author: BOYCE, J.

text:
    COUNTS v. SOUTHWESTERN LAND CO.
    (No. 1147.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 4, 1917.)
    1. Judgment <©=»107 — Default—Answer.
    A default judgment cannot be rendered where defendant has an answer, on file.
    2. Judgment <&wkey;>143(17) — Default—Setting Aside — Ageeement to Have Case, Continued.
    Where defendant appeared on day of return and filed answer, but failed to appear on day to which case was continued, a default entered on such nonappearance should have been set aside on defendant’s motion therefor, where showing, in support of motion, that postponement had been agreed to, was not controverted.
    3. Appeal and Error <&wkey;891 — Pbooe Not Produced ao? Trial — Affidavits.
    The Court of Civil Appeals, in reviewing lower court’s ruling on motion to set aside a default, cannot consider an affidavit which was not before lower court.
    4. Appeal and Error. <&wkey;544(3) — Necessity of Bill of Exceptions — Motion to Set Aside. Default.
    Under Rev. St. art. 2062, a bill of exceptions was not necessary to reserve an exception to court’s ruling on motion to set aside default judgment, the motion and the ruling thereon being a part of the record proper.
    5. Appeal and Error <&wkey;528(4) -r Record — Affidavits — Necessity of Bill of Exceptions.
    Affidavits in support of motion for new trial are a part of the motion, and under Rev. St. art. 2062, will be considered in connection with the order overruling the motion without a formal bill of exceptions.
    6. Appeal and Error <&wkey;270(3) — Exceptions to Ruling on Motion — Notice of Appeal.
    Under Rev. St. art. 2059, a notice of appeal given at the time of court’s ruling on motion to set aside default was sufficient exception to the ruling, no formal words being necessary.
    Appeal from Gray County Court; T, W. Wolfe, Judge.
    Suit by the Southwestern Land Company against G. M. Counts. Default judgment for plaintiff. Defendant’s motion to set aside judgment and for new trial overruled, and defendant appeals.
    Reversed and remanded.
    P. W. Robertson, of Miami, and Hoover & Dial, of Canadian, for appellant.
    Chas. C. Cook, of Pampa, and Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   BOYCE, J.

This suit was brought by ap1-pellee to recover of appellants commissions alleged to have been earned in the sale of certain real estate. Citation was returned to the August, 1916, term of the county court, at which, time defendant appeared and answered by general denial and special answers, and the case was continued on defendant’s application.- On the first day of the next term of court, to wit, November 20, 1916, appellant secured judgment which is styled on the minutes of the court “judgment by default,” and which, after reciting the appearance of the plaintiff, and that “the defendant, though duly cited to appear, came not but made default, in this behalf, whereupon the plaintiffs announced ready for trial, and the court having heard the pleadings read and the evidence adduced in support thereof,” etc., rendered judgment in favor of the appellant for the amount sued for. On November 22, 1916, the appellants filed a motion to set aside judgment and for new trial, alleging that an oral agreement was made in a telephone conversation between one of appellants’ attorneys and one of appellee’s attorneys for the postponement of the trial of said case until November 22d, and that appellants and their attorneys, relying on said agreement, did not attend said court until said date, but did appear on said date and then learned of the entry of gaid judgment. Appellants also alleged in said motion that they had a meritorious defense to said cause of action, etc. This motion was overruled on November 27th.

A default judgment cannot be rendered where defendant has an answer on file, and, if the judgment is to be regarded as a default judgment, it was error for the court to refuse to set it aside on appellants’ motion. Hepburn v. Danville National Bank, 34 S. W. 988; Sevier v. Turner, 33 S. W. 294; P. & N. T. Ry. Co. v. Epps & Matsler, 117 S. W. 1012. These cases are not in conflict with the case of Hopkins v. Donaho, 4 Tex. 337, and that line of cases following it (Pierson v. Burney, 15 Tex. 274; Lytle v. Chistead, 4 Tex. Civ. App. 490, 23 S. W. 451),' which hold that an answer on file will not avail unless the defendant calls the court’s attention to it; but the last-cited cases recognize that this attention of the court to the answer may .be obtained .by motion to set aside the default judgment made at the same term of the court. We have some doubt as to whether the judgment is to be necessarily taken as a judgment by default. The court had the right to proceed with the trial in the absence of defendant, though he had an answer on file, and could render judgment for the plaintiff on the introduction in evidence of such facts as would have made out a prima facie case, even if the defendant had been present, and it is not clear from the recitals in the judgment that this was not the proceeding áctually had. Chapa v. Compton, 147 S. W. 1175. The judgment in this case is very similar to the one rendered in the Hepburn v. Danville National Bank Case, supra; it is styled a default judgment on the minutes, and the parties have so treated it in all the proceedings, so we are perhaps also justified in so regarding it. In any event, however, we think the trial court should have set aside the judgment under the showing made by the motion. Medlin v. Commonwealth Bonding Co., 180 S. W. 904. The truth of the facts stated in the motion for new trial was sworn to by two of appellants’ attorneys, who were in position to have personal knowledge of the facts as to the alleged agreement for postponement, and the reasons for appellants not being in attendance upon the'eourt on the first day of the term, and these statements were not controverted by appellee in any way. We think this was a sufficient showing of such facts, and, in the absence of controverting affidavits, such facts should have been taken as established. Davis v. Ransom, 57 Tex. 335; Sugg v. Thornton, 73 Tex. 666, 9 S. W. 147; General Accident, Fire & Life Insurance Co. v. Bacy, 151 S. W. 1171; Durham v. Flannagan, 2 Willson Civ. Cas. Ct. App. § 22; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100. We are not authorized to consider for any purpose the affidavit filed in this court by appellee.

Appellee contends that we cannot consider the assignment complaining of the action of the court in overruling the motion to set aside the judgment because no exception was taken to such action, and there is no bill of exception complaining of such action in the record. The motion and ruling of the court thereon are a part of the record proper, and a bill of exceptions was not necessary to reserve an exception. R. S. art. 2062. Of course if controverting affidavits had been filed, and testimony had been introduced on the hearing of the motion, a bill of exception or statement of facts would have been necessary to preserve a record of the evidence introduced on the hearing; but the affidavits are a part of the motion for new trial, and will be considered in connection with the order overruling the motion, without a formal bill of exceptions. At the time of the overruling of the motion no exception was expressly reserved, but it appears that at such time the appellant gave notice of appeal. If it wasi necessary to except to the order, we think the notice of appeal, given at the time, would itself be sufficient to constitute an exception to the ruling, as no formal words are necessary, and the notice of appeal- certainly gives notice that objection was being made to the order of the court. R. S. art. 2059; Corpus Juris, vol. 3, p. 900. It is stated in the text'cited from Corpus Juris “that an appeal is per se an exception to the judgment itself,” etc.

Reversed and remanded.
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source: Caselaw Access Project

author: BROOKE, J. KING, J.

license: Public Domain

text:
    JEANES v. BLOUNT.
    (No. 379.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 6, 1918.
    On Rehearing, Oct. 28, 1918.)
    On Rehearing.
    1. Landlord and Tenant &wkey;>262(4) — Lien for Rent and Supplies — Evidence.
    Where crop mortgagee sued mortgagor’s landlord as for conversion, and landlord admitted having taken the crops, valued at $330, in payment of the rent and supplies furnished by him, worth $333, and there was in evidence a letter from the landlord stating that at its date the tenant owed him $200, verdict that the value of the supplies was $191 could not be upheld, because it had no foundation in the evidence.
    2. Trial &wkey;>333 — • Verdict — Conformity with Evidence in Amount.
    A ,iury cannot arbitrarily set an amount in a verdict that is not sustained by the evidence.
    Appeal from San Augustine County Court; E. T. Anderson, Judge.
    Action by T. W. Blount, Jr., against F. C. Watkins and E. F. Jeanes, and from the judgment the latter appeals.
    Affirmed. On motion for rehearing motion granted', judgment reversed, and cause remanded.
    Davis & Davis, of Center, for appellant.
    Wm. McDonald, of San Augustine, for appel-lee.
   BROOKE, J.

This suit was originally instituted in the county court of San Augustine county, Tex., by T. W. Blount, Jr., against F. C. Watkins and E. F. Jeanes. April 24, 1916, the plaintiff, T. W. Blount, Jr., filed his first amended original petition, upon which he went to trial on the 27th day of August, 1917. It was a suit primarily against F. C. Watkins, the plaintiff T. W. Blount, Jr., alleging that the said Watkins was indebted to him by promissory note in the sum of $86, due November 1, 1915, bearing 10 per cent, interest from the 26th day of January, 1915, and calling for the usual 10 per cent, attorney’s fees,, and for a balance due on open account for the year 1915, amounting to $124.86; it being also alleged by the appellee that all of said above-mentioned amount was secured by mortgage lien on all of the cotton to be raised by the said F. C. Watkins during the year 1915 on the farm known as the Jeanes farm, in Nacogdoches county, Tex., the appellee, Blount, further alleging that the appellant, Jeanes, with actual and constructive notice and knowledge of the mortgage lien held by appellee against the said F. C. Watkins, unlawfully, and'wrongfully seized and converted all of said cotton to his own use and benefit, and prayed for judgment against the appellant, Jeanes, for the value of the cotton so seized and converted.

On the trial of the cause, on the 27th day of August, 1917, the defendant F. C. Watkins wholly made default, and the court rendered judgment against him for the full amount of the note, interest, and attorney’s fees, and the balance due on the open account.

The appellant, Jeanes, went to trial on his first amended original answer, filed on the 27th day of November, 1916, the appellant, Jeanes, answering by general and special exceptions, general denial, and further, that he, the appellant herein, for the year 1915, rented from his father, the owner of same, what is known as the Jeanes farm, in Nacogdoches county, Tex., with privilege of subrenting same to whomsoever he saw fit, and that later he, as landlord, subrented a part of said premises to the defendant Watkins, and to his brother Eugene Jeanes, and that the appellant herein, F. O. Watkins, and Eugene Jeanes agreed that they would work said land above mentioned during the year 1915, working the said crop on a “through and through” basis; that ,is, that the three of them would work the crop as a whole; and, further, that after the said appellant, Jeanes, herein had paid the rent and all expenses incident to the making, gathering, and housing of said crop, the net balance remaining would be divided equally between the three of the parties above mentioned; the appellant, Jeanes, herein further alleging that said crop was worked by the three of them in pursuance of said agreement and understanding, and that he paid the’rent to his father, as well as paying all of the other bills incurred by the three of them for that year, while making, gathering, and harvesting the said crop, and that after doing so, and dividing the proceeds of the crop, "and charging the said F. O. Watkins with his one-third of the expenses incident to the making, etc., of the crop, that the said Watkins was then not entitled to anything from the said crop, but, on the contrary, owed appellant, Jeanes, the sum of $3.07, for which Jeanes asked judgment against Watkins, and further denying that he had converted any part of said crop. The appellant, Jeanes, also attached an exhibit to his answer, showing an itemized statement of the transactions between himself, F. O. Watkins, and his brother Eugene Jeanes, which showed that the defendant Watkins was due the appellant, Jeanes, the sum of $3.07.

The case was submitted to the jury on the following charge of the court:

“The plaintiff in this cause instituted this suit by petition filed on the 27th day of November,, 1016, praying for judgment against F. O. Watkins on a certain note, dated January 26, 1915, due on November 1, 1915, for the sum of $86, bearing ten per cent, interest and ten per cent, attorneys’ fees, alleged to have been executed by defendant Watkins and delivered to - plaintiff herein.
“Said plaintiff also in said suit prays judgment against said Watkins for the sum of $124.S6, alleged to he due to this plaintiff by said Watkins for goods and merchandise sold by plaintiff *to said Watkins during the year. 1915.
“The plaintiff also asks, a foreclosure of a chattel mortgage alleged to have been executed by the defendant Watkins on January 26, 1915, covering the entire cotton crop to be raised, produced, and gathered by said Watkins, assisted by his family or any hired help, or any lint cotton he may have, during the year 1915, on the farm known as the T. W. Jeanes farm, on any other land he may work or have worked by hired help or otherwise, during said year 1915, alleged to have been executed by the defendant Watkins to secure said‘note and account.
“The plaintiff alleges also that during said year the defendant made, raised, and gathered on said farm mentioned in said mortgage five and one-fourth bales of lint cotton, with the seed from the same, and that said cotton and seed were covered by said mortgage given to secure the payment of said note and account.
“The defendant Watkins having made no answer in this court, judgment was rendered against said defendant on the 27th day of August, 1917 (the day this case was called for trial), for the amount due on said note and account, with a foreclosure of the mortgage lien as prayed for by the plaintiff.
“The plaintiff Jeanes is alleged by plaintiff to have seized and converted the cotton and cotton seed raised by said defendant Watkins during, said year to his own use and benefit, and judgment is asked by the plaintiff against the defendant Jeanes for the value of said cotton and cotton seed so alleged to have been converted.
“The defendant Jeanes has answered in this suit that he was the landlord of the defendant Watkins, and that said Watkins was indebted to him, and that the portion of the crop raised by said Watkins was applied by him, the defendant Jeanes, to the payment due on such indebtedness, and also alleges that said crop was insufficient to pay such indebtedness, and that the defendant Watkins is still due him the sum of $3.07, and denies that he converted any of said crop.
“In order to determine the rights of the parties hereto it will be necessary for you to determine the following facts, viz.:
“1st. Did the relation of landlord and tenant exist between the defendant Jeanes and the defendant Watkins?
“2d. The amount and value of the crop raised by said Watkins on said place.
“3d. The amount of indebtedness due by said Watkins to said defendant Jeanes for supplies furnished by said Jeanes to said Watkins to make, raise,' and harvest said crop during said year.
“The court submits to you certain questions for your determination, and which you will answer.
“Question 1: “Did the relation of landlord and tenant exist during the*year 1915 between the defendant E. O. Watkins and the defendant E. E. Jeanes?. Answer this question ‘Xes’ or ‘No.’ (To ■ this question the jury answered ‘Xes.’)”
Question 2: “If you answer question No. 1 ‘No,’ you need not answer the following question. If you answer the first question ‘Xes,’ then you will answer this question: What was the value of the supplies furnished by the defendant Jeanes 'to the defendant Watkins to enable the. said Watkins to make, raise, and harvest said crop? Answer this question by stating the value of such supplies. (To this question the jury answered ‘$191.63.’)”
Question 3: “If you answer question No. 1 ‘Xes,’ then you will answer the following question: What, was the value of F. O. Watkins’ part of the crop raised during the year 1915 on said farm after payment of the rent due by him? Xou will answer this question by stating the value. (To this question the jury answered ‘$330.46.’)”
Question 4: “If you have answered that the relation of landlord and tenant existed between the defendants Jeanes and Watkins, and have stated the value of supplies furnished by said Jeanes to said Watkins, then you will answer this question: What was the value of the supplies furnished by said Jeanes to said Watkins that were necessary to enable said Watkins to make, raise, and harvest said crop? Xou will answer this question by stating the amount. (To this question the jury answered ‘$191.63.’)
“In this connection you are charged that, in order to create the relation of landlord and tenant, it is not necessary that such agreement be in writing, but may arise from an oral agreement, and, when such relation exists, the landlord has, by virtue of the statute, a first lien on the crops raised by the tenant during the current year to secure the payment of such supplies so furnished as were actually necessary to enable him to make, raise, and harvest such crop, and such lien will cover the animals, tools, and other property furnished by the landlord to the tenant, and the crop raised on the rented premises, but before such lien will cover such property it must appear to you from the facts that the supplies so furnished were actually necessary to enable the tenant to make, raise, gather, secure, house, and put such crop in condition for the market.
“The burden of proof rests upon the plaintiff to establish by a preponderance of the evidence the material allegations of his petition, and, if he has failed to do so, he cannot recover.
“Xou are the sole and exclusive judges of the facts proved, the weight and value of the evidence, and the credibility of the witnesses, but the law you receive from the court and must be governed thereby.”

The first, second, and third assignments are as follows:

(a) The court erred in refusing to sustain the motion ofi the defendant E. E. Jeanes to render judgment for said defendant, notwithstanding the answers of the jury in response to special issues Nos. 2 and 4, as fully appears from said motion filed as a part of the record in this case.

(b) Because the verdict and judgment rendered thereon is contrary to the law and the evidence.

(c) Because the finding of the jury in answer to special issues Nos. 2 and 4 submitted to them for their consideration is without support in the record, because the evidence introduced by the defendant established clearly and conclusively this appellant’s demand against his codefendant Watkins for advances and supplies furnished him to enable him to make a crop on the farm of this appellant for the year 1915 to be $333.53, and there was no evidence introduced in the case which in any manner contradicted the evidence of this defendant on this issue, by reason of which fact this defendant as a matter of law was entitled to a finding in answer to special issues Nos- 2 and 4 in accordance with the evidence in the case offered by this defendant iru support of said claim, and, there being no evidence to warrant thei finding of the jury on said special issues, said verdict on said special issues is insufficient to support the judgment of the court rendered thereon.

It appears from the statement of facts in this case that during the year 1915 E. F. Jeanes rented a farm from his father, and thereafter entered into a partnership agreement with his brother and the defendant E. C. Watkins, wherein it was agreed that they would work said crop, each paying his proportionate part of the expense of so doing, and, on a sale of the products so raised, to deduct the expenses of raising and gathering the crops, and to divide the remainder equally between the three of them. The defendant Jeanes attached as an exhibit to his answer a statement of an account claimed by him against the defendant Watkins. This account was attacked by the plaintiff in this cause on the ground' that a large proportion of the articles on said account claimed to have been furnished by E. E. Jeanes to the defendant Watkins were not such as were necessary to enable the said Watkins to make, raise, and harvest his proportionate part of the crop. The jury, having before it the testimony of both Watkins and Jeanes and the other witnesses, found from the evidence that $191.63 was the total value of the articles furnished by the said Jeanes to the said Watkins to enable him to make, raise, and harvest his proportionate part of the crops. The jury found from the testimony that the relation of landlord and tenant did exist between Watkins and Jeanes; it found the value of E. C. Watkins’ proportionate part of the crop was $330.46; it found that the value of the articles furnished by Jeanes to Watkins necessary to enable Watkins to make, raise, and harvest his proportionate part of the crop was $191.63. It was admitted by the defendant Jeanes in this case that he received in cash from the sale of the products from said farm $991.38, one-third of which, $330.46, was due F. O. Watkins as his proportion of the crop. The jury having returned its answers to the questions submitted to it, finding as above stated, the court rendered judgment against the defendant B. P. Jeanes in favor of the' appel-lee herein for the sum of $138.83. The appel-lee having a mortgage on record executed by E. O. Watkins on said crop, and. B. E. Jeanes having, converted to his own use and benefit the amount of $138.83, as found by the jury, we are not able to say that the jury were not authorized to render said judgment, and the facts justified the same. The assignments are all overruled, and the judgment of the lower court is in all things affirmed.

On Rehearing.

KING, J.

At a former date this cause was affirmed, but upon motion for rehearing, after a careful study of the evidence, we have come to the conclusion that the court was in error in so affirming the judgment, and that appellant’s assignment of error that there was no testimony in the record that would justify the verdict of the jury ought to be sustained.

We have looked in vain for any testimony that would support the verdict of the jury that the value of the supplies furnished Watkins by appellant Jeanes was $191.63. Jeanes testified positively that the account was $333.53, and he was strongely corroborated by his tenant, Watkins. The only evidence introduced by appellee to the contrary was a letter from Jeanes of date February 7, 1916, that the amount Watkins owed him for supplies was $200. Had the jury returned a verdict setting the amount at $200 we would not feel inclined to disturb it, but under no possible theory of the evidence can the sum of $191.63 be arrived at. A jury cannot arbitrarily set an amount in a verdict that is not sustained by the evidence.

The motion for rehearing is granted for these reasons, and the cause is reversed and remanded.
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author: HARPER, C. J.

text:
    RAVEL v. HAYMON KRUPP & CO.
    (No. 873.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1918.)
    1. Appeal and Error <&wkey; 1091(2) — Presumptions — Oral Pleadings — Intermediate Courts.
    Where pleadings in justice court are oral, and no record made on appeal, the presumption on appeal from intermediate court is that they were consistent with the rulings of the trial court.
    2. Evidence <&wkey;317(10) — Hearsay — Counterfeit Money.
    In action for goods sold and delivered under defense of payment, where the reply alleged that the money was ■ counterfeit, evidence that the collector of customs declared the money counterfeit, confiscated it and refused to return it, was inadmissible to show that the money was counterfeit.
    3. Appeal and Error <&wkey; 1050(1) — Prejudice —Admission oe Evidence.
    In action for goods sold and delivered under defense of payment, and reply alleging that money paid was counterfeit,' the error in admitting hearsay testimony, as to whether the money was counterfeit, was prejudicial, where no otíier testimony on the subject was offered.
    Appeal from El Paso County Court, at Law; W. P. Brady, Judge.
    Action by Haymon Krupp & Co. against Sam Ravel. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    M. W. Stanton, of El Paso, for appellant.
    E. C. Knollenberg and Chas. H. Veale, both of Hi Paso, for appellee.
   HARPER, C. J.

This action was brought in the justice court by Krupp & Co., against Sam Ravel, upon an account for $118.61, for merchandise sold and delivered.

Defendant pleaded payment in Villa money and set up written receipt, which by express terms accepts it unqualifiedly as payment of the debt. Judgment went for Ravel in justice court, was appealed to county court, and from judgment there rendered in favor of appellee, this appeal.

4 We glean from the record that the Villa money was delivered by appellant at a discount in payment of the bill. Appellee contends that it was received conditioned upon its being genuine money of the Pancho Villa issue and that it proved to be counterfeit.

Appellant urges:

(1) That there were no pleadings to support the judgment under the conclusion of law by trial court that it was counterfeit.

(1) Where pleadings are oral in justice court, and no record made upon appeal, the presumption is that they were consistent with the rulings of the trial court. Railway Co. v. Goodman, 189 S. W. 326.

(2) That there was no evidence to establish that the money was counterfeit.

(3) That the only evidence adduced concerning its being counterfeit was hearsay, and its admission objected to for that reason.

These assignments must be sustained. Substantially, the whole of the testimony offered in proof of its being counterfeit is:

“That upon receipt of the bills they were taken to Juarez, Mexico, to be hypothecated for their exchange value in United States currency; that upon presenting them the collector of customs of the port declared them counterfeit, confiscated them, and refused to return them.”

The admission of this testimony was properly and timely objected to, for the reason that it was hearsay, and the objection overruled by the court. This ruling was error, for which the cause must be reversed and remanded, for, without this, in view of the written receipt accepting the money as payment, there is no evidence to support the finding that it was counterfeit.

Reversed and remanded.
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author: HALL, J.

text:
    GALLAGHER v. LIVERPOOL & LONDON & GLOBE INS. CO.
    (No. 1394.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1918.
    Rehearing Denied Nov. 13, 1918.)
    Insurance <&wkey;125(2) — Agent’s Agreement to Renew — Authority — Laws Applicable.
    Where property in Oklahoma was insured by Oklahoma standard policy after negotiations in such state, the effect of policy provisions as to the right of insurer’s agent to bind insurer by agreement to renew was governed by laws of Oklahoma.
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Action by M. N. Gallagher against the Liverpool & London & Globe Insurance Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    O. E. Gustavus, of Amarillo, for appellant.
    Locke & Locke, of Dallas, and Veale & Lump-kin, of Amarillo, for appellee.
   HALL, J.

Appellant sued the appellee insurance company to recover $1,000 and interest upon an oral contract to renew a policy of fire insurance issued by appellee to one George I-Iuckeby. The policy covered a brick building situated in the town of Mani-tou, Tillman county, Okl., and was effective from noon of April 24, 1916, to noon of April 24, 1917. Appellant alleged that he purchased the property from Huckeby, and that the insurance policy was assigned to him October 12, 1916; that on or about April 8, 1917, he wrote appellee’s agents, Hines & Wells, at Manitou, Okl., to renew the insurance and collect the premium from the tenants occupying the insured building; that said agents received said letter, accepted and acted upon the request to renew the policy, but through neglect or error failed to issue a renewal policy, being under the impression that the original policy did not expire until about May 14, 1917; that on April 24, 1917, and after the expiration of the original policy, the building was totally destroyed by fire; that the value of said building was $1,000. Appellant further alleged that by reason of the agreement to renew the policy of insurance appellee became bound and obligated to pay the loss sustained. The prayer is in the alternative, that appellant have specific performance of the agreement to renew and that he recover the damages sustained.

Appellee answered, denying that Hines & Wells had renewed the policy, or that they had any authority to make any contract or promise in advance to renew it. There was also a special denial of the agreement as alleged by plaintiff. It is alleged that the property in question was situated in Oklahoma; that Hines & Wells resided in Oklahoma, and possessed no authority as its agents outside of that state; that all negotiations between appellant and said agents occurred in Oklahoma, and that the extent of their authority as agents, and the obligation, if any, of appellees, should be determined by the laws of Oklahoma; that according to the law of that state then in force, and recently declared by the Supreme Court of Oklahoma in the case of Oklahoma Fire Insurance Co. v. Fay Mercantile Co., decided November 16, 1915, reported in 52 Okl. 446, 153 Pac. 127, L. R. A. 1916C, 779, the said Hines & Wells were without authority from the defendant to make the alleged agreement, and if the agreement was made it was personal on their part.. The court directed a verdict in favor of appellee insurance company.

Under a number of assignments appellant insists that this action was error. The report of the case of Oklahoma Fire Insurance Co. v. Fay Mercantile Co., as published in 52 Okl. 446, 153 Pac. 127, L. R. A. 1916C, 779, was introduced in evidence. It is shown by the statement of facts that the policy of insurance in the instant case is what is known as the Oklahoma standard policy, and was identical in its general terms and stipulations with the policy considered by the Oklahoma Supreme Court in the Fay Mercantile Co. Case. We will not undertake to consider the numerous assignments urged by appellant, since under the view we take of the case the trial court was justified in directing a verdict for appellee. In the first place, we incline to the opinion that appellant failed to prove a contract with appellee, through its agents, Hines & Wells, to renew the policy; but we do not deem it necessary to rest the decision upon that finding. Wells testifies to the receipt of the letter from Gallagher, instructing him to collect the rents from the lessees of his building and with the proceeds to pay the premium upon the policy, when renewed; but he would not testify positively that he ever notified Gallagher of his intention to so act. In the statement made by the Oklahoma Supreme Court it appears that in the Fay Mercantile Case the policy of insurance was issued on November 2, 1910, effective for one year; that at the time of its issuance, and subsequently to that time, the agent agreed with the owner of the property that, when the policy expired, he would renew it. The agent overlooked the matter, and the property was burned a few hours after the expiration of the policy. On the day following the loss the agent, with knowledge of the insured, issued a renewal policy, antedating it November 2, 1911.

It is thus seen that the facts are almost identical with the facts in the instant case. The Oklahoma policy contains the provision that no officer, agent, or other representative of the company shall have power to waive any provisions or conditions of the policy, except such as by the terms of the policy may be subject to agreement or may be indorsed thereon. The stipulation in regard to renewals is as follows:

“This policy may by renewal be continued under the original stipulations in consideration of premium for the renewed terms, provided that any increase of hazard must be made known to this company at the time of renewal, or this policy will be void.”

Since the state of Oklahoma is the lex loci contractus, the controversy must be determined according to the law of that juris- . diction. We will not unnecessarily prolong this opinion by quoting at length from the opinion in the Fay Case. Suffice it to say that, after quoting at length from Ostrander on Insurance, p. 39, to the effect that no agreement to insure at a future time will be enforceable, and from 2 Clement on Fire Insurance, p. 499, announcing the same doctrine, and the citation of a number of authorities from other jurisdictions, the court held that in view of the stipulations contained in the policy mentioned above, and especially of the proviso in the renewal clause, Hines & Wells had no authority to enter into an agreement to renew the policy, or to renew id after loss. Whatever the holding may be in other jurisdictions, that ease would preclude appellant from recovering in the courts of Oklahoma, and under the rule of lex loci he cannot recover in this state.

The court did not err in directing a verdict for appellee, and the judgment is affirmed.
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author: HIGHTOWER, C. J.

text:
    WHITE et al. v. TEGNELL et ux.
    (No. 368.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 22, 1918.)
    1. Vendor and Purchaser <&wkey;267.— Vendor’s Lien — Partial Release.
    Vendee cannot avail himself of the right to partial release of vendor’s lien without strict compliance with conditions of the deed governing such right.
    2. Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Release—Compliance with Conditions.
    Under deed containing provision for partial release of vendor’s lien, vendees were entitled to such a release upon payment of one of purchase-money notes, though upon resale of part of land to be released from lien they had not tendered money received from such resale to vendors and demanded release.
    3. Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Release—Compliance with Conditions.
    Under deed provision for partial release of vendor’s lien, vendees held entitled to such release upon payment, although making no demand at time of payment.
    4. Evidence <&wkey;448 — Deed — Parol Evidence as to Intention.
    Where provision in deed as to partial release of vendor’s hen was unambiguous, and the meaning ascertainable, from deed itself, parol evidence by one of the parties as to the meaning of such provision was inadmissible.
    Appeal from District Court, Chambers County; J. Llewellyn, Judge.
    Suit by J. E. Broussard against R. M. White, J. T. White, Josephine Connerly, F. T. Connerly, and others, in which G. N. Tegnell and wife intervened. Judgment for plaintiff and for interveners on the plea of intervention and the defendants named appeal.
    Affirmed.
    E. B. P'ickett, Jr., of Liberty, for appellants.
    H. E. Marshall, of Liberty, for ap-pellees.
   HIGHTOWER, C. J.

This was a suit by J. E. Broussard, plaintiff, against the appellants here, who are J. T. White, R. M. White, Josephine Connerly, and F. T. Connerly, and also against C. A. Elmen, C. Glenn Nichols, M. W. Witham, and Gilbert Griffey, all of whom were made defendants below. The ap-pellees here, who are G. N. Tegnell and his wife, intervened in the suit.

On the 1st day of April, 1913, the above-named appellants, J. T. White, R. M. White, Josephine Connerly, and her husband, J. T. Connerly, conveyed to C. A. Elmen and C. Glenn Nichols a tract of land in Chambers county, containing 640 acres, for the total consideration of $10,880, $2,000 of which amount was paid in cash at the date of thei execution of the deed, and the balance of the purchase money was evidenced by four notes, each for the sum of $2,220, which notes were made due and payable one, two, three, and four years thereafter, and numbered Nos. 1, 2, 3, and 4, and the vendor’s lien was expressly retained in both the deed and notes to secure the balance of the unpaid purchase money.

The deed from appellants to Elmen and Nichols contained this provision:

“The said 0. A. Elmen and O. Glenn Nichols, tljeir heirs and assigns, shall have the right to demand releases of the above-described vendor’s lien as to any and all forty (40) acres or larger tracts of the above-described property upon payment of the pro rata amount (to be determined by acreage alone) of the indebtedness secured by the lien herein retained and reserved, constituting a lien against such tract or tracts; and the said J. T. White, R. M. White, Josephine Connerly and husband, E. T. Connerly, for themselves, their heirs, executors, and administrators, expressly covenant and agree to promptly execute and deliver any and all such releases upon such payments and demand, it being understood that the amount or amounts of all such payments are to be credited upon whichever one of the above-described notes shall fall due next after such payments.”

It appears from the record that Elmen and Nichols made 13 separate conveyances of the above-mentioned -tract of land, by which title to separate tracts thereof passed to that number of different purchasers under them; and, finally, as appears from the record, the defendants Witham and Griffey acquired the title to said survey by purchase from all of the 13 different persons to whom Elmen and Nichols had conveyed the same, subject, of course, to the vendor’s lien retained by appellants.

When note No. 1, for the sum of $2,220, as above mentioned, became due or within a very few days after it was due, the full amount thereof was paid to appellants, who at that time still owned and. held all four of said purchase-money notes, and said note No. 1 was marked paid in full and delivered by appellants to the persons by whom the same was paid. Thereafter appellants transferred and assigned to the plaintiff, J. E. Broussard, said notes Nos. 2, 3, and 4, and the said Broussard brought this suit seeking a judgment thereon against Elmen and Nichols as makers of said notes, and also against appellants for the full amount thereof, and also prayed for foreclosure of the vendor’s lien upon said entire tract of land as against all of the defendants. After the suit was filed by Broussard the defendants Wit-ham and Griffey, then holding the title to the entire tract of land in question subject to the vendor’s lien retained in the deed from appellants to Elmen and Nichols, conveyed all of their right, title, and interest to the entire 640-acre tract of land to Mrs. Jennie B. Tegnell, who, joined by her husband, G. N. Tegnell, thereafter intervened, and claimed that interveners were entitled to a judgment for an undivided 240 acres of said 640-acre tract, as against the defendants, by reason of the release clause contained in said deed from appellants to Elmen and Nichols, here-inabove quoted.

To this plea of intervention on the part of appellees the appellants, R. M. White, J. T. White, Mrs. Josephine Connerly, and F. T. Connerly, answered by general denial, and specially alleged that interveners were not entitled to have released any part of said survey of land from the vendor’s lien reserved in the deed from appellants to Elmen and Nichols, for the reason that, when the several subsequent vendees through whom interveners claim we|re deeded, separate tracts out of said survey, no demand was made for a release of any of said separate tracts, nor were appellants paid any part of the purchase money which said subsequent vendees paid to the original vendees, Elmen and Nichols; and, further, that by the release clause contained in the deed to Elmen and Nichols it was the intention and agreement of all the parties thereto that, as the vendees might make sales of any tract of 40 acres or more, then thei vendees, on, demand, should have the right to a release of the tracts so sold, provided appellants were then paid a sufficient sum to complete the full purchase price of the tract or tracts thus being sold by the original vendees, such price to be computed on an acreage basis; that, when said several sales were made by Elmen and Nichols, no part of the purchase money paid by such subsequent vendees or any of them was ever paid to appellants, and no demand was ever made for a release of the several particular tracts sold by the original vendees, as above stated. Appellants also pleaded that, after their vendees executed such deeds for said 13 separate tracts of land, they failed to pay notes Nos. 2 and 3 as they matured, but defaulted in their contract, and thereby lost whatever right they might have had by virtue of said release clause in the deed from appellants to Elmen and Nichols.

The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff, Broussard, against the appellants and Elmen and Nichols for the amount of the three notes sued upon, and for. foreclosure of the vendor’s lieni upon an undivided three-fourths of said 640 acres of land as against all of the defendants and the interveners, but, upon their plea of intervention, judgment was rendered against the plaintiff and all the defendants in favor of the interveners for tíre recovery of the title and possession of an undivided one-fourtli, or 160 acres of said survey.

We find ini appellants’ brief three assignments of error. The first and second assignments are grouped, and are, substantially, as follows:

By the first assignment it is contended that the trial court erred in holding that the vendor’s lien retained in the deed from appellants to Elmen and Nichols should be foreclosed only to the extent of threei-fourths of the land by. the deed conveyed, and in refusing to hold that the vendor’s lien should be foreclosed upon, the entire survey. And by the second assignment it is contended that the court should not have rendered judgment in favor of the interveners for an undivided one-fourth of said survey, and thereby entirely free and release 160 acres of the same from the vendor’s lien, as expressly reserved in the deed from appellants to Elmen and Nichols. The two assignments really constitute but one, and will be so treated.

Under these assignments it is contended, first, that a vendee in a deed expressly reserving a vendor’s lien on an entire tract of land conveyed thereby, who is by a clause in the deed given the right to release a portion of the land under specified conditions, cannot avail himself of that right unless he complies strictly with the terms of the provision entitling him thereto.

We have no fault to find with this proposition of law contended for by appellants, but believe that the samei is sound. We cannot agree, however, with appellants in their contention that the interveners in this case were not in a position to claim the benefits of the release clause contained in the' deled from appellants to Elmen and Nichols to the extent of 160 acres of the land thereby conveyed, as was awarded to them by the trial court. As is stated above, when note No. 1 became due, or very shortly thereafter (and no point was made on the date of payment of note No. 1), the same was paid and appellants marked the same canceled and satisfied. This note was for $2,220, and, as we construe the release clause contained in said deed from appellants to Elmen and Nichols, the vendees of Elmen and Nichols were entitled to a release from the vendor’s lien of any and all tracts of land purchased by them amounting to as much as forty acres, or larger tracts, whenever appellants were paid the money therefor. It is plain from the language of the release clause in the deed, we think, that whatever rights Elmen and Nichols had under the clause passed to their vendees.

It is ai-gued by appellants that the release clause .in the deed to Elmen and Nichols shows that the payment in a lump sum of one of the notes, to settle the note in full at maturity or thereafter, was not to be considered as a payment entitling the vendees or their assigns to a release of any portion of the land. In other words, it seems to be the contention of appellants that the payment of note No. 1 in full was not a payment entitling anybody to a release as to any portion of the land, because the release clause does not provide; but that it was intended by the release clause in said deed that, when as much as 40 acres or a larger number of acres was sold at any one time by Elmen and Nichols, the consideration received therefor should then and there be paid to appellants, and a release then and there demanded in each separate instance; and that since this was not done, and since no payment was made to appellants until enough of the land had been sold and sufficient purchase money obtained to pay note NO. 1 in full before any part of such purchase money was paid to appellants, that the release clause in the deed was not strictly complied with, and that, therefore, the in-terveners, claiming the benefit of this clause in the deed were not entitled to have any portion of the land freed from the vendor’s lien.

It is the contention of appellees, on the other hand, that the vendees under the deed from appellants to Elmen and Nichols having, at maturity and before suit was filed, tendered to appellants and paid to them the amount in full of note No. 1, which tender was accepted and the note canceled, was a full compliance -with the release clause in the deed hereinbefore mentioned, and that upon such payment said vendees were entitled to a pro rata release, as found by the court, and we think that this contention on the part of appellees is correct.

As authorities in support of their contention under these assignments, appellants cite Webster v. Land, etc., Co., 24 S. W. 572, and Calif. State Life Ins. Co. v. Elliott, 193 S. W. 1096, both Texas cases. We have examined carefully both of these cases, and we believe that neither of them can be considered authority in favor of appellants’ contention on this point. In the Webster Case it is quite clear that there was a failure on the part of the vendee in that deed to comply with the release clause in a very material particular, the details of which it is unnecessary to here mention; and in Calif. State Ins. Co. v. Elliott, the amount required to be paid by the vendee in that deed before release of the vendor’s lien might be' had was not only not paid to the vendor, but was not even tendered to the vendor until suit had been brought to foreclose the vendor’s lien on the entire tract conveyed by the deed.

In the instant case the amount of note No. 1 was not only tendered to appellants, but said note was actually paid in full to them, and was accepted by them, and said note was canceled and delivered to their vendees; and we think that the trial court did not err in holding, as it did in effect, that the payment of note No. 1 for $2,220, while same was held by appellants, at once gave to appellants’ vendees and interveners holding through them a right to have the véndor’s lien released to the extent of such payment, which, considered upon an acreage basis, as provided in the release clause, entitled the' appellees to have 160 acres of the tract freed from the vendor’s lien reserved in the deed from appellants to Elmen and Nichols. We really do not think that the provision contained in the deed from appellants to Elmen and Nichols on this point is susceptible of any other reasonable construction than that placed upon it by the trial court.

The second proposition under these assignments is, in substance, that appellees were not entitled to the relief awarded them by the trial court, because the proof showed that no demand was ever made for the- Release until this suit was filed praying- foreclosure of the vendor’s lien as to the entire tract.

It is true that the record fails to show that there was any formal demand made by any one for a release of any portion of the land from the vendor’s lien until the same was made by the prayer contained in the plea of intervention interposed by appellees; but it is our opinion that this can make no difference, for the reason that it is manifest that the release clause in this deed was intended for the benefit of appellants’ vendees and their assigns, and there could be no necessity for showing a formal demand on the part of any of such vendees for the release, but the right thereto became complete when the amount of note No. 1 was paid. The fact that no formal demand was made could not be considered as an estoppel of any character against appellees, and the trial court did not err in so concluding.

The third assignment of error complains of the action of the trial court in refusing appellants permission to introduce the testimony of the witness R. M. White, showing what his construction of the release clause in the deed was, according to the intention of the parties at the time it wasi executed. It is shown by appellants that this witness would have testified, in substance, that the intent and meaning of the release clause contained in the deed to Elmen and Nichols was that as the vendees in said deed might make sales, after obtaining said deed, of any tract or tracts of 40 acres or more out of the section of land conveyed thereby, the vendees, on demand, should have the right to a release of the tract so sold, upon thei proviso and condition that the grantors in said deed were then and there paid a sufficient sum upon the unpaid purchase money to complete 'the full purchase price of the tract or tracts so sold by thé original ven-dees, such purchase price to be computed on an acreage basis, and that such was the intention and agreement of all parties to said deed; and, further, the testimony of said White would have been, had he been permitted to testify,' to the effect that no demand was ever made by the vendees in said deed, or by any subsequent vendees, or by the interveners herein, or any one else, for a release of the several particular tracts of land out of. said section, which the original vendees conveyed, or for a release of any one of said tracts of land.

We do not believe that the trial court was in error in excluding this testimony, for the reason that the meaning of the parties to the deed in question, in this connection, is made plain and clear from the instrument itself; and, therefore, in our opinion, it would have been error to have admitted this testimony, because it is only in instances where written instruments are ambiguous, and the meaning of the parties thereto cannot be gathered clearly therefrom, that testimony of this character would be admissible.

We believe that the trial court was! correct in its construction of the release clause contained in the deed from appellants to Elmen and Nichols, and in granting judgment in favor of appellees-for a one-fourth undivided interest in the land conveyed by appellants in that deed.

It follows from what we have said that this court is of the opinion that none of the assignments of error should be sustained, and that the judgment of the trial court should be in all things affirmed; and it will be so ordered. '
      &wkey;?For' other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SOUTHWEST TEXAS OIL & GAS CO. v. BOYKIN.
    (No. 865.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1918.
    Rehearing Denied Nov. 14, 1918.)
    1. Public Lands <§=>54(7) — Forfeiture of Purchase — Subsequent Purchase — Recovery from Oil Prospector.
    The right to repurchase given by Acts 33d Leg. c. 160 (Vernon's Say les’ Ann. Civ. St. 1914, arts. 5423a-5423f), to one whose purchase of public school lands is forfeited for nonpayment of interest, does not constitute such title as to entitle him to compensation or damages from one who between the forfeiture and purchase obtains permit from the state to prospect for oil; chapter 173, § 29 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5920g), denying such recovery to a subsequent purchaser of the land.
    2. Appeal and Error <®=»719(S) — Assignments op Error — Fundamental Error.
    Rendering judgment for plaintiff unsupported by any evidence is fundamental error, apparent on the face of the record, requiring reversal, though there be no assignment of error.
    Appeal from Terrell County Court; J. B. Ross, Judge.
    Action by M. F. Boykin against the Southwest Texas Oil & Gas Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    A. T. Folsom, of Sanderson, for appellant.
    Emmett B. Cocke, of San Antonio, for appel-lee.
   HARPER, C. J.

May 28, 1912, Boykin purchased from the state of Texas sections of land Nos. 148, 150, and 156, and in due course of time filed proof of occupancy and improvements.

An act of the regular session of the Thirty-Third Legislature 1913, c. 160 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5423a-5423f), provided that public school lands purchased after January 1, 1907, and prior to January 1, 1913, may he forfeited.for nonpayment of interest and gave the purchaser the right to repurchase after classification and reap-praisement.

On July 30, 1914, the lands in question, were forfeited by the land commissioner for nonpayment of interest. July 27, 1914, Boy-kin made request of the land Commissioner to reappraise.

On August 5, 1915, Folson and Anderson filed their applications to prospect for oil on sections 148 and 150, and September 10, 1915, permits to each of them were issued. On October 9, 1915, Savage filed application to prospect for oil and gas on 156, and permit was issued thereon December 1, 1915. On October 17, 1915, the sections in question were reappraised. December 17, 1915, Boy-kin made his proof of occupancy and certificate issued December 22, 1915. On January 13, 1916, the lands were reawarded to Boy-kin.

Boykin instituted this suit to recover the sum of $202.84, alleging this to be the balance due him at 20 cents per acre per annum. Further alleges that defendant drilled a well for water on section 148, from which it took water to the value of $500, and prays judgment for a total sum of $702.84.

The defendant answered by general demurrer and general denial, and specially answered that the lands were not owned by the plaintiff at the time the applications to prospect for oil were made; that therefore, under the statute, he had no claim for rents or for damages. Tried with jury and verdict and judgment entered for appellee for $202.-84, from which this appeal.

Appellee urges that, the motion for new trial having been filed after the adjournment of court for the term, it could not and did not form a basis for assignments of error, which is conceded; but there is an error apparent upon the face of the record which must necessarily reverse the case, because fundamental.

The agreed statement of facts discloses, as above indicated, that plaintiff’s right to the land was forfeited for nonpayment of interest July 30, 1914, and reawarded to him January 13, 1916. The applications to prospect for oil were all filed prior to the last award and after the title was forfeited. We are therefore of the opinion that plaintiff had no title to the land at the time applications to prospect were filed; holding with the case of Houston Oil Co. v. Keese-Corriher Dumber Co., 181 S. W. 745, that the naked right to reinstate did not constitute such title as to authorize a' recovery in view of section 29 of chapter 173, Gen. Laws 33d Leg. (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5920g), which reads:

“The issuance of a permit or lease or filing of prospector’s affidavit on unsold land included in this act, shall not prevent the sale of the land * * . * but in case of such sale after an application * * * the purchaser of such land shall not be entitled to any part of the proceeds of such mineral or mining location nor other compensation, nor shall such purchaser have any action for damages done to such land by or resulting from the proper working or operation under such permit, lease or prospector’s claim.”

That it is fundamental error to render judgment for plaintiff unsupported by any evidence, see Harper v. Dodd, 30 Tex. Civ. App. 287, 70 S. W. 223; Freeman v. Bank, 145 S. W. 685; Austin Fire Ins. Co. v. Brown, 147 S. W. 680; Schriver v. McCann, 155 S. W. 317.

Appellee urges by cross-assignment ■ that he should have been given judgment for the value of water taken from the well drilled for water by defendant and used in the work of prospecting for oil and gas. It follows that the reason given for the holding that he has had no cause of action applies to this count in the bill, for, if its obligation is to the state and not to the plaintiff in conducting the prospecting, section 23 of the same act (article 5920a) gave it the right to occupy the land for buildings, etc., necessary for operation, and appellee took his title with notice of such-rights already acquired.

For the reasons assigned above, the cause must be reversed and rendered, and it is so ordered.
      <§^=>iror-other oases see same topic-and KEY-NUMBER in all Key-Numbered. Digests and Indexes


author: HALL, J. ROiTGE, J.

text:
    LUMPKIN v. BROWN.
    (No. 1377.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1918.
    On Second Motion for Rehearing, Nov. 13, 1918.)
    1. Pledges <©=37 — Invalidity of Debt — Effect as to Pledge.
    Where note given by railway company for money borrowed was void for failure of officers of company to comply with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717, 6727, defendant holder would have no right to enforce notes received by company for stock and pledged by it as collateral, although defendant had a cause of action against company on implied promise to pay money received.
    2. Payment <©=385(2) — Recovery—Mistake.
    Where note given by plaintiff to railway company for -stock was turned over by it to defendant as collateral to note of company indorsed to defendant for money borrowed, plaintiff, who paid collateral note to defendant under mistaken belief induced by representations of defendant’s agents that defendant was rightful and innocent holder, was entitled to recover from defendant money paid, the company’s note being void for failure to comply with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717, 6727.
    Appeal from District Court, Dallam County; Reese Tatum, Judge.
    Action by O. L. Brown against A. A. Lump-kin, administrator. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Jno. W. Veale, of Amarillo, and Del W. Harrington, of El Paso, for appellant.

      Crudgington & Works, of Amarillo, for ap-pellee.
   HALL, J.

The Enid, Ochiltree & Western Railroad! Company organized to construct a line of road from Dalhart, Tex., to Ochiltree, Tex., secured a number of subscribers to its stock, who lived along the proposed line of road; appellee being one of such subscribers. September 1, 1910, the directors of the com-' pany executed the obligation of the company in the sum of $28,000, delivering the same to one P. R. Dennis, with instructions to negotiate it for the sum of $25,000. The directors attached to this note as collateral security for its payment subscription notes to the amount of over $38,000, appellee’s note in the sum of $2,984.52 being, included with those of other subscribers. The original note authorized the holder thereof, in the event of a failure on the part of the railway company to pay at maturity, to sell the collateral notes or any part thereof, applying the proceeds of such sale to the payment of the principal and interest of the original note and the expenses of sale. The original note was sold by Dennis to Charles R. Jones, and upon the maturity thereof he advertised and sold the collateral notes and became the purchaser thereof at said sale. In the case of Jones v. Abernathy, 174 S. W. 682, this court held that the original note for $28,000, having been issued by the directors and mana-’gfirsi without complying with the requirements of Vernon’s Sayles’ Civil Statutes, arts. 6717 and 6727, was void; and further held that since the original note wasi void Jones was not entitled to recover against the several makers of the collateral notes. See, also, Otto v. Halff et al., 89 Tex. 384, 34 S. W. 910, 913, 914, 59 Am. St. Rep. 56. Jones purchased the original note September 14, 1910, and on December 11, 1911, sold and purchased the collateral notes for $4,000 and certain lands belonging to the railway company for $1,000. Prior to such sale, the railroad company had been declared insolvent and the district court of Dallam county had appointed a receiver for its properties in December, 1910. The receivership was closed on the 3d day of November, 1912. At the tipie of the appointment of a receiver, only about 14 miles of track from Dalhart toward Ochiltree had been completed. It appears from the record that appellant Lumpkin was appointed administrator of the estate of Charles R. Jones, who died about the - day of -, 1914.

On April 1, 1913, appellee paid off his note which was at that time held for collection by the bank at Dalhart. This suit was filed in February, 1916, to recover the amount of such payment. Appellee alleged the facts above set out, and further alleged that his subscription to the stock of such railroad company, for which his note was executed, was procured by certain representations, promises, and assurances made to him by the promoters and officers of said railroad company, to the effect that the greater part of the capital stock had been paid in or would be before appellee’s liability on said note would be insisted upon, and made further false representations as to where and when said road could be constructed. He alleged failure of consideration, the issuance of the $28,000 note without compliance with the stock and bond law of this state, and further that at the time he paid his note to appellant’s decedent he did not know that the $28,000 note had been executed by the railroad company and sold to Oharl.es R. Jones, and did not learn of such facts until along in February, 1915. He alleged that appellant’s right to recover other than upon the collateral note was barred by limitation, and by supplemental pleading denied under oath the agency of F. R Dennis to transfer the note sued on, and explained that only $1,425 of his note for $2,984.72 represented his subscription for stock, and that his claim for same had been properly proven and presented to the administrator and by him rejected.

The appellant alleges that, at the time Charles R. Jones purchased the note for $28,-000, he resided in the state of Illinois; that he was ignorant of the acts of the promoters of the railroad in the conduct and management of its affairs, as well also as of the laws of this state regulating the issuance and sale of railroad securities; that he purchased the note for $28,000 and the collateral notes in due course of trade, paying value therefor, and without knowledge of the alleged fraud and misrepresentation of the officials of said railway company. It is further alleged that appellee, at the time of the execution and delivery of said note, was a stockholder in said railroad and was indebted to said railroad to the extent of the par value of the shares for which he had subscribed, and for which the note and mortgage were given; that by reason of the purchase by Charles R. Jones of said note he became sub-rogated to all the rights of the railroad to the note of appellee; that at the time of the payment of said note by appellee he was fully advised and in possession of all the facts and information pertaining to the affairs of the railroadi company, and at said time knew of the alleged falsity of the representations made to him inducing him to execute said note; that he voluntarily paid the same and is estopped to recover. Appellee further alleged that the money furnished by Jones was used in and about the construction and equipment of said railroad, and that if ap-pellee had any cause of action for deceit or misrepresentation it was against said railroad company, and not against Jones or his estate. By trial amendment, appellant set up laches on the part of appellee in not promptly disavowing his contract after his discovery of the alleged frauds practiced on him; that appellee was a stockholder in the railroad company before and at tbe time appellant’s decedent purchased the note; and that Dennis being appellee’s agent, and appellant’s decedent relying on the representation and] statement of said Dennis as to the validity of the note, estops appellee from setting up its illegality for fraud or any other reason. A trial before the court without a jury resulted in a judgment for the appellee in the sum of $2,343.40 and costs of suit.

Under the first and second assignments, the proposition is urged that one who has in good faith furnished money in the purchase of bonds which are by statute declared void, under the belief that they were valid, may recover the money so furnished, independent of the statutory infirmity of such obligations. A number of authorities are cited to sustain this proposition, amongst them Louisiana City v. Wood, 102 U. S. 294, 26 L. Ed. 153. In that case the appellee was permitted to recover against. the city of Louisiana, not upon the bonds issued by the city in violation of the statute and purchased by him, since the court declared that by reason of the violation of the statute the bonds were invalid, but the recovery was decreed upon equitable grounds; the court saying:

“It is equally true, that the legal effect of the transactions by which the plaintiff and his assignors got possession of the bonds was a borrowing by the city of the money paid for what was supposed to be a purchase of the bonds. As the broker through whom the business was done was the agent of the city and acting as such, the case, so far as the city is concerned, is the same as though the money had been paid directly into the city treasury and the bonds given back in exchange. The fact that the purchasers did not know for whom the broker was acting is, for all the purposes of the present inquiry, immaterial. They believed they were buying valid bonds which had been negotiated and were on the market, when in reality they were loaning money to the city, and got no bonds. The city was in the market as a borrower, and received the money in that chax--acter, notwithstanding the transaction assumed the form of a sale of its securities. The city, by putting the bonds out with a false date, represented that they were valid without registry. The bonds were bought and the price paid under the belief, brought about by the conduct of the city, that they had been put out and had become valid commercial securities before the registry law went into effect. It would certainly be wrong to permit the city to repudiate the bonds and keep the money borrowed on their credit. The city could lawfully borrow. The objection goes only to the way [in which] it was done. As the purchasers were kept in ignorance of the facts which made the bonds invalid, they did not knowingly make themselves parties to any illegal transaction. They bought the bonds in open market, where they had been put by the city in possession of one clothed with apparent authority to sell. The only party that has done any wrong is the city. * * * ‘The obligation to do justice rests upon all persons, natural or artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation,’’” etc.

Tbe facts in the .ease are that on the 28th day of March, 1872, the Legislature of Missouri passed an act providing for the registration of bonds issued by municipal corporations, providing that all bonds thereafter issued to become valid must be issued, registered, etc., under its provisions. In July, 1872, after the act became operative, the city council of Louisiana, Mo., issued the bonds in question, reciting that they were issued under the ordinance of 1867, and fraudulently antedating them as of the date of January 1, 1872, thus causing the bonds to appear as though they did not come within the provisions of the act of March, 1872, and this was a fact of which the purchaser of the bonds was ignorant, and upon his ignorance of this fact his right to recover was predicated. In the purchase of the $28,000 note by Jones it has never been shown that he was ignorant of any fact, but it was alleged and shown that he was ignorant of the law, a failure to comply with which rendered the note purchased by him void.

The rule announced in the Louisiana v. Wood Case is a salutary one and has been adhered to by a number of decisions, but it has no application here. This is not a suit by Jones or his administrator against the railroad company, seeking to recover upon equitable grounds money loaned to the railroad company. As heretofore held in the Jones-Abernathy Case, the invalidity of the principal debt destroyed Jones’ claim upon the collateral securities held for its payment. He was therefore not the pledgee of the collateral paper, including appellee’s note, and his sale under the authority given him in the original note was void, and his purchase at said sale gave him no right to any of the collateral notes. He was therefore not entitled to any of the proceeds of said notes. The principle announced in the Louisiana-Wood Case and relied upon by appellants in this controversy can in no way be made to apply for the further reason that the corporation known as the Enid, Ochiltree & Western Railroad Company is a separate and distinct entity in so far as its stockholders are concerned. They are not responsible for the debts of the corporation. The writer is of the opinion that in paying his note appel-lee paid it to one who was not entitled to collect it, either in law or equity, and if he paid it under a mistake of fact he is entitled to recover the amount so paid, even without proof that the note was void for fraudulent representations. The uncontradicted evidence is that at the time he paid the note to the bank holding it for collection he was ignorant of the facts that the $28,000 note had been made and negotiated, that his subscription note had been conveyed to Jones, but had been informed by an officer of the bank which held his note for collection that it had been turned over to a “woman in Dal-hart” who had purchased without any knowledge of the failure of consideration or the fraud perpetrated upon him. It was further shown that, after the conversation with the officer of the bank, he had consulted two different attorneys, who had told him that since his note was in the hands of an innocent purchaser for value no defense could be urged against it and he must pay it. : . ,

The writer thinks that, payment having been made under such circumstances, the rule that voluntary payments, made in ignorance of material facts, may be recovered, applies. But the opinion of the majority of the court, as expressed upon the consideration of the motion for rehearing, is that ap-pellee could not recover the amount unless, in addition to the facts stated, his note was void by reason of fraudulent representations made by the promoters of the railway company. The record 'shows that the court found that appellee was induced to execute the note which he paid to Jones by representations and statements of W. R. Allen and one Morton, to the effect that arrangements had been made for financing the railroad and that the road would be built and operated as soon as a few subscribers in Ochiltree county had secured their notes; that the money for building the road had been arranged for; that plaintiff was the last man they had to see; and that when he gave his note all arrangements would be perfected. It was shown that Allen was the head of the construction company which proposed to construct the road, and was acting for the promoters, and that Morton was one of the directors. The court further found that arrangements had not been made for financing the road and that neither Weist nor his associates were able to finance it; that the money had not been arranged for and that all statements as to said matters relied upon by plaintiff were untrue; that the road was never built except a few miles, which was of no benefit to plaintiff’s land, and that the consideration for the subscription and note had wholly failed. This finding is not excepted to and is, in the opinion of the majority of the court, when considered in connection with what has heretofore been said, sufficient to sustain the judgment. :

The original opinion herein is therefore amended in conformity with the views of the majority. The motion for rehearing is overruled, and the judgment is affirmed.

On Second Motion for Rehearing.

ROiTGE, J.

In the opinion of the court heretofore rendered this statement is made:

“In the purchase of the $28,000 note by Jones-it has never been shown that he was ignorant of any fact.”

This is incorrect. It was agreed upon the trial—

“That said Jones was not one of the promoters of said railway company and was in no manner connected with same or with any of the promoters or agents in the organization or promotion of such enterprise, and the only dealings he had with said company was the pur- ; chase of the * * * said $28,000 note anrl - the taking over of the securities attached there- ; to, and that he had no actual knowledge of the conditions affecting any of said notes or lands, i
except such information as was given Mm by Dennis, who represented that the board of directors had by resolution authorized him to make the transfer of said note and securities, and he relied upon such information and acted thereon.”

The first statement is therefore withdrawn, and the agreement just quoted adopted in lieu thereof. ' We are of the opinion, however, that this should make no difference in the disposition of the case.

In view of the confusion which the statement of the difference in the grounds upon which the conclusions of the majority of the court and that of Judge HALL are based has apparently caused, we deem it proper to restate such conclusions in more detail.

The case was tried, briefed, and decided on the theory that it had been settled by the decision in the case of Jones v. Abernathy, 174 S. W. 682, that the $28,000 note was void and Jones could not maintain an action thereon. Appellant admitting the correctness of this conclusion, contended that, by reason of the fact that the money borrowed on the $28,000 note had been received and used by the railway company, he had a cause of action against the railway company on an implied promise to repay this money, and that he held some right in the collateral attached to the $28,000 note to secure this obligation. All the members of this court, however, -agreed in the conclusion that, even if Jones did have such cause of action on the implied promise to pay the money received, the invalidity of the principal $28,000 note discharged the collateral and he had no right to it. This conclusion was based on the authorities referred to in the Jones-Abernathy Case, and on the holding of the Supreme Court in Otto v. Halff, 89 Tex. 384, 34 S. W. 910-913, 59 Am. St. Rep. 56, where a principal note, having collateral pledged to secure it, was altered by the holder and thus rendered invalid, and the maker of the note was liable for the original debt for which the note was given in payment, and it was held that the collateral was discharged as being a part of the contract evidenced by the note and not of the original contract of indebtedness.

We all agreed in the further conclusion ; - ; i that appellee Brown had paid the note to Jones under the mistaken belief induced by the representations of Jones’ agents for collection that Jones was the rightful and innocent holder thereof. In the opinion of Judge HALL this was all that was necessary to be shown to entitle Brown to a recovery. The majority of the court were not willing to commit themselves to this broad conclusion when the facts of the case did not, in our opinion, require it. If Brown really owed the note and was originally bound to pay it to the rightful owner, we doubted whether he could recover what he had paid to Jones, who had possession of the note and delivered it to him on such payment without fur-tlier showing that liability for the payment thereof still existed in favor of the rightful owner of the note, the Enid, Ochiltree & Western Railroad Company; and we were inclined to think, that the railway company, as it had intrusted the note to Jones, clothed him with indicia of rightful ownership, and plaintiff was thus induced to make the payment which facts it became necessary for plaintiff himself to allege and establish before he could recover the payment voluntarily made would be estopped from denying Jones’ right to receive payment and demanding a second payment of the note from Brown: But it was pleaded and found as a fact by the trial court, and no question of the finding made by appellant in this court, that Brown had. a good defense to the note as against the railroad company, because of the fact that it was procured by false representations and the consideration therefor had failed. And the majority of the court desired that these facts be stated so that the true extent of our holding would be understood. Such holding is that appellee Brown, having a good defense to the note of which he was prevented from taking advantage ■by reason of the payment to Jones, under the circumstances stated, is entitled to recover the payment so mistakenly made.

We are of the opinion that the motion for rehearing should be overruled.
      <©u»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    McDANIEL v. LAUCHNER.
    (No. 866.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1918.
    Rehearing Denied Nov. 7, 1918.)
    1. Husband and Wife <S=»262(1) — Community Property — Presumption.
    Certain realty having been acquired by a husband long subsequent to his divorce from his wife, there is no presumption it belonged to their community estate.
    2. Husband and Wife @=>262(1) — Acqttisi- ' tion of Property — Community of Second Marriage — Presumption. .
    In absence of evidence to show that certain lots acquired by husband long subsequent to his divorce were community property, it must be presumed lots were separate property of husband, or belonged to community estate of himself and second wife. ,
    S. Judgment @=688 — Res Adjudicata — Conclusion of One Not a Party.
    Where, in a divorced wife’s suit for partition of her husband’s lands, the pleadings were insufficient to bring the independent executor of the husband into court as such, he, in his capacity as executor, and his successor, were not concluded by the decree.
    4. Husband and Wife @=272(1) — Community Property — Divorce—Property Acquired after Decree — Devise-of Realty.
    On death of a husband and probate of his will, his title to lgnds purchased subsequent to divorce from his first wife passed to his son by his second wife, to whom he devised, subject to rights of creditors.
    Error from District Court, Reeves County; Chas. Gibbs, Judge.
    Suit by Elzada McDaniel against Grant Lauchner. To review judgment for defendant, plaintiff brings error.
    Affirmed.
    Grisham & Grisham, of Sweetwater, R. N. Grisham, of Ft. Worth, and Ben Palmer, of Pecos, for plaintiff in error.
    Jno. B.. Howard and Clay Cooke, both of Pecos, for defendant in error.
   Statement of Case.

HIGGINS, J.

This is a suit in trespass to try - title brought September 1, 1916, by Elzada McDaniel to recover lots 5 and 6, in block 24, West Park addition to Pecos, in Reeves county. The material facts are as follows: D. L. and Elzada McDaniel were husband and wife. They were divorced April 10, 1907, the decree making no disposition of any property rights. Thereafter D. L. McDaniel again married, and of this marriage Leo McDaniel was the issue. On July 8, 1911, D. L. McDaniel purchased the lots in controversy. On October 31, 1912, he conveyed same to a trustee to secure an indebtedness due the Pecos Valley State Bank. Thereafter he died testate, and his will was admitted to probate by decree entered in the district court of Reeves county on May 27, 1914, the same having been contested by Elzada McDaniel and others. By this will the lots were devised to Leo McDaniel and J. B. Gibson appointed independent executor of the estate. The testator directed that no proceedings be had in the probate court except to probate the will, and make and return an appraisement, inventory, and list of claims, as the statute requires. Gibson was also designated in the will as guardian of Leo McDaniel. On May 9, 1913, Gibson was appointed temporary administrator of the D. L. McDaniel estate by the county court of Reeves county and qualified as such. At the June term, 1913, the temporary administration was continued. On July 16, 1914, Gibson filed his bond and oath as executor and same was approved. On September 11, 1914, the Pecos Valley State Bank filed suit in the district court of Reeves county against J. B. Gibson, executor, to recover the amount secured by the McDaniel deed of trust of October 31, 1912, and for foreclosure of lien. November 28, 1914, decree was entered in favor of the bank against the executor for the amount of the debt and foreclosure of the lien. Under this decree the land was sold on the first Tuesday in March, 1915, to the bank, and conveyed by deed dated March 8, 1915. On April 2, 1915, the bank conveyed the lots to defendant in error Lauchner. On September 30, 1914, Elzada McDaniel filed suit in the district court of Cbleman county against Leo McDaniel “and her guardian, adopted father and administrator, J. B. Gibson,’’ and other defendants, for partition of certain lands in Reeves county. The petition averred that tlie lands were owned jointly by plaintiff and defendants, the plaintiff owning a one-half interest therein, and the other one-half interest being owned by defendants. Among the lands sought to be .partitioned were the lots now in controversy. Ids pendens notice of this suit was filed in Reeves county on September 30, 1914. Gibson answered in this suit for himself and as guardian of the person and estate of Leo McDaniel. In this answer it was averred that the property described in the petition was the separate property of D. L. McDaniel, by whose will it passed to Leo McDaniel, and that neither the plaintiff nor any of the other defendants owned any interest therein. On April 6, 1915, the district court of Coleman county entered its decree reciting that Leo McDaniel and her guardian, Gibson, appeared by J. A. B. Miller, Esq. It was decreed that Elzada McDaniel owned one-half of the lands involved in the suit, and the other six defendants, including Leo McDaniel, each owned a one-twelfth interest therein, and the lands were ordered partitioned accordingly. Commissioners of partition were appointed, who made their report, in which lots 5 and 6, in bloclc 24, West Park addition, were set aside to Elzada McDaniel. This report on November 8, 1915, was approved by the court, and title to said lots vested in Elzada McDaniel.

Opinion.

We shall not attempt to follow the specifications of error as they are presented to this court.

The property in controversy having been acquired by D. L. McDaniel long subsequent to his divorce from Elzada McDaniel, there is no presumption that it belonged to their community estate. There is no evidence to show that it was community property. Upon this state of the record it must be presumed to be the separate property of D. L. McDaniel or belonging to the community estate of himself and second wife. Creamer v. Briscoe, 107 S. W. 635. This being its status, Elzada McDaniel had no interest in it. But it-is claimed that the decree of the district court of Coleman county is res judicata of title in Elzada McDaniel. Waiving all questions as to the jurisdiction of the district court of Coleman county in the partition suit, and assuming that it had jurisdiction over the parties and subject-matter, the fact, nevertheless, remains that Gibson, in his capacity as independent executor of the estate ot D. L. McDaniel, was not before the court. The pleadings of the plaintiff are insufficient to bring him into court in that capacity. Therefore in that capacity he was not concluded by the decree rendered. Lauchner claims under Gibson as executor, and he likewise is not concluded by the decree in the Coleman county suit. His rights are in no wise affected by the same. Upon the death of D. L. McDaniel and probate of his will, his title to the lots passed to Leo McDaniel, subject to the rights of creditors. These rights have been enforced against the executor of the estate and the title passed to Lauehner.

Upon* the views stated, it follows that the various assignments are without merit.

Affirmed.
      <S=For other cases see same topic and KEY-NUMBER ia all Key-Numhered Digests and Indexes


author: PLY, C. J.

text:
    ARMY BANK OF FT. SAM HOUSTON v. SUNSET WOOD CO. et al.
    (No. 6176.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.)
    Garnishment <®==>85 — Pinal Judgment — Sureties on Replevy Bond as Parties.
    Where defendant, sued for debt, other parties as a firm being garnishees, did not give replevy bond pursuant to Rev. St. 1911, art. 279, to replevy effects or debts garnished, but filed what was intended as such bond, made payable to the garnished partners and not to plaintiff, default judgment against garnished firm was proper, though sureties on “replevy bond” were not made parties.
    Appeal from Bexar County Court for Civil Cases; J. H. Clark, Judge.
    Suit by the Sunset Wood Company against E'. Koerner, wherein, E. A. Kelly and P. G. Saunders, doing business under the name of the Army Bank of Port Sam Houston, were garnished, resulting in judgment against the garnishees by default, whereon execution was issued, and the garnishees obtained temporary injunction against plaintiff and John W. Tobin, Sheriff, which the court later dissolved. Prom the order of dissolution, the garnishees appeal.
    Affirmed.
    Ed. H. Wicks, of San Antonio, for appellants.
    J. D. Dodson, of San Antonio, for ap-pellee.
   PLY, C. J.

The Sunset Wood Company sued E. Koerner for debt, and on same day obtained a writ df garnishment against E. A. Kelly and P. G. Saunders, doing business under the name of Army Bank of Pt. Sam Houston, thereby securing a lien on any funds owing by appellant to Koerner. The latter filed what was intended as a replevy bond, which was made payable to E. A. Kelly and P. G. Saunders, and not to the Sunset Wood Company. No attention was paid to the bond at the trial of the suit, and it was not called to the attention of the county judge. The garnishee failed to answer, and judgment by default was taken against it by the Sunset Wood Company. Execution was issued, and appellant obtained a temporary injunction against appellees, the Sunset Wood Company and John W. Tobin, sheriff of Bexar county, which the court afterward dissolved, and from the order of dissolution this appeal has been perfected.

It is not very clear from the authorities filed by appellant what tbe grounds of objection are to tbe judgment of tbe court; but, taken with a brief filed by appellees, it would appear that the contention is that there was no final judgment in the garnishment suit, because the sureties on what is denominated the “replevy bond” were not made parties to the judgment.

It is provided in article 279, Revised Statutes, that the defendant, in the original suit, may replevy the effects or debts seized or garnished, by giving bond with two or more good and sufficient sureties, payable to the plaintiff in double the amount of the plaintiff’s debt and conditioned for the payment of any judgment rendered against the garnishee. The bond described is to secure the plaintiff in the collection of his debt, and no such bond was filed in this case; but the bond filed was not payable to the plaintiff, as required by statute, but was made payable to E. A. Kelly and F. G. Saunders, doing business under the name and style of Army Bank-of Ft. Sam Houston. It did not have thq effect of replevying the money owed by appellant to Koerner, and as between the garnishee and plaintiff had no effect whatever. Plaintiff got no replevy bond, the only bond given being one in favor of appellant, and from which it alone could obtain any advantage. It did not, as contended by appellant, protect the plaintiff in the suit, and no one could sue on it except.appellant. Appellant might sue on it and protect itself, but the bond does not prevent a judgment against appellant for the amount for which suit was brought. If appellant desired the defendant and sureties on the bond in the suit, it should have impleaded them. The plaintiff had no ground upon which to make them parties.

The judgment is affirmed.
      <§u=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON BELT & TERMINAL RY. CO. v. STEPHENS.
    (No. 183.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1918.)
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    On rehearing. After remand from the Supreme Court, with answers to certified questions (203 S. Wl. 41).
    Judgment below affirmed.
    For previous opinion, see 155 S. W. 703.
    Andrews, Ball & Streetman, A. L. Jackson, McDonald Meachum, and Jno M. King, all of Houston, for appellant.
    John Lovejoy and J. W. Parker, both of Houston, for appellee.
   HARPER, C. J.

The answers of the Supreme Court to certified questions in this case (203 S. W. 41) require its affirniance.

The motion for rehearing is therefore granted, and the judgment of the lower court affirmed.


author: SWEARINGEN, J.

text:
    MISSION AUTO CO. v. ALDAPE.
    (No. 6079.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.)
    1. Appeal and Erbor <§=>664(3) — Findings— Statement op Facts — Conclusiveness.
    Court’s special finding, corroborated by decree that money tendered by plaintiff for repairs of automobile sought to be recovered had been deposited in court, will control over statement of facts that shows no money was deposited, since trial court knew judicially whether money was in court.
    2. Replevin >§==>103(4) — Alternative Judgment-Pleading to Support.
    Allegations of value of automobile, $550, and allegations of its wrongful detention, in connection with general and special prayer for relief, would authorize decree awarding, if possession could not be restored, its value fixed at $300.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by Garza Aldape against J. E. Foster and others, doing business under the firm name of the Mission Auto Company. Decree for plaintiff, and defendants appeal.
    Affirmed.
    Victor Keller and Will Glover, both of San Antonio, for appellants.
    G. Woodson Morris and J. D. Dodson, both of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit, by Garza Aldape against J. E., T. O., and F. A. Foster, doing business as partners under the firm name of Mission Auto Company, for the recovery of an automobile, alleged to be of the value of $550, wrongfully held by defendants, also for $150 damages, as well as costs incurred, and for an injunction restraining threatened sale of the auto. The cause was tried before the court without a jury, resulting in a judgment that the ap-pellee, Garza Aldape, recover the automobile or its value, decreed to be $300, together with all costs, and granting the injunction.

The appellants answered that appellee was justly indebted to them for the reasonable value of the repairs made by them on the automobile. The amount claimed for repairs was tendered to appellants by appellee before suit was filed and was, after filing suit, deposited in court as a tender of payment.

The issue between the parties involved the version of the agreement in pursuance of which appellants obtained possession of the automobile and made the repairs thereon. That issue was idetermined, upon the evidence, by the court, in favor of the contention made by appellee. The evidence was sufficient to sustain the court’s findings.

The four propositions submitted as pertinent to the first and second assignments assail the finding of the trial court to the effect that appellee had tendered the payment for repairs prior to the suit and had kept the tender in force, and these propositions are disposed of by our statement that the evidence sustained the court’s findings.

The fifth proposition is that the finding of the court is in conflict with the statement of facts, in this: The court found that the amount of the repair bill was deposited in the trial court as tender of payment; whereas, it is insisted, the statement of facts reveals that no money was deposited in the court. The statement of facts discloses only a general inquiry of the court, which was answered in the negative by. the attorney for appellee. The court’s special finding of fact that the money was deposited in court, which is also corroborated by the decree, we think, concludes inquiry upon that question, for the trial court knew judicially, without proof, whether or not the money was in court. Blum v. Stein, 68 Tex. 608, 6 S. W. 454.

We overrule the first two assignments.

The third assignment assails the judgment upon the ground that the decree awarded the possession of the automobile to ap-pellee or, if that could not be done, then awards the value thereof, fixed at $300, to appellee, for which alternative, recovery of the value, it is asserted, there was no pleading.

Appellee’s pleading asks for all other relief, both general and special, to which in either law or equity he may have shown himself entitled. This prayer, in connection with the allegation of the value of the automobile, $550, and the allegations of its wrongful detention, supports the decree. Farrar v. Beeman, 63 Tex. 175; Zadick v. Schafer, 77 Tex. 501, 14 S. W. 153; Lee v. Boutwell, 44 Tex. 151.

There was no prayer for general relief in the case of Hogan v. Kellum, 13 Tex. 396, cited by appellant.

The third assignment is overruled.

The judgment is affirmed.
      ©=»For other eases see 6ame topic and KEY-NUMBER in all Key-Numbered Digests and Indexes