text:
    LONGINO v. THOMPSON.
    (No. 6132.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.
    Rehearing Denied Feb. 26, 1919.)
    1. Sales <&wkey;441(4) — Delivery of Goons Not Ordered — Actions—-Evidence—Damages.
    In an action for damages from failure to furnish tomato seed of the variety ordered, evidence as to the difference between the crop raised on part of the land from seed of the kind ordered, and on the remainder, while showing damage, held, insufficient to furnish a basis for estimating it. .
    2. Sales &wkey;>267 — Delivery of Goods Not-Ordered — Nonwarranty Notice.
    In an action for damages for failing to furnish seed of the variety ordered, a nonwarranty clause on the dealer’s billhead, sent with seeds 'ordered by telephone, did not affect the contract, unless it came to the purchaser’s knowledge prior to planting the seed.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by R. R. Longino against A. A. Thompson. Judgment for defendant on a peremptory instruction, and plaintiff appeals.
    Affirmed.
    John De Berry Wheeler, of Aransas Pass, for appellant.
    G. R. Scott and Boone & Pope, all of Corpus Christi, for appellee.
   MOURSUND, J.

This is a suit by appellant against appellee operating under the name of Eastern Seed Company, for damages arising out of the alleged failure of defendant to furnish plaintiff the variety of tomato seed which defendant agreed to sell plaintiff. .Plaintiff alleged that on or about-February 1, 1913, defendant offered to sell plaintiff certain tomato seed, representing them to be of a variety known as “June Pink”; that defendant represented the seed to be pure June Pink seed, and further that he had visited the place where the seed grew, and that he handled them at a greater cost to himself than other seed, because he knew they were June Pink tomato seed oí a superior quality; that, relying on such representations plaintiff purchased certain quantities of the seed on- or about the 5th and 12th days of February, 1913, and the seed delivered were accompanied by written or printed representations to the effect that said seed were June Pink tomato seed. Plaintiff alleged:

“That he gave clue and proper cultivation to the land planted to these seed, and after it was too late to replant said field discovered that they were not of the variety known as June Pink, and did not grow or mature as said variety, and alleged that by reason of the premises he had been damaged in the sum of $2,-485. This damage was based upon the allegation that, had the seed been June Pink tomato seed, as he contracted for and as represented to be, the land planted in tomato seed by him would have produced about 5,850 crates, of the market value of $3,545, but that the field actually produced about 950 crates, the. market value of which was about $515, the difference between the value of said two crops being $3,-030; that, had said seed been of the June Pink variety, he would necessarily have purchased about 4,700 crates more than he did purchase, and the price of said crates, together with the expense incident to packing same, would have amounted to about $545, and he would have been damaged in the sum of $2,485.'
“Appellee denied that he offered to sell appellant tomato seed, representing them to be June Pink, but that about the time alleged in the petition appellant ordered June Pink tomato seed from appellee by telephone or by letter, requesting appellee to ship said seed to him at Ingleside, with bill therefor, and he would pay for same upon delivery. At said time appellant well knew and understood that appellee had not raised the seed; that he was a retail dealer, who purchased his seed in the open market, and had no means of knowing and did not know the variety, quality, and productiveness of the seed, only sold the seed purchased by him, did not Warrant or guarantee the variety, quality, description, 'or productiveness of said seed, and did not warrant or guarantee that they were June Pink tomato seed, and denied that he represented that the seed were June Pink tomato seed, and that he sold said seed from seed carried by him in bulk,- which had been purchased by him as June Pink tomato seed, all of which was known to appellant.
“Appellee further alleged that one of his regular billheads accompanied each shipment made by him to appellant, and that appellant paid the amount of each bill by remittance to him after receiving the seed, and alleged several previous transactions between them in which this plan was carried out, denied that there were any printed representations of warranty or guaranty accompanying the shipments, and denied that appellant relied upon any alleged representations made by him. * * *
“In the thirteenth paragraph of his answer appellee alleged that previous to the sale of the particular seeds in controversy he had at different times sold other seeds to appellant, and appellant at said times understood that ap-pellee did not raise said seed; that he purchased said seed in the market; that he was not in a position to know, and did not know, the variety of seed carried in stock and sold by him, other than as the same were purchased by him; that he gave no warranty or made no representations, express or implied, as to description, quality, productiveness, or any other character of the seed carried in stock by him, and that he was not and would not be in any way responsible for the crop resulting from the planting of such seed; and that with this knowledge and understanding appellant purchased said seed, and they were sold and delivered to him, and estoppel was pleaded.
“Appellee alleged that in his correspondence with appellant and all other growers he used letter heads upon which there was printed in plain legible type the following, known as the nonwarranty clause: ‘Eastern Seed Company gives no warranty, express or implied, as to description, quality, productiveness, or any other character of any seed it sends out, and will be in no way responsible for the crop. If the purchaser does not accept the seed on these terms, they are at once to be returned.’
“It was also alleged that in the course of dealings between the parties previous to and at the time of the shipments in controversy, with each shipment of seed made by appellee to appellant, appellee made out a bill on one of his regular billheads, on which said clause was printed in plain and legible type, and that such bill accompanied each shipment, and the seed were received and accepted by appellant with full knowledge of the contents of said stipulations, and all of said facts, and said seeds were paid 'for by him in accordance with the terms of shipment and the stipulations of each of said bills. Said bills were returned to him to be receipted, and were in possession of appellant, who was notified to produce same at the trial of the cause, or secondary evidence' would be offered.
“It was pleaded that the nonwarranty was a part of the contract of sale, and the seeds were accepted with that understanding by appellant, paid for by him with that understanding, and that by reason of the premises he was estop-ped to deny,” etc.

In making the foregoing statement we have availed ourselves to a large extent of the statement made in appellee’s brief. Pursuant to a peremptory instruction, a verdict was returned in' favor of defendant, and judgment entered in accordance therewith.

Appellee contends that the ruling of the court in instructing a verdict in his favor must be sustained, even though it were conceded that there was an implied warranty. This contention is based on the theory that the evidence concerning damages is insufficient to support a verdict against him. We find that the only evidence relied upon to show the quantity of June Pink tomatoes appellant would have raised, had the proper seed been -furnished him, is appellant’s conclusion, which is based upon a comparison of the crop produced from two acres of June Pink tomatoes planted and cultivated by him with that produced on the seven acres planted with the seed bought from appellee. It appears, however, that the- plants of the June Pink variety on one acre were derived from seed planted in January, transplanted just before the freeze, and maturing long Before any other tomatoes planted by him. The testimony shows that early planting, when the plants are not injured by a freeze, is conducive to a more prolific production of tomatoes. The other acre of June Pink tomatoes was obtained by transplanting from a neighbor’s field plants obtained from seed planted at the same time, or very nearly the same time, as the seed obtained by appellant from appellee. Appellee testified that transplanting at the time such plants were placed in his field had the effect of retarding growth for a week or more. His testimony was sufficient to show that a comparison of the amount produced by this acre would furnish a fair test as to what the seven acres would have produced, had the proper seed been used, but unfortunately he failed to gather the crop therefrom separately from that of the other acre of June Pink tomatoes, and frankly admitted that he could not tell “just how the two acres of June Pink compared.” He said the “young tomatoes were awful fine,” perhaps referring to both quality and quantity, but did not make any estimate of the number of crates produced by such second acre. In view of the fact that the production of the first acre of June Pink tomatoes is no criterion as to what would have been produced from seven acres, if planted in June Pink about February 6, 1913, it is evident that his comparison of the total quantity produced from the two acres planted in June Pink tomatoes with the quantity produced from the seven acres furnished no sufficiently definite guide to the jury — in fact, left the jury to make a guess. It was also shown that about 100 June Pink plants remained on the seven acres after the freeze, and produced much more prolifically than the plants from the seed furnished by appel-lee, but said hundred plants were much older, and a comparison was not shown to furnish any fair criterion of what would have been produced by June Pink plants from seed planted on February 6, 1913.

We also find the testimony very uncertain on the question of value. The market opened at Ingleside, where appellant’s crop was situated, about May 10th, and was active until June 15th, but there was a market throughout June. Appellant marketed his first crate about May 12th. The first car of tomatoes marketed at Ingleside brought $1.50 per crate; for the next week or 10 days the price was $1.25 per crate; then for a few days, $1 per crate; then the next period of probably 10 days tomatoes brought 75 cents per crate; and then the active market closed about the 15th of June, when the main buyers left there. His testimony with regard to marketing his crop is not clear and specif- ' ic. He said he sold one crate for $1.50 and 20 or 30 crates of the Thompson tomatoes on the $1.25 market; that he had only one acre bearing on the $1.25 market; the bulk of his first acre of June Pink came in on the $1.25 market; the bulk of the young June Pink on the $1 market; and the bulk of the Thompson tomatoes on the 75 cent market. Nothing is said by him concerning any sales for less than 75 cents, though others testify that after the active market closed tomatoes steadily declined. If he sold none for less than 75 cents per crate, we must infer that over half of the Thompson tomatoes were sold for 75 cents per crate, and the remainder for $1 a crate, and that over half of the young June Pink crop hold for $1 a crate and the remainder for 75 cents. This would authorize a finding that if the seven acres had been planted with June Pink tomato seed, and only the same quantity produced as was produced from the Thompson tomatoes, appellant would have received more money for them than he received for the Thompson tomatoes because they would have matured the bulk of their crop earlier, but no basis is furnished for determining how much more he would have received. If he meant that more than half of the young June Pink crop matured in time for the $1 market, and that none of the Thompson tomatoes matured for such market, but over half were sold at 75 cents per crate, and the remainder after the market declined below that price, he failed to so state, and in fact there is an admission by him that he sold 20 or 30 crates of the Thompson tomatoes on the $1.25 market, and of course considerably more must have been sold on'the $1 market.

