author: ELY, O. J.

text:
    WALKER v. SANDOZ et al.
    (No. 5539.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 9, 1915.
    Rehearing Denied June 25, 1915.)
    Mortgages &wkey;>338 — Foreclosure— Suit to Restrain Sake.
    A grantee executed to the grantor a deed of trust to secure a note for borrowed money, not forming a part of the transaction involving the conveyance of the land. The grantee sold the land to a third person who assumed payment of the note. The grantor was not insolvent and could respond to any loss from any defect in the title. The note was not paid, and the trustee in the deed of trust proceeded to sell the land pending suit against the third person by one claiming superior title to part of the land. • Held, that a temporary injunction restraining a sale on the grantee and the third person paying the note less the claimed value of the land claimed under a superior title, gave sufficient relief to the grantee and the third person.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1026-1035; Dec. Dig. &wkey;33S.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by W. A. Cocke and another, against Evelyn P. Sandoz and others. From a judgment rendered on application for temporary injunction, plaintiff Ganahl Walker appeals.
    Affirmed.
    McFarland & Lewright and W. H. Kennon, all of San Antonio, for appellant. Thos. W, Masterson, of San Antonio, for appellees.
   ELY, O. J.

This is a suit instituted by W. A. Cocke and Ganahl Walker against Evelyn P. Sandoz and her husband, Edward Sandoz, and R. D. Potts, trustee, to restrain the sale of certain land by said Potts, as trustee, until after the final disposition of a certain suit brought by J. P. Winans against appellant, for a part of section 1, the mortgaged land to be sold by the said trustee under a deed of trust which was executed by W. A. Cocke to R. D. Potts, trustee, for the benefit of Evelyn P. Masterson, now Evelyn P. Sandoz, and until after appellant should have reasonable opportunity to ascertain the ' true locations of the corners and boundaries of the tracts of land which were conveyed by Mrs. Sandoz to W. A. Cocke, and by the latter conveyed to appellant, and to require Mrs. Sandoz to credit the note with the market value of the tract sued for by Winans, in .case he should prevail in the suit, and to credit the note with the value of any land 'that might be lost by reason of conflicts as to corners and boundaries, and to recover all ■costs and expenses incurred in ascertaining the true corners and boundaries. A temporary restraining order was granted, which was afterward modified to the extent that the trustee was permitted to advertise the lands for sale embraced in the deed of trust, on Tuesday, May 4, 1915. The application for temporary injunction was tried on April 28, ■ 1915, and the following decree was entered:

“(1) That if plaintiffs herein, Ganahl Walker and W. A. Cocke, or-either of them, shall with'in 20 days from this date pay or cause to be paid to defendant Mrs. Evelyn P. Sandoz a sum of money sufficient to cover the whole amount of principal and interest due and owing upon the date of such payment on the $4,500 note described in the pleadings herein, less the sum of $1,943.75 (representing the claimed value of the 77% acres of land for which one J. P. Winans is now suing said Ganahl Walker in the district court of Edwards county, Texas, cause No. 1003, entitled J. P. Winans v. Ganahl Walker), then and in such event the tem-orary restraining order granted herein on April , A. D. 1915, shall, automatically and without ■further action or orders of this court, continue in full force and effect until the final disposition (including any appeal which may or shall be taken by -any party thereto) of cause No. 1003 in the district court of Edwards county, Texas.
“(2) That if no such payment as above specified shall be made by plaintiffs, or either of them, to Mrs. Evelyn P. Sandoz, within said period of 20 days from date hereof, then and in that event said ' temporary restraining order heretofore granted herein shall, at the expiration of said 20 days automatically and without further action or order of this court stand dissolved, and in that event defendants herein may proceed to advertise and sell, under the terms of deed of trust described in the original petition herein, the land in Edwards county, Texas, described in said deed of trust and in said petition, in satisfaction of the whole amount due and owing upon the $4,5001 note described in said original petition herein.
“(3) That if plaintiffs shall, within said 20 days from date hereof, tender to defendant Mrs. Evelyn P. Sandoz the sum of money specified in paragraph No. 1 hereof, but if she shall refuse to accept same as a credit upon the whole amount of principal and interest owing on said $4,500 note, then and in that event the aforesaid temporary restraining order herein shall continue in full force and effect, without further order of this court, until final trial herein upon the merits.
“(4) That if plaintiffs herein, or either of them, shall be dissatisfied with the partial relief herein provided for in behalf of plaintiffs herein, and if they, or either of them, shall, within 15 days from this date, perfect an appeal herein to the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas, by giving bond in manner and form as required by law, then and in such event, upon the perfecting of said appeal herein, there shall be suspended the enforcement of so much of this decree as permits defendants herein to proceed with the sale of said Edwards county land upon failure of plaintiffs herein to make the payment specified in paragraph or section No. 1 of this decree and from and after the perfecting of said appeal herein, if any taken by plaintiffs or either of them, defendants herein shall desist and refrain (from) taking any steps looking to the sale of the mortgaged premises in Edwards county, Texas, under the terms of the aforesaid deed of trust, unless and until final action shall be had upon any such appeal by plaintiffs or either of them from the terms of this order.
“ (5) That the court is of the opinion and finds that plaintiffsl are not entitled to any relief as to that part of their petition relating to other possible conflicts or defects of title, not involved in said suit of Winans v. Walker, and the temporary restraining order, in so far as it might relate to such relief, is now dissolved.”

Prom that order this appeal has been perfected by appellant.

It appears from the record that on February 2, 1912, Mrs. Sandoz, then Mrs. Mas-terson, conveyed to W. A. Cocke surveys 1, 5, and 7, block J, G., C. & S. P. Ry. Co. land in Edwards county, Tex., and on February 12, 1912, conveyed to said W. A. Cocke sections 11, 13, and 19 in said block J, G., C. & S. P. Ry. Co. land in said county, and the grantee executed to the grantor a deed of trust on surveys 5, 11, 13, and 19, to secure a note for $4,500 due in three years given by W. A. Cocke to Mrs. Masterson, now Sandoz, for borrowed money, said Potts being named as trustee. W. A. Cocke sold surveys 1, 5, 7, 11, 13, and 19, being all of the land, to appellant, who assumed payment of the note. An' abstract of title was promised Cocke by Mrs. Sandoz which showed in the grantor a good and marketable title, and in truth and fact the record title is perfect. The note for $4,500 was not paid, and the trustee advertised the land for sale under the terms of the deed of trust. One Winans, claiming 77% acres of survey No. 1, by limitation of 10 years, sued appellant for it.

The order of the trial court protected appellant fully against any possible loss in the suit of Winans for 77% acres of land by withholding from payment on the note for $4,500 the sum of $1,943.75, being the full value of the tract sued for. That sum was considerably more than one-third of the debt. Section No. 1, of which the 77% acres of land is a part, was conveyed to Cocke in a different transaction with him from the one in which the deed of trust was given. The allegations as to the conflict of comers and boundaries are entirely too vague, indefinite, and uncertain to form a foundation for the issuance of an injunction, even if a good cause of action had been alleged otherwise. Appellant was allowed to retain, pending the Winans suit, all his testimony showed the 77%. acres of land were worth. It is not pretended that Mrs. Sandoz had any knowledge of any one being on any part of the land, or that there were any such conflicts is not made clear by appellant in pleading or evidence.

There was no allegation of the insolvency of Mrs. Sandoz or of her financial inability to respond to any loss from a defect in the title to any of the land, and if the court had denied any relief by injunction the testimony would have justified such action. The testimony is ample to show that the conveyance of February 2, 1912, was a different transaction altogether from the one of February 12, 1912. The loan on the land was not one of the conditions or consideration of either trade, but the loan was made in a separate and distinct agreement. The money was not loaned on the 77% acres of land and no part of section 1 is included in the deed of trust. It was not alleged or proved that any part of the land included in the deed of trust had been sued for, and in fact no one was claiming any part of it. It may be that W. A. Cocke would not have bought the land he afterwards mortgaged had he not already possessed the 77% acres of. land claimed by Winans, but that fact can be no defense to the foreclosure of the mortgage given by him to Mrs. Sandoz.

The allegations in the petition were fully denied, and, as it was not sought to dissolve the injunction on the motion, and the evidence was heard and action had under it, it was not necessary that the answer should be verified. Smith v. Palo Pinto County, 128 S. W. 1193. R. D. Potts swore that there were two distinct land trades between Cocke and Mrs. Sandoz. There were no defects shown to exist in the record title to the land, or any conflicts shown that were known to Mrs. Sandoz. There was no testimony tending to show that W. A. Cocke was misled by any statements made by Mrs. Sandoz, or her agent, but the statements made were shown to be absolutely true. The bill fails to show equities justifying or requiring the issuance of a writ of injunction, and under the allegations and evidence appellant obtained relief he was not entitled to, and he has no cause to complain. Appellees seem to acquiesce in the judgment.

Authorities cited by appellant, to the effect that injunctions will be granted to restrain the collection of notes given for land under certain circumstances, refer to notes given for the purchase money or parts thereof, and have no applicability to the note whose collection is sought to be restrained in this case. It was not claimed, nor attempted to be shown, that Cocke did not, in the exchange of properties between him and Mrs. Sandoz, get full value for his property, and the note for $4,500 was no part of the consideration, but was given for money loaned to Cocke by Mrs. Sandoz. His vendee has no equities entitling him to an injunction to restrain the collection of the note.

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


source: Caselaw Access Project

author: RiASBURY, J.

license: Public Domain

text:
    HILL et ux. v. JONES LUMBER CO.
    (No. 7356.)
    (Court of Civil Appeals of Texas. Dallas.
    June 12, 1915.)
    1. Bills and Notes <&wkey;351 — Assignee Afteb Maturity — Rights.
    Where defendants executed a note, reciting that it was secured by a vendor’s lien, which was .in fact not the case, such false recital did not give rise to an equitable estoppel precluding the makers from asserting against the assignee of such note after maturity the defense of failure of consideration, since negotiation of a note after maturity works notice to the assignee of its infirmities.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 878-881, 882%-885; Dec. Dig. <g=^351.]
    2. Bills and Notes <&wkey;>370 — Negotiation Before Maturity — Effect.
    The assignee of a note negotiated to him prior to maturity may enforce the same against prior parties, irrespective of a failure of consideration thereto.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 963; Dec. Dig. <@=>370.]
    Error from District Court, Dallas County.
    Action by the Jones Lumber- Company against W. S. Hill and wife, and another. Judgment for plaintiff, and Hill and his wife bring error.
    Judgment as to them reversed and rendered for them.
    W. H. Clark, Edward P. Dougherty, and Carl D. Jones, all of Dallas, for plaintiffs in error. L. R. Callaway, of Dallas, for defendant in error.
   RiASBURY, J.

In the court below, the Jones Lumber Company sued W. S. Hill and his wife, Jennie Hill, as makers, and Frank Welsh, as guarantor, upon a promissory note for $429.50, dated March 14, 1912, due one day after its date, providing for interest and containing the usual provisions with reference to attorneys’ fees in case of default in payment. It will not be necessary to relate the defenses urged in the trial court by Hill and wife and Welsh to the note, since they sufficiently appear from the issues presented in their brief. There was jury trial, but upon conclusion of the evidence the district judge instructed the jury to return verdict for the appellee against 1-Iill and wife and Welsh for amount’ due upon the note and for foreclosure of lien, which they did, and upon which verdict the judge afterwards entered similar judgment, and from which action this appeal is perfected. Upon the issue upon which the trial judge instructed verdict for appel-lee, sucli being tbe only issue tendered by ap-pellee in tbis court in. support of tbe judgment, tbe practically undisputed and material facts are as follows: Prior to tbe execution off tbe note sued on, one H. E. Kenney was the owner of lot 7, block 8, Alta Vista addition to the city of Dallas, Tex. W. S. Hill and wife desired to purchase the lot and to erect a residence thereon. Being without the means themselves, they made an arrangement with the Standard Real Estate Loan Company for such purpose. By the agreement with the latter company, Kenney, the owner of the lot, deeded it to Frank Welsh, a contractor and builder, whom Hill and wife had selected to erect the improvements on the lot, reciting the consideration to be $612.64 cash. The $612.64 was not paid by Welsh, but by the Standard Real Estate Loan Company. At the same time that Kenney conveyed the lot to Welsh, and as a part of the prearranged transaction, Welsh in turn conveyed the lot to W. S. Hill, the recited consideration being 119 notes aggregating $2,-695.88, payable to the Standard Real Estate Loan Company monthly, payment thereof be-in§ secured by the vendor’s lien upon the lot of land so conveyed; and one other note off Hill’s for $429.50, payable one day after date to Frank Welsh, payment of which was also secured by the vendor’s lien upon said lot, but which lien was made secondary and subordinate to the lien securing the notes payable to the Standard Real Estate Loan Company. The notes so given to the Standard Real Estate Loan Company evidenced the purchase price of the lot and the cost of the improvements to be placed thereon by Welsh, a contract in relation to which all parties entered into simultaneously with the execution of the deeds just detailed, further reference to which is unnecessary, since its provisions are immaterial to this appeal. The note payable to Welsh, according to his testimony, represented a part of the transaction detailed and evidenced a part of Welsh’s compensation for the contract as a whole. According to the testimony off Hill, it represents the price agreed to be paid for certain extra work on the house and certain improvements to be made on the residence then occupied by Hill on the adjoining lot. Welsh secured possession of the note on the day it and all other papers were executed, properly, according to Welsh, but improperly, according to Hill, since it was agreed it should be held in escrow until the work was completed. The matters of fact so related and in conflict are not material on appeal, but are noted for the sake of orderliness. Welsh entered upon the work, but abandoned same before completion, due to the fact that the Standard Real Estate Loan Company became bankrupt and failed to pay estimates, or at least notified him they would not pay same. When Welsh abandoned the work, he had not earned the money evidenced by the note for $429.50. Welsh, however, sold and transferred said note to the Jones Lumber Company, who bought it in good faith, paying value therefor, without knowledge whatever of the plan adopted by Kenney, Welsh, Hill, and the Standard Real Estate Loan Company for the sale and purchase off the lot and the erection thereon of the contemplated improvements. However, when the Jones Lumber Company acquired the note from Welsh, it was past due approximately two months.

Plaintiff in error urges, upon the facts related, that the court erred in directing verdict for defendant in error for the reason that it appears without controversy that it acquired said note after maturity and that the consideration for said note had failed. Defendant in error, in effect, concedes the truth of the facts asserted, but contends that the statutory rule that the assignee shall, when he acquires a negotiable note after maturity, “allow all just discounts against the assignor,” has no application in this case for the reason that the act of plaintiffs in error in executing and delivering to Welsh a note which on its face imported a valuable consideration and recited that it was secured by the vendor’s lien, while in fact it was not, constitutes in law a false and fraudulent representation which estops them to assert such defense. In our opinion the law of equitable estoppel, or more correctly estoppel by conduct, is without application in the instant case. In law there was no false or fraudulent misrepresentation involved in the issuance and delivery of said note in the manner in which it was issued and delivered. Beyond controversy, if defendant in error had acquired the note before its maturity for value, it would in law have meant just what was imported by the recitations on its face, and all testimony by which it was proposed to show the real transaction (that Welsh had agreed to make certain improvements on the land and had failed to do so) would have been excluded by the same statutory direction which makes available against the assignee of a negotiable instrument when acquired before maturity for value only the just discounts against such assignee. Nor are we aware of any rule which holds that false representations or concealment of material facts, made by one with knowledge thereof, which is intended to and does induce another to act thereon, will estop the one making such representations to deny the truth thereof. What is maintained is that that rule is without application here. The note acquired by defendant in error was past due, dishonored, and by the statutory law defendant in error knew, not as contended, that it represented the purchase price of land secured in its payment by the vendor’s lien, but that the maker, by refusing to pay it at maturity, had repudiated that identical presumption. The reverse would have been true had the note been acquired by defendant in error before maturity for value. Tbe statute, in recognition of commercial necessities surrounding tbe purchase and sale of negotiable instruments, adopts tbe bard and fast rule stated, and into wbicb the rule of es-toppel by conduct may not be projected when tbe effect would' be to destroy that rule. All authority bolds that, as against one who acquires a negotiable note after maturity, tbe maker can urge every defense that be could have urged in the hands of the original payee, and we deem it unnecessary to cite authorities in support of such a proposition. Such being tbe rule, and it appearing that Welsh was not entitled to recover upon the note for the reason that he bad abandoned tbe work, and as a consequence that tbe consideration for tbe note bad wholly failed, defendant in error occupied no better attitude than be, and as a further consequence the court erred in directing verdict against Hill and wife.

Accordingly, the judgment of the trial court as to Hill and wife is reversed, and judgment here rendered for them.

The judgment as to Welsh is affirmed.
      ig^Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    BROOKS v. STEVENS et al.
    (No. 458.)
    (Court of Civil Appeals of Texas. El Paso.
    June 10, 1915.
    Rehearing Denied July 1, 1915.)
    1. Evidence <&wkey;423 — -P'akol Evidence — IN-DORSEMENTS on Notes.
    Where one not the payee of a note indorsed it at the time of its inception without words expressing the nature of his undertaking, parol evidence, not to vary the indorsement, but to enable the court to understand the terms thereof as the parties understood them, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. &wkey;423.]
    2. B'iles and Notes <&wkey;241 — Indorsement-Liability of Indorsee.
    One not the payee of a note, who signs his name on the back thereof before delivery, without words to express the nature of his undertaking, is an original promisor or surety.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. ¡¡§ 542, 547-559; Dec. Dig. <&wkey;241.]
    3. Principal and Surety <&wkey;126 — Dis-char&e of Surety — Statutory Provisions.
    Under Rev. St. 1911, art. 6329, authorizing any surety on any contract to require the creditor, by notice in writing on the accrual of a cause of action, to forthwith sue thereon, and providing that a failure so to do will release the surety, a verbal notice by a surety, not acted on by the creditor, does not release the surety from liability.
    [Ed. Note. — For other cáses, see Principal and Surety, Cent. Dig. §§. 329-351; Dee. Dig. &wkey;> 126.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by R. E. Brooks against C. F. Stevens and another. From a judgment granting insufficient relief, plaintiff appeals.
    Reversed and rendered.
    A. M. John, of Houston, for appellant. E. B. Pickett, Jr., of Liberty, and Stevens & Stevens, of Houston, for appellees.
   WALTHALL, J.

Appellant, R. E. Brooks, sued appellees, C. F. Stevens and J. F. Richardson, in the county court at law of Harris county, Tex., alleging that appellees executed and delivered to him the promissory note hereinafter described, appellant “loaning said sum of money to defendant Stevens in consideration that said defendants make, execute, and deliver to him the said note,” etc., and further, that “defendant Stevens is the principal obligor, and defendant Richardson is liable as an indorser of commercial paper, on the face of which indorsement said sum of money as above set forth was loaned to defendant Stevens.” Appellee Stevens made no answer, but appellee Richardson appeared and filed an answer in which he stated: “This defendant indorsed same as a surety without any consideration whatever to him, but merely as an accommodation to the principal, C. F. Stevens, and only for the purpose of so lending his credit, and this defendant was simply a surety thereon, as was well known to the plaintiff when the note was delivered to him and accepted by him, and no part of the loan made to Stevens upon said note was received by this defendant, all of which plaintiff knew” — and defended on the grounds: (1) That appellant not having brought suit upon the note against O. F. Stevens at the first term of the court to which suit could be brought after the maturity of the note, or before the second term, and showing good cause why suit had not been filed to the first term, said appellee was discharged; (2) that the note having once been extended, with the consent of said ap-pellee, before its second maturity, “he expressly informed plaintiff to grant no further extension or extensions, and if the note was not paid by O. F. Stevens, the principal, when it next matured, to at once file suit for collection of same, and when this defendant so requested to promptly enforce collection of said note, thereupon plaintiff stated to this defendant he then owed to the other defendant herein, O. F. Stevens (who was principal maker upon said note), more than the amount of the note, and he (plaintiff) would take care of the note; and thereupon, when such statement was so made by plaintiff, he accepted it as releasing and discharging him from further liability upon said note, and he did not thereafter deem it necessary to see to it that plaintiff began suit to collect same at the first term of court after maturity thereof.” Appellant denied the allegations contained in the preceding paragraph numbered 2.

A trial before the court resulted in a judgment in favor of appellant against Stevens, and in favor of Richardson to the effect that appellee take nothing.

The court filed his findings of fact and as the findings are accepted by both parties as correct, we copy them.

“Findings of Fact.
“O. F. Stevens requested R. E. Brooks to loan him money represented by the note hereinafter mentioned. Brooks agreed that if Stevens could fux-nish Richardson on the note he would lend the money. Stevens subsequently, either by letter or personally, gave to Brooks the note sued on, which note is signed by Stevens, payable to the order of the maker, and contains on its back the indorsement of Stevens, and above Stevens’ name that of the defendant J. F. Richardson. Upon the receipt of this note Brooks furnished the money to Stevens. Brooks at the time understood that Richardson was placing his name on the note merely for the accommodation of Stevens and that Stevens was to get the full benefit of the loan. Subsequently, the note was renewed with the consent of Richardson. Before the note as renewed became due, and after the first renewal, Richardson and Brooks had a conversation in which Richardson insisted that the note be not again extended, and told Brooks that he wanted him to file suit on the note when it matured. Brooks told Richardson then that the Roywood Canal Milling- Company was owing Stevens some money and that the note would probably be taken care of. Richardson relied on this statement of Brooks and took no further steps to protect himself.
“The extension of the note which was agreed to by Richardson carried its due date up to February 15, 1910. On February 23, 1910, Brooks wrote to Stevens concerning said note as follows:
“ T wrote you on the 11th inst., regarding your note which I agreed to extend until February loth, Mr. Richardson having agreed, as indorser on same, that to extend to that date would be satisfactory. 1 trust it is now convenient for you to remit me to cover same.’
“And again, on May 5, 1910, Brooks wrote Stevens as follows:
“ ‘Referring to your note for $450, held by me, on which J. F. Richardson is indorser, would say that this note is some time past due and unless Mr. Richardson will write me agreeing on some fixed date for the extension of the note, I will be compelled to sue on same to protect the indorsement. I don’t wish to do this, and would ask that you have the matter arranged at once.’
“On May 6, 1910, Stevens wrote Brooks a letter in which he used this language:
“ ‘Xours of the 5th inst. has been received, and in reply thereto, I have to say that I will have the agreement to extend signed by the indorser 9.S rCQUCSted#*
“On May 27, 1910, Brooks wrote Stevens as follows:
“ T wrote you on May 21st, regarding waiver that you were to send me from Mr. Richardson, agreeing to extension of time of payment of your note, on which he is an indorser. 1 have not heard from you regarding this matter, and I must ask that it be given attention at once.’
“The consent of Richardson to a further extension of the note was never gotten, and B'rooks brought suit on the note against Stevens, as principal, and against Richardson alleging that he was liable herein as indorser of commercial paper on the strength of which said indorsement the said sum of money, as above set out, was loaned by plaintiff to the defendant Stevens. Some three years after the maturity of the said note, under the said extension, Brooks filed this suit. Defendant Richardson defends on the ground, among other grounds, that he was an indorser, and that the suit was not brought within the first term of court after maturity of the’note nor at the second. Brooks’ contention is that, under the facts, Richardson is a surety, and filed no written notice with the holder of the note requesting that suit be instituted at maturity, and consequently the suit was not properly filed.”

Appellant presents one assignment of error, insisting that there was error in rendering judgment for appellee Richardson on the facts, because they show appellee to be a surety, and not an indorser, merely, of the note. The first proposition is to the effect that where a person, not a payee, signs his name upon the back of a note at the time of its inception, without words to express the nature of his undertaking, he is liable as an original promisor .or surety, and not as an indorser merely. The position of Richardson’s name upon the note being one of ambiguity in itself, the trial court heard parol proof to show the circumstances in order to disclose the intention, and thereby the true and full relation of all the parties to the transaction and their understanding of it, under which the name of Richardson was written upon the note. If we read into the note, as we must do, the facts found by the court, not for the purpose or to the extent of altering, varying, changing tl)e terms of, or to impeach the original or present validity of the writing as found, but only for the purpose of understanding the terms of the paper itself as the parties understood it at the time of its execution and delivery, they disclose that Stevens requested of Brooks the loan of the money for himself; Brooks agreed with Stevens that if Stevens could furnish Richardson on the note he would lend the money. Richardson was not the payee, and placed his name on the note at its inception and before delivery to Brooks merely for the accommodation of Stevens, and with the understanding of both Brooks and Stevens that Stevens was the beneficiary of the loan and to get all the money, and Stevens handed Brooks the note and received the money.

Appellant refers us to cases from the Supreme Court of this state as sustaining his position.

In Cook v. Southwick, 9 Tex. 615, 60 Am. Dec. 180, Southwick sued Cook and Hubbell on a note which reads as follows:

“Galveston, Oct. 1st, 1846.
“$300.00. Five months after date I promise to pay to Robert O. ■ W. McManus, three hundred dollars, being in part payment for the steamboat called the Dittle Sally.
“[Indorsed] Henry Hubbell.
“[Signed] Wm. M. Cook.”

Justice Wheeler, in discussing the effect of such an indorsement, used this language:

“The authorities are numerous to the effect that where a person not the payee of a note signs his name upon the back at the time of its inception, without any words to express the nature of his undertaking, he is liable as an original promisor or surety.”

In H. B. Carr, Ex’r, v. Rowland, Ex’r, 14 Tex. 275, a suit was brought by Rowland against Meyers and Carr upon a promissory note made payable to Hale and signed by Wm. Spicer, and upon the back of which appeared the following: “Indorsed by Gibson Meyers and H. B. Carr.” Justice Wheeler, in deciding that case, said:

“The indorsement of the note by the appellant’s testator was not in the character of an ■ordinary indorser or assignor. It was in that of a guarantor or surety. He was not a payee, transferring the note by his indorsement. He put his name upon the back of the note, which was payable to others, who transferred it to the plaintiff. He therefore is not to be considered in the light of a common indorser, and was entitled to none of the privileges of that character.”

In the case of Latham v. Houston Flour Mills, 68 Tex. 127, 3 S. W. 462, on a note made by appellee and signed by it through its president and made payable to D. F. Stuart, and with the names of Shepherd and Latham written on the back of the note and before that of the payee and done before the delivery of the note, the Supreme Court, speaking through Chief Justice Willie, referred to the two eases above, and said that when the proof is not otherwise our decisions seem to treat such indorsers as original promisors or sureties, entitled to the same rights and subject to the same liabilities. The contract of the irregular indorsers is what may be written above their names consistently with the transaction. What may be written is that which the law implies from the indorsement, or what the parties have agreed on as to the liability of the in-dorsers. Richardson wrote nothing on the note, except his name, knowing that the note was to be thereafter transferred by indorsement of Stevens and delivered to Brooks for the loan of money. He was not the payee of the note; he signed it at its inception and •before delivery, and without words to express the nature of his undertaking. We are ■of the opinion that his liability was that of an original promisor or surety. Brooks was required to take notice that Richardson was .a surety. Appellant’s first assignment of error must be sustained.

It is unnecessary to pass upon the second and third propositions under the first assignment to the effect that the surety, Richardson, orally, and before maturity of the note, insisted that the note be not again extended and that suit be filed on the note when it matured, and the insistence not acted on by Brooks, as the facts stated will not have the effect to release Richardson as surety from his liability. Under the Revised Civil Statutes of this state, art. 6329, any person bound as surety upon any contract, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute suit upon such contract, and a failure to conform to the demand would release the surety. But there is neither pleading by appellee, nor fact found by the trial court to suggest such defense, but the defense made here is that Richardson was an indorser in its limited and restricted sense. However, the propositions of appellant correctly state the law. A verbal notice by the surety, not acted on by the creditor, will not release the surety from liability. Leazar v. Menefee, 61 S. W. 438; Dallas, etc., v. Thomas, 36 Tex. Civ. App. 268, 81 S. W. 1041; Behrns v. Rogers, 40 S. W. 419.

The case is reversed as to appellee Richardson, and here rendered that appellant, R. E. Brooks, recover of and from the defendants. C. F. Stevens and J. F. Richardson, the sum of $749.63, with interest thereon from the 25th day of May, 1914, the date of the rendition of the judgment, at the rate of 10 per cent, per annum until .paid, together with his costs.
      ©jusFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    HOPE v. HOPE.
    (No. 7402.)
    (Court of Civil Appeals of Texas. Dallas.
    June 19, 1915.)
    Divobce <&wkey;133 — Abandonment — Agreed Separation — Evidence.
    Evidence, in an action for divorce, held to show, not an agreed separation, but a voluntary abandonment by. the wife, without fault of the husband, merely acquiesced in by him, entitling him to divorce.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 446-448; Dec; Dig. &wkey;>133.]
    Appeal from District Court, Kaufman County; F. L. Plawkins, Judge.
    Action by J. P. Hope against Maud Hope. From an adverse judgment, plaintiff appeals.
    Reversed and rendered.
    Wynne & Wynne, of Kaufman, for appellant.
   RAINEY, C. J.

Appellant, J. P. Hope, sued the appellee, Maud 1-Iope, for divorce. After alleging his bona fide residence in this state, and in Kaufman county, for more than 12 months, and the marriage of Maud Hope and himself, he further alleged that she had voluntarily abandoned, without cause, his bed and board for more than three years. The appellee did not appear and answer plaintiff’s petition. The court heard evidence and denied plaintiff’s plea for divorce, lie appeals from the judgment.

The evidence adduced on the trial, as shown by the statement of facts, is:

J. P. Hope, the plaintiff, testified:

“I am the plaintiff in this cause. The defendant and myself were married on the 28th day of January, 1910. I was 21 years of age at the date of the marriage. We lived together as man and wife until the 10th day of September, 1910. We were married in Kaufman county, Tex. During the time that we lived together as man and wife I was kind and affectionate toward the defendant, and endeavored to make her a good husband. She did not seem to like my people, and wanted me to move away; she was very jealous of me, and quarreled a great deal. She would not assist me, and did not seem to care whether we got along or did any work or not. She had threatened to leave me. On the 10th day of September, 1910, she asked me to take her over to her father’s on a visit. I told her that X would do it, so I hitched up • the horse to the buggy, and she packed a grip and we drove over to her father’s. On the way over there she told me that she was not going to live with me any more. I asked her to live with me, and she told me that she did not know whether she would or not. I did not know at the time she asked me to take her to her father’s house that she intended to leave me. She told me, before I left her at her father’s house, that she would let me know before the next Saturday whether or not she would live with me; that, if she did not write me to come over after her, she would not live with me. I left her with that understanding, asking her to live with me, and expecting her to return or to write me to come over after her. I wanted to live with her at that time. * * * Yes, sir; I took her over to her father’s house. She asked me to do so. She told me that she would not live with me. She told me that she would write me by Saturday whether to come over there after her or not. If she did not write for me to come after her, I was to understand that' she would not live with. me. I did not hear from her, so I went out close to Ft. Worth, Tex., and visited my uncle out there. On the Saturday afternoon, after I left home, she came over to our house with her father. I was not present. She told my mother that she had come after her things, and that she did not intend to live with me any more. Her father told my mother in my wife’s presence that she should not live with me any more, and that if I came around to their place to see her or after her, he would kill me. I did not go. She told me at the time I left her at her father’s house that she would write me whether to come after her or not. She did not write for me to come after her. I had asked her to reconsider. Q. It was sort of an agreed separation was it not, Mr. Hope? A. Well, you might call it that. I left home before they came over there, and without waiting to see if she would write. I did not know they were coming. I have not seen her since that time I took her over to her father’s house. * * * I heard that she had moved to West Texas. Later they moved to Florida, or some other state, and then they moved back to Wood county, Tex. I have never heard from her directly; T just heard from her through the neighbors. It has been four years since I lived with her or had anything to do with her. There were no children by the marriage. It was agreed that I was to go over after her, if she wrote me.”

Mrs. N. A. Hope, being sworn, testified:

“I am the mother of J. P. Hope. I know the defendant. They were married in 1910, and they lived together a few months. The defendant did not seem to care very much about the plaintiff. The plaintiff was good to her all the time. She seemed jealous of the plaintiff, and did not try to help him out any. She would not work-, and just quarreled about all the time. She went for a visit to her father’s. I did not know that she intended to leave the plaintiff-until he came back home and told me that she had said that she would not live with him any more. He said that she had agreed to let him know before Saturday whether to come back after her or not. He stated that he was going back after her, if she let him know, but that, if she did not let him know, he was to understand that she would not live with him any more. He did not hear from her. He left home Saturday morning and went to Ft. Worth, Tex., on a visit. She came to our house on Saturday afternoon, late, and asked to get her clothes. Her father was with her. She stated that she did not intend to live with my son any more. Her father stated to me in her presence that, if my son came around their house or to see his wife that he, the father, was going to kill him. They left my house, and I have never seen them since. I heard that they had moved out of the state. It has been about four years since they left this country, and my son has not lived with his wife or heard from her since they separated.”

J. P. Hope, recalled, testified:

“I had agreed to go back after my wife and would have gone back after her. I wanted to live with her. I do not want to live with her now. I think that her actions have rendered our further living together as man and wife entirely insupportable. I know that I will never live with her any more. I have lived in Texas for 24 years and in Kaufman county for more than 10 years. I am a bona fide inhabitant of the state of Texas.”

As suggested by counsel for appellant the trial court may have concluded from the evidence that there was an agreed separation. Appellant, while being examined, was asked by the court this question, “It was sort of an agreed separation, was it not?” and he answered, “Well, you might call it that” This answer does not necessarily mean that there was an agreement between himself and wife to separate, but all the evidence negatives such not to be the fact.

In the ease of Besch v. Besch, 27 Tex. 390, where the husband had abandoned the wife, the court, in reviewing the case, said:

“The fact that a husband shall have left his wife for three years with the intention of abandonment is made by the statute a specific cause of divorce. It is immaterial what were the circumstances attending the separation, if the wife is in no manner chargeable with it either by act or consent. That the separation was not accompanied by wanton acts of outrage or cruelty on the .part of the husband towards her, is of no importance. It is the fact solely of his separation from her for the requisite length of time, with the continuing intention on his part, during such time, not to perform his matrimonial obligations, which entitled her to a rescission of their matrimonial contract.”

The evidence of the appellant shows that he was in no way the cause of appellee leaving his bed and board, and that he was willing to live with her. It is also shown that she voluntarily abandoned him with the intention of not longer living with him as his wife. The appellant having done no act to cause her to leave him, he would be entitled to a judgment granting him a divorce. If there was a mutual understanding between them that they would separate and live apart, of course the law would not sanction it by granting a divorce to either party. But where the wife, as here indicated by the evidence, is jealous, quarrelsome, not willing to aid her husband, and generally disagreeable, and the husband merely acquiesces in her voluntarily leaving him, but still being willing to live with her, such would not prevent his being entitled to a divorce.

The evidence failing to show an agreed separation on the part of appellant the judgment is reversed, and judgment here rendered for appellant.
      <g^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WEIS v. SKINNER.
    (No. 462.)
    (Court of Civil Appeals of Texas. El Paso.
    June 10, 1915.)
    1. Judgment <@=»244^-Descriptive Words— Effect.
    A judgment against a defendant, “as manager of * * * theater and agent of [a third person],” rendered on a petition referring to defendant in the same way, is a personal judgment against him; the quoted words being only descriptive.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 430, 439, 440; Dec. Dig. &wkey;244.]
    2. THEATERS AND SHOWS <&wkey;4 — TICKETS — Contracts — Persons Liable foe Breach.
    Where an assistant manager and cashier of the lessee of a theater sold a ticket for a performance to a person, who gave it to his daughter, who was ejected from her seat by another employé of the lessee because the ticket was not for the performance, the manager was not liable for breach of contract because he was not a party thereto.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 4; Dec. Dig. <&wkey;>4.]
    3. Theaters and Shows <&wkey;4 — Tickets — Torts — Persons Liable.
    The manager was not liable in tort for damages for humiliation suffered by the ticket holder’s expulsion, in view of her acquaintances, and for loss of the price of the ticket; another agent and employé of the lessee having sold the ticket and another employé having ejected her.
    [Ed. Note — For other cases, see Theaters and Shows, Cent. Dig. § 4; Dec. Dig. 4&wkey;4.]
    Appeal from Harris County Court; K. C. Barkley, Special Judge.
    Action by Clara G. Skinner against Dave A. Weis and another. From a judgment for plaintiff against defendant named, he appeals.
    Reversed and rendered.
    Fisher, Campbell & Amerman and Gill, Jones & Tyler, all of Houston, for appellant. Geo. H. Currier, of Houston, for appellee.
   Statement of Case.

HIGGINS, J.

Appellee filed this suit, complaining of Albert Weis, of New York City, and “of David A. Weis, and of David A. Weis, manager of the Prince Theater, and of David Weis, agent of Albert Weis,” alleging that the Prince Theater is located in Houston, Tex., and is a public place of amusement, where plays are given, and on February 17, 1914, Albert Weis was the lessee of said theater, and David Weis, whose residence was in Houston, Tex., was the local manager of said Prince Theater, and the agent of Albert- Weis, duly authorized to transact all business and to do all things necessary in the local business of said theater; that on the day aforesaid there was given in the Prince Theater a play, entitled “Everywo-man,” and on said date the father of plaintiff purchased at the box office of the theater, and from the authorized agent of defendants, two box seats good for the night performance, and that her father gave her one of the seats, which seat was in a conspicuous part of the house and in plain view of many people ; that she attended the performance and took possession of said seat, and in the midst of the performance, and in plain view of the audience, the defendants, and each of them, their servants and agents, whose acts were adopted as the acts of defendants, and who were acting under instructions of defendants and each of them, did illegally, with malice and force and arms and orders and threats, eject plaintiff from her rightful seat and place and give possession thereof to strangers; that she made demand of defendants, their servants and agents, for another seat and for the return of her money, and defendants failed and refused to either return the money or to allow her another seat; that, by reason of the matters and things set forth, she suffered great humiliation and shame, and, to preserve her reputation, she had spent much- time in making explanations to friends, and she had suffered great anguish, physical and mental, to her damage in the sum of $970, for which she sued. Plaintiff dismissed her suit as to Albert Weis, and thereafter, upon trial, without jury, a judgment was rendered in plaintiff’s favor in the sum of $50 against “David A. Weis, manager of the Prince Theater and agent of Albert Weis.” From this judgment, said defendant has appealed.

There is no statement of facts in the record, and the ease is before us for review upon the findings of fact and conclusions of law of the trial court.

From these findings of fact, it appears that on February 17, 1914, Albert Weis was the lessee and proprietor of the Prince Theater, in Houston, Tex. David A. Weis was the manager of same and the duly authorized agent of Albert Weis, and on the afternoon of that date the father of plaintiff in person purchased from the box office of the theater two tickets for the play “Everywoman,” which on that day was being played in the theater. Said tickets were purchased from Raymond Branham, who was assistant manager and cashier of Albert Weis. When application was made to purchase the tickets, it was stated to the person in charge of the box office that they were desired for the night performance. The tickets which were delivered to her father were tickets for the matinee performance of said date, and had across their face the word “Matinée”; the letters not being printed but being made by uncolored space and being in block type, and had appearing thereon “Serial Number 59,” which was the serial number of the tickets used for the matinée performance. The tickets had further printed thereon, “Good only for performance at which this number is used,” and also having the provision, “The management reserves the right to revoke the license granted by this ticket by refunding the purchase price.” The father delivered one of the tickets to plaintiff, and she entered the Prince Theater at the usual time for the night performance with her sister, who had the other ticket purchased by her father, and presented said two tickets at the door, and they were shown by one of the ushers of the theater to seats in the section called for by said tickets, in the front lower right-hand box; they being unescorted by any man after they entered the theater, except in so far as they were shown to their seats by the usher. Shortly after the prologue of the performance had started, one of the ushers of the theater brought a party of 10 or 12 people into the box and stated to the plaintiff and her sister that such parties had tickets calling for the seats occupied by them, and, upon being shown the stubs of the tickets held by the plaintiff and her sister, the usher informed them that said tickets were for another performance, and were not good for the night performance, and requested that they vacate said seats, and some one in this party said, “Why don’t they hurry and get out?” Plaintiff and her sister vacated said seats at the request of the usher, and asked that they be given other seats from which to witness the performance. The request to vacate was made very courteously, and no force was used or threatened in causing thein to vacate, and plaintiff and her sister were conducted by the usher to the rear of the theater, and the defendant, Dave A. Weis was then sought and found by the usher and brought to the ladies, and they took up with him the question of being furnished with other seats in the theater. There were no other unsold seats in the house which could be furnished to them, and this fact was stated to them by Dave A. Weis. Plaintiff and her sister then demanded of Dave A. Weis the return of the money which had been paid for their seats, which demand was refused, and they then remained in the theater and got permission to sit on the steps leading up to one of the Are exits on one side of the theater, and from such place witnessed the performance. The usher who requested plaintiff and her sister to vacate the seats was Willie Stansberry, who was at that time in the employ of Albert Weis, lessee of the Prince Theater. Two dollars each were paid for the tickets. Plaintiff sustained $50 actual damages by reason of the humiliation caused by being compelled to move out of the box in view of her acquaintances and friends and loss of purchase price of tickets.

Opinion.

The reference in the petition and judgment to David A. Weis as manager of the Prince Theater and agent of Albert Weis is deseriptio personae. The judgment rendered is simply a personal judgment against him. The descriptive words do not alter its effect in this respect. Under the facts found by the court, a judgment against David A. Weis cannot be sustained upon any theory.

If it be regarded, as a suit for breach of contract, then it is sufficient to say that he was not a party thereto, and is not liable in damages for breach thereof.

On the other hand, if it be regarded as based upon tort, as appellee contends it should be, then appellant was not a party to the wrongful acts complained of, which inflicted the damage, and, of course, is not liable therefor. Another agent and employe of Albert Weis sold the tickets, another escorted plaintiff to her seat and ejected her therefrom. David A. Weis had no connection whatever with the matter until subsequent to her ejection from her seat. The court found that the damage which she sustained arose by reason of the humiliation caused by being compelled to move out of the box in view of her acquaintances and friends and loss of purchase price of tickets. Appellant was in no wise responsible for the return of the purchase price of her ticket, and was not liable to her for alleged tortious acts of other agents and employes of Albert Weis. Upon no theory could the judgment herein be properly rendered against appellant.

Reversed and rendered.
      <@ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    TAYLOR v. FIRST STATE BANK OF HAWLEY et al.
    (No. 8177.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.
    On Motion for Rehearing, July 3, 1915.)
    1. Fraud @=358 — Representation as to Credit—Good Faith—Sufficiency of Evidence.
    In an action against the cashier of a bank for having fraudulently misrepresented the financial standing of a third party, evidence held sufficient to show that the representation by letter was made in good faith.
    [Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. <&wkey;58.]
    2. GUARANTY &wkey;>4r-LETTEB— CONSTRUCTION.
    In determining whether a letter as to the credit of a third party constitutes a guaranty, the instrument will be construed as a whole.
    [Ed. Note.—For other cases, see Guaranty, Cent. Dig. §§ 3-6; Dec. Dig. <@=34.]
    3. Guaranty <&wkey;4r—Letter as to Third Party’s Credit.
    Where the defendant, assistant cashier of a bank, in response to a telegram to the bank inquiring as to the financial responsibility of a corporation, answered by letter that, as the manager of the company resided elsewhere, he could not be communicated with, and the bank was not in a position to reply to the inquiry as to what arrangements he had made for the protection of a draft, but that the writer personally had extended him a line of credit sufficient to carry on his business, and knew of no reason at the time why drafts on him should not be promptly protected, it being printed on the bottom of such letter in red ink that any statement as to the responsibility of any person, firm, or corporation was matter of opinion only, given solely from courtesy, and without responsibility or prejudice to the bank or its officers, such letter was not a guaranty obligating defendant to pay the draft on the corporation’s failure to do so, since defendant did not make the distinct promise to pay the debt of another required by law for a guaranty, as a contract of guaranty exists only where the writing by its terms evidences with reasonable clearness the intent of the party sought to be charged to become bound to pay the debt.
    [Ed. Note. — Eor other cases, see Guaranty, Cent. Dig. §§ 3-6; Dec. Dig. <@=^4.]
    4. GuaRanty &wkey;>27 — Principal and Surety <&wkey;50 — Contract—Construction.
    The rule that the contract of a guarantor or surety is to be strictly construed in his favor is applied only after the legal scope of its terms is determined by the same rule of construction applied to other writings.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 28; Dec. Dig. <&wkey;27; Principal and Surety, Cent. Dig. §f 103, IOSVí ; Dec. Dig. &wkey;59.]
    5. Fraud <&wkey;9' — Elements.
    To charge a party for fraud in having made a false statement in good faith, such party must have made a false statement of some material fact, which, being relied on, misled another to his prejudice.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 8; Dec. Dig. <&wkey;9.]
    On Motion for Rehearing.
    6. Appeal and Error <&wkey;832 — Harmless Er-eor — Decision on Erroneous Ground.
    Where the court on appeal was in error in reversing the case on a theory not presented by the pleadings or the charge, and such court also held that the judgment could not be supported on the issue on which the case was tried, the error was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. <@=> 832.]
    7. Appeal and Error <&wkey;832 — Erroneous Consideration op Assignment oe Error-Waiver.
    Where, on the original hearing, the appel-lee did not object to consideration of an assignment of error that the evidence on an issue was insufficient to sustain the verdict, such ap-pellee could not object to consideration of the assignment on motion for rehearing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215 — 3228; Dec. Dig. 832.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by the First State Bank of Hawley and others against Paul G. Taylor and others. Judgment for plaintiffs, and the named defendant appeals.
    Reversed and rendered for appellant.
    Geo. F. Howard, of Houston, and Eugene De Bogory, of Abilene, for appellant. J. W. Boynton, of Anson, for appellees.
   CONNER, C. J.

This is an appeal by Paul G. Taylor from a judgment against him in the sum of 8454.38 in favor of the First State Bank of Hawley. The judgment was also in favor of the bank against A. E. Graham and S. G. Meng. As to these latter parties, however, no complaint is made, and we, therefore, need not notice the proceedings relating to them.

The circumstances upon which the bank based its claim against the appellant Paul G. Taylor are substantially as follows: Graham was engaged in the business of purchasing peanuts from farmers in the vicinity of Hawley, Jones county, under an agreement with Meng, who was doing business in Harris county, Tex., under the trade name of the Lone Star Peanut Company, that Graham would ship the peanuts from Hawley, draw drafts upon Meng at the agreed prices, attaching bills of lading thereto, which drafts were to be paid by Meng upon the receipt of the peanuts at their specified destination in Harris county. Pursuant to this plan, Graham had purchased several cars of peanuts, secured the bills of lading “to shipper’s order,” and attached thereto drafts, and sought to have such drafts cashed at Hawley by the appellee bank. The appellee bank was willing to do this; but desiring assurance that the drafts would be paid by the Lone Star Peanut Company, as had been agreed between Meng and Graham, sent a telegram to the South Texas Commercial National Bank of Houston, Tex., inquiring as to the financial responsibility of the Lone Star Peanut Company. In answer to this telegram the Hawley Bank received the following letter written by Paul G. Taylor, which we here set out:

“Houston, Texas, 11 — 8—1913.
“First State Bank, Hawley, Texas — Gentlemen: We are to-day in receipt of the following telegram: ‘Lone Star Peanut Co. draft good with B/L attached for 5 or 6 cars peanuts.’ Which, being received after close of business, we are taking the liberty of replying thereto by mail instead of wiring you. We presume your inquiry is intended to inquire as to whether or not we would protect draft with B/L attached for 5 or 6 cars of peanuts. As Mr. Meng, the manager of the company above mentioned, resides at Katy, Tex., and we are unable to communicate with him to-day, we are not in position to reply to your inquiry, as we do not know what arrangements he has made for the protection of the draft.
“The writer, personally, however, has extended Mr. Meng a line of credit sufficient to carry on his business, and I know of no reason, at this time, why drafts on him could not be promptly protected.
“Yours very truly,
“Paul G. Taylor, Asst. Cashier.”

On the bottom of said letter is printed the following in red ink:

“Confidential: This information is furnished by request, and any statement made on the part of this bank or any of its officers, as to the responsibility or standing of any person, firm, or corporation, or the value of any property or securities, is a matter of opinion only, and given as such solely from courtesy and without responsibility or prejudice to this bank or its officers.”

Upon the receipt of this letter the appel-lee bank, after certain proceedings not necessary to notice, received and cashed Graham’s drafts on the Lone Star Peanut Company aggregating several thousand dollars. But the drafts when forwarded to Houston for collection were refused payment and protested. The Hawley Bank thereupon sent an agent to Harris county, took charge of the peanuts and sold them, and applied the proceeds to the payment of the Graham drafts; hut the drafts, plus the expenses of the sale, protest fees, etc., exceeded the amount for which the peanuts sold in the sum of $454.-38, to recover which this suit was instituted, as stated in the beginning.

Under the undisputed evidence and ap-pellee’s admission in the lower court, the liability of the appellant, Paul G. Taylor, rests alone upon the letter written by him herein-before quoted. Appellee alleged that it had been fraudulently written; that it was false, and that it, in legal effect, constitutes a guaranty on the part of Paul G. Taylor of the payment of the drafts drawn under the circumstances we have stated. Paul G. Taylor testified by deposition, in substance, that previous to the date of his letter he had extended a line of credit to Meng secured by collateral security which varied several times during the life of the indebtedness from $1,200 to $3,665; that the only business relation between Meng and himself was that of creditor and debtor ; that he received no compensation in any manner for the letter, and that it was written “purely out of courtesy”; that he had at no time a contract, verbal or otherwise, with Meng in which he had agreed to make advances other than a personal loan upon security offered, as before mentioned; that at the time of the letter he did not know that Meng was not personally able to take care of his own obligations or drafts, or that he was relying entirely upon him (Taylor) to furnish him funds with which to do an unlimited volume of business; that he was not aware that the First State Bank of Hawley was contemplating the actual cashing of drafts on the Lone Star Peanut Company, but supposed that any drafts of this nature would be handled, as is a more frequent custom of banks, for collection only. In answer to interrogatories he said, among other things, that he had no record that would enable him to state how long Meng and the witness had been negotiating with each other at the time the letter was written, but believed the original loan to Meng to have been dated several months prior to the writing of the letter, during which period he saw very little of Meng and knew very little concerning the details of his affairs; that he could not give the dates of various loans made to Meng, nor did he have any means at his command which would enable him to give even the approximate dates of the different loans.

If there is any substantial contradiction of the testimony of appellant, as above stated, our attention has not been called to it, and we think it may be safely said that the undisputed facts show that the letter was written in good faith. Can the letter then' be said to constitute any such guaranty or assurance of the payment of the Graham drafts as -will support the judgment in this case? We think not The letter, of course, is to be construed as a whole. The information was clearly to the effect that the bank to which appellee’s telegram had been addressed would not undertake to protect the drafts, and was without information of what arrangements, if any, Meng had made to do so. The letter also conveyed the information that Mr. Meng resided at Katy, Tex., and ■ that immediate communication could not be had with him; and the further statement of the writer that he had “extended Mr. Meng a line of credit sufficient to carry on his business,” and that he knew “of no reason at this time why drafts on him could not be promptly protected,” seems clearly to be in the nature of a passing statement, intended merely to convey to the Hawley Bank such knowledge or information as was then in the possession of the writer. Especially is this true in view of the statement in red ink following the letter, and marked “Confidential,” to the effect that the information was furnished solely from courtesy, and without responsibility or prejudice to the bank or its officers. The letter falls far short, we think, of that character of distinct guaranty or promise to pay the debt of another which is required by the law. See Hughes v. Peper Tobacco Warehouse Co., 139 N. C. 158, 51 S. E. 793, 1 L. R. A. (N. S.) 305, and cases cited in note, 111 Am. St. Rep. 778; Hill Merc. Co. v. Rotan Gro. Co., 127 S. W. 1080; American Surety Co. v. Loen, 49 Tex. Civ. App. 98, 107 S. W. 938.

While the rule that the contract of the guarantor or surety is to be strictly construed in his favor is applied only after the legal scope or effect of the terms used is determined by an application of the same rules of construction that are to be applied in the determination of the legal effect of any other writing (see 5 Elliott on Contracts, § 3941), yet, as in the ease of other contracts, the minds of the parties must meet in the same sense on the same proposition. The contract of writing, by its terms, must, with at least reasonable clearness, evidence an intent on the part of a party sought to be charged to become bound to pay the debt, in case of default on the part of the primary obligor. In the North Carolina case cited the following letter was relied upon as constituting a guaranty:

“St. Louis, Mo., Mar. 19, 1897.
“Messrs. W. T. Hughes & Co., Louisburg, N. C. — Gentlemen: Your letter of the 11th inst., making inquiry about the general standing of J. E. M. Walker, received. We regard him as a perfectly reliable, trustworthy gentleman, with whom your samples and sales would be entirely safe, and doubly so, as all tobacco of yours that might be shipped would come direct to the Peper Tobacco Warehouse Co., and the payment of all such tobacco would be made by us to you for all sales. Yours truly,
“Nicholas N. Bell, Manager.
“Per Hall.”

The court said:

“We do not think that this letter constituted a guaranty by the defendant to Hughes & Co., of payment of all tobacco which they would ship J. E. M. Walker. A guaranty is a contract— an aggregatio mentium. This letter is, on its face, merely a response to a letter of inquiry to ascertain the general standing’ of J. E. M. Walker, and not to a request for them to guarantee, purchases made by him. The reply contains what was asked for—information—and nothing more.”

In Switzer v. Baker, 95 Cal. 539, 30 Pac. 761, a person contemplating work for a lessee wrote to the lessor inquiring whether he would be paid for his work. The lessor answered: “You may rest assured that you will get your pay for all work done.” It was held that a guaranty could not be inferred from the letter.

In Kenneweg Co. v. Finney, 98 Md. 118, 56 Atl. 482, certain brokers negotiated a sale between other parties. The buyers, after the contract had been concluded, wrote to the brokers concerning the responsibility of the seller. The brokers replied:

“We are very much interested in seeing you get the goods, and, from the position we occupy, we would say that the contract is good, and that we will look after the same, both to your interest and for our own.”

It was held that the letter did not amount to a guaranty of performance.

So, in Thomas v. Wright, 98 N. C. 272, 3 S. E. 487, the following letter, written in answer to an inquiry as to the financial standing of an applicant for credit, was held not to constitute a guaranty:

“I have no fear in becoming responsible for the goods, but dislike to be troubled with the settlement of other merchants’ bills. I know he has bought a great many liquors from you, and has paid you up promptly. I see no reason why you should doubt him and ask for security. I recommend him as being a safe man to sell to, and I think you ought to allow him some credit, as he has never deceived you. His credit is good here, as I furnish him all his groceries and supplies. I hope you will ship his goods at once, as I see no good reason why you should not. I will look to your interest in this matter.”

These cases, we think, support the conclusion already stated, that in our opinion the letter in this case written by appellant does not support the judgment against him on the theory of a guaranty. If it be said that the plaintiff’s cause of action is also predicated upon fraud, then it must be held that there is no actual fraud, at least, inasmuch, as before stated, it appears that appellant’s letter was written in, good faith. If based on fraud in a legal sense arising from a false statement, though made in good faith, it must appear that the party sought to be charged made a statement of some material fact shown to be false, but which, being relied upon, misled another to his prejudice. In such cases the falsity of the fact is an essential element, which failing here, there can be no liability on this ground. So that we conclude that the judgment against appellant must be reversed and here rendered in his favor. The judgment against A. E. Graham and S. G. Meng is not disturbed.

On Motion for Rehearing.

Appellee very earnestly insists that we erroneously disposed of this case on the theory that the letter of Paul G. Taylor did not amount to a warranty, when no such theory was presented in the plaintiff’s pleading or in the charge upon which the case was submitted, the contention being that, as alleged and as submitted, the case is one of fraud only. While it is true, strictly speaking, that as made by the pleadings and as submitted the case seems to be one of fraud, yet the letter of appellant was declared upon, and there was a contention in appellant’s brief that the letter was relied upon, as a warranty, and this contention was not specifically denied. We therefore discussed the question as a possible basis for an af-firmance of the judgment. But if we were in error, as appellee now urges, in determining that the letter did not constitute a warranty, the error is harmless, inasmuch as we also held that the judgment could not be supported on the issue of fraud.

Appellee also insists that we erred in the conclusion that there was no evidence of fraud, and in here rendering the judgment, for the reason that appellant on the trial below made no objection to the court’s charge submitting the issue of fraud, and, on the contrary, requested a special charge on the subject, thus, as is contended, waiving any right on appeal to question the sufficiency of the evidence to sustain the verdict of the jury in appellee’s favor on that issue. On original hearing appellee made no such objection to a consideration of the assignments of error in this case, at least one of which directly attacked the judgment for want of sufficient evidence to sustain it on the issue of fraud, and it is now too late to; do so. See opinion on rehearing in Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S. W. 1149.

We think the motion for rehearing must be overruled.
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text:
    UNDERWOOD et al. v. TEXAS & P. RY. OO. et al.
    (No. 7357.)

    (Court of Civil Appeals of Texas. Dallas.
    May 8, 1915.
    Rehearing Denied July 3, 1915.)
    1. CONTRACTS <&wkey;186 — CONSIDERATION—PERSONS Entitled to Attack Consideration.’
    That a contract between a railway company .and a labor union providing for the employment of a specific percentage of employes fro-m members of such union, and preference to such members in employment, was unilateral, wanting in mutuality, and unenforceable at law, could not be complained of by strangers to the contract not in privity with the parties thereto.
    [Ed. Note.—For other eases, seé Contracts, Cent. Dig. §§ 790-797; Dec. Dig. &wkey;186.]
    2. Contracts <&wkey;108 — Validity — Public Policy.
    Such contract was not void as against public policy, as, in the absence of any conspiracy ■or combination against any individual or organization to prevent employment, the railway company was free to employ whom it pleased, especially in view of Pen. Code 1911, art. 1477, providing that it shall be lawful for persons engaged in any kind of work to associate themselves together and form trade unions and other organizations for the purpose of protecting themselves in their respective pursuits and employments, and article 1479, providing that notliing therein contained shall interfere with the terms and conditions of private contracts with regard to the time of service or other stipulations between employers and employés,_ and also in view of the fact that the membership of such union greatly exceeded the membership of any other union, and that a larger percentage of the members of a rival union complaining^ of the contract were employed than of the union in question.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 498-503, 505, 507-511; Dee. Dig. <&wkey;10S.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by J. A. Underwood and others against the Texas & Pacific Railway Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    J. C. Patton and H. P. Lawther, both of Dallas, for appellants. Flippin, Gresham & Freeman, Forest M. Anderson, C. C. Huff, and A. H. McKnight, all of Dallas, and Odell & Turner, Dee Estes, and T. J. Powell, all of Ft. Worth, for appellees.

       writ of error pending in Supreme Court.

   RAINEY, C. J.

This is a suit for a writ of injunction, brought by appellants against appellees to obtain relief from the continued enforcement and carrying out of a purported contract or agreement alleged to be in existence between the Brotherhood of Railway Trainmen and the defendant railroads, by the terms of which it is substantially provided that in the employment of switchmen in their yards no persons who were not members of the Brotherhood would be given employment by said railroads, and for a decree declaring said purported contract or agreement void. The grounds for such relief, as stated in the bill, are that the plaintiffs, being by occupation switchmen of many years’ experience; being .expert and proficient in said calling and fully competent to perform the duties of railroad switchmen; being able-bodied, industrious, and sober, with no habits disqualifying them from efficiently performing the duties of railroad switchmen; being heads of families dependent upon them for support; and being without means of earning a livelihood for themselves other than by work in their said trade — were refused employment as switchmen by the railroads, and were not permitted to continue in the employment of said railroads as switchmen, for the sole and only reason that they were not members of the Brotherhood of Railway Trainmen, in accordance with the provisions of said purported contract or agreement. Complainants charge that the defendant railroads claim that they are bound by the provisions and terms of their said contracts with the Brotherhood of Railway Trainmen, under which they are unable to employ any persons in their yards, in the state of Texas, as switchmen, who are not members of the Brotherhood of Railway Trainmen, and under which, if they should ascertain that any persons in their employment in their yards as switchmen were not members of said Brotherhood they were compelled to discharge them, regardless of their expertness and proficiency and their ability and qualifications to perform satisfactorily their work; that a person seeking employment with said railroads as switchmen in their yards is required to make written application therefor, and to state in said application whether he be a member of the Brotherhood of Railway Trainmen, and, if it appears that he is not a member of said Brotherhood, that he will be refused employment by said defendant railroads, regardless of his fitness, experience, expert knowledge, and qualifications for such work. Complainants further charge that said purported contract between the Brotherhood of Railway Trainmen and the defendant railroads is illegal and void, as being without consideration, against public policy, discriminatory, preventive of competition and of the freedom of contract, creative of a monopoly of labor, destructive of the liberty and property of the complainants, and creative of a combination in the interest of monopoly to prevent the employment, as well as to compel the discharge of competent men who were willing to work, but who were not members of the Brotherhood of Railway Trainmen, that its continued enforcement by the railroads and the Brotherhood of Railway Trainmen will work irreparable injury to complainants, and that they have no adequate remedy at law.

Appellees, railway companies, in their answer, admitted that they had an agreement with the Brotherhood of Railway Trainmen to give preference to the employment of Railway Trainmen on the part of the Missouri, Kansas & Texas Railway Company to not less than 85 per cent., and on the part of the Texas & Pacific Railway Company to 75 per cent., and to make no change in men now employed, but to accomplish this in the hiring of men as vacancies occur. Said railway companies further answered, denying that there was any agreement or understanding between each other to make contracts of employment with the Brotherhood of Railway Trainmen, and deny that any contract exists to employ said Brotherhood to the exclusion of other experienced switchmen.

The Brotherhood of Railway Trainmen answered, and, among other things, denies specifically that it had any kind of contract with any one or either of the railway companies set out in appellant’s bill that it would or would not employ any person as a switchman who was not a member of the said Brotherhood of Railway Trainmen. It further denied the allegations of plaintiffs, and set out portions of the contracts made, being, in substance, the same as admitted by the Missouri, Kansas & Texas Railway Company and the Texas & Pacific Railway Company in their answers; and further answered :

“It shows to the court that its membership is composed of one hundred and thirty-five thousand or more men, and that the Switchmen’s Union of which it verily believes and charges is the real plaintiff herein, and encouraging and instigating the bringing of this suit by the several plaintiffs who joined in the same, is an order composed, as it is informed and believes, of some nine or ten thousand members. It verily believes, and charges the fact to be, and so states, on information and belief, that it, the Brotherhood of Railway Trainmen, has an excess of membership in the ratio of more than ten to one over and above that of the aforesaid Switchmen’s Union, and that, among those within this state who by occupation pursue the business of switchmen, nine-tenths or more are membex’s-of its (defendant’s) order, and that its contracts with the several defendants herein, wherein it has sought to provide for a percentage employment basis of its members, is not only not discriminatory as to nonmembers of its order, but, on the other hand, is exceedingly fair and just, and, if there be discrimination in said percentage, it is against the defendant rather than those who are not its members.”

The plaintiffs dismissed as to all railway company defendants, except the Missouri, Kansas & Texas Railway Company and the Texas & Pacific Railway Company, and the case was tried as to them and the Brotherhood of Railway Trainmen. Upon a hearing the trial court refused to issue the writ of injunction, and entered judgment for ap-pellees, from which appellants prosecute this appeal.

From the evidence adduced on the trial we draw the following conclusions of fact: The following articles of the contract entered into between the Missouri, Kansas & Texas Railway Company and the Brotherhood of Railway Trainmen that pertain to the issues herein are:

Article No. 1 (b). “In the employment of yardmen, the companies will employ none but reliable and experienced men, when available.”
Article No. 17. “Yard crews will not be required to work short handed, when experienced yardmen are available, and will not be required to work inexperienced men when experienced men are available.”
Article No. 18 (a). “It is understood that the Brotherhood of Railroad Trainmen represented in this agreement will he insured not less than eighty-five per cent, of the yardmen employed in each yard, and will be given preference in the employment in each yard, and will be given preference in the employment of yardmen, when available.”
(b) “The foregoing will not be retroactive, and will not displace men who are now properly assigned.”

The contract made with the Texas & Pacific Railway Company was substantially that made with the Missouri, Kansas & Texas Railway Company, except the men to be employed was 75 per cent, instead of 85 per cent. After these contracts were entered into, the railway companies required all applicants to state whether or not they were members of the Brotherhood of Railway Trainmen. The appellants each made application for employment as switchmen to one of the said companies, but, not being members of Brotherhood of Railway Trainmen, were turned down, and the reason given was that they were not members of said Brotherhood, although at that time money matters were stringent, many men were out of employment, and the railroads had reduced their force and were working just as few men as practicable. The membership of the Brotherhood of Railroad Trainmen is about 135,000, and that of the Switchmen’s Union about 10,000. In the Dallas yards the Switchmen’s Union has 14 men, the Railroad Trainmen 9, and there were 12 other men in these yards — nonunion men and O. R. C. men. In the Ft. Worth yards the Brotherhood of Railway Trainmen, appellee, has 00 per cent.; the Switchmen’s Union, the remaining men. In the Marshall yards, the Brotherhood of Railroad Trainmen have about 60 per cent.; the other yards a little less than 75 per cent, as applied to the Texas & Pacific Railway Company. That, within the last few months, a great number of men not only members of the Brotherhood of Railroad Trainmen, but other organizations, and nonunion men, were out of employment and applying for places but could not get the same. That in some of the yards negroes are employed as well as nonunion men, and union men other than appellants. In proportion to the membership of the appellee the Brotherhood of Railroad Trainmen, if there is any discrimination in the employment of men, it is against it. That members of the Switch-men’s Union have been employed in the Dallas yards since the agreement was made between the Brotherhood of Railroad Trainmen and the Texas & Pacific Railway Company and the Missouri, Kansas & Texas Railway Company. This is also true of other yards. That while the appellee, the Brotherhood of Railroad Trainmen has not got the percentage of men as per their agreement with the other appellees, still nothing has been done by it, or any of its members, to coerce or try and force them to give more Brotherhood of Railway Trainmen men employment even though a big percentage of its membership is out of employment and have been refused places just as Switchmen’s Union men have.

The appellants present, -first, that “the contract is unilateral in character, wanting in mutuality, and unenforceable at law.” They are met by appellees with the counter proposition that they are strangers to the contract, and there is nothing in the pleadings nor by the evidence in the record to show that there is any privity of contract between the parties. The appellants not being privies to the contract between the railway companies and the Brotherhood of Railway Trainmen, they are in no position to complain. But they say “the contract is void, as against public policy, as preventive of competition, and creative of a monopoly of labor.” We de not agree with this proposition. There is nothing to show that there was any conspiracy and combination between the appellees which contravenes any law of this state or of the United States. There is nothing in the contract which interferes with the interest of society nor interferes unlawfully with the liberty of appellants to pursue their chosen avocations consistent with the rights of others. The law gives to the railroad companies the right of contract and the same right to all other legal organizations so long as such contracts they make are not violative of law. Our statutes authorize laborers to associate themselves together, form trade unions, etc., for their protection, in their respective callings. Pen. Code, art. 1477. Article 1479 provides that the AntiTrust Law shall not interfere with the terms and conditions of contracts relating to private contracts as to service of employment between employer and employé. The contract between the railway companies and the Brotherhood of Bailway Trainmen was legal, it being for the benefit of the individual members of that order in securing-work, and for the railways in securing skilled and efficient workmen to protect their interest.

The evidence does not show that they would have been employed by the railroads had there been no contract with the Brotherhood of Railroad Trainmen. Appellants merely show that the railways gave as an excuse for not giving them employment that they were not members of the Brotherhood of Railway Trainmen. This the railways had the right to do. They were free to employ whom they pleased, and this right cannot be questioned, not being connected with any conspiracy or combination against any individual or organization to prevent employment.

In Delz v. Winfree, 80 Tex. 400, 16 S. W. 111, 26 Am. St. Rep. 755, it was said by Mr. Justice Henry, speaking for our Supreme Court:

“ ‘A person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice, or malice, and there is no law which forces a man to part with his title to his property.’ The privilege here asserted must be limited, however, to the individual action of the party who asserts the right. It is not equally true that one person may from such motives influence another person to do the same thing. If without such motive the cause of one person’s interference with the property or privileges of another is to sei’ve some legitimate right or interest of his own, he may do acts himself, or cause other persons to do them, that injuriously affect a third party, so long as no definite legal right of such third party is violated.”

This principle applies here, as the railways were acting within their legal rights in refusing appellants employment.

Appellees present the proposition that “workmen have the absolute right to combine and make agreements with reference to fixing wages at which they will give their labor, either individually or collectively, to employer, provided the same is free from any conditions that tend to obstruct or molest others from lawfully working elsewhere.” Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5, 2 L. R. A. (N. S.) 292, 111 Am. St. Rep. 730, 5 Ann. Cas. 280.

The decisions of this state and the United States, we think, make clear the distinction between the two classes of contracts in regard to labor, where such are legal and those affected by conspiracy, etc.

In the case of Jacobs v. Cohen, supra, this principle is very thoroughly discussed, and a distinction is clearly drawn between the two classes of contracts, and between the acts which would be lawful and unlawful. This case discusses the difference between the case of Curren v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, and that class of 'cases which come within the terms of the contracts existing between the appel-lees in the ease now before the court; Justice Gray in the case of Jacobs v. Cohen, supra, says:

“In the general discussion of the question (in Curren v. Galen), I conceded the general right of workingmen to organize for the common good of the members, and sought to show how the agreement and acts there in question were contrary to public policy and unlawful, because oppressive and restricting the freedom of others to engage in the same line of occupation, or to make a livelihood at their trade, as a penalty for refusing to join the defendants’ organization. That was a very different case from the present one. The subsequent case of National Protective Association v. Cumming, supra, in no wise overruled Curren v. Galen. It was not at all within the principle of the prior case. It concerned a dispute between rival labor organizations. The plaintiff organization sought to restrain the defendants from preventing the employment of its members and from procuring their discharge by any employer through threats and strikes, and the reversal of a judgment awarding the relief demanded was affirmed by this court. The right of the^ defendants, in that case, to refuse to permit their members to work with others, who were members of a rival organization, and to bring about their discharge upon the common work in which they were engaged, if confined to threats to withdraw from the work, or to ordering a strike of their own members, without resort to injurious acts, was admitted. The defendants’ effort was not to compel the others to join with their organization as a condition of being allowed to work, and, whether it was to secure only the employment of approved workmen (which was a possible inference from the facts), or whether it was to obtain an exclusive preference in employment, if without resort to force, or the commission of any other unlawful acts, it was not within the condemnation of the law.”

Justice Gray further says, in the Jacobs v. Cohen Case, that every man has the right—

“to carry on his business in any lawful way that lie sees fit. He may employ such men as he pleases, and is not obliged to employ those whom, for any reason, he does not wish to have work for him. He has a right to the utmost freedom of contract and choice in this regard.”

In the case of State v. Mitchell Furniture Company, 26 Mont. 22, 66 Pac. 496, 55 L. R. A. 644, 91 Am. St. Rep. 386, the court says—

“that a contract between private persons may provide that it shall cease to be obligatory or to be void if either party to it shall employ nonunion men, and the law will permit the provision to have its full force; and so with the inhibition against the hiring of union men, and with all other stipulations which are not impossible of performance, not immoral, nor contrary to public policy.”

A contract by an employer to employ, as laborer, none but members of a particular class or union is not void as against public policy. The railway companies by entering into the contracts herein, did not create a monopoly which interfered with or prevented others, unlawfully, from exercising the freedom of contract in relation to the sale of labor. There is reason in contracting with the Brotherhood of Railway Trainmen, for its membership greatly exceeded the membership of any other particular union, which was a guaranty of keeping a full working force. But the contract is not exclusive, and provides for only a certain per cent, of Brotherhood of Railway Trainmen, and the evidence shows appellees have a larger per cent, of other classes employed than of the Brotherhood of Railway Trainmen in proportion to membership.

In People v. Marcus, 185 N. Y. 257, 77 N. E. 1073, 7 L. R. A. (N. S.) 282, 113 Am. St. Rep. 902, 7 Ann. Cas. 118, it is said:

“Contracts for labor may be freely made with individuals or a combination of individuals, and, so long as they do not interfere with public safety, health, or morals, they are not illegal. The views of this court as to what constitutes freedom to contract in relation to the purchase and sale of labor, and as to what contracts relating thereto are lawful and enforceable, were stated with much detail and ability by the members of the court when the cases of National Protective Association v. Cumming, 170 N. Y. 345, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648, and Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5 [2 L. R. A. (N. S.) 292, 111 Am. St. Rep. 730, 5 Ann. Cas. 280], were decided, and the decisions in those cases are substantially controlling- in the determination of this appeal. In National Protective Association v. Cumming, supra, it was said that a person may refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it; but, even if the reason is that the employé refuses to work with another who is not a member of his organization, it does not affect his right to stop work or to refuse to enter upon an employment. The converse of this statement must be true, and an employer of labor may refuse to employ a person who-is a member of any labor organization or he may make an employment conditional upon the person employed refraining from joining or becoming a member of a labor organization. It is a well-known fact that combinations of employés and also of employers require their members to do or refrain from doing many things which they deem to their individual and combined advantage while a person not a member of such an organization can act in accordance with the terms of such agreement as he may choose to make. A person employing labor may decide that it is to his,advantage to employ only union labor, and be willing to enter into an agreement necessary to procure such labor or he may decide that it is to his advantage * * * to make the employment conditional upon an agreement that such employé will not join or become a member of a labor organization.”

Where Congress and several of the states have enacted laws attempting to limit the power of corporations and individuals in regard to making contracts for labor as they see fit such laws have been held unconstitutional by the appellate courts. Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441; Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5, 2 L. R. A. (N. S.) 292, 111 Am. St. Rep. 730, 5 Ann. Cas. 280; Brick & Tile Co. v. Perry, 69 Kan. 297, 76 Pac. 848; Railway Co. v. Brown, 80 Kan. 312, 102 Pac. 459, 23 L. R. A. (N. S.) 247, 127 Am. St. Rep. 213, 18 Ann. Cas. 346. For instance, where the Begislature of Kansas passed an act declaring that it would be —

“unlawful for any individual, firm or corporation to coerce, require, demand or influence any person or persons to enter into any agreement, either written or verbal, not to join or become or remain a member of any labor organization or association as the condition of such person or persons securing employment or continuing in the employment of such individual, firm or corporation, or in any wise limiting the power of employers and employés to contract as they see fit.”

Under this act Coppage was convicted, and on appeal to the Supreme Court of the United States that court held said law to be unconstitutional, and reversed and remanded the case. Coppage v. Kansas, supra. In discussing that case it was said:

“And since a state may not strike them down directly, it is clear that it may not do so indirectly, as by declaring, in effect, that the public good requires the removal of those inequalities that are but the normal and inevitable result of their exercise, and then invoking the police power in order to remove the inequalities, without other object in view. The police power is broad, and not easily defined, but it cannot be given the wide scope that is here asserted for it, without in effect nullifying the constitutional guaranty. * * * It is said in the opinion of the state court that membership in a labor organization does not necessarily affect a man’s duty to his employer; that the employer has no right, by virtue of the relation, ‘to dominate the life nor to interfere with the liberty of the em-ployé in matters that do not lessen or deteriorate the service’; and that ‘the statute implies that labor unions are lawful and not inimical to the rights of employers.’ The same view is presented in the brief of counsel for the state, where it is said that membership in a labor organization is the ‘personal and private affair’ of the employé. To this line of argument it is sufficient to say that it cannot be judicially declared that membership in such an organization has no relation to a member’s duty to his employer; and therefore, if freedom of contract is to be preserved, the employer must be left at liberty to decide for himself whether such membership by his employé is consistent with the satisfactory performance of the duties of the employment. * * * The business conducted by the defendant was its property, and in the exercise of his ownership it is protected by the Constitution. It could abandon or discontinue its operation at pleasure. It had the right, beyond the possibility of legislative interference, to make any contract with reference thereto not in violation of law. In the operation of its property it may employ such persons as are desirable, and discharge, without reason, those who are undesirable. It is at liberty to contract for the services of persons in any manner that is satisfactory to both. No legislative restrictions can be imposed upon the lawful exercise of these rights.”

The contract here is not against public policy, as it in no way affects the real needs of the people in their health, safety, comfort, or convenience. Railway Co. v. Griffin (Sup.) 171 S. W. 703.

The judgment is affirmed.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes