author: TALBOT, J.

text:
    GULF, C. & S. F. RY. CO. v. BRACKETT-FIELDER MILL & GRAIN CO. et al.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1914.)
    1. Commekce (§ 61) — Limitations of Liability-Application of State Statutes.
    The Texas statute prohibiting railway companies from limiting their common-law liability by provisions in the bill of lading does not prohibit carriers of interstate commerce from doing so. '
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 81-84, 89; Dec. Dig. § 61.]
    2. Caerieks (§ 180*) — Feeight—Limitations of Liability.
    Under Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1909, p. 1166), making the initial carrier in interstate transportation liable to the holder of the bill of lading for any loss or damage to the goods, a provision in the bill of lading of an interstate shipment, that the initial carrier or any connecting lines should not be held liable for the safe and proper carriage of the goods beyond its own line, was ineffectual to relieve any carrier of liability for negligence.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 815-828; Dec. Dig. § 180.)
    3. Carriers (§§ 185, 187) — Freight—Presumption of Negligence.
    It is presumed that negligent delay in shipment was caused by the negligence of the terminal carrier; but such presumption may be rebutted, and, -where there was substantial evidence that the delay did not occur on the iine of the final carrier, the question should' have been submitted to the jury, and hence in such a case an instruction that, if the shipment was negligently and unnecessarily delayed, the terminal carrier would be liable was 'erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-852; Dee. Dig. §§ 185, 187.]
    4. Carriers (§ 184) — General Denial — Evidence.
    In an action against a terminal carrier for damage from delay in transportation, evidence that such carrier transported the goods with reasonable diligence to destination was admissible under the general denial.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 832-834; Dec. Dig. § 184.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by the Brackett-Fielder Mill & Grain Company against the Gulf, Colorado & Santa Fé Railway Company, in which another intervened as a purchaser of the - claim sued on. From a judgment for plaintiff and in-tervener, defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, A. H. Culwell, and John G. Gregg, all of Galveston, for appellant. Chas. Crenshaw and J. T. Cunningham, both of Sherman, for appellees.

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

   TALBOT, J.

Appellees Brackett-Fielder Mill & Grain Company, a corporation, brought this suit in the justice court of precinct No. 1 of Grayson county, Tex., against the appellant to recover damages in the sum of $135.19, alleged to have been sustained by reason of delay in the transportation of a car load of oats from St Louis, Mo., to San Angelo, Tex. The plaintiff alleged, in substance, that said car of oats was delivered to the Wabash Railroad, and by through bill of lading shipped from St. Louis, Mo., on or about the 11th day of September, 1907, over the line of the Wabash Railroad and appellant’s road as one of the connecting carriers, and that it did not arrive in San Angelo, Tex., until the 21st day of November, 1907; that this was an unusual and unreasonable length of time for the transportation and delivery of the oats, and that by reason of the delay the purchaser of said oats refused to receive same, and that in consequence thereof the plaintiff was forced to store the same, and incurred various items of expense, including storage, commission, demurrage, and insurance, etc.; that 605 pounds of oats were converted by the defendant, and that by reason of said delay plaintiff suffered damage on account of the decline in the market value of the remaining 1,141½ bushels. A trial in the justice court resulted in a judgment for the plaintiff, and the defendant railway company appealed the case to the county court. In .the county court the Sherman Mill & Grain Company, a corporation, intervened, alleging that since the commencement of the suit it had purchased for a valuable consideration the entire interest of the Brackett-Fielder Mill & Grain Company, in the claim sued on, and prayed judgment. The defendant answered by general demurrer, general denial, and various special exceptions, and answered specially that the defendant received the car of oats involved in this suit from its connecting carrier, the Atchison, Topeka & Santa Fé Railway Company, at Gulf Junction, Okl., on November 8, 1907, and that after it received same it transported same, with reasonable diligence and dispatch, to its destination, and that, under and by virtue of the terms of the bill of lading under which this shipment was made, the liability of this defendant for damages for loss and delay were limited to such as might occur on its own line of railroad, and that therefore it was not liable to plaintiff in any amount. The cause came on for trial in the' county court, and was tried before a jury on the 31st day of March, 1913, resulting in a verdict and judgment in favor of the plaintiff, Brackett-Fielder Mill & Grain Company, for the use and benefit of the intervener in the sum of $180.03, from which the defendant appealed to this court.

Numerous assignments of error are presented in the brief; but we deem it unnecessary to state and discuss them separately. The court, among other things, charged the jury, in effect, that, when a car load of oats is delivered to one railway to be transported over connecting lines, each line would be responsible to the shipper for damages sustained by him in consequence of a delay in the transportation thereof, regardless of which line was at fault. This charge is assigned ' as error, and, as applicable to the facts of this casé, we think it was error, for which the judgment must be reversed, and the cause remanded. As is apparent, this was an interstate shipment, and the initial carrier is not sued. It is the delivery or terminal carrier against whom the action is brought, and a judgment is sought against it alone.

The bill of lading stipulated that the initial carrier, the Wabash Railroad Company, and connecting lines should not be liable for damages or delay of goods occasioned by the breaking down of bridges, etc., and that in no event should the said initial carrier or any connecting line be held liable for the safe and proper carriage of the goods beyond its own line.

Our statute prohibiting railway companies and other common carriers of goods, wares, and merchandise from limiting or restricting their liability as it exists at common law, by inserting exceptions in the bill of lading given upon the receipt of the goods for transportation, applies only to such carriers as are engaged in carrying goods, wares, and merchandise for hire within this state, and does not prohibit carriers of interstate commerce from limiting their common-law liability. Railway Co. v. Richmond & Tiffany, 94 Tex. 571,63 S. W. 619. Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat 593 (Fed. St. Ann. Supp. 1907, p. 180; U. S. Comp. St Supp. 1909, p. 1166), provides: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

Clearly under this statute the stipulation in the bill of lading issued for the shipment here in question above stated is without effect, if the delay charged in the shipment of appellee’s oats was due to the negligence of any carrier over whose line they were transported. But it is well settled by the decisions of this state that the presumption that the delay in the shipment was caused by the negligence of the appellant, the terminal carrier, may be met and rebutted by testimony showing that the delay did not occur on its line. There was substantial evidence introduced by the appellant in support of its defense that the delay alleged did not occur on its line, or through its negligence, and the issue thus raised should have been submitted to the jury by appropriate instructions. Railway Co. v. Richmond & Tiffany, 94 Tex. 571, 63 S. W. 619. By the court’s charge the jury was not allowed to pass upon this issue, but was told, in effect, that, if the transportation of appellee’s oats was negligently and unnecessarily delayed, appellant would be liable, no matter whether the delay occurred on its road or not. The answer of the appellant in the trial court, to the effect that, after it received the oats at Gulf Junction, Okl., “it transported the same, with reasonable diligence and dispatch, to destination,” was stricken out upon motion of appellee; but the defense was available, we think, under the general denial.

We are inclined to the opinion that the other assignments, except such as may accord with the views we have expressed, do not disclose reversible error. For the reason indicated, however, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STEIGER.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 26, 1913.
    Rehearing Denied Jan. 28, 1914.)
    Railroads (§ 414) — Injuries to Animals— Tback — Duty to Fence.
    Where a railroad company was under no obligation to plaintiff to fence its track, and it had not done so on one side next to an alfalfa patch, plaintiff could not assume that the railroad company had undertaken to keep stock running in the pasture from entering on its right of way, there being nothing to prevent them from doing so, and the railroad company was not guilty of actionable negligence in failing to fence, rendering it liable for injuries to a horse that ran from the alfalfa field onto the right of way, and thence onto a bridge, where it was injured.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1474, 1475; Dec. Dig. § 414.]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Action by E. D. D. Steiger against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Fiset, McClendon & Shelley, of Austin, for appellant. Will G. Barber and T. C. Johnson, Jr., both of San Marcos, for appellee.

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

   JENKINS, J.

The following sketch will aid in understanding the material facts of this ease:

From the above sketch it will he seen that appellant’s right of way is fenced on the northwest side, but is not fenced on the northeast side, except for about 75 yards from the river. There is an embankment or dump near the river, some six or seven feet high, extending back for a short distance, after which the track is on a level with the surface. Appellee had placed his horse in Eidson’s alfalfa pasture, and he went upon the track near the river, and, being frightened by the approaching train, ran upon the bridge, fell through, and received injuries, causing his death, but was not struck by | the engine or cars. Appellee recovered damages in the sum of $125, the value of his horse.

Appellee does not base his claim for damages- upon the statute (article 6603, Rev. Giv. St. 1911), but upon his common-law right of action for negligence. The case was submitted to the jury upon the following charge: “If you find from the evidence in this case that the horse in question was running upon the pasture or alfalfa field of R. L. Eidson; that from said field there was an open way onto the right of way of the defendant company; that the defendant company, as between said field and said right of way at the time in question, failed to have and maintain a good and sufficient fence to .prevent live stock from entering in on said right of way; that there was nothing to prevent its having and maintaining such fence; and if you further find that the horse in question entered upon the right of way from such alfalfa field or pasture, and went along the right of way toward the bridge of the defendant company over the San Marcos river; and if you further find that adjacent to said bridge and river there were fences upon each side of the track creating a pocket or trap; that the said fences were placed or maintained by the defendant, or with its consent and without objection upon its part; and if you further 'find that the horse in question so went into the said pocket or trap, if any, and that it was frightened by a train being operated by the defendant and caused to run upon the bridge in question, and thereby receive injuries which produced its death; and if you further find that in permitting the said pocket or trap, if any, to exist as it did without a fence to prevent stock from getting into same from the said alfalfa patch or field, the defendant company was guilty of negligence; and if you further find that such negligence, if any, was the direct and proximate cause of the receipt of the injuries by the animal, and that such injuries were the direct and proximate cause of its death, then plaintiff would be entitled to recover.”

Appellee insists that the judgment of the trial court should be affirmed upon the authority of Railway Co. v. Dixon, 49 Tex. Civ. App. 506,109 S. W. 978. The decision in that case rested upon the fact found by the court that the railway company owed the duty to Dixon of keeping the gate in proper condition and repair. Mr. Chief Justice Fisher, speaking for the court, said: “There is evidence to the effect that the gate was placed there by the railway company, and it assumed the duty of keeping it in proper condition and repair; and the gate, for the purposes of this suit, is treated by appellant as a part of its right of way fence. * ⅜ ⅞ The railway company has seen fit to fence its right of way, and, if by its negligence it has permitted the fence to become defective and stock to wander upon the track, it presents a case in which it is not the absence of a fence that mates it liable, but a case in which its negligence was the- proximate cause of the injury. * * * It may be conceded that the railway company was not required to inclose its track with a fence, -and when it is not done, it would only be liable in the event the locomotive or some part of the train came in contact with the animal; but when a fence is erected and the track inclosed, it must exercise ordinary care to keep the fence in a proper condition, and this new duty arises, not only to the public, but to adjacent owners, so that harmful results may not follow from the failure to perform this duty. When the track and right of way is protected by a fence erected by the railway company, and under its control, and it is supposed to be sufficient to prevent stock from entering upon the track, the owner of the adjacent inclosure which is so separated from the right of way by the fence should be permitted to act upon the assumption that he can, with safety to 'his stock, turn them into the inclosure, resting upon the belief that the railway, as to him, has performed its duty to keep the fence in proper condition. Of course, if there is no duty, there can be no liability.” ■ ■

In the instant case, it does not appear from the record that the hogpen fence was erected by the .railway company, and if it had been, the owner of the alfalfa patch, or any one using it for pasturage, could not assume that it was sufficient to keep stock off of the right of way for the reason that space was left between the hogpen and the right of way, into which it was apparent that stock could enter. The railway company did. not owe appellee the duty of fencing its track, and did not violate any duty in failing to keep the hogpen fence in repair, and the evidence does not indicate that it was out of repair. The ap-pellee could not assume, under the facts of this case, that the railway company had undertaken to keep stock running in the pasture from entering upon its right of way, for it was obvious that there was nothing to prevent them from doing so. Railway Co. v. Meyer, 161 S. W. 12, decided at the present term of this court.

For the reasons above stated, the judgment of the trial court is reversed, and here rendered for appellant.

Reversed and rendered.


author: CONNER, C. J.

text:
    ST. LOUIS & S. F. R. CO. v. RICH et al.
    (Court of Civil Appeals of Texas. Pt. Worth.
    Jan. 17, 1914.)
    1. Carriers (§ 229) — Live Stock — Delay in Transportation — Market Value — Plage oe Determination.
    Where cattle were shipped, consigned to a commission company at the National Stockyards, East St. Louis, which was stated as the destination in the contract issued by a connecting carrier, when tendered to defendant it required a new contract, which stated the destination as St. Louis, and which was presented to and signed by the shipper at a time and under circumstances which did not enable him to read it, and defendant demanded and received the' contract issued by the connecting carrier, the cattle, upon their arrival in St. Louis, without request or direction from the shipper, were taken to such stockyards, where delivery was made, and the freight charges paid, the contract and bills of defendant carried the numbers of the cars as given in the connecting carrier’s contract, the office of the commission company was in East St. Louis, there was no charge for transportation from St. Louis to the stock yards, and it appeared that there were no commission merchants in St. Louis, and no market for cattle at that place, the facts showed that defendant must have known and did know that the destination of the shipment was the stockyards; and hence the measure of damages for a delay in transportation was the difference in market value at the stockyards.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    2. Evidence (§ 533) — Opinion Evidence-Subjects oe Expert Testimony.
    A shipper of cattle of long standing, who was well qualified to give an opinion on that question, was properly permitted to testify what the shrinkage in the weight of cattle would be on an ordinary run as usually made, without any bad treatment.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. § 533.]
    3. Appeal and Error (§ 1051) — Harmless Error — Admission oe Evidence.
    In an action against a carrier for delay in transportation of a shipment of cattle, the admission of the shipper’s testimony that he was told by a salesman that the cattle market had been good on a certain day,-if erroneous, was harmless where other competent evidence showed the state of the market on such day.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    4. Carriers (§ 228) — Injuries to Live Stock — Subeiciency oe Evidence.
    . In an action against a carrier for injuries to live stock during transportation, where there was evidence tending to show negligent delay, improper handling, and injuries to the cattle at a point in transit, the jury were justified in drawing the inference that the death of one of the cattle, found dead at that point, was so caused.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960: Dee. Dig. §.228.]
    Appeal from District Court, Jack County; P. O. McICinzie, Judge.
    Action by J. R. Rich and others ^gainst the St. Louis & San Francisco Railroad Company. P«om a judgment for plaintiffs, defendant appeals.
    Affirmed.
    S. C. Rowe and Andrews, Ball. & Street-man, all of Pt. Worth, and Stark & Stark, of Jacksboro, for appellant. Sporer & McClure, of Jacksboro, for appellees.

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

   CONNER, C. J.

On this appeal appellant complains of a judgment against it for damages in appellee’s favor arising out of a shipment of cattle on 'January 29, 1909, from Jacksboro, Tex., to the National Stockyards at East St. Louis, Ill. The facts show that on the date named appellee shipped 105 Lead of beef cattle from Jacksboro, consigned to tbe Godair-Crowley Commission Company, to tbe National Stockyards, East St. Louis, Ill. Tbe shipment began over tbe Chicago, Rock Island & Gulf Railway, which issued tbe contract with destination as stated. When tbe cattle arrived at Chickasha, Okl., they were tendered for further transportation to the appellant in this case, and appellee was required to execute new contracts. The new contract of shipment with appellant company by its terms made the destination of the shipment “St. Louis, Mo.,” and upon the trial below appellant objected to evidence fixing the time of the arrival of the cattle in Bast St. Louis, and of 'the state of the market at that place, and other proceedings in the case, for reasons stated in the following proposition, which we quote: “The contract of shipment being in writing, and St. Louis, Mo., being designated therein as the point of destination, the undisputed evidence failing to show á knowledge upon the part of appellant company that the shipment was to be delivered at any other destination than that named in such contract, the plaintiff: not having shown that St. Louis was named as the destination through mutual mistake, the measure of plaintiff’s damages is the difference between the market value of his cattle at the time and in the condition in which they arrived at St. Louis, Mo., and what would have been their value at the time and in the condition in which they should have arrived at said point if transported with reasonable or ordinary speed and care; but plaintiff and his witnesses should not have been permitted to testify to the value of said cattle at East St. Louis, and such evidence is inadmissible, and the defendant’s special charges, the refusal of which is complained of in the fifth and sixth assignments, should have been given to the jury.”

We are of the opinion that there is no merit in the proposition. The plaintiff pleaded and proved that the cattle were shipped and billed through from Jacksboro to the Godair-Crowley Commission Company at the National Stockyards, East St. Louis, Ill.; that, when the cattle arrived at Chickasha, the agent of the appellant company demanded and received the contracts issued by the Chicago, Rock Island & Gulf Railway; that the new contract relied upon in this case was presented to and signed by the appellee, as he pleaded, at a time and under circumstances which did not enable him to read it; that, when the cattle arrived in St. Louis, Mo., without request or direction on appel-lee’s part, the appellant company in fact continued the transportation to the National Stockyards, East St. Louis, Ill., where final delivery was made, and where the freight charges were paid; that the contract and bills of the appellant company issued at Chickasha carried the numbers of the cars as given in the Rock Island contract; that the office of the Godair-Crowley Commission Company was in East St. Louis, Ill.; that, if the Commission Company had an office in St. Louis, appellee knew nothing about it; that there was no extra charge for transportation from St. Louis, Mo., to the National Stockyards; that appellee knew of no commission merchants in St. Louis, Mo., and had never heard of a market for cattle at that place.

Under the circumstances stated, it cannot be reasonably insisted that a distinction should be made between St. Louis, Mo., and the. National Stockyards at East St. Louis, Ill. We think it might well be held that we judicially know as a part of the common history of the country that a shipment of cattle for sale on the market at St. Louis, Mo., is intended for delivery at the National Stockyards, East St. Louis, Ill.; but, whether so or not, the evidence referred to clearly shows that, at the time of the execution of the contract in question. by the appellant company, it must have known and did know that the destination of the shipment was at the latter point. The court, therefore, properly received the evidence of the time of the cattle’s final delivery, and of their condition at the National Stockyards, and properly placed the measure of damages, among other things, upon the difference in market value on Monday, the day of the cattle’s arrival, and upon the day following, when for the first time appellee was presented an opportunity to sell on the market. All assignments of error, therefore, dependent upon the question discussed are overruled.

Appellee was permitted to testify over appellant’s objection that, in his opinion, the shrinkage of the cattle caused by the treatment they received, and which his testimony gave in detail, over and above “what would have been the shrinkage had they made an ordinary run as is usually made, without any bad treatment, or anything of that kind, was 65 to 70 to 75 pounds, something like that.” It is insisted, as was objected at the time, that the testimony involves the opinion of the witness on a mixed question of law and fact, which was for the determination of the court, and therefore that its admission was erroneous. The case of H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, and other cases following it are cited. We, however, overrule this objection. It has been often held that a witness who has shown himself to be qualified to so speak may state the usual time of a cattle shipment between points named', or what would be the shrinkage in cattle under given circumstances. Such questions have been uniformly treated as questions of fact, • and are entirely distinguishable from the question presented in the Roberts Case, which was whether or not a given run was reasonable. In the case before us it was abundantly shown that appellee was a shipper of cattle for sale in tlie cattle markets of the country of long standing, and well qualified to give the opinions stated in the testimony quoted.

Appellee’s evidence to the effect that, when he arrived at the National Stockyards on the evening of the cattle’s delivery, the salesman there told him that the market of that day had been good is entirely harmless, if erroneous, inasmuch as other competent evidence showed the state of the market on the days named. It is insisted that the court’s charge was erroneous in authorizing a recovery for the value of one of appellee’s cattle that was found dead at Sa-pulpa, Okl., on the ground that there was no evidence as to what caused its death; but we think the evidence justified the charge. There was evidence tending to show negligent delay, improper handling, and injuries to the cattle at this point, and we think it was permissible for the jury to draw the inference that is imputed to the charge criticised.

We have thus briefly disposed of all questions presented, and, having found no reversible error, it is ordered that the judgment be affirmed.


author: DUNKLIN, J. L. G.

text:
    THOMPSON et al. v. KEYS et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 15, 1913.
    On Dec. 20, 1913.)
    1. Principai. and Agent (§ 111)- — Scope op Authority — -Agent to Collect Note — Declarations — Estoppel.
    An agent authorized to merely collect a note cannot bind his principal by a declaration that the note, which is secured by a lien on real estate, has been paid, and thereby estop the principal from foreclosing the lien, nor can any agreement by such agent to assume the payment thereof bind the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 326-331, 376; Dee. Dig. § 111.]
    2. Vendor and Purchaser (§ 230) — Unrecorded Deeds — Liens—Notice.
    Although a number of deeds in a chain of title were not recorded, nevertheless one claiming title through such unrecorded deeds is chargeable in law with notice of a vendor’s lien shown in them.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.]
    Appeal from District Court, Wise County; F. O. McKinzie, Judge.
    Suit by W. R. Thompson against L. G. Keys and others. From an insufficient judgment, plaintiff appeals.
    Reversed.
    MeMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, for appel-lees.

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

   DUNKLIN, J. L. G.

Keys executed two promissory notes, each, for the principal sum of $100, in part consideration for a tract of land purchased by him from G. M. Leverett, and upon which land a vendor’s lien was retained to secure payment of the notes. Thereafter the land was sold by Keys to Jno. T. Carter; by Carter to Oris Hardwick; by Oris Hardwick to E. R. Hardwick; by E. R. Hardwick to W. W. Watson; by W. W. Watson to W. T. Brown; and by W. T. Brown to T. B. Brite. Each grantee in these several deeds of conveyance, except W. T. Brown and T. B. Brite, assumed payment of the two promissory notes mentioned above, in part consideration for the conveyance to him, but the conveyances to Brown and Brite both recited payment of consideration in full. One of the notes was paid by Watson after he purchased the land.

W. R. Thompson, claiming to be the as-signee and legal owner of the other note, instituted this suit to collect it and to foreclose the vendor’s lien upon the land. Keys, Oris Hardwick, Watson, and Brite were made defendants. Brite interpleaded Brown, his vendor, and prayed judgment over against him on his warranty of title, in the event a foreclosure was decreed. He further alleged in his answer to plaintiff’s suit that the note had been paid, but, if that plea should not be sustained by proof, nevertheless a foreclosure could not be decreed, for the reason that John T. Carter assured Brown, before the latter purchased the land from Watson, that the note in controversy had been paid off and discharged; that this assurance was given by Garter to Brown and Watson before the latter sold the land to Brown, and after Carter had been told that Brown was then negotiating for the purchase of the land free of incumbrance; that Brown relied upon said statements so made by Garter, and was induced thereby to purchase the property and to pay therefor $600 in cash; that said representations so made to Brown and Watson by Garter were repeated by Brown to Brite when the latter purchased the property, and Brite was induced thereby to purchase it and to pay therefor $550 in cash; that at the time Garter made those representations he was the owner of the note in controversy; that, if the note was then owned by plaintiff and not by Garter, then Carter was the duly authorized agent of plaintiff for the collection of the note, and, by reason of the representations so made by Garter and the fact that Brown was thereby induced to purchase the property, and Brite was later induced to purchase from Brown, plaintiff is now estopped from claiming a lien upon the property. This plea of estoppel was adopted by Brown. Brite and Brown further prayed that Garter be made a party defendant and for judgment against him, by reason of the representations alleged to have been made by him, in the event of a foreclosure of the lien claimed by plaintiff. Keys likewise prayed for judgment over against Garter, his vendee, for any sum that might be adjudged against Mm (Keys); tMs plea qver being based upon Carter’s assumption of the payment of tbe note as a part of the consideration for the sale to him by Keys. Watson pleaded payment of the note. Oris Hardwick filed no answer. . Carter filed answers to the pleas over against him by Ms codefendants.

The case was tried by the court without the aid of a jury, and a judgment was rendered in favor of plaintiff against Keys, Oris Hardwick, and Watson for the amount due on the note, but denying a foreclosure of the lien claimed upon the land. From that portion of the judgment refusing a foreclosure, plaintiff has appealed.

It is undisputed that the vendor’s lien to secure the payment of the note was duly reserved in the deed from Leverett to Keys and in the note itself; and no error has been assigned by appellees to the finding by the court, wMch is necessarily included in the personal judgment in favor of plaintiff against Keys, Hardwick, and Watson, and also supported by the evidence, that plaintiff was the legal owner and holder of the note. While the trial judge filed no conclusions of fact and" law, it is quite evident that he sustained the plea of estoppel urged by Brite and Brown, and for that reason denied a foreclosure of the lien. The evidence was sufficient to sustain a finding that Carter made the representations alleged, and that Brown and Brite were induced thereby to purchase and pay for the land, and that at the time Carter made the representations he was in possession of the note as agent for plaintiff with authority to collect it. There was no evidence tending to show any specific authority from plaintiff to the agent to make such representations, but appellees insist that the representations were within the apparent scope of Carter’s general authority to collect the note, and therefore, were binding upon the plaintiff. We are of the opinion that this contention is unsound, and that the plea of estoppel should have been overruled.

Appellees invoke the general rule that the principal is bound by the declarations, statements, and admissions of the agent made while acting for his principal and within the apparent scope of his authority; and, among other authorities announcing that doctrine, cite Meehem on Agency, § 714. But the same author further says: “An agent authorized merely to collect a demand or to receive payment of a debt, cannot bind Ms principal by any arrangement short of an actual collection and receipt of the money. He cannot, therefore, take in payment the note of the debtor payable either to himself or to his principal; or the note or bond of himself, or of a third person; or a draft or order on a stranger, or horses, wheat, merchandise or other property of any kind; nor can he set off a claim due from himself; or take property for his own use in payment. * * * ” (Section 375.) “It follows, as a corollary of the rule above referred to, that an agent authorized merely to collect or receive payment, has no implied power to release the debt, in whole or in part, or to compromise the claim without payment; nor can he discharge the debtor and assume the debt himself.” (Section 376.) See, also, 31 Cyc. 1392-1394; Belton Compress Co. v. Belton Brick Mfg. Co., 64 Tex. 337.

In the case of Wm. Cameron & Co. v. Blackwell, 53 Tex. Civ. App. 414, 115 S. W. 856, this court quoted with approval the following language used by the Supreme Court of North Dakota in Corey v. Hunter, 10 N. D. 5, 84 N. W. 570: “Apparent authority is that authority which an agent appears to have from that which he actually does have and not from that which he may pretend to have, or _ from his actions on occasions which are unknown to and unratified by his principal."

And in Cameron v. Blackwell, supra, this court, speaking through Chief Justice Conner further held: “One dealing with an agent is bound to a knowledge of the agent’s authority, and only such authority may be implied as is reasonably necessary and proper to carry into effect the main power conferred.” The same rule is announced in Green v. Hugo, 81 Tex. 452, 17 S. W. 79, 26 Am. St. Rep. 824; H. & T. C. Ry. Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; G., H. & S. A. Ry. Co. v. Allen, 42 Tex. Civ. App. 576, 94 S. W. 417; 31 Cyc. 1322.

Although none of the deeds mentioned above were recorded, except the deed from Brown to Brite, nevertheless Brown and Brite, claiming title through the unrecorded deeds, were chargeable in law with notice of the vendor’s lien wMch plaintiff sought to foreclose and which was retained in the deed from Leverett to Keys. Gilbough v. Runge, 99 Tex. 539, 91 S. W. 566, 122 Am. St. Rep. 659.

For the reason stated, the judgment of the trial court denying the foreclosure of lien sought by plaintiff is reversed, and judgment •is here rendered granting a foreclosure of such lien against appellees L. G. Keys, Oris Hardwick, W. W. Watson, and T. B. Brite for the amount of personal judgment rendered in plaintiff’s favor, those defendants being the only defendants against whom plaintiff prayed for a foreclosure. In all other respects, the judgment rendered by the trial court is undisturbed.

In tMs connection we deem it proper to note that a judgment was also rendered in favor of the plaintiff against E. R. Hard-wick, who was not a party to the suit and against whom plaintiff asked no relief, and in favor of Keys over against several of the defendants, including E. R. Hardwick, against whom Keys prayed for no relief; also in favor of other defendants over against some of their codefendants without any pleas to support the same, but no error has been assigned to any of sueb judgments, and the question of their validity vel non therefore is not before us. •

On Rehearing.

Defendants Brite and Brown specially pleaded .that the note in suit was fully discharged before those defendants acquired the land, and that after defendants acquired the land Carter “conceived the idea of cheating and swindling this defendant, and for that purpose placed the same in the hands of an attorney, with instructions to bring suit on the same in the name of plaintiff, his brother and business associate, under the pretense that he was the owner of the same.” Thus the issue of Thompson’s ownership of the note at the time of the trial was specially tendered, and, if that plea had been sustained, no personal judgment would have been rendered in favor of Thompson. The only testimony introduced to show that Thompson purchased the note related to its acquisition prior to the purchase of the land by both Brown and Brite, and we adhere to the conclusion heretofore reached that it is apparent that the court' sustained the plea of estoppel urged against Thompson and for that reason only refused to decree a foreclosure of the lien upon the land.

Appellees Brite and Brown both now pray for a judgment to be rendered in favor of Brite against Brown on the latter’s warranty of title to the former. It appears from the deed from Brown to Brite that the consideration paid for the land was $550, a sum in excess of the amount of the personal judgment in favor of Thompson. Accordingly judgment is here rendered in favor of appel-lee Brite against appellee Brown for such amount as Brite may be compelled to pay on the personal judgment heretofore rendered in favor of appellant Thompson in order to prevent the sale of the land under the judgment of foreclosure, or, if the land be sold under said foreclosure, then for such of the proceeds of such sale as may be applied upon said personal judgment.

Appellee Brite has filed a further motion here invoking a judgment by this court on his plea over against Carter. According to both his pleadings and the evidence in support thereof, Carter made no representations to him inducing him to buy the land. The only grounds upon which Brite sought a judgment against Carter were the alleged representations made by Carter to Brown, and upon which Brown predicated his plea over against Carter, Brite alleging and testifying that the same representations were repeated to him by Brown, and that he was induced thereby to purchase and pay cash for the land. No facts were alleged or proven to show any liability on the part of Carter for the repetition to Brite of the representations made by Carter to Brown. Hence the judgment is here rendered that Brite take nothing against Carter upon such plea over against Carter, and that, as to such plea, Carter go hence without day and recover of Brite his costs incurred by reason of such plea over.

A motion has also been made by Brown for a remand of the case for trial of the issue presented by Brown against Carter, which motion is sustained, and the cause remanded for trial of that issue only. Except as otherwise shown above, the motion for rehearing is overruled. The costs of this appeal are taxed against appellees Brite and Brown.


author: ■ PRENDERGAST, P. J.

text:
    DEASON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Appeal from Wichita County Court; C. B. Eelder, Judge. A. R. Deason was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   ■ PRENDERGAST, P. J.

From a conviction for aggravated assault, with a fine of $100 imposed, this appeal is prosecuted. There is neither a statement of facts nor bill of exceptions in the record. No question is raised which can be reviewed in the absence of -these. The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    ENGLISH v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Appeal from Wichita County Court; C. B. Felder, Judge. Lillian English was convicted of crime, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. for the State.
   PRENDERGAST, P. J.

From a conviction for keeping a house of prostitution, with the penalty prescribed by law fixed as a punishment, this appeal is prosecuted. There is no statement of facts nor bills of exceptions in the record. No question attempted to be raised can be reviewed without this. The judgment is affirmed.


author: HARPER, J.

text:
    HUMPHRIES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Appeal from Wichita County Court; C. B. Felder, Judge. A. Humphries was convicted of keeping a disorderly house, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly house. No statement of facts nor bills of exceptions accompany the record, and there is no question presented in the motion for a new trial we can review in the absence of a statement of facts. Affirmed.


text:
    PARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    Appeal from District Court, Henderson County; John S. Prince, Judge. Gorden Partin was convicted of rape, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted and convicted for the rape of a girl under 15 years of age, and his penalty fixed at the lowest prescribed by law — 5 years in the penitentiary. There is no statement of facts in the record. Without this no question is raised which we can properly review. The judgment is therefore affirmed.


author: BROWN, C. J.

text:
    PARSONS et al. v. UVALDE ELECTRIC LIGHT CO.
    (Supreme Court of Texas.
    Feb. 4, 1914.)
    Limitation of Actions (§ 55) — Private Nuisance — Accrual op Cause op Action.
    Where a nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated, limitations begin to run upon the construction of the nuisance, but when the structure¡ while permanent in its character, may or may not be injurious, the injury to be compensated is only the damage which has happened, and there may be as many successive recoveries as there are successive injuries, and hence limitations do not begin to run, against actions for damages to the health of persons who lived adjacent to an electric light plant, from the time of the construction of the plant but from the time the operation of the plant constitutes a nuisance and causes the injury to health.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by W. H. Parsons and others against the Uvalde Electric Light Company. A judgment for plaintiffs was reversed and remanded by the Court of Civil Appeals (138 S. W. 163), and plaintiffs bring error.
    Judgment of Court of Civil Appeals reversed, and that of district court affirmed.
    Love & Williams and Jno. W. Hill, all of Uvalde, for plaintiffs in error. Martin, Old & Martin, G. B. Fenley, and Claud Lawrence, all of Uvalde, for defendant in error.

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

   BROWN, C. J.

For the purpose of this case the following condensed statement of the facts will be sufficient: The plaintiff in error W. H. Parsons owned, and he with his wife and children occupied, certain lots in the city of Uvalde for a number of years prior to the erection by the defendant in error of its plant and the putting of the same into operation, which occurred .in the year 1907. More than two years after the completion of the buildings and the location of the machinery and the commencement of the operation of the same, Parsons, joining with him his wife and children, instituted a suit in the district court of that county against the Electric Light Company to recover damages occasioned to his home place in the reduction of its market value by reason of the operation of the said machinery, and also to recover damages to himself and family which had been caused at different times by the operation of the said machinery from the beginning until the time of the filing of the suit, and which occurred from time to time during the operation of the said machinery by reason of the smoke, dust, cinders, and other things which originated in and continued with the operation of the said machinery, and by which, from time to time, annoyance, inconvenience, personal discomfort, and sickness were caused to the different members of the family. The defendant, the Electric Light Company, filed a special demurrer to the petition on the ground that the cause of action was barred by the statute of limitation of two years, under which it was contended that the right of action for damages, both in the reduction of the value of the land and in the creation of inconveniences, personal discomfort, etc., arose at the time that the machinery was completed and put into operation, more than two years before the filing of the petition, and was barred. The plaintiff dismissed as to the damages caused by the reduction in the value of the land, and the case went to trial. The court instructed the jury to find for the plaintiff damages arising from the operation of the machinery and causing personal inconvenience,' sickness, and the like of the plaintiff and his family, but limited the right of recovery to such as accrued within the period of two years next preceding the filing of the petition. The jury returned a verdict for the plaintiff for $500 for himself and $500 for his wife, but found nothing in favor of the children of plaintiff. From this judgment the Electric Light Company appealed to the Court of Civil Appeals, which reversed the judgment of the district court and remanded it for a further trial, basing this, action upon the ground that the court erred in not sustaining the special demurrer to the plaintiff’s petition on the ground that the action was barred within two years from the completion and commencement of the operation of the machinery. The plaintiff in error alleged that the decision of the Court of Civil Appeals practically settled the case, and upon that ground the writ of error was granted by this court.

The sole question presented to us is: Did the right of action for damages to the plaintiff and his wife, by reason of the operation of the machinery, accrue at the time the machinery was put into operation and require that all future damages should be recovered in the one action?

The rules of law which must govern in the decision of this ease are clearly stated thus: “Wherever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated. In such case, the statute of limitations begins to run upon the construction of the nuisance. * * * But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries. In such case, the statute of limitations begins to run from the happening of the injury complained of.” St. Louis, Iron Mountain & Southern R. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174.

In Illinois Central Railroad Co. v. Grabill, 50 Ill. 247, cited by defendant in error, the court said: “If the damages recovered were for deterioration in the value of the plaintiff’s property, such recovery would be a bar to any further prosecution for the same cause; but if they were for annoyance merely, and for rendering the air unwholesome, then a similar recovery might be had at every term of the court.”

Our Supreme Court stated clearly the distinction of the two classes of actions thus: “We conclude from the authorities that, where a nuisance is permanent and continuing, the damages -resulting from it should all be estimated in one suit; but where it is not permanent, but depends on accidents and contingencies, so that it is of a transient character, successive actions may be brought for injury as it occurs, and that an action for such injury would not be barred by the statute of limitation unless the full period of the statute had run against the special injury before suit. * * * The embankment and the culverts were permanent, but the nuisance was not; there was no constant and continuing injury.” Austin & Northwestern Railway Co. v. John Anderson, 79 Tex. 433, 15 S. W. 485, 23 Am. St. Rep. 350. See Railway Co. v. Helsley, 62 Tex. 593.

The distinction is so clearly drawn in the authorities cited that we deem it unnecessary to discuss them. We have carefully examined all authorities cited by defendant in error as well as many others, and we have not found one that sustains the proposition upon which the decision of the Oourt of Civil Appeals rests. In Railway Co. v. Anderson, supra, Judge Collard states with precision the distinction, as quoted above. The electric light plant was not situated upon Parsons’ land; its existence or operation did not necessarily create a nuisance to plaintiff; it was only when the wind carried the smoke and cinders onto the premises that damage was caused. The court said in that case: “The embankment and culverts were permanent, but the nuisance was not.” So, in this ease, the electric light plant, its buildings and machinery, were permanent and continuing, but smoke, cinders, etc., the nuisances which caused the injury, were not continuous. That case and this rest upon the same principles of law.

In Water Works v. Kennedy, 70 Tex. 233, 8 S. W. 36, the court makes the distinction which clearly discloses its inapplicability as authority in this case. The cutting of a hole in the wall- of the building gave to the owner a right of immediate action for weakening the wall, but the damage resulting from the unlawful act occurred when the crack appeared, which the law required the owner to anticipate. In this case no invasion of Parsons’ right of possession nor injury to his property occurred when the structures of the electric light plant were erected, and no right of action accrued to him as owner of adjacent lots; indeed, no action could have been maintained against the company for reduction in value until, by the operation’ of the machinery, the injury accrued. It logically follows that limitation did not run against a suit for personal injury until the right of action accrued from the operation of the plant. In the ease of Waterworks v. Kennedy there would have been no crack in the wall but for the wrongful act of making the hole in the wall of the building ; hence the right of action was based upon the act of making the hole. In the instant ease the injury to health and comfort did not depend upon a reduction in value of the property. If the value of the property had increased, the injury to health would have afforded a ground of action. The two actions, although arising from the same cause, would have required the application of different measure of damages.

It is therefore ordered that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be affirmed.


author: PHILLIPS, J.

text:
    COTTON v. REA et al.
    (Supreme Court of Texas.
    Feb. 4, 1914.)
    1. Judgment (§ 415) — Injunctive Relief-Void Judgment.
    The district court, in the exercise of its equity powers, has jurisdiction to restrain the enforcement of a county court judgment which is a nullity where the invalidity is affirmatively disclosed by the record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 781-783; Dec. Dig. § 415.]
    2. Judgment (§ 416) — Validity — Injunc-tive Relief— Jubisdiction.
    Plaintiff brought suit before a justice on an assignment of wages against the assignor’s employer, in which the assignor intervened; both he and the employer filing a counterclaim for $90 against plaintiff for usurious interest paid to him by the assignor. The justice having rendered judgment in favor of plaintiff and dismissed the counterclaim, the employer appealed to the county court, where judgment was rendered in its favor against plaintiff. Held that, since the counterclaim urged in the justice court was sufficient in amount to give the county court jurisdiction on appeal, the judgment of that court was not void so as to render its enforcement subject to injunction in another court, however erroneous.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 784, 786-788; Dec. Dig. § 416.]
    3. Pleading (§ 271) —Amendment —Plea— Verification.
    Though a plea alleging usury seeking to recover a penalty is required to be verified by Rev. Civ. St. 1911, arts. 4982, 4983, the omission of such verification is not a jurisdictional defect, but one which may be corrected by amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 819; Dec. Dig. § 271.]
    4. Exemptions (§ 147) — Eneobcement oe Right — Injunction — Sale oe Exempt Property.
    An averment that exempt property was to be sold in execution of a county court judgment was sufficient to invoke the jurisdiction of the district court to enjoin the sale, regardless of the value of the property and unaffected by Rev. Civ. St. 1911, art. 4653, providing that an injunction restraining the execution of a judgment shall be made returnable to the court in which the judgment was rendered.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 171; Dec. Dig. § 147.]
    ■Certified. Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Almon Cotton against W. M. Rea and others. Judgment for defendants, and plaintiff appealed to the Court of Civil Appeals.
    Questions certified to Supreme Court.
    Slay, Simon & Wynn, of Ft. Worth, for appellant. Bryan & Spoonts, of Ft. Worth, for appellees.

      For 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

   PHILLIPS, J.

The statement of the case as made by the honorable Court of Civil Appeals in its certificate and the questions presented thereunder are as follows:

“This suit was instituted by Almon Cotton in the district court of Tarrant county against the Texas Brewing Company and W. M. Rea, sheriff of Tarrant county, to restrain the collection of a judgment rendered against Cotton in favor of the brewing company by the county court of Tarrant county for the sum of $51, and for costs of suit; and also to restrain the sale of certain office furniture and fixtures, including a safe, desk, fan, etc., belonging to plaintiff and which had been levied on by the sheriff by virtue of an execution issued on said judgment. It was alleged in the petition that the suit in which the judgment was rendered was instituted in the justice court by Cotton against the Texas Brewing 'Company on an account for wages earned by C. F. Dreschel while employed by said company, which account had been assigned to Cotton by Dreschel; that Dreschel intervened in the suit, and he and the brewing company joined in a counterclaim against Cotton for $90 on account of usurious interest paid to Cotton by Dreschel in connection with the demand for $12 asserted by Cotton in that suit; that later and before the trial, in the justice court the brewing company filed an amended plea alleging that it had purchased from Dreschel his said claim on account of usury, and thereafter the counterclaim was prosecuted by the brewing company alone; that judgment was rendered in the justice court in favor of Cotton for $12 and denying the counterclaim; that upon appeal by the brewing company to the county court the latter court rendered judgment in favor of the Texas Brewing Company against Cotton for $51 and costs of suit. It was further alleged in the petition that prior to the trial in the justice court the counterclaim was verified by Dreschel alone and not by the Texas Brewing Company, but upon motion made in the county court to dismiss the counterclaim for lack of proper verification the latter court permitted the brewing company .to amend the plea by verifying it. Plaintiff further alleged that by reason of the failure of the brewing company to verify the counterclaim in the justice court the judgment rendered thereon in the county court in favor of the brewing company for $51 on said counterclaim was void. In his petition for injunction plaintiff further alleged that the property so levied upon by the sheriff was at the time of the levy used by plaintiff, who is the head of a family, as the tools, apparatus, and books belonging'to his trade and business of conducting and operating a chattel loan business and buying and selling wages and that same was under the law exempt from forced sale; however, plaintiff failed to allege in his petition the value of the property so levied upon. The petition concludes with prayer for writ of injunction restraining the sale of the property and the collection of the judgment and also for general relief. The petition was addressed to the district court and was filed with the clerk of that court April 29, 1911. Upon the petition was indorsed the following fiat: ‘4/29/11. Upon the filing of the application and a bond conditioned as required by law and duly approved, the clerk will issue the writ as prayed for. R. H. Buck, Judge 48th Jud. Dist.’ In obedience to this order the writ of injunction prayed for in the petition was issued by the clerk of the district court and served upon the defendants and was made returnable to the district court in which the suit was filed. Later, on motion of the defendants, the injunction was dissolved, and from that order the plaintiff has duly perfected his appeal to this court.

“Upon the foregoing statement we deem it advisable to certify to your honors for determination the following questions:

“First. Did the district judge have jurisdiction to grant the writ of injunction that was issued?

“Second. Did the district judge who granted the writ have jurisdiction to hear and determine the motion to dissolve it?”

The proper determination of the first question requires a consideration of the dual nature of the injunction suit in the district court: First, as an action to restrain the enforcement of a judgment of another court because of inherent invalidity; and, second, as a proceeding to prevent the unlawful sale of exempt property, as the jurisdiction of the court to issue the writ under these several causes of action, while resting upon the common ground of its equity powers, is controlled by distinct rules, depending in one instance upon the legal effect of the judgment assailed and in the other being uninfluenced by that issue. Viewing the question as it arises under the cause of action presented in the petition which concerned the validity of the county court judgment, the district court, at all events and regardless of the effect of article 4663, R. S. 1911, upon the authority to enjoin the enforcement of a void judgment of another court, was without jurisdiction to interfere with its execution if it was not void; and this part of the question may be resolved, therefore, by determining that of the validity of the judgment. Our view is that, if the judgment was a nullity as affirmatively disclosed by the record, it was subject to such collateral attack in any competent court otherwise vested with jurisdiction of the immediate action in which it might be challenged; that the authority of the court to restrain the enforcement of such a judgment is uncontrolled by article 4653, but proceeds from its power, in the exercise of a jurisdiction otherwise appropriately invoked, to protect rights from the operation of a void proceeding. Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Ketelson et al. v. Pratt Bros. et al. (Civ. App.) 100 S. W. 1172.

The judgment of the county court was clearly not void. The counterclaim urged in the justice court was sufficient in amount to give it jurisdiction on appeal. This claim constituted the subject-matter of the suit; and, having jurisdiction both of it and the parties, the court possessed the authority to render a judgment in the matter. Its jurisdiction being complete and having been lawfully exercised, its judgment was not void, however erroneous.

Any contention to the contrary must rest upon the proposition that the verification of the plea presenting the counterclaim was a jurisdictional requisite, but we regard this view as unsound. If it be conceded that verification of such a plea, seeking recovery of the penalty provided in article 4982, is necessary under article 4983, to the effect that no evidence of usurious interest shall be received on the trial of any case unless the same “shall be specially pleaded” and verified by the affidavit of the party wishing to avail himself of “such defense” — which latter article was originally enacted before the passage of the act providing for the recovery of the penalty, now article 4982, and when the plea of usury was available only as a defense, a question which we are not required to determine, the verification of the plea is only for the benefit of the adverse party and may be waived. Arnold v. Macdonald, 22 Tex. Civ. App. 487, 66 S. W. 529, in which a writ of error was refused by this court. It was capable of amendment (Poe v. State, 72 Tex. 625, 10 S. W. 737), and therefore presented no new cause of action as a counterclaim not pleaded in the justice court. It was within the discretion of the court to permit the verification of the plea by way of amendment. Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227. The judgment, while possibly erroneous, would not have been void, in our opinion, if it had been rendered upon the unverified plea. Van Fleet on Collateral Attack, § 251; Freeman on Judgments, § 118. It is apparent that the district judge was without jurisdiction to issue the injunction on account of the alleged invalidity of the judgment.

Considering the question, however, as' related to the authority to restrain the sale of exempt property, we are of the opinion that the district judge had jurisdiction to grant the injunction. That such remedy lies to prevent the sale of exempt property under execution is established. Stein v. Frieberg, 64 Tex. 272. It is likewise clear that the authority of the court to grant the writ in such case is unaffected by article 4653. Leachman v. Capps & Cantey, 89 Tex. 690, 36 S. W. 250. If it be assumed that under amended section 16, art. 5, of the Constitution the county court has exclusive jurisdiction to issue injunctions in cases where the matter in controversy exceeds 8200 in value but does not exceed $500, no allegation of value was made in this case; and it cannot be said therefore that the suit in this phase was within the jurisdiction of that court. De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882. The averment of the exemption of the property from forced sale was sufficient to invoke the jurisdiction of the court, regardless of the element of value. Its rightful exercise in the issuance of the writ would, of course, depend upon whether the property was exempt; but a determination that it was not exempt, while decisive of the right to the relief, would not affect the court’s power to entertain and hear the cause. This power, which constitutes the jurisdiction of a court, may exist though the pleading under which the suit is instituted is insufficient to sustain the action. The question whether the property levied upon was in fact exempt is not to be confused, therefore, with that of jurisdiction, which alone is presented by the certificate and here decided. As the allegations of the petition in the injunction suit were not such as to bring the case within the original jurisdiction of any other court, but were sufficient to invoke equitable relief, the issuance of the writ was within the jurisdiction of the district court. Gamel v. Smith, S Tex. Civ. App. 22, 21 S. W. 628. We express no opinion upon the question of the right to maintain such a suit in that court if subsequent pleading should disclose that the value of the property involved was an amount within the jurisdiction of the county court.

We answer both questions in the affirmative.


text:
    DORCHESTER v. MERCHANTS’ NAT. BANK OF HOUSTON.
    (Supreme Court of Texas.
    Jan. 28, 1914.)
    1. Bills and Notes (§ 404) — Checks—Time OF PRESENTATION.
    Where a cheek was not presented to the bank on which it was drawn before the closing of the bank on the day after the payee received it, as required by law, the drawer was discharged from liability to the payee; the bank having failed at the close of business on that day.
    [Ed. Note. — For other cases, see Bills and Notes, Cent.. Dig. §§ 1091-1099, 1101-1103; Dee. Dig. § 404.]
    2. Bills and Notes (§ 404) — Checks—Time of Presentation.
    If the drawee bank is located in the same place as the payee, the check must be presented to the bank within banking hours on the day after the payee received it, in the absence of special circumstances; and, if the bank is in another place, it must be presented before the closing of business hours on the first secular day after the receipt of the check for presentation by some one in the place where the bank is situated.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1091-1099, 1101-1103; Dec. Dig. § 404.]
    3. Bills and Notes (§ 404) — Drafts—Time of Presentation.
    All drafts, whether foreign or inland, must be presented to the drawee within a reasonable time, and what is a reasonable time may depend upon the particular circumstances, though ordinarily presentation within business hours on the day following its receipt is necessary.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1091-1099, 1101-1103; Dec. Dig. § 404.]
    4. Bills and Notes (§ 498) — Checks—Presumption or Payment.
    It is presumed that a check would have been paid if diligently presented.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1688-1694; Dec. Dig. § 498.]
    5. Banks and Banking (§ 171) — Collections — Checks — Presentation through Clearing House — Time.
    The payee of a check, who deposited it with a bank for collection, would not be bound by a presentation of the check for payment through a Clearing House of which the depositor was not a member, but of which the drawee bank and the bank receiving the check for collection were members, where the Clearing House rules permitted presentation after the time within which the law required the check to be presented, and hence the collecting bank would be liable to the payee, where, when presented pursuant to the clearing house rules, the drawee had become bankrupt, if the check would have been paid had it been presented within the time required by law.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. § 171.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by C. B. Dorchester, receiver, against the Merchants’ National Bank of Houston and another. Judgment of the Court of Civil Appeals (136 S. W. 551) reversing a judgment for plaintiff against the defendant named and rendering judgment for such defendant, and plaintiff brings error.
    Judgment reversed, and judgment of district court affirmed.
    Andrews, Ball & Streetman and Wm. A. Vinson, all of Houston, for plaintiff in error. ILane, Wolters & Storey and Ira P. Jones, all of Houston, for defendant in error.

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

   BROWN, C. J.

This suit was instituted by Dorchester, receiver, against the Texas Lamp & Oil Company, to recover $1,563.33, on a verified account. The defendant admitted the correctness of the claim, but alleged that it paid the claim by a draft for the sum due, drawn by it in favor of plaintiff on the bank of T. W. House, which was located in the city of Houston, which check was delivered to plaintiff, and that said Lamp & Oil Company had at that time in the T. W. House Bank more than sufficient tunds to pay the check which remained in said bank until its failure, and that plaintiff failed'to present the check for payment in due time. The receiver then amended the petition and made the Merchants’ National Bank of Houston a party defendant, alleging, in substance, that the plaintiff delivered the check to that bank for collection; which negligently failed to present the cheek in due time. The latter bank answered as follows: “This defendant avers that if it ever had or handled the check described in plaintiff’s petition, it took the same in due course of business, and that in handling the same it handled it in the ordinary, customary, and usual manner in which such matters are handled by banks doing business in the city of Houston, state of Texas, and elsewhere; that if it ever handled said check, it used due diligence and all care necessary and proper, and such as is customary in an effort to collect the same; that it was not negligent in any particular in any manner, or in any way, in its efforts to collect said draft; that if it ever handled said draft, it presented the same promptly for payment in the usual and customary manner in which such items are handled by the banks of Houston, and in such prompt, usual, and customary manner as plaintiff knew the said cheek would be handled by said bank when the same was deposited with it for collection; that if it ever handled said check, the same, when presented promptly and properly and through the proper channels, was dishonored, not paid, and returned to this defendant, and immediately by it reported dishonored and returned to the plaintiff; and this defendant denies that it has been guilty of any negligence, neglect, or carelessness whatever in connection with the handling of said check or its presentation for payment, and denies that it is liable to the plaintiff in any sum whatever in this ease, and of this it puts itself upon the country.” The trial court gave judgment in favor of the Lamp & Oil Company, and in favor of plaintiff against the .bank. The Court of Civil Appeals reversed that judgment against the receiver, from which judgment this writ of error was granted.

The judge of the district court made this finding of facts:

“(1) That the defendant, Texas Lamp & Oil Company, was indebted, as alleged by petition, upon open account, in the sum of $1,563.33, which indebtedness is not denied.
“(2) That on the 15th day of October, 1907, the Texas Lamp & Oil Company drew its check upon the bank of T. W. House and sent the said check by mail to its creditor, Dorchester, as receiver of the Waters Pierce Oil Company, which check was received by said Dorchester, or his agent, in due course of mail, on the morning of October 16, 1907, at about the hour of 8 o’clock. I find that the Texas Lamp & Oil Company, or its manager or owner, who drew the check, did business with T. W. House, and that he had received canceled cheeks that had gone through the Clearing House, which bpd marked on them “Paid by Clearing House,” or, “Paid through the Clearing House,” and that the present Texas Lamp & Oil Company had been doing business here about six or seven years. I do not find that said manager or owner had any other knowledge of the methods of doing business than were revealed by those checks.
“(3) The said agent of the receiver in charge of the business in Houston took the said check, in connection with something like 119 other checks, aggregating $10,045.36, and sent them by messenger, in the ordinary course of business, to the Merchants’ National Bank, which is interpleaded in this action.
“(4) I find that the weight of the testimony is to the effect that the messenger of the Waters Pierce Oil Company (which term will be used instead of using the name of Dorchester) did not reach the hank until some time after 2:30 o’clock of the 16th, or about 2:45 or 2:55 on that day, and did not reach it in time for the checks deposited on that day1 to get into the Clearing House, it being necessary, under the rules of the Clearing House, for all checks to be there at the clearing point by 2:45 p. m. of each business day, that being the hour at which the Clearing House met each day, except on Saturdays.
“(5) The Merchants’ National Bank, therefore, held the checks, but duly sent them in to the Clearing House at the proper hour on the 17th, at 2:45 p. m., and when the checks were received, they were all sorted out, as is customary there, and all the checks that were drawn on T. W. House were delivered to some messenger or clerk of his and sent over to the bank of T. W. House for the purpose of having the signature verified and the in-dorsement examined by those of his employes charged with that duty. X find the weight of the evidence to show that this check did not get to the bank of T. W. House till after 3 p. m., when it was closed for business.
“(6) The Merchants’ National Bank was a debtor of the Clearing House on that day to the extent of something like $114,000, and T. W. House was debtor bank to the extent of something in excess of $21,000. The method of operation of the Clearing House seems to be that all the cheeks drawn in favor of any bank were balanced against those drawn in against it, and if those drawn against it are in excess of those drawn in its favor, it becomes a debtor to the Clearing House to that extent, and the manager of the Clearing Plouse draws cheeks upon the debt- or banks in favor of the banks who are credit banks on that day, and thus the accounts are settled between them.
“(7) Upon that day, October 17, 1907, the balances were so struck and checks were drawn on the Merchants’ National Bank in favor of other banks to the extent of its indebtedness, and a check to the extent of twenty-one thousand and odd dollars was drawn against the bank and T. W. House, which, when presented, was refused payment, T. W. House having, at the close of business on that day, acknowledged himself insolvent and made an assignment, and he was afterwards adjudged a bankrupt.
“(8) It seems, so far as I can deduce from the testimony, that the Clearing House had no rules or regulations in its by-laws or book of rules providing for any such contingency as the failure of one of its members, so after the failure of Mr. House was announced, there was an assemblage called together of the officers of all other banks belonging to the Clearing House, 10 in number, excluding Mr. House, and it was decided to have another clearance and rebalance the books and exclude and eliminate all checks drawn in favor of or against T. W. House, which was done.
°“(9) I find that in anticipation o£ the payment of the check by Mir. House when it should be presented through the Clearing House, the Merchants’ National Bank marked on it in the usual way “Paid through the Clearing House, October 17, 1907,” and in that form it went to the Clearing House.
“(10) When that check and all others drawn on T. W. House were dishonored and refused payment, the Merchants’ National Bank notified the Waters Pierce Oil Company of that fact, and that company sent the Merchants’ National Bank a check for $1,563.33 to balance the credit it had received by reason of the deposit of the cheek drawn by the defendant, Texas Lamp & Oil Company, in its, the Waters Pierce Oil Company’s, favor.
“(11) I find from the testimony of the paying teller of T. W. House, a man of unquestioned veracity, that if the check drawn by the defendant, Texas Lamp & Oil Company, on T. W. House, in favor of the receiver of the Waters Pierce Oil Company, had been presented to him within business hours on the 17th day of October, 1907, it would have been paid, because the drawers had funds to their credit sufficient to pay it, and the bank had sufficient money wherewith to meet it
“(12) Unless the facts above recited of the sending of the check to the Clearing House, and the action concerning it explained above, was a presentation, within the meaning of the law, there never was any presentation of the check at the counter office of T. W. House with a request for payment of the funds it called for, before 3 o’clock on the 17th of October, 1907.
“(13) When the receiver of the Waters Pierce Oil Company sent his check to offset the credit he had received, he had no actual notice of what had been done with the other check, or what course it had taken, further than he was informed that payment had been refused, but I find he or his agents knew that the course the cheek would take would be through the Clearing House.
“(14) It seems that the Clearing House is a voluntary association of all the banks in the city of Houston, organized and operated for their convenience and to expedite business by an exchange of checks at a certain hour each day, instead of each bank sendihg to all other banks all the checks drawn on them, and that its organization as such is composed of all the banks in the city.
“(15) I find that it is the custom of business houses to deposit their checks in the banks with which they do business, and that customarily, the banks make their collections through the Clearing House, and that in Houston it is generally known among those dealing with banks that deposits must be in by 2:30 p. m. The custom of all the banks in Houston that belong to the Clearing House also was to make collections of checks drawn against the members of the Clearing House, through the Clearing House. It is not shown that there was any agreement to that effect In the organization of the Clearing House, but such was the custom and usage, and it seems that each bank which belonged to the Clearing House also had a check, or one in some capacity, who attended to the business of delivering items of deposits to the Clearing House for action, but such member had no authority, as I conclude, to pass upon the validity of checks, or decide whether they were good in the sense that there was funds to meet them.”

The sole question in this ease is, Was Dor-chester bound by the action of the Merchants’ National Bank in presenting his draft on the House Bank through the Clearing House at Houston? It is undisputed that the Merchants’ National Bank did not present the draft directly to the House Bank, and that the draft was not presented by or through the Clearing House to the House Bank before the latter bank was closed on the last day which the law allowed for the presentation of it. It is also unquestionable that if the draft had been presented by the Merchants’ National Bank to the House Bank before it closed on the 17th of the month, it would have been paid, and that the failure to so present it caused the failure of collection ; the House Bank having closed and gone into bankruptcy at the closing hour of that day.

The Court of Civil Appeals assumes that Dorchester knew of the existence of the Clearing House in Houston, and that the Merchants’ Bank was a member thereof, and also knew that the Merchants’ Bank was in the habit of presenting drafts on members committed to its care for collection to the Clearing House for adjustment. But there is no evidence whatever that Dorchester authorized, or had ever approved of, that method of collection. The issue between the parties in this litigation is whether the failure of the Merchants’ Bank to present the draft to the House Bank within the time prescribed by law was negligence on its part which would render it liable on the failure to collect the draft, although it had presented the draft in the regular way prescribed by its rules to the Clearing House, and adjustment was made between the banks, crediting the Merchants’ Bank and charging the House Bank.

Certain banks in Houston, possibly all, had formed themselves into a voluntary association called a “Clearing House,” of which the defendant in error and the House Bank were members. The Clearing House had rules for the government of its members, to the effect that all drafts drawn against any bank member of the Clearing House, and held for collection by a bank member of the Clearing House, might be presented to the Clearing House within a given time, in order that it might be adjusted in the general settlement of the claims between the bank members. At a certain hour the balance was ascertained, by which each member was charged with the drafts or claims presented against it, and allowed credit for the claims which' it held against other banks of the association. If the balance should be in favor of a bank, then it would receive a check or cheeks for the amount of the difference in his favor against some bank or banks which were indebted to the Clearing House, and thus the claim would be settled. The debtor banks were thus made liable to the Clearing House for the amounts in which they were debtor upon the final settlement, and were subject to the checks drawn in favor of the creditor banks for the sum due to each of such banks.

The Merchants’ Bank and the T. W. House Bank were each debtor banks on the day on which this claim was presented. On striking the balance the Merchants’ Bank was indebted $104,000, after receiving credit for all drafts held by it, including the draft on the House Bank, and the House Bank was indebted $21,000. It is evident from the rules stated, and the transaction in the Clearing House, that the Merchants’ Bank received credit for the sum of $1,563.83, being the draft in question in this suit, that amount being charged against the House Bank by the Clearing House association, for which sum the defendant in error was required to account to the Clearing House. The draft drawn in favor of Dorchester and delivered to the Merchants’ Bank against the House Bank was not presented for payment, either by the Merchants’ Bank or by the Clearing House on that day, but was submitted to some officer or employé of the bank for the purpose of verifying the signature and the genuineness of the draft.

The evidence is undisputed that if the draft had been presented to the House Bank before it closed business at 3 o’clock on the 17th day of the month, as the law required it should be, it would have been paid. Not having been so presented within the time required by law, the drawer of the draft was discharged from liability to the receiver, Dorchester, and he lost, by reason of the failure to present it as the law required, the amount of that draft.

Was the Merchants’ Bank negligent in not presenting the draft to the House Bank for payment? In other words, was Dorchester bound by the action of the Merchants’ Bank in using the Clearing House method of settling this claim?

In order to simplify the issue, we will assume that Dorchester did know that the Merchants’ Bank and the House Bank were members of the Clearing House, and did know that the Merchants’ Bank was in the habit of adjusting its claims against other bank members of the same Clearing House by presenting such claims to that organization, for adjustment.

The law prescribed as the measure of diligence in this case that the draft received, by the Merchants’ Bank on the 16th of the month should be presented to the Houáe Bank within banking hours on the 17th, the next day after Dorchester received it Morse on Banks and Banking, vol. 2, § 421. Other citations to this point would be superfluous.

The excuse offered, and sustained by the Court of Civil Appeals, was that it was the custom of the banks which belonged to the Clearing House, and of all banks in Houston, to present such drafts to the Clearing House for adjustment, which fact was known to Dorchester. The defendant in error submitted the draft to the Clearing House in Houston on the 17th of October, in accordance with the rules of that association, which the Court of Civil Appeals held to be a sufficient discharge of its duty, citing Bank v. Triplett, 1 Pet. (U. S.) 30, 7 L. Ed. 37, and Morse on Banks and Banking, vol. 1, §§ 214-219. The authorities cited are not applicable to the facts of this case. The law applicable to the facts of the present case is stated in Morse on Banks and Banking, § 421, as follows:

“(b) 1. All drafts foreign or 'inland must be presented to the drawee within a reasonable time, and in case of nonpayment prompt notice must be given to the drawer and indorsers. What is a reasonable time depends on the circumstances of each case, and is sometimes a very difficult question. The relations of the parties, the time, mode, and place of receiving the check, must be considered, and whether the check is postdated or not.

“The presumption is that a check would have been paid if diligently presented. And what is due diligence is, as a general rule, a question for the jury.

“(c) 2. The drawer cannot (except by agreement or under special circumstances as above) be held absolutely beyond the business hours of the day following his delivery of the check, if the bank is in the same place, or if the bank is in another place, the period of his liability will be until the close of business hours on the first secular day following the receipt of the check by some one in the bank’s locus, the check having been mailed upon the day following its delivery by the drawer.”

It being the duty of the receiving bank, defendant in error, to its depositor, Dorches-ter, to present the draft during banking hours of the next day, the 17th of October, it, the receiving bank, could not bind the depositor, Dorchester, by conforming to the rules of the Clearing House, which were at variance with the laws. “The rights of a nonmember depositor in a member bank are not affected by the clearing rules, nor can he take advantage of them.” 1 Morse on Banks and Banking, § 351; Bank v. Bank, 139 Mass. 513, 2 N. E. 89; Overman v. Hoboken City Bank, 31 N. J. Daw, 563. The opinion in the last case cited discusses the relation of a depositor to a Clearing House of which it Is not a member with convincing clearness. The facts were very similar to the present case. It was distinctly held that a nonmember of a Clearing House was not bound by its rules, and a member bank which adopted the methods of the Clearing House did not bind its depositor.

The drawer of a bill of exchange has the legal right to have it presented for payment to the drawee within the time prescribed by law, and the payee is charged with the diligent performance of that duty. The agent of the payee has no more liberty in the collection than the principal; either must present the draft within the business hours of the second day, when, as in this case, the payee and drawee reside in the same city. The fact that parties to the instrument are members of a clearing house association cannot vary the rules of legal diligence in discharge of duties to a nonmember.

The effect of the rule applied by the Court of Civil Appeals is exemplified by this ease. The failure of the Merchants’ Bank to present the draft at the House Bank according to law operated to discharge the oil company because of want of diligence, but the same acts are held to constitute diligence as to Dorchester. This cannot be a logical and legal result, unless Dorchester is to be held bound by the rules of the Clearing House of which he was not a member. He was not so bound under the law of the land.

The trial judge made an excellent statement of the facts of the case and rendered a correct judgment thereon, which,the Court of Civil Appeals erroneously reversed, and rendered judgment for the Merchants’ Bank.

It is ordered that the judgment of the Court of Civil Appeals be, and it is hereby, reversed, and the judgment of the district court is affirmed.


text:
    PACIFIC EXPRESS CO. v. KROWER et al.
    (Supreme Court of Texas.
    Feb. 4, 1914.)
    1. Commerce (§ 81 — Loss of Goods — Limitation of Liability — What Law Governs.
    A shipment being an interstate shipment, the contract of the carrier limiting its liability must be construed under the law of commerce known as the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]).
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.]
    2. Carriers (§ 153) — Loss of Goods — Limitation of Liability — Validity.
    Under act of Congress, known as the Car-mack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]), declaring that no contract, receipt, etc., shall exempt such common carrier, railroad, or transportation company from the liability thereby imposed, a receipt of an express company limiting its liability to $50, unless a higher value was placed on the goods 'by the shipper, was valid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 687-690; Dec. Dig. § 153.]
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Leonard Krower against N. H. Ellis and the Pacific Express Company. From judgments for plaintiff, Krower, and defendant Ellis, the Express Company appeals, and questions certified to this court.
    Questions answered.
    Douthit & Smith, of Sweetwater, for appellant. Caldwell & Whitaker, of Midland, and Graham B. Smedley, of Austin, for ap-pellees.

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

   BROWN, C. J.

The Court of Civil Appeals of the Second Supreme Judicial District has certified to this court the following statement and questions:

“There is now pending before us on appeal from the county court of Midland county the case of Pacific Express Company v. Leonard Krower and N. H. Ellis, in which it appears that Leonard Krower instituted suit in said court against N. H. Ellis to recover $409 alleged to be the market value of two diamond rings which the said Krower alleged that the said Ellis had lost or converted to his own use. Ellis answered, making the Pacific Express Company a party defendant, alleging that, if the rings were lost or converted, such loss or conversion occurred while in the possession of the express company by reason of its negligence, and prayed for judgment over against said company in event of a recovery against him. The express company in turn pleaded over against the defendant Ellis, praying that, in event judgment should be recovered against it, it recover against Ellis for the amount of the judgment. The trial resulted in a judgment in favor of the plaintiff, Krower, against the Pacific Express Company for $463.80, the amount sued for, including interest from the date of judgment Judgment was also rendered in favor of the defendant Ellis as against the other parties, and the express company alone has appealed.

“The judgment rests upon the following findings of fact by the trial court, viz.: ‘That on or about January 5, 1909, defendant N. H. Ellis, .who was engaged in the drug and jewelry business, had in his possession in Midland, Texas, jewelry, the property of the plaintiff, Leonard Krower, of the value of $1,200, among which jewelry were the two rings sued for by plaintiff. That on said day Mrs. Eugenia Ellis, wife and the agent of said N. H. Ellis, packed said jewelry in a pasteboard box, placed with said jewelry in said box the said two diamond rings in controversy. Plaintiff wrapped the box in paper, tying it with a string, and not sealing it, and delivered it at the office of the defendant Pacific Express Company, a common carrier, to the agent of said company, one Rector, for transmission to plaintiff at New Orleans, La. That said Mrs. Ellis took to said express office at said time a receipt book, in which was a form of receipt commonly used by said express company for the purpose of receipting for goods to be shipped, which said form had been prepared by the said Mrs. Ellis. Said form was presented to the agent of the express company, with the request that it be executed by the agent. That said agent signed said receipt for said goods. Among other things, said receipt form contained a provision limiting the liability of the express company, in the event of loss of or damage to said jewelry, to the extent of $50, unless a higher value was placed on said goods by the shipper, and I further find that the said Mrs. Ellis was familiar with the custom of the express company in regard to charges for transporting such property as the goods in question, and I further find that the said Mrs. Ellis failed and refused to state in said receipt that said goods were of a higher valuation than $50. I further find that it was a rule and custom of said express company to charge a higher rate for transporting goods valued in the receipt át more than $50 than it did for transporting the same amount of goods (in bulk or weight) valued in the receipt at less than $50, or at no valuation at all; and I further find that it was a rule of said express company to transport said goods valued in the receipt at more than $50 with greater care than goods valued in the receipt at less than $50, or at no váluation at all. I further find that, if the said Mrs. Ellis had valued said goods in said receipt at their true value, or at any value in excess of $50, the defendant the express company would have transported said goods with a greater degree of care than it would in transporting goods of less value than $50. And I further find that all of these facts were well known to the said Mrs. Ellis at the time of the shipment of said goods, as well as her husband, N. H. Ellis. I find that the defendant the express company received the sum of 30 cents as express charges on said goods, and, if said express company had known that said goods had a valuation of more than $50, a higher transportation charge would have been' required by said company. I further find that said goods were not valued at more than $50 by the said Mrs. Ellis by reason of the fact that she had been instructed by the plaintiff herein to ship said goods at a valuation of less than $50 in order to save express charges, and because plaintiff carried insurance to protect him against loss on such goods in transit by express companies. I find that the two diamond rings in question in this suit were of the aggregate value of $409 at New Orleans, La. I find that said two diamond rings were in the package when delivered to the Pacific Express Company on January 5, 1909, for transmission, and was not in the package when delivered by the express company to plaintiff at New Orleans, La.’

“Appellee Krower insists that the foregoing facts support the judgment, and presses upon us the case of Head v. Pacific Express Co., 126 S. W. 682, by the Court of Civil Appeals for the Sixth district, and this case seems to support the contention. We, however, upon the authority of Railway v. Burke, 55 Tex. 323, 40 Am. Rep. 808, So. Pac. Ry. v. Maddox & Co., 75 Tex. 307, 12 S. W. 815, Pac. Express Co. v. Pitman, 30 Tex. Civ. App. 626, 71 S. W. 312, 6 Cyc. 380, Express Co. v. Scott, 2 Willson, Civ. Cas. Ct. App. § 74, and other authorities cited in appellant’s brief, strongly incline to the opposite view, and, in order to avoid a conflict of decisions, as far as we may deem it advisable to certify to your honors for determination the question whether the judgment in this case in favor of Leonard Krower against the appellant, the Pacific Express Company, is supported by the facts so found by the trial court.”

The shipment upon which this action was based being interstate, the contract must be construed by the provisions of the law of Congress known as the Carmack Amendment, which contains this provision: Fourth. It affirmatively declares that “no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.” That provision; was construed in Adams Express Company v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257.

In that case a similar contract to this was under consideration, and the Supreme Court of the United States held that the limitation upon the liability of the express company was valid, not being in violation of any provision of the act of Congress.

We answer that the limitation in the contract was valid under the law of Congress, but the validity of such contract under the law of this state is not involved; therefore we do not express an opinion as to the validity of such limitations under the laws of Texas.