author: HENDRICKS, J.

text:
    FOOS GAS ENGINE CO. v. FAIRVIEW LAND & CATTLE CO. et al.
    (No. 893.)

    (Court of Civil Appeals of Texas. Amarillo.
    March 15, 1916.
    Rehearing Denied April 19, 1916.)
    1. Damages <§=s>79(4) — Liquidated Damages —Contract—Delay.
    Where a land company contracted for the digging of certain wells, known by the contractor to be intended for irrigation of the land, and the failure to complete which in time for the irrigating season prevented the company from raising any crops during that season, and rendered useless the work done in preparing the land for crops the damages were, in their nature, impossible of ascertainment, and a stipulation for liquidated damages for each day’s delay in the completion of the wells, not obviously unconscionable, was a stipulation for compensation for the loss, and not a penalty.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 167; Dec. Dig. ⅞^>79(4).]

      2. Trial @=>370(2) — Special Issues — Excluded Issues — Finding by the Oouet.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, providing that on appeal an issue not submitted and not requested shall be deemed as found by the court in such manner as to support the judgment, the trial court, which specifically excluded from the jury an issue which none of the parties requested can itself determine such issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 885; Dec. Dig. @=>370(2).]
    3. Contracts @=>305(1) — Beeach—Waivek oe Damages — Rescission.
    Where an engineering company delayed the completion of a well intended for irrigation far beyond the time set for completion, so that it would be of no use for irrigation that season, and then informed the land company’s superintendent that it would have to remove that machinery to another well but would install other machinery to complete that well, the president’s statement that he did not care whether another well was put down; that it was getting late— if it could be construed as a mutual abandonment of the contract, did not waive the land company’s right to damages for the previous delay.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1398-1400, 1467-1475; Dec. Dig. @=>305(1).]
    4. Garnishment @=>50 — Persons Subject — Possession oe Property.
    A land company, garnisheed in an action against an engineering company which had been digging wells on its land" cannot be held liable for the value of machinery of the engineering company left on the land but not in the possession of the land company.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 92; Dec. Dig. @=>50.]
    5. Trial @=>350(1) — Special Issues — Evidence.
    A special issue, not supported by the record, should not have been submitted to the jury.
    [Ed. Note. — For other cases, sec Trial, Cent. Cent. Dig. § 828; Dec. Dig. @=>330(1).]
    6. Subrogation @=>28 — Right to — Payment ' oe Debt.
    The rule that a surety on a note is not entitled to subrogation to the payee collaterally secured, unless the whole debt secured by the collateral is paid, does not prevent subrogation for a part of the debt paid by the surety, where the balance was paid by the principal.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 51-59; Dec. Dig. @=>28.]
    7. Appeal and Error @=>1073(7) — Harmless Error — Immaterial Error — Garnishment.
    Plaintiff, in garnishment proceedings, cannot object that the judgment for a creditor having priority was excessive, where the correct amount of the claim would exceed the amount due from the garnishee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4245; Dec. Dig. @=> 1073(7).]
    8. Appeal and Error @=>1043(3) — Harmless Error — Immaterial Error.
    Plaintiff in garnishee proceedings cannot complain of errors in rulings affecting mechanic’s liens, where the claim of the debtor’s as-signee exceeded the amount due from the garnishee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4117; Dec. Dig. @=>1043(3).]
    9. Appeal and Error @=>169 — Presenting Questions in Lower Court — Objections to Exceptions by Other Parties.
    In garnishment proceedings, where other claimants to the fund were joined as defendants and still others intervened, one of such defendants, who made no objections and saved no exceptions to the rulings of the court at the trial, cannot question such rulings on appeal by adopting the assignments of plaintiff, who had made objections and saved exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. @=> 169.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Garnishment proceedings by Foos Gas Engine Company against Fairview Land & Cattle Company and others. From a judgment of the court fixing the amount due from garnishee at an amount less than the preferred claims, plaintiff appeals.
    Affirmed.
    Veale & Lumpkin, of Amarillo, and Cooper & Merrell, of Houston, for appellant. C. E. Gustavus, M. J. R. Jackson, Madden, Tru-love, Ryburn & Pipkin, Ben. H. .Stone, C. H. Yost, and Turner & Rollins, all of Amarillo, and Sam. G. Bratton, of Clovis, N. M., for appellees.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

In 1913 the Hickcox-Whyman Engineering Corporation was under contract with the Fairview Land & Cattle Company to drill five certain wells on the property of said Land & Cattle Company, four of which are designated in this record as the “four small wells”; the other as “the large well.” The wells were to be dug in accordance with certain specifications, providing for certain excavations and tanks of certain dimensions, with dykes, with a stipulation in said contract that if the same were not completed within the time specified, $10 per day for delay in the completion of the small wells and $20 per day as to the large well would be paid as liquidated damages by the Engineering Company. The Foos Gas Engine Company, the appellant herein, was a creditor of the Engineering Company to the amount of about $7,000, and sued said company in the district court of Potter county, aiding it with a 'writ of garnishment, served upon the Fairview Land & Cattle CompanjL

The appellee Land & Cattle Company answered by setting up its contract with the Engineering Company that the latter had agreed to construct and equip the four small wells at a cost of $4,400, and a large well at a cost of $3,900, alleging a failure to construct all the wells within the time prescribed, or according to specifications, and that on August 7, 1913, after notice, it declared the contracts at an end, and resumed possession of its lands; that the work done upon the four small wells was not worth over $3,514.34, pleading that it had expended certain amounts and was required to expend a further amount for the completion of said small wells; and that, after deducting the liquidated damages, owing by tbe Engineering Company, ior delay to all the wells, it did not owe said engineering corporation more than $1,513.24, tendering the same into court. The appellee Land & Cattle Company also filed a separate cross-action and enumerated certain parties who were claiming liens upon its property on account of labor performed or material furnished, making them parties to the suit.

There were also several interventions in the case by other parties holding the same character of claims, setting up their alleged liens and praying for a participation in the fund.

We particularly call attention to the intervention of the Amarillo Hardware Company, claiming an indebtedness of $668.51, against the engineering corporation, with interest thereon at the rate of 6 per cent, per annum, based upon a Judgment obtained September 30, 1913, against said corporation, the Hardware Company also alleging that on the 7th day of July, 1913, the defendant engineering corporation executed and delivered to it an assignment and transfer of $3,600, out of any sum due by the Land & Cattle Company, to secure the payment of the account, which thereafter had been merged into the judgment, and a certain note of $3,348.24, dated May 2, 1913, with 10 per cent, interest and 10 per cent, attorney’s fees, alleging the payment of the note, but also claiming the collateral as a continuous security for the payment of the $668.61.

D. It. Hiekcox and one Busby were sureties for the engineering corporation, on the $3,300 note, executed by it, as principal, to the Hardware Company. The total satisfaction to the Hardware Company of said note consisted of a payment of $1,725.19 by Hick-cox; the balance paid by the engineering corporation. Hiekcox also intervened, alleging his previous suretyship on said note, the total satisfaction of same as above stated, and the part payment by him of the $1,-725, and a transfer of said note for the balance paid by him> also setting up the transfer of the well-drilling contract to the Hardware Company as collateral security for the note, and that by his part payment he was subrogated to that company’s rights in the sum paid, with interest.

The case was submitted to the jury upon special issues, who found that the engineering corporation did not substantially construct the four small wells and reservoir in compliance with the written contract, and that these particular wells were received by the appellee on August 7, 1913; that it was necessary for appellee Land & Cattle Company to expend $600, to have the wells and reservoirs substantially conform to the contracts; that the larger well was mutually abandoned on July 1, 1913; that the company, under the contracts (excluding the question of liquidated damages), was indebted to the engineering corporation, for work on the four small wells, in the sum of $3,800; that the Land Company terminated the contract for the larger well on July 1,1913, and answered that said company did not have in its possession any effects of the engineering corporation, but that certain machinery of the value of $1,600 was still upon its lands. The record also shows that the Land Company, on August 7, 1913, wrote the engineering corporation that the latter had breached the contract, declaring the same at an end, stating that it would resume exclusive possession of its premises, and did not waive its right to damages. The Fair-view Land & Cattle Company made a motion for judgment as to the liquidated damages, claiming delay of 83 days of the four small wells in violation of the contract, at $10 per day, aggregating $830, and a delay as to the large well of 21 days, at $20 per day, aggregating $420. The appellant and appel-lee Fair view Land & Cattle Company seem to agree, according to their briefs, that this motion was sustained by the court, which accounts for the judgment against the Land & Cattle Company, in the sum of $2,550, the court deducting $1,250 as liquidated damages.

The appellants’ thirty-first and thirty-second assignments are, in substance, as follows: (1) That the trial court erred in entering judgment for the sum of $2,550, because the jury found that the garnishee owed the engineering corporation, at the time it filed its answer, the sum of $3,800, and that said garnishee had in its possession effects belonging to the engineering corporation of the value of $1,600, as evidenced by the jury’s findings; (2) the court erred in entering judgment in accordance with the motion of the garnishee, and allowing the Land & Cattle Company the offset as liquidated damages, the sum of $10 a day, for the reason that there is no testimony showing that the garnishee suffered any damages on account of the wells not having been completed.

The thirty-fifth assignment complains of the court’s failure to enter a judgment for the full $3,800, as found by the jury, for the reason that it was not shown that the garnishee suffered any actual damages, and because the liquidated damages stipulated in the contract constituted a penalty, and could not be recovered unless actual damages were shown. The proposition under the thirty-first assignment is that the only judgment that could be rendered by the trial court was one in conformity with the verdict rendered upon the special issues submitted to the jury. Both parties agreeing that the judgment of the court for $2,550 against the Land & Cattle Company was the result of a finding by the court of liquidated damages, deducted from the jury’s verdict of $3,800, and a sustaining of appellee Land & Cattle Company’s motion, our consideration is, as affecting these assignments: First, can the liquidated damages be maintained? and, second, did tbe court bave tbe right to make tbe offset?

Tbe jury found that none of tbe small wells were completed according to specifications wben tbe appellee took possession. Tbe testimony was that tbe Land & Cattle Company intended to use tbe land around tbe wells during 1913, for tbe purpose of irrigation, but were not able to do so, these wells being intended for that purpose; that tbe company broke tbe land, leveled tbe same for irrigation, and constructed ditches, and shows that if tbe four small wells bad been finished by May 15th, it would bave been in time to bave farmed the lands for that year, and if it could bave obtained tbe 'large well by June 10th, other land also could bave been irrigated and farmed by tbe use of that well; that tbe company had men and teams for tbe purpose of doing tbe farm work, and used them to some extent, but without any benefit, and made no crops' at all, and unable to make any for that year, not being able to plant anything. It is easily seen that tbe damages resulting to tbe Land Company are difficult of ascertainment. We think tbe compensation for the. breach was evidently fixed in consequence of this difficulty, in estimating such damages. Indianola v. Railway Co., 56 Tex. 606-608; City of Marshall v. Atkins, 127 S. W. 1151. The purpose of' tbe use of tbe wells was known and understood by each party. It is impossible to measure tbe prospective loss to tbe company on account of tbe deprivation of tbe use of tbe wells, as no crop was planted, and, as inferable, none should bave been unless the wells could have been used within tbe time.

“If the damages be in their very nature uncertain or their amount indeterminate, the sum specified will be treated as fixing by stipulation the amount of the recovery.” Collier v. Betterton, 87 Tex. 442, 29 S. W. 468.

We are not able to say that tbe stipulations in tbe contract are obviously unconscionable; and, the parties having provided for the compensation to be paid in tbe event of tbe loss, under the conditions as shown here, we think the contract should control.

As to tbe other question involving tbe right of tbe court to reduce tbe verdict with the liquidated damages, we think article 1331 of tbe act of 1S97 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985) is applicable. Tbe failure to submit an issue is not error unless one has been requested in writing by the party complaining of tbe judgment.

“Upon appeal or writ of error, an issue not submitted and not requested, shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding.”

Tbe trial court, in submitting tbe issue of damages, specifically excluded tbe question of liquidated damages from tbe jury, and tbe parties were upon notice of tbe manner of submission, as well as tbe fact of intended reservation by tbe court of that issue.' Tbe trial court could not bave submitted actual damages in this case resulting from delay as to tbe use of the land because none were proven, nor could bave been proven. Justice Williams of tbe Supreme Court said, in Moore v. Pierson, 100 Tex. 113, 117, 94 S. W. 1132, 1134:

“The consequences must necessarily be that when the trial court had expressly submitted some issues and excluded others, and neither party has put in writing a request for the submission of those excluded, they must be regarded in the appellate court as having acquiesced in such action and consented for the trial judge to determine from the evidence the issue not sub: mitted.”

The jury did answer that tbe Land & Cattle Company and tbe engineering corporation mutually agreed to abandon the construction of tbe larger well about July 1, 1913, but tbe testimony of an agreement is a. statement by tbe president of tbe engineering corporation, to tbe effect that be remembered meeting Mr. Hayes, tbe president of tbe Land Company, at tbe large well about tbe first of July, or the last of June; that be bad a conversation with him at that time in regard to tbe work on this well; that he told Hayes be bad to move tbe machinery away, and that Hayes said be did not care whether we put in another bole down there or not, and Hayes said, “It was getting late anyway, and be. kind of objected — that was just about tbe time we were moving.” This well was a total failure at that time, and tbe engineering corporation. was moving their machinery to Randall county, for the purpose of digging tbe Miller well. Ilick-cox said they bad no other rig to dig another large well for tbe Land Company, but was going to hire one, and told Mr. I-Ilayes he would put up another rig and dig another bole. The time bad expired under the contract for tbe completion of this well. The intended use and benefits from that well, or of a substitute for that year, were not in sight. It is rather difficult to say, legally speaking, that tbe digging of tbe large well had been mutually abandoned wben tbe evidence shows that it bad been, in fact, unilaterally abandoned, by one of tbe parties. If the speculative statement of tbe president of the engineering corporation that be would obtain another “rig” and dig another well had materialized, the time consumed very naturally was a material element to the Land Company. We do not think at least that under tbe conditions and tbe contract it could be considered that the Land Company, through its president, Hayes, at that time waived any of its rights. The liquidated damages to the extent of $20 per day bad already accrued, and a new well, if dug, would not remove them. Tbe Supreme Court has said that an agreement terminating a contract does not necessarily effect a discharge of tbe parties from liabilities incurred under it. In such a case—

“the liability ⅜ ⅜ ⅜ must be referred to tbe terms of tbe agreement to cancel; and, in order to interpret that agreement, we must look to the intention of the parties, the character of the contract to be canceled, and the situation of the parties at the time, as well as the attending facts and circumstances which throw light upon the question of intent. If it appears from these facts and circumstances that it was not the intention of the parties that the.act of cancellation should have a retroactive effect to destroy previously vested rights, then the contract will be so construed as to preserve those rights.” Ala. Oil & Pipe Line Co. v. Sun Co., 99 Tex. 612, 92 S. W. 254 (citing’ numerous authorities).

If the conversation mentioned could be stretched to a mutual abandonment or rescission of the contract, we think under the conditions that the damages and matured rights were not waived. Whatever view the trial court considered the matter, we think, in permitting liquidated damages as to the large well, his action was correct.

It is clear that the Land & Cattle Company could not be held liable to the extent of $1,600, the value of the machinery upon its premises, under the further finding that such machinery was not in the possession of said company.

The sixteenth assignment of error is a complaint that D. L. Hickcox is not entitled to subrogation to the security of the Amarillo Hardware Company on account of Hickcox’s partial payment, and not the whole payment, of the debt secured by such collateral. The proposition under the assignment is:

“It is a well-settled rule that before subrogation can be enforced the debt must be paid and substitution cannot be made as long as the debt of the party ⅜ ⅜ ⅜ remains unsatisfied.

The point is also made that the jury found, in response to a submission by the court, that it was agreed that the assignment by the engineering corporation of its well-drilling contract to the Amarillo Hardware Company should not pass as security for the payment made by D. L. Hickcox to said Amarillo Hardware Company when the note was satisfied. There was no such issue made in this record, and should not have been submitted. Appellant’s own statements under the assignment exhibits its inappropriateness:

“E. W. Hardin, the president of the Amarillo Hardware Company, testified that the contract of the Pairview Land & Cattle Company, was sold to the Amarillo Hardware Company, with the understanding that the same would be accepted by the Cattle Company, which was not done, and thereafter the Amarillo Hardware Company, by agreement, held the same for the purpose of securing the indebtedness due it by the engineering corporation, which indebtedness consisted of one note for $3,848.24, and an open account, which was reduced to judgment, in the sum of $668.61, on September 30, 1913.”

Appellant’s position that the whole debt, secured by the collateral, is required to be paid before subrogation can exist (as held by the authorities Cason Bros. v. Connor et al., 83 Tex. 26, 18 S. W. 668, and Beville v. Boyd, 16 Tex. Civ. App. 491, 41 S. W. 670, 42 S. W. 318; to which could be added Slaughter v. Boyce, 170 S. W. 261, by this court) is not applicable to this case. The cases and the rule must be applied to the facts. Literally, appellant states the general rule correctly, but there can be no objection where one is obligated and required to make a partial payment of a whole debt, dropping in behind the principal creditor as to the fund, as was done in, this case. Sheldon on Subrogation (2d Ed.) § 127, states the general rule as appellant announces it. He says, however (section 128, top p. 198):

“If the surety has made partial payments upon a debt secured by a mortgage from the principal debtor, then upon foreclosure any surplus proceeds over the amount needed to pay the creditor in full must be applied to repay the surety.” ■

See, also, Bowen v. Barksdale, 33 S. C. 142, 11 S. E. 640.

There can be no objection to the claim of the Amarillo Haijdware Company, which was reduced to judgment before this litigation in the amount of $668.51, except that under the evidence it did not have the collateral, which is wholly untenable.

D. L. Hickcox obtained judgment for $2,200, and there is no objection by the Eoos Gas Engine Company to the amount, or, for the purpose of participating in the fund, that ib is excessive. However, if the correct amount had been established, in accordance with Faires v. Cockerell, 88 Tex. 437, 31 S. W. 190, 639, 28 L. R. A. 528, where a surety is subrogated to the securities held by a creditor on account of payment, still, such correct amount, added to the Amarillo Hardware Company's claim, would be more than the amount of the judgment in this case.

The numerous demurrers and objections raised by assignments of the appellant, as against the interveners and defendants, setting up their different liens as laborers and materialmen, become immaterial, in so far as appellant is concerned, if the court’s judgment, according to the questions as presented, can be sustained, for the sum of $2,-550.

Believing that no complaint, sufficient to reverse the court’s action, referable to the question of liquidated damages (deducted by the court from the jury’s verdict), is presented, and that the claim of Hickcox is correctly sustained in the main, and that the Amarillo Hardware Company’s recovery cannot be denied, appellant’s objection against the laborers’ and materialmen’s claims, even if any were tenable, are wholly fruitless to it as a practical question — the two claims mentioned, with the laborers and material-men out of the way, would more than absorb the judgment.

The court, in his judgment, classified the claims according to certain priorities of payment, with which we are not in reality concerned. With the exception of D. L. Hick-cox there is no objection in this appeal with reference to the classification and participation as decreed by the court. It is true that Hiekeox adopts all the assignments of the Eoos Gas Engine Company, questioning the liens of the laborers and materialmen as to the pleading and the evidence, and prays in his brief for a better position in participating in the fund arising from the judgment against the Eairview 'Land & Cattle Company. We are unable to find any objections or any exceptions by him in any manner to the assertion of any of the claims by any other interveners or defendants. His pleading is also devoid of any such status. Without any complaint in the lower court, by the mere adoption in this court of the objections of one who resisted such matters in the trial court, Hickcox is in no position to resist the judgment.

Upon the whole, we think the judgment of the lower court should be affirmed. Affirmed.
      c§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      gspFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    OVERSHINER v. PALMER.
    (No. 950.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 29, 1916.
    On Motion for Rehearing, April 19, 1916.)
    1. Brokers &wkey;>71 — Right to Compensation —Express Contract — Net.
    Where a broker sent a telegram to his principal containing an offer, in behalf of a third party, of a price for his land “net,” and the principal answered by wire that he would accept the price offered “net,” an express contract was concluded between the parties, and no implied contract will arise out of its performance for the payment of a broker’s fee.
    [Ed.. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. &wkey;»71.]
    2. Words and Phrases — “Net.”
    The word “net” means free from charges or deductions; obtained after deducting all expenses.
    Appeal from Hemphill County Court; J. L. Jennings, Judge.
    Action by W. A. Palmer against A. C. Over-shiner. Judgment for the plaintiff, and defendant appeals.
    Reversed and rendered.
    Hoover & Dial, of Canadian, for appellant. J. W. Sanders and Fisher & Palmer, all of Canadian, for appellee.
   HENDRICKS, J.

Palmer, the appellee, sued Overshiner, the appellant, for real estate commissions, alleged to have accrued by virtue of an express contract for the payment of 5 per cent, on account of the sale of 800 acres of land, as Overshiner’s agent.

In certain preliminary negotiations between appellant and appellee, Overshiner priced 640 acres of the land at $12.50 per acre, and 160 acres of the land at $15 per acre, with a further reduction at a subsequent date to $11 per acre, for 640 acres, and $12.50 for the 160-acre tract. In the first reduction of price Overshiner stipulated that Palmer’s commission was “to come out of the first payment.” In the letter evidencing the second reduction of the price of the land, Overshiner stated to appellee, “Your commission to be added to the first payment.” On August 26, 1915, Palmer sent the following telegram to Overshiner, who resided in Hop-kinsville, Ky.:

“Have offer $10.00 acre for eight hundred acres, twenty-one hundred dollars cash, net you. Balance in four annual payments six per cent, interest. Will you accept offer? If not, wire proposition .at once. Responsible party offers above.”

Overshiner answered this telegram on August 27th as follows:

“Will accept $10.00 net, you furnish abstract without cost to me. Answer.”

Plaintiff answered on the same day:

‘‘Your wire this date. Proposition accepted. Will be closed immediately.”

The negotiations prior to the time of the telegraphic communications above, of course, show the agency of Palmer to sell the land. When Palmer sent the first telegram of August 26th, it communicated an offer of some unknown party for 800 acres of land at a price of $10 per acre, $2,100 cash, net to the owner, and the balance in four annual payments. On the face of it, this telegram simply means a proposition of $2,100 cash and four annual payments of $1,475 each. The telegram in response is plain that Overshiner would accept $10 net, Palmer to furnish abstract without cost to him. When Palmer accepted this proposition by telegram of the same date, the transaction and contract between Palmer and Overshiner were concluded.

“Net” means free from charges or deductions ; obtained after deducting all expenses ; a telegram sent by plaintiff, offering to sell butter to defendant, for 17 cents per pound, “net to us,” means that the price is to be 17 cents, free from all charges and deductions. Floral Creamery Co. v. Dillon, 83 Conn. 65, 75 Atl. 82.

Where one states to a broker that he will sell land for a certain sum “net” to him, the broker, on procuring a purchaser, is entitled to no commission unless the sum received exceeds the specified net price; the word “net” meaning that which remains after deducting all charges and outlay. Wolverton v. Tuttle, 51 Or. 501, 94 Pac. 963. See, also, Allen v. J. A. Clopton Realty Co., 135 S. W. 242, 243; Turnley v. Micheal, 15 S. W. 912.

When appellant telegraphed that he would accept $10 net, Palmer to furnish the abstract, and Palmer thereafter accepted this proposition, it necessarily meant $8,000 net to Overshiner in part money and part deferred consideration, without any deduction; the rights of the parties had accrued and become consummated by a written contract. Palmer, on August 27th, the same day he sent his telegram of acceptance, wrote Over-shiner, confirming his wire of that day, quoting the exact language of same, saying also that he inclosed a warranty deed for execution. In this letter he instructed Overshiner to send the deed to the Canadian. State Bank, with instructions to deliver to the purchaser “upon his payment to you of $2,100 cash, and four vendor lien notes, for the sum of $1,-375 each, * ⅜ * due in one, two, three, and four years, respectively, with the usual attorney’s fees clause.” Overshiner did not reply to this letter, but his home bank at Hopkins-ville, Ky., evidently instructed the Canadian Bank to remit $2,500, instead of $2,100. The deed forwarded by Palmer to Overshiner recited a cash consideration of $2,500, and on September 4th following Palmer telegraphed Overshiner that his bank at Hopkinsville had instructed the Canadian Bank to remit $2,500 to close the deal, asking him to correct the mistake by wiring the Canadian Bank to accept only $2,100 and pay him $400.. Over-shiner telegraphed Palmer that his proposition was to take $10 per acre net, Palmer to furnish abstract, and that he (Palmer) had accepted this proposition, and that if the cash payment was only $2,100, the notes should be for $5,900, to which Palmer replied, insisting upon 5 per cent, commission for the sale of the land. How the plain contract, as evidenced by the telegrams, could be changed by Palmer’s letter, and Overshiner’s price of $10 net for the land reduced to $7,600 without a sufficient consideration, is not clear. The contract between the parties, in unambiguous language, had been closed, and their rights matured. Of course there are numerous authorities that a broker, where he is not operating under an express contract, but under an implied agreement, is entitled to a reasonable compensation for his services; that is not this case. Palmer predicates his suit upon an express contract, based upon a specific agreement of 5 per cent, commission. After the contract had matured, and the rights of the parties accrued, the broker cannot change, by deductions, the net purchase price to the owner, without a new contract. When Palmer sent his telegram, accepting Overshiner’s offer of $10 net for the land, there was no condition attached to this acceptance, but it was unequivocal. Palmer thereafter did not earn $400 upon an implied contract, or quantum meruit, and Over-shiner rejected Palmer’s construction of the contract. The deed forwarded, reciting $2,-500 cash, and the deferred vendor lien notes of $1,375, was a compliance with Overshiner’s proposition, and unless there was a new contract or creation of additional rights growing out of an implied obligation, on account of Palmer having learned something additionally, by virtue of a new arrangement, Overshiner had the right to close his contract. If Palmer had signed a written contract with Teas, the purchaser, with the authority from Overshiner, the latter would have been compelled legally, by specific performance, to have closed it; and he had the moral right to do so, at least, unless there was a change with a subsequent meeting of minds between the parties, or something thereafter earned upon an implied contract.

Overshiner had reduced the price of the land to a net price to him, without any new rights created. We are sure that appellee has a sincere conception of his rights, and if this case, and the record, were so presented as that we thought there could be a possible showing of quantum meruit, we would reverse and remand, instead of rendering the judgment of the trial court.' In this character of case the express contract, evidenced by the telegram, with nothing thereafter done between the parties, creating in Palmer any new or independent rights, negatives an implied contract. “If there was an express contract, there could be no implied contract arising out of the acts of performance of it; the one is destructive of the other. Two things which cannot coexist will not constitute one and the same thing.” Lumber Co. v. Water Co., 94 Tex. 464, 61 S. W. 707. Being convinced that an express contract as sued upon by appellee for $400 commission, does not exist in this case, permitting the commission, and that no implied contract could, under law, arise, we reverse and render the case in favor of appellant, against appellee, and render such judgment as the lower court should have rendered.

Reversed and rendered.

On Motion for Rehearing.

When we reversed and rendered this cause upon the whole case and stated that we would not reverse and remand, upon a quantum meruit, the opinion is probably misunderstood by both parties. We meant that as to the commissions only for the sale of the land exclusively applied to that proposition, this record exhibits that there is no such tiling as an implied contract, or a quantum meruit, for the reason that it is unequivocally shown that an express contract unconditionally existed between the parties. That contract was a certain amount for the land, “net” to Overshiner. An express contract of the amount net to Overshiner destroys any alleged implied contract out of that same sum. Elliott on Contracts, vol. 2, § 1360; Enc. of L. & Proc. vol. 9, p. 242, and citations; Gammage v. Alexander, 14 Tex. 414, and particularly the ease of Lumber Co. v. Water Co., 94 Tex. 464, 61 S. W. 707, cited and quoted from in the original opinion. If an attempt were made to prove an implied contract, or quantum meruit, as applied to commissions, the express contract would destroy it.

As to the proposition held by us of unconditional offer and unconditional acceptance— which is the condition of the record here — ap-pellee’s authorities are inapplicable.
      <§^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MENDIOLA v. GONZALES.
    (No. 5654.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 5, 1916.
    Rehearing Denied April 19, 1916.)
    1. COURTS <&wkey;7 — Jurisdiction — Conversion in Foreion Country.
    The courts of Texas are not without jurisdiction of an action for conversion merely because the conversion was in Mexico.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. &wkey;7.]
    2. Evidence <&wkey;81 — Presumption—F oreion Law.
    In the absence of evidence, the law of Mexico as to conversion will be presumed the same as that of Texas.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 102; Dec. Dig. <&wkey;81.]
    3. Evidence &wkey;>5(l) — Judicial Notice — Revolution in Foreign Country.
    The court judicially knows the existence of revolution and anarchy in Mexico, and the consequent powerlessness of its courts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 4; Dee. Dig. <&wkey;5(l).]
    4. Aliens <&wkey;>16 — Actions Against.
    A citizen of Mexico, there converting to his own use property of a citizen of Texas, and then coming to the state, is there amenable to the state citizen for the wrong.
    [Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 61-66; Dec. Dig. &wkey;>16.]
    5. Appeal and Error &wkey;>231(3) — Review — Admission of Evidence — Objection Below.
    Error cannot be predicated on the admission of testimony of value, no reason for its inadmissibility having been given in the objection thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;231(3); Trial, Cent. Dig. §§ 194, 196.]
    6. Evidence <&wkey;222(l) — Declarations against Interest.
    Statements of a party to a witness as to the matter in controversy are admissible against him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 786, 792, 796; Dec. Dig. &wkey;222
    7. Evidence &wkey;>84r-PREsuMPTiON — Dollars.
    When th_e word “dollars” is used in testimony in an American court, the presumption is that American money is meant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 106; Dec. Dig. <&wkey;S4.]
    8. Trover and Conversion &wkey;>40(3) — Evidence of Ownership.
    That plaintiff in conversion had a bill of sale of the cattle taken by defendant, swore they were Ms, and identified the hides by a fresh brand he had put on the cattle is sufficient evidence that they belonged to Mm.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 234, 235; Dec. Dig. <&wkey;40(3).]
    Appeal from Maverick County Court; Ben Y. King, Judge.
    Action by Thomas C. Gonzales against Jesus Santos Mendiola. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. David E. Hume, of Eagle Pass, for appellee.
   FLY, C. J.

Appellee, a citizen of Texas, residing in Maverick county, sued appellant, a citizen of Mexico, sojourning in Texas, to recover the value of certain cattle, alleged to have been appropriated to his own use and benefit in, Mexico. It was. alleged that on or about August 7, 1915, near Rosales, in the state of Coahuila, Mexico, appellee purchased 33 head of cattle, paying their value; that he placed a small brand, in the shape of a heart, on each of them, and that they were of the value of $900, gold, being about $20.75 for each of them; that on or about August 14, 1915, appellant seized and appropriated the cattle to his own use, near Guerro, Mexico. It was also charged that the cattle were converted by appellant to his own use near Piedras Negras, Mexico. The appellant filed general and special exceptions and a general denial. The court rendered judgment for appellee, upon the verdict of a jury, for $900.

The action of the court in overruling the special exception is made the subject' of the first assignment of error. The proposition that where a petition shows the court in which it is filed has no jurisdiction, it should be dismissed may be a sound abstract proposition, but appellant fails to show how it is applicable in this case. The statement does not show that there were any special exceptions to the petition, or upon what ground they attacked the petition, if filed. No concrete question is presented by the assignment, but we infer from some intimations in the statement that lack of jurisdiction is claimed because the petition shows the conversion took place in Mexico, and if that allegation shows want of jurisdiction, it woul'd be fundamental error. The court had jurisdiction. Railway v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282; Banco Minera v. Ross & Masterson, 138 S. W. 224; Id. 106 Tex. 522, 172 S. W. 711. The Mitten Case was one in which it was alleged and proven that the appellee was an American who was injured on a train in Mexico, and the petition was attacked on the ground that it showed that the Texas trial court had no jurisdiction. This court held that it had jurisdiction, and a writ of error was refused by the Supreme Court. In the case of Railway v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28, the Supreme Court held that the laws of Mexico proved in the case, in regard to personal injuries, were so dissimilar from ours that they could not be executed in our courts, and while some other reasons were given for holding that the trial court had no jurisdiction, they must have been afterwards considered untenable, from the fact that the Mexican laws were proved in the Jackson Case and were not proved in the Mitten, Case, and that was the only ground upon which one could be distinguished from the other. The Supreme Court of the United States in the case of Slater v. Railway, 194 U. S. 121, 24 Sup. Ct| 581, 48 L. Ed. 900, concurred with tlie Jackson Case, .because tlie laws of Mexico were proved, and it appeared that an American court could not put them into execution, but even under those circumstances Chief Justice Fuller and Justices Harlan and Pechham in a dissenting opinion cited the Mitten Case with approval and quotations taken from it. In this case the laws of Mexico on conversion of property were not shown, and that would take this case completely out of the purview of the Jackson and Slater Cases and bring it directly within the scope of the Mitten Case. The reason for the holding in the Mitten Case is that, where there is no statute giving an action in a foreign country it is transitory and could, under the common law, be instituted anywhere that the offender might be found. There being no proof, in this case, as to the law in Mexico, the presumption will be that it is the same as in, Texas. Tempel v. Dodge, 89 Tex. 69, 32 S. W. 514, 33 S. W. 222; Railway v. Goodman, 20 Tex. Civ. App. 109, 48 S. W. 778. ¡

The case of Willis v. Railway, 61 Tex. 432, 48 Am. Rep. 301, cited by appellant, fully sustains the jurisdiction of the county court in this case, for the court held in that case:

“Where the action is transitory and is based on personal injuries recognized as such by universal law, the suit may be brought wherever the aggressor is found, irrespective of the provisions of the local law, or whether there be any law at all in force at the place where the wrong was committed.”

This court judicially knows that a condition of revolution, anarchy, and strife prevailed in Mexico, when the wrong whs committed and this suit instituted, that the courts of that republic were powerless, and that force alone was dominant, and under such circumstances when a party who has been in that country disregarded the rights of our citizens and appropriated their property, he should be held responsible in our courts for such wrongs. Appellee lives in Maverick county, and when appellant, in quest of protection from his countrymen, or for any other reason, came to Texas he was amenable to the citizen for the wrong committed upon him in the foreign country. Banco Minera v. Ross & Masterson, herein cited.

The third assignment of error is overruled. The petition states a cause of action.

The fourth assignment of error is overruled, in which complaint is made of the testimony of Douglas as to the value of the cattle. The bill of exceptions upon which the assignment is based does not refer to Douglas, but to Gonzales. If, however, this should be a clerical error, the assignment of error cannot be sustained, because the grounds of objection set out in it are not found in the bill "of exceptions. The bill of exceptions is qualified by the judge by stat- | ¡ ing that no reason for the inadmissibility of the evidence was given, and that the evidence was not objected to because Gonzales did not state that he knew the market value of the cattle.

The seventh assignment of error is overruled. The assignment is general in its objection to certain evidence, and the grounds of objection to the evidence in the proposition are not found in the bill of exceptions. However, the evidence of Douglas as to what appellant told him about the hides, identified as having come off of appellee’s cattle, were not the acts or statements of a third party, but those of the defendant by which he was bound.

The ninth assignment of error is very general, and the proposition thereunder still more so, and the statement throws no light on the claim that the verdict is excessive. In an American court it is not necessary to tell what “dollars” are meant when that word is used. The presumption is that our own money is meant.

The eleventh assignment is multifarious and general, and is not followed by a proper proposition,. The statement fails to throw any light on the assignment. It consists merely of the conclusions of the briefmaker.

Gonzales swore the cattle were his, and identified the hides by a fresh brand he had put on the cattle. It was proved that appellant took the cattle, and Gonzales had bills of sale to them. The evidence was sufficient to show that the cattle belonged to appellee, and that they had been taken from him by appellant and appropriated by him to his use.

The judgment is affirmed.
      ®=^For other oases see same topic and KEY-NUMBER in. all Key-Numfiered Digests and Indexes


author: HIGGINS, J.

text:
    ABILENE ST. RY. CO. v. STEVENS.
    (No. 556.)
    (Court of Civil Appeals of Texas. El Paso.
    April 13, 1916.)
    1. Tbial <&wkey;350(6)~Special Issues — Ultimate Facts.
    In a suit for damages resulting from a collision between defendant’s street car and plaintiff’s cart, where the special issue as to whether the proximate cause of the collision was due to the car running into the cart or to the horse backing_ the cart into the car was submitted to the jury, being an evidentiary question bearing on the ultimate fact of negligence, neither the issue nor its answer was material.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 830; Dec. Dig. &wkey;350(6)J
    2. Damages <&wkey;220> — Vebdict — Sueeiciency.
    The jury’s finding, “We believe the plaintiff entitled to $150,” was a sufficient finding assessing the plaintiff’s damages at $150 for the items enumerated in the issue.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. <&wkey;>220.j
    3. Tbial <&wkey;388(l) — Finding op Fact--Juey Tbial.
    The court properly refused to make- a finding of fact when there was jury trying the case, whose province and duty it was to pass upon such issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 908; Dec. Dig. <&wkey;>388(l).]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Suit by G. W. Stevens against the Abilene Street Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, for appellant. Ben L. Cox, of Abilene, for appellee.
   HIGGINS, J.

Appellee filed this suit to recover damages resulting from a collision between a street car of appellant and a two-wheel one-horse cart driven by appellee; Ap-pellee alleged that he was driving east and defendant’s car was approaching from the west; that his horse became frightened and backed the cart upon the street car track, where it was struck by the approaching car, damaging the cart and inflicting personal injuries upon appellee; that the car was more than 100 yards distant when the motorman thereof discovered his perilous condition, or could have discovered same by the use of ordinary care, and that he negligently failed to stop the car or attempt to do so; that plaintiff’s injury and damage was due to the negligence of the motorman in not stopping or attempting to stop the car.

The cause was submitted to a jury upon special issues which, together with the answers thereto are as follows:

“(1) After the plaintiff’s horse became frightened and unruly did the defendant’s motorman use all reasonable means at his command to stop the car? Answer: No.
“(2) Was the proximate cause of plaintiff’s injury, if he was injured, due to the car running into and striking the cart, or was it due to the horse becoming frightened and backing the cart into the car? Answer: We believe the car ran into the cart.
“(3) In your judgment, what sum of money will reasonably compensate plaintiff for the damage done to his cart and harness, and for mental and physical suffering and injuries to Ms body, if any .such damage and injury, which proximately resulted from the collision of the street car with plaintiff’s cart? Answer: We believe plaintiff entitled to $150.”

It is first assigned as error that the answer of the jury to special issue No. 2 is indefinite, uncertain, and no answer whatever to the material issue submitted. We do not regard the issue or its answer as in any wise material. All of the witnesses testify, and it is an admitted fact, that the collision occurred between the car and the cart. There can be and is no question that the plaintiff’s injury, if he was injured, was proximately due to the collision. The material inquiry was whether the collision and resulting injuries, if any, were proximately caused by the negligence of the motorman in the particulars alleged. There was no occasion to inquire whether the car ran into the cart or the cart backed into the car. At best, it was but an evidentiary matter bearing upon the ultimate fact of negligence.

The second assignment complains that the answer of the jury to the third issue was merely a statement of its opinion, and not a finding upon the issue submitted. The form of the answer is certainly not to be commended. Nevertheless it is, in effect, a finding assessing the plaintiff’s damage at $150 for the items enumerated in the issue.

The third assignment is:

“The court erred in refusing to make a finding on the question as to whether or not the plaintiff would have been injured anyway if its motorman had used all means in his power to stop the car.”

This case was not tried before the court, but before a jury. The court could not be required to make findings of fact. If appellant desired a finding with respect to the matter mentioned, it should have requested its submission to the jury. Had the court refused to submit it, the correctness of its action in so refusing could have been then reviewed. But no complaint can be made of the court refusing to make a finding of fact when there was a jury trying the ease whose province and duty it was to pass upon such issues. Jones v. Edwards, 152 S. W. 727.

Affirmed.
      (gssPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    MENDIOLA v. GARZA BROS.
    (No. 5649.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 5, 1916.
    Rehearing Denied April 19, 1916.)
    1. Sajuss <&wkey;359(l) — Action for Price — Sufficiency of Evidence.
    Evidence, in an action for the purchase price of two-thirds of plaintiffs’ wheat crop taken by defendant on his promise to pay, held to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1056, 1057; Dec. Dig. &wkey;359(l).]
    2. Frauds, Statute of i&wkey;33(l) — Promise to Answer for Debt of Another — Originad Promise.
    Where defendant took from plaintiffs one-third of the wheat they had agreed to pay for police protection, and also took the remaining two-thirds, and shipped it to a flour mill, and took the flour and promised to pay for it, but failed to do so on request, the promise was not within the statute of frauds, as there was no debt proven against the one to whom police protection was paid, and since, if there had been an original debt from such person to plaintiff, defendant’s promise would not be affected by the statute.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 50; Dee. Dig. <!&wkey;33(l).3
    3. Courts <&wkey;7 — Jurisdiction — Person and Subject-Matter.
    In an action to recover on a promise to pay for wheat raised in the republic of Mexico and taken from plaintiffs where defendant appeared in court, the Texas courts had jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. &wkey;7.1

      4. Sales <&wkey;358(l)—Evidence,
    In an action to recover on defendant’s promise to pay for wheat taken from plaintiff, ground, and delivered to defendant, a_ letter from the mill company, corresponding with the date of the conversion and identified by the writer, the manager of the mill, showing the number of the car consigned to defendant, and a letter signed by defendant, acknowledging receipt of the mill’s letter, and showing that defendant had sent the wheat in a certain numbered car to the mill, and acquiescing in the results, were material and relevant.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1049, 1054; Dec. Dig. &wkey;35S(l)J
    5. Sales &wkey;353(l)—Sufficiency oe Petition.
    A petition, alleging that plaintiffs raised and owned a quantity of wheat, one-third of which they had agreed to pay for police protection, that defendant took that third, and also the remaining two-thirds, of the reasonable value of $337, and had the wheat shipped to a flour mill, and ground and took the flour, and promised to pay for it, and failed to do so, though requested, was sufficient.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 995, 997, 999; Dec. Dig. &wkey;353(l).]
    Appeal from Maverick County Court; Ben V. King, Judge.
    Action by Garza Bros, against Jesus Santos Mendiola. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. Sanford & Wright, of Eagle Pass, for appellee.
   SWEARINGEN, J.

Plaintiffs alleged that they raised and owned in the republic of Mexico a quantity of wheat in June, 1915; that one-third of this amount they had agreed to pay to Gen. Hernandez for police protection; that defendant, Mendiola, took from plaintiffs the one-third for Gen. Hernandez, and also took the remaining two-thirds, amounting to 13,347 kilos, the reasonable value of which was $337.33; that defendant had the wheat shipped to a flourmill, had it ground into flour, and took the flour; that he promised to pay for the wheat, but failed to do so, though requested so to do. Defendant answered by general and special exceptions and a general denial. The case was submitted to a jury upon an oral charge. The jury found a general verdict for plaintiffs. The court entered judgment in accordance with the verdict of the jury, in favor of plaintiffs for $337:33 and for all costs. Motion for new trial was overruled, and defendant perfected this appeal.

Under the first assignment appellant urges, as fundamental error, that there is no evidence to support the judgment; that the court was without jurisdiction, and, under several propositions, called, by appellant, “minor propositions,” contends that the debt sued for was an original debt of Gen. Hernandez; that the promise of defendant was wholly collateral, and therefore within the statute of frauds. The evidence shows that Mendiola ordered the two-thirds of the wheat sued for to be sent to a flourmill; that he promised to pay for the wheat; that he paid the mill for grinding the .wheat into flour with 75 per cent, of the bran; that the flour from the wheat and the balance of the- bran was sent to defendant by the mill; that defendant promised J. A. Bonnet, agent for plaintiffs, to pay for the wheat; that he never paid for it. This evidence justified the jury’s verdict, and supports the judgment thereon.

The evidence does not bring plaintiffs’ claim against Mendiola within the statute of frauds, for Mendiola took the wheat himself, and should pay for it himself, as he promised he would do. There is no debt proven against Gen. Hernandez. If there were an original debt in favor of plaintiffs against Hernandez, defendant’s subsequent promise to pay it would not have been affected by the statute of frauds, because defendant received for himself the wheat. Bank v. Freeman (Sup.) 181 S. W. 187; Harp v. Hamilton, 177 S. W. 505.

The contention, suggested under this first assignment, that the trial court was without jurisdiction, is without merit. The appellate courts have repeatedly held that Texas courts have jurisdiction of causes arising under similar circumstances in Mexico. Banco Minero v. Ross & Masterson, 106 Tex. 522, 172 S. W. 711; Railway v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282.

The first assignment must be overruled.

Appellant’s second assignment complains of the admission in evidence of a letter from the flourmill company to Mendiola, the defendant. Appellant’s third assignment complains of the admission in evidence of a letter from defendant, Mendiola, to the flour-mill company. The objections were that the letters .were not properly proven, were irrelevant and immaterial. The letters were material and relevant, because the letter from the mill to defendant identified the wheat shipped in car N. M. No. 9458; referred to statement inclosed, giving results of grinding. The letter is evidence that the wheat and bran from that wheat were shipped by the mill in car N. M. No. 25992, and was addressed to defendant. The date corresponded with the date of the conversion sued for. This letter was identified by its writer, the manager of the mill, who also testified that the wheat was ground and the flour delivered to Mendiola, as he wrote in the letter. The letter from Mendiola .was signed by Mendiola, the defendant, as testified. by Gomez, who knew his handwriting. It acknowledged receipt of the letter from the mill company. This letter is evidence that defendant sent the wheat in car N. M. No. 9458 to the mill to be ground and acquiesced in the results received. The letters were properly proven and were material and relevant. The second and third assignments are overruled.

Appellant’s fourth, fifth, sixth, and seventh assignments all complain of the order of the court overruling defendant’s exceptions to plaintiffs’ petition. The petition clearly stated a cause of action in favor of plaintiffs against defendant. The averments were sufficient to give defendant full notice of all that plaintiffs expected to prove. The exceptions were properly overruled.

There is no error in the record. The judgment is affirmed.
      <j&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: C. J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. LEE.
    (No. 7141.)

    (Court of Civil Appeals of Texas. Galveston.
    March 23, 1916.
    Rehearing Denied April 20, 1916.)
    1. Railroads &wkey;398(2) — Iinjuries on TRacks — Evidence—Sufficiency.
    In an action for a death on a railroad track, evidence held sufficient to justify a finding that the operators of the defendant’s engine negligently faffed to discover the deceased upon the track in time to have stopped the engine before striking him.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1357, 1358; Dec. Dig. &wkey;398(2).]
    2. Appeal and Error &wkey;>1071(l) — Review— Harmless Error.
    In an action for a death on a railroad track, where the court made alternative findings that the operators of the defendant’s engine negligently failed to discover the deceased before the engine struck him, and if this is not true that they negligently failed to discover the deceased in time to avoid striking him, the error was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4234; Dec. Dig. <&wkey; 1071(1).]
    3. Death <&wkey;>99(5) — Excessive Damages.
    In an action for the death of the plaintiff’s son where the plaintiff "was 62 years of age, with a life expectancy of 12 to 13 years, and deceased 30 years of age and earning $60 a month, having epileptic fits, which would not, however, have affected his earning capacity during the lifetime of his father, had contributed to plaintiff’s support, a verdict of $750' is not so excessive as to indicate bias, prejudice, or improper motive on the part of the trial c.ourt.
    [Ed. Note. — For other eases, see Death, Cent. Dig. §§ 125, 126, 130; Dec. Dig. &wkey;99(5)J
    4. Appeal and Error <&wkey;1004(l) — Findings —Excessive Damages.
    The mere fact the amount of a verdict is against the preponderance of the evidence does not authorize the appellate court to set it aside as .excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944, 3946; Dec. Dig. <&wkey;> 1004(1).]
    Appeal from District Court, Harris County ; - John A. Reed, Judge.
    Action by Peter Lee against the Houston Belt & Terminal Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. Howard & Kendall, of Houston, for appellee.

       Application for writ of error pending in Supreme Court.

   C. J.

This suit was brought appellant recover ages for the death of Joseph Lee, a son of appellee, whose death is alleged to have been caused by the negligence of appellant’s em-ployés in operating one of its engines.

The petition alleges, in substance, that the deceased, Joseph Lee, was struck by an engine operated by appellant’s employés upon one of its tracks in the city of Houston and thereby received injuries which resulted in his death; that said Joseph Lee “from and by reason of faintness, dizziness, or some temporary disability and infirmity fell upon one of the said tracks of the defendant, and while lying as aforesaid, and without mental capacity to realize his peril, and without physical capacity to remove himself from said track, was carelessly, negligently, and recklessly run over by a switch engine operated by the defendant, its agents, servants, and employés.”

There are also averments of a frequent use of the tracks and right of way at the point of the accident by members of the public, including school children, and also averments that there were no obstructions to prevent Joseph Lee from being seen as he lay upon or near the track.

The allegations of negligence are as follows:

“That said injury was caused by the defendant negligently and carelessly running said engine along- said tracks and in the immediate approach of the said street crossing and crossing of the Houston Electric Company with defendant’s track as aforesaid without having any of its agents, servants, or employés on the running board of said engine nearest approaching spid crossing, and without keeping a watch out in the direction said engine was going, and the defendant, its agent, servants, and employes failed to discover said Joseph Lee in his position of peril on or near said tracks of defendant and ran over him with said engine without having discovered him; that the defendant, its agents, servants, and employés had they been looking-in the direction said engine was traveling, and had the servants and operators of defendant exercised ordinary care to do so, the said Joseph Lee, in his position of peril on said track of the defendant, would have been discovered, and the said engine stopped, or by the exercise of ordinary care could have been stopped in time to avert the said injury and death of the said Joseph Lee, and the death of said Joseph Lee was directly caused by the negligent failure of defendant, its agents and employés, to exercise ordinary care to discover him in his position of peril; that if defendant, its agents, servants, and employés discovered him in his' said position of peril in time to avoid running over him they failed to use ordinary care to stop the engine and avoid the.injury.”

It was further alleged that said Joseph Lee was earning at the time of his death $60 a month, and that he had for many years contributed to the support of plaintiff and would have continued to so contribute. Damages are asked in the sum of $9,600.

The defendant answered by general demurrer and by general and special denials of all the material allegations of tlie petition.

The trial in the court below without a jury resulted in a judgment in favor of the appellee in the sum of $750.

The evidence introduced by plaintiff shows that the deceased, Joseph Lee, while walking on or near the tracks of the defendant in the city of Houston, on the morning of the 25th day of November, 1914, between 7 and 8 o’clock, was seized with a fit and fell upon one of said tracks in a helpless condition and was struck by an engine operated by employes of defendant and received injuries from which he died the next day.

The track of defendant along which deceased was walking at the time he fell was commonly used by pedestrians as a public way without objection from defendant. There was no obstruction of any kind which could have prevented the operatives of said engine from discovering deceased lying upon the track in ample time to prevent injuring him, had they used ordinary care to look out for persons on the track. The engine was being operated at a speed of six miles an hour.

The trial court made the following fact findings which are sustained by the evidence and which we adopt:

“The said defendant failed to have any one on the front running board of the said engine (or rather the rear running board, the engine Doing revex-sod), and the employés of defendant in charge of said engine kept no watch or lookout for the purpose of discovering said Joseph Lee or other persons who might have been upon its tracks at said time and place, and the said defendant company, and those in charge of its engine, were negligent in failing so to do, and had it not been for such failure the injury to the said Joseph Lee would not have occurred, and said injury was directly and proximately caused thereby.
“When the said Joseph Lee fell on or near said tracks, the said switch engine was such a distance away that the servants and employés of defendant had ample time by the exercise of ordinary care to have discovered Mm in his position of peril on or near said tracks and stopped said engine and avoided the injury.
“The plaintiff, Peter Lee, was the father of said Joseph Lee, and on the date of the death of said Joseph Lee was 62 years of age, in good health, and had a life expectancy of between 12 and 13 years.
“Said Joseph Lee was the son of the plaintiff, Peter Lee; he had never man-ied, and his mother had theretofore died. On November 25, 1914, he was about 30 years of age, and had for 10 or 15 years been subject to epileptic fits. He was a common laborer, sober and industrious, of good habits, wox’ked steadily, and the fits to wMch he was subject incapacitated him only while he was seized by same and sometimes for a short time thereafter, and they would not during the life of his father, the plaintiff, have to any great extent impaired his earning capacity. He had at different times contributed to the support of plaintiff, and would in the future have contributed to him to an extent and value, which if now paid in hand, would amount to the sum of $750.”

The first and. second assignments of error assail the judgment on the ground that the evidence is insufficient to raise the issue of negligence on the part of the defendant’s em-ployés in any of the respects charged in plaintiff’s petition. These assignments are based upon the theory that because there is no direct evidence that the operatives of the engine did not discover the deceased upon the track in time to have stopped the engine before striking him that the finding of the court that they negligently failed to make such discovery is without evidence to support it. We do not think this contention is sound. According to the testimony of plaintiff’s witnesses the deceased fell upon the track several hundi’ed feet in front of the approaching engine. All of th’e testimony shows that the track was clear of obstructions, and that there was nothing to prevent the operatives of the engine from seeing deceased as he lay upon the track. All of the evidence further shows that the engine was only moving at a speed of six miles an hour, and that no effort was made to stop the engine before it struck deceased. We think the only reasonable inference to be drawn from these facts is that the operatives of the engine did not see deceased on the track in time to stop the engine before it struck him. In view of the undisputed evidence that the operatives of the engine made no effort to avoid striking the deceased, the inference that they saw Mm in his perilous position in time to have prevented the injury would impute to them the motiveless crime of willfully injuring him, and would, we think, be an unreasonable conclusion.

Two of the operatives of the engine, the engineer and switchman, testified that they saw the deceased walking along the side of the track going south, the direction in which the engine was going, some distance before the engine reached Mm. The engineer further testified that just as the engine passed the deceased he attempted to get upon th» footboard and fell under the engine. The switchman further testified that a few seconds after he saw the deceased walking by the side of the track he saw him “with the engine rolling him over.” The fireman, who was riding on the engine on the side from which the deceased was thrown from the track when the engine struck him, testified:

“I did not see none of the accident at all and did not know that anything- happened until the engineer says, ‘My God, we killed a man!’ ”

According to the testimony of plaintiff’s witnesses the deceased was walking north on the track going in the direction from which the engine was coming, when he was seized with the fit and fell upon the track where he remained until the engine struck him. It was the province of the court, sitting as the trier of the facts as well as th'e law of the case, to settle this conflict in the evidence, and this the court did by wholly discarding as untrue the testimony of the engineer and switchman. The testimony of the fireman, who was in a better position to see deceased than either the engineer or switchman, that he did not see him before he was struck, tends to support the conclusion reached by the court from the testimony of plaintiff’s witnesses, that none of the operatives of the engine saw the deceased before he was struck.

We think the evidence is sufficient to support the findings of th’e court, and the first and second assignments cannot be sustained.

It is not material whether the operatives of the engine failed to discover deceased in his perilous position before the engine struck him or failed to discover him in time to avoid injuring him. If they negligently failed to discover him in time to prevent the injury, the fact that they may have discovered. him in his perilous position before he was struck would not affect the liability of the defendant. There was no such inconsistency and uncertainty in the alternative findings of the court, that the operatives negligently failed to discover the deceased upon the track before th'e engine struck him, and if this was not true then the operatives negligently failed to discover the deceased in his peril in time to avoid striking him, as to render such findings insufficient to support the judgment against the defendant, and the third and fourth asignments which complain of the judgment on this ground cannot be sustained.

It appears to this court that the finding of the trial court that the plaintiff has suffered loss in the sum of $750 by the death of the deceased is against the preponderance of the evidence, but we cannot say that it is without evidence to support it, or that the amount awarded is so excessive as to indicate bias or prejudice on the part of the trial court, or that in fixing said amount the court acted from any improper motive. In these circumstances we are not authorized to substitute our judgment for that of the trial court as to amount of damages to which plaintiff is entitled.

This disposes of all of the assignments of error, and it follows from the conclusions before stated that the judgment of the court below should be affirmed; and it has been so ordered.

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


author: LANE, J.

text:
    UNDERWOOD v. FIRST NAT. BANK OF GALVESTON.
    (No. 7064.)
    (Court of Civil Appeals of Texas. Galveston.
    March 31, 1916.)
    Bankruptcy @=>436(2) — Discharge — New Promise.
    In an action on ,a note and to recover premiums paid by plaintiff upon a life insurance p.olicy issued to defendant and to foreclose a lien upon such policy and upon shares of capital stock of a trust company deposited as collateral security, where defendant admitted the execution and delivery of the note, but denied the transfer of the policy to secure it and set up a discharge in bankruptcy, and where plaintiff claimed a renewal of the promise after the bankruptcy, testimony of plaintiff’s president that defendant, though known to be contemplating bankruptcy, applied for and obtained the loan on Ms promise to take care of it in any event, and that defendant, after his discharge, promised to pay the debt, was admissible on the issue as to a subsequent promise to pay the debt.
    [Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 841, 865; Dec. Dig. @=>436(2).J
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by the First National Bank of Galveston against John O. Underwood. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    M. S. Munson, of Angleton, for appellant. Williams & Neethe, of Galveston, for appel-lee.
   LANE, J.

This suit was brought by the First National Bank of Galveston against John C. Underwood to recover upon one certain promissory note for the sum of $450 executed and delivered to plaintiff by defendant, and also to recover the sum of $1,036.28 alleged to be the aggregate amount of certain premiums paid by plaintiff upon a certain life insurance policy issued upon the life of defendant from the 3d day of April, 1911, to date of suit, at the special understanding and request of defendant. Plaintiff also sued for a foreclosure of its alleged lien upon said life insurance policy, and upon five shares of the capital stock of the American Trust Company of Houston, Tex., deposited with plaintiff as collateral security. Plaintiff alleged the execution and delivery of the $450 note by defendant, and that to secure the payment of same defendant transferred to it said five shares of stock, and that for the purpose of further securing the payment of said note and other indebtedness due by defendant to plaintiff defendant transferred and delivered said life insurance policy to-plaintiff and requested it to keep all premiums due upon said policy paid as they became due; that at the request of defendant plaintiff paid said premiums, amounting in the aggregate to $1,036.28.

Defendant admitted the execution and delivery of said $450 note, together with the five shares of American Trust Company stock, but denied that the said life insurance policy was transferred to plaintiff to secure the payment of said note, and says that said policy was pledged to said bank to secure the payment of other indebtedness due said bank, which had been paid and fully discharged prior to the bringing of this suit. Defendant also, as a defense to plaintiff’s right to recover a personal judgment against him, alleges or sets up in his answer his discharge in bankruptcy on the 4th day of September, 1912, by the District Court of the United States for the Southern District of Texas. Defendant also. pleaded the two-year statute of limitation in bar of plaintiff’s right to recover the premiums paid by it more than two years prior to bringing this suit, amounting to about $274.92, and denied that he had ever requested plaintiff to pay any of said premiums.

By supplemental petition plaintiff admitted defendant’s discharge in bankruptcy as pleaded by him in his answer, but it says that subsequent to such discharge defendant has repeatedly renewed his former promise, and again agreed, contracted, and promised plaintiff to pay all the sums of money sued for by plaintiff.

The case was submitted to the court without a jury practically upon four issues, to wit:

First. Did defendant, Underwood, request plaintiff to pay the premiums paid by it upon said life insurance policy?

Second. Did said defendant subsequent to his discharge in bankruptcy on the 4th day of September, 1912, promise to pay the sums sued for?

Third. How much, if any part, of the debt sued for was barred by the two-year statute of limitations?

Fourth. Was the said life insurance policy transferred to plaintiff to secure the payment of the indebtedness sued upon?

All these issues were found by the court in favor of plaintiff, except upon the question of limitation. Upon that issue the court found that of the sum of $1,036.28 paid by plaintiff as premiums on said insurance policy the sum of $274.92 was barred. Upon such findings personal judgment was rendered for plaintiff against defendant for the sum of $617.37, principal, interest, etc., due upon the note sued upon, and for the sum of $718.28 due for premiums paid upon said insurance policy, aggregating the sum of $1,-336.65. From this judgment defendant, Underwood, has appealed.

The court permitted R. Waverly Smith, president of plaintiff bank, to testify that defendant, Underwood, had applied to him, as such president, for a loan of $450, and stated that he needed it badly for some personal reason, matters that were pressing on him of a personal nature which were outside of his regular business; that he knew at the time that Underwood was insolvent, and that he was contemplating bankruptcy proceedings ; that he was at that time largely indebted to the bank, but, as Underwood said he would see that such sum was repaid in any event and that he could rely on his taking care of it, and as he had known Underwood and his family for a great many years, and had confidence in his integrity, he relied on him and let him have the money for which the $450 note, of date May 10, 1912, was executed.

This testimony, and other testimony of similar nature by the witness Catterall, cashier of the bank, was admitted over the objection of defendant, and such admission is assigned as error, and is presented as such by appellant’s first, second, and third assign-, ments, because, he says, such testimony does not tend to prove a promise to pay said debt subsequent to his discharge in bankruptcy, nor any other material matter, but to prejudice the court against defendant.

Smith and Catterall, president and cashier, respectively, of the appellee bank, testified that appellant, Underwood, had after his discharge in bankruptcy promised to pay the debts sued for. Appellant, Underwood, testified positively that he had made no such promise. Thus it appears the main issue in the ease was sharply contested.

In giving a reason for the admission of the testimony objected to the trial judge said:

“The facts and circumstances under which the indebtedness on the note and for the life insurance premiums was incurred and the interviews and correspondence between the parties relating thereto before the bankruptcy were admitted in evidence for the light they tended to cast upon the truth of the controverted fact whether there had been a subsequent promise to pay the same.”

We think the testimony was admissible for the purpose for which it was admitted, and that the court did not err in so holding. Appellant’s first, second, and third assignments of error are therefore overruled.

The substance of appellant’s fourth, fifth, and sixth assignments is that it is admitted that appellant had been discharged from all his debts made prior to September 4, 1912, the date of his discharge in bankruptcy, and that the debts sued on were such debts from which he had been discharged, and, as there was no evidence showing that he had made any promise to pay said debts subsequent to such discharge, the court erred in rendering a personal judgment against him for $1,336.-28 in favor of appellee.

After a careful review of all the testimony offered by both parties, we conclude that, not only was there sufficient evidence to support the judgment rendered, but that the preponderance was in support of such judgment. We therefore overrule appellant’s fourth, fifth and sixth assignments.

We find no error in the judgment of the trial court, and therefore the same is affirmed.

Affirmed.
      <fessPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes