author: HARPER, C. J.

text:
    DUDLEY & ORR v. HAWKINS.
    (No. 523.)

    (Court of Civil Appeals of Texas. El Paso.
    Feb. 17, 1916.
    Rehearing Denied March 9, 1916.)
    1. Appeal and Error <®=>1001 — Review —• Verdict.
    If there is any evidence to support the verdict, it will not be disturbed on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <S^>1001.]
    2. Negligence <⅝=»39 — Landowners—Attractive Nuisance.
    A boy 14 years of age, with companions, went upon defendant’s quarry, stole a large can of blasting powder, concealing himself at the time of the offense from the defendant’s watchman. The powder was a long distance from a sand pile on the premises about which children were accustomed to play, and the boy had never before been in the locality where he discovered the powder. In fighting small handfuls on burning grass the whole of the powder was exploded, and the boy was injured. Held that, while a landowner who leaves unguarded dangerous machinery attractive to children may be liable for injuries received by the children, though they were on the premises without permission, yet defendant was not liable, for it could not be foreseen that children would sneak upon its premises and purloin explosives; a watchman living on the premises, and the other employés working until 5 o’clock.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. <§=>39.]
    3. Negligence <§==>85 — Infants—Contributo-ky Negligence.
    In view of the fact that the boy was 14 years of age and appreciated the danger of explosions, jumping back when he ignited handfuls of powder, he must be held guilty of contributory negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 121-128; Dec. Dig. <§=>85.]
    4. Negligence <§=>136 — Contributory Negligence— Infants^-Jury Question.
    The question of discretion in children is for the jury; there being no fixed age limit at which they are presumed to have discretion.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. <§=>136.]
    5. Negligence <§=>122 — Actions—Pleading.
    In an action for injuries received by a boy when he exploded powder which he had stolen from defendant’s quarry, the petition averred that on account of his limited or backward intellect and want of experience in handling explosives he did not know or appreciate the danger, while defendant denied that the boy did not knew or appreciate the danger of handling the powder, and charged that he was negligent. Held, that the petition averred his want of contributory negligence, and such averment was put in issue by defendant, so that the burden of proving freedom from contributory negligence was on the boy.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dee. Dig. <§=> 122.]
    6. Negligence <§=>136 — Actions—Burden oe Proof.
    Where the burden of proving want of contributory negligence was on a 14 year old boy suing for injuries received in exploding powder stolen from defendant’s quarry, a peremptory charge should he given for defendant, where there is no proof of want of contributory negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. <§=>136.]
    Appeal from District Court, El Paso County, Ballard Coldwell, Judge.
    Action by Roscoe Hawkins, by next friend, against Dudley & Orr. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    S. P. Weisiger and J. F. Woodson, both of El Paso, for appellants. Lea, McGrady & Thomason, of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   Opinion.

HARPER, C. J.

Appellee, Roscoe Hawkins, a minor, by his father as next friend, brought this suit against appellants, Dudley & Orr, for $10,000 damages for personal injuries alleged to have been sustained as the result of an explosion of a quantity of blasting powder, under substantially the following allegations of fact: That defendants were operating a rock quarry near the resident. district of Highland Park, an addition to the city of El Paso, and had been operating it long prior to the date of the injuries; that in the operation of said quarry defendants used large quantities of blasting powder, dynamite, etc., for blasting rock from its natural position for commercial uses; that Roscoe Hawkins was a few months less than 14 years of age; that he and one of his neighbor boys and companions about the same age were attracted to defendant’s said quarry by said quantities of ■ blasting powder, dynamité, etc., left exposed; that they went upon the premises, and there found a large can of blasting powder about 25 pounds, which they took, as an object of amusement and attraction to them, and carried it away, and left it temporarily in an arroyo a short distance from the quarry; upon another day they returned for it, emptied it from the can into a sack, filled their pockets, threw it upon the ground, and proceeded to amuse themselves by igniting it with matches and burning dead grass, etc.; while so doing the entire sack was ignited, and Roscoe was by the explosion seriously burned; that on account of his limited or backward intellect and want of experience in handling powder And fire near powder Roscoe did not know or appreciate the danger attendant upon playing therewith, etc.; that defendants were guilty of negligence in leaving said explosives upon their premises so exposed that it attracted plaintiff and other children to it, and by not locking same up, etc.; that defendants, in the operation of their quarry, would several times a day, and almost daily, set off blasts of dynamite, blasting powder, etc., which produced loud explosions, and in this way give notice to the inhabitants and their children that explosives were being used at said quarry; that the quarry was open and easy of access, not inclosed or guarded in any way, so that children were easily attracted thereto and its approach easy to them; that defendants and their agents knew that the children of the neighborhood were in the habit of visiting said quarry, and knew that it was an attractive place to children, but made no objection to their visits to the premises.

Defendants answered, specifically denying the allegations of the petition and specially pleaded:

“Replying to paragraph numbered 5 of said first amended original petition, defendants deny that on March 4, 1914, Roscoe Hawkins and one of his neighborhood boys and companions were attracted to said premises by quantities of dynamite, caps, and blasting powder left exposed to the public at said quarry or premises, and deny that they found a large can of blasting powder exposed on said premises, and say that, if they did go on said premises, on or about said date, they went there without the knowledge or consent of defendants; and were trespassers upon said premises, and, if they procured or carried away from said premises a can of powder, they did so without the knowledge or consent of defendants and against tlieir will, and such taking was an illegal and criminal act on the part of plaintiff and those acting with him in so taking and carrying away said powder. * * * And defendants further plead and say that the plaintiff, Roscoe Hawkins, was guilty of negligence, proximately causing or contributing to cause his said injuries, if any, for which defendants were in no wise responsible.”

The case was tried, before a jury, and verdict and judgment for $1,250 was rendered, from which this appeal is taken.

Findings of Fact.

Defendants, Dudley & Orr, were operating a rock quarry upon the side of Mt. Franklin, joining, but outside the limits of, El Paso, about two to five blocks from street car line to Highland Park, a residential addition to said city. In its operations large quantities of high explosives, such as blasting powder, dynamite, etc., were used, and witnesses testify that they had at times seen dynamite, caps, and powder in open cans about the place where the blasting was done. A private road led up to the quarry from the street car line. The premises were not inclosed in any way. There was also evidence of a watchman being on the premises at times. The evidence shows that there was a sand pile upon the premises in which children 'frequently played.

Roscoe Hawkins described the incidents leading up to and the accident as follows:

The accident occurred on March 5, 1914. That he was 14 years old in May following. “I lived about 12 blocks from the quarry. I had been upon the premises four or five times before the accident playing in a sand pile with some other boys. This said pile was about two blocks below the quarry, but in sight of the quarry.” That they could look up and see the blasting, and the men working at the quarry could “see us down there. I don’t know whether they did or not. Nobody from the quarry ever objected to us playing in the sand pile, and nobody ever stated that they had. I lived within a few blocks from the quarry about 3 years prior to the time of the accident, and during this time they had been blasting there off and on, but I had never been up to see them blast, and had not been up to the place of blasting up until we went up to get the powder. We did not go up that day to see the blasting. Two days before the accident Maurice Sawyer told me that there was some powder up there, and asked me to go up there and get it. I had no intention of going there until he asked me to. If he had not asked me, I would not have gone at all. I knew nothing about there being powder there until he told me. I had never seen any powder there, because I had not been up there. I then arranged to meet him and met him and Harold about 3 o’clock in the afternoon. Young Harold and I went up to whore the powder was. Harold is the youngest one. Maurice did not go. As we got up toward the quarry, I saw a man coming down the road. We sat down on a large rock and waited until he went on home. We waited until he got where he could not see us, because we did not want him to see us get the powder. Our purpose was to get it without letting any one know it, without the consent of any one. After he had gone we went up there where the powder was. We kept a partner around to see if any one came. We found two cans of powder. I knew what was in the cans, because I had seen some before, and what it was used for. I knew that it was put under large pieces of rock and exploded and blow the rocks out. I had known this for some time. We found two cans of powder tied together _ with wire. I slipped one can out. We took it up the canon and hid it in a gully so no one would find it. We did not want any one to know we took the powder was the reason we hid it. We then went home without opening the can. The can was sealed. We agreed that night that we would go next day and get it. We mot next day and went up where the powder was. Do not know whether it was off Dudley & Orr’s premises or not. We pried the can open and emptied it into a gunny sack. We exploded some of the powder a handful at a time by lighting dry grass, and throwing the powder on it. When we would throw the powder on we would jump back and see it explode. We were afraid it would burn us. We left the sack of powder where we could easily get at it with the top open, and while we were exploding the handfuls of powder by lighting the dry grass the whole sack exploded. The Sawyer boys and I took the powder to have fun with it. We had never handled any quantities of powder as much as this before. I think it was a 25-pound can. 1 did not know that it would go off so easy; did not know the damage it might do nor the injury it might inflict. We did not intend to explode the whole 25 pounds'at once, because we wanted to have more fun, and I knew that exploding 25 pounds at a time might cause trouble. 1 knew that when large quantities of powder exploded it was dangerous.”

Appellants urge that under this statement of fact the court should have instructed a verdict for defendants: (1) Because no duty is shown to be owing to said minor by the owners of the quarry; (2) because the evidence shows that appellee went upon the premises to commit a criminal act, to wit, theft, and that, as the proximate result of the commission of the criminal act, he was injured; (3) that the uncontradicted evidence shows that appellee went to appellants’ premises without their knowledge or consent, carried the powder off their premises, exploded it himself; therefore his acts proximately caused and contributed to his injuries.

A person who places upon Ms premises and leaves unguarded dangerous machinery unusually attractive to children of immature years and they are thereby induced to go thereon cannot escape liability, even though the child was there without express permission. Railway Co. v. Morgan, 92 Tex. 98, 46 S. W. 28; Little v. James McCord Co., 151 S. W. 835.

This ease is predicated upon the principles of law which are approved and applied in this state in what is termed the “turntable cases,” and the cases cited supra contain a full discussion of the principle involved and its application to given facts. As applied to the pleadings and proof in this case, if the defendants, Dudley & Orr, placed or permitted dynamite, blasting powder, or sand pile to be on their premises, and such things were unusually attractive to children, and the plaintiff was thereby attracted or allured upon the premises, and by reason of the failure of defendants to use the care required of them by law to prevent injury by safely guarding the explosives the plaintiff was injured, and without negligence upon his part contributing to such accident and injury, the defendants are liable, and this cause must be affirmed.

To put the proposition as it alone can be considered by this court, if there is any evidence to support the findings of the jury, all these questions having been submitted in the charge of the court to the jury, the judgment must be affirmed. There is evidence that the sand pile was upon the premises; that it was attractive to children and that many children frequently played upon it. The powder was there, and was left upon the premises unguarded, except as to the watchman, and it was in sealed cans of 25 pounds capacity, and two of said cans fastened together with wire. The only evidence that the powder, etc., was attractive to plaintiff is the fact that, when told of it being there and solicited to go after it, he acceded to the solicitation and assisted in removing it from the premises, and the further fact that they succeeded in apparently deriving some amusement in exploding small handfuls by burning dry grass and casting the powder upon it. It seems clear that he was not allured there by the powder, for he says that he had not been up to the place where the blasting was done, where he found the powder, before the time that he went up and got it, although he had lived in a few blocks of the place for three years, and had heard the blasting, if not all of this time, at least a part of it, and that he did not know the powder was there until told about it by the other boy, and the fact that he went up there at the suggestion of his playmate seems to have been more a case of being overper-suaded by the suggestion of a boyish prank than by the explosives themselves. Appel-lee suggests in this connection that he could be allured by hearing of the existence of the powder as well as by an actual sight if it. This might be good reasoning, but not evidence, for in this case he said he would not have gone but for the fact that his playmate asked him to go; besides, .he did not hear of it from the defendants. Furthermore, it clearly appears that the defendants were using that care to protect people from harm who came upon the premises required by the law, to wit, ordinary care. So far as the facts applicable are concerned, it is shown by plaintiff’s own evidence — defendants introduced none — that they had provided for a watchman to live upon the premises. Their employes, except Sundays, worked there until approximately 5 o’clock. The powder causing the- injury, and we are not here concerned with any other, was in large sealed cans, two ⅛-pound cans, and tied together with wire. The premises were blocks away, from two to five, from any public highway, with no path or road leading to it used as a public way, and upon the mountain side. Under such circumstances it could not be said that even the watchman would contemplate that it was necessary to keep his eye upon the powder, at all times in the fear that some child might burn himself with it.

Again, by his acts in avoiding the employés of the defendants in his approach to the quarry, stationing a sentinel to give warning of the approach of any one who might appear to interfere with the taking, and other facts enumerated in the findings of fact, which tend to show that he knew that the act he was doing was wrong and criminal, taken together with the facts enumerated by him, in connection with the burning of the powder, such as that he would jump back when he threw small handfuls upon the burning grass, and that he knew that to explode the whole sack would cause trouble, with the further fact that he was virtually 14 years of age, establishes beyond cavil that he was possessed of sufficient discretion and judgment to be held guilty of contributory negligence.

The rule in this state is that the question of discretion in children is a question for the jury. Evansich v. Railway Co., 57 Tex. 126, 44 Am. Rep. 586. And there is no fixed age limit, as contended for by appellee, within which a child is sui juris, or at which it will be presumed that it has not judgment and discretion, but there must be evidence in all cases to require an issue to be submitted. There is no evidence in this record except the mere fact of age which in any wise indicates that the plaintiff did not fully realize the moral turpitude in the taking of the powder and equally realize the dangers attendant upon playing with the powder. Cook v. Houston Navigation Co., 76 Tex. 353, 13 S. W. 475, 18 Am. St. Rep. 52.

Plaintiff pleaded that “on account of his limited or backward intellect” and want of experience in handling powder and other explosives Roscoe did not know or appreciate the danger of handling powder and fire near the powder, and for that reason did not appreciate the danger, etc., the legal effect of which was to allege that Roscoe was exercising ordinary care for his own safety. Defendants denied that Roscoe did not know or appreciate the danger of handling the powder, etc., and charged negligence on the part of Roscoe, etc. The pleadings put in issue the question of contributory negligence. In St. Louis S. W. Ry. Co. v. Shiflet, 94 Tex. 131, 58 S. W. 945, Shiflet was a boy between 11 and 12 years old, and the Supreme Court held that:

“This does not bring him 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 ⅛⅜ 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 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.”

The plaintiff in this case did. not discharge the burden of proof, and the appellants did show conclusively that Roscoe did know and appreciate the danger, and there was no conflicting evidence. The court should have given appellants’ peremptory charge.

There appears to be nothing in this record to support an affirmance of this case, except that a boy 2 months under 14 years of age was hurt seriously and permanently, for which a jury, out of sympathy, allowed him a small amount of money as damages, .and the trial court confirmed the action of the jury by entering its decree. It seems that the suit should be the other way. The plaintiff should pay for the powder wrongfully taken and destroyed.

• It appears that the case was thoroughly ■developed upon the trial. It therefore becomes our duty to render the judgment here which should have been rendered in the trial court.

Reversed and rendered.
      É^jjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&=>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    WRIGHT BROS. v. LEONARD.
    (No. 5571.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    On Motion for Rehearing, Feb. 9, 1916.
    Rehearing Denied March 8, 1916.)
    1. Appeal and Eeeoe <$=51040 — Haemless Eeeoe — Rulings on Pleading.
    Though plaintiff might have made plainer how he sought a recovery, overruling an exception to the petition, on the ground that the action was against, a firm, and not its members, .Aeld harmless, if error, one of the partners having sworn to the answer, and both having testified ; and Rev. St. 1911, art. 1863, authorizing in suits against partners, on service of one partner, judgment against him and the firm.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4089 — 4105; Dec. Dig. <$=> 1040; Pleading, Cent. Dig. §§ 284, 400, 423, 450, 490,- 567, 568.]
    2. Tkovee and Conveesion <$=>40 — Damages —Evidence—Value oe Secondhand Goods —“Pbactically.”
    Relative to damages for conversion of secondhand goods, it not being shown that there was a market therefore or one where they could be bought, evidence that they cost, when new, ■$680, and that they were “practically”' as good -as new, is sufficient proof of the value to warrant a judgment for $250, “practically,” in the sense here used, meaning almost or nearly as valuable as when new.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 232-244; Dec. Dig. <g=>40.
    For other definitions, see Words and Phrases, First and Second Series, Practical.]
    On Motion for Rehearing.
    3. Chattel Moetgages <$=>148 — Fixtubes — Foreclosure — Pkioe Execution Sale oe House — Notice—Sheriff’s Retubn.
    One foreclosing a mortgage on fixtures in a house, and removing them, is not charged with notice of what was shown by the sheriff’s return on a prior execution sale of the promises; the deed not being recorded, and papers in a case in court not being constructive notice, except where specially provided for, as in case of lis pendens.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 243 ; Dec. Dig. <$=>148.]
    4. Chattel Moetgages <$=>149 — Fixtures— Foeeclosuee — Peiob Execution Sale — Notice — Possession by Tenant.
    One foreclosing a mortgage on fixtures in a house, and removing them, is not charging with notice of the right of a purchaser of the premises at execution sale, because he has a tenant in possession, such tenant being ‘the prior owner, who gave the mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 245; Dec. Dig. <$=>149.]
    5. Estoppel <$=>94^-Judicial Sale — Failuee to Give Notice op Ownebship.
    One who, after purchasing a house at execution sale, was attorney for the former owner in a suit by another to foreclose a mortgage given by such former owner on fixtures in the house, and gave no notice of his having an unrecorded deed, but approved the judgment of foreclosure, stating that the lien of the mortgage, as it existed at date of its execution, was still in force, and gave no notice at the sale thereunder, is estopped to assert title against the mortgagee, who purchased at the sale under the judgment, and removed the fixtures.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 245-247, 276-284; Dec. Dig. <$=> 94.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by H. B. Leonard against Wright Bros. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    Terrell, Walthall & Terrell, of San Antonio, for appellants. H. B. Leonard, of San Antonio, for appellee.
   CARL, J.

Appellee, Leonard, recovered a judgment against Wright Bros., a copart-nership composed of R. C. and Mark Wright, in the sum of $250 for conversion of certain electrical fixtures. The value of the goods was alleged to be $680.

Wright Bros, filed an exception to the petition because it is a suit against a firm and not against the individual members composing that - firm. The petition runs thus:

“Now comes H. B. Leonard, hereinafter styled plaintiff, complaining of Wright Bros., a firm composed of R. C. and Mark Wright, respectfully represents unto the court,” etc.

The court overruled that exception, which action of the court is made the basis of the first assignment of error. All through the petition the word, “defendants,” is used when referring to Wright Bros. In Hughes Bros. & Co. v. McDill & Grenslet, 1 White & W. Civ. Cas. Ct. App. § 1266, Judge Walker said that:

“It is hypercritical to attempt to pervert the obvious intent of the pleadeV to sue the members of the firm so as to limit this action to a suit against the partnership effects merely. The petition well and sufficiently supports the judgment against all the defendants.”

In the case quoted from the petition read:

“Hughes Bros. & Co., a commercial firm doing business and residing in the city of Dallas, state of Texas, and composed of * * * [stating the members].” *

The judgment would not have been entered unless at least one member had been served, and whether he was cited or not, R. C. Wright swore to the answers filed, and both members testified. Dnder article 1863, R. S., service on one partner would authorize a judgment against the one served and the partnership. Glasscock v. Price, 92 Tex. 272, 47 S. W. 965; Williams Land Co. v. Crull, 125 S. W. 339; Frank et al. v. Tatum, 87 Tex. 204. In the Williams Land Company Case, supra, Judge Speer says:

“The judgment against ‘Williams Land Company, a copartnership composed of W. A. Williams and Clark Marshall,’ can be nothing else than a judgment against the individuals composing that firm.”

While the plaintiff below might have made his object plainer, as to how he sought a recovery, we do not feel that it is a matter of sufficient importance to constitute reversible error, if indeed it be error at all, to refuse to sustain the exception, and the assignment is overruled.

The second assignment complains that there was not sufficient legal proof upon which to base the judgment for $250, because they contend that the fixtures taken by appellant were not shown to be worth that sum. Appellants swore that the fixtures were worth from $75 to $100. Gray, and others, swore that the plant seemed to run as well after it had been gone over and cleaned subsequent to the last flood on the Salado as it did before, if not better. The property cost, when new, $680, and plaintiff’s witnesses swore it looked to be as good as new; and the electrician who overhauled and repaired the plant said it seemed to run perfectly in every particular; that he did not know the original price of a plant like this, but that he considered this one worth practically as much as it was when new. When appellants sued Gray on the notes and to foreclose their mortgage on these fixtures they alleged the value to be $400, and the indemnity bond given the sheriff was for that amount. There is no exception to the character of evidence given, and the electrician says the property was practically as good as new. In the sense in which it is used here, “practically” means almost or nearly as valuable as when new, and in the light of appellants’ own allegations' that it was worth $400, and the other statements as to its condition and value by appellee’s witnesses, we think the evidence is sufficient to support a judgment of $250. These goods were secondhand and in such case the jury, in determining their actual value, could take into consideration the original cost, their condition at the time, and as compared with when new, in order to determine what they were worth at the time converted. T. & P. Ry. Co. v. Hack line, 46 Tex. Civ. App. 38, 101 S. W. 1042. In this case it is not shown that there was a market for such goods or a market where same could be purchased.

“The market value of secondhand goods is not what one might get for them from a secondhand dealer, but what it would cost a person to purchase such goods in the open market, if there was a market for such goods.” Souther v. Hunt, 141 S. W. 361; Lincoln v. Packard, 25 Tex. Civ. App. 22, 60 S. W. 682; Insurance Company v. Wood, 133 S. W. 288.

In the Souther Case, cited, it is said:

“Where a party by his wrongful act, willfully done, deprives the owner of property, he ought not to be heard to complain if he is required to make good the damage occasioned- by his tort, and to pay the injured party what such goods were worth to him would be no more than making good such injury.”

This is where there is no market shown for such goods, and in such case it is competent to show what they were worth to the owner. But when the electrician says the goods were worth practically as much as when new, and that value is shown exactly, and the verdict is for not much more than one-third of the original cost, we think the evidence is sufficient. The assignment is overruled.

The third assignment charges error because the court refused to render judgment for appellants on the plea of estoppel as against appellee. C. J. Gray owned the land where the fixtures were installed. In May, 1913, Ferdinand Grobe obtained a judgment against H. B. Leonard, C. J. Gray, et al. for $734.04 and costs. This judgment was, on August 16, 1913, abstracted, and subsequently the land was levied on and sold as Gray’s property to satisfy the judgment. H. B. Leonard became the purchaser at the sale for $195, 'but did not record his deed. - Gray remained in possession, and says he was to pay reasonable rent, which, however, he never did pay, because he says Leonard did not call on him for it. Leonard said he would have reconveyed the property to Gray upon payment of the $195 he paid out when- he bought it in at the sheriff’s sale. On August 15, 1913, Gray executed a mortgage on these fixtures to secure his notes for $480, remaining unpaid on the fixtures to Wright Bros., and while it is admitted that mortgage was good as between Wright Bros, and Gray, it is likewise admitted that Grobe had no knowledge of the existence of any claim Wright Bros, had against Gray, in so far as this property was concerned.

Wright Bros, sued Gray on his notes October 22, 1913, and to foreclose the mortgage. Leonard, as attorney, filed a formal answer for Gray in that suit, and in due time a judgment was taken against Gray, and Leonard O. K.’d that judgment, but he did not tell Wright Bros, that he held a deed to the property and owned the same. This judgment, prepared by Wright Bros.’ attorneys, foreclosed the mortgage lien on these electrical fixtures, and on March 24, 1914, the fixtures were sold under the foreclosure order and bought in by Wright Bros, for $50, which was credited on the judgment after the costs were paid. Leonard intended to be present at the sale to give notice of his claim, but was out of the city at that time. The sheriff went into the house by means of pass-keys, and took the fixtures out after the sale was made, took up the engine and dynamo from the concrete foundation, unscrewed and detached the switchboard from the wall, took the storage batteries from the shelf, cut the wires that connected the chandeliers to the lighting plant, cut the fan wires and removed them, together with all shades, fixtures, etc., and carried all the property away. Leonard knew the property was being advertised for sale, for he received a notice, but did not restrain the sale. Appellants and their attorney testified that if they had known that Leonard owned the property, they would not have made the sale, but would have made him a party. It is not charged in the pleadings that the purchase of Leonard was a mere colorable one and in fact for the use of Gray. In fact, his title is not attacked; but the contention is made that, by remaining silent, Leonard is now estopped to assert title as against appellants. They say that if they had known that Leonard owned the property, they would have stopped the sale and made him a party.

Grobe’s lien and sale thereunder are not attacked, but it is conceded that he did not have any notice of appellants’ claim against Gray. In slioi-t, Grobe was in the attitude of an innocent purchaser as against appellants, and Leonard bought Grobe’s title. Did Leonard owe appellants a duty which he failed to perform which led to appellants’ injury? Appellants contend that he should have told them he owned the property while he was representing Gray in the foreclosure suit. This knowledge, however, they already had constructively from the records, for the sheriff’s return on Grobe’s sale would have described who bought the property, and if Leonard had told them that he owned it, he would have been telling them only what they adready knew in law. There is no evidence -that Leonard made any representations whatsoever such as to mislead appellants. He simply remained silent. If he had spoken, he could have told them no more than what the records already disclosed, of which the law charges appellants with knowledge. Appellants were not buying as is ordinarily done, but were forcing a collection and the sum bid by them for the fixtures was simply credited on their judgment after the costs were paid. The agreed statement of facts says that had Leonard not been out of town, he would have given notice of his claim at the sale. There is no evidence that Leonard induced appellants, even by his silence, to make a purchase of proper ty, appellants going no further than to say that if they had known he owned it, they would have made him a party to the suit.

In the shape in which this record comes to us, there is nothing for us to do but to affirm the judgment;-and it is so ordered.

On Motion for Rehearing.

Upon further consideration of this case, we are of the opinion that we were in error in holding that appellants were chargeable with constructive notice of what the sheriff’s return would show. The abstracting of the judgment did no more than to fix a lien upon the property as provided in the statute. That lien had not been foreclosed, and when the county records were examined, they would not have disclosed any sale of the property by deed made for the same. There is no law which makes the papers in a case in court constructive notice, except where specially provided for, such, for instance, as a lis pendens notice. And that acquires its vitality and force as a notice by reason of a compliance with the registration laws by filing it for record in the office of the county clerk. So Leonard was in the attitude of any other person holding an unrecorded deed who stands by and sees his property sold to some one else.

The tenancy of Gray would not protect him because he simply remained in possession after Leonard bought the property, and neither he, Leonard, nor any other person, so far as the record shows, said anything about the change of ownership. Furthermore, Leonard, while he paid $195, obtained a credit on a judgment which was against him, as well as against Gray et al. lie knew that the mortgage was being foreclosed, represented Gray in that suit, and approved the judgment which stated that “said lien and said mortgage as it existed on the 15th day of August, 1913, is still in full force and effect.” Knowing this and all the facts, and that he held a deed to the property, which he had not recorded, Leonard maintained silence.

“The general rule is that a person who stands by at a judicial sale when his property is being sold as the property of a third person, and makes no objection, but permits purchasers to buy the same, believing that the property belonged to such third person, will be estopped from claiming the property against such purchaser.” Gregmoore v. Gilmour, 159 Mo. App. 215, 140 S. W. 765.

Leonard did all this. He' said he had intended to enjoin the sale, but decided to give notice at the time the sale was ma'de, but was out of the city. Mr. Bigelow, in his work on Estoppel (6th Ed.) p. 051, says:

“If a man knowingly, though passively, by looking on suffers another to purchase land for valuable consideration under an erroneous impression of title, without making known his claim, he will not be permitted thereafter to exorcise his legal right against such person.”

Practically to the same effect is the language used ■ in 16 Cyc. p. 762, where it is said:

“An owner of property who stands by and sees a third person selling or mortgaging it under claim of title without asserting his own title or giving the purchaser or mortgagee any notice thereof is estopped, as against such purchaser or mortgagee, from afterward asserting his title”

—'and in support thereof is cited Hardeman v. Maud, 78 Tex. 84, 14 S. W. 287; Stanley v. Epperson, 45 Tex. 644; Luter v. Rose, 20 Tex. 639; Moore v. Tarrant County Association, 31 S. W. 709.

So we think that, under all the circumstances, Leonard is clearly estopped to assert his title as against appellants, and, so viewing the case, the motion for rehearing is granted, the judgment of affirmance, as well as the judgment rendered by the trial court, is set aside, and judgment is here rendered that appellee recover nothing against appellants, and that all costs in this court and the court below he adjudged against appel-lee.

Reversed and rendered.
      é=>For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    GENERAL BONDING & CASUALTY INS. CO. et al. v. MOUNT.
    (No. 921.)

    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 9, 1916.
    On Motion for Rehearing, March 8, 1916.)
    CORPORATIONS <S=^80 — STOCK SUBSCRIPTION— Misrepresentations — Rescission.
    Agents for a partnership, which was organizing a corporation, falsely represented to plaintiff that the corporation proposed to be organized would receive his note for his subscription and extend it for an indefinite time, notwithstanding they had no such authority and the corporation could not validly receive a note in payment of stock. Held that, despite the ordinary rule that a promise to perform an act in the future, made as a representation to induce another to enter into a contract, will not amount to a fraud in legal contemplation, though the promise be broken without excuse, such false representations warranted plaintiff in rescinding his subscription, for the agent must have known neither he nor his principal would be bound or could perform.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407½; Dec. Dig. <g=S0.j
    Error from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by R. N. Mount against the General Bonding & Casualty Insurance Company and another. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.
    Locke & Locke, of Dallas, and Knight & Slaton, of Hereford, for plaintiffs in error. W. H. Russell and Gilliland & Estes, all of Hereford, for defendant in error.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

This was an action, brought by defendant in error, Mount, against the General Bonding & Casualty Insurance Company and the Texas Surety & Casualty Organization Company. The cause of action was based on alleged fraudulent representations by Bell & Wright, agents for the Organization Company, in procuring a certain contract for stock in the proposed General Casualty Insurance Company. The Casualty Insurance Company was made a party alone for the purpose of canceling the contract so procured, and a judgment was asked for the sum of money paid to the Organization Company for its services performed and to be performed in the organization of the Casualty Company, which sum was $500 and interest thereon. The General Casualty Company disclaimed any interest in the contract, and the Organization Company, which was a partnership, setting out the partners, denied the fraud, etc. The trial court rendered judgment canceling the contract for stock in the proposed Casualty Insurance Company, and rendered a judgment against the Organization Company for the amount of money paid to it to organize the proposed corporation.

By the written contract, the defendant in error agreed to take 10 shares of the capital stock of the proposed company, of the par value of $100 each, and pay therefor the sum of $1,500, which was to pay for the capital stock and 12½ per cent, to surplus, and in addition $500 to the promoters. The defendant in error, Mount, testified:

“As to who solicited my subscription to the contract, will say the conversation I had was with Mr. Wright altogether. I did not have any talk with Mr. Bell. He came in about the wind-up of it. He didn’t hear practically any. As to what was said between me and Mr. Wright with reference to any person or persons advancing or lending me money to pay for this stock, will say we had a -right smart conversation about it, maybe two or three or four hours, and he went ahead and said that $500 was all I had to pay on it. Give him a note for $500, and he said he wouldn’t send the note on in, but would hold that. He said: ‘They will take your note for $1,500, and charge you 7 per cent, interest, and you can put up your stock for collateral.’ He said they were going to organize a new company, and he said: ‘If the new company won’t carry it, the old one will. That is all you will have to put up, for five years at least.’ Mr. Wright told me that this former company, the one that was organized, would advance the money to pay for this stock, and take my note in case the new company would not. Yes; it was the Organization Company, the one Bell & Wright were representing at that time. They were going to organize -under a new name. He said: ‘If the new company won’t take it, and carry it, the old company will.’ I asked him if he would do that, and he said: ‘Yes; I heard Mr. Stephens make that proposition to Taylor yesterday, and I have the same authority he has.’ ”

He further testified:

“No, sir; I would not have entered into this subscription contract if Mr. Wright had not made these promises or statements to me. These promises that were made induced me to enter into the contract. I told him plainly I did not want to put any money into it, and ho said: ‘You won’t have to put only this $500.’ He said the Organization Company would carry for five years anyway. He said this Organization Company would carry it, provided the new company did not take it. He said he had heard the conversation between Stephens and Taylor, and he said: T have the same authority he has.’ As to his statement with reference to his authority to make this kind of agreement, will say he said he was agent for the company and that anything he said would stand up.”

The facts show that the Organization Company was composed of several members, who were acting as a partnership in the organization of the proposed Casualty Company, and that Bell & Wright had a contract with the Organization Company as soliciting agents. The contract in this case shows that Bell & Wright had no authority to make the agreement to take notes of the subscribers for stock in the proposed company, with 7 per cent, interest, secured by the stock in the company.

Wright testified:

“I had no authority from the Texas Surety & Casualty Organization Company to make arrangements for the extension of the time of deferred payments. In cases of irregular subscriptions, we made it a rule (I mean, Mr. Bell and myself made it a rule) to submit the agreements proposed to the company in writing for their approval. We had no authority to take regular subscriptions without referring them to the company for their approval and acceptance, and we never did make any regular subscription agreement without referring the same to the company for their approval and acceptance. No statement, promise, or condition regarding an extension of "the majority of the deferred payments on the amount of subscription was embraced in writing or reported to the Texas Surety & Casualty Organization Company by me, or within my knowledge by Mr. Bell. I never made any. The subscription was regular and I did not deem it necessary. No statement, promise, or condition regarding extension of the maturity of the deferred payments was made a part of the contract or agreement of sale. If any statement was made at the time regarding any extension, it was merely that Mr. Mount might be able to obtain such extension through the company, as such extension had been granted in the case of Dr. Taylor. I do not remember any such statements 'being made at the time, however, by either Mr. Bell or myself.”

The evidence shows that the subscription contract was upon the regular form prescribed by the Organization Company and furnished Bell & Wright, as soliciting agents, to be used by them. The $500 note, executed at the time of executing the subscription contract, was a short time note and thereafter paid by Mount. The Organization Company and the General Casualty Insurance Company refused to recognize the representations of Wright, claimed to have been made by Blount, and refused to extend the note on the kind of paper that Mount contends was represented he could make, and this suit was instituted thereafter. The case was tried before the court without a jury, and' the case is here alone on a statement of facts, without conclusions of fact, filed by the trial court.

The first assignment is that “the court erred in not rendering judgment for the defendants” (plaintiffs in error). The propositions presented under this assignment are:

Eirst. “Representations or promises which relate to the future, and refer to no past or existing fact, will not justify rescission of a contract, or support an action for deceit, even though subsequently such representation or promise is not made good, unless it be shown that at the time such representation was made the party making the same entertained a fraudulent intention not to perform, and made the same with the design of fraudulently procuring the other party to enter into the contract.”
Second. “There was no evidence that at the time the alleged representation was made there existed an intention not to perform the same, or that it was made in bad faith for the purpose of cheating or defrauding the plaintiff.”

Assignments from 2 to 9, inclusive, raise the question presented in the above propositions ; in fact, plaintiff in error refers to the propositions, statements, authorities, and arguments under the first assignment, and in a short argument under each of the assignments states:

“The foregoing assignment involves a consideration of the same questions discussed under the first and second propositions under the first assignment of error.”

It will be perceived we are not called upon to determine whether the representations relied on in this case constitute a part of the contract and were omitted from the writing, and whether, if so, it contradicts the writing. The only question, therefore, is: Does the evidence in this case warrant the finding of fraud in making such representations, to induce the contract? The facts in this case show that Wright had no authority to make such representation, and that he then knew he had no such right, and also knew that the proposed corporation could not legally give the defendant in error such a privilege as he' represented would be granted, and, thus knowing, he made the representations testified to by Mount. These representations were made to induce the contract and by reason of which he secured the contract. His statement that he had such authority was a statement of a then purported existent fact, which in fact was untrue, and it was calculated to deceive and did deceive. We believe the trial court was justified in finding from the facts that the representations were fraudulently made to induce the contract, and hence correctly canceled the subscription contract and decreed a recovery for the money so obtained. The facts shown in this case were offered, and doubtless accepted by the court, to establish that there was no contract executed by reason of the false statements made, and that by reason thereof the defendant in error was induced to sign the contract. Commonwealth, etc., v. Bomar, 169 S. W. 1060; U. S. Gypsum Co. v. Shields, 106 S. W. 725. We recognize the rule to be ordinarily that a promise to perform an act in the future, although made as a representation to induce the other to enter into a contract, will not amount'to fraud in legal contemplation, although afterwards the promise, without any excuse, is broken; but if the promise was made with the design of cheating or deceiving the party sought to be bound by the contract, and the one so representing had no intention of performing, or knew that his principal or himself would not perform or be found thereby, this fact, coupled with the further fact that the contract was so obtained, and the refusal of a promisor to perform, will be sufficient to rescind the contract. Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Railway Co. v. Smith, 98 Tex. 553, 86 S. W. 322; Touchstone v. Staggs, 39 S. W. 189; Collinson v. Jefferies, 21 Tex. Civ. App. 653, 54 S. W. 28; Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43. The case as presented in this court by the plaintiff in error we do not think shows reversible error.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

The appellants, upon motion for rehearing, insist that the statement of facts does not show that Wright represented he had the power to make the promise as alleged and testified to by Mount, because the court, in qualifying the bill of exceptions excluded the testimony for any purpose. The witness testified substantially to the same statement twice, to which the appellant'took two bills of exception. The bills are preserved in the statement of facts, and at page 2 the first testimony was given and the bill of exceptions taken thereto. The objection is that agency could not be established by the declarations of the agent. The trial court, in his explanation, says the testimony was not considered to prove agency—

“but w&s considered admissible as tending to prove that said agent assumed to act in the matter complained of, as defendant’s agent, and in connection with other testimony, to the effect that the money obtained from plaintiff was accepted by defendants and withheld by them, with full knowledge of the means used by said agents to induce plaintiff to pay the money to them; also said testimony was considered admissible to show the inducement that led plaintiff to enter into the contract and pay the $500.-00, and give notes to same.”

On page 3 the witness testified that Wright said—

‘ffie had heard a conversation between Stephens and Taylor, and he said, T have the same authority as he has.’ As to this statement, with reference to his authority to make this kind of agreement, will say he said he was agent for the company and that anything he said would stand up.”

The trial court qualified the bill to tbis evidence that the statement of Mount “to the effect that Wright said he had the same authority as Stevenson,” was withdrawn by plaintiff and “was not considered by tbe court for any purpose.” It will be seen the court did not exclude the representations of Wright that he had authority, or that what he said “would stand up,” but only excluded a comparison of authority with Stephens. This we did not think, and do not now believe, affected in the least the representations made upon which we based our opinion. Wright evidently knew as a matter of law he co-uld not bind tbe corporation not yet in existence, and knew that it could not issue shares of stock for a note.

The motion for rehearing will be overruled.
      <§rxoEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    WALTON v. HARIGEL et al.
    (No. 7032.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 13, 1916.)
    1. Municipal Coepobations <§=3654— Evidence-Establishment op Street.
    In a suit to restrain tbe obstruction of a street or roadway, evidence held insufficient to show that the way had ever been a public street.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1428; Dee. Dig. <§=3 654.]
    2. Easements <§=532 — Loss ,by Adverse Holding.
    Where a right of way given in a deed was fenced by consent, but shortly after the owner of the property repudiated the easement and held it exclusively and adversely for 20 years, the easement was lost, since a private easement can be lost if a person who has such right is excluded from its use by adverse possession and claim for the length of time required by the statute of limitations.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 84; Dec. Dig. <§=532,]
    3. Easements <§=332 — Adverse Possession-Statute.
    Sayles’ Ann. Civ. St. 1897, art. 3351, which provides that no person shall “ever acquire by occupancy or adverse possession any right or title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been donated or dedicated to public use in any town, city or county, by the owner thereof, or which have been. laid out and designated in any manner to public use in any town, city or county in this state,” has no application to a mere private easement.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 84; Dec. Dig. <§=332.]
    Appeal from District Court, Austin County ; Frank S. Roberts, Judge.
    Suit by R. T. Walton against Bertba Hari-gel and others. From a verdict for the defendants, the plaintiff appeals.
    Affirmed.
    Duncan & Duncan, of Bellville, for appellant. Searcy & Botts, of Brenham, for ap-pellees.
   PLEASANTS, C. J.

This is a suit for injunction brought by appellant against appel-lees to restrain the obstruction of a street or roadway upon which appellant’s property abutted and which he alleged extended southward from appellant’s land across the homestead of appellees. A temporary injunction was granted by tbe district judge restraining appellees from obstructing the street claimed by appellant.

Appellees by their answer, filed after the injunction was granted, denied that there was ever any street across their homestead, or that any easement across same was ever granted to appellant or his vendors. They further alleged that the street or easement claimed by appellant is across property which was acquired by them in 1871 and has been used and occupied as their homestead since said date, and that said property had been inclosed and in the exclusive possession of appellees since 1890.

Upon final trial in the court below the judge, after hearing the evide¿ce, upon his own motion withdrew the cause from the jury, and rendered a judgment by which the temporary injunction was perpetuated as to that portion of the street claimed by appellant coterminous with the western line of his property, and as to the remainder of the alleged street or easement said injunction was dissolved.

The undisputed evidence shows that appel-lee Bertha Harigel and her deceased husband, William Harigel, purchased the tract of seven acres of land, across which the street described and claimed by appellant is located, in June, 1871, and said appellee has had her homestead upon this tract since said date. This seven-acre tract of land is bounded on its northeast side by a public road of Austin county, and by another public road on its east or southeast side. It fronts on its west side on the right of way of the Gulf, Colorado & Santa Fé Railway Company. A portion of the tract is upon outlot No. 10 of the town of Bellville. The line along the public road before mentioned, which is its longest line, runs S. 68½° E. The course of its eastern line, which is about one-half the length of the line before mentioned along the public road, is S. 21 ½° W. The southern line is parallel with the line first described, but is a few yards shorter, and the western or fourth line of the tract runs due north and south. There is no street or public road adjacent or near this tract on its southern side. In December, 1881, William Harigel and wife, Bertha Harigel, sold to H. Schlos-ser a tract or parcel of land 100 by 120 feet in dimension out of their homestead tract. This tract or parcel of land abuts upon the public road before mentioned for a distance of 120 feet. In the deed from the Harigels it is described as follows:

“Beginning at a cedar stake sot for the N. W. corner in the N. line of said [Bellville] town tract; thence S. 68½° E. (67°) with the same 120 feet to a cedar stake set for the N. E. corner; thence S. 21⅛° W. 100 feet to a cedar stake set for the S. E. corner; thence N. 68½° W. (67°) 120 feet to a cedar stake set on the E. side of a 60 ft. wide street; thence N. 21 ½ E. 100 feet with skid street to the place of beginning.”

Shortly after their purchase Schlosser and his wife built a house and moved on their lot. They fenced the greater portion of the lot. The Harigel improvements were in the northwest corner of the seven-acre tract. All of the eastern and southern portions of this tract were open, persons going to and from the town of Bellville traveled across it, and there is evidence that this travel had made a road across the tract and other tracts adjoining it on the south; but the undisputed evidence shows that it was never recognized as a public road of Austin county or a street of the town of Bellville.

In 1890 Harigel fenced all of his tract, except a strip 60 feet wide by 100 feet long along the west side of the Schlosser tract. In making this inclosure he, with the consent of the Schlossers, joined his fence to theirs and agreed with ‘them that they might pasture their calves in his (I-Iarigel’s) inclosure, which he used for a pasture. In a few months after this agreement was made Hari-gel and Schlosser disagreed as to the use of the pasture by Schlosser, and the latter moved his fence a few feet back from his line, and Harigel built a fence along the line between him and Schlosser. The entire property has remained inclosed since 1890, and has been used and claimed by Harigel and his wife as a part of their homestead. Schlosser died testate in 1897, and by his will, which was duly probated, bequeathed his property to his wife. In April, 1909, Mrs. Schlosser sold the place she and her husband had purchased from Harigel to H. F. Granau. In 1914 Granau sold to appellant. In both of the conveyances last mentioned the description of the property is identical with the description in the deed from the Harigels to Schlosser. Mrs. Schlosser testified in regard to the agreement of Harigel to give a street across his property, and the subsequent fencing of the property by Harigel, as follows:

“Mr. Harigel gave us a street to the depot, and he (Mr. Harigel) was willing to sell the other land for lots. There was a street in front of our house, I told you it was all open to the depot. As to how the place ever happened to be closed up, will say Mr-. Harigel came one Sunday down at home. When he came down, my boy was sick, and I thought at first he came down to see him, and he talked to me first, and then he asked: ‘Where is your husband?’ I told him: ‘He is in town.’ Then he told me he wanted to fence up that piece, make a little piece out of it for his calves and horses in there, and he wanted to allow us to bring our calves in there, and he wanted to fence from our fence on; so of course, it was for us all right. We have no horse and we have no buggy to travel that road, and it was nice in the morning to go after the calves; so they agreed to make a gate from the cow pen to that pasture. Well, it was all right, and 1 told him when he left, I says: ‘We won’t fight about the land or about the fence.’ That is what I said to him — the same words. And after this we had trouble about that, just about the fence. Then when Mr. Harigel make up the fence, well, he came to my husband and said: ‘Well, Herman, I tell you that is not enough to eat for all our cattle in there. I have to’ some times use several horses and calves.’ And so he don’t allow us to use it. Well, Mr. Schlos-ser don’t say nothing, but he (Mr. Harigel) just fenced our piece off, and it was closed up.”

In November, 1890, after Schlosser and Harigel had fallen out about the fences and the use of the pasture, Schlosser and others presented a petition to the commissioners’ court of Austin county to establish a public road across the Harigel tract just where the street is now claimed, and across the lands south of Harigel’s, to a connection with a public road or a street of the town of Bell-ville near the railway depot. Upon the report of the jury of view appointed by the court the petition was refused. In August, 1907, appellant and others presented a petition to said court ashing for the establishment of said road. This petition was refused by the court after the report of the jury of view.

We think upon this evidence no other judgment than one in favor of the appellees could have been properly rendered.

There is no evidence that the street or easement claimed by appellant was ever a public road of Austin county or a street of the town of Bellville. Neither the town nor the county could have had any interest in a street or road only a few hundred feet in length and which did not furnish a passageway for the citizens of the town or county, and it is not claimed that the alleged street extended south beyond appellees’ land, and, when the commissioners’ court was petitioned to establish a street across ap-pellee’s land and the adjacent land on the south so as to furnish a road or passageway for the public, the petition was rejected.

The only claim of appellant that finds any support in the evidence is the claim that by his deed and his promise to Schlosser Harigel agreed to give Schlosser a street 60 feet wide entirely across appellees’ tract of land. If the jury had found that this was true, the undisputed evidence shows that more than 20 years before this suit was filed Harigel had fenced all of his property, and he and appellee Bertha Harigel have continuously since that time held exclusive and adverse possession of all of the land, claiming and using it as a part of their homestead, and upon that state of the evidence the trial court was authorized to take the case from the jury and render judgment for the appellees upon their plea of limitation. We hardly think the testimony of Mrs. Schlosser goes further than to show that Harigel asked permission to use a portion of the Schlosser fence in inclosing his property, and was not asking permission to take possession of the strip of land in controversy. But, if it be conceded, as claimed by appellant, that this testimony shows that Harigel took possession of the strip by the consent and agreement of Schlosser, the undisputed evidence shows that shortly thereafter he repudiated any right of Schlos-ser in a street or easement across his property, and we find Schlosser attempting to induce the county to open a road across the property. Such being our conclusion as to the effect of the undisputed evidence, it is unnecessary to set out or discuss any of appellant’s assignments of error, because, if any error is shown by any of them, it must be regarded as harmless.

It goes without saying that the statute (article 3351, Sayles’ Civil Statutes) which provides that no person “shall ever acquire by occupancy or adverse possession any right or title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been donated or dedicated for public use to any town, city or county by the owner thereof, or which have been laid out and designated in any manner to public use in any town, city or county in this state,” has no application to a mere private easement, and the right to such easement can be lost if the person who has such right is excluded from its use by adverse possession and claim for the length of time required by the statute of limitation.

We are of opinion that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      <§=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    ALAMO TRUST CO. v. PRUDENTIAL LIFE INS. CO. OF TEXAS.

    (No. 5537.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1916.
    Rehearing Denied March 8, 1916.)
    1. Banks and Banking <S=o154 — Deposits— Actions — Sufficiency of Evidence.
    In an action by an insurance company to recover an alleged balance of a deposit with a trust company claimed by plaintiff to represent the selling price of stock sold to the trust company, in which the trust company claimed that the credit was fictitious and that it was acting as a trustee in collecting notes given by subscribers to stock in the plaintiff company, and did not itself buy the stock, evidence held sufficient to support a jury finding that there was a bona fide sale of the stock for a consideration paid by a deposit certificate with an agreement that the debt evidenced by the deposit slip might be canceled by the delivery of the stock to makers of the notes and delivery of the amounts collected on the notes to plaintiff.
    [Ed. Note. — Eor other eases, see Banks and Banking, Gent. Dig. §§ 502-512, 515, 516, 518-533; Dec. Dig. <⅞=15⅜.]
    2. Tbial <§=^260 — Instructions — Repudiation.
    In an action by an insurance company against a trust company to recover the balance of a deposit which the insurance company claimed represented the price of stock sold the trust-company, where the court defined the term “sale,” and no objection was made to the definition, it was unnecessary to give another abstract definition of such term.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <S=>260.]
    3. Trial <⅜^>242 — Misleading Instructions.
    In an action ,by an insurance company against a trust company to recover the balance of an alleged deposit claimed by plaintiff to represent the price of stock sold the trust company, in which defendant claimed that it was acting as trustee in collecting stock subsqrip-tions, and did not itself purchase the stock,’the court charged that in order to constitute a sale the agreement to sell and to pay must be unconditional ; but, in charging as to what must be found to warrant a finding for plaintiff, it merely charged that it must be found that plaintiff agreed to sell, and not that it unconditionally agreed to sell. Seld that, if it was proper to use the term “unconditional” at all in view o£ the fact that there was no issue as to any conditional sale, the jury could not have been misled by the failure to receive such term, as they must have understood that they were required to find that the agreement was absolute and unconditional.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. <§=>242.]
    4. Tbial <§=>256 — Instructions — Necessity of Requests.
    In such action, it would not have been proper for the court to charge, unless requested, that the transaction was not a sale if defendant was only to make payment out of collections on notes of subscribers to plaintiff’s stock, as this theory was not pleaded, and such an instruction might have been considered an intimation that the testimony showed some kind of a sale, and not an agreement to hold the stock as trustee.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. <§=>256.]
    5. Appeal and Eeeob <§=>1041 — Haemless Eeeob — Amendment of Pleadings.
    Defendant was not injured by the granting of permission to plaintiff to file a trial amendment after the verdict had been returned, where, in rendering judgment, the court refused the prayer of such amendment.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4106⅛109; Dec. Dig. <§=> 1041.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by the Prudential Life Insurance Company of Texas against the Alamo Trust Company. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Ryan, Matlock & Reed, of San Antonio, for appellant. J. A. King, of Albany, and McFarland & Lewright, of San Antonio, for appellee.

      Application for writ of error ppnding in Supreme Court.

   MOURSUND, J.

On January SO, 1914, the Prudential Life Insurance Company of Texas sued the Alamo Trust Company, alleging it had deposited $12,000 with defendant on November 16, 1912, which defendant refused to pay except as follows: December 12, 1912, $800; December 13, 1913, $100; July 18, 1913, $1,800; and September 8, 1913, $100. Recovery was sought of the balance, viz., $9,200, with interest from December 1, 1913. Plaintiff also alleged that on or about August 23, 1912, it deposited with defendant for collection certain promissory notes, described in an Exhibit A, attached to the petition, of the aggregate face value of $17,610, of which defendant accounted for only those enumerated in an Exhibit B, amounting to $4,040; that some of said notes, amounting to probably $7,500, are good, but defendant refused to account for or return the notes.

The defendant answered by denial of a deposit in cash of $12,000, denial of any indebtedness to plaintiff, denial that plaintiff deposited with it for collection, on the terms alleged in the petition, the notes described in Exhibit A, and denial of all other material allegations. And by way of verified special answer, defendant alleged that it organized and opened for business June 18, 1912, under the banking laws of Texas, with (among others) W. A. King and T. W. Robertson as directors, they being also directors of plaintiff corporation, and Robertson has continued to be a director in both corporations, but King ceased being a director of defendant company on February 26, 1913, though he has always been a director of plaintiff company, and for about a year has been its president; that when defendant opened for business King and Robertson, who was then the president of plaintiff company, were engaged in efforts to increase its capital stock and sought the assistance of defendant, and represented to defendant that plaintiff owned many promissory notes, given for subscriptions to its capital stock on the basis of two for one, and, as its directors wanted to increase the capital stock to the amount of $6,000, it would unconditionally indorse to defendant good subscription notes greatly in excess of $12,250, if the defendant would enter upon its books a credit of $12,250, and undertake the collection of said notes as if it was the owner thereof, the principal of said notes as fast as collected to be paid to plaintiff and deducted from the credit of $12,250; that defendant was to have for its services all interest and attorneys’ fees it might receive in the collection of said notes; that no check or other requisition was to be drawn against the credit so entered 'on defendant’s books by plaintiff, and none has been presented by or in behalf of .plaintiff; that by virtue of said agreement, which was verbal, plaintiff delivered to defendant in trust for the makers of said notes the shares of stock to which they would be entitled upon payment of their notes. It was further alleged that the first certificate delivered to defendant was for 60 shares of plaintiff’s capital stock, and, as the makers of said notes paid them, the certificate delivered to defendant was returned by it to plaintiff and canceled, and, in lieu thereof, plaintiff would deliver to defendant certificates for the makers so paying their notes, together with a certificate for the shares then remaining unpaid which defendant held in trust for the makers of the unpaid notes, and as further payments of notes were made like steps would be taken in the return, cancellation, and reissue of certificates of stock in plaintiff company; that the total of the notes exceeded the amount of credit of $12,250, and the excess when collected was to be used by plaintiff, or by defendant in plaintiff’s behalf in purchasing in the open market, the requisite stock for such of the makers of notes paying the same, as had not received the stock to which they became entitled; that such agreement was based upon the representations made by plaintiff’s officers to defendant that plaintiff was launched upon a successful career (that all notes would be promptly paid), and it was part of said agreement that, unless defendant collected in principal the sum of $12,-500, plaintiff should have no claim against defendant for the part remaining uncollected. Defendant alleged further that of said 60 shares it still had uncollected in whole or in part the notes of six persons, whose names are mentioned, together with the number of shares held in trust for each, the aggregate number being 22; that it is ready to return the notes uncollected if plaintiff will credit it therefor against said credit deposit of $12,500.

By way of cross-action, defendant alleged it loaned plaintiff, in July, 1913, $1,800 to pay interest on the debt due on its building, and in September, 1913, $100 to be repaid out of proceeds of notes collected by defendant, making $1,900, less a credit of $800 so collected, leaving a balance of $1,100, with interest, for which it has a lien upon all of said notes. Defendant offered to deliver all uncollected notes to plaintiff, provided it be given judgment for its reasonable expenses in endeavoring to collect the notes; for the balance due of the $1,800 and $100 advances, with interest; that the remainder of the credit item of $12,250 be canceled to the amount of the notes to be returned; and that plaintiff be required to protect defendant against certain suits to cancel notes, and any claims that may be made by the makers of notes.

Plaintiff’s first supplemental petition contains demurrers to defendant’s answer, and, practically, a denial thereof.

Defendant, by trial amendment, alleged that the agreement pleaded by it was made on or about November 16, 1912, and that it was authorized and ratified by both corporations.

The cause was submitted upon one special issue, as follows: Did the plaintiff make a sale on or about November 15 or 16, 1912, to the defendant of 60 shares of the capital stock of the Prudential Life Insurance Company of Tpxas? The jury answered, “Yes.” Upon this verdict judgment was entered in favor of plaintiff, as follows: Por $5,950 balance upon deposit account with interest from December 1, 1913, to date of judgment, and $1,865, being amount of various notes collected by defendant, making a total of $8,-368.50; that defendant turn over to plaintiff all subscription notes, and plaintiff should hold defendant harmless against any recovery in suits pending to cancel notes; and that defendant be allowed a credit of $250 incurred in defense of suits.

On November 16, 1912, Albers issued and sent to Tighe, as secretary and treasurer of plaintiff company, a certificate of deposit reciting that plaintiff had deposited with defendant $12,000. The certificate was accompanied by a letter, written by Albers, as active vice president of defendant, in which he said:

“I take pleasure in herewith inclosing duplicate deposit slip for $12,000.00. Please have the stock certificate issued the first thing Monday morning and send over. I am expecting the examiner here almost any day and want to get things in shape,”

The stock certificate for 60 shares was issued by Tighe in the name of Dr. Robertson, the then president of plaintiff corporation, who was also a director and vice president of defendant company. This was done by direction of Albers or Robertson. Robertson indorsed the certificate, and it was delivered to Albers, who remained in control thereof.. On November 16, 1912, plaintiff company filed an amendment to its charter, and in connection therewith Robertson and Tighe certified that the 60 shares were owned by Robertson and were paid for in cash. Robertson admitted that he knew plaintiff could not take anything except cash, under the law, in payment for its stock.

At the end of the year, plaintiff, acting through Dr. Robertson and Tighe, made a sworn report to the insurance commissioner which showed that plaintiff had on deposit with defendant $9,650. The deposit had tb be reported to such commissioner as the equivalent of cash. The books of defendant company showed that on or about November 15 or 16, 1912, it purchased 60 shares of stock of plaintiff and paid therefor by a deposit to credit of plaintiff in the sum of $12,000, and that thereafter the stock was carried on the books of defendant as owned by it. Defendant, through its officers, reported about ten times to the bank commissioner that defendant was the owner of the stock. Defendant also issued to plaintiff deposit certificates for $540 on September 20, 1912, and $250 on November 19, 1912, making total deposits $12,790, and charged against plaintiff $1,800 paid plaintiff by draft and $100 expended by A'lbers in making a trip for plaintiff, and another $100, also other amounts, which will hereinafter be explained, so that the books of both corporations showed a balance due plaintiff of $5,950.

On August 23, 1912, plaintiff delivered to defendant for collection various notes given by subscribers for stock of plaintiff, aggregating about $15,000. Albers contended that these notes were delivered back to Robertson in November, and then returned to him by Robertson and Tighe with a statement showing which of them were considered good and which doubtful. Robertson corroborates this, but Tighe testified he knew nothing of the matter, except that he’ made certain lists for Robertson, who told him he was trying to sell some stock to Albers. As these notes were collected by defendant, and the proceeds paid to plaintiff, defendant had Tighe issue to such makers the shares of stock they became entitled to, taking same out of the 60-share certificate above referred to. Defendant parted in this manner with some of its 60 shares of stock, and charges plaintiff on its books with $200 for each share it gave up. It also appears that 4 shares were sold by defendant to Poth, who was not one of the makers of notes, and defendant paid plaintiff $800 when such sale was made. Albers for some months had Tighe to issue certificate for remainder ot 60-share certificate in the name of Robertson, but finally had it issued to himself for 33 shares, and then had one issued to defendant for 32 shares and to himself for 1 share; he having been elected a director of plaintiff company.

It appears that during the summer of 1912 defendant company had dealt to a considerable extent in stock in plaintiff company, at a good profit, and that a proposition to buy 213 shares in plaintiff company had been under consideration by the directors of defendant company, but that ■ this was abandoned. The minutes fail to show anything about the trade finally made. Dr. Robertson testified the agreement was that Albers would give plaintiff a deposit for $12,000, take over the notes, and they estimated that about 60 shares of stock would be paid for out of the notes; that plaintiff was to have the deposit as a cash deposit and amend its charter, and as defendant collected the notes it was to turn the cash over to Tighe, and the amount of deposit would be reduced proportionally; that Albers was to issue stock out of the certificate for 60 shares to the people who paid their notes; that the deposit was not to be checked on; that the certificate was put in Robertson’s name as trustee; he indorsed it to Albers, and so indorsed and delivered each succeeding certificate issued to him for the remainder of the 60 shares; that the interest on the notes was figured to November 15, 1912, and the agreement was that all interest accruing subsequent to that date should go to defendant, also attorneys’ fees on notes sued on, and defendant should have additional compensation if Robertson and Albers thought defendant entitled thereto. He also said:

“I think I have read the answer of the defendant in this case. It is not true that said credit of $12,000 on the hooks of the Alamo Trust Company was intended or understood by plaintiff to be a credit in name only; we were to have that deposit to be used as a credit in that bank in order to get the capital raised and go and collect these notes and issue the stock, so we could issue this stock to these people and not be bothered about raising the capital. * * * At the time I made this agreement, I testified to, with Mr. Albers, I intended it to be a credit for that property we sold them, the notes and stock to go together, and that this deposit should bo cashed as these notes were cofiected. Q. You say you sold him the notes and stock in connection with the notes? You sold him $17,000 worth of notes and 60 shares of stock, also, for this paper credit of $12,000? A. Whatever that figures, it is. I don’t think the notes figured $17,000. This 60 shares of stock was to be delivered to these people as they paid these notes off. I sold him the notes and stock for $12,000, and he was to issue that 60 shares of stock to people as they paid those notes. Supposing they never pay the notes, then Mr. Albers will have only the stock. The I plaintiff would get the $12,000 in money deposited there just as fast as the notes were paid. * * * As he got the cash, he was to pay for these shares of stock that he sold at a profit to Mrs. Raynor and Poth. I heard Mr. Tighe’s testimony that the four shares were sold to Poth out of that 60-share certificate. I also saw 3 shares sold to Mrs. Raynor out of that same one. * * * The Alamo Trust Company has never held my shares of stock in the Prudential Life Insurance Company for collateral for a loan to me, or anybody else, except this 60 shares of stock they had, they and I didn’t consider that mine. It belonged to them. I turned it over to them. I had nothing to do with it, except it was in my name. The Alamo Trust Company paid for it in the way I explained a while ago. I don’t think it was ever discussed that, if none of these notes had ever been paid and none of that 60 shares of stock had been sold by Mr. Albers or the trust company, there was any agreement as to what should be done. I think that had been reported to the insurance commissioner as a cash transaction, by me and the secretary.”

He testified the notes were just indorsed Prudential Life Insurance Company by him.

Albers testified that it was agreed between Robertson and himself that defendant would act in the capacity of trustee for the compensation testified to by Robertson, the duty of the trustee being to collect for plaintiff and deliver stock to the makers of the notes out of the 60-share certificate, and also to furnish plaintiff with a fictitious credit of $12,-000. According to Albers’ testimony, the only person cognizant of the terms of the contract were Albers, Robertson, and an attorney who was at the time counsel for both companies and who was not called as a witness.

The $1,800 paid on draft of plaintiff company was charged on defendant’s books against the $12,000 deposit, and was not charged as a loan, nor was any interest sought to be collected thereon, or note asked for. Albers testified that it was a loan to be repaid out of proceeds of notes when collected.

Tighe testified: That he knew nothing of any arrangement for a fictitious credit. That Albers led him to believe that the deposit slip represented purchase money for 60 shares of stock. That Robertson told witness that Albers was to deliver a deposit slip representing so much cash for the sale of 60 shares of stock and gave him to understand there was an agreement for the money to stay with defendant for some time, but he never could get anything definite out of Robertson with reference to time. That Al-bers told him Robertson had agreed that the money was to lie there for a certain length of time. He asked Albers how long a time, and Albers said:

“I don’t know how long, but you need not worry about your annual statement. By the time you make draft, everything will be in the clear; you won’t have to worry about making any explanation.”

That when Albers agreed to pay draft for $1,800 he said nothing about keeping back such amount out of collections. He testified further that after the deal had been made he was told that when the defendant collected notes it was to be permitted to issue some stock to the makers out of the 60-share certificate. He also testified that an increase of capital stock could not be procured until the stock was paid for, and then by filing an amendment to the charter, so it was customary for the officers of plaintiff company to borrow stock from stockholders and issue same to those who paid for stock with the expectation of immediately getting it, and when the capital stock was increased these loans would be made good.

Dr. Robertson was succeeded by Dr. King as president of plaintiff company, and after-wards disposed of all of his stock except one share and ceased to be a director thereof. Dr. King testified that Albers came to him after he was elected president, and mentioned the deposit, saying that King knew Robertson had given him a reasonable length of time to sell the stock without withdrawing the money, and he did not want King to - withdraw the money immediately; that King agreed to give Albers a reasonable time, and to notify him when he wanted to withdraw it; that later he told Albers they would have to call on him for $1,800 to pay interest to Pittsburgh Life & Trust Company; that Albers said it would be all right, there would be no trouble about it; that afterwards he told Albers they would have to withdraw the balance, as the insurance department would criticize them for borrowing from other banks when they had this balance with defendant; that the last time he talked with Albers the latter threatened to sue plaintiff on the notes; that Albers did not say defendant owned the notes, but said the notes were indorsed by plaintiff and therefore it was liable; that after his first conversation he spoke to Albers about the manner in which the notes were being handled, and Albers said:

“We are simply doing what you have already been doing. We are buying up stock for the Alamo Trust Company to give these people to facilitate matters and avoid any friction; then, when we have collected all we can and we have our final settlement, we can adjust this matter, and the Prudential can pay us back the stock we have advanced.”

Dr. King also testified that he knew Robertson had promised Albers a reasonable time in which to sell the stock and to keep the money on deposit with defendant; that this was brought out at a directors’ meeting of the Alamo Trust Company, when they voted to purchase the 60 shares of stock; that he (King) was a director of the Alamo Trust Company at the time; that he asked Albers at the meeting if any time had been agreed on, and Albers did not say what time had been fixed; that Robertson said to him:

“I made a trade with Mr. Albers to buy 60 shares of stock provided it goes through the directors of the Alamo Trust Company. You are one of the. directors, and I want you to be sure and be there and help us to put it through.”

J. B. Roberts testified that in November, 1912, Albers told him he had just bought a big lot of Prudential stock, which he wanted Roberts to sell, and he did sell 1 share. Not counting the 60 shares, defendant at that time only owned about 9 shares of stock in plaintiff company.

The foregoing statement shows the nature of the controversy and the contentions of the principal actors in the events leading up to the suit, and the testimony most favorable to plaintiff has been set out without mentioning the denials thereof. We conclude that the finding of the jury is supported by the evidence, and that the court did not err in refusing to instruct a verdict for defendant. The jury was warranted in finding that a bona fide sale of the 60 shares of stock was made by plaintiff to defendant, for a consideration of $12,000, which was paid by a deposit certificate, which was understood by the parties to be the equivalent of cash paid and deposited, but at the time it was agreed that the money would not be checked out until defendant should have had a reasonable time in which to sell the stock.

No questions relating to the terms of the sale were submitted. In’ fact, it was expressly agreed that the court should decide all questions except the one submitted to the jury. The evidence supports a finding that at the time of the sale,'or thereafter, it was agreed that defendant would have the privilege of canceling its debt evidenced by the deposit slip to the extent of $200 per share for each share of stock it delivered to the maker, of a subscription note when such note was collected. It could also have been found from the evidence that the defendant loaned plaintiff the stock it turned over to makers of notes, in order to facilitate collections, as the parties would expect delivery of the stock upon payment of their notes. The consideration moving defendant to enter into the contract was the agreement that it should receive all interest accruing after November 15, 1912, on all notes collected, besides such extra compensation as might be allowed. In addition, it appears that it had theretofore sold stock for $250 per share, so it could reasonably expect to make a profit on part, at least, of the 60 shares. Its acceptance of the terms may also be accounted for by the fact that in interlocking directorates it is no uncommon thing for a corporation to undertake the aid of another, and in this instance defendant’s active vice president was justified in believing that defendant ran no risk of loss by buying the stock. The court declined to consider the furnishing of the shares by defendant to the makers of the notes as a loan, for no recovery was awarded plaintiff as to such shares, nor was it required to deliver same to defendant, and neither side complains of the failure of the court to enter such a judgment. All assignments questioning the sufficiency of the evidence to sustain the verdict and judgment are overruled.

The defendant filed a number of exceptions to the charge of the court, and assigns error upon the overruling of some of these and upon the failure to give a special charge containing an abstract definition of the term “sale.” The court defined the term “sale,” and no objection is made to the definition, so it was unnecessary to give another abstract definition which would not have aided the jury in the least in passing upon the issue. In defining the term “sale,” the court stated that in order to constitute a sale the agreement to sell and to buy must be “unconditional,” but proceeded to state what the jury would have to find with reference to this ease in order to find that plaintiff sold defendant the stock, and in that connection did not say “unconditionally agreed to sell,” but merely “agreed to sell.” We doubt very much whether the court was called upon in the first instance to use the word' “unconditional” in its definition, for there was no issue as to whether the acceptance of the offer to sell was conditional. No contention is made that the agreement was not absolute and unconditional, but the issue was whether it was an agreement for the sale of stock or one appointing defendant trustee for certain purposes. But if it was proper to use the term “unconditional,” we think the jury could not have been misled by the failure to repeat it; for they must have understood that the court required them to find the agreement to be absolute and not conditioned upon the doing of some act or the happening of some event. Appellant also complains because the court did not tell the jury that even if defendant paid, or promised to pay, plaintiff for the stock, if such payment was to be made only when subscribers’ notes were collected and out of such collections, and not otherwise, then the transaction was not a sale within the meaning of such special issue. This complaint is evidently based on the theory that the sale might be found by the jury to be one upon condition that title to the stock should not pass until the notes were collected. No such theory was pleaded by defendant, and it would not have been proper for the court to charge on it without a request, as to do so might have been considered an intimation that the testimony showed some kind of a sale, and not an agreement to hold the stock as trustee. It is evident that, if defendant was entitled to have the issue submitted, it was its duty to prepare and request the submission of a special charge to the effect that if they found such to be the agreement, and found that the condition had not been complied with, then to find that no sale of the stock had taken place. Assignments Nos. 5, 6, 7, and 8, all of which relate to the manner in which the case was submitted, are overruled.

By the ninth assignment complaint is made because the court permitted the filing of a trial amendment after the verdict had been returned. The bill of exceptions shows that the court in rendering judgment refused the prayer in such amendment. It therefore appears that defendant suffered no injury by the ruling of the court.

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