author: HARPER, C. J.

text:
    VARN v. GONZALES et al.
    (No. 667.)
    (Court of Civil Appeals of Texas. El Paso.
    March 22, 1917.
    Rehearing Denied April 19, 1917.
    1. Contracts <@=>113(1) — Validity—Fraud.
    A contract, having for its object the practice of deception or fraud upon a third party to take advantage of confidential relations to draw him into a bargain by which the party undertaking to use his influence will receive a benefit from the seller, is void, but actual fraud is not necessary.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 521, 524-526, 528, 529.]
    2. Contracts <@=>138(1) — Enforcement of Void Contract.
    If a contract is void for any reason, it is immaterial as to the ground rendering it void, since recovery cannot be had in any event.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 681.]
    3. Contracts <@=>108(1) — “Public Policy.”
    “Public policy” is determined by the spirit of the Constitution or law of the state where contract is made, or contrary to public morals, or illegal from any-cause which equity will not enforce.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 498.
    For other definitions, see Words and Phrases, First and Second Series, Public Policy.]
    4. Contracts <@=>108(1), 123(1) — Validity-Contrary to Public Policy.
    All contracts induced by fraud or deceit are not thereby void unless contrary to public policy as tending to injure public service or obstruct justice or encourage immorality or affect freedom of marriage or in restraint of trade or contravening anti-trust or other laws affecting the public at large or contrary to statute of frauds or defrauding third persons.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 498, 571-573, 575.]
    5. Contracts <@=^97(1) — Void or Voidable-Fraud.
    If one with knowledge of facts constituting the other party’s fraud or deceit can make the contract enforceable by assenting thereto, the contract is not void, but voidable.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 442, 443.]
    6. Vendor and Purchaser <@=>33 — Validity of Contract — Vendor’s Fraud.
    Where plaintiffs’ agents conspired with defendant’s agents to induce defendant to purchase land upon a secret agreement and misrepresentations, the contract was not void, but voidable.
    [Ed. 'Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40-43, 66.]
    7. Vendor and Purchaser ©subcontract Induced by Fraud — Right to Rescind.
    Where purchasers retained lands after discovery of vendor’s fraud and continued to cut timber thereon, the right to rescind the contract was waived, and purchasers were bound by the purchase note to extent of vendor’s interest therein.'
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 202-204.]
    S. Vendor and Purchaser <@=>314(3) — Action for Purchase Price — Failure to Rescind — Issue.
    Where purchasers had precluded themselves from rescinding contract by their acts after learning of _ vendor’s fraud, in an action for purchase price all other issues became immaterial.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 927.]
    9. Vendor and Purchaser <@=>317 — Action for Purchase Price — .Submission of Special Issues.
    In action on a note given for purchase of land where a secret agreement between purchasers’ agents and vendor’s agents and misrepresentations were claimed, submission of special issues to jury held not erroneous.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 934-937.]
    10. Vendor and Purchaser <@=>317 — Actions for Purchase Price — Judgment Sustained by Special Findings.
    In action on a note given for purchase of land where a secret agreement between purchaser’s agents and vendor’s agents and misrepresentations were claimed, judgment for plaintiff held sustained by special findings.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 934-937.]
    11. Vendor and Purchaser <@=>317 — Action for Purchase Price — Conflict in Findings.
    In action on a note given for purchase of land where a secret agreement between purchaser’s agents and vendor’s agents and misrepresentations were claimed, findings on special issues held not inconsistent.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 934-937.]
    12. Vendor and Purchaser <@=>37(1) — Rescission for Fraud — Reliance on Representations.
    If purchasers inspected land for themselves and relied thereon and not upon vendor’s representations alone, the contract could not be rescinded for vendor’s fraud.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 54.]
    13. Obstructing Justice <@=>6 — Evidence-Withdrawal of Cross-Action.
    The fact that defendants withdrew their cross-actions and plaintiff’s attorney stated that he represented them and that they made no defense was not evidence of a conspiracy to pervert the course of justice, although suggestive thereof.
    [Ed. Note. — For other cases, see Obstructing Justice, Cent. Dig. § 15.]
    14. Trial <@=>221 — Giving Instruction in Attorney’s Absence.
    The giving of oral instructions concerning the law applicable to any issue in the absence of attorneys constitutes reversible error, but this did not apply where the instructions did not relate to any .law question nor refer to merits of the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 507.]
    15. Vendor and Purchaser <@=>318 — Action foe Purchase Price — Judgment.
    Where court found that a secret agreement existed between purchaser’s agents and vendor’s agents by which one-half of consideration was to be returned, judgment against purchaser for one-half of the amount of purchase note was proper.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 938-942.]
    16. Appeal and Error <@=>1068(1) — Harmless Error — Instructions Cured by Judgment.
    Where court properly found that a secret agreement existed between vendor’s agents and purchaser’s agents to induce the purchase.' instruction putting too great a burden regarding such issue on the purchaser in action, on purchase note was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4225; Trial, Cent. Dig. § 525.]
    17. Arpead and Error <®=>1060(1) — Harmless Error — Argument oe Counsel.
    Where defendant suffered no injury by counsel’s argument to jury, the cause will not be reversed.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4135.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Suit by Amador Gonzales and others against George W Yarn, administrator of W. W. Varn. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    M. W. Stanton and Turney & Burges, all of El Paso, for appellant. F. G. Morris, T. A. Falvey, and B. Bryan, all of El Paso, for appellees.
   HARPER, C. J.

This suit was brought by Amador Gonzales on two promissory notes, the first for $15,000, payable January 1, 1909, the second for $3,195, payable September 29, 1910, against George W. Yarn, administrator of W. W. Varn, deceased, John R. Fulkerson, Bernard Schuster, N. G. Buehoz, and G. C. Varn, joint makers. Fulkerson, Buehoz, and Schuster answered by general exceptions, general denial, and a cross-action for $5,000 against the Varns, and that they have judgment against the said G. C. Varn and the administrator of W. W. Varn for any moneys recovered by plaintiff. This cross-action was later withdrawn. G. C. Varn was not served, and the suit as to him was dismissed. The administrator answered by general and special exceptions, general denial, and plea in bar, as follows:

That on September 24, 1908, plaintiff Gonzales secured an option on a tract of timber land in - the Republic of Mexico known as “Sierra de Cacaria” by written contract with Guadalupe, Isabel, and Anna Maria Chavez, for a consideration of 35,000 pesos for a term of one year. That thereafter, the said Gonzales combined, confederated, and conspired with their codefendants, Fulkerson, Buehoz, and Schuster for the fraudulent purpose of inducing these defendants to enter into negotiations for the purchase of said lands, and that, by false and fraudulent representations concerning the land, its value, and the value of the timber thereon, and further by false and fraudulent representation as to the contract Gonzales then had with the said Chavez sisters, etc., which they knew to be false, and said Varns believed them to-be true, were induced thereby to enter into the following contract (as necessary to the points raised by this appeal): First, it declares that Amador Gonzales, first party, has an option to purchase the Hácienda de Ca-caria for a consideration of 35,000 pesos and other considerations to be paid, assigns and transfers same to John R. Fulkerson, Bernard Schuster, Numia G. Buehoz, W. W. Varn, and G. C. Varn, with the understanding that the said assignees acquire their rights as follows:- Fulkerson to receive one-fourth interest, Schuster one-eighth, Buehoz one-eighth, W. W. Varn one-fourth, and the other one-fourth to G. C. Varn. The consideration for the above assignment shall be $10,000 cash (gold)- and two notes, one for $15,000 (American gold) payable on or before January 1, 1909, and the other for $3,195, same coin, within two years, or the 28th of December, 1910, and to pay one Rocha 1,500 pesos and to further pay to the owners 35,000 pesos (Mexican silver), signed by all parties of interest or their attorneys in fact. That the codefendants Buehoz and Schuster were their agents under employment to acquire lands in Mexico upon commission, and that plaintiff knew that fact. That Fulkerson was plaintiff’s agent to secure purchasers. That as a part of the fraudulent scheme the codefendants with the connivance and approval of plaintiff joined in with defendants Varns in the purchase as copartners under the aforesaid agreement to pay one-half the consideration, to wit, $36,445 gold, but, in truth and fact, the codefendants, by a secret agreement with plaintiff, were not in fact to pay any portion of said consideration, but that the execution of the notes sued upon by 'plaintiff by their codefendants was under and by virtue óf a secret agreement with plaintiff that when same was paid that one-half thereof should be returned to the- code-fendants, but they were, nevertheless, to have their respective interests in the lands as indicated above. That upon receiving information of the secret agreement and upon full investigation as to the value of the lands, they forthwith rescinded the contract and notified the plaintiff and their co defendants that the notes would not be paid and that they would proceed no further under the contract, dissolved the partnership, and tendered back the possession of the lands.

For cross-action, alleges that they had paid certain sums upon the contract and had incurred expenses in and about the property before discovering the fraud and prayed judgment therefor.

The plaintiff, in reply to defendant’s said answer, entered a general denial, and for special answer thereto alleged: That, if any agreement was entered into with the defendants, it was verbal, was before the writing, was abandoned and superseded by the written contract and notes sued on. That if plaintiff made any contract with any of the parties different from that made with others, he had a perfect right to do so under the laws of Mexico where the contract was made and to be performed. That if the Yarns ever had any right of rescission not admitted but denied, they did not exercise said right within a reasonable time, but that they held possession of the lands, cut timber and ties therefrom, and to sell same after they allege they made an offer to rescind, and specifically deny that defendants suffered the damages or expenses or the moneys set up in cross-action.

Tried by jury, submitted upon special issues, and upon the answers to same judgment was entered for plaintiff for one-half the face value of the notes, from which this appeal is prosecuted.

Findings of Fact.

The court, in the decree, made the following finding:

“That as the jury failed to answer the question submitted to them as to the alleged secret agreement by plaintiff with Fulkerson, Buchoz and Schuster to the effect that only half the contract price for which the notes sued on were given in part payment should really be paid, or, if paid, that all above half of said contract price should be returned to said Ful-kerson, Buchoz, and Schuster by plaintiff, no judgment for plaintiff could be rendered which did not assume the said agreement was in fact made, the court doth find that said agreement was made.”

The exact agreement as testified to by the witnesses is that Fulkerson, Buchoz, and Schuster had not paid their portion of the first $10,000 payment, or that it had been returned to them, and that they were to get. one-half of these other two notes when they wore paid.

The facts further are: That Fulkerson was the agent of plaintiff Gonzales to secure a purchaser for the land in question, before and at the time the contract sued on was executed. That Buchoz and Schuster were the agents of the Yams to secure timber lands in Mexico, and that they all three acted together in bringing about the sale by Gonzales. That though the plaintiff and defendant Fulkerson were upon the witness stand, the testimony of defendants’ witnesses in this regard was not denied by them. Under these circumstances, the other defendants under the contract quoted above wex-e to be partners and receive the respective interests in the lands therein designated. That upon discovery of the fraudulent secret agreement, defendants Yarns notified plaintiff that for that reason he repudiated the notes. The jury found the fact to be that, after this repudiation, the Yarns continued in possession of the land and cut timber therefrom for two months.

Conclusions of Law.

Appellant, by assignments 1 to 5, inclusive, and propositions thereunder, urges that such an agreement is contrary to public policy and therefore void. The writer is strongly inclined to the view that this contract is void. The rule is that a contract which has for its object the practice of deception or fraud upon a third party to take advantage of confidential relations with him for the purpose of drawing him into a bargain by which the party undertaking to use his influence will secretly receive a benefit from the seller is void. 9 Cyc. 468; Twentieth Century v. Quilling, 130 Wis. 318, 110 N. W. 174; Bollman v. Loomis, 41 Conn. 581; Ferguson v. Gooch, 94 Va. 1, 26 S. E. 397, 40 L. R. A. 234.

It seems to me that the principle involved should not depend upon actual fraud for its application and enforcement, but it should alone depend upon whether the party seeking to enfoi’ce the contract secretly conspired with the active agents of the defendants to secretly bring about the contract through inducements and arguments made by himself or his active agent in concert with the active agents of the defendants, whereby they were 'to receive a secret benefit from such contract. If so, such means is in -violation of private confidence and equally reprehensible with positive fraud. They are therefore within the same reason and mischief as contracts made and acts done with evil intent and are, for that reason, prohibited by law. The effect of the evidence and the finding of the trial court is that Fulkerson was the active agent of Gonzales, plaintiff; ■ that Buchoz and Schuster were the agents of the Varns; and that 'they conspired, confederated together with the express consent off Gonzales, in the matter of showing the lands, talking over the advantages to be gained by the contract and as an inducement to the Vams to make the pui’chase propose a partnership and enter into it, whereby they get one-half of the lands by paying one-fourth of its value. But out of deference to the opinions of the majority of the court, I concur in the holding that the-contract was voidable and not void.

Appellant bases his contention that-the contract was wholly void and against public policy upon the proposition:

“That the secret agreement between Gonzales, Fulkerson, Schuster, and Buchoz that one-half of the contract price for which the notes were given in part payment for the land should not, in fact, be paid to Gonzales, or, if paid, should bo returned to Fulkerson, Schuster, and Buchoz, and that such secret agreement as to the return of a part of the price is such fraud as renders the contract one against public policy and therefore void.”

If it is void for any reason, it would be immaterial as to the ground that rendei’s it void, since recovery could not be had on a void contract, and since the facts constituting the fraud aré specifically stated. Public polity is determined by the spirit of the Constitution or some law of a state of force where • the contract is made, or contrary to public morals, or illegal from any cause which equity will not enforce. The contract, as made, does not contravene any provision of the Constitution or law, was not illegal, is not immoral in the sense that it is debasing to. public morals, or mala in se. It certainly ■would not be classed as a swindle made pun- j ishable, as claimed. Nor does the contract, even incidentally, in any way refer to or have to do with any right affecting people other than parties to the contract. All contracts, induced by fraud or deceit, are not void because of the fraud or deceit, but to render a contract void it must in its application at some pcftnt tend to injure public service, or obstruct the course of justice, or encourage immorality, or affect the freedom of marriage, or be in restraint of trade, ór contravene anti-trust or kindred laws which affect in some way the public at large, or not he in writing where the law requires that it must be or in some way defraud third parties. These seem to be crucibles into which the facts must be placed to test the question of its being void or voidable.

The test as to whether the contract is void or voidable seems to be this: Could Yarn, with a full knowledge of the facts constituting the fraud, have given his assent thereto and by so doing have made the contract enforceable? Could Yarn have waived the fraud and had specific performance of the contract? The reason of the rule that makes fraud or deceit vitiate simple contracts or specialties seems to be that it takes from the one defrauded the opportunity to give his assent to the facts constituting the contract. But if he, with a knowledge of the facts, by yielding his assent thereto, can make the contract enforceable, the contract is not void, but only voidable at his will. If the contract violates any law or the spirit of it, Varn could not, with a full knowledge of the fraud or deceit, by yielding his assent, make it enforceable, because it is the law that destroys it and not the want of his assent. Allyn & Co. v. Willis & Bro., 65 Tex. 65; Wells v. Houston, 29 Tex. Civ. App. 619, 69 S. W. 188; Hallwood Cash Reg. Co., v. Berry, 85 Tex. Civ. App. 554, 80 S. W. 857; Ateburn v. Price, 152 S. W. 672; Shappirio v. Goldberg, 192 U. S. 232, 24 Sup. Ct. 259, 48 L. Ed. 419.

Having decided that the contract was simply voidable and not void, whether it be on the ground of the secret agreement or on account of fraudulent misrepresentations concerning the land, its location or value or the value of the timber thereon, or as to the cost of cutting and shipping the timber, the only question then is; Did the • defendants dis-affirm the contract at the earliest practical time after the fraud was discovered, and retain or offer to retain possession? Por if they retained possession and continued to use it after discovery of the fraud that induced the purchase, they waived their right to rescind and have affirmed or acquiesced in it and are bound by their contracts. There is no evidence in the record to the effect that the Varns ever gave as a cause for rescission that any person had misrepresented the land or timber, but only that upon discovery ■of the secret agreement, in December, 1908, they for that reason repudiated the notes and offered to give possession of the land. And in this respect the jury has found in response to special issues that they, the Varns, knew about the secret agreement on or before January 4, 1909, and further found in response to another question that they continued to keep possession of and cut timber from the land for two months after that date. It must therefore be held that they affirmed the contract and are bound by it to the extent of Gonzales’ interest in the note.

The other assignments urge that the court erred in entering the judgment appealed from for the reason given in each assignment as indicated hereinafter in their numerical order:

Sixth, because the answers to the special issues did not warrant it. Seventh, because not supported by the verdict. Eighth, because it is in conflict with the verdict. Ninth and twelfth, because the jury failed to answer material issues. Tenth, because the jury failed to answer material issues, the court should have entered judgment of mistrial. Eleventh, the court erred in the finding in the judgment that all issues not answered were withdrawn. Thirteenth, because, in rendering judgment without the jury having passed upon the material issues, defendant was deprived of his right to have the jury determine the facts. Fourteenth, because there are irreconcilable conflicts in the findings of the jury. The sixth to fourteenth, inclusive, become immaterial by reason of the holdings under first to fifth, or are answered by the observations thereon, for the Varns, having precluded themselves from rescinding the contract by their acts after learning of the fraud, all other questions in the charge became immaterial. Fifteenth, because it was error to submit this issue: “Did the Varns, if they had information of the secret agreement, have such information before January 4, 1909?” The answer is, “Yes,” and the sixteenth, following, urges that such answer is inconsistent with a failure of the jury to find whether or not the secret agreement existed at the time the contract was entered into. The answer to these latter two assignments is that if there was no secret agreement, nor other fraud in connection with the execution of the contract, which was the basis of the note sued on, defendant is liable because he has established no defense. But if the secret agreement did exist, and if there were fraudulent misrepresentations sufficient to vitiate the contract, it became obligatory upon defendant to seasonably repudiate, and rescind, if he would avoid the payment of the note, and this they did not do, but as held above by their acts subsequent to discovery of the fraud have precluded themselves from repudiating. Seventeenth is that the court erred in submitting the question: “Did the Varns retain possession and cut ties from the land after discovery of fraud?” The answer was: “Two months.” The eighteenth assignment urges that it was error to enter judgment for plaintiff upon this answer. It is apparent that there was not error in either respect. The nineteenth is to the same effect. The twentieth charges that it was error to submit the question: “Was Fulkerson agent of Gonzales or the Varns in bringing about the contract?” The answer is, “Agent of Gonzales.” And the twenty-first charges that it was error for the court to consider these questions and answers for any purpose. The proposition is that this was an immaterial inquiry. Conceding that it was, it cannot be held to be reversible error. The twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth are to the same effect. The twenty-second is that it was error to submit the question: “Did the Varns rely upon the statement of Gonzales as to the value of the timber lands or on their own inquiries and inspections?” The answer is: “Both.”

The twenty-third assignment urges that the court erred in considering this answer. The defendants having been on the ground and inspected for themselves, not having relied upon the representations of the other parties alone, he would not be permitted to rescind for that reason. But it is apparent that the only reason for repudiating the contract or notes was the discovery of the secret agreement, so it is apparent the question and answer were of no consequence. The twenty-ninth and thirtieth are to the same effect. The twenty-fourth is that it was error to submit: “Did the Varns yield possession of the lands to Miller or to J. E. Varn, Jr., without contest before their rights were forfeited for nonpayment in November, 1909?” This question was answered in the negative. This was an immaterial issue, but we fail to see how it constitutes reversible error and counsel have pointed out no reason. The twenty-fifth to thirty-first, inclusive, charge error in entering judgment for plaintiff without first having answers of the jury to issues submitted, such as “Were Fulkerson, Buchoz, and Schuster agents of the Varns in obtaining lands in Mexico?” As to whether they agreed to form a partnership; as to whether the Varns were deceived by the acts and statements of plaintiff and Fulkerson, Buchoz, and Schuster; as held above, the secret agreements charged or the fraudulent misrepresentations charged having the effect only to make the contract voidable, if reasonably rescinded after discovery of the fraud, and the jury having found that defendants did not do the latter, a finding upon the questions of fact as to fraud was immaterial. The thirty-second and thirty-third are that the court erred in rendering-judgment without an answer to the following question: “Did the secret agreement constitute a conspiracy to defraud?” And “is such conspiracy still in existence, and is this suit being prosecuted pursuant thereto?” The thirty-fourth assignment is to the same effect.

After a careful review of the statement of facts, we have concluded that there is no evidence of a conspiracy to pervert the course of justice in the trial of this case; that Fulkerson, Buchoz, and Sehusier should withdraw their cross-action; that they made no defense to plaintiff’s cause of action; and that counsel for plaintiff asserted to the jury that he represented them, and that they made no defense, are suggestive but not evidence. The thirty-fifth, in x-efusing to submit: “Was the price to be paid by Gonzales to the owners of the land kept secret with intent to defraud Varns?” The thirty-sixth: “Would the Varns have executed the contract if they had known the price Gonzales was to pay for the land?” The thii*ty-seventh: “What was the difference between the amount Gonzales was to pay and the amount the Varns were to pay?” The thirty-eighth: “Did the land have any market value in Durango?” The thirty-ninth: “If so, what?” Fortieth and forty-first: “Was there a conspii-acy between Gonzales, Buchoz, and Schuster?” “If so, were the Varns damaged thereby?” It was not error to refuse to submit or to withdraw such issues for the reasons given under assignments 1 to 5.

The foi'ty-second charges the court erred in orally instructing the jury in the absence of the defendant during the time the jury were considering the case, and upon the report of the jury that they were unable to agree upon a verdict, that they should answer such of the issues as they could agree upon. This was not error. If the court should give oral instructions concerning the law applicable to any issue in the case, or should give any instruction concerning the law in the absence of the attorneys, it would constitute reversible error. Railway Go. v. Kjollberg, 185 S. W. 430. The assignment show's that the jury were in open court, and the statement of the court to the jury did not apply to any law question in the case, nor does it in any seixse refer to the merits of the case. Therefore the rule quoted does not apply.

The forty-third is: That the court erred in sustaining in part the motion of plaintiff for judgment. There are several propositions urged by the appellant, but none of them seem to be pertinent, but raise questions applicable to other assignments. The exact matter to -which this assignment applies is that the court sustained the plaintiff’s motion to enter judgment in part, in that judgment was rendered for one-half the face value of the notes and interest, instead of for the full face value. Clearly, this was upon the theory that the court having found as) a fact that the secret agreement existed; that only one-half of the notes were in fact to be paid, because Fulkerson, Bucboz, and Schuster, under' the agreement, though joint makers, were not to pay any part of the note sued on, to that extent the note was uncollectible. In this, we think the trial court was correct.

The forty-fourth is that the following charge submitted at request of plaintiff upon the burden of proof constitutes reversible error:

“The defendant having pleaded fraud, * * * the burden of proof is upon him to establish by a preponderance of the credible evidence all the facts necessary to show such fraud, and, if you do not believe that he has established by a preponderance of the credible evidence such fraud as you are questioned about in question No. 1 of the court’s charge, you will answer said question in the negative.”

Question No. 1 asked whether or not the secret agreement, between the parties, charged in the petition and found to exist by the court in its judgment, in fact existed. As the case comes to this court, there is no question as to this secret agreement. Defendants’ witnesses testified to it, and plaintiff did not deny it, and the trial court, upon the theory that it existed, rendered its judgment. So, if the charge put a greater burden upon the defendant in respect to that issue than the law justified, nevertheless he has his finding in favor of the fraud.

The forty-fifth, forty-sixth, forty-seventh, and forty-eighth urge that the cause should be reversed because of statements made by counsel for plaintiff in argument to the jury. They had no application to the acts of defendants in ratification and continued possession and use of the premises after discovery of the fraud. So defendant has suffered no injury thereby.

For the reason given, the assignments are overruled, and cause affirmed.
      <@nx>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgssPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    PIERCE v. JONES.
    (No. 5765.)
    (Court of Civil Appeals of Texas. Austin.
    March 28, 1917.)
    1. Estoppel <®=>22(2) — Recital in Mobtgage.
    Mere declaration of one in a deed of land which is his actual residence that it is not his homestead will not estop him to claim it as such against execution of a third person.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 30-45.]
    2. Execution <©=»171(2) — Injunction—Remedy at Law.
    One may, as against claim of adequate remedy at law, have injunction against execution sale of his homestead which would cast a cloud on his title.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 498, 499.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Suit by A. Jones against Jesse W. Pierce to enjoin execution sale. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. K. Saunders, of Belton, for appellant. A. D. Dyess, of Temple, for appellee.
   JENKINS, J.

Appellee inherited an undivided interest in the land in controversy, and purchased the interest of other heirs. He executed a deed of trust to secure the purchase money. Subsequently he purchased the interest of other heirs and secured a loan company to take up his former note, and executed a deed of trust to secure all of the purchase money which he owed on said land. This latter deed of trust contained a recital that the land was no part of his homestead, and that he had a homestead on other lands in Bell county. In fact, the land at the time of the execution of this deed of trust, and for- many years prior thereto, had been the homestead of appellee, who resided upon the same with his wife and children, and he did not own any other land in Bell county. He continued to reside upon said land until the time of the trial hereof. Appellant obtained a judgment against appellee in Williamson county, and had an execution levied on the land in controversy. Appellee brought this suit to enjoin the sale under said execution. The court granted a temporary injunction, and upon trial hereof made such injunction perpetual.

Appellant contends in effect that appellee is estopped from claiming the land as his homestead by reason of the declaration in said deed of trust. None of the elements of estoppel can be invoked in behalf of appellant; the land, being the actual residence of appellee, was his homestead, regardless of the statement in the deed of trust. Rose v. Blankenship, 18 S. W. 101; Coates v. Caldwell, 71 Tex. 19, 8 S. W. 922, 10 Am. St. Rep. 725; Barnes v. White, 53 Tex. 628; Pellat v. Decker, 72 Tex. 578, 10 S. W. 696; Jacob v. Hawkins, 63 Tex. 1; Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12.

Appellant also insists that the judgment should be reversed upon the ground that appellee had an adequate remedy at law. The well-considered case of Stolte v. Karren, 191 S. W. 600, disposes of this contention. The sale of the land in controversy under appellant’s execution would have cast a cloud upon appellee’s title, and the same being his homestead, he was entitled to have said sale perpetually enjoined.

Finding no error in the record, the judgment of the trial court is affirmed.

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


author: SWEARINGEN, J.

text:
    KNODEL et al. v. EQUITABLE LIFE INS. CO. et al.
    (No. 5826.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 4, 1917.)
    1. Constitutional Law <@=>92 — Extent of Authority of Agent — Declabations.
    The extent of the authority of an agent for a life insurance company could not be proven by evidence of his own declarations, which the court properly excluded in a suit on policies.
    [Ed. Note. — For other oases, see Constitutional Law, Cent. Dig. § 322.]
    2. Insubance <@=>388(2) — Life Insurance — Pakol Agreement of Agent — Binding Force — Statute.
    Under Rev. St. 1911, art. 4953, providing that every policy of insurance issued or delivered within the state on or after January 1, 1910, by any life insurance company doing business within the state, shall contain the entire contract between the parties, and that the application may be made a part, a life insurance company was not bound by the parol promise of its' agent that there would be no forfeiture of the policy for nonpayment of premium, the policy containing a provision therefor, unless the beneficiary were first notified and thereafter defaulted, and by the agent’s statement that the application and policy contained such a clause.
    3. Evidence <@=>441(1.3) — Life Insurance — Enforcement of Parol Agreement of Agent — Statute.
    Under such statute, if the agent could so bind the life insurance company by his promise and statements, the court in which suit' on the policy was brought could not read the agent’s promise into the policies and enforce them as amended; all evidence of parol agreements not expressed in the policy being excluded by the statute.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1818-1824, 2046.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    - Suit by Hermine Knodel and another against the Equitable Life Insurance Company and another. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    E. E. Fischer and Dibrell & Moscheim, all of Seguin, for appellants. Templeton, Brooks, Napier & Ogden and Jas. A. Harley, all of San Antonio, for appellees.'
   SWEARINGEN, J.

This was a suit by appellants, Hermine and Wm. Knodel, against the Equitable Life Insurance Company and the Great Southern Life Insurance Company, to recover upon two life insurance policies, for the sum of $1,000 each, issued upon the life of Hermann Reinhold Knodel, July 14, 1913, by the Equitable Life Insurance Company, and subsequently assumed by the Great Southern Life Insurance Company. The premium was payable annually in advance. The first premium was paid upon delivery of the policy, and before it became effective; the second premium was, by the terms of the policy, payable to the company at the home office on or before July 14, 1914, as required by statute (Rev. St. 1911, art. 4741). This second annual premium was never paid. Hermann Knodel died October 4,1914, more than 75 days after default in payment of premium. By the terms of the policy the failure to pay the second premium on July 14, 1914, ended the policy. No act of the company was required to declare or enforce the forfeiture. The failure to pay the premium when due alone forfeited the policy. Equitable Life Assurance Co. v. Ellis, 105 Tex. 536, 147 S. W. 1152, 152 S. W. 625.

Appellants, to avoid the effect of the terms of the policies sued upon, alleged and offered testimony ’to prove that, before the applications for the policies were signed by the insured, the agent of the company agreed with the insured, the beneficiary, Mrs. Hermine Knodel, and with Wm. Knodel, her husband, that the policies would not contain the clause providing forfeiture for nonpayment of the annual premiums at the home office when due, and agreed that the clause should provide that the policy would not be forfeited for nonpayment of premium unless Wm. Knodel had been notified to pay the premium and default was thereafter made. Evidently realizing that the terms of a written contract could not he thus altered by such parol testimony, appellants pleaded further, and offered to prove, that the agent told the insured, the beneficiary, and her husband that the applications contained the last-mentioned clause of no forfeiture for nonpayment of premium unless Wm. Knodel was notified, and further stated that both policies also contained similar clauses. They all three relied upon the said promise and the statements of the soliciting agent, because he was well and favorably known to them, and because none of the three could read the English language understandingly, and because the insured was feeble-minded. These statements, claimed to have been made by the agent, were false, for neither the applications nor policies contained such clauses.

Under the foregoing pleadings and facts offered to be proven, appellants contend that the promised agreement of the agent should be read into the policies, and that appellants be permitted to recover the face of the policies, with interest, less the annual premium, with interest, and that they also recover reasonable attorney’s fees and the statutory penalty. Appellees contended that such promise and statements, if made by the soliciting agent of the company, cannot bind the companies, for the reason that the statute (article 4953) requires the entire contract to be expressed in the policies, or application and policies, and for the reason that it is not shown that the agent had such authority; but, on the contrary, appellees insist that the applications themselves expressly limit tlie agent’s authority in the following language :

“Any policy issued hereon shall be in the form now used by the company and together with this application and part 2 [medical examination] thereof shall constitute the entire contract, which can only be varied by the president, a vice president, or secretary of the company, and then only in writing”

—and that both policies delivered contained the following limitation:

“Only president, a vice president, or secretary has power on behalf of the company to make or modify this or any contract of insurance, * * * and the company shall not be bound by any promise or representation heretofore or hereafter made, unless made in writing by one of said officers.” '

There is no pleading nor evidence tending to show ignorance of this limitation of the agent’s authority, nor any to excuse appellants for not knowing the limitation. The court excluded all offered evidence to prove by parol a contract variant from the written one and not expressed in the policies, and excluded testimony of declarations of the agent as to the extent of his authority, to which rulings of the court appellants excepted. The court instructed the jury to find for the ap-pellees and rendered judgment thereupon against the appellants. By ten assignments appellants present for our consideration three questions:

First. Could the extent of an agent’s authority be proven by evidence of his declarations?

This must be answered in the negative. The court properly excluded declarations of the agent as to the extent of his authority. Alamo Live Stock Com. Co. v. Heimer, 192 S. W. 591.

Second. Was the company bound by the promise of the agent that there would be no forfeiture for nonpayment, unless Wm. Knodel were first notified and thereafter defaulted, and the agent’s statement that the applications and policies contained such clauses?

Third. If the agent could so bind the company by his promise and statements, can the court read the promise into the policies and: enforce them as thus amended?

We think both of the last questions must also be answered in the negative. Appellants did not pray for cancellation of the policies and sue for recovery of the premium paid and cancellation of obligations for premium because the minds of the parties had not met, as was the cause of action in Mutual Life Ins. Co. v. Hargus, 99 S. W. 580, and Equitable Life Ass’n Soc. v. Maverick, 78 S. W. 560. On the contrary, appellants sought to enforce the written contract as changed by the parol promise.

The policies which are the basis of this suit, were executed after 1910, and are controlled by article 4953 of the Revised Civil Statutes:

“Every policy of insurance issued or delivered within this state on or after the first day of January, 1910, by any life insurance company doing business within this state, shall contain the entire contract between the parties, and the application therefor may be made a part thereof.”

In our opinion this statute is binding upon all parties to an insurance contract, and excludes all evidence of parol agreements not expressed in the policies. National Live Stock Ins. Co. v. Gomillion, 178 S. W. 1050.

For the reasons apparent from the above, we overrule all the assignments of error, and affirm the judgment of the trial court.

Judgment affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    TEXAS CENT. R. CO. v. HOFFMAN.
    (No. 5693.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1916.
    On Motion for Rehearing, April 18, 1917.)
    1. Appeal and Error <&wkey;725(2) — Review — Assignments oe Error.
    Where the record showed that after a general demurrer was sustained to plaintiff’s original petition he filed two trial amendments and it did not appear that demurrer was then sustained to the petition, an assignment of error, complaining of the sustaining of general demurrers to the original petition before and after the first trial amendment, shows no reversible error.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3004.]
    2. Appeal and Error &wkey;>562 — Record — Statement oe Facts.
    Documents following the statement of facts, preceded by an agreement that they should be considered as part of the statement of facts, cannot be considered, where the agreement was not signed by one of the parties or any one for it, though approved by the trial judge.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2495-2499.)
    3. Judgment <&wkey;499 — Collateral Attack-Evidence.
    In an action to enjoin execution on a judgment rendered against it in a former suit, a copy of plaintiff’s original petition and the citation issued thereon, together with the sheriff’s return, showed service upon a person named as defendant’s agent. It did not appear that plaintiff filed no other pleading, or that defendant did not enter an appearance. Held that evidence that the one on whom citation was served was not agent of defendant was properly excluded.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 940.]
    4. Judgment t&wkey;429 — Collateral Attack-Ground eor.
    Where a judgment was collaterally attacked by a suit to enjoin execution thereon upon the ground that the person on whom citation was served was not agent of the corporate defendant, that fact must be established, as well as the fact that defendant had a meritorious defense and a sufficient excuse for not having filed a motion for now trial before the term of court at which judgment was rendered had adjourned.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 808, 810-815.] •
    On Motion for Rehearing.
    5. Courts <&wkey;92 — Dicta—Binding Authority.
    A statement in a decision of the Supreme Court that a suit to enjoin execution on a judgment was a direct attack thereon is not a binding decision, the case in which the statement was made not being an injunction suit.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 335.]
    G. Judgment <&wkey;521 — Attack — Collateral Attack.
    A suit to enjoin execution upon a judgment on the ground that the judgment was absolutely void which did not pray to vacate the judgment is a collateral and not a direct attack.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 9G4.]
    7. Judgment <&wkey;429 — Injunction against Execution — Issuance.
    Where a railroad company sought to enjoin execution upon a judgment rendered against it and the judgment recited upon its face that the company was duly served, it was not absolutely void, but at most voidable, and the company is not, though the proceeding be deemed a direct attack, entitled to relief without showing a meritorious defense.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 808, 810-815.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by H. Hoffman against the Texas Central Railroad Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Nat Harris and Spell & Sanford, all of Waco, for appellant. Boggess & Ñaman, of Waco, for appellee.
   KEY, C. J.

Appellee does not object to appellant’s statement of the nature and result of this suit, which is as follows:

“This is an application for an injunction filed in the county court of McLennan county, Tex., by appellant, the Texas Central Railroad Company against H. Hoffman and S. S. Fleming, sheriff of McLennan county, Tex., to restrain the said H. Hoffman and S. S. Fleming from levying an execution issued' out of the county court of McLennan county, Tex., on the 27th day of August, 1915, in cause No. 9278 on the civil docket of said court, wherein H. Hoffman was plaintiff and the Texas Central Railroad Company was defendant. Appellant alleged in its petition for injunction that on the 8th day of May, 1915, appellee, H. Hoffman, filed in the county court of McLennan county, Tex., his petition in cause No. 9278, wherein H. Hoffman was plaintiff and Texas Central Railroad Company was defendant, for the sum of $238 for damages alleged to have been sustained by the said Hoffman by reason of delay in shipment of a carload of bananas transported from Galveston to Waco, and from Waco, Tex., to Hamlin, Tex., and also for $50 attorney’s fees. Appellant alleged that citation was issued in cause No. 9278 on the 10th day of May, 1915. Said citation was executed on said 10th day of May, by the sheriff of McLennan county, by serving said citation on one C. H. Pinnell, alleged in the return on said citation to be the local agent of the defendant, Texas Central Railroad Company.
“That on the 5th day of July, 1915, said C. H.< Pinnell filed in said canse an affidavit, properly sworn to, wherein he denied that he was the local agent of the Texas Central Railroad Company on the 10th day of May, 1915; that he was not the local agent on the Sth day of May, 1915, or at any time between said dates, and did not represent the Texas Central Railroad Company in any capacity and that he did not at the time of filing said affidavit represent the Texas Central Railroad Company in any capacity whatever, either as local agent or otherwise. Appellant further alleged that said Pinnell was not the president, or secretary, or treasurer of the Texas Central Railroad Company, and that he was not the ‘local agent’ representing the Texas Central Railroad Company in McLennan county, Tex.; that a copy of the citation was not left at the principal office of the Texas Central Railroad Company; that it did not accept service nor authorize, any one to accept service nor waive the issuance and service of process on it in said cause, and did not appear and’ answer therein.
“That on the 16th of July, 1915, a judgment by default was rendered in said cause against the appellant and in favor of appellee H. Hoffman, for the sum of $263.50, together with interest at the rate of 6 per cent, per annum from the date of said judgment.
“Appellant’s petition for injunction was presented to the court and the writ of injunction ordered as prayed for upon appellant giving bond in the sum of $550. Injunction bond was filed and approved on the 7th day of September, 1915. Writ of injunction was issued on September 8, 1915. Injunction executed on the 8th day of September, 1915.
“Appellees H. Hoffman and S. S. Fleming filed a motion to dissolve said injunction, which said motion contained: First, a general demurrer; and, second, allegations to' the effect that the Texas Central Railroad Company was leased by the Missouri, Kansas & Texas Railway Company for a period of 99 years, and that the Missouri, Kansas & Texas Railway Company of Texas enjoyed all the rights, franchises, and privileges belonging to the said Texas Central Railroad Company, and that the said C. H. Pin-nell, upon whom service of citation was had in cause No. 9278, was local agent at Waco, in McLennan county, Tex., for the said Missouri, Kansas & Texas Railway Company of Texas, and that defendants were informed and believed that Pinnell was the local agent of the Texas Central Railroad Company at Waco, Tex.
“The motion to dissolve the injunction came on to be heard on the 14th day of -October, 1915. At that time came on to be heard the defendant’s general demurrer to plaintiff’s petition. The court sustained the general demurrer, to which action of the court the plaintiff then and there excepted, and thereafter was granted leave to amend its said petition. Appellant filed its first trial amendment in said cause on the 15th day of October, 1915, denying that it contracted with the said H. Hoffman as alleged in his petition in cause No. 9278, to carry the carload of bananas from Waco, Tex., to Hamlin, Tex.; that the said carload of bananas was never delivered to the said Texas Central Railroad Company, appellant, nor its servants, agents, and employes for transportation from Waco, Tex., to Hamlin, Tex., or any other point, as alleged in plaintiff’s petition; that under and by virtue of an act of the Legislature passed at the general session of the Thirty-Third Legislature of 1918 appellant leased, let, and demised unto the Missouri, Kansas & Texas Railway Company of Texas, its successors and assigns, the property, premises, equipment, and appliances, leaseholds, rights, privileges, and franchises for a term of 99 years, beginning on the 1st day of May, 1914; that since said 1st day of May, 1914, it has not operated its said railroad extending from Waco, in McLennan county, Tex., to Rotan, in Fisher county, Tex., and that it has not exercised any of its rights, privileges, or franchises since said date, save and except the franchise of its corporate existence, which it has exercised under said act for the purpose of said lease. A copy of the lease was attached to said trial amendment.
“The appellee filed an exception to said trial amendment for the reason that the said petition, as amended, ‘wholly fails to show that said plaintiff did not have an adequate remedy at law in ‘-his: That it is not shown that plaintiff made a motion for a new trial, or that he was prevented from making a motion for a new trial within the time allowed by law, or that said motion for a new trial would have been an adequate remedy at law.’
“This motion coming on to be heard, the court sustained the same, to which action the plaintiff then and there excepted, and plaintiff was granted leave to file a second trial amendment. Thereupon the plaintiff filed a second trial amendment, in which it denied any knowledge of the judgment in cause No. 9278 until the 27th day of August, 19X5, when an execution was issued out of said court on said judgment, and that the term of court at which the said judgment in cause No. 9278 was entered expired on the 21st day of August, 1915-. Appellees answered the second trial amendment with a general denial, and alleged that Spell and Sanford were the local attorneys for the Missouri, Kansas & Texas Railway Company of Texas and the Texas Central Railroad Company, and that Nat Harris was one of the local attorneys for the said Missouri, Kansas & Texas Railway Company of Texas and Texas Central Railroad Company, and that they and each of them had knowledge of the rendition of said judgment, and that by virtue of the lease between the Missouri, Kansas & Texas Railway Company of Texas and Texas Central Railroad Company all the agents, servants, and employés of the said Missouri, Kansas & Texas Railway Company of Texas are and were agents, servants, and em-ployés of the Texas Central Railroad Company.
“On the trial of this cause before the court, the court rendered a judgment for the appellees dissolving the injunction issued in this cause. The court made and filed a conclusion of facts and of law.
“Appellant filed its first amended motion for a new trial on the 22d day of October, 1915. Appellant’s motion for a new trial was overruled by the court on the 23d day of October, 1915. Appellant in open court excepted to the ruling of the court 'and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, at Austin, and upon motion was granted 60 days’ time in addition to that allowed by law to have prepared, approved, and filed a statement of facts and bills of exception. Appellant filed its bills of exception on the 20th day. of January, 1916, and its statement of facts on the 21st day of January, 1916, and now brings this cause to this court for review upon the following assignments of error.”

Opinion.

The fir§t two assignments in appellant’s brief complain of the alleged action of the trial court in sustaining general demurrers to appellant’s original petition before and after appellant filed its first trial amendment. After sustaining 'the demurrer to the original petition, appellant was granted leave, and filed two trial amendments, and it does not appear by the record that the court sustained any exception to the petition after the amendments referred to were filed. On the contrary, the trial of the case proceeded, and both parties introduced testimony, as disclosed by the statement of facts. Hence we hold that the two assignments referred to do not afford ground for reversing the case.

All the other .assignments in appellant’s brief relate to the action of the court in excluding certain testimony offered by appellant. The testimony referred to related only to the question as to whether or not one O. H. Pinnell, upon whom the citation had been served in the former ease, was appellant’s local agent at Waco, Tex. As the case is' presented in this court, those assignments are immaterial, for reasons which will now be stated.

Appellant is making a collateral attack upon the judgment which had been rendered against it at a former term of court. Appellant’s pleading in this case does not set out, in terms, the pleadings filed by appellee in the former suit, but does allege that C. H. Pinnell, upon whom the sheriff’s return shows that the citation in that case was served as the local agent of appellant, was not in fact such agent. None of the pleadings, nor the citation or the return thereon are embodied in the statement of facts. Attached to the statement of facts is what purports to he a copy of the plaintiff’s original petition in the former suit, and the citation issued thereon, together with the sheriff’s return, but they are no part of the statement of facts. True they are preceded by the form of a written agreement to the effect that the documents referred to should be considered by this court as a part of the statement of facts. However, the purported agreement is not signed by appellant or any one for it, and although it is approved by the trial judge, it cannot be considered by this court as part of the statement of facts. But, even if it were so considered, the result would be the same, because it does not appear that the plaintiff in the former suit filed no other pleading, nor does it appear that appellant did not enter an appearance in that case.

We also hold that if the petition, citation, and return just referred to were all that the record in the former case disclosed in reference to appellee’s right to judgment by default in that case, still, it would not appear from the record that the court did not have jurisdiction to render that judgment. This being the case, the judgment was not void, but voidable only. The burden rested upon appellant in' the trial of this case, not only to show that Pinnell was not its agent at Waco, but also to show that it had a meritorious defense to the former suit, and had a sufficient excuse for not having filed a motion for a new trial before that term of court adjourned. Barbers Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303; Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918; Edrington v. Allsbrooks, 21 Tex. 186; Texas Mexican Hardware Co. v. Wright, 29 S. W. 1134, affirmed by the Supreme Court in 88 Tex. 347, 31 S. W. 613, 31 L. R. A. 200; S. A. & A. P. Ry. Co. v. Glass, 40 S. W. 339; Laundry Co. v. Carter, 24 Tex Civ. App. 533, 60 S. W. 328 (writ of error denied by Supreme Court); Hamblin v. Knight, 81 Tex. 351, 16 S. W. 1082, 26 Am. St. Rep. 818; First Natl. Bank v. Henwood, 183 S. W. 5; Dashner v. Wallace, 29 Tex. Civ. App. 151, 68 S. W. 307.

So, if it be conceded that appellant’s pleadings were sufficient to admit proof showing that it had a good defense to the former suit, and a sufficient excuse for not having filed, a motion for new trial before that term of court ended, the fact remains that it utterly failed to make such proof upon the trial of this case, and therefore the trial court rendered the proper judgment, although C. H. Pinnell may not have been its agent at the time citation was served upon him. Appel-lee’s answer to the pleas referred to embraced a general denial, which placed the burden of proof upon appellant.

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

Affirmed.

On Motion for Rehearing.

This motion has been given careful consideration, and our conclusion is that it should be overruled. We do not concur in the contention of appellant’s counsel that this suit constitutes a direct and not a collateral attack upon the judgment formerly rendered by the court against appellant.

It is true that appellant brought this suit for the purpose of obtaining a writ of injunction to restrain appellee from enforcing the former judgment, and it is also true that in Crawford v. McDonald, 88 Tex. 626, 83 S. W. 325, our Supreme Court, in undertaking to define what constitutes a direct attack upon a judgment, included in the definition “an injunction to restrain its execution,” etc., but that was not an injunction suit, and therefore that statement was not necessary to a decision of that case, and is not binding as authority. However, when an independent suit is brought for the purpose of having a former judgment set aside, and the case restored to the docket and retried, such a suit constitutes a direct attack upon the judgment, although the plaintiff may also ask for a writ of injunction restraining the defendant from seeking to enforce such judgment. But .when, as in this case, the plaintiff brings his action solely for the purpose of obtaining a writ of injunction to prevent the enforcement of the former judgment upon the ground that such judgment is absolutely void, because of the fact that he was not served with citation, and did not appear or otherwise waive such service, and does not ask to have the judgment set aside and the case retried upon its merits, such a suit, in our opinion, is not a direct but a collateral attack upon the judgment, and when, as in the instant case, such judgment recites upon its face that the defendant was duly served, then in such collateral attack such recital is conclusive, and evidence will not be heard to impeach it.

In support of our holding that the present suit is a collateral and not a direct attack upon the former judgment, we quote from section 253, of Black on Judgments, as follows:

“When a person against whom a judgment has been taken at law applies to a court of equity for relief against the judgment, as by petition for an injunction to restrain its execution, it might appear at first sight that such a proceeding constituted a direct attack upon the judgment. For its object is clearly to escape the consequences of the adjudication by showing adequate reasons for withholding them in the particular case. But a closer examination shows that an action of this character is in reality a collateral attack upon the judgment, and therefore cannot be based upon mere errors or irregularities. For first, if a court of equity sees fit to grant such an application, its intervention never takes the form of annulling, vacating, or opening the judgment, or in any wise interfering with its standing as a valid and binding adjudication. Its action is not direct, but indirect. It lays its restraining hand upon the person, not the judgment. What chancery does, in these circumstances, is to put its prohibition upon the person who has obtained the judgment, to prevent him from making a .use of it which, as it appears, would be inequitable and against conscience. Secondly, it is very well settled, upon the authorities, that equity will not review judgments at law, that is, as it is commonly phrased, ‘grounds of which the party could not have availed himself at law, or of which he was prevented from availing himself at law, by fraud,_ accident, or the act of the opposite party unmixed with negligence or fault on his own part.’ Prom these considerations it will appear that an application to enjoin the collection of- the judgment is, strictly speaking, a collateral attack upon it. And this view is fully sanctioned by the decisions. ‘It is a familiar doctrine,’ says the court in Indiana, ‘that such a proceeding to enjoin the enforcement of a judgment by execution constitutes a collateral attack upon the judgment, and cannot be maintained on account of errors or irregularities merely, but only .upon a showing that the judgment is void.’ ”

Besides in this case the judgment which was attacked recited upon its face that the defendant was duly served with citation, and it is not absolutely void, but at most only voidable; and, such being the case, ,we think before appellant should be afforded equitable relief by a writ of injunction, it should be required to show that it had a meritorious defense to the original suit, even though it be conceded that it is now making a direct attack upon the judgment. The judgment is not void upon its face', and if, in the forum of conscience, it is right and just, appellant is not entitled to relief against it at the hands of a court of equity; and therefore, to entitle itself to such relief, we think it should have alleged and proved facts which would have shown that the judgment was unjust. Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303; Walker v. Chatterton, 192 S. W. 1085.

These holdings sustain the judgment of af-firmance, and render it unnecessary to consider and decide the other questions presented in the motion.

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


author: HIGGINS, J.

text:
    SLATE et al. v. CITY OF FT. WORTH.
    (No. 686.)
    (Court of Civil Appeals of Texas. El Paso.
    March 22, 1917.)
    1. Death &wkey;>33 — Right of Action.
    Rev. St. 1911, art. 4694, subd. 2, giving a right of action where death*is caused by negligence of “another,” etc., did not make a municipality liable for negligently causing death until Acts 33d Leg. e. 143, amended the section to read “another person or corporation.”
    [Ed. Note. — For other cases, see Death, Cent Dig. § 49.]
    2. Death &wkey;>13 — Right of Action — Nature.
    Under Rev. St. 1911, art. 4694, subd. 2, as amended by Acts 33d Leg. e. 143, giving a right of action for death by wrongful act, the foundation of the action is the act causing the injury, although article 5687, subd. 7, making the two-year limitation statute applicable, provides that the cause of action is deemed to have accrued upon death of injured party.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 48.]
    3. Statutes <&wkey;263 — Construction — Prospective Operation.
    A statute will be given only a prospective operation unless the legislative intent to give it retroactive effect be clearly apparent.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 344, 349.]
    4. Death <®=oll — Right of Action — Nature.
    The right of action for death caused by wrongful act given by Rev. St. 1911, ajrt. 4694, as amended by Acts 33d Leg. c. 143, is purely statutory, since none existed at common law.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 16, 15.]
    5. Constitutional Law &wkey;>191 — Retroactive Right of Action.
    Construing Rev. St. 1911, art. 4694, as amended by Acts 33d Leg. c. 143, so as to create a right of action for death by wrongful act where the injury occurred before its passage and the death thereafter, would render it retroactive and invalid under Const, art. 1, § 16.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 534.]
    6. Death &wkey;?9 — Creation of Cause of Action-Prospective Operation.
    Rev. St. 1911, art. 4694, as amended by Acts 33d Leg. e. 143, rendering municipalities liable for negligently causing death, does not apply to an injury occurring before its passage, although the injured party died thereafter.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 11.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by Mrs. Willie Slate and others against the City of Ft. Worth. From on order sustaining a demurrer to the petition, plaintiffs appeal.
    Affirmed.
    O. W. Gillespie and G. W. Dunaway, both of Ft. Worth, for appellants. T. A. Altman and B. L. Agerton, both of Ft. Worth, for ap-pellee.
   HIGGINS, J.

This suit was brought by the surviving wife, children and parents of Harry Slate, deceased, against the city of Ft. Worth, a municipal corporation, to recover damages on account of injuries causing the death of said Harry Slate. It was alleged that Harry Slate was an employé of the city, and upon April 19, 1913, sustained certain injuries caused by the negligence of the defendant in consequence whereof he died on March 1, 1915. The only issue presented by the record is whether or not a general demurrer to the petition was properly sustained.

At the time of the injury to deceased a cause of action for damages on account of injuries causing death did not lie against a municipal corporation under the second subdivision of article 4694, R. S. Elliott v. City of Brownwood, 106 Tex. 292, 166 S. W. 1129; Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029; Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250; Searight v. City of Austin, 42 S. W. 857. This statute was amended by the Thirt)y-Thtird Legislature, and at the date of Slate’s death an account for damages would lie against sucli a corporation when tlie death of a person was caused by its neglect. Chapter 143, Gen. Laws 33d Leg. (Reg. Sess.) p. 288.

Appellants contend that the amended statute gave them a cause of action which under subdivision. 7, art. 5687, accrued to them at the time of the death of the injured party. Article 5687 is purely a statute of limitation, and not a statute creating a cause of action. Although the right of action does not accrue to the beneficiaries named in article 4694 unless death ensues, the wrong for which the action is allowed is the injury which causes the death. The foundation of the action is the act or omission which causes the injury. De Harn v. Railway Co., 86 Tex. 68, 23 S. W. 381. See, also, opinion of Court of Civil Appeals in same case De Harn v. Same, 22 S. W. 249.

In the absence of constitutional restrictions, it is a sound rule of construction that a statute shall have only a prospective operation unless its terms clearly show a legislative intention that it shall have a retroactive effect. 2 Lewis’ Sutherland, Stat. Const. (2d Ed.) § 643; Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249. And, if possible, an act will not be so construed as tq conflict with any constitutional provision. 1 Lewis’ Sutherland, Stat. Const. (2d Ed.) § 83. In Mellinger v. City of Houston, supra, Chief Justice Stay ton quoted with approval this language from Hope Mutual Insurance Co. v. Flynn, 38, Mo. 484, 90 Am. Dec. 438:

“A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions * * * already passed, is to be deemed retrospective or retroactive. * * » No new ground for the support of an existing action ought to be created by legislative enactment, nor any legal bar which goes to deprive a party of his defense.”

Justice Brown, in the case of Fristoe v. Blum, 92 Tex. 76, 45 S. W. 998, said:

“By analogy retrospection, within the meaning of the Constitution, would be to give a right where none before existed, and, by relation back, to give the party the benefit of it; if, however, the right already existed, it would be in the power of the Legislature to devise and provide a remedy.”

Justice Story, in the case of Society, etc., v. Wheeler, 2 Gall. 105, 139, Fed. Cas. No. 13,156, said:

“Upon principle every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.”

The cause of action which now exists against a municipal corporation by virtue of amended article 4694 arises exclusively by virtue of this statute. A right of action to recover damages on account of injuries causing death did not exist under the common law.

If it should be held that amended article 4694 gives to plaintiffs the right to recover damages on account of the injuries inflicted previous to the amendment, such holding would clearly impose a new obligation upon defendant and attach a new liability in respect to a past transaction. To such extent the statute would be retroactive and invalid. Section 16, art. 1, Constitution of Texas. But it is insisted that the statute is remedial, and as such may be retroactive without conflicting with the constitutional provision. In this connection our views are most aptly expressed in Hamilton County v. Rosche, 50 Ohio St. 103, 33 N. E. 408, 19 L. R. A. 584, 40 Am. St. Rep. 653, where this language is used:

“This statute, it is contended, is remedial, and remedial statutes may be retroactive. It is remedial, no doubt, in that enlarged sense of that term, where it is employed to designate laws made to supply defects in, or pare away hardships of, the common law, but not remedial in the sense of providing a more appropriate remedy than the law before afforded, to enforce an existing right or obligation. The statute under consideration provided no new method of procedure; it simply imposed upon Hamilton county an obligation towards these plaintiffs in error that did not attach to the transaction when it -occurred. In attempting to accomplish this result the Legislature transcended its constitutional powers.”

This is in accord with Mr. Sutherland’s 'definition of remedial statutes. He says:

They are “those enacted to afford a remedy, or to improve and facilitate remedies existing for the enforcement of rights and the redress of injuries, and also those intended for the correction of defects, mistakes, and omission's in the civil institutions and administrative policy of the state.” 2 Lewis’ Sutherland, Stat. Const. (2d Ed.) § 836.

In support of their contention that the stattutes are remedial appellants refer to Railway Co. v. Rogers, 15 Tex. Civ. App. 680, 39 S. W. 1112; Railway Co. v. Settle, 19 Tex. Civ. App. 357, 47 S. W. 825; and City of Marshall v. McAllister, 18 Tex. Civ. App. 159, 43 S. W. 1043. These cases are not in point. They merely. hold that a statute which provides for the survival of an existing cause, of action is not in conflict -with the constitutional provision noted. The statute there considered manifestly relates to the remedy. It does not attempt to create a new cause of action. On the other hand, if appellant’s view of the effect of the amendment to article 4694 be sustained, such amendment would create a cause of action for an injury resulting in death when no such obligation or liability arose out of the negligence complained of at the time thereof. So we conclude that to construe the act as appellants contend it should be construed would give it a retroactive effect and render it obnoxious to-the Constitution. The legislative intent to give the amendment a retroactive effect not being plainly apparent, we therefore hold that the amendment to article 4694 did not undertake to give, and does not give a cause of action for damages based upon injuries resulting in death caused by a negligent act or omission transpiring before tbe amendment became effective. Under this view of tile ease tbe general demurrer was properly sustained. Tbis conclusion is in harmony with the holding of the Supreme Court of Wisconsin in Keeley v. Railway Co., 139 Wis. 418, 121 N. W. 167, and Quinn v. Railway Co., 141 Wis. 497, 124 N. W. 653. The latter case is particularly in point.

Affirmed.
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author: RAINEY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. DAWSON et al.
    (No. 7746.)
    (Court of Civil Appeals of Texas. Dallas.
    March 10, 1917.)
    1. Judgment <&wkey;530 — Parties — Presumption.
    The presumption is that judgment of the county court simply for plaintiffs was rendered against both defendants, who had appealed from adverse judgment of a justice.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 974.]
    2. Judgment <&wkey;310 — Correction at Subsequent T!erh.
    Judgment for plaintiffs merely may be corrected at a subsequent term to insert names of defendants.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 601-603.]
    3. Railroads &wkey;>254(5) — Eeeect ob Receivership — Torts.
    A railroad is not liable for penalty for allowing Johnson grass to go to seed on its right of way after its property had. passed into the possession and control of a receiver.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 771.]
    4. Railroads &wkey;>254(5) — Receivers—-Liability — Johnson Grass on Right oe Way.
    Rev. St. 1911, arts. 6601, 6602, declaring it unlawful for a railroad to allow Johnson grass to go to seed on any right of way owned, leased, or controlled by it, and giving a right of recovery against it if it does permit it, does not include, and does render liable, receivers of the road for allowing it.
    [Ed. Note. — For other cases, see Railroads, Cent.. Dig. § 771.]
    5. Receivers &wkey;>174(l) — Action Against— Leave oe Court.
    Receivers cannot be sued without permission of the federal court which appointed them.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-335.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Action by J. ES. Dawson and others against the International & Great Northern Railway Company and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Wilson, Dabney & King, of Houston, and Will Hancock and Supple & Harding, all of Waxahachie, for appellants. Clyde F. Winn and S. E. Dawson, both of Waxahachie, for appellees.
   RAINEY, C. J.

This suit was brought in the justice court by appellees against the railroad company and its receivers to recover penalties for $200 for allowing Johnson grass to go to seed on the right of way of appellant running through appellees’ farm. A trial was had and judgment rendered for plaintiffs, from which an appeal was taken to the county court, where judgment was again rendered for plaintiffs for $50, from which latter "judgment an appeal was taken to this court by the receivers.

No briefs were filed in this court by the appellees, and the case was submitted alone on the briefs of appellant.

After judgment was entered in the county court, the motion for new trial overruled, and the appeal perfected, it was discovered by the parties that the judgment did not dispose of the railroad company, and a motion by both parties was made to the judge to permit the clerk to interline the name International & Great Northern Railway Company, in the judgment, which permission was granted ; but the clerk failed to make said entry. Thereupon a motion was made by appellant to the judge to withdraw said motion, which was granted. Afterwards, at a succeeding term of the court, appellees again moved that correction be made nunc pro tunc so as to dismiss the railway company from the suit, which was granted, except that judgment was entered against both defendants.

The first and second assignments of error are grouped and presented together. They are as follows: (1) “That the motion was wholly insufficient to warrant any such proceedings.” (2) Because it, the motion, could not be ascertained from the entry on the court’s docket what judgment the court did render'in the case, nor did it show what disposition was made of the two defendants in the case. The propositions made are:

(1) “At a subsequent term of the court tbe judgment cannot be amended or corrected oxeei)t by a reference to some entry upon tbe docket or memorandum found among the files of tbe case.”
(2) “A judgment ‘nunc pro tunc’ can only be entered as the judgment which was actually pronounced by the court at the time he did render a judgment.”

The entry on the judge’s docket was as follows:

“Case tried before the court and judgment for plaintiff for $25 for one penalty in September, 1914, and one penalty of $25 for August, 1915, and in the aggregate of $50.”

The docket entry shows that judgment was rendered for plaintiffs for $50, which we think was evidently intended against the defendants. They were sued and defended in the justice court, as shown by the justice, and judgment that both the railway company and receivers were parties, and an appeal was given to the county court by both parties. No other parties were made to the case, and we think the legal presumption would obtain that they were the parties against whom the judgment was rendered.

The power of the court to correct the judgment at a subsequent term is fully authorized, we think, by our statute, as was held by our Supreme Coúrt in Russell v. Miller, 40 Tex. 495.

The court erred in rendering judgment against the railway company, because the evidence shows that the damages claimed accrued while the railroad was in the hands of a receiver appointed by the federal court. A railway company is not liable for damages suffered after its property has passed into the possession and control of a receiver. Railway Co. v. Green, 183 S. W. 829; Freeman v. Barry, 133 S. W. 748.

On the question of the receivers’ liability, in view of the authorities, we have concluded that the court erred in rendering judgment against them. Under the statute authorizing a recovery against railway companies for allowing Johnson grass to go to seed on their right of way and providing for penalties and damages, it does not include receivers as parties subject to such penalties and damages. Revised Stats. 1911, arts. 6601, 6602; Turner v. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262.

The possession of the receivers is the possession of the court appointing them, and it is held by the Supreme Court of the United States that receivers are not subject to statutory penalties and the statute cannot be construed to extend to 'them. U. S. v. Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780.

The receivers in this case 'having been appointed by a federal court, it was necessary to obtain the permission of said court to sue the receivers, and, such permission not having been obtained, a recovery against them cannot be had. Morse v. Tackaberry, 134 S. W. 273; Railway Co. v. Vivian, 180 S. W. 952.

In view of what we have here said, the judgment is here reversed and here rendered for both the railroad company and the receivers.

Reversed and rendered.
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author: FLY, C. J.

text:
    M. PIOWATY & SONS v. WYCHE et al.
    (No. 5833.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 4, 1917.)
    Appeal and Ebbob <&wkey;272(l) — Bill op Exceptions — Time fob Filing — Rule op Coubt.
    Under rule 55 (142 S. W. xxi) for the government of district and county courts, providing that the rulings of the trial court on applications for continuance can only be reviewed through bills of exception, where suit was filed June 17, 1916, defendants filed answer July 4th, and applied for continuance July 18th, that the sureties on defendants’ bond might be made parties, and bill of exceptions to the action of the court in overruling the motion for continuance was filed October 13th, the cause having been tried July 18th and the term ending July 22d, no order having been entered extending the time in which to file bill of exceptions, the assignment of error to the court’s denial of continuance cannot be sustained; entering an exception in the judgment not being sufficient to bring the matter up for review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1611-1615, 1619.]
    Appeal from Dimmit County Court.
    Suit by R. E. Wycbe and others against T. W. Courtney, wherein M. Piowaty & Sons were given notice of a landlord’s lien. From a judgment for plaintiffs, M. Piowaty & Sons appeal.
    Affirmed.
    Ed H. Wicks, of San Antonio, for appellant. Vandervoort & Johnson, of Carrizo Springs, for appellees.
   FLY, C. J.

Appellees sued T. W. Courtney on a promissory note in the sum of $500, being the rental price for 100 acres of land planted by said Courtney in onions. It was alleged that the onions were raised and duly harvested. It was further alleged that appellants were given due notice of a landlord’s lien on the onions, and they agreed in writing to protect the claim of appellees and give it priority over all others. Appellants admitted that they had agreed to protect the interest of appellees, but sought to have the sureties on a certain bond given to them by Courtney, in which he agreed to indemnify them against any loss on account of the payment of any debt against said Courtney, by said appellants, made parties to the suit. An exception was sustained to the answer,, and judgment by default was rendered against Courtney and on the pleadings and evidence against appellants in the sum of $556.

This suit was filed on June 17, 1916. On July 4, 1916, appellants filed their answer, and on July 18, 1916, an application for a continuance in order that the sureties on the bond might be made parties was filed. The bill of exceptions to the action of the court, in overruling the motion for a continuance was filed on October 13, 1916. The cause was tried on July 18, 1916, and the term ended on July 22, 1916. No order was entered extending the time in which to file bills of exception. Rule 55 for the government of district and county courts (142 S. W. xxi) provides that the rulings of the trial court on applications for continuance can only be reviewed through bills of exception. The rule is supported by" a long list of authorities. Entering an exception in the judgment is not sufficient. Darby v. White, 165 S. W. 481. The assignment of error cannot be sustained.

The judgment is affirmed.
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text:
    SECOND BAPTIST CHURCH v. C. H. MYERS & CO.
    (No. 5811.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 21, 1917.)
    Sales <&wkey;214 — Furniture to be Manueac-
    oittred — Passing Title — Loss by Fire.
    Where a contract for the manufacture and sale of church furniture required the manufacturer to install the furniture in the church, and provided that title should remain in the manufacturer until the price was fully paid, title to the furniture before it was installed in the church building, under the manufacturer’s supervision, or the price paid, was in the manufacturer, which had to bear the loss for its destruction by fire without the church’s fault.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 571-573.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by C. H. Myers & Co. against the Second Baptist Church. From a judgment for plaintiffs, defendant appeals.
    Judgment reversed, and rendered for defendant.
    Davis & Long, of San Antonio, for appellant.
   SWEARINGEN, J.

Appellees sued appellant on two promissory notes, dated July 12, 1910, for $400 each, interest, and attorney's fees. Appellant, in defense, averred failure of consideration, because the notes were given in pursuance of a written contract obligating' appellees to manufacture certain church furniture according to design and diagram, made part of the contract, and to deliver same installed under the supervision of appellees in appellant’s church building; title to remain in appellees until agreed price was fully paid. The furniture was never installed in the church, and purchase price not fully paid. Judgment was rendered by the court against appellant for $1,300.

The evidence is that appellant executed the notes sued upon in part performance of the written contract alleged by appellant, which required appellant to execute the notes upon arrival of the furniture. The evidence further shows that before the furniture was installed in the church building under appel-lees’ supervision, as required by the written contract, it was destroyed without fault on the part of appellant. The issue between the parties is: In whom was title to the property at the time of the fire?

The uncontroverted answer of appellant and the undisputed evidence force the conclusion that the title to the furniture never passed out of the manufacturer and never vested in appellant. When title to the church furniture to be manufactured would pass from the manufacturer to the buyer depends upon the terms of the written contract. The contract requires appellees to install the furniture in the church, and further expressly provides that title to the furniture shall remain in the manufacturer until fully paid. It also provides that no agent could change the terms of the written contract.

No furniture was ever installed in the church by appellees. Some furniture was destroyed by fire in San Antonio in August, 1910, which a letter to appellant from appel-lees describes as “your furniture.” The purchase price had not been paid at the time of the fire. Under this state of facts, we conclude that title to the furniture was in ap-pellees when destroyed. The loss followed the title; appellees never performed their contract to install described furniture in the church; the consideration for the notes wholly failed. Machine Co. v. Brown, 82 Tex. 469, 17 S. W. 715; Shaenfield v. Hall, 157 S. W. 462; Gammage v. Alexander, 14 Tex. 420; Tufts v. Lawrence, 77 Tex. 526, 14 S. W. 165; Tufts v. Stuart, 23 S. W. 834; Cobb v. Tufts, 2 Willson, Civ. Cas. Ct. App. §§ 152, 153, 154; Dunn v. Elser, 2 Willson, Civ. Cas. Ct. App. § 720; Mosler Safe & Lock Co. v. Campbell, 2 Willson, Civ. Cas. Ct. App. § 17; Griffith & Wedge v. Morrison, 58 Tex. 46; Sinker v. Comparet, 62 Tex. 470; Ellis v. Bonner, 80 Tex. 198, 15 S. W. 1045, 26 Am. St. Rep. 731; 1 Mechem on Sales, §§ 558-650; Story on Sales, §§ 296, 313.

The judgment is reversed, and here rendered for appellant.
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text:
    BOND-REED HARDWARE CO. et al. v. WALSH.
    (No. 5827.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 21, 1917.)
    1. Conspiracy <&wkey;9 — Acts Constituting Conspiracy — Fraudulent Formation of Corporations.
    Where defendants formed two corporations, one to make contracts for goods and rents, and the other to take possession of the goods and use the rented premises, there was a conspiracy to defraud creditors.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 12.]
    2. Appeal and Error <&wkey;880(3) — Right to Allege Error — Codefendant’s Judgment.
    In an action for rent, if defendant corporation did not claim damages, judgment against a codefendant’s cross-action did not injure it.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3588.]
    3. Corporations &wkey;>542(l) — Transfer by Corporation.
    Where a corporation was sued and a receiver for it sought, the attempted transfer of its property to another corporation, apparently organized to meet the exigencies of the receivership, was fraudulent and void.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2154, 2159.]
    4. Conspiracy <&wkey;13 — Civil Liability of Conspirator.
    A party, who was the active agent of two corporations, owned and controlled by him, and operated pursuant to a conspiracy so as to defraud parties who dealt with them, was properly cast in judgment, since where one has conspired with others to cheat and defraud, he will be held liable.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 14.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by F. T. Walsh against the Bond-Reed Hardware Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed. .
    C. A. Keller and W. S. Anthony, both of San Antonio, for appellants. M. E. Buckley and C. A. Goeth, both of San Antonio, Hunt & Teagle, of Houston, and Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellee.
   FLY, C. J.

This is a suit for rents in the sum of $895.10, instituted by appellee against the Bond-Reed Hardware Company, the Bond-George Hardware Company, John H. Bond, H. W. Fuos, H. S. Taylor, and A. E. Staacke, and afterwards the Central Hardware Company. This is a second appeal of this case. 181 S. W. 248.

There was a full hearing on the appointment of a receiver before the former appeal, and the propriety of the appointment was presented and adjudicated on that appeal. It was held that the receivership was properly granted. This court held that the pleadings and evidence were sufficient to justify the appointment of a receiver. The pleadings of appellee were the same on the former appeal as on this, except that a supplemental petition was filed setting up additional rent that had become due, and making an additional party. The first, second, third and fourth assignments of error seek to question the sufficiency of the petition to sustain the appointment of a receiver. That question has been settled by this court, and we see no reason to disturb our former ruling. The sufficiency of the petition to support the appointment of a receiver is too plain for discussion. The allegations are ample, under the statute, to justify the appointment of a receiver. Bond-Reed Hardware Company v. Walsh and authorities therein cited.

The fifth assignment of error is overruled. The supplemental petition alleged a fraudulent sale between the ingeniously devised system of corporations owned and controlled by the same men, and the allegations brought the suit clearly within the provisions of subdivision 1, art. 2128, Rev. Stats.

The evidence clearly indicated that appellants had organized two corporations, one to make the contracts for goods and rents and the other to take possession of the goods and use the rented premises, and it was clearly a conspiracy to defraud creditors, among the number, appellee. The sixth assignment of error questions the finding of fact as to the existence of such conspiracy. We adopt the findings of fact of the trial judge as the conclusions of fact of this court. The seventh and eighth assignments are also overruled.

The ninth assignment of error is without merit. If the Bond-Reed Hardware Company did not claim damages, the judgment against the cross-action did not injure it. The Bond-George Hardware Company and the Central Hardware Company did not make out any case for damages. No man or set of men can organize such a network of corporations and shift possession of goods from one to another as the occasion may require for any commendable purpose. As said on the former appeal by Judge Carl, for this court:

“J. H. Bond was president of both the Bond-George and the Bond-Reed Companies, and when the stock of merchandise was sold by the Bond-George Company to the Bond-Reed Company, J. I-I. Bond was still in charge, and the proceeds of sales was to go to the Bond-George Company. When the Bond-Reed Company sold the stock to J. C. Timberlake, Bond, as president and principal stockholder of both the hardware companies named, remained in charge of all the receipts as well as the stock of goods for the benefit of the Bond-George Company. Timberlake then sold to the Central Hardware Company, a concern which bond says had been chartered, but its charter had not arrived, and he was still in possession for the same purposes he had been all along, and in the same building.”

The goods were removed to another building while the former appeal was pending, and when the receiver sought to take possession of them he was informed that the Central Hardware Company owned the same. The attempted transfer to the Central Hardware Company was fraudulent and void. It seems to have been organized to meet the exigencies of the receivership. The whole scheme was a marvelous system of business prestidigitation.'

The tenth assignment of error is overruled. The testimony showed that the,corporations were but the outward manifestations of J. H. Bond, owned and controlled by him. He was the inspiration and soul of the corporations, and the court properly rendered judgment against him. He and the Central Hardware Company were among the conspirators who had organized to defeat, their creditors, and, as such, judgment against them was proper. The law is that where a man has conspired with others to cheat and defraud he will be held, liable. Jernigan v. Wainer, 12 Tex. 189; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584. J. H. Bond Was the active agent in carrying out the plans of the conspiracy.

The judgment is affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PBENDEjRGAST, J.

text:
    BAGGETT v. STATE.
    (No. 4417.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.)
    Appeal from District Court, Stephens County; D. K. Scott, Special Judge. B. M. Baggett was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PBENDEjRGAST, J.

Appellant was convicted of passing a forged instrument, and his punishment assessed at the lowest prescribed by law. There is neither a bill of exceptions nor a statement of facts in the record, nor has appellant filed any brief herein. The judgment is affirmed.