author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HAILEY.
    (Court of Civil Appeals of Texas. Dallas.
    April 26, 1913.
    Rehearing Denied May 10, 1913.)
    1: Carriers (§ 408) — Loss of Passenger’s Baggage — Measure of Damages.
    The measure of damages for the loss of baggage, consisting of wearing apparel of the passenger, is the value thereof at the time of the loss, determined by considering the cost of the articles, the extent of their use, and their condition at the time of the loss.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.]
    2. Appeal and Error (§ 216) — Instructions —Requests.
    An instruction that the measure of damages for the loss of baggage, consisting of wearing apparel of the passenger, was such an amount as the jury should determine from the testimony to be the value of the trunk and the contents thereof on the day of the loss, was correct as far as it went, and the carrier failing to request any amplification thereof by special charge could not complain.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 640.]
    3. Carriers (§ 408) — Loss of Baggage — Measure of Damages — Evidence—Admissibility.
    A carrier sued for loss of baggage, consisting of wearing apparel of a passenger, may not prove that the articles had a market value as secondhand articles and prove secondhand value.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.]
    4. Commerce (§ 8) — Interstate Commerce— Regulation by Congress — Exclusiveness.
    The laws of Congress regulating interstate commerce, and the construction placed thereon by the federal courts, are exclusive, and conflicting' state regulations must give way.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § S.]
    5. Carriers (§ 405) — Passengers—Baggage —Liability.
    An interstate carrier issuing a baggage check which limits the value thereof unless a greater value is given and an excess baggage rate, provided for, paid, as declared by its rules approved and promulgated by the Interstate Commerce Commission, in accordance with the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1SS7, c. 104. § 20, 24 Stat. 3S6 [U. S. Comp. St. 1901, p. 3169]), thereby limits its liability, and the mere fact that the passenger’s trunk was actually received and delivered to him does not make the contract for transportation and delivery any the less an interstate transaction.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1544r-1549; Dee. Dig. § 405.]
    6. Carriers (§ 408) — Loss oe Baggage — Actions — Evidence—Admissibility.
    A carrier sued for the loss of baggage consisting of wearing apparel of a passenger may not show that the passenger was a gambler and had in his trunk in addition to the wearing apparel a complete gambler’s outfit; the passenger’s morals or character being in issue only so far as related to the truth of his testimony concerning the existence, ownership, and value of the articles sued for.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.]
    7. Witnesses (§ 336) — Impeachment—General Reputation.
    Where a party testifies in his own behalf, the adverse party may to impeach his credibility assail his general reputation for truth and veracity.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1112; Dee. Dig. § 336.]
    Appeal from District Court, Dallas County; J. O. Roberts, Judge.
    Action by T. B. Hailey against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded in part and affirmed in part.
    Alex. S. Coke and Lawther & Pope, all of Dallas, for appellant. Gibson & Callaway, of Dallas, for appellee.

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

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

   RASBURY, J.

In this case appellee sued appellant, alleging that he purchased from the Missouri, Kansas & Texas Railway Company, at its office in Oklahoma City, Okl., a railroad ticket entitling him to transportation for himself and his baggage from that point to Dallas, Tex., and that appellant, Missouri, Kansas & Texas Railway Company of Texas, is a connecting line of said initial carrier and as such received said baggage from the initial line and failed to deliver same to appellee. The baggage was alleged to consist of a trunk and its contents of the value of $607.35. Judgment for said amount was prayed, etc. Appellant, as applicable to the issues involved in this appeal, by its answer averred that appellee for a fare paid became a passenger at said Oklahoma City upon a connecting line, his destination being Dallas, Tex., but that under the baggage rules and regulations then in force concerning the carriage of passengers and their baggage between said points approved and promulgated by the Interstate Commerce Commission of the United States, and posted in the depot at Oklahoma City in compliance with the orders of said Commission and of which appellee had notice, it was provided, among other things, that, “Unless a greater sum is declared by the passenger and charges paid for increased valuation at time of delivery to carrier, the value of baggage belonging to or checked for an adult passenger shall be deemed and agreed to be not in excess of one hundred dollars, and value of the baggage belonging to or checked for a child traveling on a half ticket shall be deemed and agreed to be not in excess of fifty dollars ($50.00). If passenger, at the time of checking baggage, declares, according to the form prescribed, a greater value than one hundred dollars ($100.00) for an adult and fifty dollars ($50.00) for a child, each one hundred dollars ($100.00) in value, or fraction thereof, above such allowance will be charged for at ten (10) per cent, of the excess baggage rate per hundred (100) pounds, for the distance carried. The minimum rate will be ten (10) cents per hundred dollars ($100.00) and the naimimum charge for increased valuation twenty-five cents (25 cents).” After pleading the quoted rules and regulations, appellant further averred that appellee did not in compliance with said rules make the declaration that his baggage was of a value greater than that adopted as a basis of valuation, nor pay the charges for such increased valuation, and that in the absence of an express declaration to that effect appellee could not recover more than $100. Appellant also pleaded its receipt of the trunk from the connecting carrier, and subsequent delivery to appellee. In reply to the foregoing answer appellee specially demurred to that portion of the same which set out said baggage rules and regulations, because immaterial, irrelevant, and constituting no defense to appellee’s cause of action. The demurrer was sustained and said portion of the answer stricken from the record. Upon trial before the jury appellee recovered $400, judgment was entered accordingly, and from which this appeal is perfected.

The evidence upon the trial and the finding of the jury therefrom warrant the following conclusions of fact: Appellee purchased a ticket in Oklahoma City, Okl., from that point to Dallas, Tex., from the agent of the Missouri, Kansas & Texas Railway Company, a connecting line of the appellant, Missouri, Kansas & Texas Railway Company of Texas, and upon that ticket checked his trunk to Dallas, Tex. The check issued by the original carrier and which evidenced appellee’s ownership of the trunk had indorsed thereon: “This duplicate check is to be given the passenger who must present it for baggage immediately upon arrival at destination, to avoid charges for storage. Unless a greater sum is declared by the passenger and charge paid for increased valuation at time of delivery to carrier, the valuation of baggage cheeked hereon shall be deemed and agreed to be not in excess of $100.00 for tbe whole ticket and $50.00 for a half ticket.” Tbe trunk was in fact delivered by tbe initial line to appellant and by appellant delivered to its officers at its station, in Dallas, Tex. Appellant’s agents failed to deliver tbe trunk to appellee when demanded. Tbe contents of tbe trunk consisted of tbe personal wearing apparel of appellee, except as hereinafter particularly mentioned.

Appellant first complains of tbe court’s charge wherein tbe court instructed tbe jury that if appellee was entitled to recover at all the measure of bis damages was such an amount as they should determine from tbe testimony to be the value of tbe trunk and its contents the day of its conversion or loss by appellant. Appellant contends tbe charge as given was erroneous for tbe reason that tbe true measure of damages in such cases is tbe market value of tbe trunk and its contents on tbe date of its conversion or loss. Tbe measure of damages for injury or damage to household furniture, wearing apparel, etc., has been repeatedly stated by tbe appellate courts of this state to be the difference in tbe actual value of tbe same just prior to tbe damage or injury and tbe actual value thereof just subsequent thereto; and that tbe proper method of arriving at their value at the time of tbe injury or damage is to take into consideration tbe cost of tbe articles, tbe extent of their use, whether worn or out of date, and their condition at tbe time, etc. Wells Fargo Express Co. v. Williams, 71 S. W. 314; Railway Company v. Seale, 28 Tex. Civ. App. 364, 67 S. W. 437; Benedict v. Railway Company, 91 S. W. 811; Railway Company v. Smythe, 55 Tex. Civ. App. 557, 119 S. W. 892; Railway Company v. Nicholson, 61 Tex. 550; Railway Company v. Colquitt (Sup.) 9 S. W. 603; Barker v. Lewis, Storage & Trans. Co., 78 Conn. 198, 61 Atl. 363, 3 Ann. Cas. 889, and note. And we think it clear that tbe measure of damages recoverable for similar articles in case of conversion, loss, or appropriation would be tbe actual value of tbe same at the time of such conversion, loss, or appropriation; such value to be arrived at in tbe manner we have just stated. While tbe charge of tbe court does not tell tbe jury that the actual value of tbe articles may be recovered, but in lieu thereof confines tbe jury to tbe value of tbe same, a term favorable perhaps to appellee, and while it omits to state tbe manner by which such value may be arrived at, appellant nevertheless makes no complaint on that score, nor did it request any amplification thereof by special charge, and, tbe charge being correct as far as it went, tbe assignment presents no error.

Neither would it have been correct, as urged by appellant, to have permitted its witness to testify that tbe articles bad a market value as secondhand articles, and to prove such secondhand value, since to do so would have served the purpose of establishing a measure of recovery at variance with the settled rule in such cases. As said in Wells Eargo Express Co. v. Williams, supra: “Such a value would depend largely on considerations which would have nothing to dcS with tbe intrinsic value of tbe articles, or their actual worth to tbe owner.”

Tbe third assignment of error complains of tbe action of tbe court in sustaining tbe special demurrer of tbe appellee to that portion of tbe answer setting out tbe baggage rulés and regulations promulgated by tbe Interstate Commerce Commission; and tbe fourth assignment complains of tbe refusal of tbe court to permit it to prove under said allegation tbe approval and promulgation by tbe Interstate Commerce Cbmmission of the said rules and to prove by tbe witness Stridey that tbe same were kept on file in tbe ticket office of the initial carrier in Oklahoma City and notice thereof posted in said office in view of any one desiring to read tbe same; and by authority of said assignments asserts tbe proposition that by tbe Act of Congress of June 29,1906, e. 3591, § 7, 34 Stat. 593 (ü. S. Comp. St. Supp. 1911, p. 1307), commonly and conveniently known as tbe ‘‘Carmack Amendment,” under authority of which tbe Interstate Commerce Commission approved and promulgated tbe rules and regulations stricken from appellant’s pleading and proof thereof excluded on objections by appellee, appellee could recover only tbe amount therein agreed upon as tbe value of said baggage in tbe absence of any declaration fixing a greater value on tbe contents of tbe trunk. Under tbe law of this state it is well settled that common carriers cannot by inserting such conditions in its bills of lading, receipts, etc., limit tbe shipper in case of loss, damage, or destruction, to values therein “agreed” on or “declared,” but must pay tbe actual value or tbe market value as may be determined by tbe rule of tbe state as applied to tbe article lost, damaged, or destroyed. It is as well settled that Congress may regulate commerce between tbe states, and when laws are passed by Congress, and tbe construction placed thereon by tbe federal courts is in conflict with tbe state laws and tbe construction of its courts, tbe rule in tbe states must yield, since when Congress does assume tbe control of such matters its rights, policies, laws, and tbe construction placed thereon by tbe federal courts having jurisdiction is exclusive. Tbe citation of authority in either case is unnecessary. In tbe instant case it is undisputed that tbe shipment of tbe trunk was from a point in tbe state of Oklahoma to a point in tbe state of Texas, and hence an interstate transaction. By tbe answer of tbe appellant it was urged that acting under the Carmack Amendment tbe Interstate Commerce Commission, whose duty and function is, among other things, to approve or promulgate rules and regulations concerning the transportation of the baggage of passengers on railroad lipes, had approved and promulgated the rules and regulations set out in the pleading referred to by us in another place. It not being disputed that appellee was an interstate passenger, it seems clear to us that appellant was entitled to plead and prove that the Interstate Commerce Commission had in fact approved and promulgated the rules and regulations set out in the appellant’s answer for the reason that the Supreme Court of the United States has by recent decisions upheld and enforced limitations upon the amount recoverable in similar cases when the passenger fails to declare the value of the article transported.

The case of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. -, is, in our opinion, decisive of the issue we are discussing. In that case Cron-inger delivered to the express company in Cincinnati, Ohio, a package containing a diamond ring of the value of $125, consigned to a customer in Augusta, Ga. The ring was never delivered, and Croninger sued for the value of same and recovered verdict for $137.52, which represented the value of the ring and interest. The express company answered the demand for Judgment by the plea that the shipment was interstate commerce within the law enacted by Congress and that it had, in obedience to certain rules prescribed by the Interstate Commerce Commission, filed certain schedules of rates for the transportation of articles by express between Cincinnati and Augusta, which provided, among other matters, that, if the shipper failed to declare the actual value of the article shipped, the rate to be charged would be based upon a value of $50, and that the bill of lading issued to Croninger provided that the express company should be liable for no greater sum than $50, unless a greater value was declared by the shipper and the increased rate provided for the greater value paid by the shipper. The court, after elaborately discussing the exclusive right of the federal government to regulate all phases of interstate commerce and the liability of common carriers under the Carmack Amendment and the conflict between state and federal regulations with reference to such liability, takes up the question of the right of such common carriers to limit their liability by requiring the shipper to state the value of the article shipped. The court say: “We come now to the question of the validity of the provision in the receipt or bill of lading limiting liability to the agreed value of $50, as shown therein. This limiting clause is in these words: ‘In consideration of the rate charged for carrying said property, which is regulated by the value thereof, and is based upon a valuation of not exceeding $50.00 unless a greater value is declared, the shipper agrees that the value of said property is not more than $50.00, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than $50.00 if no value is stated herein.’ The answer states that the schedules which the express company had filed with the Interstate Commerce Commission showed rates based upon valuations; and that the lawful and established rate for such a shipment as that made by the plaintiff from Cincinnati to Augusta, having a value not in excess of $50, was 25 cents, while for the same package, if its value had been declared to be $125, the amount for which the plaintiff sues as the actual value, the lawful charge, according to the rate filed and published, would have been 55 cents. It is further averred that the package was sealed, and its contents and actual value unknown to the defendant’s agent. That no inquiry was made as to the actual value is not vital to the fairness of the agreement in this ease. The receipt which was accepted showed that the charge made was based upon a valuation of $50 unless a greater value should be stated therein. The knowledge of the shipper that the rate was based upon the value is to be presumed from the terms of the bill of lading and of the published schedules filed with the Commission. That presumption is strengthened by the fact that across the top of this bill of lading there was this statement in bold type: ‘This company’s charge is based upon the value of the property, which must be declared by the shipper.’ ” Proceeding, the court further say: “That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. * * * The rule of the common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this, and he was liable for any loss or damage which resulted from human agency, or any cause not the act of God, or the public enemy. But the rigor of this liability might be modified through any fair, reasonable, and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the proi>erty transported. It has therefore become an established rule of the common law, as declared by this court in many cases, that such a carrier may, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk. * * * Neither is it conformable to plain principles of justice that a shipper may understate the value of his property for the purpose of reducing the rate, and then recover a larger value in case of loss. Nor does a limitation based upon an agreed value for the purpose of adjusting the rate conflict with any sound principle of public policy.” See Railway Company v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. -, decided March 10, 1913, and Wells Fargo Ex. Co. v. Neiman-Marcus Co., 227 U. S. 469, 33 Sup. Ct. 267, 57 L. Ed. -, decided February 24, 1913; also, Pacific Ex. Co. v. Ross, 154 S. W. 340.

Much more is said in the opinion of the court in the Croninger Case which it is impracticable to discuss or include in this opinion, but it will he seen by an examination of the facts in that case that there is no escape from the conclusion that the instant case comes sharply within the rules there announced. The check or receipt issued by appellant’s connecting line recited that unless a greater sum was declared by appellee and the charge for such increased valuation paid, the value of the baggage was agreed to be not in excess of $100, while the rules and regulations set out in appellant’s answer contained the. same provisions amplified. The difference in the facts disclosed by the pleading in the instant case and the facts in the Croninger Case is that in the latter case the receipt or .bill of lading contained the provision “that the company shall not be liable in any event for more than the value so stated, nor for more than $50.00, if no value is stated,” while in the instant case there is no express provision with reference to liability. But it occurs to us that, since the agreement as to value is conclusive upon the shipper as held by the Supreme Court of the United States, such agreement would necessarily preclude any claim for a greater liability than the agreed valuation and to hold otherwise it seems to us would be to run counter to the spirit of the rules and regulations pleaded and the decision in the Croninger Case. Accordingly, we think for the reasons stated that the court erred in sustaining the demurrer to that part of the answer which pleads the baggage rules and regulations and also erred in excluding the proof of their approval and promulgation by the Interstate Commerce Commission, as well as the testimony of the witness Stridey.

We are unable to agree with appellee’s counsel in connection with what we have just said that the admission of appellant that the trunk was actually received and delivered to appellee makes the contract for safe transportation and delivery any the less an interstate transaction. The jury found by its verdict that appellant did not deliver the trunk to appellee, and, that being the case, the contract between appellee and appellant’s connecting line is what must determine the obligations and liability in case of loss, etc.

The sixth assignment complains of the refusal of the court below to permit appellant to introduce evidence that appellee was a gambler and had in his trunk, in addition to the articles sued for, a complete gambler’s outfit, and under said assignment the proposition is asserted that the testimony was admissible as bearing upon the credibility of the witness. The court did not err in excluding the evidence sought to be introduced. It is said in Tipton v. Thompson, 21 Tex. Civ. App. 143, 50 S. W. 641, which was a suit by Mrs. Tipton to recover from Thompson and his sureties on his liquor dealer’s bond the penalty prescribed by statute for the sale of liquor to her husband, that in such suit evidence relating to the reputation of Mrs. Tipton for chastity was not admissible for any purpose since her chastity was not an issue in the case. So in the instant case whether appellee was a gambler 'or had in his trunk a gambler’s outfit was not an issue, nor could such proof have collaterally or circumstantially established any issue in the case. His character or morals were an issue only so far as it related to the truth of his testimony concerning the existence, ownership, and value of the articles sued for; and in that respect it is of course well settled that it would have been proper to have inquired into appellee’s general reputation for truth and veracity since he had testified in his own behalf. Appellee was not assailed however in that respect. See Price v. Wakeham, 48 Tex. Civ. App. 339, 107 S. W. 133, decided by this court and much in point.

In accordance with the views herein expressed, this case is reversed and remanded for trial alone on the issue of whether or not the rules and regulations pleaded by appellant have in fact been approved and promulgated by the Interstate Commerce Commission, together with proof of any other fact bearing alone upon the regulations and rules of the Commission as applied to this proceeding. As to the other issues raisqd by appellant, and herein discussed by us, the judgment of the court below is in such particulars affirmed.

Reversed and remanded in part; affirmed in part.


source: Caselaw Access Project

author: TALIAFERRO; J.

license: Public Domain

text:
    RAY et al. v. OLCOTT et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 23, 1913.
    Rehearing Denied May 28, 1913.)
    Appeal and Error (§ 773) — Disposition op Case — Affirmance.
    Appellant filed no brief in the court below or on appeal, and appellee filed a 'brief asking that the judgment be affirmed. Held that, in the absence of fundamental error, the judgment would be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]

      Appeal from District Court, Bexar County; A. W. Seeligson, Judge.
    Action by Dudley Oleott II and others against J. M. Ray and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    W. F. Ezell, of San Antonio, for appellees.

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

   TALIAFERRO; J.

This is a suit brought by Dudley Olcott II and James N. Wallace, defendants in. error herein, against J. M. Ray and C. U. Connellee, plaintiffs in error, in the district court of Bexar county, Tex., Fifty-Seventh judicial district, December 14, 1911, to establish their ownership of, and to recover the amount due on, a certain judgment rendered in the district court of Bexar county, Tex., Fifty-Seventh judicial district, on January 28, 190S, in favor of Frederick P. Oleott against the plaintiffs in error herein for the sum of $869.74, with interest from said date at the rate of 6 per cent, per an-num, and the costs of that suit, and for a foreclosure of the lien established in said judgment on 160 acres of land, situated in Eastland county, Tex.

Defendant answered, and upon trial judgment was rendered for plaintiffs, from which plaintiffs in error perfected this writ of error. The plaintiffs in error have filed no brief in the court below or in this court, and the defendants in error, having filed their brief, ask that the judgment be affirmed.

We have examined the record for fundamental errors, and, none being apparent, the judgment of the lower court is affirmed.


author: KEY, C. J.

text:
    AMARILLO COMMERCIAL CO. v. McGREGOR MILLING & GRAIN CO.
    (Court of Civil Appeals of Texas. Austin.
    April 30, 1913.)
    1. Venue (§ 32) — Place of Suit — Fraud.
    Where plaintiff’s petition charged defendant with a fraud as the basis of plaintiff’s right to recover-, which fraud was alleged to have been committed in L. county, and defendant filed a cross-action against its codefendant to recover whatever sum defendant might be held liable for, the filing of such cross-action constituted a waiver of defendant’s plea of privilege to be sued in the county of its domicile.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dee. Dig. § 32.]
    2. Triad (§ 252) — Damages—Instructions.
    Where, in an action for the loss of hay, plaintiff testified that he “disposed of” the hay at M., but there was nothing to show that he sold the hay or received anything of value therefor, an instruction that the measure of damages was the difference between the amount paid by plaintiff and the reasonable market value of the hay received and disposed of by it, was unauthorized.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    3. Triad (§ 191) — Instructions—Assuming Facts.
    In an action for damages to hay, an instruction that if the jury believed the damage to the hay, if any was found, was occasioned by reason of the hay being baled and shipped when, green, then neither of the defendant’s carriers would be liable was not objectionable as assuming that the hay was green when it was baled and shipped.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    4. Trial (§ 252) — Instructions — Applicability to Evidence.
    Where, in an action for damage to hay, there was no evidence that the hay shipped had been removed from the cars and other hay substituted therefor, the court properly refused to charge that, if the jury believed that the hay loaded at A. was not the hay delivered to plaintiff, they should find for defendant shipper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    Appeal from McLennan County Court; Sam E. Stratton, Special Judge.
    Action by the McGregor Milling & Grain Company against the Amarillo Commercial Company, Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Geo. W. Cole and Scott & Ross, of Waco, for appellant. James P. Alexander, of Waco, for appellee.

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

   KEY, C. J.

This case comes from the county court of McLennan county, where ap-pellee brought suit against appellant and two railroad companies, seeking to recover damages on account of a carload of hay ordered by appellee from appellant and transported by the .other two defendants. The jury returned a verdict in favor of appellee against appellant, and in fa.vor of the ■ other two defendants, holding-that they were not liable. Judgment was rendered accordingly, which judgment appellant seeks to have reversed.

The first assignment of error complains of the action of the trial court in overruling appellant’s plea of privilege to be sued in the county of its domicile. We think the plaintiff’s petition charged appellant with the commission of a fraud, which was made the basis of appellee’s right to recover, and which was committed in McLennan county, and for which reason appellee had the right to sue appellant in that county. Furthermore, appellant presented a cross-action against its codefendants by which it sought to recover from them whatever sum it might be held liable for; and the filing of such cross-action constituted a waiver of the plea of privilege. Barbian v. Gresham, 156 S. W. 365, recently decided by this court, and cases therein cited.

The second assignment undertakes to complain of a certain portion of the court’s charge. The charge copied in the statement under that assignment does not correspond with the assignment, but relates to a different subject. The proposition submitted under the assignment is that the measure of damages is the difference between the amount paid by appellee and the reasonable market value of the hay received and disposed of by it. The statement submitted in appellant’s brief does not show that any such difference existed, the maker of the brief having contented himself with the statement that plaintiff testified that he disposed of the hay at McGregor, Tex., and a reference to the statement of facts where he so testified. That statement does not show that the hay had any value when it arrived at McGregor, and does not show that appellee sold the hay and received money, or anything else of value, for it. His and other testimony submitted by him tended to show that it was absolutely worthless, and when he said he disposed of it, he may have meant that he destroyed it or threw it away. At any rate, appellant has not referred to any testimony tending to show that there was any difference between the amount paid out by appellee and the value of the hay delivered to him.

The third assignment com plains of the following paragraph of the court’s charge: “But you are further instructed that if you believe from a preponderance, of the evidence that the damage to said hay, if any you find, was occasioned by reason of said hay being baled and shipped when green, or in a .sappy condition, or other inherent defects, then and in that event the defendants, Missouri, Kansas & Texas Railway Company and the Ft. Worth & Denver City Railway, or either of them, would not be liable for any such damage to said hay from said cause.” The objection is that the charge quoted assumes that the hay was green or in a sappy condition, or contained other inherent defects at the time it was baled and shipped, and was therefore upon the weight of evidence. The objection is without merit, as the charge does not assume the existence of either of the facts referred to. In fact an examination of the court’s charge in its entirety discloses the fact that the learned judge submitted the case to the jury with reasonable accuracy and entire' fairness.

The only other assignment submitted in appellant’s brief complains because the court refused a special charge instructing the jury that if they believed from the evidence that the hay loaded at Amarillo was not the hay delivered to appellee, to find for appellant. There was no evidence that would warrant a finding that the hay shipped by appellant had been removed from the ear and other hay substituted for it; and in order to find for appellee against appellant, the court’s charge required the jury to find that the hay shipped by appellant was not of the kind and class ordered by appellee. Therefore we hold that no error was committed in refusing the requested charge.

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

Affirmed.


author: HODGES, J.

text:
    CLAY v. MARMAR.
    (Court of Civil Appeals of Texas. Texarkana.
    May 1, 1913.
    On Rehearing, May 22, 1913.)
    1. Trover and Conversion (§ 22) — Action— Defenses.
    In an action to recover possession of a diamond stud or its value, where it appeared that plaintiff, on default of defendant’s deceased husband, for whom he was surety, was compelled to pay certain notes, and that the husband had pledged the stud to plaintiff, and afterwards procured it from him to wear on a certain occasion, and died without having returned the same, as he had promised to do, a plea that plaintiff had in his possession other personal property, to which defendant was entitled, and asking for judgment therefor, stated no cause of action against the plaintiff.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. § 22.]
    2. Appeal and Error (§ 80) — Action for Conversion — Disposition oe All Issues.
    In an action to recover possession of a diamond stud or its value, alleging a lien thereon and its conversion by the defendant, with a plea in reconvention that plaintiff had in his possession personal property of greater value, to which defendant was entitled, and a claim for damage for the same or its valué, a judgment entered only on the plaintiff’s claim for relief disposed of all the issues, even assuming the plea in intervention to have been sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ é29, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    3. Trover and Conversion (§ 40) — Action —Sufficiency of Evidence.
    Evidence in an action to recover possession of a diamond stud or its value, alleging a lien thereon and its conversion by defendant, held sufficient to sustain a finding that defendant had converted it.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 232-244; Dec. Dig. § 40.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by K. Mairmar against Mrs. T. J. Clay. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Brice & Beaird, of Tyler, for appellant. Lasseter, Mcllwaine & Gentry, of Tyler, for appellee.

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

   HODGES, J.

The appellee instituted this suit against the appellant to recover a diamond stud or its value. It is alleged that ap-pellee had a lien on the diamond, and that it had been converted by the appellant. Appellant answered-by a general denial, and also pleaded in reconvention that appellee had •in his. possession personal property, to which she was entitled, aggregating $850, and asked a judgment for the same or its value.

The jury returned a general verdict for the plaintiff in the suit, but the court entered a judgment only on the plaintiff’s claim for relief, as set forth in his original petition. No disposition was made of the plea in re-convention filed by the appellant. In that state of the record, this court is without jurisdiction; no final judgment baying been rendered from which an appeal can be prose, cuted. In order to make the judgment final, the plea in reconvention should have been disposed of. T. & P. Ry. Co. v. Ft. Worth Street Ry. Co., 75 Tex. 83, 12 S. W. 977; Carothers v. Holloman, 33 Tex. Civ. App. 131, 75 S. W. 1084.

The appeal is dismissed.

On Rehearing.

The appellee instituted this suit against the appellant in the county court of Smith county to recover the possession of a diamond stud or its value. It is alleged in the original petition that in 1909 the appellee became a surety for one T. J. Clay, the deceased husband of the appellant, on three promissory notes, aggregating, with interest and attorney’s fees, the sum of $495.03; that on account of the default of Clay appel-lee was compelled to pay those notes after their maturity; that during his lifetime T. J. Olay, in order to secure the prompt payment of the notes referred to, and to protect the appellee 'as surety thereon, mortgaged and pledged to the appellee a certain diamond stud, of the reasonable value of $250; that afterwards T. J. Clay procured from appellee the possession of said diamond, with the understanding that it was to be returned within a few days; that Clay died without having returned the same; and that the diamond has since been converted by the appellant, his widow and only heir. The appellant answered by a general denial, and also pleaded in reconvention for the recovery of some other personal property held by appel-lee, or its value. Judgment was rendered for the plaintiff in the court below for the diamond sued for, and it was provided that, in the event this was not produced, execution should issue for its value.

At a former day of this term we dismissed this appeal, upon the ground that, the trial court having failed to dispose of the cross-action in the judgment rendered, there was no final judgment from which an appeal could be prosecuted, and that this court was without jurisdiction. Upon further consideration of the pleadings, we have concluded that this was error. A more care-’ ful inspection of the pleading upon which the cross-action is based has convinced us that it states no cause of action against the plaintiff, and that it might have been wholly ignored by the trial court. We are also inclined to think that, should this pleading be considered sufficient, the judgment rendered should be construed as having disposed of all the issues. Crain v. Nat. Life Ins. Co., 56 Tex. Civ. App. 406, 120 S. W. 1098, and cases cited.

The principal ground relied on for a reversal of this case is that in which the sufficiency of the evidence to support the verdict is questioned. The evidence conclusively established the fact that T. J. Clay was the deceased husband of the appellant; that in 1909, prior to his death, he pledged a diamond stud to the appellee to protect him as surety on the notes referred to in the petition, and delivered possession of the jewel at the time; that he thereafter borrowed it back for the purpose of wearing it upon a certain occasion, promising to return it; that he died soon thereafter, without doing so ; and that all his personal property passed to the possession of his wife, the appellant. While the evidence does not conclusively show that the appellant has converted to her own use this particular diamond, it is sufficient to support a finding by the jury that she had.

There is no merit in the remaining assignments. and the judgment of dismissal is set aside, and the judgment of the county court is affirmed.


text:
    TEXAS & P. RY. CO. v. PAYNE et al.
    (Court of Civil Appeals of Texas. Texarkana.
    April 18, 1913.
    Rehearing Denied May 1, 1913.)
    1. Carriers (§ 97) — Carriage of Freight— Failure to Place Car in Position for Unloading — Liability.
    Where a carrier’s agent consented when requested to place a car of perishable fruit in position for unloading and failed to do so and the fruit decayed, the carrier was liable for his negligent failure.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 409; Dec. Dig. § 97.]
    2. Trial (§ 260) — Instructions—Refusal to Give Instructions Covered by the Charge Given.
    It is not error to refuse a requested charge covered, as far as applicable, by the court’s general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from Lamar County Court, Rube S. Wells, Judge.
    Action by J. D. Payne and another against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Head, Smith, Hare & Head, of Sherman, and L. J. Polk, Jr., of Brownsville, for appellant. Sturgeon & Beauchamp, of Paris, for appellees.

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

   HODGES, J.

In November, 1911, appellees shipped a carload of bananas to Paris, Tex. It is claimed that, by reason of the negligent failure of the appellant’s employes to promptly place the car in a position where it could be unloaded, a loss was sustained by the decay of the fruit before it could be marketed. Appellees recovered a judgment in the trial court for $233.20 as damages.

Only three errors are assigned. Two of them are based upon the refusal to give special charges, and the other complains of the admission of evidence.

The first special charge required the jury, before returning a verdict for plaintiff, to find that the railway company “refused” to place the car in a position to he unloaded. The testimony shows that the agent of the appellant, when requested, consented to place the ear in position, but failed to do so. His negligent failure would as effectivély give rise to a cause of action as would his “refusal.”

The second special charge, in so far as applicable, was covered by the court’s general charge.

There was no error in admitting the testimony complained of. The witness was qualified to testify as to the market value of the bananas.

The judgment is affirmed.


text:
    HARVEY v. PROVIDENT INV. CO.
    (Court of Civil Appeals of Texas. Austin.
    March 26, 1913.
    Rehearing Denied May 7, 1913.)
    1. Taxation (§ 632) — Unknown Owners— CORPORATIONS.
    Where certain lots were rendered for taxes in the name of an investment company owning an addition, for the years 1898 to 1901, inclusive, and there were many deeds on record from the investment company conveying lots in such addition, signed by the president and secretary of the company, both of whom were well-known men and known to -the attorney for the state in the tax suit, and all the deeds conveying the tract, out of which the addition was made, were of record in the county, such lots could not be sold for the taxes of 1902-1904 as belonging to unknown owners.
    [Ed. Note. — Eor other cases, see Taxation, Cent. Dig. §§ 1289, 1290; Dec. Dig. § 632.]
    2. Taxation (§ 79) —Vendob and Purchaser.
    A vendee of land is for the purpose of taxation considered the owner, though the vendor may still have his lien for the price.
    [Ed. Note — Eor other cases, see Taxation, Cent. Dig. §§ 139, 166; Dec. Dig. § 79.]
    3. Abatement and Revival (§ 82) — Waiver —Plea of Capacity.
    In a suit by a corporation to recover property sold for taxes, a plea challenging the capacity of the corporation to sue, because its charter had been forfeited, must be filed before answer to the merits, and it is not sufficient that all the pleas of defendant were filed together, where the plea to the capacity followed the answer to the merits.
    [Ed. Note. — For other cases, see Abatement and Revival, Dec. Dig. § 82 ; Pleading, Cent. Dig. §§ 208, 212.]
    4. Corporations (§ 592) — Forfeiture of Charter — Record by Secretary of State.
    Under Sayles’ Ann. Civ. St. 1897, art. 5243i, providing that a corporation forfeits its charter and its right to sue by a failure to pay its franchise tax, when the Secretary of State marks, “forfeited,” giving the date of such forfeiture, on the margin of the ledger in his office relating to such corporation, an entry by the Secretary in his ledger: “Penalty Notice returned. Charter forfeited for 1895 tax. Charter filed March 17, 1890” — is insufficient to forfeit the corporation’s right to sue.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2373-2375, 2378, 2379, 2381, 2390, 2401; Dec. Dig. § 592.]
    Appeal from District Court, McLennan County; Marshall Surratt, Judge.
    Trespass to try title by J. H. Harvey against the Provident Investment Company, in which the company filed a plea in recon-vention. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    See, also, 150 S. W. 284.
    O. L. Stribling and Cross, Gross & Street,' all of Waco, for appellant. Atkinson & Atkinson, of Houston, and W. L. Eason, and W. B. Carrington, both of Waco, for appel-lee.

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

   KEY, C. J.

February 23, 1911, appellant filed an action of trespass to try title against appellee, seeking to recover certain lots in the city of Waco. Appellee filed an answer which contained a general demurrer, general denial, and plea in reconvention, in which it asked for judgment against appellant for the lots in controversy. Thereafter appellant, as plaintiff in the court below, dismissed his suit against appellee, and filed' an answer to appellee’s cross-action, which answer contained (1) a general demurrer; (2) a special exception; (3) a general denial; (4) an averment that appellee was not duly incorporated, as alleged in the plea in reconvention; and (5) an averment to the effect that appellee had forfeited its charter by failure to pay to the Secretary of State the annual franchise tax, due from said company for the years 1895 to 1908, inclusive, and that on account of the failure to pay such tax, the Secretary of State had caused appellee’s charter to be forfeited, as provided by law. There was a nonjury trial on appellee’s plea in reconvention, which resulted in a judgment against appellant, and awarding to ap-pellee the lots in controversy, and appellant seeks to have that judgment reversed.

The trial court filed the following findings of fact:

“Finding of Fact.
“The defendant, Provident Investment Company, was chartered by the state of Texas' on the 17th day of March, 1890, and very shortly thereafter purchased several tracts of land adjacent to the city of Waco, which it plotted into blocks, lots, streets, alleys, etc., as an addition to the city of Waco, known as Provident Heights, and began the sale of such lots and blocks. This corporation continued in active business until the year -, at which time it attempted to close up its business by dividing the unsold lots remaining on hand at that time among its stockholders. It paid no franchise tax after the year 1894. Quite a good many stockholders took the value of the stock in lots which were conveyed to them, leaving others unsatisfied and other lots undisposed of, including the lots in dispute in this suit. The lots in dispute were rendered for taxes in the name of the Provident Investment Company for the years 1898 to 1901, inclusive, and rendered as ‘unknown’ from 1902 to 1904, inclusive. These taxes being unpaid, the state of Texas instituted suits in the district court of McLennan county, in October, 1905, for the taxes due for said years, and for foreclosure of tax lien, alleging that the ‘defendants’ names are. to the attorney bringing this suit unknown, and after inquiry cannot be ascertained,'’ the suit being filed against the ‘unknown owners’ of the lands in question. Citation to such unknown owners as provided by the statute was regularly issued, and published as required by law in the Mart Herald, a newspaper published in McLennan county, in Mart, which is about 18 or 20 miles from Waco. Thereafter judgment was properly rendered for the state for said taxes, lien foreclosed, property sold thereunder, and plaintiff claims under such sale.
“The Provident Investment Company was a Waco institution, with its headquarters at that place, its president being Sam Sanger, one of the best-known citizens of the county, and its secretary being N. H. Atkinson, a well-known attorney of Waco up to some few years since, when he removed to Houston, his removal and whereabouts being well known in Waco, and also to the attorney representing the state in said tax suits. Many deeds on record from the Provident Investment Company before the tax suits were brought were signed by Sanger as president and Atkinson as secretary of the company, and all the deeds conveying the tract of land out of which the Provident Heights Addition was made were of record in. Mc-Lennan county, and said records fail to show that the title to the lots in question was ever conveyed by the Provident Investment Company to any one. • Hence I find that the state, through its attorney prosecuting said tax suits, could have ascertained with reasonable diligence that the Provident Investment Company was the owner of these lots at the time suit was brought, and that its president was a citizen of Waco, and its secretary a citizen of Houston.
“I further find that the publication of the citation of notice to the unknown owners in the tax suits was published in the Mart Herald, rather than in one of the papers in the city of Waco, solely because of the financial arrangements that could be made with the publisher of such newspaper being more favorable than with the newspapers in Waco, and that said publication was not intended as a fraud upon the rights of the defendant, and in fact worked no fraud upon it, as alleged in the defendant’s answer.”

Opinion.

The first assignment charges that error was committed in rendering judgment for appellee for the property in controversy for the reason that appellee failed to show a paramount title 'to the property. That assignment might be answered with the counter proposition that in trespass to try title such action may be maintained on a title that is not paramount as against a third person, unless the defendant holds under a title from such third person; but in this case appellant asserts title through a sale that was made upon a judgment obtained by the state for taxes due upon the property. The proceeding which resulted in the judgment referred to was instituted by the state, and against the unknown owners of the property. The trial court seems to have held, and we think correctly, that appellee was, at the time the suit referred to was instituted, the owner of the property within the purview of the statute which authorized the institution of suits against unknown owners. That court also held, and correctly, that appellee was not, within the purview of that statute, an unknown owner. Scales v. Wren, 108 Tex. 804, 127 S. W. 164. But it is contended by appellant that appellee was not, within the purview of that statute, the owner of the property, because of the fact that in its 'chain of title liens had been retained to secure the payment of certain purchase-money notes. Because it has been held in this state that when a grantor in a deed purporting to convey land retains a vendor’s lien, the legal and paramount title remains in the vendor, therefore appellant contends that within the purview of the tax laws authorizing a suit by the state against unknown owners, the vendor, and not the vendee, in such a deed is to be considered the owner. ' We do not regard that contention as sound. On the contrary, such a vendee has title to the property against every one except his vendor; as between him and the vendor it is his duty to pay all taxes which accrue against the property, and therefore, for the purpose of taxation, he should be considered the owner of the land.

The second and last assignment charges that error was committed in rendering judgment for appellee for the recovery of the property, because the undisputed evidence showed that appellee, a corporation, had failed to pay its franchise tax for the year 1908. There seems to be more than one reason why that assignment should not be sustained. In the first place, the rules of pleading require that a plea challenging the capacity of a plaintiff to sue should be presented in limine, and before an answer to the merits. In this case, while all of appellant’s pleas were filed at the same time, the one challenging the right of the plaintiff to sue, instead of preceding, follows after the answer to the merits. In the second place, appellant alleged in his answer to the plea in ieconvention that appellee’s charter had been forfeited as a result of its failure to pay franchise taxes; but it did not allege that its right to sue in the courts of the state had been forfeited, unless the former allegation included the latter. But, apart from these reasons, we are of the opinion that the testimony failed to show that appellee’s right to maintain its cross-action had been forfeited. In support of their contention appellant’s counsel cite article 5243i, Sayles’ Civil Statutes, the pertinent portion of which reads as follows: “Any corporation, either domestic or foreign, which shall fail to pay the tax provided for in this article at the time specified herein, shall, because of such failure, forfeit its right to do business in this state, which forfeiture shall be consummated, without judicial ascertainment, by the Secretary of State entering upon the margin of the ledger kept in his office relating to such corporations, the word ‘Fopfeited,’ giving the date of such forfeiture, and any corporation whose right to do business may be thus forfeited shall be denied the right to sue or defend in any of the courts of this state, and in any suit against such corporation on a cause of action arising before such forfeiture, no affirmative relief may be granted to such defendant corporation, unless its right to do business is revived as provided in article 5243j of this chapter.”

While the proof shows that appellee failed to pay its franchise tax from 1895 to 1908, inclusive, it further shows that the only notation on the ledger kept by the Secretary of State was as follows: “Penalty. Notice returned. Charter forfeited for 1895 tax. Charter filed March 17, 1890.” The Secretary of State testified, and the entry referred to shows, that the date when the entry was made was not given, and there was no proof as to when it was made. If the statute had merely declared that the failure to pay the tax should, without any judicial procedure, result in the forfeiture of the right to sue or defend in the courts, then appellant’s contention might , be sustained; but the statute goes further, and declares that the forfeiture shall be consummated by the Secretary of State entering upon the margin of the ledger kept in his office relating to such corporations, the word, “Forfeited,” giving the date of such forfeiture, and it then proceeds to declare that any corporation whose right to do business may be thus forfeited shall be denied the right to sue or defend in any of the courts of this state. We think it is the clear purport and meaning of this statute that a forfeiture of the right to do business does not result until the Secretary of State has done all that the statute thereon prescribes, including giving the date when he indorses the forfeiture ; and it is not until the right to do business has been forfeited in the manner therein prescribed that the right to sue and defend in the courts is denied.

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

Affirmed.


author: McMEANS, J.

text:
    LEAGUE v. SCOTT.
    (Court of Civil Appeals of Texas. Galveston.
    May 3, 1913.
    On Motion for Rehearing, May 17, 1913.
    Rehearing Denied May 22, 1913.)
    1. Parties (§ 51) — Necessary and Proper Parties.
    It is optional with either party to bring in proper but not necessary parties, and a failure by either to do so does not invalidate any judgment that may be rendered.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 77-82; Dec. Dig. § 51.]
    2. Appeal and Error (§ 753) — Questions Reviewable — Assignments of Error.
    Under court rules 28 and 101 (142 S. W. xii, xxiv), providing that no assignment of error will be allowed in the appellate court when none has been filed in the lower court, and providing for the filing of cross-assignments when brief is filed, the court' on appeal cannot consider cross-assignments of error where they were not filed in the trial court, and where a copy of appellee’s brief, in which they are presented, was not filed in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.]
    On Motion for Rehearing.
    3. Parties (§ 29) — Joinder—Necessary Parties — Garnishment — Beneficiaries in Deed of Trust.
    Where a garnishee’s' answer denying the possession of any effects of the judgment debtor is contradicted by a pleading alleging that the judgment debtor and his wife executed a deed of trust to the garnishee whereby they conveyed all their property to him in trust for the wife and her children, the children are necessary parties.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 41, 47-49, 51; Dec. Dig. § 29.]
    Appeal from Galveston County Court; Geo. E. Mann, Judge.
    Action by J. C. League, a judgment creditor of W. A. Hudson, against Thomas B. Scott, garnishee.' From a judgment of dismissal, plaintiff appeals.
    Affirmed.
    P. A. Drouilhet, of Galveston, for appellant. J. E. Quaid and Stewarts, all of Galveston, for appellee.

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

   McMEANS, J.

J. C. League, alleging that he was the owner of an unsatisfied judgment against W. A. Hudson, and that he had just reason to believe and did believe that Thomas B. Scott was indebted to the said Hudson, or had effects belonging to the said Hudson, or to the community estate of said Hudson and his wife, Mrs. Mollie S. Hudson, in his possession, sued out a writ of garnishment against the said Scott, and the writ was duly served. Within a proper time the garnishee answered, denying that he was indebted to said Hudson or that he had in his possession any effects belonging either to the said Hudson or the community estate of said Hudson and Mrs. Mollie S. Hudson, and that he knew of no one that was indebted to said W. A. Hudson, or had in his possession effects belonging to said W. A. Hudson or said community. This answer was controverted by League, who alleged that on January 11, 1905, subsequently to the accrual of the indebtedness of W. A. Hudson to him, which was merged in the judgment he then held against said. Hudson, the said W. A. Hudson and his wife, Mrs. Mollie S. Hudson, executed a certain alleged deed of trust to the garnishee, Scott, wherein and whereby they transferred, assigned, and delivered to said garnishee all property, real, personal, or mixed, then belonging to the said Mrs. Mollie S. Hudson, together with all rents, income, etc., accrued or to thereafter accrue, and also all property, real, personal, or mixed together with the rents or income thereof which the said Mrs. Mollie S. Hudson might thereafter acquire, in trust for the use and benefit of the said Mrs. Mollie S. Hudson and her children; and further alleged, in effect, that the rents, income, etc., derived from the separate property of the said Mrs. Mollie S. Hudson became community property and was subject to the payment of the debts of said W. A. Hudson, and that the execution of said deed of trust was for the purpose of placing such community property out of the reach of his creditors, and that the same was void as to plaintiff. In answer to the contest the garnishee filed a plea in abatement, setting up by an affirmative allegation that there were children of the said Mrs. Mollie S. Hudson, and claiming they were necessary parties to the suit. This plea in abatement, after proof was made of the existence of such children; was sustained by the court, and his suit was dismissed, and from the judgment of dismissal he has prosecuted this appeal.

By his first assignment of error appellant complains of the action of the court in sustaining the plea in abatement and dismissing his suit, and we think this assignment must be sustained. The children of Mrs. Mollie S. Hudson were not necessary parties to a determination of the issues raised by appellant in his contest of the garnishee’s answer. It is true • that the children would have been proper parties had either the plaintiff or the garnishee made them such. Not being necessary parties, it was optional with either the plaintiff or garnishee to bring them in, and a failure 'by either to so bring them in would not militate against the validity of any judgment that might have been rendered in plaintiff’s favor upon a trial on the merits. If the garnishee desired to be protected by the judgment against any claim or demand that the beneficiaries in the deed of trust might thereafter assert against him, and if he wished them to be bound by any judgment that might bind him, it was clearly his duty, and not the plaintiff’s, to make them parties. We think these views are sustained by the following authorities: Arthur v. Batte, 42 Tex. 159; Alamo Ice Co. v. Yancy, 66 Tex. 188, 18 S. W. 499; Railway v. Whipsker, 77 Tex. 14, 13 S. W. 639, 8 L. R. A. 321, 19 Am. St. Rep. 734; Iglehart v. Moore, 21 Tex. 501; 20 Cyc. 1131.

We think that,' under the facts of this case, it was not error to allow the garnishee a reasonable attorney’s fee for filing his answer; and appellant’s second assignment of error must be overruled.

Appellee has presented in his brief several cross-assignments of error, upon which he insists that the judgment of dismissal should be sustained. It does not appear that such cross-assignments were filed in the court below, nor does it appear that a copy of his brief in which they are presented was filed in the county court; and in such circumstances the cross-assignments cannot be considered. Rules 28, 101 (142 S. W. xii, xxiv).

For the error in sustaining the plea in abatement the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

Upon further consideration we have concluded that we erred in holding that the children of Mrs. Hudson were not necessary parties in determining the issues raised by appellant’s contest of the garnishee’s answer. In our main opinion we followed the line of authorities which in effect hold that, where the garnishee would protect himself by the judgment rendered against him 'in the garnishment proceedings and avoid liability to others claiming the debt or effects held by him, it is incumbent upon him to make such others parties to the suit in order that their rights might be litigated in that proceeding. We now think that that principle does not apply, to a case like this, but that this case must be determined upon the line of cases which hold that, as a general rule, in suits by or against a trustee for the recovery or defense of property, the beneficiaries are necessary parties. There is nothing in the facts of this case to make it an exception to the general rule. We think therefore that when J. O. League attacked the deed of trust under which Thomas B. Scott held the separate property of Mrs. Hudson, in trust for the use and benefit of Mrs. Hudson and her children, the beneficiaries were necessary parties, and that the court very properly sustained the plea in abatement. Monday v. Vance, 11 Tex Civ. App. 374, 32 S. W. 559; Boles v. Linthicum, 48 Tex. 221; Ebell v. Bursinger, 70 Tex. 120, 8 S. W. 77; Preston v. Carter, 80 Tex. 388, 16 S. W. 17. The judgment of the court below is affirmed.

Affirmed.


text:
    TEXAS & N. O. R. CO. v. WIGGINS.
    (Court of Civil Appeals of Texas. Galveston.
    May 6, 1913.
    Rehearing Denied May 22, 1913.)
    1. Carriers (§ 277) — Injuries to Passengers — Damages Recoverable — Remote Damages.
    The damages sustained by a passenger by reason of the failure of the carrier’s agent to sell a ticket to the passenger’s destination, resulting from the fact that the passenger without funds alighted from the train at the point specified in the ticket, and walked back part of the way through swamps and swarms of mosquitoes in the .heat of the summer, without sufficient food and water, so that he suffered mentally and physically and became sick, are not recoverable because too remote.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.]
    2. CabbieRs (§ 280) — Carriage of Passengers — Sale oe Tickets — Care Required.
    The high degree of care which a carrier owes to its passengers does not apply in the making of a contract of carriage, and in the making of a contract by a sale of a ticket the carrier is held to the exercise of ordinary care only.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.)
    Error to District Court, Jefferson County; John M. Conley, Judge.
    Action by J. H. Wiggins against the Texas & New Orleans Railroad Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Hightower, Orgain & Butler, of Beaumont, for plaintiff in error. V. A. Collins, and O’Fiel & O’Fiel, all of Beaumont, for defendant in error.

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

   McMEANS, J.

J. H. Wiggins brought this suit against the Texas & New Orleans Railroad Company to recover damages sustained by him by reason of the negligence of defendant’s ticket agent in Beaumont in selling to plaintiff a ticket to Washington, La., when he called for and thought he was purchasing a ticket to Washburn in said state. Plaintiff alleged that he could neither read nor write, and that this was made known to the agent at the time he purchased the ticket; that he showed the agent an envelope upon which the name of Washburn was written, and told the agent that that was the place he wanted to go, and that thereupon the agent handed him a ticket, for which plaintiff paid $4.10, but instead of its being a ticket to Wash-bum it was for Washington; that not knowing the ticket was not for Washburn, he boarded defendant’s train, and in due course, after changing cars at two places, he disembarked at Washington, and not until after he left the train did he ascertain that he was at Washington and not at Washburn; that he stayed at Washington that night, and on the next day started back to Beaumont; that after he had paid his hotel bill at Washington and bought a ticket to take him as far back on his return as Lafayette, his means were exhausted, and when he reached Lafayette, he started to walk to Lake Charles, about 50 miles distant. He further alleged that during the trip from Lafayette to Lake Charles afoot, and walking over defendant’s right of way, the soles of his shoes became worn off, and that in walking over the loose stone gravel ballast, which was the only way he could travel, his feet became sore and bruised; that he had to drink water from the irrigation ditches along the right of way, and that the same was the only water he could procure to assuage his thirst, occasioned by his great exertions and the great heat of summer; that by reason of his exposure to the sun, his extreme exertions, and the drinking of said water, during all of which time he could not sleep on account of many swarms of mosquitoes,-he contracted fever, and was confined to his bed and room after said trip with fever, as the result of the wrongful acts of defendant, and that by reason of the great mental and physical pain and anguish that he was caused and did undergo he was greatly damaged. Defendant specially excepted to the allegations of damages alleged by plaintiff, to have been sustained by him growing out of his traveling afoot from Lafayette to Lake Charles, and answered by general denial and a plea of contributory negligence. A trial before a jury resulted in a verdict and judgment for plaintiff for $500. Defendant has appealed.

By its first assignment of error appellant complains of the refusal of the court to sustain its special exception to that part of plaintiff’s petition which claims that he suffered damages occasioned by his walking from Lafayette to Lake Charles. Its contention in this connection is that at the time of the purchase of the ticket defendant could not reasonably have anticipated that a failure on the part of its agent to sell a ticket to Washburn instead of to Washington would result in plaintiff being in Washington without funds, and that he would undertake to walk from Lafayette to Lake Charles through swamps, and swarms of mosquitoes, in the heat of summer, without sufficient food and water, with the result that he would suffer mentally and physically, and become sick with fever, and that therefore the damages claimed are too remote. We think the damages claimed are too remote, and that the exception should have been sustained. It is unnecessary to set out our reasons for this ruling at length, but think it sufficient to say that our decision of this question is based upon the reasons given by our Supreme Court in Railway v. Welch, 100 Tex. 118, 94 S. W. 334, and the authorities there cited, and content ourselves by a reference to that case. It follows, we think, that the cour.t should not have submitted in its charge to the jury the question of damages sustained by plaintiff in walking from Lafayette to Lake .Charles, and that instead thereof the court should have given appellant’s special charge No. 4, by which it was sought to have the jury instructed that they could not allow the plaintiff any sum for damages sustained by him by reason of his journey afoot from Lafayette to Lake Charles; and appellant’s second and third assignments of error raising the points are sustained.

The appellant requested the court to charge the jury as follows: “You are instructed that in this case, in no event, under the evidence, would the defendant’s agent be required to exercise anything more than ordinary care in the sale of the ticket to plaintiff,” etc. In the main charge the court instructed the jury that: “Negligence, as applied to railway companies engaged in receiving and transporting'passengers, and as that term is used in this charge, is a failure to exercise and use that high degree of care which every cautious, prudent, and competent person usually exercise under the same or similar circumstances.” The court further charged that whenever the term “negligence” was used in the charge, the jury would understand and apply the term in the sense in which it is defined. In applying the law to the facts the court instructed the jury that before plaintiff was entitled to recover, they must find from the evidence that the ticket agent was guilty of negligence in selling plaintiff the ticket to Washington. The result of all this is that the court held the defendant to the same degree of care in selling the ticket as the law exacts of a carrier towards its passengers. The refusal to give the special charge referred to, and' the giving of the charge which imposed upon defendant, in selling the ticket, the high degree of care with which the carrier is charged in respect of its passengers are assailed by appellant in its eighth and ninth assignments of error, and we think the assignments must be sustained. In Thompson, Carriers of Passengers, it is said that: “The rule imposing upon carriers of passengers the highest degree of care applies only to the means and measures for safety which the passenger o;f necessity must trust wholly to the carrier. It is in general applicable only to the period during which the carrier is in a certain sense the bailee of the person of the passenger.” This rule is approved by our Supreme Court in Texas & Pacific Railway Company v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308. Applying the rule to the facts of this case, it must be held that although plaintiff, by presenting himself upon the premises of defendant within a proper time before the departure of the train, with the intention of purchasing a ticket and to take passage upon the train, might thereby become a passenger, the high degree of care owing by the carrier as to the means and measures for his safety did not apply in the matter of the making of the contract of carriage, but that in the making of said contract by the sale of the ticket the defendant was held to the exercise of ordinary care only.

It is thought that appellant’s assignments of error, other than those above discussed, do not point out reversible error, and the same are overruled.

Eor the errors indicated the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: WILLSON, C. J.

text:
    WALKER et al. v. LAND et al.
    (Court of Civil Appeals of Texas. Texarkana.
    April 17, 1913.)
    Appeal and Eekob (§ 773) — Failure to Pile Brief — Affirmance.
    Where appellants fail to file briefs, and ap-pellees filed briefs and asked for an affirmance, it would be granted, nothing appearing in the record why a contrary course should be pursued.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by B. L. Walker and another against Joe Land and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Lacy & Bramlette, of Longview, for appellants. McCord & Campbell, of Longview, for appellees.

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

   WILLSON, C. J.

By virtue of an execution issued on a judgment against appellant E. L. Walker in favor of the Jacksonville State Bank, one of the appellees, Joe Land, the other appellee, as sheriff, levied on a tract of land in Smith county as the property of said E. L. Walker. Mrs. E. D. Walker, the other appellant, wife of said E. L. Walker, claimed that the land was a part of her separate estate, and, joined by her husband, brought suit to enjoin a sale thereof under the execution. The court found that the land belonged to the community estate between E. L. Walker and his wife, and was subject to sale for the purpose of satisfying the judgment. After perfecting an appeal from a judgment rendered in accordance with the finding, appellants are in the attitude of having abandoned it by their failure to file briefs in this court. Appellees-have filed briefs and ask for an affirmance of the judgment. No reason appearing from anything we find in the record why a contrary course should he pursued, the request is granted, and the judgment is affirmed.


author: JENKINS, J.

text:
    McCONNELL & MERCHANT v. BRICK-PHILLIPS CO.
    (Court of Civil Appeals of Texas. Austin.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    Landlord and Tenant (§§ 182, 246) — Acceptance oe Building — Landlord’s Lien.
    Defendants contracted to lease to W. a theater, to be constructed, the building to be ready by June 1, 1911, or as soon thereafter as practicable. The lease was for five years; rent payable monthly. Defendants let the contract to erect the building to M., and, though the building was not completed by June 1, 1911, W. began the erection of stage fixtures and seats which he was to do at his own expense. He purchased the seats from plaintiff on credit and installed them in the building. In the latter part of August, the building was sufficiently advanced to enable W. to use the same as a theater, and he began giving shows therein early in September. Held, that such facts indicated at least a tacit agreement between M. and defendants that W. might occupy the theater without either waiving their rights under the contract, and when he began so to use the building he became liable for rent, and the fixtures in the building were subject to the lien of defendant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 732-735, 991-1002; Dec. Dig. §§ 182, 246.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Action by the Brick-Pbillips Company against McConnell & Merchant Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Hill, Lee & Hill and Blanks, Collins & Jackson, all of San Angelo, for appellants. S. C. Autry and Bell & Upton, all of San Angelo, for appellees.

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

   Findings of Fact.

JENKINS, J.

Appellants entered into a written contract of lease with one Weishert for a building to be erected by them; said lease being in part as follows: “That said McConnell & Merchant are to erect a building on said lots 50 feet wide and 125 feet long, according to the plans and specification submitted to and approved by the parties of the second part, said building to be completed and ready for occupancy by the first day of June, 1911, or as soon thereafter as practicable; and should said building be not then completed that said McConnell & Merchant are to rebate the rentals until said building is completed and x'eady for occupancy.” The lease was for a term of five years, payable monthly in the sum of $200. McConnell & Merchant let a contract to erect this building to one M. A. Moon, the terms of which contract do not appear in the statement of facts. The building was not completed by the 1st of June, but was sufficiently advanced for Weishert to begin the erection of the stage fixtures and the seating of the building, which work was to be performed by him under the contract at his own expense, with the privilege of removing such fixtures at the end of the lease. These fixtures were purchased by Weishert from ap-pellees, and Were placed in the building during the summer months. In the latter part of August or early in September, the building was still not completed, but was sufficiently advanced to enable Weishert to use the same as a theater; he began giving shows in said building at least as early as September. After having given one or more shows, Moon, the contractor, asked him by what authority he was giving shows in the building. He stated upon the authority of McConnell. At this time some controversy had arisen as to whether or fCot the walls of the building were sufficiently strong; Weishert having raised the question. The walls were old walls of the building that had been destroyed by fire. It does not appear whether or not the contractor, Moon, was responsible for the stability of said walls; but, in discussing the matter with Weishert, McConnell told him that Moon said the walls would stand 100 years. Moon states that he had heard that there was some question about his being responsible for rents; and it appears that this was his reason for asking Weishert by what authority he was using the building, the building at that time not having been turned over to and received by McConnell and Merchant. Moon informed Weishert that he could not show in the building unless McConnell & Merchant received the building in its then condition. Thereupon Weishert presented to Moon the following written statement: “This is to certify that Merchant & McConnell have nothing to do with the house until completed and turned over to us. Any arrangements that Weishert makes with Mr. Moon will be perfectly satisfactory to us. [Signed] S. W. Merchant, San Angelo, Texas, October 10, 1911.”

Moon testified that, notwithstanding this note, he made no further objection to Weis-hert’s proceeding with his shows. About the 28th of October, 1911, Weishert informed McConnell that he would not go ahead with his contract, and that he had nothing with which to pay rents, and that McConnell could take charge of the -fixtures which he had placed in the building. McConnell did not accept these fixtures in full payment of the amount due him, but did take possession of them, and subsequently, in February of the following year, sold the building, together with said fixtures; the building in the meantime not having been re-rented, and appellants being unable to rent the same. On October 24, 1911, Weishert executed to appellees a note for $301.30 for the fixtures which they had placed in the building, and on the following day had executed to ap-pellees a mortgage on said fixtures to secure said note, which was recorded on the same day.

McConnell testified ■ that Weishert agreed to begin paying rent some time in August; that he had agreed with Weishert that he might commence his lease as soon as the inside of the building was finished. McConnell further testified that he never took possession of the building, as against the contractor, until after Weishert left.

This suit was against McConnell & Merchant for so much of the value of said property alleged to have been converted by them as was equal to the amount due appellees on said note. It is alleged that said property was of the value of $500. The court instructed the jury to find for the plaintiffs, unless they found that under the lease contract rent began to accrue in favor of McConnell & Merchant before the execution and recording of said chattel mQrtgage. The jury returned a verdict for appellees, and judgment was entered accordingly.

Appellants requested the following special charge: “Gentlemen of the jury, it appears without dispute that Weishert entered into possession of the Princess Opera House (the name by which the building was known) some time during September, 1911, and you are therefore instructed that at that date defendants’ lien to secure rents attached to the property which the plaintiffs alleged to have been converted by the defendants, and that the lessor Weishert was responsible to the defendants for rents under his written contract from that date until the time defendants sold the Princess Theater.” Appellants also requested a peremptory charge in their favor.

Opinion.

1. Appellants insist that they were entitled to judgment, for the reason that, when Weishert entered the building and placed the fixtures therein, he was either a stranger, and therefore a trespasser, or he was the tenant of appellants; and that if a stranger became a part of the realty, and therefore their property; but if a tenant, and the fixtures under the contract remained personal property, they had a landlord’s lien thereon.

2. Regardless of when Weishert became the tenant of appellants, we do not think he can be treated as a trespasser in placing the fixtures in the building. They were so placed with the knowledge and consent of appellants, and in contemplation of the written contract of lease. The evidence shows that Weishert placed the fixtures in the building with the knowledge and without objection on the part of the contractor, he knowing that they were being so placed un-def a written contract of lease of the building, and he made no objection thereto; consequently, Weishert was not a trespasser as to him. Weishert under his agreement with McConnell became the tenant of appellants in August or September, 1911, when he began giving shows in said building, and the note written by Merchant could not change this fact.

3.Our deductions from the facts in this case are: That the building was sufficiently completed in August, or at least in September, for Weishert to begin to use the same for the purposes for which he had leased it, and that he was not concerned in some additional work to be done under said contract. The uncontradicted evidence shows that he occupied said building at least as early as September, and gave one or more shows in the same prior to the ■ time that Merchant wrote the note of October 10th. At this time it appears from the testimony of Moon that he was anxious to have McConnell & Merchant receive the building in fulfillment of the terms of his contract, and that they were unwilling to do so. Moon further testified that at this time he had heard something said about rents, and that he might be held for the same, and that he did not propose to be liable for rents upon the theory that Weishert was his tenant; and he further testified that Weishert was never his tenant.

We conclude from the whole testimony that there was at least a tacit agreement between the contractor and the owners of the building that Weishert might occupy and use the same as a theater, without either party waiving their rights under the contract with reference to the erection of said building. It appears that Weishert never at any time paid any rents, but the payment of rents is not necessary to establish the relation of landlord and tenant. Allen v. Koepsel, 77 Tex. 505, 14 S. W. 151. We think, under the facts of this case, when Weishert began to use the building for giving theatrical exhibitions, that he became liable under his contract with appellants for rents, and that, if the failure to complete the building was any detriment to him, he would have been entitled to a rebate to that extent. However, as above stated, it does not appear that the failure to complete the building was a detriment to Weishert as the proprietor of the theater.

We think the court erred in submitting to the jury the issue as to whether or not Weishert became liable for rents prior to October 25, 1911, and in making the rights of the parties depend upon said issue: First, because undér the undisputed testimony there was no issue as to Weishert’s having become responsible for rents prior to that time; and, second, for the reason, as above stated, that as between himself and appellants he was their tenant, whether liable for rents or not.

In view of the disposition which we make of this case, other assignments of error become immaterial.

For the reasons above stated, the judgment of the trial court is reversed and here rendered in favor of appellants.

Reversed and rendered.


text:
    LEE v. DURHAM.
    (Court of Civil Appeals of Texas. Austin.
    April 23, 1913.)
    1. Evidence (§ 445) — Parol Evidence — Written Instrument.
    In an action on a note against a surety, who was a principal debtor as to plaintiff, an allegation in the answer that plaintiff had agreed for a consideration to extend the time for the payment of the note and to accept payment by the person, for whose benefit the note was made, in work during the latter’s occupancy of lands owned by plaintiff, and at the time leased to such person, and that he had done work for plaintiff of value more than sufficient to pay the note, was not objectionable as an attempt to change, the terms of the note, which required payment in cash by making it payable in work, labor, and the products of the leased farm.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.}
    2. Frauds, Statute of (§ 139) — Contract for Services — Performance Within Year.
    In an action against a surety on a note, an allegation that plaintiff agreed for a consideration to extend the time of payment for one year, and that the principal debtor might pay the note by work for plaintiff, and that he had done work of greater value than the amount due on the note, was not objectionable on the ground that the oral contract that the note might be paid in work was within the statute of frauds as a contract for services hot to be performed within a year; the services having 'been alleged to have been actually performed and it not appearing that they could not haye been performed within a year.
    [Ed. Note. — For other cases, see Frauds, [Statute of, Cent Dig. §§ 334-341; Dec. Dig. § 139.]
    Appeal from Hamilton County Court; R. Q. Murphree, Judge.
    Action by J. J. Durham against R. E. Lee. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Langford & Chesley, of Hamilton, for appellant. Chris Emmett, of Houston, and J. L. Lewis, of Hamilton, for appellee.

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

   JENKINS, J.

This was a suit upon a note given for a debt owing by one W. L. Jones to appellee. Appellant, in so far as ap-pellee is concerned, was a principal upon said note. Appellant alleges that at the time of the maturity of said note said Jones was unable to pay the same, and that plaintiff, at the request of said Jones and one Jerni-gan, another surety upon said note, and of appellant, for a valuable consideration, agreed to extend the time of the payment of said note for one year; and further agreed that said Jones might pay the said note in work during his occupancy of certain farming lands owned by appellee, and at that time leased to said Jones. Appellant further alleges that, in accordance with said agreement, the said Jones did certain work for ap-pellee of value more than sufficient to pay said note, under an agreement with appellee that said work, in so far as the amount of the same was necessary, should be applied to the payment of the note upon which this suit was brought.

Appellee filed several special exceptions to said answer, among which was that the same was insufficient for the reason that it “attempts to change the terms of a written instrument, to wit, the note sued on, which note specifies the payment of dollars and cents, and makes the payment to be made in work, labor, and products of the farm of J. J. Durham.” This exception was sustained, and in this we hold that the trial court committed error. Proof of such facts would not have had the effect to change the terms of a written instrument, but would have proven a new contract, by the terms of which Jones was permitted to discharge said debt in labor. Appellee suggests that, even if it was error in the court to sustain this exception, it is harmless, for the reason that the court overruled appellee’s special exception No. 2. But special exception No. 2 was to the effect that the oral contract changing the terms of payment did not appear to be supported by a valuable consideration. The overruling of this exception did not have the effect to overrule the exception as to the change in the terms of the instrument, which exception, as above stated, was sustained by the court.

In addition to this, the following special exception was sustained by the court: “And further excepting to said answer, plaintiff says that defendant should not be permitted to maintain his action, and that his answer should be stricken out for the following reasons, to wit: Defendant’s answer shows upon its face .that said alleged contract and agreement was not to have been and could not have been performed within a year from the making thereof, and therefore said alleged contract would come within the statute of frauds No. 2,543, subdivision 5, and he should therefore not be permitted to maintain his action, and of this he prays judgment of the court.”

The effect of sustaining this exception was to strike out all of defendant’s answer. The prayer is “that his answer should be stricken out.” Appellant declined to amend or to proceed further with the trial. We do not think, under the rulings of the court as above set out, that he could have proceeded with the trial; that is to say, the effect of said ruling was to deny him the right to introduce evidence in support of his answer. It was error for the court to sustain the last-named exception, for the reason that it does not appear that said contract could not have been performed within a year; and, besides, it is immaterial as to whether it could Iiave been so performed or not, inasmuch as appellant alleged that it was actually performed, and that said note in this manner had been fully paid.

Eor the errors above pointed out, the judgment of the trial court is reversed, and this cause is remanded.

Reversed and remanded.