author: HALL, J.

text:
    POTTER COUNTY v. BOESEN.
    (No. 1094.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1917.
    Rehearing Denied Feb. 7, 1917.)
    1.' Newspapers <©=>2 — Contract with County — Publication op Delinquent Tax List —Pleading.
    Where a county contracted to pay a publisher 25 cents per description for publishing the county delinquent tax list, payments to be made as delinquent taxes were paid into the hands of the tax collector, the amount was due and payable within a reasonable time after publication, and, in the publisher’s action, it was not necessary for him to allege that any of the delinquent taxes had been paid to the county.
    [Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <©=>2.)
    2. Newspapers <©=2 — Contract with County-Publication op Delinquent Tax List —Pleading.
    The amount being due as a matter of law within a reasonable time, the county’s failure to collect the taxes was a fact not necessary to be alleged.
    [Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <S=>2.)
    3. Newspapers <S=2 — Contract with County-Publication op Delinquent Tax List —Remedy op Purchaser — Mandamus.
    Where the amount due the publisher was payable out of the fund set aside for the current expenses of the county, it having failed to make collection within a reasonable time, the publisher was not required to await the collection of the delinquent taxes, penalties, and costs, nor resort to mandamus proceedings to compel the county officers to collect such taxes.
    [Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15: Dec. Dig. <©=2.)
    4. Newspapers <S=>2 — Contract with County-Construction by Parties.
    The publisher’s act in receiving fees from the collector from time to time as taxes were collected could not be considered a practical construction of the contract with reference to the time of its maturity in his action to recover for publication of the list.
    [Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <©=2.)
    5. Counties <©=>53 — ContractaReformation.
    Neither the county nor the publisher could have the contract reformed in the district court in accordance with the expressed intention of the parties when it was made, because the commissioners’ court of the county was a court of record, speaking through its minutes, and not by the mouths of its members, and the proper method to reform the contract was to reform its minutes by motion in the court, and not by allegation and proof in another tribunal.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 66-70; Dec. Dig. <©=>53.)
    6. Newspapers <S=>2 — Contract with County-Estoppel.
    The publisher of a county’s delinquent tax list of about 14,000 items, pursuant to contract, at 25 cents per description, was not es-topped from claiming the contract price because a reasonable compensation for making the publication was a sum not exceeding $1,000.
    [Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <©=>2.)
    7. Counties <©=>113(4)— Delinquent Tax List — Publication—Contract por — Statutes.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7687, provides for the publication of delinquent tax lists by counties and that a fee of 25 cents shall be taxed against each tract or parcel of land advertised, which when collected shall be paid into the county treasury. Article 7691 defines the fees which shall be collected by the several county officers in event of suit, and provides that, where two or more unimproved town lots shall belong to the same person, and shall be included in the same suit, court costs shall be taxed against all such lots collectively. Held, that the commissioners’ court of a county had the right to contract to pay for publication of its delinquent tax list 25 cents per description, and that the publisher’s recovery against the county was not limited by the provision of article 7691; it having no bearing on the matter oí contract for publishing the delinquency list.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 178; Dec. Dig. <©==>113(4).)
    8. Newspapers <S=>2 — Contract with County-Publication op Delinquent Tax List —Action por Price — Proop.
    In an action against a county by the publisher of its delinquent tax list whom the county had contracted to pay 25 cents per description, payment to be made as delinquent taxes were paid the tax collector, proof of the _fact that by the exercise of reasonable diligence the taxes could have been collected was not essential.
    [Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dee. Dig. <S=>2.)
    9. Contracts <©=>176(10) — Time por Performance — Question op Law and Fact.
    The general rule is that it is a mixed question of law and fact as to what constitutes a reasonable time for the performance of a contract when no time is fixed by its terms.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 956, 979; Dec. Dig. <©=176(10).}
    10. Evidence <©=>41 — Judicial Notice.
    The court judicially knows that there are four terms of the district court held in Potter county annually, and that suits for the collection of delinquent taxes have precedence upon the trial of causes, when executions could have been issued on judgments, and when sales could have been made.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 56-60; Dec. Dig. <©=>41.)
    11. Action <©=>G2 — Premature Filing — Effect op Amendment.
    Where a suit was prematurely brought, but plaintiff filed an amended petition two days after the cause of action matured, it was the duty of the trial court to tax all costs prior to the filing of the amendment to plaintiff, and to proceed to judgment, rather than to dismiss the case because originally filed prematurely.
    [Ed. Note. — For other cases, see Action, Cent. Dig. ■§§ 718-721, 723; Dec. Dig. <®=>62.)
    12. Counties <©=>216 — Rejection op Claim Before Maturity — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1366, providing that no county shall be sued unless thq claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance, and such court shall have neglected or refused to audit and allow the same or any part thereof, a claim against a county for publishing its delinquent tax list could be presented to the county commissioners’ court for allowance before maturity, and could be allowed by the court as a valid claim and paid at a later date when it matured, so that its rejection entitled the claimant to file suit before maturity under the same rule.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 346; Dec. Dig. <⅞=⅛16.]
    Appeal from District Court, Potter County; William Boyce, Special Judge.
    Action by P. E. Boesen against Potter County. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    M. J. R. Jackson, Ray C. Johnson, and C. E. Gustavus, all of Amarillo, for appellant. Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellee.
   HALL, J.

Appellee, Boesen, filed his original petition in this case August 13, 1913. It was tried upon a second amended original petition, filed April 24, 1916. As stated in the opinion upon the former appeal, reported in 173 S. W. 462, the action was to recover compensation for the publication in the Amarillo Weekly Herald of the delinquent tax record of Potter county for the years 1885 to 1905, inclusive, amounting to the sum of $3,-425. The contract between appellant and ap-pellee contained this stipulation:

“Payment for publication to be made as delinquent taxes are paid into the hands of the tax collector.”

Appellee alleged in the alternative that various periods from two up to and including eight years after the publication of the delinquent tax record constituted a reasonable time within which appellant could have performed the contract by causing the delinquent taxes to he collected. It is alleged that the claim for compensation for publishing such list was presented to the commissioners’' court of appellant county, and rejected on August 12, 1913, and that this suit was filed the next day.

Appellant answered by general demurrer, general denial, and special answers, some of which were stricken out upon demurrer, and the case submitted to a jury on three special issues, as follows;

“No. 1. State whether or not the plaintiff, P. E. Boesen, within a reasonable time after the making of the contract above set forth, correctly published said delinquent tax list in the Amarillo Weekly Herald, a weekly newspaper published in Potter county, Tex., for three consecutive weeks? Your answer to this issue will be ‘He did,’ or ‘tie did not,’ as your hading may be.”
The jury answered: “He did.”
“No. 2. You will, from all the facts and circumstances introduced in evidence, determine and say whether a reasonable time has elapsed from and after the publication of the delinquent tax record, if you find it was published, within which collection of the delinquent taxes referred to in said record should have been paid. Your answer to this issue will be ‘It has,’ or ‘It has not,’ as you may find. If you answer this issue in the negative, you need not answer the third special issue submitted.”
The jury answered: “It has.”
“No. 3. If in answer to the foregoing special issue you find that a reasonable time has elapsed, 'then you will determine and fix the date of the expiration of such reasonable time within which such delinquent taxes should have been collected from and after the date of such publication, and will state in yojir answer to this issue the date that you so find. Your answer to this issue will be given by simply stating the specific date of the expiration of such reasonable time as you may find the same to be.”
The jury answered: “April 22, 1916.”

The first assignment is that the court erred in overruling the defendant’s general demurrer, and urges as the first proposition that the petition was insufficient because the contract of employment was conditioned that appellee should be paid for his services as delinquent taxes • were paid into the hands of the tax collector, and such payments were conditions precedent to any liability of appellant, and no allegation appeared in the petition that payments had been made.

We held in our former opinion, and still hold, that the amount claimed was due and payable within a reasonable time, and therefore it is not necessary to allege that any of the delinquent taxes had been paid to the county.

By the second proposition appellant insists that the petition was insufficient because the contract pleaded and made the basis of recovery stipulated for payments to be made from a definite source and from funds received in the collection of delinquent taxes and contained no allegations of failure or default on the part of appellant as to the collection of such taxes, and without such allegations no obligation of appellant would arise to make payment to appellee within a reasonable time. The amount being due ,as matter of law within a reasonable time, the failure of appellant to collect the taxes was a fact not necessary to be alleged. Under the law appellant owed the duty to appellee to make collection within a reasonable time, and appellee's right of recovery depends upon the lapse of a reasonable time, and not upon the fact of collection.

By the third proposition appellant insists that appellant is not liable for the negligence of its officers or for their failure or omission to discharge their duties, and that appellee’s recourse was to mandamus and require the county officials by legal proceedings to discharge their official duties. We think the amount due appellee was payable out of the fund set aside for the payment of the current expenses of the county. This being the case, of course, appellee should not be required to await the collection of the delinquent taxes, penalties, and costs. As a matter of law, his debt being matured within a reasonable time, he was not required to resort to mandamus proceedings. Appellee’s suit against the county-is not based upon the negligence of its officers, but upon a contract wfiicli tfie jury found matured April 22,1916.

Tfie action of tfie court in sustaining the plaintiff’s general demurrer to certain paragraphs of tfie defendant’s second amended original answer is made the basis of the second assignment. Tfie first proposition under this assignment is, in effect, that the contract between tfie parties with reference to the time and manner of payment and as to any direct and personal liability of tfie county was ambiguous, indefinite, and uncertain, and appellant’s allegations in tfie third paragraph of its answer of such ambiguity and uncertainty, and of tfie negotiations leading up to the making of tfie contract, and of tfie interpretation, construction, and action of tfie parties thereon, subsequently were proper matters of defense. In tfie third paragraph of the answer it is alleged, in substance, that the contract provides no definite and certain time for payment, and tfie provision that payment for publication should be made as delinquent taxes were paid into tfie hands of tfie collector means, and was understood by tfie members of the court and plaintiff to mean, that payments for such work were to be made to plaintiff out of, from, and as tfie fees of 25 cents “per description” were collected from such delinquent tax list; that plaintiff appeared personally before tfie commissioners’ court, and in tfie negotiations it was contemplated, agreed, and understood by plaintiff and tfie court that, in consideration of tfie allowance to plaintiff of the legal maximum of 25 cents per description for publishing said delinquent tax list, tfie reasonable cash consideration for such publication being not exceeding tfie sum of $1,000, which last-named amount defendant’s current revenues were insufficient to pay, as plaintiff well knew and understood at tfie time, no legal charge, liability, or responsibility on tfie part of the defendant to pay plaintiff any amount accruing for such publication would arise in any manner except and unless the funds for such payment would accrue and accumulate from tfie collection of such delinquent tax list of the said sum of 25 cents per description, and that then and in that event only as the funds accumulated from such source the same would be paid over to plaintiff. It is further alleged in tfie third paragraph that plaintiff and defendant so recognized, construed, and acted upon tfie terms and provisions of said contract for many years afterwards, defendant paying to plaintiff from time to time tfie said 25 cents per description as collected which was accepted by plaintiff after he had checked up the reports of the tax collectors and verified tfie same, that tfie proposition and acceptance constituting the contract does not correctly and accurately speak tfie real agreement and contract between tfie parties, and that tfie omission of proper terms, provisions, and stipulations in said proposition and acceptance were left out and omitted through the mutual mistake of plaintiff and defendant, and through accident in not clearly and properly expressing tfie terms of the contract and agreement, and it asks that tfie contract be reformed so as to properly and correctly embody and express tfie true agreement between them.

Tfie substance of tfie contention under tfie first proposition of tfie second assignment is that tfie practical construction of tfie contract by tfie parties as alleged should govern, and tfie fact that appellee had from time to time accepted such fees of 25 cents, as they were collected, rebuts tfie idea that tfie contract should mature within a reasonable time. Tfie act of appellee in receiving from the tax collector tfie fees of 25 cents from time to time must not be considered as a practical construction upon' his part of tfie contract with reference to the time of its maturity. He was entitled to his compensation as soon as it could be collected, but it does not follow that by accepting it as it was collected fie would not be entitled to insist upon tfie collection and tfie payment to him of tfie whole amount due within a reasonable time.

It is further insisted under this assignment that the allegations with reference to mutual mistake in the formation of tfie contract and tfie effort on the part of tfie appellant to have tfie same reformed in accordance with tfie expressed intention of tfie parties at the time tfie contract was made were proper matters of defense, and that tfie demurrer should not have been sustained to it. Tfie case of Gano et al. v. Palo Pinto County, 71 Tex. 99, 8 S. W. 634, was one in which tfie appellants alleged that in tfie formation of tfie contract with P'alo Pinto county a material term was omitted, and they sought to reform tfie contract and make it correspond with tfie understanding at tfie time it was entered upon the minutes of the court. Gaines, J., said:

“It seems to us that it was the duty of Yeal, Haynes, and Corutfiers to look to tfie order as actually entered before beginning tfie discharge of the work, and if the contract, as set forth in the entry, was not in accordance with the terms of their offer, to decline to proceed until it was properly corrected. The commissioners’ court is a court of record, and speaks through its minutes, and not by the mouths of the members of the body. The proper method to amend the minutes when they fail to speak the truth is by a motion made in that court, and not by allegation and proof in another tribunal in which a litigation concerning its orders may arise.”

We think this holding would preclude appellant equally with appellee from having tfie contract reformed in tfie district court.

Appellant further contends under this assignment that, because a reasonable compensation for making tfie publication was a sum not exceeding $1,000, that appellee, by agreeing to accept 25 cents per description, is estopped from claiming any such sum. -We do not assent to this contention. There is no element of estoppel in it; it is simply a question of contract.

The fourth proposition under this assignment is that under the statutes of this state appellant could not make a valid contract with appellee for the payment of more than 25 cents per tract for publishing said list; and where two or more unimproved lots are owned by the same person, a tract under the statute -consists of ten or less of such lots. Appellant alleged, in substance, that the delinquent tax record of the county had already been prepared at the time the contract between the parties was entered into; that plaintiff saw and examined such record and was familiar with it, and that the record showed that a large per cent, of the taxes delinquent were assessed against town lots in the city of Amarillo, in said county, and that the assessment had been made against such lots separately, many of them against unknown owners; that in truth and in fact most of said town lots were vacant and unimproved property, and in numerous instances the same person owned two or more of said lots, whereby a suit for the collection of such taxes would involve many lots in the same action against the same person; that under the law the commissioners’ court was not authorized to pay more than 25 cents per tract for the publication of such list, and, as de- , fined by the statute, a tract with reference to unimproved town lots meant two or more of such lots, not exceeding ten. Wherefore the plaintiff was not entitled to recover, if at all, the full amount sued for. The statutory provisions upon which this paragraph of the answer is founded are contained in articles 7687 and 7691, Vernon’s Sayles’ Civil Statutes. The first of these articles requires the commissioners’ court to cause the publication of the delinquent tax list. Baldwin v. Travis County, 40 Tex. Civ. App. 149, 88 S. W. 480. By way of reimbursement to the county it is provided in the article that a fee of 25 cents shall be taxed- against each tract or parcel of land advertised, which, when collected, shall be paid into the county treasury. This article also limits the power of the commissioners’ court to contract for the publication of such list to not exceeding 25 cents for each tract. The effect of this article is to make it the duty of the commissioners’ court to publish the list at all events and at any price obtainable, not to exceed 25 cents for each tract or parcel of iand so advertised. In the light of these provisions, we think the commissioners’ court had the right to make the contract sued upon, and that appellee’s recovery is not limited by the provisions contained in the second article referred to, as follows:

“Provided, that where two or more unimproved city or town lots belonging to the same person and situated in the same city or town' shall all be included in the same suit and costs, except those of advertising, which shall be twenty-five cents for every ten lots, or any number less than ten, taxed against them collectively just as if they were one tract or lot.”

Suppose an extensive addition to any city lying within the city limits and made up almost entirely of unimproved lots belonged to one person, and that the taxes were delinquent upon the entire addition; it would be a difficult matter for the commissioners’ court to secure a contract with any publisher to publish a list of such lots for a fee of 25 cents for each tract of ten lots, and the legislature evidently had such a condition in mind when the first article was enacted. The first article relates exclusively to the matter of publishing the list and the details incident to its publication, and the proof'of such publication.

Article 7691 defines the fees which shall be collected by the several county officers in the event of a suit, and the provision that, where two or more unimproved town lots shall belong to the same person, they shall be included in the same suit, in effect declares that the court costs shall be taxed against all such lots collectively. This proviso, in our opinion, has no bearing whatever upon the matter of the contract for publishing the list. That part of the provision directing that the costs, “except those of advertising, which shall be twenty-five cents for every ten lots, or any number less than ten,” simply limits the authority of the court to tax up as court costs against the owner of the lots more than 25 cents per tract of ten lots or less, and has no connection whatever with the provision in article 7687 for the taxation of a fee of 25 cents per tract, or parcel, as cost of publication. The court did not err in sustaining the demurrer.

Appellant assigns as error the action of the court in refusing to instruct a verdict in its favor, and insists that there was not sufficient testimony to show that the delinquent taxes could have been collected by the exercise of reasonable diligence at the time appellee’s claim was presented to and rejected by the commissioners’ court. As held by Eidson, J„ in Baldwin v. Travis county, supra, article 7687, Revised Statutes 1911, requires the commissioners’ court to make publication of the list, and this would seem to be regardless of whether any of the taxes are ever' collected. In obedience to this statute publication was made in the instant case, whereupon appellee’s rights under the contract attached. There was evidence from which the jury could have found that by the exercise of reasonable diligence the taxes could have been collected, but the proof of this fact was not essential. Two attorneys were introduced as witnesses, one of them testifying that five or six 'years was a reasonable time in which the taxes might have been collected. The other testified that collection might have been made within eight or ten years, but on cross-examination stated that in the suits he had been filing there had not been a single contest, and, assuming that there were 14,000 suits to be filed, that, if no contests were filed and no trial had, there would be nothing to prevent taking judgment at the first term of the court, and that his statement that it would take eight or ten years to make the collections was based upon the understanding that there were over 14,000 suits; that if after the institution of the suits a number of the defendants should pay up, it would not be necessary to sue many more, and if a large number of the tracts could be included in one suit, the number of suits would, of course, be reduced, and his estimate of the time required to enforce the collection would be reduced accordingly.

The general rule is that it is a mixed question of law and fact as to what constitutes a reasonable time for the performance of a contract when no time is fixed by its terms. Some of the authorities hold that it is always a question of law, and others that it is always a question of fact. The better rule seems to be, however, that it is a question of fact for the jury unless there is no controversy over the facts, when it is a question of law for the court. Hart v. Bullion, 48 Tex. 279; 6 R. C. L. p. 896, § 283; Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372; Williams v. Powell, 101 Mass. 467, 3 Am. Rep. 396; Lewis v. Worrell, 185 Mass. 572, 71 N. E. 73; Loeb v. Stern, 198 Ill. 371, 64 N. E. 1043; 2 Elliott on Contracts, § 1550; Cotton v. Cotton, 75 Ala. 345; Luckhart v. Ogden, 30 Cal. 547; Attwood v. Clark, 2 Me. (2 Greenl.) 249; Hill v. Hobart, 16 Me. 164; Echols v. New Orleans & R. Co., 52 Miss. 610; Turner v. Snyder, 139 Mo. App. 656, 123 S. W. 1050; Wright v. Bank of the Metropolis, 110 N. Y. 237, 18 N. E. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356n; Hedges v. Hudson River R. Co., 49 N. Y. 223.

The undisputed facts are that there were 14,800 different lots, but in many instances a considerable number of the lots belonged to the same owners. The court judicially knows that there are four terms of the district court held in Potter county annually; that suits for the collection of delinquent taxes have precedence upon the trial of causes. The court could also have taken judicial notice of when executions could have been issued upon the several judgments and when sales could have been made. Under these circumstances, we are inclined to the opinion that the question of reasonable time was one of law rather than of fact. We do not, however, base the decision of this question upon that rule.

Accepting the finding of the jury that a reasonable time for the performance of the contract on the part of'the county expired April 22, 1916, by reason of which the suit was prematurely brought, still it appears that the appellee’s amended petition was filed April 24, 1916, and under the authorities in this state it was the duty of the trial court to tax all costs' prior to the filing of the amendment against appellee, and to proceed to judgment rather than dismiss the case because it had originally been filed prematurely. 1 Ruling Case Law, p. 340, § 21; Culbertson v. Cabeen, 29 Tex. 254; Cox v. Reinhardt, 41 Tex. 594; Dalton v. Rainey, 75 Tex. 516, 13 S. W. 34; Burns v. True, 5 Tex. Civ. App. 74, 24 S. W. 339.

When the claim was presented to the commissioners’ court, an order was entered which is in part as follows:

“The court having heard the evidence and argument upon said claim is of the opinion that said claim and offer of compromise and settlement should be rejected, and it is so ordered.”

Article 1366, Vernon’s Sayles’ Civil Statutes, ptovides that no county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance and such court shall have neglected or refused to audit and allow the same or any part thereof. The statute does not provide, nor do we see any sound reason for holding, that a claim could not be presented to the court for allowance before its maturity. It may be allowed by the court as a valid claim and paid at a later date when it matures. The rejection of the claim by the commissioners’ court, under the general rule, entitled appellee to file suit immediately. In any event we think the assignments insisting that the court should have dismissed the action because it was prematurely brought should all be overruled.

We find no reversible error, and the judgment is affirmed.

BOYCE, J., not sitting.
      ®=wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    CALVIN et ux. v. NEEL.
    (No. 8457.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 18, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Trial <§=»352(8) — Verdict—Signature or Foreman.
    Where special interrogatories were submitted to the jury, which, on its return, was questioned by the judge as to whether the answers written were severally the answers of each juror to the respective questions, to which they replied in the affirmative, the mere fact that after the discharge of the jury it was discovered that the foreman had signed his name on the back of the charge below the file mark of the clerk, instead of immediately below the questions and answers, did not present reversible error.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 845; Dec. Dig. ⅞^352(8).]
    2. Appeal and Error <®=»854(1) — Scope of Review — Reason for Decision.
    The fact that several reasons are given by the court for the verdict rendered, and that some of them are not supported by the record, will not render the judgment bad if it can be sustained by other reasons given. ■
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3410; Dec. Dig. @=oS54(l).]

      S. Judgment <§=>256(1) — Conformity to- Ver-D1CT.
    It is the court’s duty in rendering judgment to follow the jury’s.-verdict and conform to it.
    [E'd. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 446, 454; Dec. Dig. <§=>256(1).]
    4. Trial <§=>232(2) — Instructions.
    In an action on a note secured by deed of trust, wherein defendants pleaded homestead exemptions, and the cause was submitted on special interrogatories, a requested instruction that if defendants had possession of the property such possession would be notice to the plaintiff of the homestead rights, and if defendants were only temporarily absent, if they l$ft their household goods in whole or in part on the premises, they still had possession, was properly refused, since it did not contain a request for submission of a special issue nor reference to ordnstructions to guide the jury in answering any issue submitted.
    [Ed. Note. — Eor other cases, see Trial, Dec. Dig. <§=>232(2).]
    5. Appeal and Error <§=218(2) — Preservation of Exceptions — Submission of Issues.
    In a case submitted on special issues, if the form of d question submitted is insufficient to require the finding of necessary facts, counsel should request in writing a finding of such additional facts, and, in- the absence of such request, the imperfect submission of an issue will not be ground for reversal of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1320, 1321, 1323; Dec. Dig. <§=>218(2); Trial, Cent. Dig. § -875.]
    6. Appeal and Error <§=218(2) — Right op Homestead — Findings—Request.
    In an action on a note secured by deed of trust, which recited that the makers’ homestead was outside a certain city, and their answer-pleaded homestead rights within such city, the jury’s findings that at the time of execution of the note and trust deed the premises did not constitute their home, and that they did not reside thereon, but had moved to another place with the intention of making it their homestead, were sufficient, in the absence of request for other findings, to sustain judgment denying the homestead right.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1320, 1321, 1323; Dec. Dig. <®=>218(2); Trial, Cent. Dig. § 875.]
    7. Trial <§=>232(2) — Right op Homestead — Instructions.
    Where defendants’ right to homestead was submitted on special issues, refusal of requested instruction that if the family goes away from the homestead without intention not to return to live thereon as a home, there is no abandonment, was properly refused.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. <§=>232(2).]
    8. Homestead <§=13 — Right op Homestead —Two or More Places.
    A party cannot claim a homestead right in two separate and distinct premises.
    [E'd. Note. — For other cases, see Homestead, Cent. Dig. § 14; Dec. Dig. <§=>13.]
    9. Homestead <§=164 — Abandonment.
    While temporary absence from home or the renting thereof without intention to abandon will not deprive the owner of homestead rights, moving away with intention of making a new place a homestead and the adoption as such, destroys homestead rights in the- first premises.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 327,. 328; Dec. Dig. <§=164.]
    10. Homestead <§=181(2) — Abandonment — Evidence — Admissibility.
    In an action on a note secured by trust deed to the premises to which defendant claimed a homestead right, where the evidence showed that he _ had previously left such premises, and he claimed he intended to return, a certified copy from the general land office of the application of defendant to purchase land, wherein it was recited by his affidavit that he desired to purchase land to make a home, was admissible.
    [Ed. Note. — For other cases, see Homestead,' Cent. Dig. § 351; Dec. Dig. <§=181 (2).]
    11. Homestead <§=181(3) — Abandonment — Evidence — Sufficiency.
    Evidence held sufficient to show abandonment of homestead by defendant in action on note secured by trust deed to the premises in question.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 353; Dec. Dig. <§=181(3).]
    12. Homestead <§=177(2) — Right to Homestead-Estoppel. ■
    A husband and wife may be estopped from asserting homestead rights by representations made to induce the conveyance of, or the incum-brance upon, the property sought to be impressed with the homestead character, where such premises are not occupied at the time as a homestead.
    [E’d. Note. — For other cases, see Homestead, Cent. Dig. §§ 345, 346; Dec. Dig. <§=177(2).]
    13. Principal and Agent <§=23(1) — Evidence op Relationship — Sufficiency.
    Evidence held to show relationship of principal and agent so as to bind the principal for money borrowed by the agent for the principal’s use.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. <§=23(1).]
    14. Acknowledgment <§=62(2) — Execution —Fraud—Evidence.
    Where the notary who took acknowledgments to a trust deed testified that he read over and explained to the signers the instrument in question and the acknowledgment thereto, the court is not justified in holding that a signer did not understand it or that any undue influence or fraud induced the signatures.
    [Ed. Note'. — For other cases, see Acknowledgment, Cent. Dig. § 346; Dec. Dig. <§=62(2).]
    Appeal from District Court, Tarrant County ; R. B. Xoung, Judge. .
    Action by Mrs. L. K. Neel against James C. Calvin and wife. Judgment for plaintiff, and defendant Mrs. Lucy Calvin appeals. ■
    Affirmed.
    W. R. Sawyers, Harris & Burton, and Theodore Mack, all of Ft. Worth, for appellant. Stanley Boykin, of Ft. Worth, for appellee.
   BUCK, J.

Appellee sued on a note for $1,200, dated December 13, 1911, payable to the order of plaintiff, and executed by J( C. Calvin and wife, Mrs. Lucy Calvin; said note being secured by a deed of trust on lot D, block 1, Lewis subdivision of block 1, Jennings south addition to the city of Ft. Worth. Defendants pleaded the homestead exemption, and the cause was submitted to a jury, the questions and answers thereto being hereinafter set out, to wit:

“First Question: At the time the note and deed of trust herein sued upon were executed by the defendants, was the property described in said deed of trust, the homestead of defendants?
“Answer: No.
“Second Question: At the time the note and deed of trust sued upon herein were executed, were the defendants residing on the premises described in said deed of trust?
“Answer: No.
“Third Question: If in answer to question 2 you should state that the defendants had moved away from the property described in said deed of trust and were living elsewhere, then you will state whether or not the defendants at the time of executing the deed of trust herein sued upon were living at another place, and you will state whether or not the defendants moved to some place other than said premises with the intention of making said other place their homestead.
“Answer: Yes.
“Fourth Question: Was Noel Calvin acting for the defendants in securing said loan, and was he authorized by the defendants to do what he did in relation thereto?
“Answer: Yes.
“Fifth Question: At the time of the execution of the note and deed of trust herein sued upon and at the time same was received and accepted by R. G. Johnson, did the said R. G. Johnson believe:
“(a) That the premises therein described were not the homestead of the defendants? and if he did believe such.to be a fact,
“Answer: Yes.
“(b) Was he induced to so believe by the acts and representation's of the defendants or their duly authorized agent?
“Answer: Yes.
“Sixth Question: At and prior to the time that R. G. Johnson accepted and received the note and deed of trust sued on herein, had he used such diligence as a careful and prudent person would have used under the same or similar circumstances to ascertain whether or not the premises described in said deed of trust were at the time of the execution of said note and deed of trust and at the time same was received and accepted by the said R. G. Johnson, the homestead of the defendants (if you should find that said premises at said times was the homestead of the defendants and claimed by them as such)?
“Answer: Yes.”

Upon this verdict the court entered judgment for plaintiff, and defendant Mrs. Lucy Calvin has appealed.

The evidence shows that the premises involved had been used by the defendants for many years as a homestead, but that for about two or three years prior to the date of the deed of trust, and for some six years prior to the trial, Mrs. Calvin had been staying at the farm of her mother several miles east of Ft. Worth. She testified that she first went out there in 1909, to take care of the place while her mother was visiting in Mexico, and upon the latter’s return she remained to take care of her mother, who was quite old and feeble. During a major portion of the time Mrs. Calvin was residing with her mother, the premises involved in this suit were occupied by tenants. There is some evidence that some of the furniture belonging to the Calvins remained on the premises, either in a room reserved or in the barn. Mrs. Calvin testified that she had always regarded and claimed the house and premises in Ft. Worth as her home, and there is some evidence that at various times during these years she had expressed to others her intention to return to this place. In December, 1911, Noel Calvin, the adult son of Mr. and Mrs. Calvin, desired to embark in business in the city of Ft. Worth, and applied to Robt. G. Johnson, an attorney and the agent of appellee, to secure a loan of $1,200 for said purpose, stating that his mother and father would give a deed of trust on the premises described hereinabove, and would sign the note for the amount desired. It seems that Judge Johnson went to the house occupied by defendants’ tenant and talked to a lady, apparently in charge, and received the information that she was occupying said premises as the tenant of Mrs. Calvin, and that the latter lived on a farm in the country. He then prepared a deed of trust, and wrote therein the stipulation that “our homestead is outside the city of Ft. Worth.” A notary, accompanied by Noel Calvin and his wife, went to the farm where Mr. and Mrs. J. C. Calvin were living, - and secured the signatures and acknowledgments of both. The notary testified that Mr. Calvin was not present at the taking of Mrs. Calvin’s acknowledgment, and that before he took the same he read over the instrument to her, and explained it to her; that Mrs. Calvin did not make any objection to signing the instrument, nor did Mr. Calvin; that while at the house he asked Mrs. Calvin to list the farm with him for sale, he being a real estate agent, and that she replied that it had been her home for a number of years and that they would not part with it at any price; that she further stated that she was doing this (i. e., executing the instrument) to help her son. The evidence shows that the farm was in fact the community property of Mrs. Calvin’s mother and her deceased husband, and that Mrs. Calvin had a child’s interest therein. There was further evidence that during the years 1911 and 1912, the minor children of Mr. and Mrs. Calvin attended the public schools in the district in which the farm was located.

In her first assignment, appellant urges that the court erred in rendering judgment for plaintiff, because, as asserted, there was no legal verdict of the jury in said case, the same not having been signed by the foreman. It appears that when the jury returned the verdict into court, the trial judge, before the jury were discharged and while they were in the jury box, read aloud to them each question that had been propounded and the respective answers thereto, and asked them if such was their answer to each of said questions, and that each time the jury replied that it was their answer, and that then, after reading all of the questions and answers, the court asked them if the entire answers constituted their verdict, and the jury replied in the affirmative. That after the jury was discharged, it was discovered that the foreman had signed his name on the back of the charge below the file mark of the clerk, instead of immediately following the questions and answers. We hold that no reversible error is here presented. In Burton v. Bondies, 2 Tex. 204, it is held that it is not essential to the validity of a verdict that it be signed by the foreman, or by any member of the jury. If it be shown that the verdict returned was in fact the answer or answers of the jury to the issues or questions submitted, the verdict will be sustained, even though not signed. Douglas v. Baker, 79 Tex. 507, 15 S. W. 801; Dunlap v. Raywood, R. O. & M. Co., 43 Tes. Civ. App. 269, 95 S. W. 44; Cookville Coal & Lumber Co. v. Evans, 135 S. W. 750. Therefore appellant’s first assignment will be overruled, and also the ninth, which presents in part the same question.

The judgment recites as follows:

“The court is of the opinion that the plaintiff is entitled to a judgment in her favor for the following reasons: (1) That the undisputed evidence upon the trial shows as a matter of law the defendants should be, and are, estopped from setting up the defense of homestead as against a deed of trust lien claimed by the plaintiff; and (2) if the court be mistaken in its conclusion as above given, then the court concludes that the plaintiff is entitled to a judgment as prayed for by reason of the answers of the jury to the special issues submitted to them as follows: [Then setting out the charge of the court and the answers of the jury to the special issues submitted.]”

The fact that several reasons are given by the court for the verdict rendered, and that some of such reasons are not supported by the record, will not render such judgment bad, if it can he sustained by other reasons given. 4 C. J. § 2557, and cases there cited.

In any event, it was the duty of the court in rendering judgment to follow the verdict of the jury. The verdict -forms the basis of the judgment, and hence the judgment must conform to the verdict. Ablowich v. Greenville National Bank, 95 Tex. 429, 67 S. W. 79, 881, and eases cited iñ 11 Encyc. Dig. Texas Reports, 61.

In her second assignment, appellant urges error in the refusal of the trial court to give her tendered charge as follows:

“You are instructed that if the defendants in this case had possession of the property sought to be foreclosed on, that such possession would be notice to the plaintiff, or her agent, of the homestead rights of defendants at the time of the execution of the deed of trust in question, and if you find from the evidence in the case that defendants were only temporarily absent from the home and property in question, yet if they left their household goods in whole or in part, on said premises, then that would constitute possession.”

The ease having been submitted to the jury on'special issues, • and the tendered charge not containing a request for the sub- , mission of a special issue, nor containing any reference to, or instructions to guide the jury in answering, any particular issue submitted, we think the court -properly refused to give the special charge requested.

In a case submitted on special. issues, if the form of a question submitted in a certain issue is insufficient to require the finding of the necessary facts, counsel should request in writing a finding of such additional facts. In the absence of such request, the imperfect submission of an issue will not be ground for a reversal of the judgment. York v. Hilger, 84 S. W. 1118. While in case of a special verdict, it is proper for the court to give such definitions and such special instructions as may enable the jury to answer the question submitted intelligently and with due reference to the legal principles involved, yet when such instructions are submitted, the jury should be directed therein to the issues of fact to which such instructions are applicable. Otherwise such instructions will confuse rather than enlighten the jury, and be violative of the rule that a general charge should not be given in a case submitted on special issues. Article 1984a, Vernon’s Sayles’ Texas Civil Statutes'; Bridgeport Coal Company v. Wise County Coal Co., 44 Tex. Civ. App. 369, 99 S. W. 409; Hengy v. Hengy, 151 S. W. 1127; Pacific Express Co. v. Rudman, 145 S. W. 268; Pullman Palace Car Co. v. Hocker, 41 Tex. Civ. App. 607, 93 S. W. 1009; Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638, 641.

The jury, in response to issues 1 to 3, inclusive, found that at the time of the execution by defendants of the note and deed of trust in question, the premises described in plaintiff’s petition did not constitute the home of the defendants, that defendants at that time did not reside on said premises, that they were living elsewhere, and that they had moved to some other place than said premises with the intention of making said other place their homestead. These answers, especially in the absence of a request by defendants for other findings on the issues involved, we hold are sufficient to sustain the judgment denying defendants’ claimed homestead rights. Boehm v. Beutler, 16 Tex. Civ. App. 380, 41 S. W. 658. Especially is this true, in view of the recital in the deed of trust executed by the defendants that the homestead claimed by them was not in the city of Et. Worth; and, perforce, could not be the premises de: scribed. Moerlein v. Mortgage & Investment Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948; Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301. The issue of possession of the premises was not submitted, but only the question of the use- of the premises as a homestead. Therefore the second assignment is overruled.

We think what we have said above with reference to the second assignment applies, in the main, to the third specification urged, to wit, that the court should have given the following instruction:

“Gentlemen of the jury: You are instructed that the going away from a homestead by the family, unless coupled with the intention by them not to return to live thereon as a home, is not abandonment of the homestead.”

In answer to the third issue submitted, the jury found that the defendants moved to some place other than the premises described with the intention of making said other place their homestead. We do not understand it to be 'the law that a person may claim residential homestead exemptions or rights in two separate and distinct premises. While it is true that a temporary absence from the home, or the renting thereof, without the intention of abandoning it as a homestead, will not. deprive the owner of homestead rights, but the moving away from the former homestead to another with the intention of making the latter the new homestead, and the adoption of it as such, will destroy the homestead rights in the former premises. Hence, even though it should be argued that this charge, containing no reference to any issue submitted, complies with all the requirements as to charges in special issue cases, which we are not prepared to concede, yet in the instant case the jury in answer to special issue No. S answered adversely to appellant the substance and essence of the question presented in the tendered charge.

The fourth assignment complains of the admission, over the objection of defendant, of certified copies from the General Land Office showing the application of defendant J. C. Oalvin to purchase certain land in El Paso county in the year 1908. It is contended that the undisputed testimony of the defendants showed that such land was disposed of by said defendant J. O. Oalvin in the year 1910, and was not claimed by him at the time of the date of the deed of trust in question. The certified copy introduced in evidence contained an affidavit by defendant J. C. Oalvin, to the effect that he desired to purchase the lands described, in El Paso county, for the purpose of making a home, and was dated December 22, 1908, just before the time Mrs. Oalvin went to her mother’s and we are not prepared to say that it was not a circumstance admissible upon the issue of abandonment of the premises in Ft. Worth as a homestead. Sanders v. Sheran, 66 Tex. 655, 2 S. W. 804; White v. Epperson, 32 Tex. Civ. App. 162, 73 S. W. 851; Brown v. Lessing, 70 Tex. 544, 7 S. W. 783; Milburn Wagon Co. v. Kennedy, 75 Tex. 212, 13 S. W. 28. The case of Pellat v. Decker, 72 Tex. 578, 10 S. W. 696, cited by appellant in support of this assignment, was a case where Victor Pellat and his wife executed a mortgage to Decker on the homestead lots to secure a debt. Subsequently, Decker, becoming uneasy about his security, induced Pellat and wife to convey by deed to him the lots in question; the consideration recited being the exact amount claimed to be due from Pellat to Decker. In a subsequent suit between the parties, Decker offered in evidence what was termed a designation by the Pellats of their homestead, in which there was a statement of the different lots owned by them and a declaration that one lot other than either of the two upon which they resided was their homestead. It appearing that at the time of the execution of this instrument the Pellats were occupying as a homestead the two lots involved, and that Decker knew such to be the case, the court held that such declaration was not admissible against the Pellats, and that the instruction tendered excluding such evidence from a consideration of the jury should have been given. This was but an announcement of a familiar rule of evidence that actual occupancy is a conclusive designation of a homestead against which no declaration to the contrary can be considered. Texas Land & Loan Co. v. Blalock, 76 Tex. 89, 13 S. W. 13; Parish v. White, 5 Tex. Civ. App. 71, 24 S. W. 573.

We overrule the fifth assignment attacking so much of the verdict of the jury as is contained in answers to the first three special issues, on the ground, as urged, that there is no evidence to support the finding as to the first and third issues, and that there is not sufficient evidence to sustain the finding as to the second issue. The evidence of S. J. Callaway, superintendent of schools at Polytechnic, in which district Mrs. Calvin resided when living on her mother’s farm, that the Oalvin children attended school two years and probably three during the years from 1907 to 1912, the testimony of the notary, Taylor Johnson, to the effect that he had a conversation with Mrs. Oalvin with reference to the farm upon which she was living, and that she stated that said farm had been her home for a number of years, etc., the uncontradieted testimony as to-the occupancy by tenants during the years 1909 up to, and subsequent to, the execution of the deed of trust, and the further recitation in the deed of trust that the homestead of defendants was not in the city of Ft. Worth, we think is sufficient to support the verdict as to these several issues mentioned.

A husband and wife may be estopped from asserting homestead rights by representations made to induce the conveyance of, or the incumbrance upon, the property sought to be impressed with the homestead character, where such premises are not occupied at the time as a homestead. Mortgage Co. v. Norton, 71 Tex. 683, 10 S. W. 301; Brin v. Anderson, 25 Tex. Civ. App. 323, 60 S. W. 778; Moerlein v M. & L. Co., 9 Tex. Civ. App. 415, 29 S. W. 948. Hence the fifth assignment is overruled.

We think the evidence is sufficient to support the finding of the jury that Noel Oalvin was acting as agent for the defendants in securing the loan, as questioned in the sixth assignment. The fact that said Noel Oalvin went with the notary out to see his mother and father, for the purpose of securing their signatures and acknowledgments, the iact that Mrs. Calvin stated, as testified to by the notary, that she was securing this loan for her son, Noel, and perhaps other evidence, we think is sufficient to sustain the jury’s finding upon this issue. But we are of the opinion that, irrespective of any statements claimed by appellee to have been made by Noel Calvin to her agent, Judge Johnson, the evidence is sufficient to show that Mrs. Calvin understood the nature and effect .of the instrument which she executed, and knew that therein was i contained the statement that a homestead other than the premises in Ft. Worth was designated and claimed by her. The notary testified that he read over and explained to Mrs. Calvin the deed of trust, and also the acknowledgment thereto, and we think that under the state of the evidence we are not justified in holding that she did not understand the instrument and its purport, or that any undue influence or fraud was brought to bear to induce her to sign said instrument. Graves v. Kinney, 95 Tex. 210, 66 S. W. 293; Causey v. Handley, 98 S. W. 432; Cooper v. Ford, 29 Tex. Civ. App. 253, 69 S. W. 490; Paris Grocer Co. v. Burks, 101 Tex. 112, 105 S. W. 175.

From what we have hereinabove said, it follows that appellant’s seventh, eighth, and tenth assignments will be overruled; the questions therein raised having already been discussed and disposed of.

All assignments of error are overruled, and the judgment of the trial court is affirmed.
      (S=oFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <£=>For other cases see sam£ topic and KEY-NUMBER in all Key-Numbered Digests and. Indexes-


author: HUFF, C. J. HALL, J.

text:
    LOCKNEY STATE BANK v. MARTIN.
    (No. 1091.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1917.
    Rehearing Denied Feb. 7, 1917.)
    Bills and Notes <⅜^375 — Subscriptions to Stock — Rights of'Bona Fide Holders.
    The Constitution provides that no corporation shall issue stock or bonds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. Rev. St. 1911, art. 1146, provides that a corporation violating this provision forfeite its charter. Article 1147 provides that, when stock is issued for anything but money, labor, or property, the Attorney General may institute quo warranto proceedings to cancel such stock. Held, that, as the Constitution forbids the issue of stock except for money, labor, or property, but does, not declare a note executed for that purpose void, while such note is void as between the original parties and those with notice, or who have not paid value, it is enforceable in the hands of ar holder before maturity for value without notice and in the due course of trade.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. 375.]
    Hall, J., dissenting.
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    Suit by the Loekney State Bank against W. B. Martin. Judgment for defendant, and plaintiff appeals.
    Reversed, and judgment rendered.
    Crudgington & Works, of Amarillo, for appellant. G. E. Hamilton and T. T. Bouldin, both of Matador, for appellee.
   HUFF, C. J.

The appellant bank brought suit against Martin upon a negotiable note executed February 1, 1913, by appellee, Martin, due 12 months after date, payable to R. L. Underwood or order, for the sum of $500, with interest thereon at the rate of 8 per cent, from date until paid, and the usual ten per cent, attorney’s fees. This note is indorsed in blank by R. L. Underwood. The appellant bank alleged that it was the holder of the note for value, acquiring the same 'before maturity in due course of trade, without any notice of infirmities in the note.

Martin, by answer, set up that Underwood was the agent of the Bankers’ Trust Company of Amarillo, and selling stock therefor, alleging certain representations and promises made to induce Martin to sign the note, which did induce him to sign it, upon which it is alleged Martin relied, and that the same were untrue, etc. He further alleges that the note was executed in payment for stock in the Bankers’ Trust Company, which was issued to him for the note, and that the same was therefore void and in violation of the Constitution and laws of Texas.

The trial court instructed a verdict for the appellee, Martin, on the ground that the note was absolutely null and void. The appellant requested an instructed verdict in its favor, which was refused by the court.

Under proper assignments of error the action of the court, in giving and refusing the instructions are presented to this court. It is contended that the evidence in this case is conclusive that appellant had no notice of any fact indicating that the note was in any way connected with the issuance of stock, and that it shows affirmatively that it and its immediate assignors were innocent purchasers of the note for value before maturity and in due course of trade.

The note on its face shows to be a plain, promissory, negotiable note, payable to R. L. Underwood or order, and without any indication on its face for what it was given or that the Bankers’ Trust Company was in any way connected with it. The facts are uncontroverted that Underwood took the note and traded it to Waller & Dyer for an automobile in the town of Floydada; that they took this note in part payment of the automobile, together with some horses and a small amount of money; that Underwood represented to them that Martin had executed to him the note in payment of a span of mares that Underwood had sold to Martin. The evidence is conclusive that this note was then indorsed in blank by Underwood and delivered to Waller & Dyer, and that it was so transferred before maturity. Some of the testimony is that it was transferred in the latter part of February. Martin himself shows that he knew that Underwood had the automobile not later than in June following its date. There is no controversy in the testimony but that Waller & Dyer paid value before maturity of the note, and that they had no notice that it was executed for stock in the corporation. The evidence also shows that within a few days after selling this auto to Underwood for the note, in a deal for another auto in the town of Amarillo, Waller & Dyer procured the money from appellant bank to pay therefor, executing their note for something over $600, and put the note in question up with the bank as collateral security therefor. All the bank officials testifying state that they had no notice or knowledge that this note was given for stock in the corporation. Martin himself admits that he never told any of these parties that he had executed the note on that consideration. The evidence is certain that neither the bank nor Waller & Dyer had any notice of the consideration for the note until 'after its maturity. There is an assignment to the effect that the evidence does not conclusively show that the Bankers’ Trust Company issued the stock to Martin for the note. Without discussing this evidence, we are inclined to believe the testimony was not so conclusive to that effect that the court was authorized to take the ease from the jury but that he should have submitted the question to the jury.

On the question of whether or not an innocent holder can recover on a note given for stock in corporation, the decisions of this state leave the question very much in doubt. This court, in the case of Prudential Life Insurance Co. v. Smyer, 183 S. W. 825, held that a note given for stock in a corporation is void in the hands of an indorsee for value, and without notice of its illegal issue. A writ of error has been granted by the Supreme Court in that case, on the ground, so we are informed, that there is doubt by that court as to the correctness of the holding with reference to an innocent holder of such note. The Court of Civil Appeals for the Fifth District, in the ease of Republic Trust Co. v. Taylor, 184 S. W. 772, reached thé same conclusion as did this court in the Smyer Case. In the F. & M. Bank v. Falvey, 175 S. W. 833, the Court of Civil Appeals for the First District announced the same rule, while the question was not there necessary to a decision of the case.

This court, in the case of Jones v. Abernathy, 174 S. W. 682, announced substantially the same rule, but not on a note given for stock. It should be noted, however, the h¡olding therein was based upon a statute which expressly provided such indebtedness secured by a lien upon railroad property, without complying with other provisions of the act, should be void. In the case of Sturdevant v. Falvey, 176 S. W. 908, the court found and held in that case that the in-dorsee had notice that the note was given for the issuance of stock by the note itself.

The action of the Supreme Court in the Smyer Case, having cast a doubt on the correctness of the holdings • by this court, has induced us to again enter into an examination of the authorities, which has resulted in bringing us to the same condition of mind the Supreme Court appears to be in.

“The protection which the law extends to an innocent holder, who for value in the usual course of trade has received negotiable paper, is of no avail where the statute in terms, or by unavoidable implication, has pronounced the instrument absolutely void.” Ruling Case Law, vol. 3, Bills and Notes, § 225.

As a general rnle, one who executes a negotiable instrument, knowing it is subject to barter and sale in the commercial world, and does not put into it words which give warning to others not to buy it, is estopped to make a defense after it has passed into the hands of the holder in due course of trade.

“Wherever the ’statutes declare notes void, they are and must be so in the hands of every holder; but where they are adjudged by the court to be so, for failure or illegality of the consideration, they are void only in the hands of the original parties, or those who are chargeable with or have had notice of the consideration.” Vallett v. Parker, 6 Wend. (N. Y.) 615.

The above is cited and quoted in Bohon’s Assignee v. Brown, 101 Ky. 354, 41 S. W. 273, 38 L. R. A. 503, 72 Am. St. Rep. 420.

“The effect of illegality on a bona fide purchaser is held by the authorities to be different from that of mere insufficiency of consideration, at least in certain cases. Whore the consideration is declared by the decisions of the court or by statutory enactments to be simply void on account of illegality, it does not affect the validity of the contract any more than the mere absence of a consideration would affect it; and the bona fide holder of a commercial instrument would nevertheless be able to maintain his action upon it. But where the statute making the consideration illegal' declares a contract founded on such a consideration to be absolutely void, the language of the statute must be given its proper effect, and .so the courts have held that the commercial paper founded on such consideration is void, even in the hands of bona fide holders.” Tiedeman on Commercial Paper, § 178.
“Where the statute merely declares expressly or by implication that the consideration shall be deemed illegal, the bill or note founded upon such consideration will be valid in the hands of a bona fide holder without notice, but the burden of proof will be upon the plaintiff.” 1 Daniel on Negotiable Inst. § 198.

The constitutional provision (article 12, § 6) with reference to issuing stock is:

“No corporation shall issue stock or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

Article 1146, R. C. S., provides that a corporation violating this provision forfeits its charter; and article 1147, R. C. S., provides when stock is issued for anything but money, labor, or property, the Attorney General may institute quo warranto proceedings to cancel and hold for naught such stock. These provisions and others, it appears to us, simply show that the law applies to the cor? poration and its stockholders, rendering the issuance of stock without money paid illegal, and the stock therefore void. It does not occur to us that the Constitution or the statutes intended to inflict upon innocent third parties a penalty that should be borne by a corporation or stockholder seeking to foist upon the public a worthless concern. The execution of a note for such stock is doubtless void as between the corporation and the maker of the note. The Constitution and laws do not declare the contract absolutely void, the consideration of which is void or illegal. It must, if so held, be adjudged by the courts on the ground that the note is given for an illegal or void consideration. It is not by an unavoidable implication from the wording of the law made manifest that it was the purpose thereof to declare such note void absolutely as to all the world. It is the issuance of the stock for the note which is forbidden. It is such act which subjects the corporation to a forfeiture of its charter and which will cancel the stock. It appears to us that in construing the Constitution it has been treated as if it declared the note given for the stock absolutely void. This is not our interpretation. It declares the issuance of stock, or, in other words, the consideration for the note, illegal or void. Union Trust Co. v. Preston National Bank, 136 Mich. 460, 99 N. W. 399, 112 Am. St. Rep. 370; Hart v. Livermore, 72 Miss. 809, 17 South. 769. Certain conditions may arise which would estop the corporation or stockholder from defeating the obligation. The law which is intended to protect innocent third parties ought not to be construed so as to defraud others who do not know of such fraud or illegal acts. The doctrine of estoppel has been applied by this court to notes of this character in the interest of the creditors of a corporation upon it becoming insolvent. We held a corporation in such a situation would preclude the contention by the maker that the note was void. McWhirter v. First State Bank, 182 S. W. 684; Thompson v. Bank, 189 S. W. 116. If this proposition there announced is sound, the note is not absolutely void as to all the world. If the maker in that instance could not defeat the creditors out of collection, the reason is as strong, it occurs to us, that the maker should not defeat an innocent purchaser of his note, which he had knowingly placed in circulation without any evidence of its character or the consideration upon which it was based. He should be estopped from claiming that he executed it in violation of the law and for the purpose of defeating the law. The case of Mason v. Bank, 156 S. W. 366, is cited in the Taylor Case, supra, apparently as supporting the proposition that the note is absolutely void. In that case the court held according to the plea that the holder had notice of the note’s infirmities, and hence he stood in the shoes of the original payee. The Mason Case also, while apparently holding the note void, yet distinguishes it from Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 1015, and Nenny v. Waddill, 6 Tex. Civ. App. 244, 25 S. W. 309, on the ground that those cases were brought on behalf of the creditors of the corporation. Those cases evidently recognize the rights of creditors to be the same as found by us in the Thompson and Mc-Whirter Cases, supra. The ease of Seeligson v. Lewis, 65 Tex. 215, 57 Am. Rep. 593, is cited in the Taylor Case as supporting the contention that the note is absolutely void in the hands of an innocent holder. In that case the note was given for a debt growing out of “cotton futures.” Judge Stayton, who rendered the opinion, was careful to hold that as between the parties it was void. Davis v. Sittig, 65 Tex. 497. The note in that case, though negotiable in form, was transferred without indorsement, was not in the possession of the payee, and the assignee was not shown to have paid value. In Wegner Bros. v. Biering, 65 Tex. 506, the question of innocent purchaser was not involved. The suit was brought by the payee in the note, who was charged with the illegal act in obtaining the agreement to pay. The question discussed in that case was whether the entire note was tainted, since part of it was for a valid debt, and the other portion for an illegal consideration.

In the case of Thompson v. Samuels (Sup.) 14 S. W. 143, the facts, as stated by the court, are: Ben Hilmbrower was indebted to J. R. Mahone, and Mack Samuels owed Hilmbrower $100 for money lost at a game of cards. Hilmbrower drew a draft on Samuels in favor of Mahone for the $100. In settlement of the draft Samuels executed and delivered his promissory note, dated March 1, 1887, payable to Mahone or bearer six months after date. Mahone transferred the note by indorsement to John C. Thompson, before maturity, for a valuable consideration, without notice of any vice or illegality in !the consideration for which it was given. The Commission of Appeals rendered the opinion in that casé. Judge Acker reviewed various decisions in this state and others declaring that a gambling note was void and some that it was void in the hands of an innocent holder. After citing cases from various states the court in the Thompson Case said:

“That these decisions rest upon statutes expressly declaring all such contracts void,” and, “in the absence of such statutes, we do not believe authority can be found for holding that the maker of a negotiable promissory note can defend against it, in the hands of an innocent holder for value, upon the ground that it was given in consideration of money won at gaming.”

1 Daniels on Negotiable Instruments, § 197, is also quoted, and also tlie excerpt quoted by us from Vallett v. Parker, 6 Wend. (N. Y.) 615, and then concludes:

“While gaming of various kinds is denounced by our Penal Code, we have no statute in this state declaring that all contracts entered into upon gaming considerations are void.”

In the case of State Bank of Chicago v. Holland, 103 Tex. 266, 126 S. W. 564, the Supreme Court cites the case of Thompson v. Samuels with approval. It is said in that case:

“In Thompson v. Samuels [Sup.] 14 S. W. 143, the question now before the court was presented and decided. In writing the opinion Mr. Justice Acker reviewed prior decisions of this court at length and arrived at the conclusion that, while some of the opinions used the expression that contracts similar to that then under consideration were void, yet the court did not mean to hold such contracts to be void in the sense that they were not enforceable as between the maker of the contract and an innocent holder for value.”

It was further said therein that the Thompson Case had not been officially reported, “but it is authority, and appears to be the latest authority, from this court upon the question.” The expression, or use of the term “void” is used in the Deutschmann Case, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174, with reference to contracts in violation of the provision of the Constitution now under consideration. The opinion in the Holland Case, supra, was writtten by the same judge, and is, we think, persuasive that the court only used the term “void” as applicable between the original parties and persons having notice of the infirmity of the note.

In Campbell v. Jones, 2 Tex. Civ. App. 263, 21 S. W. 723, it was held the holder of a note by indorsement before maturity for value, and without notice of the defense against the original payee, could recover, even though it was given in consideration of intoxicating liquors sold to the maker in violation of the law and the bond executed by the sellers, to the effect that they would not sell to habitual drunkards, nor to persons after having received notice from the wife, mother, etc.

In the case of Seheffel v. Smith, 169 S. W. 1131, it is held a note given for commission on the sale of stock in a corporation in violation of the law, could not be defeated in the hands of an innocent purchaser. It is said therein:

“The laws of this state do not expressly or by necessary implication declare void a note given for commissions on a sale of the stock of a corporation; * * * therefore, under the rule quoted in State Bank of Chicago v. Holland,# the protection of the law is extended to the instrument here sued upon and to the ap-pellee as a purchaser thereof for value before maturity and without notice of any infirmity in its execution.”

In Seeligson v. Lewis, 65 Tex. 215, 57 Am. Rep. 593, it is there expressly held that the broker who effected the sale was a particeps eriminis, and could not recover for services rendered or money paid in the sale of the cotton futures. By analogy and the principles of law, if a note given for a commission earned in the sale of stock is good in the hands of an innocent holder, the note given for the stock should be held good under the same circumstances. Snoddy v. American National Bank, 88 Tenn. 573, 13 S. W. 127, 7 L. R. A. 705, 17 Am. St. Rep. 918, is frequently referred to by the various courts and commentators as authority for the proposition that a note given for a gambling debt is void in the hands of an innocent holder. Thomas v. Samuels, above cited, rendered by our court, based on statutes against gambling, reached a different conclusion, on the ground that our statutes do not so declare the note void. It will be seen upon investigation that nearly all the cases holding a note void in the hands of an innocent holder are based on statutes expressly so declaring. It appears to us, after examining quite a number of authorities, that the rule that should govern this ease is stated in Sondheim v Gilbert, 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. Rep. 23:

“The authorities justify the statement that a defendant may insist upon the illegality of the contract or consideration, notwithstanding the note is in the hands of an innocent holder for value', in all those cases in which he can point to an express declaration of the Legislature that the illegality insisted upon shall make the security, whether contract, bill, or note, void; but, unless the Legislature has so declared, then, no matter how illegal or immoral the consideration may be, a commercial note in the hands of an innocent holder for value will be held valid and enforceable.”

See, also, Union Trust Co. v. Preston National Bank, 136 Mich. 460, 99 N. W. 399, 112 Am. St. Rep. 370; Pope v. Hanke, 155 Ill. 617, 40 N. E. 839, 28 L. R. A. 568; Lynchburg National Bank v. Scott, 91 Va. 652, 22 S. E. 487, 29 L. R. A. 827, 50 Am. St. Rep. 860; Citizens’ State Bank v. Nore, 67 Neb. 69, 93 N. W. 160, 60 L. R. A. 737.

Under the rule above announced, in order for the note to be void in the hands of an innocent holder, the statute or Constitution must expressly, or “by necessary implication declare the instrument absolutely void.” By necessary implication the statute must declare the note absolutely void. Where it is an inference by the court that the instrument is void, because of failure or illegal consideration, it is not void as to an innocent holder. It is against the law to gamble or bet on games. A note given for a debt so created is upon an illegal consideration and void as between the original parties not because the statute so declares, or because of an implication from the terms of the statute. It is against the law to sell intoxicating liquors to an habitual drunkard, and a note for such sale is upon an illegal consideration. The statute does not so declare, neither is it necessarily implied from the wording of the statute that it was the purpose of the act to declare a note so given void; but it is so, if at all, because adjudged to be upon an illegal consideration. The Constitution forbids the issue of stock except for money, etc., but it does not declare a note void executed for that purpose. It may be adjudicated and determined that it is upon an illegal consideration, and therefore void, but it is not a necessary implication from the Constitution that it so declares. The statutes do not declare the note void as a punishment inflicted upon the corporation, or for any other purpose, hut the charter of the corporation may be forfeited and the stockholders stock canceled. The court may, from the constitutional and statutory provisions, adjudge and determine the consideration for the note to be illegal and therefore void, but the statutes do not expressly so declare, nor is it a necessary implication from the statutes, that they declare such a note void.

To hold the statute expressly or by implication declares a note void because it is an inference from the Constitution or statute that the consideration therefor is illegal and therefore void, unless the note is so declared by statute, would be to hold every note based upon an illegal consideration void in the hands of a bona fide holder. That such is not the rule is universally recognized by our courts and all the courts, except in such cases where the statute, as in Georgia, provides the defenses a maker may set up against a bona fide holder, under section 309-1 of that state’s Code, “which declares that such a holder, without notice, shall be protected .from any defenses set up by the maker, * * * except non est factum, gambling, or immoral and illegal consideration, or fraud in its procurement.” Jones v. Dannenberg, 112 Ga. 426, 37 S. E. 729, 52 L. R. A. 271. We cite in support of this rule Daniels on Neg. Inst.:

“The bona fide holder for value, who has received the paper in the usual course of business, is unaffected by the fact that it originated in an illegal consideration, without any distinction between the cases of illegality founded on moral crime or turpitude, which are termed mala in se, and those founded in positive statutory prohibition, which are termed mala prohibita. The law extends this peculiar protection to negotiable instruments because it would seriously embarrass mercantile transactions to expose the trader to the consequences of having the bill or note passed to him impeached for some covert defect. There is, however, one exception to this rule, that when a statute expressly or by necessary implication declares the instrument absolutely void, it gathers no vitality by its circulation in respect to the parties executing it, though even upon such instrument an indorser may, as we shall hereafter see, be held to be a bona fide holder without notice. There are very few cases in which-the statute renders such instruments absolutely void, and the most important, if not the only, instance now to be met with are the statutes against usury and gaming.” Daniel on Neg. Inst. § 197; also sections 807 and 808.

It will be observed that in Thompson v. Samuels, supra, our court held a note for a gambling debt not absolutely void on the ground that our statute did not so expressly declare.

In the ease of Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031, the rule stated by Daniels is recognized as to usury. The statute of this state provides that when usury is charged the contract for interest is void.

We therefore hold, under the established rule by all or nearly all of the courts, and by all the writers on negotiable instruments, that a note given for the issuance of stock in a corporation is void as between the original parties to the note and those with notice or who have not paid value; but in the hands of the holder, who acquired it before maturity for value, without notice of its infirmities, and in due course of trade, it is not as to such holder void.

We believe the trial court should have given the appellant’s special instruction, and the case will be reversed, and here rendered.

HALL, J.

I respectfully dissent from the conclusion announced in the majority opinion that the note is valid in the hands of an innocent purchaser for value. We held in Prudential Life Insurance Co. v. Smyer, 183 S. W. 825, that article 12, § 6, of the state Constitution by necessary implication inhibited the execution of a note in payment for stock, and rendered the note void, even in the hands of an innocent purchaser. To the same effect is Crawford v. Davis, 188 S. W. 436, also by this court, Strudevant v. Falvey, 176 S. W. 908, and Republic Trust Co. v. Taylor, 184 S. W. 772. It is admitted that article 12, § 6, of the Constitution, supra, does not expressly declare that a note given for stock in a corporation is void, nor does it expressly declare that the stock so issued is void, yet the Legislature, by the enactment of article 1147 (Vernon’s Sayles’ Civil Statutes), has construed that constitutional provision as a declaration that the stock is void, and by that statute has made it the duty of the Attorney General to file suit to cancel the stock or any renewal thereof. The terms “money,” “labor,” and “property” reasonably include every supposable consideration for which a corporation could issue stock, except a promise, either written or verbal, to pay for it in the future, and my position is that the legal maxim, “Expressio unius est exclusio alterius,” applies, and that, when the Constitution specifically names three of the only four possible considerations for which stock may be issued, the fourth is necessarily excluded. In other words, the constitutional ¡provision by necessary implication makes a note given for stock as well as the stock itself void ab initio. If the constitutional provision was “corporations may issue stock or bonds for money, labor or property,” such language would not unavoidably imply that an issue of stock in exchange for notes would make either the stock or the notes void between the parties to the transaction; but when tbe language is “no corporation shall issue,” it is mandatory, and cannot be held to be directory (6 R. C. L. p. 55, § 50); and when it further declares that stock shall not issue “except for money paid, labor done or property actually received,” I think the necessary implication is that the stock and the promise to pay for it as well are both void.' The constitutional provision is negative in its terms, and the use of negative words in a statute or Constitution is conclusive of an intent to impose a limitation. Cooley’s Constitutional Limitation (6th Ed.) p. 94; People ex rel. Mooney v. Hutchinson, 172 Ill. 486, 50 N. E. 499, 40 L. R. A. 770.

“Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz. that the thing shall not be done otherwise.” 19 Cyc. 26, 27.

The limitation here is that any consideration for stock except “money paid, labor done, or property actually received,” is absolutely void. The purpose of the constitutional provision in question is expressed by Judge Brown in O’Bear-Nester Glass Co. v. Antiexplo Co., 101 Tex. 434, 108 S. W. 968, 16 L. R. A. (N. S.) 520, 130 Am. St. Rep. 865:

“The purpose of the convention in enacting that provision of the Constitution was to secure creditors as well as stockholders of corporations against the practice which was too common of corporations issuing fictitious stock and stock upon an insufficient consideration, whereby the actual capital was much less than the amount represented by the shares issued and sold by the corporation. The terms in which this section of the Constitution is expressed indicate the purpose that the assets of the corporation should be something substantial, and of such a character that they could be subjected to the payment of claims against the corporation as well as to secure the shareholders in their rights in the capital stock.”

Evidently the writer of that opinion did not consider a promissory note as “something substantial.” Notwithstanding the fact that Deutschmann, in the case of San Antonio Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W, 486, 114 S. W. 1174, had, as an attorney, rendered valuable services for the original company under an agreement whereby he should thereafter have one-third of the stoek in said company, to be paid for at such time as he could arrange, Judge Brown, after quoting the section of the Constitution, said:

“The contract which Deutschmann sets up, by which he was not to pay for the stoek any money at the time of its issue, is plainly and unquestionably in violation of the Constitution of the state, and, being in violation of the Constitution, that agreement, in so far as it provided that Deutschmann should have all the time he might find necessary in which to pay for his stock, was void.”

It is true that Duetsehmann’s promise to pay was verbal, but, of course, the rule is the same when the promise to pay in the future is evidenced by a promissory note. As sustaining the position last above announced, Judge Brown cites the case of Williams v. Evans, 87 Ala. 726, 6 South. 703, 6 L. R, A. 218, in which it is said:

“It is too plain for argument that, under the evidence, if the plaintiff can recover at all, it must be under the third count, which claims the price agreed tó be paid for the sale of 50 shares of stock in tbe Decatur Land Company. The bill of exceptions sets out all the evidence, and this evidence, in our opinion, shows a contract in violation of section 6, art. 14, of the Constitution (1875), which provides that ‘no corporation shall issue stock, or bonds, except for money,, labor, done, or money or property actually received; and all fictitious increase of stock or indebtedness shall be void.’ ”

It will be observed, as is remarked by Judge Brown, after citing the case, that this provision of the Constitution of Alabama is not quite as emphatic as our own. As shown, that was a case where the seller of stock had agreed to issue certificates in excess of the amount paid, and the holding was that the agreement or promise to pay was void. The language of the opinion is in part as follows:

“The contract necessarily implied by this transaction is one which seems to us to be in violation of the section of the Constitution above quoted; and this is the consideration of the defendant’s promise. ⅜ * * A contract which contemplates the violation of a statute, or a Constitution, as a mode of executing such contract, is illegal and void. It is based on an unlawful consideration, and, if executory, cannot be enforced.”

Enabling statutes on the principle of “Express! o unius est exelusio alterius” impliedly prohibit any other than the statutory mode of doing the acts which they authorize. Sutherland, Statutory Construction, § 454; Parks v. West, 102 Tex. 11, 111 S. W. 726. What is expressed is exlusive when it is in derogation of existing law. Sutherland, Statutory Construction, § 325. Before the adoption of the Constitution of 1876, the law did not prohibit the sale of corporate stock upon credit, and the provision in question was designed to remedy that evil.

“In accordance with the maxim, ‘Expressio unius est exelusio alterius,’ where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned, and where it directs the performance of certain things in a particular manner, it forbids by implication every other manner of performance.” 36 Cyc. 1122.

The opinion in the Deutschmann Case and the authorities cited therein by Judge Brown do not hold that the stoek alone was void, but that the entire contract was void, and this necessarily includes the note. It is admitted and universally held that the language of the Constitution necessarily implies that the stock is void. Then why not the note also? The one is the consideration for the other; together they evidence the illegal transaction; without both there is no contract at all. They came into existence at the same time, and if we are to infer that by the language of the Constitution one is condemned, there is no good reason why the same inference should not damn the other.

Believing that the provision under consideration necessarily implies that, not only tile stock, but thfe written promise to pay for it, are .both void, I think the trial court proper? ly refused the special instruction, and that its judgment should be affirmed.
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