author: WALTHALL, J. HIGGINS, J. WALTHALL, J. WAETHALU, J.

text:
    LINDSAY v. COLLINGS.
    (No. 502.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 13, 1916.
    Rehearing Denied Feb. 10, 1916.
    On Motion to Certify, Feb. 10, 1916.)
    1. MORTGAGES <&wkey;560 — ACTION ON SECURED Debt — Law Governing.
    A California note secured by mortgage on real estate there is governed by Code Civ. Proc. Cal. § 726, providing that there can be but one action on a debt so secured, an action of foreclosure with ascertainment of any deficiency, so that, such action having been brought, and nothing realized, because of a prior mortgage, though the mortgagor was not a resident of that state so that a personal judgment could be obtained against him, action cannot thereafter be maintained on the note in Texas.
    [Ed. Note.' — For other cases, see Mortgages, Cent. Dig. § 1604; Dec. Dig. <&wkey;>560.]
    Higgins, J., dissenting.
    On Motion to Certify.
    2. Courts <&wkey;247 — Jurisdiction—Certified Question.
    Rev. St. 1911, arts. 1521, 1522, as amended by Acts 33d Leg. c. 55, providing that causes in which the judges of the Court of Civil Appeals may disagree on a question may be carried to the Supreme Court by certificate, do not apply to a case originating in the county court; article 1591 malting final judgment of the Court of Appeals therein.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 751, 754; Dee. Dig. &wkey;247.]
    Appeal from Reeves County Court; Ben Randals, Judge.
    Action by A. Y. Lindsay against E. L. Col-lings. Judgment for defendant, and plaintiff appeals.
    Affirmed, and motion to certify overruled.
    Buck & Fleming, of Pecos, for appellant. J. W. Parker, of Pecos, for appellee.

       Writ of error pending in Supreme Court.

   WALTHALL, J.

This suit was brought in the county court at law of Reeves county, Tex., by appellant, A. Y. Lindsay, a resident' of the state of California, against appellee, E. L. Collings, a resident of the state of Texas, and is an action to recover upon a promissory note, executed, delivered, and made payable in California, in the sum of $500, interest and attorney’s fees. Appellee admitted the following facts pleaded by appellant: The execution and delivery of the note payable to appellant in California; the execution and delivery to appellant of a certain mortgage on certain real estate in California, described in the petition, given to secure said note, and all of the terms and provisions of said mortgage as pleaded (copying the note there sued on in the body of the mortgage); that the said mortgage was a subsequent and second lien on said property and subject to a certain note for $1,500 signed by appellant and payable to Lula Mae Taylor, and that appellant took said second mortgage lien to secure the payment of the $500 note sued on; that thereafter Lula Mae Taylor brought suit in California against appellant, appellee, and others to foreclose the first mortgage lien on said property; that in said foreclosure suit appellant entered his appearance and filed a cross-action against appellee and others named, for the purpose of foreclosing his said second mortgage lien on said property and paying said $500 note, interest, and attorney’s fees; that appellant was cited to appear and answer said suit and cross-action, but made no answer; that the said property was sold under order of the California court in said suit, but for an amount insufficient to pay any part of said $500 note; that no part of said $500 has ever been paid; that at the time of bringing said California suit appellant was a resident of Texas, and no personal judgment was had on him in said suit; that appellant has employed attorneys to bring this suit, and has contracted to pay a fee of $75, which is a reasonable fee. Further answering, appel-lee denied that the Lula Mae Taylor $1,500 note had not been paid; alleged that the $500 here sued on and the said second mortgage lien were executed and delivered in California and made payable to appellant in California, and that the entire transaction was one and was entered into in said state, and that appellant sued appellee upon said note and trust or mortgage lien in California, and ih said suit obtained a decree of foreclosure of said second mortgage lien on said property. Appellee further pleaded section 726 of the Code of Civil Procedure of California, which is in part as follows:

“726. There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct the sale of the incumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney’s fees, such sum for such fees as the court shall find reasonable, not exceeding the amount named in the mortgage.”

Appellee further pleaded the interpretation given said section 726 by the Supreme Court of that state, and introduced in evidence the following opinion in Meyer v. Weber, 133 Cal. 682, 65 Pac. 1111:

“The Woodbridge Canal & Irrigation Company, a corporation, being indebted to the plaintiff in the sum of $3,280, on -July 28, 1894, executed to the plaintiff its promissory note for that amount, and, to secure the same, at the same time executed its mortgage upon a tract of land in San Joaquin county, and also at the same time, as further security, indorsed and assigned to the plaintiff the note and mortgage in suit. The note reads as follows:
“ ‘$1,963.66. Woodbridge, Cal., May 28, 1894.
“ ‘Ten years after date we promise to pay to the Woodbridge Canal & Irrigation Company, or order, the sum of nineteen hundred sixty-three and eo/ioo dollars, payable only in gold coin of the government of the United States, for value received, with interest thereon, in like gold coin, at the rate of 6 per cent, per annum from date until paid. Interest payable annually, on the 1st day of September, of each year, and in default of payment at said times the same to be then added to the principal and form a part thereof, bearing interest at the same rate.
“ ‘This note is secured by a mortgage of even date herewith. Helen Weber.
“ ‘C. M. Weber.
“ ‘Julia H. Weber.’ ”
“Although the note is dated Hay 28th, it was not delivered until June 15th, at which time the mortgage to secure the same, and referred to in the note, was executed and delivered to the said corporation, the Woodbridge Canal & Irrigation Company. The plaintiff subsequently brought an action to foreclose the mortgage executed to her by the Woodbridge Canal & Irrigation Company, and such proceedings were therein had that a decree of foreclosure and sale was rendered, and thereupon the property mortgaged sold and applied on the judgment, leaving a deficiency of $2,639.49. Thereupon plaintiff brought the present action to foreclose the mortgage assigned to her.
“The defense is that the consideration for the note and mortgage was an agreement in writing entered into between the makers and the payee, the Woodbridge Canal & Irrigation Company, that said company should construct a ditch from the main canal, or branch thereof, to the line of the land of the Webers, being the same described in the mortgage, of sufficient size and election to allow the irrigation of said land,- and flow the water to said land for the purposes of irrigation, and that said company never at any time constructed a ditch or branch canal to the land for which the water was to have been furnished, and that no water has at any time been brought to the said land; that said Woodbridge Canal & Irrigation Company became insolvent on or about October 5, 1895, and was thereafter deprived of the possession of all of its works, canals, and property, by reason whereof the said company was, and ever since has been, rendered incapable of performing its contract with said defendants Weber, and that in consequence the consideration of said note and mortgage has totally failed.
“The court finds the facts as set up in the answer of defendants Weber, that the note and mortgage in suit were made and delivered to said company in pursuance of the terms and conditions of said agreement; that the company never at any time constructed a ditch or branch of any size to the land in question, and no water has at any time since the making of said agreement been brought to said land by said company; and that the consideration of said note and mortgage has failed. Upon the findings of fact the court entered judgment in favor of said defendants.
“The appeal is on the judgment roll, and the only question .presented is whether the instrument in suit is. a negotiable promissory note, within the meaning of the Civil Code. The appellant contends that it is, and that it must be considered separate from and independent of the mortgage given to secure the same; that the clause ‘this note is secured by mortgage of even date herewith’ may be disregarded, as forming no part of the obligation to pay as specified in the note. But the mortgage was delivered at the same time as the note, relates to the same subject-matter, and they form, substantially, one transaction. They must therefore be taken and considered together. Civ. Code, § 1624. The plaintiff recognizes this to be so from the very fact of bringing the action. By the note on its face it had ten years to run, and the only consequence of the failure to pay the interest annually was that it should be ‘added to the principal, and form a part thereof, bearing interest at the same rate.’ But by the mortgage given to secure the note it is provided, in case default be made in the payment of ‘any installment of interest, as provided in said note, then the whole sum of principal and interest shall be due, at the option of the said party of the second part, its successors or assigns; and suit may be immediately brought, * * * although the time for payment of said principal sum may not have expired ;’ and it is provided that costs and charges may be included in the decree of foreclosure, ‘including reasonable counsel fees.’ Counting upon the terms of the mortgage, and not of the note, as distinguished therefrom, the plaintiff alleges a failure to pay the interest, and an election to consider the whole amount due, and further alleges the employment of an attorney to secure its foreclosure, and asks for a reasonable sum to be fixed as his fee. In Phelps v. Mayers, 126 Cal. 549 [58 Pac. 1048], the defense was that the suit was prematurely brought, on the ground that the note in suit did not provide that the principal debt should be due on default in payment of interest, and that hence a foreclosure for both principal and interest was unwarranted. That contention is answered as follows by this court: ‘The note and mortgage, however, must be construed together. Interest on the note is payable semiannually, and the mortgage is clear that upon default in the payment of the interest equally with default in the payment of the principal the mortgagee may cause the premises to be sold, and retain from the proceeds “the said principal and interest.” There is scarcely room for interpretation in these provisions.’ See, also, Nagle v. Maey, 9 Cal. 426; Hyde v. Mangan, 88 Cal. 320 [26 Pac. 180], An independent action on a promissory note secured by mortgage is prohibited in this state. ‘There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter’ (Code Civ. Proe. § 726); that is, by a suit to foreclose, and a sale of the mortgaged premises, and ascertainment of the deficiency, if there be any (Toby v. Oregon Pacific R. R. Co., 98 Cal. 494 [33 Pac. 550]; Hibernia Savings and Loan Society v. Thornton, 123 Cal. 62 [55 Pac. 702]). Whatever the form of the debt, the mortgagor can be legally compelled to pay no part of it until the decree is entered for the sale of the premises mortgaged, and the liability which shall then accrue to him is a liability to pay only a deficiency which shall appear on the sheriff’s return. The liability is therefore contingent, and dependent upon the fact whether upon the sale of the mortgaged premises there shall be a deficiency. The plaintiff in this case, in bringing the suit, recognized the fact that the mortgage was inseparably connected with the note. As already stated, according to the terms of the note, independent of the mortgage, the action would have been prematurely brought, and at the time it was brought it could only be sustained by reference to the clause in the mortgage giving an option to the owner, in case of default in the payment of interest at the time specified, to consider the whole debt due. Being inseparably connected with the mortgage, and affected by the conditions contained therein, the note is not negotiable, within the law merchant or Civil Code. Kent, under the head of ‘The Essential Qualities of Ne--gotiable Paper,’ says that, to constitute a negotiable note or bill, ‘it is essential that it carry with it a personal credit given to the drawer or indorser, and that it be not confined to credit upon any future or contingent event.’ 3 Kent’s Commentaries. ‘A negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment.’ Civ. Code, § 3088. * * * In Adams v. Seaman, 82 Cal. 636 [23 Pac. 53, 7 L. R. A. 224], in commenting upon these provisions of the Civil Code, it is said, ‘An instrument is not negotiable if it have any condition not certain of fulfillment,’ and it was held that a provision for the payment of an attorney’s fee in case of foreclosure was a contingency rendering the note nonnegotiable.
“The assignment and transfer of the note and mortgage in question, therefore, was without prejudice to any set-off or other defense existing in favor of the defendants Weber, the same as though there had been no assignment, and the action had been brought by the company to whom they were given. Civ. Code, § 1459 ; Code Civ. Proc. § 398. As the findings of the court show an utter failure of consideration as between the original parties, judgment properly followed in favor of the defendants.
“Judgment affirmed.”

In addition to the above, we make following quotation from the case of Toby v. Oregon Pacific R. R. Co., 98 Cal. 490, 33 Pac. 550, a California Supreme Court opinion, construing said section 726 and introduced as evidence on the trial:

“Under that section there can be but one action for the recovery of any debt, etc., which must be in accordance with the provisions of that chapter. It further provides that a personal judgment may be entered for a balance remaining due, if the proceeds of the incumbered property shall be insufficient, etc. To confine a recovery in such classes to one action, to make the mortgaged property the primary fund out of which satisfaction is to be had, and to give the plaintiff a personal judgment for such balance as may remain due after the exhaustion of the mortgaged property, are the three essential things provided for.”

The ease was tried without a jury. Judgment was rendered for appellee. The trial court made and filed findings of fact and conclusions of law. The facts found by the court are substantially the facts pleaded; there being no controversy as to the facts. Appellant excepted to the trial court’s conclusions of law', filed a motion for a new trial, and, same being overruled, gave notice of appeal. Appellant presents four assignments of error, all going to the question of the judgment that should have been entered.

Personal contracts are governed by the laws of the place where made, unless a different place is fixed by the contract for its performance. Jones v. National Cotton Oil Co., 31 Tex. Civ. App. 420, 72 S. W. 248; Cantu v. Bennett, 39 Tex. 303. In Shreck v. Shreck, 32 Tex. 588 (5 Am. Rep. 251) it is said:

“It is certainly a general principle that in judicial actions upon contracts the law of the place where the contract was made governs in determining its construction, obligation, and enforcement, its validity or invalidity.”

It is impossible to consider a contract separately from the remedy given by the law of its enforcement, because it is this that supplies it with legal vitality. The law is the' essential factor in every contract, and is presumed to be considered by the parties in their deliberations. Among the elements of a contract nothing is more important than its means of enforcement. It is a branch of its vital existence — the thing that gives it life. Without it the contract ceases to be. In maters of contract the ideas of right and remedy are inseparable. Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 795, 31 N. E. 581, 51 Am. St. Rep. 229. The statute invoked provides an absolute defense in the state where the contract was made; therefore it must be so held in the state where the suit was brought.

It seems to us and from what has been said that, under the section of the California Code above quoted, and the interpretation of the section by the Supreme Court of that state, had this suit been filed in California, the suit filed by appellant seeking and obtaining an order foreclosing the second mortgage given to secure the note sued on here, the note and mortgage being one and the same transaction, would be a perfect defense to this suit. True, appellant in that suit, appellee at that time being a resident of Texas, could not have a personal judgment against appellee for any unpaid deficiency remaining. But appellant had before him his remedies at the time of filing his suit in California. He could there foreclose his mortgage and purchase appellee’s right of redemption, or he could sue in Texas and recover a personal judgment against appellee. 1-Ie elected to pursue the former. To give the appellant a second suit would be to give him a right he did not have in California, the forum of the transaction. Appellant’s right to sue was limited by the law of the place where made to one action. By his suit there he exhausted that right. This state evidently could not widen his right, or give him one that does not go with his contract. This state could do no more by comity than to furnish him a forum and procedure in which to exercise and enforce a right given him by reason of his contract, and that right is construed and limited by the law of the place of its making.

We are of the opinion that the trial court was not in error in entering judgment for. appellee.

The case is affirmed.

HIGGINS, J.

(dissenting). I am of opinion that section 726 of the California Code has no application to this suit brought in Texas, and that judgment should have been rendered for appellant. Very briefly stated, my views are:

The law of Texas applied to the facts of this case would not prevent a recovery. The laws of California, if applicable, will prevent recovery. The question thus reduces itself to a determination of whether the laws of Texas or California shall prevail,

It is well settled that the construction and validity of a contract is governed by the law of the place where it is made. But it is universally conceded that the affording of remedies in one state for enforcing a contract made in another depends entirely upon judicial comity and that the remedies and procedure are therefore governed entirely by the lex fori. In other words, the lex fori prevails over all other laws so far as concerns matters that relate to the remedy as distinguished from the substantive contract. 5 Ruling Case Law, pp. 931, 942, et seq.; cases cited in 4 Michie, Ency. Dig. p. 260; 9 Cyc. 690 et seq.; 2 Parsons on Contracts (9th. Ed.) p. 588; 2 Wharton Conflict of Laws (3d Ed.) § 675a; 3 Am. & Eng. Ency. Law (1st Ed.) 576; 2 Bouvier’s Law Dictionary (3d Ed.) 1910.

The portion of section 726 of the California Code pertinent to the question considered is quoted in the majority opinion, and it is unnecessary to repeat same. .As X construe same and the rest of the section, it relates purely to the remedy and matters of procedure connected therewith. It does not in any wise affect the substantive contract between the parties.

It may be conceded that, where the remedy provided by the lex loci affects the validity and obligation of a contract, the same is imported into and becomes an essential part of the contract Thus, while the question of limitation of the time for bringing an action is ordinarily a matter of remedy and is governed by the lex loci, it is otherwise when the limitation becomes incorporated into the cause of action as a part or condition thereof. In other words, statutes of limitation, unless they discharge a debt, go to the remedy merely and questions arising under them are to be determined by the law of the forum. 9 Cyc. 691, and cases there cited. This same rule is applied by some of the courts as to contracts falling within the statutes of fraud of the state where made, but which would be valid under the law of the forum. In this ease the statutes of fraud of the lex loci are regarded as affecting the validity and obligation of a contract, rather than the remedy upon same. The cases of Jones v. National Cotton Oil Co., 31 Tex. Civ. App. 420, 72 S. W. 248, and Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 795, 31 N. E. 581, 51 Am. St. Rep. 229, referred to in the majority opinion, fall within this category.

The doctrine upon which this class of cases rests is well stated in Cochran v. Ward, as follows:

“There can be no doubt, we think, that to the extent that the remedy affects the validity and obligation of a contract it is imported into and becomes an essential part of it, and characterizes it whenever it is the subject-matter of litigation. * * * This doctrine does not conflict with the general rule that in matters of procedure the lex fori controls. ‘Procedure,’ in this connection, applies to the nature of the action, as whether it shall be covenant, assumpsit, debt, etc., to the rules of pleading and evidence, the order and manner of trial, and the nature and effect of process, and perhaps to all other matters of remedy only which are not incorporated into the contract as affecting its nature and obligatory character.”

It will be readily seen, as is expressly stated in Cochran v. Ward, that these are not even exceptions to the rules relating to the lex loci and lex fori. They merely furnish illustrations that in some instances the remedy becomes a part of and affects the validity and obligation of a contract. These and many other cases to like effect are distinctions, and not exceptions to the rule. For discussion of the subject, see 2 Wharton on Conflict of Laws (3d Ed.) §§ 675a, 676, et seq. The distinction is also pointed out in 5 Ruling Case Law, p. 942, in referring to Cochran v. Ward.

I regard said section 726 as affecting the remedy and procedure merely as to actions brought in California for the recovery of any debt or the enforcement of any right secured by mortgage, and that the same in no wise affects the validity, obligation, or right under the contract. This being its nature, it can have no extraterritorial effect, and the right of Lindsay to bring this suit in Texas to recover a personal judgment upon the note, which he was unable to obtain in the California suit, is not affected thereby. There is nothing in the law of Texas which would prevent him from pursuing his remedy by this suit to obtain such a personal judgment, and, in my opinion, it is error to apply the provisions of section 726 of the California Code and deny a recovery.

On Motion to Certify.

WALTHALL, J.

Appellant has filed a motion to certify in this case, based upon the dissenting opinion of Associate Justice E. F. HIGGINS.

This is a county court case. Upon an examination of chapter 8, tit 32, R. S. 1911, relating to the certification of questions to the Supreme Court, it will be observed there are three separate articles of the statute relating to certification. One of the articles is 1619, formerly 1043, which gives to the Court of Civil Appeals the right to certify questions in any case pending in said courts whenever there arises an issue of law which it should deem advisable to present to the Supreme Court for adjudication. Under this article of the statute it was Immaterial whether the case was a district or county court case. Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567.

By article 1620, R. S. 1911, formerly 1040, it is provided that, when any Court of Civil Appeals shall in any cause render a decision in which any one of the judges therein sitting shall dissent as to any conclusion of law material to the decision of the case, and said judge enters the ground of his dissent of record, then said court shall, upon motion of the party to the cause, or on its own motion, certify the point or points of dissent to the Supreme Court. In cases governed by this article of the Revised Statutes of 1911 a case which originated in the county court could not be certified to the Supreme Court; it having been held in Herf v. James, 86 Tex. 230, 24 S. W. 396, that the judgment of the Court of Civil Appeals in such a case is final, and the Supreme Court would have no jurisdiction thereof.

By article 1623 of the Revised Statutes of 1911 provision is made for certification whenever any one of the Courts of Civil Appeals arrives at an opinion in the decision of a case which may be in conflict with an opinion theretofore or thereafter rendered by some other Court of Civil Appeals on any question of law, and such court refuses to concur with the opinion in conflict with the opinion so arrived at by the first-mentioned court.

By chapter 55 of the General Laws of the Thirty-Third Legislature certain statutes relating to the jurisdiction of the Supreme Court were amended, and article 1521 of the Revised Statutes was amended so as to read as follows:

“The Supreme Court shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following cases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts:
“(1) Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision.
“(2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any such question of law.
“(3) Those involving the validity of statutes.
“(4) Those involving the revenue laws of the state.
“(5) Those in which the Railroad Commission is a party.
“ (6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case, in which ease the Supreme Court shall take jurisdiction for the purpose of correcting such error.”

And article 1522 of the Revised Statutes was amended so as to read as follows:

“All causes mentioned in .article 1521 .may be earned to the Supreme Court either by writ of error or by certificate from the Court of Civil Appeals as elsewhere provided, except those mentioned in subdivision 6, which must be presented by application for writ of error.”

In the case of Bank v. Powell (Tex.) 163 S. W. 581, it was expressly held by the Supreme Court that it had jurisdiction by certified question in no case except it be embraced in one of the first five subdivisions of article 1521. We must therefore look to the provisions of article 1521 as amended to determine whether or not the Supreme Court would have jurisdiction in this case by certified question. By the first subdivision of said amended article it is to be observed that the Supreme Court has jurisdiction by certified question in those cases in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision. This subdivision corresponds to article 1620 of the Revised Statutes. By subdivision 2 of amended article 1521, it is to be observed that the Supreme Court has jurisdiction by certified question in those cases in which one of the Courts of Civil Appeals holds differently from a prior decision of its own or of another Court of Civil Appeals or of the Supreme Court upon any such question of law. This subdivision corresponds to article 1623 of the Revised Statutes of 1911. Said amended article 1521 contains no provisions corresponding to the provisions of article 1619, Revised Statutes 1911.

In Cole v. State (Tex.) 170 S. W. 1036, and McFarland v. Hammond (Tex.) 173 S. W. 645, it was expressly held that article 1591, R. S. 1911 was not repealed by said chapter 55, Gen. Laws 33d Leg. Referring back now to the above-cited case of Herf v. James, it will be noted that the Supreme Court based its holding that it had nql jurisdiction by certified questions by reason of the dissent by one of the judges of the Courts of Civil Appeals in county court cases because, by the fifth section of the act of May 13, 1893, the judgment of the Courts of Civil Appeals in such county court cases was made final. Article 1591, R. S. 1911, is in almost the same language and in substance is to the same effect as the fifth section of said act of May 13, 1893. It thus appears that the Supreme Court in this ease would have no jurisdiction by certified question unless it be upon the ground of the dissent herein. While there has been some change in the verbiage of the statute, yet the statute at present relating to certification in cases of dissent is, in substance, the same as section 32 of the act of May 13, 1893. Article 1591, R. S. 1911, is now in force, and is, in substance, the same as the fifth section of the act of May 13, 1893. We thus have this situation: In Herf v. James it was held that in county court cases, wherein a dissent was filed, the Supreme Court had no jurisdiction under section 32 of the act of May 13, 1893 (to which section subdivision 1 of amended article 1521 corresponds), because such section 32 was controlled by section 5 of the same act (to which section article 1591, R. S. 1911, corresponds), because in such cases the provisions of section 5 made final the judgment of the Court of Civil Appeals; and in Cole v. State and McFarland v. Hammond it is distinctly held that said article 1591, R. S., relating to cases in which the Courts of Civil Appeals is made final, is not repealed by said chapter 55, Gen. Laws 33d Leg. The conclusion thus follows that as to county court cases subdivision 1 of amended article 1521 is controlled .by article 1591, R. S.; that in such eases the Supreme Court has no jurisdiction by certified question, because the judgment of the Court of Civil Appeals is final.

It might be that the analogy of the rule announced in Herf v. James is destroyed by amended article 1522, quoted above, but, as we understand the opinions in Cole v. State and McFarland v. Hammond, there is no qualification to the holding there made that article 1591 is not repealed by said chapter 55. In the light of that holding, we are constrained to the view that in cases of this character the rule announced in Herf v. James is applicable, for which reason the motion to certify is overruled.

Supplemental Opinion.

WAETHALU, J.

In the opinion rendered on motion to certify, reference is made to the act of May 13, 1893. This reference is incorrect. It should be the act of April 13, 1892. See General Laws Eirst Called Session 22d Legislature, p. 25. Our reference to the act was made from the opinion in 1-Ierf v. James, as it is officially reported in 86 Tex. 230. In preparing our opinion we were using such official report. Such citation in the official report is incorrect. The act is correctly cited in the Herff v. James opinion as it is reported in 24 S. W. 396.
      (g=»Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       See supplemental opinion following.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    WILSON v. AVERY CO. OF TEXAS et al.
    (No. 894.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 19, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Sales <&wkey;397 — Competency — Qualiti oe Like Engines.
    In an action to recover money paid for an alleged defective engine, where plaintiff’s evidence tended to-show that the engine was constructed on a wrong mechanical principle, and hence was valueless, defendant could show that its other engines, constructed upon the same principle, were efficient, by introducing the testimony of other buyers that their similar engines were satisfactory.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1136; Dec. Dig. &wkey;>397.]
    2. Trial &wkey;>86 — Reception oe Evidence— Admissibility — Limiting Application.
    Testimony tending to establish one of two issues on trial, incompetent or irrelevant as to the other issue, is not inadmissible for such reason; the duty being upon the party against whom it is offered to make proper reguest of the trial court to limit the testimony to the issue upon which it is admissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 226; Dec. Dig. &wkey;>86.]
    3. Appeal and Error i&wkey;1050— Harmless Error — Admission oe Evidence.
    In an action to recover money paid for an alleged defective engine, the admission, without objection, of evidence for defendant that the engines manufactured and sold by it were successful, rendered harmless the admission of testimony of buyers of its engines that they were satisfactory.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068,' 1069, 4153-4157, 4166; Dec. Dig. &wkey;>1050.]
    4. Appeal and Error &wkey;>1050 — Harmless Error — Admission oe Evidence.
    The admission of evidence if error was harmless, where another witness, without objection, testified to substantially the same facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <i&wkey;1050.]
    5. Appeal and Error <&wkey;1062 — Special Issues — Omission oe Question — Harmless Error.
    Where two special issues submitted to the jury substantially the same question as was omitted in another, and they were answered adversely to appellant, the omission was immaterial.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey; 1062.]
    6. Fraud &wkey;>20 — Fraudulent Representations — Reliance.
    Where the buyer of an engine, in purchasing, did not rely upon the seller’s fraudulent representations made to induce the purchase, the buyer had no cause of action based upon such fraudulent representations.
    [Ed. Note. — For other cases, see Fraud, Cent. ■Dig. §§ 17, 18; Dec. Dig. <&wkey;>20.)
    7. Sales &wkey;>285 — Warranty—Notice oe De-eect.
    The failure of the buyer of an engine to give notice to the seller by registered letter within the specified time of any defect, as required by the seller’s written warranty of the engine as a condition to recovery, prevented the buyer’s recovery for breach of the wal-ranty.
    .[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 806-808, 810; Dec. Dig. &wkey;285.]
    8. Appeal and Error <&wkey;934 — Presumptions
    Favoring Court Below.
    Where the evidence is sufficient to warrant finding by the trial court of a fact justifying the judgment rendered, the Court of Civil Appeals will presume in support of the judgment below that the trial court so found.
    [Ed. Note, — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. <&wkey;> 934.]
    Appeal from District Court, Potter County ; I-Iugh L. Umphres, Judge.
    Action by J. A. Wilson against the Avery Company of Texas and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Turner & Rollins, of ‘ Amarillo, and B. Frank Buie, of Canyon, for appellant. C. E. Gustavus and M. J. R. Jackson, both of Amarillo, and Burgess, Burgess, Germany & Chrestman, of Dallas, for appellees.
   HUFF, C. J.

The appellant, Wilson, instituted suit against the Avery Company and G. L. Roberts to recover certain money paid and to cancel two certain notes, which he alleges were paid and executed to the Avery Company for a certain engine purchased from that company. He alleges that certain representations were made with reference to its capacity for ploughing, thrashing, and other matters, and that the representations were not true, and the engine would not do the work represented, and that it was of inferior material and workmanship, etc. He also set up and sought a recovery upon a written warranty because of the failure of the eDgine to do the work which it was warranted to do; and, in addition thereto, he set up certain special damages.

The appellees answered this, denying specifically the several allegations, and in addition thereto set up the conditions of the warranty and a failure to comply with the conditions with reference to giving notice, etc., and that appellant had purchased the engine after having it thoroughly tried and tested for the length of time agreed upon, and refused to accept it upon mere representations and required a written warranty of guaranty ; that he kept it for some seven or eight months, without giving notice of the defects as required by the warranty.

The case was submitted to a jury upon special issues, and upon their findings judgment was rendered for the appellee company and for Robert?, from which appellant appeals.

The first assignment presents the action of the court in admitting, over the appellant’s objections, the testimony of one E. Dillon to the effect that he had seen the engine of appellant, and that he (witness) had purchased an engine from appellee like the one purchased by appellant; that he had been operating his engine more than a year, plowing and thrashing grain with it; that he ploughed about 1,500 acres of land, and had thrashed between 60,000 and 70,000 bushels of small grain during the summer of 1914; that said engine had strength enough to pull the plows he had been pulling on it; that he had never had any difficulty as to the strength of the engine in thrashing; that it had operated successfully in plowing and thrashing.

By the second assignment complaint is made of the testimony of G-. L. Roberts to the effect that several parties, naming them, had purchased engines similar to the one in question, and that he had seen them in operation, and stated that the bearings on those engines were of the same size and material as the bearings on appellant’s engine, and that in none of the engines had there been trouble with the bearings, and that the capacity of the oil pipes in said engines was ample to furnish sufficient supply.

By the third assignment complaint is made of J. H. Bogee’s evidence, wherein he testified that he had an engine similar to appellant’s; that his engine could thrash from 1,200 to 1,500 bushels of wheat per day; and that he had never had any trouble with his engine, and no part had proven weak or defective.

The fourth assignment is to the testimony of one Brinkman to the effect that he had purchased an engine like appellant’s; that he had used his engine for thrashing and ploughing; that he had ploughed about 800 acres, and thrashed something like 40,000 bushels of small grain; that his engine operated successfully, and had sufficient power, and that he had never had trouble with it; that he was pulling 27 disc plows, and could cut from 15 to 16 feet in sod, and had power to pull them 8 inches deep, and no part of the engine had proven defective or insufficient.

The appellant objected to the above testimony, on the ground that what other engines had done, etc., was incompetent and irrelevant, and the comparison of other engines was insufficient to show that appellant’s engine was of the character or kind to do the work, or to show that his engine had met warranty. The appellant sought to recover the money he had paid on the machine and to cancel the notes executed by him therefor, on the ground: (1) He was induced to purchase the same by false representations; (2) upon the warranty executed by appellee. He alleged' that the engine was made of inferior material, and “that it is not properly constructed ; that it is wholly worthless and of no value as an engine, and continually got out of repair.” The- appellant, in proving Ms case, introduced the testimony of G-. E. Drane, who qualified as an expert in the construction of engines, and who testified that, according to mechanical principles, the engine in question was not properly constructed; that the oiling system used T-joints, which were abrupt turns, causing the pipes to clog so that oil could not be properly distributed to the working parts of the engine, and part of the bearings did not get oil, and would heat and melt out, and that plain joints with low-grade curve should have been used; that the crank and shaft bearings were too light, and not the proper size for the size of the engine, where they were joined to the main shaft; that for an engine of that size the cylinder should be constructed of chilled cast. The engine was not properly fastened down, etc. Some other witnesses indicated by their testimony that the engine was constructed on incorrect mechanical principles. By this testimony it was the evident purpose of appellant to show that the engine was not according to the warranty; that is, that it would not “do well the work for which it was intended,” because of its plan or method of construction, and was not constructed according to correct mechanical principles. There were two methods of showing that the engine did not comply with the warranty: (1) That it was in a bad or disabled condition, and because thereof would not do the work for which it was intended; or (2) because of the particular -method or principle upon which it was constructed, which was such as to render it unfit to do the work well for which it was intended. The issue therefore presented by appellant was that the engine was constructed on a wrong mechanical principle, and hence would not do the work well, and that thereby it was valueless and useless for the work intended. Any fact relevant to that issue was admissible. Appellant would have been authorized to show that appellee’s engines made upon the principle of this one would not do the work. This fact would have been a relevant fact. Why may not the appellee show that its other engines constructed upon the same theory or principle as the one in question would do the work in rebuttal of an assault upon the meehaniaal principles under which it was constructed? This would not be a relevant fact to show that the particular machine was defectively built or had faulty or bad material in it, and the workmanship in this particular engine was bad or defective, and for that reason would not do the work. Where the issue is alone as to the faulty construction of a' particular engine, and not an attack upon the mechanical principles upon which it was constructed, we think the rule is generally recognized that the manner in which ■ other engines worked would not be relevant or admissible, under the excluding rule of res inter alios acta, and should be excluded. Our courts have recognized this rule, and the rule is also recognized by other courts. Fetzer v. Haralson, 147 S. W. 290; Haynes v. Plano Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532; Hill v. Hanan, 131 S. W. 245.

We do not think in the cases cited that the method of construction or the mechanical principle upon which the machine was constructed were placed in issue by the parties seeking a recovery and as a ground of recovery upon the warranty. In an action to recover the price of shovel handles sold to the defendant, evidence of the good quality of other like handles sold by the plaintiff at the same time was admitted, accompanied by direct evidence that the latter were of the same kind and quality as the former. The United States Supreme Court held the admission of this testimony was not error. We apprehend, however, this evidence was held admissible in that case, at least in part, for the reason that the defendant therein had given evidence that the handles in question were inferior to the handles purchased in previous years. Ames v. Quimby, 106 U. S. 342, 1 Sup. Ct. 116, 27 L. Ed. 100.

Our Supreme Court held in Railway Co. v. Carter, 95 Tex. 461, 08 S. W. 159, that engines used by the railway company, other than the one setting out fire, were in bad condition was admissible. So in Tuttle v. Moody, etc., 100 Tex. 240, 97 S. W. 1037, in a suit for damages to cattle in failing to furnish sufficient water in a certain pasture, testimony as to the condition of another pasture was admissible in connection with evidence showing the condition of both lots of cattle. Tuttle v. Moody, 94 S. W. 134.

Wlgmore on Evidence, vol. 1, § 451, states that:

Evidence is admissible “of the tendency of a machine or apparatus, as shown by other instances of its operation, under similar circumstances, to operate defectively or otherwise (.for example, in actions of breach of warranty or personal injury). Here the working of other similar machines (tools or apparatuses) would be equally receivable, provided the conditions were similar and a confusion of the issues was not involved.”

The following eases, cited in the note to the above, appear to be in point in this case: Briefly v. Doral Mills, 128 Mass. 291; Nat. B. & L. Co. v. Dunn, 106 Ind. 110, 6 N. E. 131; Davis v. Sweeney, 80 Iowa, 391, 45 N. W. 1040; Kramer v. Messner, 101 Iowa, 88, 69 N. W. 1149; Avery v. Burrell, 118 Mich. 672, 77 N. W. 272.

In Barnett v. Hogan, 18 Idaho, 104, 108 Pac. 743, in a suit on a breach of warranty on an iron safe as fireproof, it is said:

“In rebuttal the plaintiff offered evidence to show that other safes manufactured by the Victor Safe •& Lock Company upon the same plan and theory of construction as the safe under consideration had passed through fires, and that the contents had been properly and adequately protected. This the trial court refused to admit. 'This was clearly error. The very best evidence that could possibly be received in support of the warranty claimed was made by the Victor Safe & Lock Company was that safes of similar kind, constructed upon the same plan and theory, and out of like material, had passed through fires and the contents were not materially injured. The fact that the safes to which such evidence was directed were a different size or different number than the particular safe under consideration would not render such evidence inadmissible, provided such safes were constructed upon the same general plan * * * and of the same material.”

The following authorities in some measure support the above proposition: Corbin v. U. S., 181 Fed. 296, 104 C. C. A. 278; Dempster v. Fitzwater, 6 Kan. App. 24, 49 Pac. 624; Beach v. Huntsman, 42 Ind. App. 205, 85 N. E. 523; Buckley v. Kansas City, 95 Mo. App. 188, 68 S. W. 1069. The evidence offered in this case tended to show that the warranty had not failed in so far as the plan and method of construction was involved. This issue was presented by appellant, by his testimony, in order to establish his case. His expert assailed the mechanical principles used in the construction of the engine. The fact that engines constructed on the same plan did the work intended, and were efficient, rebutted a failure of warranty on that issue tendered by appellant. The appellant, having himself advanced the issue, should have been prepared to meet the fact that other engines of like construction and plan would do the work. He therefore cannot be said to have been surprised at the result of an issue of his own making. The question of bringing into the trial other and different engines, and possibly other issues, if the evidence is otherwise relevant, rests largely in the discretion of the trial court.

The evidence admitted, to which objection was made, tended to establish one issue, but perhaps was not competent or relevant to the other issue under the warranty, but would not be inadmissible for that reason. The duty was upon appellant to make the proper request of the trial court to limit the testimony to the issue upon which it was admissible. Railway Co. v. Wilson, 50 S. W. 156; Railway Co. v. Adams, 63 Tex. 200; Pullman Palace Car Co. v. Smith, 79 Tex. 468, 14 S. W. 993, 13 L. R. A. 215, 23 Am. St. Rep. 356.

The testimony of George Culpepper was admitted without objection. He testified that he was familiar with the make of the engines sold and manufactured by appellee, with reference to its oiling system, bearings, etc., and that these engines were successful. This evidence we regard as substantially the same as that to which objection was made, and that the admission of the other evidence objected to is thereby rendered harmless. Railway Co. v. Porterfield, 92 Tex. 442, 49 S. W. 361. Tile above four assignments will be overruled.

Tbe fifth assignment complains at the admission of the testimony of E. Dillon that appellant “made no complaint about his engine that I heard of.” This evidence of the witness was given after the witness had stated that he purchased from appellee the same hind of engine that appellant purchased, and which is in controversy. That he and appellant were together when appellant, at the fair in Amarillo, examined the engine which he afterwards purchased. After the witness purchased his engine the appellant went to the field where the witness was using his engine and examined the plow attached to it, and in his examination of the plows and the engine rode on them while at work. This testimony objected to is shown to have occurred after the time when appellant claimed his engine would not work. It occurs to us the circumstances under which the witness says that appellant made no complaint were such as to reasonably call for some expression of dissatisfaction with reference to his engine. While he was under no duty to do so at that time, or called upon directly to do so, ordinarily negative testimony, or the fact that a party remained silent when there was no obligation upon him to speak, is immaterial and of no probative force, and should not be admitted in evidence. We think, however, there was no material injury shown in admitting this evidence, and that its admission should not reverse the case, if there was error in admitting it. The witness W. H. Nicholson testified to facts which substantially cover the same testimony as given by the witness objected to. Nicholson’s testimony was not objected to, and no complaint is made here of its admission. This, we are inclined to think, renders the above testimony harmless.

The sixth assignment is overruled. The objection is made to the eleventh special* issue, because the issue, as submitted, was incomplete. The thirteenth and fourteenth special issues submitted to the jury substantially the same question as here contended was omitted in the eleventh, and the jury answered these issues adversely to appellant.

The seventh assignment is overruled. If issue 13 submitted was not as full or as accurate as it should have been in submitting the issue made by the pleadings, we nevertheless think the fourteenth issue fully covered the point.

We sustain appellees’ exception to the eighth and ninth assignments of error.

We believe, aside from the above questions, that the court properly rendered judgment for the appellees. The alleged cause of action is based in one count upon fraudulent representations made to appellant which induced him to purchase the engine. The jury, in answer to the issues, substantially found that appellant, in the purchase of the engine. did not rely upon the representations claimed. The findings of the jury in this particular are amply supported by the evidence.

The appellant also relied upon a written warranty. This warranty required, after a trial of the engine, if there was any defect or failure to properly perform in the work for which it was purchased, that the appellant should give notice to appellees at Dallas, Tex., by registered letter, within the specified time, setting out specifically the manner in which the notice should be given. This notice was not given and under the terms of the warranty a recovery could not be had. The contract of warranty in this case is similar to the warranties passed on by the courts of this state in various cases.

The evidence is amply sufficient to warrant the finding by the trial court that the notice required by the warranty was not given, and we will presume he so found in support of the judgment. The contract of warranty is substantially the same as in the case of Shearer v. Garr, etc., 41 Tex. Civ. App. 39, 90 S. W. 684; Case v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Fetzer v. Haralson, 147 S. W. 290 (on motion for rehearing); and several other cases.

AVe find no reversible error, and the case will be. affirmed.
      <gc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    ESTES v. McWHORTER.
    (No. 522.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 3, 1916.)
    1. Limitation on Actions <&wkey;119 — Statute of Limitations — Interruption by Suit-Suppressing- Citation.
    Where plaintiff, suing on a, note, suppressed citation of the defendant when he filed his petition, and took no steps to procure issuance and service of citation on or before the date when four years from the maturity of the note elapsed, merely instructing the clerk after such date to issue in time for the next June term, such failure to issue and serve citation barred plaintiff’s suit, since the running of the statute of limitations was not interrupted. •
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 529-535; Dec. Dig. &wkey;119.]
    2. Limitation of Actions &wkey;>119 — Statute of Limitations — Interruption by Suit-Waiver of Citation.
    Where suit on a note was barred because plaintiff failed to procure the issuance and service of citation on or before the date on which four years from the maturity of the note elapsed, so that the running of the statute of limitations was not interrupted, the subsequent filing by defendant of a waiver of citation and service did not remove the bar of the statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 529-535; Dec. Dig. <&wkey;> 119.]
    3. Limitation of Actions &wkey;>119 — Statute of Limitations — Interruption by Suit-Suppressing Citation.
    Plaintiff’s suit on a note was barred, where he suppressed citation when he filed his petition and failed, to take steps to procure its issuance and service on or before the date when four years from the maturity of the note elapsed, so that the suit failed to interrupt the statute of limitations, though defendant in his original answer did not plead limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 529-585; Dee. Dig. &wkey;> 119.]
    Appeal from Martin County Oourt; A. C. Eidson, Judge.
    Action by A. D. Estes against S. D. Mc-Whorter. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    R. N. Grisham, of Sweetwater, and Frank Judkins, of El Paso, for appellant. S. W. Pratt, of Stanton, and Gibbs & Anderson, of Midland, for appellee.
   HIGGINS, J.

On February 28, 1914, Estes filed this suit against McWhorter to recover upon the latter’s promissory note dated March 22, 1909, due twelve months after date. Citation was never issued in the case, but on June 1, 1914, defendant executed and filed a waiver of citation and service, and agreed to enter an appearance, which he did on June 10, 1914.

In response to special issues the jury found:

“That plaintiff did not have citation issued at the time his original petition was filed; that the issuance of citation was delayed at the instance of plaintiff; that defendant did not promise to file a waiver of citation prior to four years from the maturity of the note, to wit, March 22, 1914; that plaintiff requested the clerk at the time he filed his petition to have citation issued at the _ earliest term to which it was returnable, to wit, the June term, 1914.”

Upon these findings, judgment was rendered for defendant upon the theory that the note was barred by limitation. All of the evidence upon this phase of the case is as follows:

Defendant testified:

“I did not agree with the plaintiff to waive citation. I signed a waiver. Plaintiff did not ask me to waive citation. H. Hamilton, county clerk, came to me about May 15th and told me about the suit and that he was ready to issue ■ citation, and I told him that I would waive citation.”

Mr. Hamilton, the county clerk, testified:

“When this suit was filed, or about that time, either Judge Daniel, who filed the suit, or S. L. Estes, told me to hold up on the citation, that the plaintiff had made a proposition to the defendant that if the defendant would give him a new note before the running of the statutes of limitation, with a clause in it that if McWhorter did not gain his land the note would not be payable, that plaintiff would compromise the case. But he said that he wanted the suit to go on unless so settled, and that ho wanted citations to issue for the June term, 1914. It was some time thereafter, perhaps about fifteen days, before the June term, that I saw the defendant and talked with him about the filing of the suit, and told him that I was ready to issue the citation, but he said that he did not want the citations to issue, and in order to save cost would waive citations and service. For this reason I never issued the citations. McWhorter thereafter did waive citation and service, and same is on file in the papers of the case, and has been since the June term, 1914. Plaintiff, at the time of filing the suit told me to be sure and get out the citations for the June term. Citations were delayed by the plaintiff to see whether McWhorter would make the new note before the running of the statute of limitation.”

The testimony indicated conclusively establishes that prior to four years from the maturity of the note, no such steps were taken to interrupt the running of the statute of limitation, as is required by the decisions of our courts. No other judgment could have been rightfully rendered, except that which was rendered. No effort was made to procure the issuance and service of citation, except the instruction to the clerk to issue citation for the June term. Citation was suppressed by plaintiff at the time he filed his petition, and under our decisions it is very clear that it was incumbent upon 'him to take some steps to procure the issuance and service thereof on or prior to March 25, 1914, at which time four years from the maturity of the note would have elapsed. Merely instructing the clerk to issue in time for the June term was insufficient. The clerk could have complied with this instruction by issuing long subsequent to March 25th, but in ample time to compel an appearance at tbe June term. The failure to have citation issued and served on or prior to March 25, 1914, or making an effort so to do, barred the note. Bates v. Smith, 80 Tex. 242, 16 S. W. 47; Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645; Maddox v. Humphries, 30 Tex. 494; Wood v. Railway Co., 15 Tex. Civ. App. 322, 40 S. W. 24; Wood v. Mistretta, 20 Tex. Civ. App. 236, 49 S. W. 236; Railway Co. v. Flatt, 36 S. W. 1029; Insurance Co. v. Templeton, 3 Willson, Civ. Cas. Ct. App. § 424; Tribby v. Wokee, 74 Tex. 142, 11 S. W. 1089; Goldstein v. Gans, 32 S. W. 185; Faires v. Loessin, 46 Tex. Civ. App. 551, 102 S. W. 924.

The subsequent filing by defendant of a waiver of citation and service thereof did not remove the bar of the statute of limitation. Neither is it of any consequence that in his original answer he did not plead limitation.

Affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    NATIONAL NOVELTY IMPORT CO. v. DUNCAN.
    (No. 908.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 26, 1916.
    On Motion for Rehearing, Feb. 16, 1916.)
    1. Evidence <&wkey;420 — Parol Evidence — Delivery on Condition.
    In an action for goods sold and delivered on an order given by the buyer to a seller’s salesman, parol evidence was admissible to show that the written order was not to he delivered to the seller to be filled within 30 days.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1728, 1795, 1800, 1804, 1815, 1821,. 1929-1944; Dec. Dig. &wkey;420.]
    2. Principal and Agent <&wkey;103 — Sales <&wkey; 85 — Order—Verbal Agreement op Seller’s Salesman — Effect.
    On an order for the sale of goods to he shipped at the seller’s earliest convenience, the verbal agreement of the seller’s salesman that the order should not be delivered to the seller within SO days is binding upon the seller, and the contract is avoided by a violation of the agreement.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. <i&wkey;103; Sales, Cent. Dig. §§ 236-238; Dec. Dig. <@=¿>85.]
    On Motion for Rehearing.
    3. Sales <&wkey;387 — Action foe Price — Evidence.
    In an action for goods sold and delivered, defended on the ground that the buyer’s order for goods to be shipped at the seller’s earliest convenience had been given to the seller’s salesman on condition that it would not be put in within 30 days, the buyer’s letter to the seller, omitting the terms of the contract, was for the jury on the question of his credibility as to making a contract upon a precedent condition of delivery.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1108; Dec. Dig. <§=»387J
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by the National Novelty Import Company against W. E. Duncan. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Hoover & Dial, of Canadian, for appellant. Chas. C. Cook, of Pampa, R. E. Underwood, of Amarillo, and P. R. Underwood, of Eloy-dada, for appellee.
   HENDRICKS, J.

The appellant instituted suit against the appellee, for the sale and delivery of certain items of jewelry and upon the following order, signed by the appellee:

“National Novelty Import Company, St. Louis, Mo. — Gentlemen: Please ship at your earliest convenience f. o. b. St. Louis, goods above listed, on above terms, which we have carefully road and found satisfactory. We agree that no statements made by ourselves or the salesmen will be a part of this agreement, unless indorsed in writing on the original order. Positively no goods on commission or consignment. [Signed] W. E. Duncan,
“Pampa, Tesas.”

The defendant, Duncan, among other things, pleaded that it was agreed:

“That such order should not be delivered to plaintiff for the purpose of being filled prior to the expiration of such period of 30 days; and the said Smith agreed that if defendant would execute such purported order, that he would hold the same for such period of 30 days, and that, if within that period the defendant should decide that he did not desire to have such goods shipped, then, upon notifying plaintiff of Ms desire, such conditional order * * * should cease and terminate. * * * ”

The plaintiff excepted to this pleading on the ground that the understanding and agreement was not alleged to be in writing, and, if true, could not be urged as a defense because the same would ingraft parol terms upon the written instrument, not contained therein, which exceptions were overruled by the court, and the action assigned as error.

It is also assigned, for the same reasons, that the trial court erred in permitting the defendant to testify:

“That he had an agreement with the agent of plaintiff that he would hold the order 30 days before the goods would be shipped out, * * * ” etc.

Rage on Contracts, vol. 2, § 1209, announces the rule applicable to this condition as follows :

“If the party against whom relief is sought, on a written contract concedes that the contract was placed in the possession of the adversary party, but claims that it was taken with the understanding that it was not to go into effect unless some other or further event should happen, and that such event has not happened, he is not seeking to vary or contradict the contract, but to show that no contract between the parties ever came into effect. Evidence of conditions precedent to the taking effect of a written contract is therefore admissible. This is simply the rule that an instrument may he delivered to the adversary party to take effect on the happening of a future event, restated in terms of the parol evidence rule.”

In Parker v. Naylor, 151 S. W. 1103, this court said, citing numerous authorities:

“It is the settled law of this state that parol evidence is always admissible to show that a written contract was delivered, effective upon conditions.”

It is suggested that the statements and agreements, unless indorsed upon the back of the contract, if the contract is delivered to the plaintiff by the agent, though the delivery is conditional to the agent, the principal is not bound. The opinions in the cases of Merchants’ National Bank v. McAnulty, 31 S. W. 1096, Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. paragraph 3, page 1062, and U. S. Gypsum Co. v. Shields, 106 S. W. 726—at least the logic of those decisions without going into extended reasons — are convincing otherwise. The argument against the latter two will probably be that they are fraud cases. The contracts were similar to the one in this case and Justice Neil’s argument is quite applicable. A contract upon a conditional delivery, if violated, is not controlled by such stipulations to reject the defense, any more than they could control fraud. Either would avoid the contract. Writs of error were denied in those cases.

There are no objections to the charge of the court brought forward in the brief and assigned as error. We have carefully considered appellant’s authorities and think they are clearly distinguishable and inapplicable to the character of defense against the contract interposed in this record.

We overrule appellant’s assignments and affirm the judgment.

On Motion for Rehearing.

Duncan testified;

“He [meaning the agent] said he wanted to cany the order and I told him I would write him a letter in care of the house at St. Louis, and ho said they would file the letter up there. During the 30 days I had to decide, he [the agent] was to hold the order.”
“The delivery to Smith [the agent] was in fact a mere manual transfer from the possession of the maker to the possession of Smith. It was not, indeed, a ‘delivery’ within the meaning of the law.” Bank v. McAnuity, 31 S. W. 1096.

The stipulations in a contract, whatever their nature, if the delivery to the agent is conditional, and there is no real delivery, are immaterial upon the immediate question. The ease of Bybee v. Carriage Co., 135 S. W. 205, is not applicable to this condition. There is nothing to show, at least conclusively, that, as between Duncan and the agent, the agent was to file with, or forward to, his principal, this contract within 30 days.

Duncan’s letter to the company, omitting the terms of the contract, was for the jury on the question of his credibility as to the making of a contract upon a precedent condition of delivery. His actions, in finally taking the goods from the station house, looking the goods over and shipping them back, are not relied upon as waiver or ratification —at least in this court.

Motion overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


author: PRENDERGAST, P. J.

text:
    JORDAN v. STATE.
    (No. 3910.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    1. Criminal Daw @=1144^-Appeai>-Denial ob Motions — Presumption.
    Denial of motions for continuance and new trial must be presumed correct, there being no statement of facts or bills of exceptions showing the testimony heard, agreed to, approved by the trial judge, and filed in term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2730-2764, 2706-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey; 1144.]
    2. Criminal Law @=594 — Continuance — Absent Witness.
    Refusal of continuance for absence of a witness, for a long time a fugitive from justice, is proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. &wkey;594.]
    3. Criminal Law @=594, 917 — Continuance —Absent Witness.
    There was no error in denying a continuance or a new trial based on absence of a witness, whore he makes affidavit that he did not know and would not testify what defendant in his application alleged he would.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332, 2161, 2162; Dec. Dig. @=594, 917.]
    4. Homicide @=101 — Justification.
    Communication by deceased to defendant of the fact that he had had intercourse with defendant’s wife did not justify the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 131; Dec. Dig. @=101.]
    5. Criminal Law @=633 — Conduct of Trial —Calling Names of Witnesses.
    That when the case was first called for trial, before a jury was impaneled or announcement of ready made, while both parties were calling their witnesses to determine whether they were ready, the name of defendant’s wife was called, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1450, 1451, 1453, 1454, 1459; Dec. Dig. @=633.]
    6. Criminal Law @=1037 — Argument of Prosecuting Attorney — Objection — Review.
    That defendant may complain of the statement of prosecuting attorney in argument that defendant’s wife was present, he should have asked an instruction for the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. @= 1037.]
    7. Criminal Law @=721% — Argument of
    Prosecuting Attorney — Wife as Witness.
    The prosecuting attorney may comment on the failure of defendant to produce his wife as a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. @=721%.]
    Appeal from District Court, Scurry County; John B. Thomas, Judge.
    Edward. B. Jordan was convicted, and appeals.
    Affirmed.
    Woodruff: & Woodruff, of Sweetwater, and Smith & Spiller, of Snyder, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of his father, and his punishment assessed at 25 years in the penitentiary.

The original and supplemental record, as well as the statement of facts, are quite voluminous, especially the statement of facts. We have carefully read and considered all of them.

Appellant made a motion for a continuance to get two absent witnesses, his brother, H. C. Jordan, and Sid Hill. The state contested the motion. At the time, and before the trial, the court heard much evidence on this contest. In addition, the appellant made the overruling of his motion a ground of his motion for a new trial. This was also contested by the state. The court again heard evidence when hearing this contest of his motion for a new trial. There was no statement of facts agreed to, approved by the judge, and filed within term time of what this testimony was on either of said hearings by the court. Appellant has a bill of exceptions to the overruling of his motions, but this was filed long after the term at which he was tried had adjourned. •

It is the settled law of this state, held many times in the decisions of this court, that a statement of facts or bills of exceptions showing the testimony heard on such motion must be properly agreed to, approved by the trial judge, and filed in term time, and, if not, this court cannot consider it, but must, and does, presume that the action of the lower court was correct. Jones v. State, 163 S. W. 76; Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 726; Hoskins v. State, 73 Tex. Cr. R. 109, 163 S. W. 426; Forrester v. State, 73 Tex. Cr. R, 67, 163 S. W. 67; Roberts v. State, 180 S. W. 1080. Many other decisions ave cited in the opinions in these cases. It is unnecessary to collate them here.

Without discussing whether or not the diligence in this ease was sufficient, or that the testimony of either of said witnesses was material or probably true, or the insufficiency of the application to continue and motion for new trial on that ground was wholly insufficient on various other grounds, we will state that the record, the motions themselves, and the statement of facts on the trial of the case, without doubt, show that appellant’s brother, H. O. Jordan, was a fugitive from justice, and had been, with appellant’s knowledge, for perhaps two or three years before this ease was tried. On that ground alone the court’s refusal to continue on account of the absence of that witness and refusing a new trial was correct. Anderson v. State, 53 Tex. Cr. R. 344, 110 S. W. 54; Sims v. State, 45 S. W. 707; Sinclair v. State, 34 Tex. Cr. R. 453, 30 S. W. 1070; Deckard v. State, 58 Tex. Cr. R. 38, 124 S. W. 673.

The affidavit of the other witness, Sid Hill, was attached to the state’s contest of appellant’s motion for a new trial, and it shows that that witness did not know and would not testify what appellant alleged he would in his application for a continuance. Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Henry v. State, 38 Tex. Cr. R. 306, 42 S. W. 559; Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; and Singleton v. State, 57 Tex. Cr. R. 560, 124 S. W. 92.

The evidence was amply sufficient to show, and we think the jury therefrom could conclude, as they did, that the appellant killed his father with malice. The court therefore did not err in refusing to give, and should not have given, his special charge to the effect that the evidence was insufficient to base a conviction for murder and instructing the jury peremptorily to find him not guilty of that offense. Neither did the court err in refusing to give his special charge to the effect that, if they believed from the evidence that deceased communicated to him the fact that he had had illicit intercourse with his wife, this was within the eyes of the law adultery, and appellant was justified in killing his father, and to find him not guilty. Such charge was not the law. The court in bis charge submitted even more favorably than the evidence, and the law would justify every issue in appellant’s favor that was raised by the evidence, or even remotely suggested thereby.

Appellant has a bill which, together with the judge’s qualification and approval thereof, shows that, when the case was first called for trial, both parties proceeded to call their witnesses to determine whether they were ready. Among the witnesses called were several of the Jordan women. The court did not know that any one of them was appellant’s wife until his attorneys so stated to the court. At this time no jury had been impaneled and no announcement of ready made, and, when the motion for a continuance was heard and overruled, his wife’s name was not called as one of the witnesses. This, of course, shows no error.

Appellant has another bill, which alleges that the district attorney “stated in his argument to the jury that the defendant’s wife was then present in the courtroom,” to which he objected. The bill in no way shows the action of the court. The record shows appellant did not ask any charge instructing the jury not to consider this remark by the district attorney. It is the well-settled law of this state, as stated by Mr. Branch in his Criminal Law (section 61), as follows:

“State’s counsel may comment on the failure of defendant to produce his wife as a witness or upon any omissions in her testimony, if she testifies” — citing quite a number of cases decided by this court to that effect.

This bill shows no error whatever. Mooney v. State, 176 S. W. 56, and cases therein cited.

Nothing else is presented for review.

The judgment is affirmed.

DAVIDSON. J., not present at consultation.
      ig^oFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HARPER, X

text:
    WILSON v. STATE.
    (No. 3926.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. CRiminal Law <S^814.— Instructions — Circumstantial Evidence.
    Where the defendant was identified by a witness, who stated that she recognized him as the man who made the entry into the house, that a light was burning, and that she recognized him by the funny shape of his head and his mustache, it was not error to fail to charge on circumstantial, evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec.Dig. <&wkey;814.]
    2. Burglary &wkey;>28 — Evidence — Issues — Want oe Consent.
    Where the indictment alleged that the burglary was made in the nighttime by force with intent to steal, and the defendant was identified by one witness as the burglar, but he denied that he was the person who burglarized the house, consent to the entry was not an issue, and, if alleged or evidence thereon was introduced, it could be treated as surplusage, since it was an attempt to prove circumstantially matters unnecessary to be proved.
    LEd. Note. — Por other cases, see Burglary, Cent. Dig. §§ 67-78; Dec. Dig. c&wkey;>28.]
    Appeal from Criminal District Court, Williamson County; A. S. Pisher, Judge.
    Barney" Wilson was convicted of burglary, and be appeals.
    Affirmed.
    Melasky & Moody, of Taylor, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, X

Appellant was convicted of burglary, and bis punishment assessed at five years’ confinement in the state penitentiary.

Appellant insists that the court erred in failing to charge on circumstantial evidence. No such charge was called for, as Miss Kelley testified that she recognized the defendant as the man who made the entry into the house; that a light was burning, and she recognized him by the funny shape of his head and his mustache. This positive identification of appellant rendered it unnecessary to charge on circumstantial evidence.

Appellant insists that, as the house was alleged, in the indictment, to belong to Will Goff, and charged that the entry was made without his consent, Goff should have been called as a witness to i>rove that he did not give consent; that want of consent could not be proven by circumstantial evidence, but if want of consent is proven by circumstantial evidence, then when such fact is proven by circumstantial evidence, it is fundamental error not to instruct the jury on the law of circumstantial evidence. In a case of burglary it is not necessary to allege nor prove want of consent to make the entry, unless such fact becomes an issue in the case. In this ease no such issue arises on the testimony. Miss Kelley positively identifies appellant as the person who made the entry and stole the clothing. Apinellant denies he is the person who burglarized the house. So consent is not an issue in the case, and in such case it was not necessary to allege nor iu-ove that the entry was made without the consent of Will Golf, and, even if alleged, such allegation in a burglary indictment may be treated as surplusage, it being unnecessary to the sufficiency of the indictment; the indictment alleging that the entry was made in the nighttime by force. State v. Williams, 41 Tex. 98; Summers v. State, 9 Tex. App. 396; Taylor v. State, 23 Tex. App. 639, 5 S. W. 141; Buchanan v. State, 24 Tex. App. 199, 5 S. W. 847; Smith v. State, 22 Tex. App. 350, 3 S. W. 238: Sampson v. State, 20 S. W. 708.

There is no allegation in the indictment that any property was in fact stolen, but only that entry was made with intent to commit theft. If the indictment contained a count charging theft, then it would have been necessary to allege and prove want of consent as to that count. But as no such allegation is made, the state was not required to call Mr. Goff as a witness and prove want of consent. And as it was unnecessary, the fact that Mrs. Goff was permitted to testify that she did not give consent, and her husband was absent on the occasion, iwould present no error. The state was making proof by circumstances of a fact that it was wholly unnecessary to prove.

The judgment is affirmed.

DAVIDSON, J., not present at consultation.
      ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    PEUGH v. MOODY et al.
    (No. 2438.)

    (Supreme Court of Texas.
    Feb. 19, 1916.)
    PRINCIPAL AND SURETY <&wkey;ll 8 — RELEASE OF Principal — Consent of Surety — Evidence.
    Where the surety on a note was a party to an arrangement for the settlement of the principal’s debts, and participated in negotiations with the payee to accept the settlement proposed, held,, that the release of the principal by the payee’s acceptance of the settlement was made with the surety’s consent and did not discharge him from liability for the balance of the note.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 280-295; Dec. Dig. <S&wkey;118i]
    Etror to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by Robert Moody and others against W. F. Peugh. From a judgment for the plaintiffs, affirmed by the Court of Civil Appeals (145 S. W. 296), defendant brings error.
    Affirmed.
    Ramsey, Black & Ramsey, of Austin, and E. O. Gray, of Higgins, for plaintiff in error. II. E. Hoover, of Canadian, for defendants in error.

       Motion for rehearing pending.

   PHILLIPS, C. J.

The suit was upon a note given to the First National Bank of Higgins, executed by the W. F. Peugh Mercantile Company, a corporation, as principal, and W. F. Peugh as surety, afterwards transferred to the plaintiffs. Peugh was president of the company and its principal stockholder. It became financially involved, and its affairs were turned over to a trustee to be administered for the benefit of its creditors, who obtained under such administration fifteen per cent, of their claims. Subsequently an arrangement was made whereby Peugh and certain of the creditors provided a fund for the payment of fifty per cent, of the remaining indebtedness to such of the company’s other creditors who were willing to acceiit that proportion of the amounts due them in settlement of their claims against it, the parties liroviding the fund to take over the company’s assets. The bank, then the owner of the note, through its cashier agreed to this, and such a settlement was made with it.

The defense of Peugh to the suit for the balance due upon the note was, that the bank’s settlement with the company released him as a surety. On the trial a verdict was instructed against him.

If the evidence conclusively established that Peugh consented to the bank’s release of the company from the indebtedness, the verdict was properly directed. He contends that such is not the force of the evidence. We have examined it fully, and are convinced that it presented no issue on the question. It is undisputed that Peugh was a party to the settlement proposal; that he personally contributed a portion of the fund provided for that purpose; and that he took part in the negotiation with the bank’s cashier for the bank’s acceptance of the plan of settlement with respect to its claim. He was, one of the promoters, in other words, as the nndisputed proof shows, of the settlement that was made with the bank; was interested in its procurement ; and, as one of those proposing it to the bank, took part in the transaction in which it was effected.

It is urged that to avoid his release as a surety from the obligation of the note, as the legal consequence of the settlement, the burden was upon the plaintiffs to establish his affirmative consent to the release of the principal debtor; that, according to the proof, he merely remained silent at the time the bank’s cashier expressed his willingness to make the settlement, which, it is said, did not evidence his consent to the principal’s release, or, at least, presented an issue of fact as to whether he was concluded in his defense by estoppel, which was not pleaded. But we do not think the question is in that attitude. A main object of Peugh and the four creditors associated with him in the settlement plan, in executing the transaction with the bank, was to obtain the company’s release from any further liability for its debt. The settlement was to be made with the bank on no other basis. He participated in the transaction itself, plainly acting as one of the promoters of the plan. It is difficult to perceive how, under these circumstances, his position in the transaction could have been other than one of positive agreement to the company’s release from the debt. It was that which he and his associates sought to accomplish in the' transaction, and which they did accomplish. Necessarily, he consented to a result that he intended to bring about and helped to effect.

The judgment of the Court of Civil Appeals is affirmed.
      (Ss^Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes