author: WILLSON, C. J.

text:
    TEXAS MIDLAND R. CO. v. SIKES.

    (No. 1603.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1916.
    Rehearing Denied April 13, 1916.)
    1. Carriers <§=>318(3) — Injury to Passenger—Eviden oe .
    The implied finding in a verdict in a passenger’s action, that it rained on plaintiff through a broken or open window in defendant’s car, held not against the great weight and preponderance of the evidence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. @=>318(3).]
    2. Carriers <§=>320(30) — Injury to Passenger — Question for Jury — Cause.
    Evidence, in a passenger’s action, held sufficient to go to the jury on the question of her ailment being caused by being rained on in defendant’s car, and not being a mere continuation of a prior condition, or caused by being rained on elsewhere.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1248; Dec. Dig. @=>320(30).]
    3. Damages <§=>132(5) — Personal Injury-
    Excessive Verdict.
    Under the evidence in a passenger’s action for derangement of her menstruation from being rained on in defendant’s car, held, that a verdict of $S,000 could not be said to be excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 376; Dec. Dig. <§=>132(5).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Maggie Belle Sikes, by next friend, against the Texas Midland Bailroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Dashiell & Coon, of Terrell, and S. W. Marshall, and Coke & Coke, all of Dallas, for appellant. Evans & Shields, of Green-ville, for appellee.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

Appellee, plaintiff in the court below, claimed that on September 10, 1913, while a passenger from Greenville to Paris on one of appellant’s trains, she was made wet by rain entering the coach she was in, through an opening appellant negligently permitted to exist in or above a window by which she sat. She claimed that the wetting caused her menstrual flow to stop and to be thereafterwards so deranged as to seriously and permanently injure her. The appeal is from a judgment in her favor for $8,000.

The contention first made in appellant’s brief is that the verdict and judgment are “against the great weight and preponderance of the evidence, in this, that it did not rain' on the plaintiff through a broken or open window in the coach and wet her clothing.” Appellee as a witness testified that it began to rain after the train left Greenville, and that she “noticed a mist coming in at the upper part of the train," and that “somewhere in the neighborhood 0⅜ Commerce” a gust of rain came in from an opening two or three inches wide, which she afterwards discovered to be at the top of the window by which she sat. This gust of rain, she said, “made her wringing wet.” The testimony of Mrs. Bourland, appellee’s sister, was to the same effect, except that she said that as she remembered it the gust of rain came into the coach “just the other side of Commerce from Greenville.” The testimony to the contrary was (1) that of the witness Mrs. Hunt, that she traveled on the train from Greenville to Commerce, sat facing appellee in the seat fronting her, and that she (witness) “did not notice any big gust of rain coming in at the window and wetting Miss Maggie” ■ (appellee), between Greenville and Commerce, and “did not notice any rain coming in” while she was on the train; (2) that of employes of appellant in charge of the train, to the effect that appellee did not during the trip complain to any of them of the defect in the car; (3) that of the foreman of appellant’s car department, to the effect that six or seven days before the time appellee claimed to have been made wet the coach she was then riding in had been repaired and sent out in. good condition; and (4) the testimony of" relatives of appellee whom she visited in Paris, to the effect that she said nothing to them about getting wet while on tiie train. None of the controverting testimony referred to, except that of Mrs. Hunt, is inconsistent with that given by appellee and her sister. The assignment presenting the contention stated is overruled.

The second of the several contentions made by appellant is that appellee “failed to show by credible evidence that the injury she complained of was caused by exposure to the rain while in the car of defendant, but her injuries, if any, were a continuation of the ailment ■ and sickness which she had for a long time prior to the date of the alleged injury suffered from.” The only testimony we have found in the record which can be said to have tended in the least to show that before the time she made the trip to Paris appellee suffered from a derangement, and its consequences, of her menstrual flow, was (1) her own testimony and that of her mother and sister to the effect that in January before September, 1913, when she made the trip to Paris, she was vaccinated, and as a result had fever and suffered such a derangement of her menses as to. cause her to take medicine; and (2) testimony that a drug concern in Greenville filled prescriptions of a physician, who died before the trial, for medicines proper to give to control the menstrual flow, as follows: June 20, 1912, one for Miss Sikes; October 23, 1912, one for Maggie Sikes; and January 1, 1913, another for Maggie Sikes. Appellee’s sister, Mrs. Bourland, testified that the prescription filled June 20, 1912, was .for her, and not for appellee; and appellee, her mother, and her sister all testified that before ap-pellee took the trip to Paris she had never, except when she was vaccinated as stated, suffered from any disorder of her menstrual flow, and had never, except on that occasion, taken medicine of any kind to control menstruation. Certainly in this attitude of the testimony we cannot assume, as appellant does, that the injury appellee was caused by her being made wet on the train was a continuation merely of an ailment she suffered from before she made the trip. If her own, her mother’s and sister’s testimony was entitled to credit, she promptly and fully recovered from the derangement caused by the vaccination, and never afterwards until she made the trip to Paris suffered from any other or further derangement of her menses. We have found nothing in the record which would justify us in saying that the jury did not have a right to believe that testimony. The testimony was conflicting as to whether appellee was exposed to rain and made wet while in Paris, and while in Cooper, on her way back to her home in Greenville. The jury evidently found she was not; or, if she was, that the wetting she sustained on appellant’s train was the proximate cause of the injury complained of. The testimony was sufficient to show that, if appellee was made wet while on the train as she and her sister testified she was, the wetting might have caused the injury the jury found she suffered. Whether it "did in fact cause it, or not, was for the jury to say. The second assignment is overruled.

The third of the contentions made is that the “amount of damages awarded the plaintiff is excessive.” The testimony on behalf of appellee indicated that, as a result of the derangement of her menstrual flow, appellee, a young girl 16 or 17 years of age at the time of the trial, who before she took the trip to Paris weighed 125 pounds and enjoyed good health, had become a chronic invalid, weighed 102 pounds, and suffered a great part of the time. With reference to her condition, Dr. Smith testified:

“X made an examination of her recently, and she is suffering from chronic inflammation of the womb, endometritis, and also a forward displacement of the womb, and she has an adhesion of the womb. She also has an inflamed condition of both of the ovaries, and also her menstrual period is irregular, staying from two to three weeks at a time. I know that she has had her menstrual flow on her at this time for something about a month, I don’t know the exact time, but it is in the neighborhood of a month now. A girl of her age, in the condition she is in now, is in a serious condition. It is not serious as far as life and death is concerned, but it is serious as far as her health is concerned. As to what her condition in the future will be, judging- from the past and the condition she is in at the present time, there are several things that might happen. She will always have more or less womb trouble; she has a fixed uterus; it is bound down by adhe-sions, and nothing outside of an operation will loosen that up. Her ovaries are also diseased, and it is a question whether they will ever get better. I can’t tell. They might get Considez--ably worse, but I don’t think they will get very much better. As for the flow, we may be able to regulate that later on. If her ovaries get diseased to such an extent that they have to bo removed, that will prevent her from ever bearing a child. That is the functions of the ovaries. They make childbearing possible, and, if they are removed, it is impossible for a woman to bear children; she will be childless the balance of her life. I could not tell you how badly her ovaries are diseased, not without seeing them, and there is no way of seeing the ovaries without performing an operation.”

If the injury to appellee is as serious as the testimony quoted indicates it is — and that it is, is not disputed by any other testimony in the record — the verdict and judgment are not excessive. The third assignment is overruled.

In the assignments remaining undisposed of, appellant complains of the refusal of the trial court to grant it a new trial, because of testimony it claims it discovered after the trial of the cause was concluded, and which, it further claims, probably would affect the result if the cause should be tried again. After considering these assignments, we are of opinion they should be overruled.

As we view it, the testimony authorized findings involved in the verdict: (1) That because of negligence on the part of appellant the coach in which appellee traveled from Greenville to Paris was so out of repair as to permit rain to blow into it; (2) that appellee was made wet by rain which blew into the coach because of the defect therein; (3) that as a direct result of being so made wet appellee suffered the injury she complained of; and (4) that she was thereby damaged in the sum of $8,000.

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


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    CHILDRESS et al. v. CROW.
    (No. 1612.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 4, 1916.
    Rehearing Denied April 13, 1916.)
    Trial <©=>169 — Directing Verdict.
    The evidence failing to raise any issue of fact requiring submission to the jury, a peremptory instruction was proper.
    • [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. <©=>169.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by A. W. Childress and others against George W. Crow. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Wear & Frazier and J. J. Averitte, all of Hillsboro, and Dean, Humphrey & Powell, of Huntsville, for appellants. . Walter Collins, B. Y. Cummings, and Morrow & Morrow, all of Hillsboro, for appellee.
   LEVY, J.

This suit was brought by appellants against appellee to cancel a deed executed to appellee by John S. Childress on July 25,1912. The petition alleges that there was want of mental capacity in John S. Childress at the time of the execution of the deed, and that there was undue influence to secure the execution of the deed to George W. Crow.

The evidence is the same as it was upon the trial at which the judgment first appealed from was rendered. Upon that appeal the evidence was fully stated and considered, and the conclusion reached that the verdict of the jury, involving the finding of want of mental capacity of the grantor, and that the deed was the product of undue influence, was against the weight of the evidence. Crow v. Childress, 169 S. W. 927. It is unnecessary for us to reiterate the evidence. The evidence in the present appeal shows that on July 25, 1912, John S. Childress executed a deed, intending that it should he a deed, conveying to his nephew, George W. Crow, all of his undivided interest in certain lands owned as heir of Elizabeth Batson, deceased. At the time the deed was executed the grantor, John S. Childress, was, in point of fact, of sound mind, and knew and understood that he was disposing of his property to his nephew, the grantee. There was not, in point of fact, any undue influence exercised by and on behalf of appellee upon John S. Childress to induce him to execute the deed in question. It is concluded that the evidence failed to raise any issue of fact requiring the submission of the case to the jury, and therefore the court did not err in giving a peremptory instruction. The evidence utterly failed to show, we think, that John S. Childress at the time of executing the deed was mentally incapacitated to execute a deed, or that undue influence was exercised upon him in the execution thereof. Berry and Wife v. Brown, 148 S. W. 1117; Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599.

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


author: LANE, J.

text:
    KYDIAS AMUSEMENT CO. et al. v. CITY OF HOUSTON et al.
    (No. 7214.)
    (Court of Civil Appeals of Texas. Galveston.
    March 24, 1916.
    Rehearing Denied April 6, 1916.)
    1. Municipal Cobpobations <©=>57 — Legislative Contbol — Delegation oe Poweb— Souece.
    Under Const, art. 11, § 5, providing that cities of certain population may adopt or amend charters subject to legislative limitations, providing that no charter or ordinance passed thereunder shall contain any provision inconsistent with the Constitution or the general laws, delegation of powers to city councils by the Legislature is unnecessary; their power being derived directly from the sovereign people, if they act under the provision.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dee. Dig. <©=57.]
    2. Theatees and- Shows ⅞=>1 — Police Pow-eb — Public Amusements — Delegation by Legislatube.
    Assuming that delegation of legislative authority is prerequisite to exercise by city councils of powers over public amusements, there ⅞ sufficient delegation by Rev. St. 1911, art. 873, empowering city councils to license, tax, and regulate, or prohibit, theaters, circuses, exhibitions of common showmen, and shows of any kind, and article 874, empowering the council to authorize the proper city officer to grant and issue licenses, and to direct the manner of issuing and registering thereof, and the fees and charges to be paid therefor.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 1; Dec. Dig. <g=al.]
    3. Theatees and Snows <⅜=»1 — Police Pow-ees — Public Amusements.
    Moving picture exhibitions are subject to police surveillance and control in the interest of public morals, and it is the right of the city of Houston, under its charter, § 2, providing that the city council shall have power to preserve and promote good government, order, security, peace, quiet, amusement, education, prosperity, and the general welfare of the city and its inhabitants, and section 16, providing that the city shall have power by ordinance to ermit, forbid, or regulate theaters, balls, dance-ouses, and other public amusements, and to suppress the same whenever the preservation of order, tranquility, public safety, or good morals may demand, and also under its police powers to regulate, permit, or forbid such exhibition and to appoint a board of censors, with reasonable authority over them.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 1; Dec. Dig. <®¿>1.]
    4. Theatees and Shows <©=>3 — Police Pow-eb — Regulation oe Public Amusement — Payment oe Occupation Tax — Eeeect.
    The mere fact that an exhibitor of motion pictures has paid the state occupation tax for such exhibition does not relieve him from compliance with the city ordinance, requiring the securing of a permit as a prerequisite to the showing of pictures.
    [Ed. Note. — For other cases, see Theaters and Shows, Oent. Dig. | 3; Dec. Dig. <@=>3J
    5. Theatees and Shows ⅞=»2 — Police Pow-eb — Regulation oe Public Amusement.
    The powers of the city council to regulate places of public amusement can be exercised only in the absence of legislative regulation, but where the Legislature by statute merely provides the penalty for showing improper pictures, the statute being silent as to censorship, and making no attempt to cover the entire field, the city may create a board of censors and require their permit to issue before exhibition.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 2; Dec. Dig. <®=»2.]
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Suit for injunction by the Xydias Amusement Company and others against the City of Houston and others. From an order dissolving the temporary restraining order and denying the injunction, plaintiffs appeal.
    Affirmed.
    A. B. Wilson and Stanley A. Beard, both of Houston, for appellants. J. C. Hutcheson, Jr., of Houston, for appellees.
   LANE, J.

The city council of the city of Houston passed the following ordinance;

“Sec. 37. There is hereby created a board of censors consisting of seven discreet persons, to be appointed by the mayor and approved by the council, whose duty it shall be to investigate all places of public entertainment and amusement, and to take steps to permit or to condemn and prevent the showing of any picture or pictures, vaudeville, entertainments, or the giving of any character of entertainment that is obscentS, immoral, indecent or is calculated to promote or encourage racial or sectional prejudices, indecency or immorality. All of said board shall serve for a period of two years, unless sooner removed by the mayor, and until their successors have been appointed and qualified. Six of said board shall serve without compensation; one member hereof shall be designated as secretary of the board, and shall receive a salary to be fixed by tbe mayor. A majority of said board shall constitute a quorum for the transaction of business; and if more than two members are absent from the city, or unable from any other cause to act, the secretary shall notify the mayor, who shall have power to appoint substitutes to serve during the absence of such members.
“It shall be the duty of the secretary, as far as possible, to visit each place where motion pictures or other entertainments are exhibited in the city of Houston each day and to examine all of said entertainments and moving picture films, and said secretary shall ascertain if any entertainment, show or motion picture is being exhibited which has been condemned by the board of censors as being obscene, indecent or immoral, or as calculated to promote or encourage racial or sectional prejudice,_ indecency or immorality or for which a permit has not been issued, and in case the secretary shall find any such picture being shown or entertainment given, the manager or other person in charge shall be notified to stop the exhibition of such picture or the giving of said entertainment.: The secretary shall report all violations of this article to the board of censors. All moving, picture shows, theaters, penny arcades, vaudeville shows and other places of public entertainment in the city of Houston are hereby required to permit said secretary and other members of the board, without charge or compensation, to enter said shows 'or places of public entertainment and to examine and inspect each and all of said motion pictures or other entertainments which are being shown or exhibited therein, and this they and each of them, shall do whenever and as often as the said secretary or said board of censors may require.
“Sec. 38. Each person, firm or corporation in charge of any place of public 'entertainment in the city of Houston shall apply to the board of censors,, through the secretary, for a permit to show any moving picture, or series of moving pictures, vaudeville entertainment, or give any entertainment of any kind. The applicant tor a permit shall file with the secretary, at least three days in advance of the time at which it is proposed to give an exhibition of moving pictures or other entertainment (unless impossible to do so), a complete program thereof, and shall furnish, when demanded, such additional information concerning said entertainment or moving picture-or series of pictures, as may be required by the board of censors or secretary thereof, in such form as rqay be satisfactory to the secretary of said board. The secretary shall issue permits in the name of the board of censors for the exhibition of pictures or the giving of entertainments, but no permit shall be issued in the name of the board of censors upon any application for the showing of pictures or the giving of entertainments which, in the judgment of the secretary, are obscene, immoral, indecent, or which would tend to promote or encourage indecency or' immorality, or racial or sectional prejudice, until such application has been presented to and passed upon by the board of censors. The board of censors shall have the right to appoint a time and place for inspecting the pictures or exhibition in question, at which time the exhibitor shall produce for inspection by the board all plates, films, rolls or other like apparatus by, or from which any picture or series of pictures is shown or produced, or character of vaudeville entertainment to be given, and if required by the board shall exhibit the picture or series of pictures or entertainment to the members of the board. If a majority of the board of censors present at such inspection shall condemn said picture or other entertainment, in violation of the provisions of this ordinance, or the laws of the state of Texas, no permit therefor shall be issued by the secretary, provided, á quorum of said board shall have the power to act in all cases, and provided further, that the board shall have the power, in the event it does not desire to condemn a picture or series of pictures or vaudeville entertainment as a whole, to order the elimination of such parts or scenes as will remove the grounds of offense against this ordinance and the laws of the state of Texas, and to issue permits conditioned upon the making of such eliminations.
“Sec. 39. The board of censors shall grant no permit for the giving. of any entertainment or the showing of any picture or series of pictures which, in. the opinion of the board, is obscene, indecent or immoral, or is contrary to good morals or public decency, or is calculated to promote or encourage racial or sectional prejudice, immorality or indecency; provided, that all permits granted shall be subject, to revocation by the board should it be ascertained that there has been any mistake made on their part or misrepresentation or concealment of the material facts concerning the character and quality of the exhibition so permitted.
“Sec. 40. Any person who shall exhibit any picture or series of pictures, moving or otherwise, or give any entertainment, vaudeville or otherwise, for the public whether an admission fee is charged or not, without first securing a permit to do so from the board of censors, or who shall show any picture or series of pictures or entertainment of any kind for which a permit has been refused, or who shall exhibit to the public any moving pictures or entertainment permitted on condition that eliminations be made, without first making such eliminations, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than twenty-five dollars nor more than two hundred dollars for each offense, and in addition the mayor, recorder or judge of the corporation court may suspend or z-evoke entirely the license of the person, firm or corporation owning or controlling such places of public amusement.”

There are other sections of said ordinance not necessary to be stated for the purposes of this opinion.

On the 4th day of November, 1915, appellants applied to 1-Ion. Win. Masterson, Judge of the Fifty-Fifth Judicial District Court of Harris County, Tex., for a writ of injunction to enjoin the city of Houston and certain of its officers from, prosecuting appellants for exhibiting moving pictures in said city without first obtaining a permit under the provisions of said ordinance. A temporary restraining order was granted by Judge Mas-terson, returnable to the sixty-first judicial district court of said county, and upon a hearing in said court the temporary restraining order was dissolved and the injunction prayed for denied. From this order and judgment Anthony Xydias and the other plaintiffs have appealed.

We are indebted to counsel for both parties for their very able, clear, and concise presentation of their respective contentions, and we shall avail ourselves of the information so ably furnished by the briefs of counsel, and shall take the liberty of quoting at length therefrom.

Appellants contend that the ordinance of the City of Houston, known as the ordinance creating a hoard of censors of the city of Houston, and prescribing their duties, which purports to regulate the exhibition of moving pictures in the city of Houston, is void and of no effect for the following reasons: First, because the ordinance is in conflict with the state law; second, because the ordinance attempts to delegate to the board of censors the arbitrary power and authority to permit ■or forbid the exhibition of .pictures by theater owners without reference to the character of the picture, there being no rule or regulation established by the ordinance for the guidance of the board of censors; third, because the ordinance, if enforced, would operate to suspend the state law; fourth, because the ordinance is unreasonable, vague, and indefinite; fifth, that plaintiffs are being arrested by the officers of the city of Houston for exhibiting moving pictures without obtaining a permit from the board of censors of the city of Houston, which greatly harasses and annoys plaintiffs, and which will subject them to numerous petty prosecutions under said ordinance, and deprive them of their property rights and privileges, to which they are entitled under the laws of the state of Texas, and that such arrests would result in great loss and damage to plaintiffs, and that they would be subjected to contin--ued petty prosecutions under said void ordinance, unless the defendants are restrained by writ of injunction. Under the contention above stated, appellants present the following propositions:

First. “The state of Texas has levied an annual occupation tax of $25 upon exhibitors of moving pictures, and authorized the city of Houston to collect one-half of this amount from persons pursuing the occupation of exhibiting moving pictures, and where a person has complied with the state law and city ordinance in this respect, the city has no lawful authority to require a person who has obtained his occupation tax from the state and city to obtain a permit from the board of censors of the city of Houston before he can lawfully exhibit moving pictures.”
Second. “The state of Texas has, by general law, prohibited the exhibition of any obscene, indecent, or immoral pictures by means of moving picture films, and the city of Houston has no power or authority to create a board of censors and authorize them to issue permits to exhibitors of moving pictures when in' the opinion of the board of censors the moving pictures are not obscene, indecent, immoral, or contrary to good morals or public decency or calculated to promote the same, because the permit of said, board of censors would not shield the person exhibiting such moving pictures from prosecution under the state law, and the city' of Houston cannot either forbid or permit the exhibition of an indecent, obscene, or immoral picture.”
Third. “Where the state of Texas has enaeted a law prohibiting the exhibition of immoral, obscene, and indecent pictures by means of moving picture films, the terms are sufficiently broad to comprehend and include pictures that tend to promote immorality, indecency, or obscenity, and the act includes within its meaning pictures that are calculated to promote or encourage racial and sectional prejudices; and, the penalty for the violation of the act imposed by the state being greater than can be imposed by the city of Houston, the ordinance of the city of Houston, forbidding the granting of a permit by the board of censors for the exhibition of moving pictures of the above-described character, is void, because the board of censors have no power or authority to grant or refuse a permit for pictures of this character.”
Fourth. “The city of Houston has no power or authority to create a board of censors with power and authority to grant or refuse permits for the exhibition of moving pictures, where the granting or withholding of the permits for the exhibition of pictures is wholly discretionary with the board of censors and there is no established rule or regulation by which the board of censors are to be governed as to when they shall or shall not grant a permit, and no requirement that the board shall grant a permit in any instance.”
Fifth. “Where the state has, by article 1265 and the subdivisions thereof of the Griminal Code, forbidden and penalized owners of moving picture shows for exhibiting' indecent, immoral, and obscene pictures, a city ordinance, forbidding the exhibition of a moving picture of any kind or character without a permit from the board _ of censors of the city, and penalizing a violation of the ordinance, is an unreasonable, and oppressive, regulation, because the city could not forbid or permit the exhibition of pictures denounced by a state law, and there is no reason in requiring persons engaged in the moving picture business to obtain a permit from the board of censors before the exhibition of the picture, and because it subjects an owner of a legitimate business, authorized by the state, wholly to the unregulated, arbitrary, and discretionary power and control of the board of censors of the city of Houston.”

We shall endeavor, by a general discussion of the whole case, to dispose of all of said propositions without taking them up separately in the order in which they are presented in appellants’ brief.

Section 5, art. 11, of the Constitution of the state of Texas, adopted November 5, 1912, provides as follows:

“Cities having more than five thousand (5000) inhabitants may by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitation as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state.”

Article 2 of the charter of the city of Houston, under the head of “General Powers,” adopted under and by virtue of the foregoing constitutional provision, provides as follows:

“Sec. 2. The city council shall have power to preserve and promote good government, order, security, peace, quiet, amusement, education, prosperity, and the general welfare of said city and its inhabitants.”
“Sec. 16. The city of Houston shall have power by ordinance duly passed to permit, forbid or regulate theaters, balls, dancehouses, and other public amusements, and to suppress the same whenever the preservation of order, tranquility, public safety or good morals may demand.”

These provisions are plenary, and are designed and effective for the purpose to confer upon the city council that necessary supervisory power, not merely to punish, but to prevent immoral exhibitions which the interest of public morals and decency demands.

The ordinance complained of in no way conflicts with or violates any limitations prescribed by the Legislature, nor does it contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state, but, on the contrary, it is entirely consistent with both the Constitution and legislative acts of this state pertaining to the powers conferred upon the city council of cities and towns • of over 5,000 inhabitants. Since the adoption of section 5, art. 11, of the Constitution, supra, by the sovereign people of this state in November, 1912, the city council does not derive its power to enact such ordinances as it deems necessary to prevent immoral exhibitions within its corporate limits from the Legislature, but it derives such power, directly from the sovereign people, and the only limitations placed on such power by said section is that said council shall not pass any ordinance inconsistent with the Constitution and general laws enacted by the Legislature of this state. Since the adoption of said constitutional section, there is no longer a necessity for the Legislature to confer power upon such city councils, but it may limit its powers only. In other words, the Legislature no longer delegates legislative power to such city councils. Rut, however, if such delegated power was needed, we find ample legislative authority in articles 873, 874, and 933 of the Revised Statutes of 1911, to authorize the city council to pass and enforce the ordinance in question. These articles provide that city councils shall have power:

“Art. 873. To license, tax, and regulate, or prohibit, theaters, circuses, the exhibitions of common showmen, and of shows of any kind, and the exhibition of natural or artificial curiosities, caravans, menageries, and musical exhibitions and performances.
“Art. 874. To authorize the proper officer of the city to grant and issue licenses, and to direct the manner of issuing and registering thereof, and the fees and charges to be paid therefor.”
“Art. 933. In all cases where, by any provision of this title, or by ordinances passed in pursuance thereof, a person is required to. obtain a license for any calling, occupation, business or avocation, and has, on complaint before the mayor or recorder, been adjudged guilty of violating any rules, regulations, or ordinance of the city council in relation thereto, the mayor or recorder, in addition to fine and imprisonment, or either, may suspend or revoke the license so granted.”

Moving picture exhibitions are subject to police surveillance and. control in the interest of public morals, and it is the right and duty of the city of Houston, under its express charter powers and under the general exercise of its police powers, to regulate, permit or forbid such exhibitions, and to this end to appoint a board of censors, clothed with such reasonable authority as is necessary to effect the purposes of their appointment.

The case of Block v. Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219, is one in which an ordinance providing for the regulation of moving picture shows, to secure decency and morality in the exhibition, and which made it unlawful for any person to exhibit moving pictures without first obtaining a permit therefor from the chief of police, and which made it the duty of the chief of police to refuse the permit if the pictures were immoral or obscene, Was upheld by the Supreme Court of Illinois. It was contended that the ordinance was unlawful because it discriminated against picture shows, in favor of other shows, and because it constituted a delegation of power .to the chief of police to permit, or refuse to permit, exhibitions. The Supreme Court of Illinois, in discussing the matter, says:

“The purpose of the ordinance is to secure decency and morality in the moving picture business, and that purpose falls within the police power. It is designed as a precautionary measure, to prevent exhibitions criminal in their nature and for-bidden by the laws. * * * The ordinance applies to five and ten-cent theaters such as the complainants operate, and which, on account of the low price of admission, are frequented and patronized by a large number of children, as well as by those of Smited means who do not attend the productions of plays and dramas given in the regular theaters. The audiences include those classes whose age, education, and situation in life especially entitle them to protection against the evil influence of obscene and immoral representations. The welfare, of society demands that every effort of municipal authorities to afford such protection shall be sustained, unless it is clear that some constitutional right is interfered with. The defendant by its charter has been vested with very extensive powers to enable it to accomplish the purpose of this ordinance. By clause 41 of article 5 it is authorized to license, tax, regulate, suppress, and prohibit exhibitions, shows, and amusements. * * * Clause 58 authorizes the defendant to regulate places of amusement. * * *
“It is al^o argued that the ordinance is void because it delegates legislative and judicial authority to the chief of police by giving him the power to determine whether a picture or series of pictures is immoral or obscene. * * * It is true that a legislative body cannot divest itself of its proper function to determine what the law shall be, but it may authorize others to do those things which it might properly, but cannot understandingly or advantageously do. * * ⅜ Without that power legislation would become oppressive and yet imbecile., and that local laws, almost universally, call into action to a greater or lesser extent the agency and discretion either of the people or individuals to accomplish in detail what is authorized or required in general terms. Government could not be carried on if nothing could be left to the judgment and discretion of administrative officers. ⅜ * ⅛
“But it is said that * * * the ordinance fixes no standard by which the question is to be determined. Manifestly it would be impossible to specify , in an ordinance every picture or particular variety of picture which would be considered immoral or obscene, and no definition can be formulated which would afford a better standard than the words of the ordinance. It is doubtless true, as said by counsel, that there are people who differ upon the subject as to what is immoral or obscene. There are the shameless and unclean, to whom nothing is defilement, and to whose point of view no picture would be considered immoral or obscene. Perhaps others could be found, with no laxity of morals, who pay homage to art and would not regard anything as indelicate or indecent which had artistic merit and would look upon any person entertaining different sentiments as of inferior intelligence, without proper training upon the subject and blinded with bigotry. Both classes are exceptional, and the average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented to him.”

In the case of the Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 233, 35 Sup. Ct. 38T, 59 L. Ed. 552, the Legislature had created a board of censors of moving picture films, and had provided, among other things, that the hoard should examine and censor all motion picture films to be publicly exhibited and displayed in the state of Ohio, for a fee to be chared by the board, and further provided:

“Only such films as are in the judgment and discretion of the board of censors of a moral, educational, or amusing and harmless character shall he passed and approved by such board.”

This act was attacked by plaintiff on the ground: First, that the Legislature had no power to interfere with the dissemination of information by pictures, because the same was a violation of freedom of speech and press; and, second, that the law was void as constituting. a delegation of legislative authority. On the first point, the court, while conceding that the pictures might have an educational value, said:

These films, however, “may be used for evil, and against that possibility the statute was enacted. Their power of amusement and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose, or if they should degenerate from worthy purpose. * * * Besides, there are some things which should not have pictorial representations in public places and to all audiences. And not only the state of Ohio, but other states, have considered it to be in the interest of public morals and welfare to supervise moving picture exhibitions. We would have to shut our eyes to the facts of the world to regard the protection unreasonable or the legislation to effect it a mere wanton interference of personal liberty. * * * The judicial sense supporting the common sense of the country is against the contention. As pointed out by the district court, the police power is familiarly exercised in granting or withholding license for theatrical performances as a means of their regulation” (citing many cases). “The exercise of the power upon moving pictures has been sustained” (citing cases, among them Block v. Chicago).

The court then, discussing the second complaint, that the legislative authority has been delegated, say:

“While administration and legislation are quite distinct powers, the line which separates exactly their exercise is not easy to define in words. It is best recognized in illustrations. Undoubtedly the Legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done, there would be infinite confusion in the laws, and in an effort to detail and to particularize, they would miss sufficiency, both in provision and execution. The objection to the statute is that it furnishes no standard of what is educational, moral, amusing, or harmless, * % * but the statute by its provisions guards against such variant judgments, and its terms, like other general terms, get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct. * * * Upon such sense and experience, therefore, the law properly relies. * * * If this were not so, the many administrative agencies created by the state and national governments would be denuded of their utility, and government in its most important exercises become impossible.”

In a case decided at the same term (Mutual Film Corporation v. George H. Hodges, Governor of Kansas, 236 U. S. 248, 35 Sup. Gt. 393, 59 L. Ed. 651), the statute attacked provided that:

“On and after the first of April, 1913, it shall be unlawful to exhibit or use any moving picture film or reel unless the same shall have been examined and approved by the superintendent of public instruction. * * * It is made the duty of such officer * * * to approve such as he shall find to be moral and instructive, and to withhold his approval of such as tend to debase or corrupt morals.”

This statute also was approved by the Supreme Court of the United States as a valid exercise of the police power. See, also, Higgins v. Lacroix, 119 Minn. 145, 137 N. W. 418, 41 L. R. A. (N. S.) 737; Ex parte Brous-sard, 74 Tex. Cr. R. 333, 169 S. W. 660; Bundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Wilson v. Eureka City, 173 U. S. 32, 11 Sup. Ct. 664, 35 L. Ed. 286; Dillon on Municipal Cor., vol. 2, § 598, and notes thereunder, and City of Waco v. Powell, 32 Tex. 258.

Appellants also contend that as they have paid the occupation taxes due to the state and city of Houston, for the privilege of conducting moving picture styows, the city of Houston has no lawful right to require them to obtain a permit from the city before exhibiting moving pictures. Such contention is untenable. It can hardly be seriously contended that by requiring the payment of a small occupation tax for the privilege of conducting such exhibitions the Legislature or the city of Houston intended to or did thereby forfeit the right of Houston to regulate such exhibitions under its charter and general police powers, nor that such payments had any such effect The authorities above cited refute any such contention.

Appellants further contend that as the state has, by an act of, the Legislature, made the exhibition of indecent, immoral, and obscene pictures a misdemeanor, punishable by fine, the charter powers of the city of Houston to create ,a supervisory board to prevent the exhibition of such indecent, immoral, and obscene pictures have been thereby repealed and abrogated. It was never intended by the Legislature, nor can such act of the Legislature have the effect, to deprive the city of Houston of the right granted, in its charter “to prevent, forbid or regulate” theatrical and kindred exhibitions in the interest of public morals. Such act of the Legislature neither directly nor by implication repeals, or undertakes to repeal or abrogate, the power of said city to regulate such exhibition. The Legislature has not undertaken to cover the whole subject-matter covered by the ordinance in question. The contention of appellants proceeds on tlie theory that the Legislature has undertaken to cover the field of regulation of moving pictures and other kindred exhibitions, thus excluding from the field the operation of municipal power and authority. No such condition ex. ists, but, on the contrary, the state merely by. one act provides for the amount of occupation tax that shall be paid to the state by a moving picture show, and by another act, passed in 1911, denounces the exhibition of indecent, immoral, and obscene pictures.

As to the occupation tax, it has been, settled by so many authorities and in such a conclusive way that the right to tax and the right to regulate under the police power are referable to entirely different theories or governmental control that it is needless to cite authorities on the proposition that the fixing of the occupation tax in a manner fixes or determines the right to fix a license fee under the police power, and to otherwise provide regulations for the conduct of a business subject to the exercise of the police powers. Among the most familiar subjects of judicial construction have been those ordinances and laws which have undertaken, in the exercise of police power, to fix license fees and regulate businesses which are lawful and permitted to exist, but which are still subject to the regulation of the police power. If appellants’ contention is correct, it would follow that whenever the state provides for an occupation tax to be paid by any character of amusement or calling, it thereby turns loose the citizen who has paid the tax freed from any of the restraints of police regulation as to the way and manner in which the calling shall be conducted, and free from tliose salutary restraints which the public health, safety, and morals require. Appellants have confused the power of taxation with the power of regulation and license.

Now, as to appellants’ contention that the act of 1911, denouncing as an offense the showing of pictures obscene, immoral, or indecent has deprived the city of Houston of its right to prevent such exhibitions under its supervisory authority. It will be noted that the cases relied on by appellants are illustrated by that of City of Houston v. Richter, 157 S. W. 189, which was a case in which the state, by its legislation, had undertaken to cover an entire subject or business, and to define the conditions under which it might be carried on. It has never been held that a city is ousted of its jurisdiction with reference to subject-matter by an act which does not undertake to discuss that subject-matter, or repeal a jurisdiction previously by statute conferred. The true rule is, where the state law speaks, the city ordinances must be silent; where the state law is silent, the city must speak. In the Richter Case, the state had provided for an examining board, and for all of the conditions necessary for the enjoyment of a license. In this case the state law undertakes no further to regulate the character of entertainment, or the character of the building in which it is to be exhibited, than to denounce as an offense the exhibition of immoral and obscene pictures. The city cannot declare an offense and fix a penalty for exhibiting immoral, obscene, or indecent pictures, because the state has already denounced that as an offense, and fixed the penalty upon it larger than the city can impose, big, the state has nowhere undertaken the establishment of a regulatory board of censors for the purpose of determining in advance whether the pictures are proper to be shown and of preventing and suppressing them before they are shown. The true principle controlling this case is announced by this court in Robinson v. City of Galveston, 51 Tex. Civ. App. 292, 111 S. W. 1076, in the concluding words of the opinion, in which the court says:

“There being no general law of the state upon this subject applicable to said city, the ordinance in question was a proper exercise of the powers conferred by the city charter, and must be upheld.”

In this case the Legislature has not provided for the regulation or supervision of these shows, has not appointed a board of censors or other persons to perform this essential service, and therefore, to use the language in the Robinson Case, “there being no general law of the state on this subject,” the ordinance showed proper exercise of the powers conferred by the city charter, and must be upheld.

What has been said fully disposes of all of appellants’ contentions; and, as we find no error in the judgment rendered in the trial court, the same is in all things affirmed.

Affirmed.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    CANALES et al. v. MULLEN, County Attorney.
    (No. 5706.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 22, 1916.
    Rehearing Denied April 26, 1916.)
    1. Intoxicating Liquors <®=32(1) — Local Option Election — Jurisdiction to Order-Petition.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5715, authorizing the commissioners’ court, whenever deeming it expedient,_ to order a local option election, and requiring it to do so when petitioned by 250 voters of the county, if it does so because of a petition only, the petition must be signed by the required number of legal voters of the county to give the court jurisdiction to make the order.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 38; Dec. Dig. <§=32(1).]
    2. Intoxicating Liquors <§=37 — Local Option Election — Contest—Extent op Inquiry.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5728, giving the court jurisdiction in a local option election contest, “to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto,” it is its duty, on proper pleadings, to inquire into the qualification of the signers of the petition bn which the election was ordered.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. @=»37.]
    Appeal from District Court, Jim Wells County; Y. W, Taylor, Judge.
    Local option election contest by A. C. Ca-nales and others against R. R. Mullen, County Attorney. From an adverse judgment, contestants appeal.
    Reversed and remanded.
    W. G. Love, of Houston, Walter G. Weaver, of Alice, and Love, Channel & Fouts, of Houston, for appellants. R. R. Mullen, I. A. Patton, and W. R. Perkins, all of Alice, and Dawson & Anderson, of Corpus Christi, for appellee.
   SWEARINGEN, J.

This is a proceeding to contest a local option election, held on the 6th day of November, 1915. The election resulted in favor of prohibition. The petition of the contestants A. C. Canales and others was filed in the district c'ourt on December 16, 1915, the county attorney of Jim Wells county being named as contestee. It was alleged that the commissioners’ court did not order the election because they deemed it expedient, but ordered the election because a petition so to do was presented to that c'ourt signed by as many as 250 voters in the county, and it was further averred that while the petition did contain as many as 250 signatures that in fact 69 of those were the signatures of persons who were not qualified voters; that, therefore, the order for the election, as well as the election, was invalid and void.

To this petition, contestee filed a general demurrer, contained in his first amended original answer. Contestants filed a first supplemental petition, making substantially the same issue pleaded in their original petition. To this supplemental petition contestee filed a supplemental answer, renewing the general demurrer, both to the original petition and the supplemental petition. The court sustained the general demurrer of the c'on-testee, and, contestants refusing to amend, judgment was finally entered against contestants, dismissing the suit. This appeal followed.

Appellants urge two assignments of error, the substance of which is that the court erred in sustaining the general demurrer of contestee and entering judgment dismissing the suit. The sole question presented by these assignments, and the proposition submitted thereunder, is that where the commissioners’ court is petitioned by the voters to order a local option election, that petition alone gives jurisdiction to the commissioners’ court to 'order tire election, and that if the petition itself does not comply with the requirement of the statute it fails to confer jurisdiction upon the commissioners’ court to order the election, and that the election is therefore void.

The commissioners’ court had exclusive power to order an election to determine whether the sale of intoxicating liquors should be prohibited within the county of Jim Wells. This power was given to the commissioners’ court by the Legislature, as shown in article 5715, Yernon’s Say les’ Civ. Stats. There have been several amendments to local option statutes, by which distinct changes were made in the law. The decisions construing the local option statutes can be harmonized only by bearing in mind the statute in force at the date of the opinion. The following summary may not therefore, be inappropriate.

In 1876 the Legislature made it the duty of the commissioners’ court of each county of the state to order an election for local option, upon the written petition of 50 qualified voters of the county. 8 Laws of Texas (Gam-mel’s) 862.

In 1879 the Legislature again amended the local option statute, but the amendment is not relevant to this discussion.

Construing this act 'of the Legislature of 1876 (Acts 15th Leg. e. 33), as amended by the Legislature of 1879 (Acts 16th Leg. c. 42), the Court of Appeals, in 1882, said:

“It is the petition that confers upon the commissioners’ court the jurisdiction to order the election. Without such petition that court would have no power to act in the matter, and an order made by it for such an election, without such petition, or upon an insufficient petition, would be a nullity, and the election held in pursuance thereof would be a nullity. If there was a petition in accordance with the requirement of the law, it would be easy to produce it in evidence. The law requires it to be filed with the clerk of the county court, and it should be found among the archives of his office. Suppose that when this petition is produced, and it is found to have been signed by 10 instead of 50 qualified voters of the county, would the election be a valid one, and in accordance with the laws of this state? We think not.” Prather v. State, 12 Tex. App. 401; McMillan v. State, 18 Tex. App. 375.

The statute of 1876, as amended in 1879, did not authorize the district courts to entertain jurisdiction of local option election contests.

In 1887 the commissioners’ court was authorized to order an election to determine whether or not the sale of intoxicating liquors should be prohibited whenever the court deemed it expedient, and that statute made it the duty of the commissioners’ c'ourt to order the election whenever petitioned so to do by as many as .200 voters in any county. 9 Laws of Texas, p. 96.

In 1887, for- the first time, courts of competent jurisdiction were given, by statute, authority to hear contests of local option elections. This statute directs that any qualified voter may contest local option elections in any court of competent jurisdiction, and that upon the trial if it should appear from the evidence that the election was illegally or fraudulently conducted, * * * the election would be held invalid. 9 Raws of Texas, 896.

In 1893 the local option statute was amended so as to authorize the commissioners’ court to order the local option election when the court deemed it expedient, and made it the duty of that court to order the election whenever petitioned by 250 voters of any county. The amendment of 1893 contains substantially the same article authorizing contests of local option elections as that of the act of 1887. 10 Laws of Texas, 478.

In 1897 the Legislature amended the first article of the local option election law which had been passed in 1893, but made no change material to this discussion. 10 Laws of Texas, 1289.

Construing the first article of the local option statute of 1887, as amended in 1S93 and 1897, several of the appellate courts of Texas held that, as power was given to the commissioners’ court to order a local option election whenever the commissioners’ court deemed it expedient, it would be presumed that the commissioners’ court acted upon its own motion to order an election, and that the commissioners’ court’s order of election was conclusive evidence that the court ordered it because it deemed it expedient to order it, even though it appear from the order itself that the commissioners’ court was induced to order the election by a petition, and these decisions of the appellate court hold that the irregularity of the petition for the election was immaterial, and the district court in contests of election cases could not inquire into the regularity of the petition for the local option election. Williams v. Davidson, County Judge, et al., 70 S. W. 987; Ezzell v. State, 29 Tex. App. 521, 16 S. W. 782; Lambert v. State, 37 Tex. Cr. R. 232, 39 S. W. 299; Loveless v. State, 40 Tex. Cr. R. 131, 49 S. W. 98.

In February, 1903, the Supreme Court of Texas, in an opinion by Judge Brown, held that “the contest of an election is a special proceeding authorized by the statute, and the courts are limited in their investigation to such subjects as are specified in the law,” and held that the local option statute then in force did not empower the district court to consider proceedings that occurred prior to the day of the election. Norman v. Thompson, 96 Tex. 250, 72 S. W. 63. The local option statute in force at the time this opinion was rendered was the act of 1887, as amended in 1893 and 1897. After the opinion was rendered in the Norman-Thompson Case, the Legislature, in 1907, amended the local option statute, and by that amendment made it the duty of the district court in local option election contests “to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto.” Vernon’s Sayles’ Stats, art. 5728.

Since this' amendment of 1907 there have been no decisions wherein the question herein considered has been directly involved, but in several opinions there are broad intimations that in contests it is proper to inquire into any irregularity in the petition for the election. Thompson v. State, 72 Tex. Cr. R. 6, 160 S. W. 686[5]; Sasser v. State, 73 Tex. Cr. R. 539, 166 S. W. 1163; Miller v. State, 72 Tex. Cr. R. 151, 161 S. W. 129[1]. In the law of 1907 it was provided that all laws or parts of laws in conflict with it are repealed. Cofield v. Britton, 50 Tex. Civ. App. 208, 109 S. W. 493.

After the Supreme Court decided that under the statutes in force in 1903 no inquiry could be made into proceedings antedating the day of the election itself, the order of the commissioners’ court for an election could not be reviewed, and proceedings preceding the order for an election which were required by the local option statute could not be reviewed by any court. Under that condition of the law, the commissioners’ court could ignore or comply with all the steps, or any of them, provided by the statute. If the commissioners’ court did not deem it expedient to order an election, but were deceived by a fraudulent petition for an election, the election would be ordered without any statutory authority, and yet there could be no redress or review because the order of the commissioners’ court itself, though fraudulently obtained, was to be taken as final. We believe it was to create a procedure to right such possible wrongs that the Legislature enacted the amendment of 1907. This act expressly authorizes the district court in any contest to inquire into the petition for the election. By this amendment of 1907 every step in a local option election ordered upon petition provided by the statute could be reviewed, and because of this power to review given to the district court, the commissioners’ court could be compelled to comply with all the requirements of the statute fairly and honestly, and could not, as prior thereto, ignore any of the statutory provisions.

Our construction of the present local option statute, which was last amended in 1907, is that the commissioners’ court alone can order a local option election; that this power to order the election can be set in motion in either one of two ways, viz., either because the commissioners’ court itself deems it expedient, or because a statutory petition makes it the duty of the commissioners’ court to order the election.

If the commissioners’ court ordered the election because of a voters’ petition, then that petition for a prohibition election signed by the requisite number of qualified voters of the county is essential to establish the fact that the commissioners’ court was legally invested with jurisdiction to order the election in the premises. This jurisdiction could be acquired by the petition only in the event it was in compliance with the statutory requirements, among which was that it should be the petition of 250 qualified voters.

In a contest of the election it is the right, of the contestee and the duty of the district court to inquire into the voting qualifications of the signers of the petition for the local option election when contestants make the qualifications of the signers an issue by proper pleadings.

Appellants in the case at bar, by their original and supplemental petitions, alleged that the petition for the local option election was not signed by 250 qualified voters in Jim Wells county, Tex.; that while the petition contained 297 signatures that 69 of those signing the petition were not qualified voters in Jim Wells county. This allegation was sufficient to entitle the contestants to an inquiry by the district court as to the truth or falsity of the allegation. If upon the trial it should be determined that the petition for the local option election was not signed by as many as 250 qualified voters of Jim Wells county, then and in that event the election should be declared invalid and void.

Our conclusion is that the trial court committed reversible error by its order sustaining the general demurrers of the contestee against the original and supplemental petitions of contestants, and that the judgment should be reversed, and the cause remanded.

Reversed and remanded.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered ijigests and Indexes


author: HALE, J.

text:
    ROBERTS v. ANTHONY et al.
    (No. 961.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1916.
    Rehearing Denied April 26, 1916.)
    1. Contracts @=>71(3) — Consideration.
    The agreement of a defendant in suit to foreclose vendor’s lien to waive service of citation not to contest his codefendant’s right to judgment against him, and not to bid upon the Iiroperty when sold under the judgment, was insufficient consideration, where defendant had no valid defense, for the codefendant’s agreement to bid in the property for defendant to sell at private sale for the best price obtainable to discharge the parties’ respective liabilities.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 319, 320; Dec. Dig. @=71(3).]
    2. Pleading @=34(3) — Sufficiency — Presumption.
    Every reasonable intendment must be presumed in favor of the sufficiency of a pleading demurred to.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. @=34(3).]-
    3. Pleading @=214(1) — Demubbek — Admission.
    Allegations of fact in a pleading are admitted by demurrer to be true.
    [Ed. Note. — Eor other eases, see Pleading, Cent. Dig. §§ 525, 529; Dec. Dig. @=214(1).]
    4. Garnishment @=216 — Intervention — Pleading — Sufficiency as against Demurrer.
    Allegations that R. bought land from A., assuming vendor’s lien notes given by A. to the original sellers, and, in suit against A. and R. to foreclose the vendor’s lien, R. agreed with A. that R. would waive service of citation, not contest A.’s right to recover judgment against’ R., and not bid upon the property, while A. agreed to bid it in and place it in R.’s hands for sale to extinguish their liability, and that A. did bid in the property, but subsequently refused to sell upon the agreed terms to a purchaser procured by R., while R. could and would have procured some one to purchase at the execution sale for the sum necessary to extinguish his liability, the property being worth that amount, were sufficient, as against general demurrer, to entitle R., intervening in garnishment proceedings by A. against R.’s debtor, to an accounting and adjustment of the matters between A. and R.
    [Ed. Note. — Eor other cases, see Garnishment, Cent. Dig. § 408; Dec. Dig. @=216.]
    5. Contracts @=10(1) — Mutuality of Obligation.
    Where there is no other consideration for a contract, the mutual promises must be binding on both parties, but, where there is any other consideration, mutuality of obligation is not essential to the validity of the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 21; Dec. Dig. @=10(1).]
    6. Contracts @=10(5) — Want of Mutuality —Cure.
    Where defendant, in suit to foreclose a vendor’s lien, undertook, as a land agent, to sell the land for the mutual benefit of himself and a codefendant, and procured at least one prospective purchaser, his services in so doing relieved of its want of mutuality, if any, the contract of the codefendant to buy in the property at execution sale and to sell to a purchaser procured by defendant.
    [Ed. Note. — For other cases, see Contracts, Dec. Dig. <¿=10(5).]
    7. Contracts @=10(5) — Want of Mutuality.
    Where R., defendant in suit to foreclose a vendor’s lien, contracted with his codefendant, A., who had sold the land to R., that R. would waive service of citation, would not contest A.’s right to recover judgment against him, and would not bid upon the property, while A. agreed to bid in the_ property at execution sale and thereafter sell it ■ to a purchaser procured by R., the proceeds to go to the extinguishment of their liabilities to the original seller of the land, such contract was not void for want of mutuality of obligation.
    [Ed. Note — For other eases, see Contracts,’ Dec. Dig. @=10(5).]
    8. Accord and Satisfaction @=25(2) — Pleading — Effect.
    Even if the contract sued on was void for want of mutuality, the allegation that there had been an accord and satisfaction between the parties rendered the petition good as against general demurrer.
    [Ed. Note. — For other eases, see Accord and Satisfaction, Cent. Dig. §§ 154, 155; Dec. Dig. @=>25(2).]
    Appeal from District Court, Potter County; I-Iugh L. Umphres, Judge.
    Garnishment proceedings by L. Anthony against H. T. McGee, in which W. S. Roberts intervened. From a judgment for plaintiff against the garnishee, the intervener appeals.
    Judgment reversed, and cause remanded.
    C. E. Gustavus, of Amarillo, for appellant. Ben H. Stone and E. T. Miller, both of Amarillo, for appellees.
   HALE, J.

July 13, 1911, David Eley and A. Davidson recovered a judgment in the district court of Potter county against Louis Anthony, W. S. Roberts, and E. B. Power, in the sum of $1,592.04, with a foreclosure of the vendor’s lien upon certain town lots in Amarillo. The judgment is also in favor of Anthony against Roberts and Power for $2,-392.32, and in favor of Roberts against Power for all amounts which the said Roberts might be forced to pay in satisfaction of the judgment. It is decreed that the land be sold and the proceeds distributed according to the rights of the respective parties, as fixed by the judgment. November 18, 1915, Anthony sued out a writ of garnishment based upon said judgment against H. T. McGee, of Lubbock county, alleging that McGee was indebted to W. S. Roberts, and in due time McGee filed his answer, admitting an indebtedness to Roberts in the sum of $940.31. Roberts intervened, and by his plea of intervention denied that he was indebted to Anthony in any amount exceeding $150, and other facts which will be hereinafter set out.

To this answer appellee filed a general and two special exceptions, which were sustained, and, appellant having declined to amend, the court dismissed the plea, and judgment- was rendered in favor of appellee Anthony against the garnishee McGee, for the amount admitted- to be due. The order of sale issued upon the original judgment shows that the property was sold for $2,500, Eley and Davidson were paid off, and the.judgment in favor of appellee credited with $787.70.

Omitting the formal parts, the pleading to which the general demurrer was sustained is as follows:

“II. This defendant, further specially answering the affidavit of the said Louis Anthony herein, for defense thereto, and for set-off and counterclaim to such alleged indebtedness, and for cross-action against the said Louis Anthony, shows to the court that the judgment referred to is not binding upon this defendant, that same has been paid, and that the said Louis Anthony is estopped from claiming any indebtedness thereon, and in the alternative that, if any amount is justly due and owing by this defendant on said judgment, it is only a small amount of approximately $150, for this:
“(1) That at the time said suit No. 1507, styled David Eley v. Louis Anthony et al., was filed, during the pendency thereof, at the time of the rendition of said judgment, and long thereafter, the most friendly, cordial, and cooperative relationship existed between this defendant and the said Louis Anthony, and this defendant fully and completely trusted and relied upon the statement, representations, and agreements of the said Louis Anthony, and had full faith and confidence in him.
“(2) That the lands and premises involved in said suit, in addition to the legal description contained in said judgment, was a tract of land 100 feet wide, fronting the east on Tyler street, between Sixteenth and Seventeenth streets, in Amarillo, Tex,, improved with a good and substantial seven-room house and other improvements, being a good and desirable residence location, having a rental value of about $40 per month, and of the reasonable value of not less than $4,000, and was a marketable and saleable piece of property; that defendant was in possession thereof, using and occupying the same as a tenant, and continued in the occupancy thereof until about March 1, 1912.
“(3) That about the time said suit was filed the said Louis Anthony came to this defendant, and they conferred together in reference to and to the end of mutually co-operating together in protecting their respective interest and liabilities in reference to said property; that said Louis Anthony having purchased the property from one Ira Webster and wife, and executed vendor lien notes in part payment therefor, and this defendant having later purchased same from said Louis Anthony, assuming the notes given by him, and executing to Louis Anthony certain vendor lien notes, and this defendant in turn having conveyed said property to E. B. Rower, who had assumed all of said notes, and who held the title to said property, said notes and transactions more fully appearing from the pleadings in said cause to which reference is here made, this defendant and the said Louis Anthony discussing such situation and agreeing upon a plan of letting judgment of foreclosure be rendered in said case, and a sale of said property be made under said judgment in the discharge of their indebtedness and respective liabilities, and thereby divesting title out of the said E. B. Power, as hereinafter more fully set forth.
(4)_ To this end and for this purpose the said Louis Anthony and this defendant verbally contracted, agreed, and arranged with each other that this defendant would waive service of process in the case as to the intervention and cross-action and answer in said suit, not contesting the demands of the respective parties, and that proper waiver and answer should be prepared for this defendant by the attorney for said Louis Anthony, thereby saving costs and expense in said suit, and that judgment in favor of the respective lienholders would be rendered by agreement, and over and against the parties respectively as their rights might exist, and that, when order of sale should be issued upon said judgment, the said Louis Anthony being able to protect said property and himself and this defendant in bidding same in at the sale by reason of this judgment, and not necessarily being out of money, an amount only sufficient to cover the judgments in favor of David Eley and A. Davidson, it was agreed and arranged that said Louis Anthony would attend the sale, and in the event some person did not bid an amount sufficient for said property to pay off and discharge the total indebtedness thereon, thereby relieving and protecting- the said Louis Anthony and this defendant from their respective liabilities, that the said Louis Anthony should bid in said property and have a conveyance thereof made to himself, and in that event that this defendant, who was engaged in the real estate business, should thereupon give his time and efforts to selling said property at a private sale for the best price obtainable in the discharge of their respective liabilities, and that, if a sufficient amount could be secured from such sale to discharge such liabilities, said judgment would thereupon and thereby be discharged, and, if said property could not be sold for an amount sufficient for such purpose, then that this defendant would pay and discharge to the said Louis Anthony the difference or any deficiencies, it being contemplated, understood, and agreed that this defendant could and would sell this property within a few months, or at any event within a reasonable time, which this defendant alleges would have been approximately six months, whereby, and in consideration of the mutual promises and agreements aforesaid, the said Louis Anthony and this defendant each became bound and obligated to the other to carry out and perform said contract, and each became the agent of the other in undertaking such plans and agreements.
“(5) That this defendant prior to, at the time, and at all times since was engaged in the real estate business in Amarillo, Tex., and was equipped for handling and selling said property, and, as before alleged, was occupying same, and could show, exhibit, and handle the sale thereof to the very best advantage and for the mutual benefit of the said Louis Anthony and himself and under the agreements aforesaid.
“(6) That to this end, for this purpose, and in carrying out said agreement, this defendant waived service of process in such cause as to the intervention and cross-actions, thereby saving the expenses of issuing and serving citation upon him, and this defendant having one O. A. AVright, Esq., who was acting as attorney for the said Louis Anthony, to prepare a waiver of process and the answer filed by him in said suit, and agreed to and acquiesced in the judgment rendered therein by agreement, and made no contest in said suit, all of which was known, understood, and agreed to by the said Louis Anthony.
“(7) That in pursuance of said agreement an order of sale was issued upon said judgment on or about August 8, 1911, and a sale of said property made by the sheriff of Potter county on October, 3, 1911, and the said Louis Anthony attended said sale and became the purchaser of said property for his bid of $2,500, and had said property conveyed to him.
“(8) That this defendant, relying and acting upon the agreement with the said Louis Anthony, did not attend said sale, made no efforts to procure any bidder upon said property, and fully acquiesced and relied upon the said Louis Anthony to become the purchaser thereof under the agreement aforesaid, and this defendant alleges that no other person bid upon said property except the said Louis Anthony; that this defendant could and would have procured some person to bid more for said property than $2,500, and said property was worth more than said sum, and was worth the total amount of said judgment, but, relying upon the agreement of said Louis Anthony, intrusted said matter fully and entirely to him.
“(9) That in compliance with this defendant’s agreement, and after the sale of said property and a report thereof by the said Louis Anthony to him, he undertook to find a purchaser to said property and within a short time, to wit, on or about December —, 1911, he did find and procure one F. M. Hedrick, who was ready, willing, and able to purchase said property at and for the price of $4,000, which sum was sufficient, or almost sufficient, to meet, repay, and discharge any and all liabilities imposed by said judgment, and reported such purchaser to the said Louis Anthony, who accepted the tender of service made by this defendant and of the said offer as a discharge of said judgment to the extent of $4,000, but then and thereafter declined to sell said property and accept said offer, but elected to retain and hold said property for a higher price.
“(10) That thereafter the said Louis Anthony and this defendant discussed such matters, and the said Louis Anthony only claimed a small balance of $200 or $300 owing to him by this defendant on said judgment, the exact amount of which was never figured and determined between them.
“(11) That by reason of the matters aforesaid this defendant became entitled to a credit of said $4,000, as against any. and all liability imposed upon him by said judgment, and the said Louis Anthony thereafter at sundry and divers times recognized the right of this defendant to such credit and discharge of said judgment, and only claimed a liability of this defendant upon said judgment of an amount of $100 or $200, the exact amount never having been fully determined, agreed upon, and adjusted between them.
“(12) That by reason of the facts aforesaid there has been an accord and satisfaction in favor of this defendant as against the said Louis Anthony for and to the extent of $4,000 offered for said property by the said P. M. Hedrick, and this defendant here alleges that, if said amount, upon an accounting and adjustment between them, is not sufficient to fully satisfy and discharge said judgment, that he is ready, willing, and able to pay the remainder owing to the said Louis Anthony, and he here tenders payment of the amount, if any, the court may find that he is due to the said Louis Anthony upon said judgment.
“(13) That by reason of the facts aforesaid this defendant says that the said Louis Anthony is in equity and good conscience precluded, and should now be estopped, from claiming the entire amount of said judgment against this defendant, and that this defendant should have credit for the said $4,000 offered for said property by the said P. M. Hedrick, and that this defendant, in carrying out his agreements with the said Louis Anthony, expended his time and efforts in behalf of the said Louis Anthony, which services were of the reasonable value of $200, for which defendant received nothing, and this defendant here pleads said matters in es-toppel of the claim and contentions ’of the said Louis Anthony.
“(14) That, except for the agreement, understandings, and arrangements aforesaid, this defendant alleges that he could and would have made an effort to have sold said property at private sale before said judgment was rendered and before the sale thereof at sheriff’s sale, and would have interested other persons in said property, and he alleged that by due and reasonable effort a purchaser for said property at private sale could have been secured at and for a price in the neighborhood of $4,000, and could thereby have discharged all or nearly all of his liability on account of the notes assumed and given by him and the amounts contained in said judgment, but, relying on the agreement of the said Louis Anthony, h^ did not do such things or make any effort so to do; that about March 1, 1912, after said matters had been mentioned and discussed with the said Louis Anthony, and the statements made by him that this defendant only owed a balance of some $200 or $300 on account of said judgment, he vacated said premises at the request of said Louis Anthony, and the said Louis Anthony thereafter at divers and sundry times recognized the discharge and release of this defendant, except as to said small amount; that the acts and conduct of the said Louis Anthony in now claiming the full amount of indebtedness under said judgment is fraudulent and unconscionable towards this defendant, and his present acts and conduct are fraud upon this defendant, a denial of his agency for this defendant, and an attempt to defeat this defendant of his material rights to protect himself from said judgment and from the sale of said property for the price of $2,500, for whiph this defendant now has no remedy, except the adjustment of account, credit upon said judgment, and estoppel of defendant, except to claim a small balance owing after credit of said $4,000.”

It will be observed that appellant alleges as a consideration for the undertaking of appellee that he would waive service of citation, would not contest the right of ap-pellee to recover judgment against him, and would not bid upon the property. These promises, in our opinion, do not constitute a sufficient consideration, since the pleading does not show that he had any valid defense to the action (Foster v. Ross, 33 Tex. Civ. App. 615, 77 S. W. 990); . but it is further alleged that it was agreed between the parties that appellant, as a real estate broker, should try to sell the premises after appellee had bought them in for their mutual benefit, and that appellee accepted the tender of his services. Appellant further alleges that but for their agreement he could and would have procured some one to purchase the property in at execution sale for $4,000, and that the property was worth that amount. It is further shown that in compliance with his agreement to procure a purchaser for the property at private sale he did procure one Hedrick, who was ready, willing, and able to pay $4,-000 for it, but that appellee subsequently refused to sell upon such terms. The petition further alleges an accord and satisfaction, and that appellee admitted the balance due him from appellant to be only about $100 or $200. The prayer is for an accounting and an adjustment of the matters between them, and, we think, was not subject to the general demurrer. Every reasonable intendment must' be presumed in favor of the sufficiency of the answer, and the'allegations of fact are by the demurrer admitted to be true.

Appellee insists that the petition is insufficient because it shows a want of mutuality, and that appellant was not bound to perform any of the undertakings upon his part set out in the pleading. As said in R. O. L. p. 686, “Contracts,” § 93:

“In many judicial decisions there may be found language to the effect that, in order that a contract may be enforceable, there must be mutuality. It has even been said that a contract implies mutual obligations. If by mutuality of obligation is meant, as some courts have suggested, that there must be an undertaking on one side and a consideration on the other, the necessity for its existence cannot be questioned; but if, as other courts have said, mutuality of obligation means that a contract must be binding on both parties, so that an action may be maintained by one against the other, the statement that mutuality of obligation is essential to every contract is too broad. * * * As a promise by one person is merely one of the kinds of consideration that will support a promise by another, mutuality of obligation is not an essential element in every contract. Therefore, to say the least, language which is susceptible of the interpretation that consideration and mutuality of obligation are two distinct elements lacks precision. Consideration is essential; mutuality of obligation is not, unless the want of mutuality would leave one party without a valid or an available consideration for his promise. The doctrine of mutuality of obligation appears, therefore, to be one aspect of the rule that mutual promises constitute considerations for each other. Where there is no other consideration for a contract, the mutual promises must be binding on both parties, but, where there is any other consideration for the contract, mutuality of obligation is not essential.”

In this case appellant undertook, as a land agent, to sell the property for their mutual benefit, and, the pleading shows, did procure at least one prospective purchaser and his services would relieve the contract of its want of mutuality if any existed prior thereto. Stanley v. Sumrell, 163 S. W. 697. In our opinion, the allegations do not show a contract void for want of mutuality. Taber v. Dallas County, 101 Tex. 241, 106 S. W. 332; Gammel-Statesman Pub. Co. v. Ben C. Jones & Co., 78 S. W. 21; Id., 100 Tex. 320, 99 S. W. 701; Id., 94 S. W. 191.

We think, aside from this issue, the allegation that there has been an accord and satisfaction between the parties would make the petition good as against a general demurrer. If the facts alleged in this connection are true, appellee would not be entitled to recover more than $200.

The judgment is reversed, and the cause remanded.
      @=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    BALDWIN v. W. H. COYLE & CO.
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1916.
    Rehearing Denied March 30, 1916.)
    1. Bills and Notes <®=o475 — Actions—Pleading — Allegation of Collateral AgbeeMENT TO A WkITTEN INSTRUMENT.
    An allegation of defendant’s answer that before he signed the notes described in plaintiff’s petition, he protested that the sum due was less than the amount claimed by the plaintiff and evidently contained purchases made by other persons and charged to defendant, that he had often asked for a complete itemized account, which was promised, and that he signed the notes believing said statement would be furnished and an adjustment made, does not set up either a collateral agreement nor a more comprehensive agreement, whereby the notes were delivered in part performance of an entire oral agreement.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1514-1518, 1556; Dec. Dig. <§^475. ]
    2. Evidence ⅞=402 — Parol Evidence — Admissibility.
    Where plaintiff, holding a claim against defendant, made a demand for payment, and the defendant admitted the debt but differed as to the amount, but finally adjusted the disputed claim by giving his note for the amount claimed by the plaintiff, in the absence of an allegation of fraud, accident, or mistake, parol evidence was not admissible to vary or alter the terms of the written contract to pay.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1799-1806; Dec. Dig. <®=^402.]
    Error from Harris County Court; C. C. Wren, Judge.
    Suit by W. H. Coylé & Co. against Jacob C. Baldwin. Judgment for the plaintiff, and defendant brings error.
    Affirmed.
    Baldwin & Baldwin, of Houston, for plaintiff in error. A. T. Carleton and W. E. Tar-ver, both of Houston, for defendant in error.
   McMEANS, J.

H. Coyle & Co. brought this suit against Jacob C. Baldwin upon two promissory notes executed by the defendant to plaintiff, for $98.90 and $98.80, respectively, and for stipulated interest and attorney’s fees. Defendant, after pleading a general denial, further pleaded as follows:

“That plaintiff is and was engaged in the printing and stationery business for several years, during which time the defendant has run an open account with the plaintiff. Defendant says that he relied upon the plaintiff keeping a true and correct account of all purchases made by the defendant, and before he signed the note described in plaintiff’s petition, he protested that the sum due the plaintiff was much less than the amount claimed by the plaintiff, and evidently contained purchases, made by other persons and charged to this defendant, which should not have been included in said account. That he had often asked, and has since asked, for a complete itemized account, which was promised, but which has never been furnished this defendant, and he signed said notes, believing such a statement would be furnished and adjustment made. The defendant further shows that he did not owe, and does not now owe, the plaintiff the sum of money appearing on the face of said notes by a large amount, the amount of which he does not know, and that the account which the plaintiff claimed was owing to them by the defendant included an account against one R. B. Baldwin, as will appear from the books belonging to plaintiff, the exact amount of which is unknown to this defendant, for which he is not liable and for which he never agreed to pay. Defendant prays that plaintiff be required to produce their books upon the trial of this cause, and make out and file an itemized account of all purchases ever made by the defendant from plaintiff with all payments thereon, together with an itemized statement of all purchases made by R. B. Baldwin, or any other person, which has been charged to the account of this defendant, to the end that the exact amount thereof may be established, and this defendant given credit therefor, so that it might be determined what amount, if any, is now due the plaintiff, by reason of all of which the consideration for said notes has failed. Defendant prays that plaintiff take nothing herein, and that he be required to render an accounting as herein prayed for, for costs of court, and for general and special relief.”
To the above pleading of the defendant the plaintiff filed the following special exception:
“Plaintiff further excepted specially to that part of defendant’s said answer wherein it is alleged that ‘before he signed the notes described in plaintiff’s petition, he protested that the sum due the plaintiff was much less than the amount claimed by the plaintiff, and evidently contained purchases made by other persons and charged to this defendant, which should not have been included in said account,’ because the same shows upon its face that there was a consideration for the execution of said notes, viz., the adjustment of some claim that the plaintiff had against the defendant, and the notes executed by defendant in the discharge and extinguishment of a preexisting claim, and of this exception plaintiff prays judgment of the court.”

This exception was sustained by the court, and, the defendant declining to amend, and the .plaintiff having introduced in evidence the notes sued on, judgment was rendered for plaintiff, and the defendant has appealed.

The first assignment of error complains of the action of the court in sustaining the special exception. Defendant contends in his proposition under this assignment that:

“An answer setting up a collateral agreement and understanding between the parties to certain notes which does not vary, alter, or contradict the terms thereof, but showing a more comprehensive agreement whereby the notes were delivered under certain conditions, and alleging a failure of consideration, entitles that party to be heard in his defense.”

It is true that the general rule which excludes parol evidence, when offered to vary the terms of a written instrument, has no application to collateral undertakings or in cases in which the written instrument was executed in part performance of an entire oral agreement. Peel v. Giesen, 21 Tex. Civ. App. 334, 51 S. W. 44, and authorities cited. We might therefore admit the legal soundness of the proposition without in any wise disturbing the judgment appealed from because the facts alleged in defendant’s answer are not sufficient to require or permit the application of the principle invoked. The answer sets up neither a collateral agreement, non that there was a more comprehensive agreement whereby the notes were delivered in part performance of an entire oral agreement. The only construction, and possibly the strongest construction, in favor of the defendant that can be put on the answer is that at the time he signed the notes the defendant thought, and still thinks, that the account, for which the notes were given in settlement, was larger than he owed, and that he signed the notes expecting that plaintiff would furnish him with an itemized statement of its account, and that plaintiff promised to furnish such a statement to him. There was no allegation that the plaintiff promised that, in the event the itemized statement showed the defendant owed less than the amount for which the notes were given, or that some of the items charged to him should have been charged to other persons, an adjustment would be made or credits entered upon the notes. Neither fraud, accident, nor mistake in the execution of the notes was alleged. The case as presented is one, simply, where a creditor holding a claim against a debtor makes demand for payment, and the debtor, not claiming that he owes nothing, but claiming only that the amount claimed is too large, finally adjusts the disputed claim by giving his notes for the amount claimed by the creditor. In such circumstances parol evidence, in the absence of an allegation of fraud, accident, or mistake, is not admissible to vary or alter the terms of the written contract to pay. Hunter v. Lanius, 82 Tex. 677, 18 S. W. 201; Jackson v. Chemical Nat. Bank, 46 S. W. 296; Murray Co. v. Putman, 130 S. W. 632. The assignment is overruled.

The second and third assignments are sufficiently disposed of by what we have said in disposing of the first.

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Affirmed.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes