is nothing in the testimony indicating that he did not have sufficient discretion and judgment to be aware of danger from a moving train, or that he was incapable of apprehending or understanding danger from a near approach to a moving train. Under the decisions of the Supreme Court, we do not think the evidence presented the issue which the plaintiff requested to be submitted by special charge No. 1. Railway Co. v. Shiflet, 94 Tex. 139, 58 S. W. 947. In that case Judge Brown, speaking for the court, said: “The evidence showed that Thomas Shiflet was between 11 and 12 years old— most probably within two months of the latter age. This does not bring Mm within the age at which courts have held a child to be exempt, as a matter of law, from the charge of contributory negligence, neither does it place him at such age as the court will, as a matter of law, hold that he was responsible for his acts. It was a question of fact for the jury to be determined upon the evidence adduced before them. If there was no evidence upon the subject, the issue should not have been submitted, or, having been submitted, the jury ought to have found for the defendant, because it devolved upon the plaintiff to show that, for want of discretion, the negligent act of the deceased was not imputable to him.”

It was held substantially in the case of Ry. Co. v. Rodgers, 89 Tex. 675, 36 S. W. 243: “A person of sufficient intelligence to know the danger of the position he is thus exposed to cannot recover. A child may be of such tender years that it will be conclusively presumed not to have such capacity, otherwise it becomes a question of fact, and the burden is upon the plaintiff to show want of capacity.” Shelley v. City of Austin, 74 Tex. 608, 12 S. W. 753; San Antonio Water Works Co. v. White, 44 S. W. 181; Ry. Co. v. Shiflet, 37 Tex. Civ. App. 541, 84 S. W. 247; Ry. Co. v. Trigo, 101 S. W. 254; Over v. Ry. Co., 73 S. W. 535; San Antonio Traction Co. v. Kumpf, 99 S. W. 863-865; Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S. W. 375-678, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111; National Biscuit Co. v. Scott, 142 S. W. 65-67.

The third, fourth, fifth, and sixth assignments are grouped by plaintiff in error and presented as one assignment. The appellee objects to these assignments on various grounds, and because not properly briefed. We believe the objections should be sustained to the assignments as briefed by plaintiffs in error. However, we may state that in our disposition of the second assignment we have disposed of the principal question presented under these assignments. The other question presented in said assignments did not probably injuriously affect the plaintiffs in error’s rights, and we therefore overrule the several assignments. The eighth assignment is too general, and will be regarded as waived.

We find no such error in the trial of the cause as will require a reversal. It is therefore affirmed.


text:
    FIRST NAT. BANK OF HEREFORD v. DUNLAP.
    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1913.)
    1. Appeal and Error (§ 907) — Review— Presumptions — 1Theory op Total.
    In an action by the holder of a chattel mortgage against one who purchased the chattels, where the petition is for conversion of the property, and there was no contention on appeal of the violation of an independent collateral promise made by the purchaser to the mortgagee, it will be presumed that the plaintiff’s contention at the trial was based upon conversion, and not upon the independent promise, although there was evidence tending to establish such promise.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    2. Appeal and Error (§ 750) — Review-Theory op Decision in Lower Court.
    Where the only specification of error assigned was the refusal of the trial court to give a peremptory instruction for the plaintiff for the conversion of property covered by a chattel mortgage, the court will not reverse a judgment upon a directed verdict for the amount admitted by the defendant to be due, which was correct upon the theory of conversion, for the reason that there was some evidence of an independent promise by the purchaser to pay more to the plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.]
    3. Chattel Mortgages (§ 177) — Damages— Conversion — Action by Second Mortgagees.
    A bank which had a chattel mortgage upon an undivided interest in certain sheep, subject to a prior mortgage on the entire interest which the bank held for collection, could recover from the purchaser of the sheep, on the ground of a conversion hostile to the mortgage, only one-half of the value thereof remaining after the purchaser had paid the amount necessary to satisfy the first chattel mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.]
    4. Chattel Mortgages (§ 177) — Conversión —Evidence—Materiality.
    In an action for such conversion, testimony of the officers of the bank that they demanded payment of the entire amount in excess of the first mortgage as a condition of releasing their mortgage of the one-half interest is immaterial.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by the First National Bank of Hereford against Eli Dunlap. From a judgment for the plaintiff in the amount admitted by defendant to be due, plaintiff appeals.
    Affirmed.
    Carl Gilliland,' of Hereford, for appellant. Knight & Slaton, of Hereford, for appellee.

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

   HENDRICKS, J.

J. P. Snyder and R. M. Cooper were the owners of 1,577 head of sheep. Clay, Robinson & Co. held a senior lien on these sheep, which at the time of its payment amounted to $4,220, and the First National Bank of Hereford, the appellant herein, held a second mortgage, executed by Cooper, individually, upon an undivided one-half interest in the sheep, for the sum of $3,905.55. The appellee Dunlap purchased the sheep from Snyder and Cooper and a short time thereafter resold the property to another party, who shipped to market, where they were sold and butchered. At the time Dunlap, the appellee herein, purchased the sheep from Snyder and Cooper, the First National Bank of Hereford was representing Clay, Robinson & Co. as a collecting agent, for the purpose of attending to the collection of the note and mortgage, executed by Snyder and Cooper to said Commission Company, and the purchase price of the sheep amounted to $5,110.37, which left a balance of $890.37 after the Commission Company was paid. It is agreed that $3.25 a head was the market value of the sheep “at all the times and places, to the date of this trial.” The record suggests that Snyder owed the First National Bank, the appellant, some sum of money, but the amount is not shown, and as security for which the bank had no lien upon Snyder’s interest in the sheep. It is undisputed that Snyder, out of the $890.37, had a $200 interest in this amount, and consequently to that extent an interest in the sheep, which amount appellant, unless by virtue of some agreement, was not entitled to, and which agreement was not declared upon by any appropriate pleading in the cause. Appellant, the plaintiff below, predicated its cause of action against Dunlap, the purchaser of the sheep, upon conversion and damages represented by the market value of the sheep. Defendant Dunlap, without setting out the substance of all the pleadings, among other things, alleged that when he purchased the sheep the vice president of the appellant bank participated in the transaction, assisting Cooper particularly in his negotiations with reference to the sale, and that the purchase was not in hostility to the mortgage interest, but in recognition of the same, and to which the appellant bank replied by alleging that Dunlap purchased the same upon condition that said bank would not release its mortgage upon Cooper’s interest in said sheep, without the payment to it by Dunlap of the full excess over and above the amount due the Clay-Robinson Company upon its prior mortgage, which Dunlap, however, denied to the extent that he understood the amount to be paid into the bank was the prior mortgage and the amount in excess only representing Cooper’s interest in the sheep. The trial court peremptorily instructed the jury for $690.17, which represented the balance of Cooper’s interest "in the sheep, in favor of the appellant bank on the tender of said amount by the appellee Dunlap, charging the costs of the suit against the bank, and thereby impliedly denying the recovery upon the conversion for the full amount of the damage arising upon the alleged conversion.

Appellant’s theory for a reversal of this case, and for a recovery against Dunlap, inferable from his propositions, is based solely upon conversion of the sheep by Dunlap and the damages measured, and arising therefrom, in cases of that character, contending that Dunlap acquired the property in hostility to the mortgage. In this case Dunlap, the appellee, logically speaking, did not acquire this property without a recognition of the mortgagee’s interest, nor did he hold the same in hostility, strictly speaking, to said mortgage. He held $200 of the money out of the $S90 over and above Clay-Robinson debt, which confessedly did not belong to Cooper, in hostility to an alleged implied contract, which might arise upon the evidence of the bank’s officers, based upon the statements made by them that they would not release the Cooper mortgage as to a half interest in the property unless the whole excess was paid to the bank. Appellant’s brief, however, is devoid of any assignment or proposition that his theory of recovery against Dunlap is based upon such an independent implied contract, which, of course, was never merged into the bank’s mortgage, his contention here being that the measure of its recovery is the value of the sheep on account of the conversion of Dunlap; the mortgage having been asserted in its amended petition as a predicate of recovery, and we presume the same was appellant’s theory in the trial court, as there is a lack of complaint in this court, based upon the violation of such independent collateral promise to the mortgage.

Appellant’s only assignment of error-does not contain any specification of error, and the propositions thereunder, closely examined, refer to the ground of recovery, as stated, upon conversion and for damages for the value of the property resultant from such conversion. This assignment is a complaint of the action of the trial court in peremptorily instructing the jury to find in favor of the plaintiff against the defendant for the sum of $690.17, the amount of the tender “as fully complained of in the tenth assignment of error, in plaintiff’s motion for a new trial”; and when we travel to the transcript for the tenth assignment of error in the motion for new trial, we find that this is addressed to the action of the trial court in refusing the first special charge requested by the appellant; and when we find the first requested special charge in the transcript refused by the trial court, the same consists of a requested peremptory instruction (not set out in any statement in the brief) to find for the plaintiff for $2,559.35, with interest from January 27, 1911. In this manner we finally ascertain that the specification of error which appellant attempts to assign in this court is the refusal of the trial court to give this peremptory instruction, which we presume, by process of calculation, appellant is asking for a verdict for a sum of money which represents one-half of the fair market value of the sheep, upon the theory of conversion, and which special instruction, taken in Ponnection with the propositions we are to assume that appellant is assigning error upon a ground of conversion which solely constitutes the complaint in this court. Appellant is unable to recover the $200 belonging to Snyder, from Dunlap, the purchaser of the sheep, upon an implied contract which might arise upon the record, upon the assignment in this court, with reference to a failure of the trial court to peremptorily instruct the jury for a verdict for $2,559.36, and upon propositions based solely upon conversion and damages resultant therefrom. Even if properly briefed, based upon such a theory in this court, we would not reverse the cause upon that ground, the bank having obtained the interest of Uooper in the sheep which is all it could recover in conversion.

It is agreed that $3.25 is the fair market value per head of the sheep at all times. If Dunlap converted Cooper’s one-half interest in the sheep upon which the bank had a chattel mortgage, the most that the bank could recover by virtue of such conversion is about $690, which would represent the interest that Cooper had in the sheep over and above the Clay-Robinson mortgage, and which Dunlap tendered to the bank, and renewed the tender in court; and the conflict in the testimony between the officers of the bank and Dunlap as to whether or not the bank demanded a payment of the whole excess, $890, by Dunlap as a condition to the release of its mortgage, has nothing to do with the theory of recovery asserted in appellant’s brief in this court; and there is no appropriate assignment here with appropriate propositions, asserting a theory of recovery, based upon such an implied contract with Dunlap to place all of this excess into the bank, and the authorities cited by appellant in his brief, as applicable to a full recovery for the market value of Cooper’s one-half interest in these sheep, based upon conversion, we do not think at all germane to the character of ease exhibited by this record. The bank is shown to be holding its second mortgage upon Cooper’s one-half interest in the sheep in entire subordination to the mortgage executed by Snyder and Cooper, in favor of Olay-Rob-inson & Co., which amounted to $4,220, collected by the bank for the prior mortgagee, and the same constituted the proceeds of the purchase money of the sheep, paid by Dunlap to said bank.

A discussion of the cases we believe would be unprofitable. We have considered, in some cases, where we thought the merits of the cause warranted it, assignments which were not full enough of themselves to clearly raise the point, but, aided by the propositions and subjoined statements in reviewing causes altogether raise the point; and, while we have considered this brief upon its merits as to the point attempted to be raised, the brief is really insufficient as a submission of the matter to this court.

The judgment of the trial court is in all things affirmed.