He testified, further, that he got through marketing the first acre about June 10th, and began marketing on the second acre of June Pink on the 2d or 3d of June, and thought he had a few of them for marketing all through June; that he believed he picked seven crates of the Thompson tomatoes the last days of May or the first days of June, and carried them to the depot, but it was nearly a week before the buyer told the inspector to put them in. This testimony indicates that the second acre of June Pink and the Thompson tomatoes commenced producing for the market at about the same time. He testified he gathered from the two acres of June Pink “1,600 and some crates,” which he sold “for $1,025, or approximately that,” and from the seven acres “less than 600 crates” which he sold for “less than $500, something in the neighborhood of that, anyhow.” Taking these rather indefinite estimates as correct, he received 64 and a fraction cents per crate for the June Pink tomatoes, and 83 and a fraction cents for the Thompson tomatoes.

It is evident that no such testimony is furnished by appellant as would form the basis for an estimate of what proportion of the ■crop produced on the seven acres would have brought a higher price, because of early maturing and marketing, had such land been ■planted in June Pink seed instead of Thomp’■son seed. Appellant testified that he kept a record of his daily gatherings and sales, but it was not introduced in evidence, nor did he claim to refresh his memory by reference thereto. The record discloses a case in which •the testimony is such that it supports a finding that appellant was damaged by reason of being furnished the wrong seed, but fails to furnish any basis for estimating such dam.ages, and any sum on which the jury might have agreed would have been the result of pure speculation, surmise, and conjecture. The court, therefore, did not err in instructing the jury to return a verdict for appellee.

The instructed verdict cannot be sustained on the theory that the evidence conclusively shows that the sales of seed were made upon an implied agreement that no warranty should result therefrom. The contracts did not consist of a mail order, and the ■shipment of the seed accompanied by a notice •of nonwarranty, and request to return the seed if unwilling to purchase on such terms, but were made over the telephone, and to say the least the notice on the bills could not affect such contract, unless it came to the .notice of appellant prior to the planting of the seed. Appellant denied having read the notice on any of the 'bills. In fact, it may well be doubted whether any of the bills were .admissible in evidence, in the absence of direct or circumstantial evidence tending to show that appellant read the notice printed -thereon. The authorities on' this question are collated in 37 L. R. A. (N. S.) 82, and L. R. A. 19160, 1013. In view of the affirmance ■of the judgment on a ground not affected by such evidence, it becomes unnecessary to pass ■on its admissibility.

Judgment affirmed.
      cgraoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    BARCUS et al. v. J. I. CASE THRESHING MACH. CO.
    (No. 1468.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1919.
    Rehearing Denied Feb. 26,1919.)
    1. VENUE <&wkey;19 — RETROACTIVE EFFECT OF Statute — Verification of Pleading.
    Acts 35th Leg. c. 176, amending Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1903, to re- ■ quire plea of privilege to be controverted under oath and notice served on interested parties, being enacted after overruling of such a plea, .and pending appeal, does not apply where, on remand, the court’s attention is again called to the plea; nothing in such procedure statute indicating that its operation should be retroactive.
    2. Appeal and Ekkob <&wkey;1195(l) — Law of the Case.
    Holding, on appeal, that plea of privilege was properly overruled, is the law of the case on remand.
    3. CoNTINiUANCE <§=16 — ABSENCE OF EVIDENCE — DILIGENCE.
    Because of want of diligence, there was no error in refusing a defendant postponement, on suppression, for various defects, including refusal to answer cross-interrogatories, of deposition of himself, the only witness on issue of payment, the case having at his request been set iate in the term, deposition having been returned shortly before trial, and he in taking the deposition having been attorney for the other defendants.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Action by the J. I. Case Threshing Machine Company against G. W. Barras and others. Judgment for plaintiff, and the named defendant appeals.
    Affirmed.
    A. S. Rollins, of Houston, and G. W. Bar-cus, of Waco, for appellant.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellees.
   HALL, J.

Appellee sued J. C. Robinson, F. S. Young, A. S. Walker, and appellant Barcus to recover the amount of two notes, and to foreclose a mortgage lien upon certain property. The case has been tried once before, resulting in a judgment for appellee, which was reversed and remanded by this court. Prior to the former trial Barcus filed his plea of privilege to be sued in Mc-Lennan county, and this plea was overruled. Upon appeal, we held (197 S. Wl 479) that because it was shown that the property upon ■which the foreclosure of the lien was sought, was situated in Deaf Smith county at the time the suit was instituted, under Vernon’s Sayles Civ. St., art. 1830, subd. 12, the district court of that county had jurisdiction. The case was tried, the second time at the May term of the district court, 1918.

Upon call of the case Barcus’ plea of privilege was again called to the attention of the court and was overruled. This action of the court is made the basis of the first assignment of error. The provisions of article 1903, Vernon’s Sayles’ Civil Statutes, were complied with at the time the plea was originally filed and overruled. By Acts 1917, p. 388, this article was amended, and by the amendment it is required that a plea of privilege must be controverted under oath, and notice served on the parties interested. The rule with reference to the effect of the amendment of statutes governing procedure is stated in Blakely v. Commercial Union Assurance Co., 160 S. W. 443, as follows:

“Where a new statute deals with procedure only, prima facie it applies to all actions, those which have accrued or are pending, and future actions. * * * But the steps already taken, the status of the case as to the court in which it was commenced, the pleadings put in, and all things done under the late law, will stand, unless an intention to the contrary is plainly manifested; and pending cases are only affected by general words as to future proceedings from the point reached when the new law intervened.” Sutherland on Statutory Construction, § 482, from which the opinion quotes.

There is nothing in the amendment to article 1903 which indicates that its operation should be retrospective.

For another reason this assignment must be overruled: As stated, in our former opinion, we held that the court properly overruled the plea of privilege because the location of the property upon which foreclosure was sought was shown to be in Deaf Smith county. The general rule is that the declaration by the appellate court of the rules of law which should govern in the controversy is binding upon the lower court upon a second trial when the facts, are the same. It does not appear that the facts are now different from what they were upon the first appeal. Baldwin v. Davidson, 143 S. W. 716; City of Marshall v. McAllister, 22 Tex. Civ. App. 214, 54 S. W. 1068; 4 C. J. p. 1108, § 3089. And the rule has been extended where the question decided is one particularly of venue. Semple v. Anderson, 9 Ill. (4 Gilman) 546.

The second assignment of error is predicated upon the court’s action in overruling appellant’s motion to postpone the trial. It appears that appellant is an attorney, residing in McLennan county, and upon the issue of payment he was the only witness, in his own behalf. He procured his deposition to be taken which was returned into court on the 3d day of June, and on the following day the entire deposition was quashed oh motion of appellee. Whereupon the application for postponement was filed. A portion of the court’s qualification of the bill of exceptions taken to this ruling is as follows:

“At the time the interrogatories were propounded to G. W. Barcus he was acting as his own attorney and as attorney for the other defendants. He propounded the direct interrogatories to himself, sent them by mail from Waco to counsel for the plaintiff at Amarillo, who crossed them and returned them by mail to Barcus, who selected his own notary, and went before him and had the depositions taken at Waco and returned. There was no certificate by the notary but a mere jurat, swearing Bar-cus to his answers, and this jurat was without any seal. The motion to suppress made objection to the separate questions and to the whole deposition upon the grounds, among others, that various questions were leading; that they called for conclusions and opinions of the witness; that the answers were'not responsive; that the answers were voluntary statements; that the witness refused to answer some of the cross-interrogatories; that he failed and refused to attach the documentary evidence called for. And the motion.to suppress the entire deposition was for failure to answer the cross-interrogatories, failure to attack documentary evidence called for by the cross-interrogatories because of lack of any certificate, and because of the lack of any seal to the notary’s jurat. At the beginning of the term Barcus had written the court and counsel for plaintiff, asking to have the case set down late in the term, and this late setting had been granted and Barcus notified. At the time the motion for postponement or continuance was presented it was the expectation of the court to close the term during that week, and other causes were set, which it was thought would occupy the greater part if not all of the week, but in fact the court did not adjourn until June 24th, but there were only two other cases to be tried.”

The facts stated in this qualification must be taken as true, and, if so, they tend to show that the court did not err. The effect of sustaining this assignment would be to hold that an attorney could have his own deposition taken in a case to iwhich he was a party in such a defective manner as to result in its suppression, and thus procure a continuance of his ease. We do not mean to intimate that any such thing has been done designedly in this case, nor does appel-lee contend that the deposition was returned into court in its defective condition purposely, but we think it would be an unsafe rule for us to announce. We are not informed by the briefs of the parties when appellant instituted the proceeding to take his own deposition, but since it was returned into court shortly before the trial we think, sufficient diligence has not been shown.

Neither of the assignments present error, and the judgment is affirmed.
      g-^Vfir other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C.- J.

text:
    JONES et al. v. HARRIS COUNTY.

    (No. 355.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 28, 1918.
    Rehearing Denied Feb. 19, 1919.)
    •Counties <&wkey;80(2) — Cleek—Fees in Delin-’ qtjent Tax Suits — Statutes.
    Compensation allowed county clerks in delinquent tax suits by Rev. St. 1911, art. 7691, ■must be reported, accounted for, and considered in reaching maximum compensation of such • clerks as provided by maximum fee bill (Rev. St. 1911, art. 3883), though article 3924, providing that any other fees not embraced within title, but otherwise provided for, shall not be affected by its provisions, is also found in articles 3S33-:3926.
    Error from District Court, I-Iarris county; Henry J. Dannenbaum, Judge.
    Suit by the County of Harris against ■George Jones and others. To review judgment for plaintiff, defendants bring error.
    Affirmed.
    Barkley & Weems and Woods, King & •John, all of Houston, for plaintiffs in error.
    John H. Crooker, of Houston, for defendant .in error.

         writ of error denied April 2, 1919.

   HIGHTOWER, C.- J.

The following statement of the nature and result of this suit, found in the brief of plaintiffs in error, is conceded by defendant in error to be substantially correct, and is therefore adopted:

On the 30th day of January, A. D. 1917, the county of Harris filed this suit against George Jones, county clerk of Harris county, ■and the sureties on his official bond, H. M. Curtin and A. E. Amerman, alleging that during the fiscal year beginning December 1, 1915, and ending November 30, 1916, plaintiff in error George Jones, as county clerk, collected and received from the tax collector •of Harris county, Tex., as fees earned upon the delinquent tax roll for said year, the sum • of $1,763, which defendant in error claimed were fees of office which should have been .reported by plaintiff in error and accounted for by him as such; that for said fiscal year .the said George Jones had already collected . and retained the maximum amount of salary and the excess fees to which he was entitled under the law, and the said sum of $1,763 was the property of the plaintiff, Harris county, and that it was the duty of said George Jones, on the 1st day of December, 1916, to pay over said sum of money to the ■county treasurer of Harris county, but that . he 'had failed and refused to do so.

The defendants (plaintiffs in error) filed their answer, consisting of a general demurrer and special exceptions, and alleging, among other things, that the only laws upon which the claim asserted in plaintiff’s petition pould be predicated are the provisions contained in chapter 4, tit. 58, of the Revised Statutes of Texas of 1911, as aAended by the Acts of the Legislature of 1913 (Acts 33d Leg. c. 121), and that said chapter 4, tit. 58, of said Revised Statutes, in article 3924 thereof, expressly provided that “any other fees of office not embraced within this title, but otherwise provided for, shall not be affected by the provisions hereof,” and that all the amounts claimed to be due were amounts earned and collected under the provisions of article 7691 of the Revised Statutes of 1911, being fees due in delinquent tax cases, and were not fees of office and placed within or provided for by title 58 of the Revised Statutes, but were otherwise provided for, to wit, by said article 7691, which is a part of title 126 of the Revised Statutes.

The case was tried before the court upon the following agreed statement of facts:

“I. It is agreed that the defendant Geo. Jones, for the term from November 13, 1914, to November 30, 1916, was the duly elected, qualified, and acting county clerk of Harris county, Tex., and that the defendants A. E. Amerman and H. M. Curtin were the sureties, on Ms official bond in the sum of $10,000, conditioned as required by law.
“II. It is further agreed that during the fiscal year beginning December 1, 1915, and ending November 30, 1916, the defendant George Jones, as county clerk aforesaid, earned and collected from all sources, as fees of his office, an amount largely in excess of the maximum amount of compensation allowed by law, and the necessary expenses incident to the conduct of his office, including salaries of deputies, clerks, etc.
“III. That out of said total amount of fees so earned and collected by him he retained the sum of $4,250, being the maximum amount of compensation provided by law for him, after paying the salaries of the clerks and deputies employed by him, and deducting the amount of necessary expenses incident to the conduct of his said office, after which he reported and accounted for and paid into the county treasury all excess fees for said fiscal year, except the sum of $1,763, being the amount sued for herein, which amount represents fees earned and collected by said Geo. Jones from December 1, 1915, to November 30, 1916, as costs and fees in delinquent tax cases, as provided for in article 7691 of the Revised Civil Statutes of 1911, which amount he has retained and still retains, and has not accounted for to Harris county, under the claim that it is exempted from the operation of the law fixing the maximum amount of compensation to which he is entitled by reason of the provisions of article 3924 of the Revised Civil Statutes of 1911.
“IV. It is further agreed by and between the parties hereto, acting by and through their respective attorneys, that if thje act of the Regular Session of the Legislature of 1913, page 246, is valid and constitutional, and fees in delinquent tax cases provided for in article 7691 of the Revised Civil Statutes of 1911 come within the meaning of said act of 1913, in arriving at the maximum amount of compensation which shall bo allowed to county clerks, then the plaintiff is entitled to recover the sum of $1,703, being the amount sued for herein.
“On the other hand, if said act of 1913 is for any reason void or unconstitutional, or if said fees provided for in said article 7691 do not come within the provisions of said act of 1913, regulating the amount of foes and compensation which said county dork may retain, then in that event the county shall take nothing by its suit.”

Upon the facts thus agreed upon, the trial court rendered judgment in favor of Harris county, defendant in error herein, and against the plaintiff in error George Jones, as principal, and said sureties on his official bond, in the sum of $1,763, with 6 per cent, interest from date of such judgment, and costs of suit. From the judgment so rendered, the defendant George Jones and the sureties on his official bond have duly brought the case to this court by writ of error, and in their brief present three assignments of error, as follows:

(1) “The court erred in rendering judgment against the plaintiff in error, because it is agreed between the plaintiff and defendant that, if collections in tax suits be not included within the provisions of said act of 1913, the defendants are entitled to a judgment, and because collections in tax suits are not included therein.”
(2) “The court erred in overruling defendants’ general demurrer to plaintiff’s petition, the same being shown by paragraph 1 of defendants’ first amended original answer, wherein defendants excepted to plaintiff’s petition because the facts therein alleged, if true, are insufficient to constitute a cause of action against defendants.”
(3) “The evidence introduced is insufficient, if true, to entitle the plaintiff to the judgment rendered.”

It will be readily seen that all of the above assignments relate to and raise the same question of law, and therefore a disposition of one of them disposes of them all.

Under these assignments, plaintiffs in error first contend that the compensation allowed county clerks under article 7691, c. 126, of the Revised Statutes is not fees of office within the meaning of article 3883, c. 58, fixing the maximum amount of fees allowed said officers, including county clerks, but is fees of office “otherwise provided for,” and not within title 58 of the Revised Statutes of the State of Texas, and that Harris county, under the agreed statement of facts in" this case, was not entitled to any part of the money sued for and recovered herein.

It is further contended by the plaintiffs in error that, when the Legislature, in 1913, amended article 3883 of the Revised Statutes of this state, it did not amend in any way or repeal article 3924 of the same title, but left the same intact and in full force and effect, and that, since said article 3924 provides that any other fees of office not embraced within said title (title 58), but otherwise provided for, shall not be affected by the provisions of said title, and that, as the money sued for by Harris county is “fees of office not embraced” within title 58, but are “otherwise provided for,” the county of Harris was not entitled to recover ■any of the money sued for.

Thus it will be clearly seen that it is the contention of plaintiffs in error that the compensation provided for and allowed county clerks in tax suits by article 7691, tit. 126, Revised Statutes, does not have to be accounted for or taken into consideration in arriving at the maximum amount of compensation to be retained by such clerks, by reason of the fact that the authority to collect such fees is found elsewhere than in title 58, and that therefore such compensation is not subject to the provisions of the maximum fee bill, and they rely upon article-3924, found in title 58, for their contention. Said article 3924 reads as follows:

“Any other fees of office not embraced within-this title, but otherwise provided for, shall not be affected by the provisions hereof.”

After a very careful consideration of the contention here made by plaintiffs in error, we have arrived at the conclusion that the-same is not tenable, but, on the contrary, we are of opinion that compensation allowed county clerks in delinquent tax suits by article 7691 of the Revised Statutes must be reported and accounted for and taken into consideration in arriving at the maximum compensation that may be retained by such clerks-for services performed by them, as provided by the “maximum fee bill” (article 3883, tit. 58, of the Revised Statutes of this state),, notwithstanding the fact that article 3924,. above quoted, is also found in said title 58.

The precise contention here made by the-plaintiffs in error was before the Court of Civil Appeals for the First District in the case of Harris County v. Hammond, Sheriff, 203 S. W. 445, the opinion in which was rendered March 14, 1918, and also in the case of Harris County v. Curtin, Tax Collector, 203 S. W. 453, opinion in which was rendered March 28, 1918, and in each of those cases the contention here made by plaintiffs in error as to the effect that should be given article 3924 was denied. In the Hammond Case, supra, the Galveston court, among other things, said:

“Article 3924, above quoted, was incorporated in the Revised Statutes of 1895 in the title and chapter fixing fees of officers. Its obvious purpose in the statute in which it was placed was to avoid any question as to the right of officers to collect fees not embraced in the chapter in which it was incorporated, but otherwise provided for. The schedule of fees fixed in that chapter does not include foes of officers authorized by provisions of the Criminal Code of Procedure and statutes regulating other matters, both civil and criminal. We think it clear that when the codifiers, in arranging the titles. for the Revised Statutes of 1911, placed the maximum fee bill under the same title with the statute fixing the fees which officers were authorized to collect, they had no intention of applying article 3924 to the provisions of the maximum fee bill, and, if they had so intended, the placing of the two statutes under the same title could not he given that effect.”

Were it not for the pressure of other matters, this court would be inclined to discuss more at length the contention of plaintiffs in error in this case, and would state more fully its reasons for denying same, but believing as we do, that the opinions of the Court of Civil Appeals for the First District in the Hammond and Curtin Cases, supra, were clearly correct, and that they fully disposed of the contention here made by plaintiffs in error, and that the reason for same is sufficiently stated in these opinions, we shall not further discuss the question.

It follows from what we haye said that we are of opinion that the judgment of the trial court in this case was correct, and should be affirmed, and it will be so ordered.

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


author: RASBURY, J.

text:
    GILL et al. v. CITY OF DALLAS et al.
    (No. 8185.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 8, 1919.)
    1. Municipal Corporations &wkey;>592(l) — Ordinances — Conflict with General Laws —Jitney on Streets.
    Ordinance of Dallas of August 2, 1918, entitled one regulating local street transportation, and excluding from a certain zone regular lines of jitneys, held not in conflict with or repugnant to Acts 35th Leg. c. 190, creating a state highway department, or chapter 207, regulating operation of motor vehicles, in view of section 25 of the former (Vernon’s Ann. Civ. St. Supp. 1918, art. 7012½¾, and section 23 of the latter, reserving to local authorities power to license and regulate the use and operation of vehicles for hire.
    2. Monopolies <&wkey;0 — Use op Streets — Jitneys— ORDINANCES.
    An ordinance forbidding jitneys within a certain zone does not create a monopoly, in violation of Const, art. 1, §§ 1, 26, in favor of street railways. ..
    3. Constitutional Law <&wkey;292 — Eminent Domain &wkey;>2(6) — Municipal Corporations &wkey;j6Gl(2) — Taking Property — Use op Streets by Jitneys.
    An ordinance excluding jitneys from a certain zone does not, in violation of Const, art. 1, §§ 17, 19, and Const. U. S. Amend. 14, take property and privileges, without due compensation or process of law, of jitney companies which, under former ordinances and statutes, made investments in the business; their use of the streets being the exercise of a mere license, revocable at the will of the licensor.
    4. Municipal Corporations <&wkey;661(2) — Regulation op Streets — Legislative Powers op State.
    The exercise by city of powers delegated to it under authority of provisions of the Constitution to regulate local street transportation is not in violation of the state’s right of government provided for by Const, art. 1, § 1, oven if it has application to the state’s internal affairs.
    5. Constitutional Law <&wkey;63(2) — Legislative Powers — Delegation.
    An ordinance regulating use of streets by jitneys, passed in the exercise of delegated power, is not void as exercise of legislative power reserved by Const, art. 3, § 1, to the state.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by D. H. Gill and others against the City of Dallas and others. From an adverse judgment, plaintiffs appeal.
    Affirmed.
    William PI. Clark, of Dallas, for appellants.
    A. S. Hardwicke and Lawther & Pope, all of Dallas, for appellees.
   RASBURY, J.

This is an appeal from the action of the trial judge in sustaining exceptions to the sufficiency of appellants’ petition and refusing an interlocutory injunction restraining appellee pendente lite from the enforcement of an ordinance affecting appellants’ right to operate motor busses, or jitneys, over and upon the streets of Dallas.

After properly alleging appellants’ right to maintain the suit, and that appellee was a municipal corporation by authority of special act of the Legislature and amendments thereto, the petition alleged, in substance, the following material facts: Prior to and on January 5, 1917, appellants and many others were, under existing ordinances, licensed by appellee to operate motor busses or jitneys upon the public streets of Dallas, and were so engaged at that time. On that date appellee, by its mayor and board of commissioners, enacted another ordinance declared to be for the purpose of regulating the operation of such vehicles, and repealed all former ordinances in that respect. On January 11, 1917, appellants and others affected thereby attacked the validity of said ordinance by suit in the district court. Upon hearing in the district court the ordinance was for various reasons declared void, and hence unenforceable, and the appellee and its officers perpetually enjoined from attempting to enforce same. On appeal to this court the ordinance was held valid, the judgment of the district court reversed, and the injunction dissolved. City of Dallas v. Gill, 199 S. W. 1144. On May 5, 1918, the Supreme Court of Texas in said case denied application for writ of error (202 S. W. xvi), and on June 12, 1918, denied motion for rehearing. On June 29, 1918, the Chief Justice of this court -granted a writ of error to the Supreme Court of the United. States, hut refused to supersede the judgment of this court. On July 30, 1918, one of the Associate Justices of the Supreme Court of the United States ordered the judgment stayed until further orders upon the giving of bond,- etc. The bond was filed in this court Apgust 2, 1918, whereupon those engaged in tire jitney service resumed the business. Matters so standing, the city of Dallas, through its mayor and -board of commissioners, on August 2,1918, enacted another ordinance entitled “An ordinance regulating local street transportation in the city of Dallas.” Local street transportation was variously defined, and included vehicles which transported passengers for hire over the streets without previous agreement, ordinarily upon regular routes, and being the kind of service usually furnished by jitneys in competition with a street railway service, which included the vehicles or jitneys operated by appellants, and excluded from its provisions all motor vehicles engaged in local street transportation which made trips under special employment, and which remained in and upon private premises or legally authorized stands or garages when not so engaged. It was declared unlawful for any person firm, corporation, association, partnership, or society to engage in the street transportation so defined within a defined district. The district or zone from which such vehicles were excluded is a wide, irregular circle around the heart of business center of the city. All former ordinances in conflict with the new act were repealed. Any person convicted for violating the ordinance is subject to fine of not less than $25 nor more than $200, every single passenger transported within the prohibited territory constituting a separate offense. The ordinance declared that due to the great confusion and congestion upon the city streets for lack of sufficient traffic regulations, and due to the great public necessity for the protection and preservation of public peace, health, and safety, an emergency was created authorizing the immediate passage of the ordinance, which was accordingly done. After the enactment of the ordinance the present suit was commenced for the purpose, as we have said, of restraining its enforcement. The grounds upon which the relief was sought are numerous, and are reflected in the assignments of error presently to be considered, and in connection with which we will recite any further fact alleged, in the petition necessary to a fair and correct determination of the issues.

Under authority of the first assignment of error it is contended that the ordinance is void because in conflict with and repugnant to recent acts of the Legislature creating a state highway department (chapter 190, p. 416, Gen. Laws Reg. Sess. 35th Leg.), and regulating the operation of motor vehicles' (chapter 207, p. 474, Gen. Laws Reg. Sess. 35th Leg.). The general purpose of the state highway department act is to authorize the commissioners therein provided for to formulate plans and policies for the location and construction of a comprehensive system of state public roads, and to provide the necessary funds with which to effectuate that purpose, by requiring every character of motor vehicle in use in the state to register with the department, pay the fee or tax fixed by the act, depending upon the carrying capacity of the cars., etc., and receive a license from the department. The act regulating the operation of motor vehicles has for its general purpose that which is indicated by its title, including the registration, licensing, and identification of motor vehicles and persons operating them, and prohibiting their operation by others, prescribing traffic regulations upon the state highways, and limiting local authorities in the enactment of laws in conflict with the act, providing for its enforcement, and affixing penalties for its violation. While the provisions of both -acts are numerous, none of them, in our opinion, affect the present controversy, save those immediately cited. By section 16 of the act (Vernon’s Ann. Oiv. St. Supp. 1918, art. 7012½) creating the state highway department it is provided, in substance, that, in order to provide funds to effectuate the purpose of the act, every owner of one or more motorcycles or motor vehicles shall register same in the manner directed by the act, accompanying his application for registration by the required fee. Section 17 provides that, upon receipt of application for registration and the prescribed fee, certificate or license card shall be issued identifying the vehicle and owner, etc., together with a metal seal, to be conspicuously displayed upon the radiator of the car. Section 25 (article 7012%h) declares, in substance, that the registration certificate and license fees provided for in the act shall be in lieu of all similar requirements by any county, municipality, or other political subdivision of the state, which are forbidden to impose similar burdens upon such vehicles, save that incorporated cities and towns shall retain the right “to license and regulate the use of motor vehicles for hire.” Section 27 (article 70¾12½1) repeals all laws in conflict with the act. By section 23 of the act regulating the operation of motor vehicles it is provided, among other matters, that the speed regulations therein fixed shall be exclusive of all similar regulations fixed by any political subdivision of the state, save that such political subdivisions may pass ordinances or regulations for the purpose of establishing orderly passage of vehicles upon highways or portions thereof where traffic is heavy and continuous, and except that “the powers now or hereafter vested in local authorities to license and regulate .the opera' tion of vehicles offered to the public for hire * * * shall remain in full force and effect, and all ordinances, rules, and .regulations which have been, or which may be, hereafter enacted in pursuance of such powers shall remain in full force and effect.”

The foregoing are the provisions upon which appellants»’ claim of conflict and re-pugnancy is founded. With such provisions they had complied, and were licensed by the state of Texas at the time the ordinance was enacted, and entitled to all the privileges contemplated thereby. Counsel argues that it was clearly the purpose and intention of the Legislature in enacting such laws to assume exclusive control of the operation, taxation, and licensing of every character of motor vehicle, including those defined by the ordinance, upon the highways of the state, which includes city streets, and that when licensed by said act owners of such vehicles were entitled to operate same for any and every lawful purpose over and upon any city street within the state, without any right in municipal government to interfere with them in the manner attempted by the ordinance under construction. We cannot agree with the contention. While it may not be denied that the acts of the Legislature clearly evidence a purpose to assume, in a large sense, exclusive control of motor vehicles, it with equal clearness evidences, in our. opinion, an intention to reserve to municipalities a similar control in certain particulars. The taxing power is one of the exclusive rights assumed by the state, as is evidenced, by section 16 of the state highway department act, which requires every motor vehicle to register and pay the required fee to the state, and section 25 of the same ant, which prohibits, other political subdivisions of the state from imposing similar burdens. When said fees are paid and the other provisions of the act complied with the owners’ right to travel the public highways, including the city streets, in the usual and ordinary way will not be disputed. At the same time it appears with equal clearness from said section 25 of the state highway department act, and from section 23 of the. act regulating the operation of motor vehicles, that certain powers upon the subject were by the Legislature expressly reserved to the local authorities of the political subdivisions of the state. The power reserved in said section 25 is “to license and regulate the use of motor vehicles for hire,” while that reserved in said section 23 is “the power now or hereafter vested in local authorities to license and regulate the operation of vehicles offered to the public for hire.” It is of consequence here to note that there is a wide distinction between the incidental transaction of business in the exercise of the right to travel the public highways in the ordinary way and the right to use such highways as a place upon which to conduct business. While the

right to use public' highways for ordinary travel or use, and incidentally the transaction of one’s business, is a common privilege of the public, the right to use such highways upon which to conduct business, or to put such highway to some peculiar, special, or exceptional use, in order to conduct or maintain business thereon, is always subject to the will of the state or the political subdivisions thereof to which such power has been delegated. It is>, of course, a well-settled and generally accepted rule that municipalities may not prohibit occupations or businesses lawful under general laws, though, generally speaking, they may license and regulate under authority of legislative grant. Whether one in pursuit of a lawful business or occupation may put the public highways to a peculiar or exceptional use— that is to say, conduct his business exclusively thereon — is a widely different matter. Certainly, the citizen has no common or inherent right in that respect. The state or-the city, when the power is delegated, clearly may grant such privilege, or may refuse it, and thereby prohibit the use of the street. Occupations or business conducted wholly upon the public highway are enjoying mere privileges, which may be revoked or denied by the local authorities whenever the health, peace, or safety, of the general public warrant it. The rule is founded in reason and justice, and is supported by decisions and texts, many of which are cited in Ex parte Parr (Tex. Or. App.) 200 S. W. 404. The provisions cited from the acts relate, not to the right to regulate the public in the usual and ordinary travel upon the public highways, but the right to regulate the operation and use of vehicles for hire. The provisions are in both measures, and their insertion was obviously studied and deliberate in the light of the comprehensiveness of the measures. Their meaning is clear, unambiguous, and leaves nothing to construction, and means no less than that cities are pennitted to regulate the use and operation of vehicles upon their streets for hire, which is but to say that- they may regulate and license the conduct of local transportation upon their streets as attempted by the ordinance, and which it occurs to us is a precise exercise of the .power reserved to them by the act. If it was not intended to reserve to cities the regulation of the business in which appellants seek to engage, then the reservation is surely meaningless, since the business is purely the offering to the public of motor vehicles for hire. We accordingly conclude that there is neither conflict nor repugnancy in the provisions of the legislative acts and the ordinance.

It is also contended that the ordinance is void beeait.se in violation of section 28, art. 1, Const., which, in substance, reserves to the Legislature only the power to suspend laws, and because in violation of article 1090a, Yemon's Sayles’ Ann. Civ. Stats. Tex., and art. 2, § 1, subd. 2, of tlie city charter, forbidding, respectively, the grant to cities of power to pass ordinances inconsistent with the Constitution or general laws of the state, or the exercise of such power by cities. The foregoing contention depends obviously upon the assumption that the ordinance is in conflict or repugnant to the state highway department act or the act regulating the operation of motor vehicles. As a consequence, if we are correct in our conclusion on that issue such contention is without force.

It is also contended that the ordinance is void because in violation of sections 1 and 20, art. 1, Const., forbidding monopolies, the precise point being that the ordinance, by abolishing jitneys, creates a monopoly in favor of the street railways. In connection with the issue so presented it is alleged in the petition that it was the purpose of ap-pellees’ officers to abolish and prohibit the operation of jitneys in the city of Dallas by the enactment of the ordinance complained of and that such was its effect. The allegation is to be accepted as a fact unless the contrary appears from an inspection of tlie ordinance attached to, and made a part of, appellants’ petition. We conclude the effect of the ordinance was to abolish the jitneys, whatever may have been the intention of appellee’s officers. We base the conclusion upon the common knowledge wo possess concerning the geographical situation of the zone from which jitneys are prohibited. The zone envelops, as we have said, the ; business heart of the city. The public obviously would not patronize conveyances that could not reach the business center. As a consequence the use of jitneys is out of the question so far as the convenience of the public is involved. That fact may be conceded, and yet the ordinance, in our .opinion, would not be void because it creates a monopoly within the contemplation of the Constitution. Ordinarily, whether person's, firms, or corporations are exercising monopolistic privileges or immunities is determined by the grant, right, or permission under which such persons, firms, or corporations are operating. Under what character of grant the street railways are operating doep not appear, but it must be assumed that, since the Constitution forbids grants creating monopolies, no such grant -was made. On the other hand, the mere refusal of a municipality to grant a franchise or permission to others who desire to compete with those already in possession of a franchise or permit does not, in our opinion, create a monopoly. Franchises or permits to use city streets by public utilities are not privileges to be granted as matter of course upon the asking. Sufficient public utilities are a great convenience; too many might be an equal inconvenience, to be determined in every ease by the local authorities. The convenience, peace, health, and safety of the citizens necessarily determine the number and extent of similar competing utilities which are to be permitted to operate. While none may be given exclusive or monopolistic rights, it does not follow that all are entitled to enter upon the city streets. The officers of municipalities are charged with the responsibility of conserving the convenience of the citizens in such matters, as well as providing for their peace, health, and safety. Whether they have fairly done so is obviously not a judicial question.

It is also contended that the ordinance is void because in violation of sections 17 and 19,. art. 1, Const., and of amend. 14, Const. U. S., because it attempts, as relates to tlie state Constitution, to take the property and privileges of appellants without either due compensation or process of law, and, as relates to the federal Constitution, to do so without due process of law. The precise issue urged is that, as alleged in their petition, appellants under former jitney ordinances, and under the state highway department act, and the act regulating the operation of motor vehicles, were licensed to pursue the business in which they were engaged at the time of the enactment of the ordinance involved in this proceeding, and upon the faith of which they made large investments, of which they will be deprived by tire enforcement of said ordinance. If, as matter of fact, investments were so made—and it is to be assumed they were—that fact confers upon appellants no vested right to continue upon the streets, since their use of the streets was the exercise of a mere license, revocable at. will of the licensor. Newson v. City of Galveston, 70 Tex. 559, 13 S. W. 368, 7 L. R. A. 797.

The contention also is made that the ordinance is void for the reason that it violates section 1, article 1, of the Constitution, which declares that, subject to the Constitution of the United States, Texas is free and independent, and that the maintenance of free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired, to all the states. The contention is that the exercise of the powers contained in the ordinance is a denial of that right to the state. While we think the section of the Constitution quoted is a declaration directed against the exercise by the national government of those powers reserved to the states, at the same time if it has application to the state’s internal affairs other clauses of the Constitution, as we have noted, authorize the delegation to political subdivisions of the state by the Legislature of the functions reserved to it, including the power exercised by the appellee in the ordinance under construction.

It is also claimed that the ordinance is void because it is an attempted exercise of the legislative power reserved to the state by section 1, art. 3, of the Constitution. While all legislative power is reserved to the state, that power may, ol course, be delegated to other governmental agencies, and we have heretofore held in a number of cases that the power exercised in the ordinance was delegated to the city of Dallas, and that it was such power as the Legislature was authorized to delegate.

Finding no reversible error in the record, the judgment is affirmed.

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


author: KEY, C. J.

text:
    CITY OF LAMPASAS v. HULING.

    (No. 5988.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 18, 1918.
    Rehearing Denied Feb. 19,1919.)
    1. Municipal Coepokations &wkey;>122(4) — Enactment OF ORDINANCE — PROOF.
    In city’s suit to recover from property owner cost of constructing cement sidewalk, where agreed facts stated that the ordinance was passed by city council on given date, and city put in evidence book of minutes of council which set out ordinance in full and showed it was duly passed, proof of enactment of ordinance was sufficient.
    2. Municipal Coepoeations <⅞=»806 — ■Sidewalk Improvement — Ordinance—Personal Claim Against Owner'.
    City’s ordinance requiring construction of sidewalks was not void because it undertook to make cost of construction, with legal interest and cost of collection, a personal claim against property owner ; statute so authorizing.
    8. Municipal Corporations <&wkey;302(4) — Sidewalk Improvement — Ordinance — Publication — Statute — Imposition of “Penalty or Forfeiture.”
    City ordinance requiring construction of sidewalks by owner or by city at his expense hold not to impose penalty or forfeiture within Rev. St. art. S19, requiring publication of every ordinance so doing.
    4. Municipal Corporations <&wkey;284(2) — Sidewalk Improvement — Ordinance — Delegation of Powers of Council.
    City ordinance providing for construction of cement sidewalks by the property owner, or, on his default, by the city, under supervision of public improvement committee of city council at owner’s expense, held not void as delegation of council’s legislative powers.
    5. Municipal Corporations <&wkey;304(7) — Sidewalk Improvement — Ordinance and Notice — Description of Walk.
    Ordinance of city requiring construction of cement sidewalks by owner, or, on his default, by city at his expense, together with notice served on defendant owner, held sufficient in their description of kind and grade of sidewalk required.
    Apxieal from District Court, Lampiasas County; F. M. Spann, Judge.
    Suit by the City of Lampasas against W. N. Huling. From judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    H. F. Lewis, City Atty., and Matthews & Browning, all of Lampasas, for appellant.
    T. S. Alexander and Word & Walker, all of Lampasas, for appellee.

       writ of error denied April 2. 1919.

   KEY, C. J.

Appellant, a municipal corporation, in the year 1890 accepted the provisions of the Revised Statutes relating to cit-' ies of more than 1,000 inhabitants, in lieu of its special charter granted by the Legislature in 1873. On August 16, 1917, appellant instituted this suit against appellee to recover the sum of $116.20, expended by appellant in constructing ¿ cement sidewalk in front of appellee’s land within appellant’s corporate limits, and to foreclose its lien on the land.

In addition to a general denial, appellee pleaded that appellant had no valid ordinance requiring or authorizing the construction of the sidewalk referred to; that the alleged ordinance had not been published as required by law; that it attempted to delegate legislative powers to a committee of aldermen designated the “public improvement committee,” and for that, as well as for other, reasons the ordinance was void.

There was a nonjury trial, which resulted in a judgment for the defendant, and the plaintiff has appealed.

We sustain appellant’s first assignment of error, which reads as follows:

“The plaintiff having proved a valid ordinance of the city of Lampasas (191-A), and the issuance and service of a valid notice to the defendant, being the ordinance and notice set forth in lilaintiff’s petition, and the defendant having failed to construct a side walk in front of his property as required by said ordinance and notice, and after such failure the plaintiff having constructed such sidewalk at an expense to it of $116.20, the court erred in failing to render judgment in favor of plaintiff for said sum, and in rendering judgment for the defendant.”

The trial judge filed findings of fact and* conclusions of law, and held that the ordinance was void, without indicating in his conclusions of law the particular ground for so holding; and therefore this opinion will be limited to the consideration of the reasons urged in appellee’s brief for an affirmance of the judgment.

I. We overrule appellee’s contention that there was not sufficient proof that the ordinance pleaded had been enacted by the city council. The ordinance referred to was designated as “No. 191-A,” and the agreed statement of facts states in so many words that that ordinance was passed by the city council bn June 27, 1917¡ and the plaintiff put in evidence the book of minutes of the city council, wliicli set but the ordinance in full, and showed that it was duly and properly passed.

Nor is there any merit in the contention that the ordinance is void because it undertakes to make the cost of constructing the sidewalk, with legal interest and cost of collection, a personal claim against the property owner. The statute authorized the city council to enact the ordinance, and render appellee and his property liable for the amount sought to be recovered, unless the ordinance was invalid for some other reason.

XI. Article 819 of the Revised Civil Statutes provides that every ordinance imposing any penalty, fine, imprisonment, or forfeiture shall be published before it becomes effective, and, as the órdinance in question was not published, counsel for ap-pellee contend that it is void for that reason. That contention rests upon the predicate that the ordinance imposes a penalty, or provides for a forfeiture. The ordinarice provides:

“Should any person owning property abutting or adjacent to any street along which any sidewalk shall be required to be constructed fail or refuse to construct any such sidewalk in front of or adjacent to his or her property in the manner required by this ordinance and as directed by the public improvement committee or the chairman thereof, within twenty days after notice as hereinbefore provided, the said public improvement committee for said city shall proceed to have .said sidewalk constructed, and the cost of constructing the same shall be charged against such person, the owner, and the costs of construction of such' sidewalk shall constitute a lien upon the property contiguous or adjacent to said sidewalk. Said costs of construction of such. sidewalk adjacent to such property, together with legal interest and the cost of collection, shall constitute a personal claim against such property owner and be secured by a lien on such property superior to all other liens, claims, or titles, except lawful taxes, and such liability and lien may be enforced against such owner by suit in any court having competent jurisdiction.”

We are of opinion that the language quoted does not impose a penalty or forfeiture, but that it merely provides a method by which the owner of real estate can be compelled to pay for the construction of sidewalks in the public streets adjacent to such property. As a general rule, sidewalks enhance the value of adjacent real estate, and it is for that reason that it is not deemed unjust to require the owner of such real estate to bear the burden of such improvements; and a law which accomplishes that result, and nothing more, imposes neither a penalty nor a forfeiture.

III. It is provided by statute that city councils have exclusive control and power over streets and alleys, public playgrounds and highways, and to construct, regulate, and keep in repair bridges, culverts, and ' sewers; sidewalks and crossways, and to regulate the construction and use of the same; and therefore, it is contended on behalf of appellee that, inasmuch as the ordinance in question, which provides “that all the sidewalks now constructed, or which-shall hereafter be constructed, in the city of Lampasas, Tex., shall be done under the supervision of the public improvement committee of the city council of the city of Lam-pasas,” the same is void.

The general rule- is that, unless specially authorized so to do, legislative bodies, including those representing municipal corporations, cannot delegate to any other body or person legislative authority, but that such bodies, and especially municipal councils, may delegate such powers as are .properly described as executive or administrative.

The first section of the ordinance in question vests in the public improvement committee of the city council supervision over all sidewalks “now constructed, or which shall hereafter be constructed,” and declares that all future construction of sidewalks shall be under the supervision of that committee. The second, third, and fourth sections read as follows:

“Sec. 2. That all sidewalks in the city of Lampasas shall be constructed of cement, four inches in thickness, or depth, and shall be four feet wide in the residence portion of the city, and eight feet wide in the business portion of the city. Said sidewalks shall be constructed, if not already constructed, and maintained on all streets in front of, or adjacent to, all abutting property on the streets within the following territory in the said city of Lampasas: On' both sides of Second street from Pecan street to Park street, inclusive; on both sides of Third street from Hackberry street to the city limits on the west; on both sides of Fourth street from Hackberry street to Ridge street; on both sides of Western avenue from Fourth street to North avenue; on both sides of Main street from Fourth street to North avenue; and' on both' sides of Grand avenue from Fourth street to North avenue. 'Such sidewalks shall conform to the grade furnished or to be furnished by the public improvement committee, and shall be constructed and maintained and kept in good repair by the owner of said abut-' ting or adjacent property.
“Sec. 3. In case sidewalks are to be constructed along any of said streets or other street in said city of Lampasas, the chairman shall' notify the owners of all the abutting or adjacent, property on such street, in writing, to construct such sidewalk. Said notice shall state the kind of sidewalk required to be constructed, together with its approximate location and grade, and the name of the street along which said sidewalk is ordered to be built, and the number of the lots or blocks, or both, belonging to said persons, along which they are required to construct said sidewalks; the said notice to be-signed by the chairman of the public improvement committee. The notice hereby required may be served by delivering the same to the owner of said property, or by leaving the same-with any member of the family of such person who is over 14 years old, or by leaving such notice at the owner’s place of business, with any agent or clerk of such person during business hours. If the owner of such property is not a resident of the city of Lampasas, then service may be made as above provided on his agent or attorney, or by mailing such notice to the said owner’s address, postage being prepaid.
“Sec. 4. Should any person owning any property abutting or adjacent to any street along which any sidewalk shall be required to be constructed, fail or refuse to construct any such sidewalk in front of, or adjacent to, his or her property in the manner required by this ordinance, and as directed by the public improvement committee, or the chairman thereof, within twenty days after notice as hereinbefore provided, the said public improvement committee for said city shall proceed to have said sidewalk constructed, and the cost of constructing the same shall be charged against such person, the owner, and the costs of construction of such sidewalk shall constitute a lien upon the property contiguous or adjacent to said sidewalk. Said costs of construction of such sidewalks adjacent to such property, together with legal interest and the costs of collection, shall constitute a personal claim against such property owner, and be secured by a lien on such property superior to all other liens, claims or titles, except lawful taxes, and such liability and lien may be enforced against such owner by suit in any court having competent jurisdiction.”

Appellee owns block No. 35, which fronts upon one of the streets designated in section 2 of the ordinance. After the passage of the ordinance, the following notice was served upon him:

“Sidewalk Notice.
“Lampasas, Texas, June 28, 1917.
“Mr. W. N. Iluling, Lampasas, Texas — Sir: You will take notice that by virtue of Ordinance No. 191-A, passed by the city council of the city of Lampasas, in Lampasas county, Texas, on June 27, 1917, all persons owning real property adjacent to or abutting on either side of Second, Third and Fourth streets, Western avenue, Main street and Grand avenue, in said city, within certain limits, within which limits is included the block No. 35, hereinafter mentioned, are required to construct cement sidewalks along said streets adjacent to their property.
“Now, in accordance with the provisions of said ordinance you are hereby notified to construct, within twenty days from the time of the service of this notice on you, a cement sidewalk on the north side of said 'Second street, in front of the following property owned by you, viz.: All of block No. 35 of A. H. Barnes’ addition to said city of Lampasas, Texas.
“The north side or edge of said sidewalk so directed to be constructed shall be approximately two feet from the south line of said block 35; the width of said sidewalk to be four feet, and the thickness thereof to be four inches, and the said sidewalk shall conform to the grade of the street crossings heretofore made and approaching and terminating at the ends of said sidewalk so directed to be constructed, and said sidewalk to be' otherwise constructed in the manner provided for in said ordinance.
“You are further notified that upon your refusal or failure to construct said sidewalk in front of said block No. 35, as above indicated and directed, within 20 days from the time of the service on you of this notice, then said city of Lampasas, through the public improvement committee, appointed by said city council, will thereafterwards proceed to construct the same, and the costs of such construction will be charged against you, and the same will constitute a lien on said block No. 35, and the said costs will be collected from you and such lien enforced in such manner as is provided for in said ordinance and by the laws of the state of Texas.
“Given under my hand and the seal of the city of Lampasas this the 28th day of June, A. D. 1917. J. A. Hallmark, Chairman of the Public Improvement Committee of the City Council of the City of Lampasas, Texas.”

After the expiration of 20 days from the service of that notice, appellant, acting through J. A. Hallmark, chairman of the public improvement committee, caused the sidewalk in question to be constructed at a cost of $116.20, which was fair and reasonable.

In our opinion, the ordinance does not confer upon the committee legislative power, and therefore it is not subject to that objection. The powers conferred upon and exercised by the committee were administrative in their nature, and what was done thereunder by the committee was the exercise of executive or administrative power. The governing boards of municipal corporations exercise two classes of power, one legislative, and the other administrative; and the weight and tendency of modern authorities are to the effect that the latter class of power may be delegated. Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659; City of Galveston v. Heard, 54 Tex. 420; City of Longview v. Capps, 123 S. W. 160; Booth v. City of Dallas, 179 S. W. 301; City of Brenham v. Holle & Seelhorst, 153 S. W. 345; Rich v. Woods, 118 Ky. 865, 82 S. W. 578; Treasy v. City of Louisville, 137 Ky. 289, 125 S. W. 706; 28 Cyc. 277, 278, 695, 968, 969.

IV. The contention that the ordinance and notice served upon the defendant did not sufficiently describe the kind and grade of sidewalk is not believed to be sound. The undisputed proof shows that sidewalks in existence in Lampasas at that time, and those under construction, were commonly called cement sidewalks, and were made of a mixture of cement, gravel, and sand. If appellee did not himself know exactly how much of each ingredient nor what "particular-grade was necessary to satisfy the demand of the city council, no doubt he could have ascertained that fact by conferring with the chairman, or some other member of the committee which had control of such work; and therefore we hold that the ordinance and notice served upon appellee concerning the contemplated improvement was sufficient. 1 Dillon on Municipal Corporations (5th Ed.) § 244, and note; 28 Cyc. 1002, 1003, and notes; City of Olive Hill v. Tabor, 143 Ky. 336, 136 S. W. 649.

In the last case cited the Supreme Court of Kentucky said:

“While the proceedings in this case were not attended by that formality which is to be desired in such matters, we fail to perceive any reason why appellee should be released from liability. In the earlier opinions of this and other courts' a very strict compliance with the charter and ordinances of the city was held to be necessary in order to charge a property holder with the cost of a public improvement. According to the more recent doctrine, a substantial compliance with the law and contracts made in pursuance thereto is all that is required. Nell v. Power, etc., 107 S. W. 694, 32 Ky. Law Rep. 952.”

While some minor questions have not been discussed in this opinion, what has been said disposes of the merits of the case against appellee; find, as there is no dispute about the facts, the judgment of the court below is reversed, and judgment here rendered for appellant for $116.20, and the foreclosure of its lien upon the property referred to, and all costs of both courts.

Reversed an.d rendered.
      &wkey;>For other cases see same topic and KEY-NUMBER in ail Key-Numberea Digests and Indexes


author: WALTHALL, J.

text:
    BURKHALTER v. WEBB.
    (No. 928.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1919.)
    Appeal and Error <&wkey;1133 — Sufficiency of Record — Failure to File Brief.
    Where there was no motion for new trial or assignment of error appearing in the record, and there was no brief filed by either party, and no motion filed in Court of Civil Appeals to dismiss appeal for want of prosecution, the case will he affirmed.
    Appeal from El Paso County Court at Law; W. P. Brady, Judge.
    Action by John R. Webb against Dan W. Burkhalter. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    D. W. Burkhalter, of El Paso, for appellant.
    J. H. Peden, of El Paso, for appellee.
   WALTHALL, J.

In this case, appellee sued appellant on a promissory note for $500, interest, and attorney’s fees, provided in the note, and secured by chattel mortgage. The only defense made was an agreement to extend the time of payment and a small amount paid to be credited on the note.

The case was tried without jury, and judgment entered for appellee, with foreclosure of the chattel mortgage. The' court filed findings of fact and conclusions of law. There is no motion for a new trial, or assignment of error appearing in the record, nor is there a brief filed by either party. No motion has been filed in this court to dismiss the appeal for want of prosecution.

The case is affirmed.


author: HARPER, O. J.

text:
    CALIFORNIA INS. CO. v. EADS et al.
    (No. 887.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1919.
    Rehearing Denied March 6, 1919-)
    1. Insurance <&wkey;66S(6) — Direction of Verdict — Controverted Question of Fact.
    In action on fire policy covering an automobile, held, it was a controverted question of fact whether any representation was made about the automobile being paid for, and also as to whether any misrepresentation, if made, was material, so that court did not err in refusing to instruct a verdict for defendant.
    2. Appeal and Error <&wkey;930(3) — Failure to Request Submission of Issue — Presumption.
    Where it was doubtful whether defendant would have issued fire policy, where dealer had taken notes in full payment, to have submitted issue whether automobile was fully paid for, as represented, would not have made it an ultimate basis for judgment; and, as defendant did not request submission of issue whether misrepresentation was material, it must be presumed on appeal that it was found in favor of the judgment entered.
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Action by Mrs. O. B. Eads and others against the California Insurance Company. From the judgment rendered, defendant appeals.
    Affirmed.
    Brown & Wilchar and Gold & Page, all of El Paso, for appellant.
    Jno. L. Dyer and Gowan Jones, both of El Paso, for appellees.
   HARPER, O. J.

This is an appeal from a. judgment for $1,000 and interest in an action upon a fire policy covering an automobile. The defense pleaded and the reason urged for a reversal of the judgment is that the plaintiff had misrepresented in the application that the automobile was fully paid for, when in fact only $85 of the purchase-price, $1,485, had been paid; that this was material, in that the company would not have issued the policy, had its agents known the facts.

The case was tried to a jury and submitted upon special issues. The jury found that the automobile was not mortgaged at the date of the application for the policy, and that O. B. Eads did not represent 1 to the solicitor of the defendant that the automobile had been fully paid for in cash.

The facts are that O. B. Eads purchased the automobile for $1,485, paid $85 cash, and gave his personal notes for the balance, with the understanding with the vendor that the notes should be taken in full payinent without lien; that after delivery, and before the application for insurance, he made his wife a present of the machine; that the solicitor for the insurance company approached 'the husband to take out the policy, and whatever questions were asked about the purchase of the machine were asked of him, and he testified that he was not asked the question, “Was the machine paid for?” that the only question asked was, “Is the machine mortgaged?” The solicitor testified that he asked whether the automobile was paid for, and that the answer was, “Yes;” that for that reason he did not ask about a mortgage. There is neither pleading nor proof that the application in evidence was signed by the applicant. It purports to have been signed by Mrs. Eads.

Wé therefore conclude that the solicitor simply interrogated the husband, and made the entries found upon the application, which contains the question and answer, “Is the automobile fully paid for?” Answer, “Yes.”

The court did not err in refusing to instruct a verdict for defendant, because it was a controverted question of fact whether or not any representation was made about the car being paid for, and it was also a question of fact for the jury or the court, under the testimony in this case, as to whether such a misrepresentation, if made, was material to the risk.

The other assignment is that the court erred in refusing the following special issue requested by defendant:

“Was the automobile in question fully paid for at the time of plaintiff’s application and the issuance of the policy?”

The effect of appellant’s contention under both of these assignments and propositions thereunder is that, if the solicitor had known that the insured had not paid as much as 50 per cent, of the value of the car, at least 33⅜ per cent., the company would not have issued the policy; but the testimony of defendant’s witnesses leave it in doubt whether the policy would have been issued undeV the circumstances of this case, where the automobile dealer had taken notes in full payment of the machine. So to have submitted the issue requested, and to have had it answered in the affirmative would not have made it an ultimate basis for a judgment for defendant, for the reason that the court or jury must have followed this finding with the further finding that such a misrepresentation was material to the risk, in that it probably would not have issued the policy had it possessed the knowledge, and the latter issue was not submitted, nor did defendant request its submission. Therefore it must be presumed that this the latter and ultimate issue was found in favor of the judgment of the -court as entered. Lofland v. Greenwood, 181 S. W. 517.

Finding no error in the record, the cause is affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    DURST v. BLUDWORTH et al.
    (No. 1917.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1919.
    Rehearing Denied Feb. 27, 1919.)
    1. Judgment &wkey;>698 — Conclusive,ness—Per-sons Concluded — Holder of Vendor’s Lien Notes.
    Transferee of vendor’s lien notes, who was not a party to suit between maker and former owner of land, who claimed a one-half interest therein as a homestead, was not bound by the judgment.
    2. Vendor and Purchaser <&wkey;284 —Ven-, dor’s Lien Notes — Bona Fide, Purchaser —Jury Question.
    Whether transferee of vendor’s lien notes acquired notes without notice before maturity-held for the jury.
    Appeal from District Court, Bowie County.
    Action by L. A. Durst against J. A. Blud-worth and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    O. B. Pirkey, of New Boston, for appellant.
    Geo. W. Johnson, L. C. Boswell, and R. M. Hubbard, all of New Boston, and Mahaffey, Keeney & Dalby, and C. A. Wheeler, all of Texarkana, for appellees.
   LEVY, J.

On January 3, 1913, W. R. Dudley and wife made a conveyance of 70 acres of land to C. C. Butler, and on May 23, 1913, C. C. Butler and wife conveyed the land to J. W. Fox. On July 8, 1913, J. W. Fox and wife conveyed the land to J. A. and J. G. Bludworth, taking as part of the purchase price two vendor’s lien notes, due, respectively, November 15, 1913, and November 15, 1914. The appellant brings the suit to foreclose the two vendor’s lien notes, which were sold to him, as he alleges, by J. W. Fox for a valuable consideration before maturity. The Bludworths pleaded failure of title to the land and of consideration for the notes. W. R. Dudley'and wife specially claimed a one-half interest in the land as their hoipestead, and the other defendants claimed the remaining one-half interest as innocent purchasers without notice of the alleged lien. After hearing the evidence, the court gave a peremptory instruction to the jury to return a verdict in favor of the defendants. The appellant assigns error on the ruling of the court.

Considering all the facts and circumstances in evidence, it is concluded by this court that the case as made by the record is one that should have been submitted to a jury for fact finding, and that it was error to peremptorily instruct a verdict. Whether or not tire conveyance of Dudley and wife to C. C. Butler was in fact a simulated sale of the homestead could not be assumed in the evidence. There is eviderice going to show that Dudley denied to the 'tax collector that he owned the land in 1913, and refused to pay delinquent taxes on it. It also appears that Dudley and wife paid rent on the place and gave up the possession in 1913. The suit between the Bludworths and Dudley was filed December 23, 1913, after appellant contends that he acquired ownership of the notes; and, if so, the appellant, not being a party to that suit, was not bound by it. ■ And the evidence made it a question of fact for the jury as to whether or not appellant purchased the notes without notice before maturity. It appeared that the first note was due November 15, 1913, and appellant testified he bought it “some time .the latter part of October or the 1st of November,” 1913. He further testified that he had no notice of any existing “claim of W. R. Dudley and his wife, claiming the transaction of a deed between them and O. O. Butler was the mortgage.”

The judgment is reversed, and the cause remanded for new trial.
      ®=»For other cases see sam§ topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ANDERSON v. LOCKHART.
    (No. 911.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1919.
    Rehearing Denied Eeb. 27, 1919.) ■
    1. ABATEMENT AND REVIVAL <&wkey;9 — OTHEE Action Pending.
    Trespass to try title to section 18, by L. against A., depending on whether L. got title to such land by sale thereof under judgment in suit to foreclose lien on section 19, the judgment erroneously naming section 18, is not abated by pendency of suit against L., A., and others to set aside the judgment, and for reformation and foreclosure on the proper land.
    2. Teial <&wkey;389 — Findings and Conclusions — Excuse fob Omission.
    It is no excuse, for failure of trial court to prepare and file findings of fact and conclusions of law, as required by Rev. St. 1911, art. 2070, that (appellant asked time to prepare and file statement of facts.
    3. Appeal and Ebeob <&wkey;1071(l) — Findings and Conclusions — Failuee to Peepabk and File — Effect.
    For failure of trial court to prepare and file findings of fact and conclusions of law, as re quired by R'ev. St. 1911, art. 2075, preventing assignments of error thereon, there being several affirmative defenses, calling for findings and conclusions, judgment will be reversed.
    Harper, C. J., dissenting in part.
    Appeal' from District Court, Gaines County ; W. R. Spencer, Judge.
    Action by G. E. Lockhart against T. M. Anderson. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial. >
    J. M. I-Iawltins, of Hempstead, and J. M. Whatley, of Paducah, for appellant.
    G. E. Lockhart, of Tahoka, for appellee.
   HARPER, O. J.

This suit was filed by G.

E. Lockhart against T. M. Anderson, January 23, 1918, in district court of Gaines county, in the form of trespass to try title to 120 acres of land alleged to be a part of survey 18, block A22, described by metes and bounds, situated in Gaines county, Tex.

Defendant answered by plea in abatement; the pendency of a suit in the (jistrict court of Cottle county; plea of not guilty; and specially pleaded the same facts set up in the plea of abatement hereinafter noted.

Upon hearing, the court overruled the plea in abatement and rendered judgment for the plaintiff for the land sued for. Anderson appealed, and has assigned as error the order overruling his plea in abatement.

The record discloses that August 10, 1909, defendant T. M. Anderson and wife conveyed to one Sooter 120 acres out of section 19, block A22, public school land, by metes and bounds, and retained vendor’s lien to secure unpaid purchase money, evidenced by three notes; that said Sooter conveyed the land to Smith, who assumed payment of the notes; that he (Sooter) sold two of the Anderson notes to the West Texas Supply Company, who filed suit on same in Cottle county, Tex., cause No. 578, against defendant T. M. Anderson, Sooter, Smith, and Cobb, and on April 20, 1916, took judgment for the debt and for foreclosure of the lien, but by error the judgment foreclosure was for section No. 18, block 22, instead of 19, as in the deed. Upon an order of sale issued pursuant to said judgment, the sheriff sold section No. 18 to the plaintiff in the instant case, October 3, 1916; that'as soon as it (Supply Company) discovered the mistake it filed a suit in the same court, September 22, 1917, Cottle i-county, Tex., No. 783, against T. M. Anderson, Sooter, Smith, Cobb, and the plaintiff in this suit, Lockhart, to set aside the former judgment, to reform it so that it speak the truth as to the section number, that a new judgment be rendered for its debt, and f<?r foreclosure of its lien upon the proper land. Anderson, defendant in the instant case, pleaded in the nature of plea in intervention, though not so called, adopted the plaintiff Supply Company’s allegations as to mistake, alleged that he was the owner and holder of the third note, and asked for judgment and foreclosure of lien therein provided for, and further alleged that G. E. Lockhart, ap-pellee here, became the purchaser of the land sold under the erroneous judgment at the sheriff’s sale for the inadequate price of $25; tendered this amount, and prayed that the said judgment be set aside, that he have judgment on his note and foreclosure of his lien upon section 19, as provided therein; that thereafter, to wit, January 23, 1918, the instant suit, No. 437, was filed in Gaines county in the nature of trespass to try title. The land is situated in Gaines county.

The defendants, including Lockhart, answered to the merits of the Cottle county suit. Appellant, in due order pleaded the fact of cause No. 783 pending in Cottle county in bar of this action.

Appellee’s right to recover in this case depends upon whether he got title to section 18 by his purchase at the sheriff’s sale and deed under the judgment in No. 578, and No. 783 is being prosecuted to set that aside, and appellee is a party defendant to the latter suit and has answered therein., I am of the opinion that the plea in bar should be sustained and this action dismissed (Camp v. Bank of Alpine, 195 S. W. 217; Sparks v. National Bank, 168 S. W. 48), for the reason that the two suits might result in conflicting judgments as to title to the same land, and it may prevent a multiplicity of suits. But my Brethren do not concur in this holding.

But we all concur in the holding that this cause must be reversed and remanded, because the trial court failed to prepare and file findings of fact and conclusions of law as required by Rev. St. 1911, art. 2075, upon seasonable request for same, as was made in this case. The reason appended to the bill of exceptions by the judge for not filing is that appellant asked time within which to prepare and file a statement of facts. This is no reason at all. It often becomes necessary to test the correctness of a court’s findings of fact by the statement of facts, and in this case the appellant might have been able to assign as error that the findings of the court were not supported by the evidence; and the same may be said of the conclusions of law. It is true, as urged by appellee, that it is not every case that will be. reversed for failure to file findings. See opinion of Supreme Court in Barfield et al. v. Emery, 107 Tex. 306, 177 S. W. 952, commenting upon the dissenting opinion in the same case, by Court of Civil Appeals, 156 S. W. 311. The test is in all cases: Is appellant prevented from making the proper presentation of the questions Involved in the appeal, so that the failure would operate to his prejudice? There are several affirmative defenses asserted to plaintiff’s cause of action in this case, and each call for a finding of fact by the trial judge, as well as necessitating his reaching a conclusion of law before rendering a judgment. Without these findings, where the evidence is conflicting, as in this case, appellant could not assign his errors, so that the questions might be reviewed by us.

We will briefly note some of them. It is alleged that the land sued for in this case, a part of section 18, was not the land upon which the lien foreclosed existed, but that it was a part of section 19, and that the records of Gaines county, where the land was situated, showed that fact at the time of purchase, and that appellee had notice thereof when he made his purchase at sheriff’s sale under the judgment in Cottle county. It is further charged that there were erasures and mutilations of the order of sale unaccounted for, and of this appellee had notice when he purchased, and that $25 for 120 acres of land was a grossly inadequate price, and the amount was tendered to appellee. An adverse finding upon either of these questions should preclude a recovery by appellee, and we cannot review them without assignments of error from appellant.

There are other assignments; but, if error is presented by them, they are not likely to recur upon another trial, so are not discussed.

For these reasons, the cause must be reversed and remanded for a new trial.
      &wkey;jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes