author: HENDRICKS, J.

text:
    SPARKMAN v. DAVENPORT.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.
    Rehearing Denied Oct. 18, 1913.
    Additional Motion for Rehearing Denied Nov. 8, 1913.)
    1. Vendos and Puechaseb (§ 140) — Con-tbact — Construction—Abstract op Title.
    A contract to convey land provided in the first paragraph that it was conditioned on the vendor procuring and delivering abstracts of title, and, if the title, as disclosed thereby, was not good, the purchaser should state his objections in writing, and, if they could be removed within a certain time, the vendor should remove them at his own expense. The second paragraph provided that, if title, as shown by the abstract, was not good, and the objections were not removed, the contract should become void, and the purchaser “shall be entitled to a return of all property paid by him by reason of this contract,’’ and the third paragraph provided that as an evidence of good taith the purchaser has executed a note for $3,000 in favor of the vendor, with the understanding that, if the vendor tendered to the purchaser a good and perfect deed, “and does in fact deliver a complete abstract of title to said property, and the abstract shows good title to said land,” and the purchaser fails or refuses to perform the obligations imposed, then he shall forfeit to the vendor the aforesaid sum of $3,000 as evidenced by the note as liquidated damages. Held, that under the third paragraph construed with the other provisions the vendor, in order to claim the $3,000 as a forfeiture, must tender an abstract which in fact shows a good title, even though the abstract was corrected by the vendor on demand; the fact that a good title existed aliunde the abstract not being sufficient.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. § 140.]
    2. Contracts (§ 143) — Construction.
    A contract should be construed as a whole.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 723, 743; Dec. Dig. § 143.]
    3. Contracts (§ 318) — Construction—Forfeiture— Policy of Law.
    Forfeitures are not favored, and, if the language of a contract is fairly susceptible of an interpretation which will prevent forfeiture, such construction will be adopted.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1508-1527; Dec. Dig. § 318.]

      4. Abstracts of Title (§ 1) — Definition.
    An “abstract of title” is defined as a statement in substance of what apnears in the public records affecting title to land, together with a statement in substance of such facts as do not appear upon the public records which are, however, necessary to perfect the title — citing Words and Phrases, pp. 47, 48.
    [Ed. Note. — For other cases, see Abstracts of Title, Cent. Dig. § 1; Dec. Dig. § 1.)
    5. Vendor and Purchaser (§ 140) — Abstract of Title — Sufficiency.
    A deed contained in an abstract of title which recites that grantors are the only heirs of the immediately preceding grantee and title holder upon the public records would not be a sufficient showing to a prudent examiner of the records that the purported heirs are in fact heirs.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. § 140.)
    '6. Vendor and Purchaser (§ 239) — Bona Fide Purchasers.
    One cannot be an innocent purchaser as against a devisee under a valid outstanding will.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent.? Dig. §§ 583-600; Dec. Dig, | 239.]
    7. Executors and Administrators (§ 137)— Conveyance by Executor — Probate—Necessity.
    An executor could not convey land located in Texas, though the will was recorded in the deed records, if it was not regularly probated in this state.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 557-559, 606½; Dec. Dig. § 137.]
    8. Vendor and Purchaser (§ 140) — Abstracts of Title — Sufficiency.
    An abstract of title which contained a will devising testator’s estate to his wife and children, subject to a life estate in the wife in certain realty, and also containing a deed to the realty purporting to have been executed by the widow of such testator, was defective as an abstract for not showing that the woman who signed the deed was in fact testator’s wife, though her surname as signed was the same as testator’s.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. § 140.]
    9. Vendor and Purchaser (§ 140) — Abstract of Title — Sufficiency.
    An abstract of title which showed that a grantee in the chain of title received title by a conveyance from his son was defective for hot showing whether such grantee’s wife was living when he received the deed from his son, since, if then living, she would be entitled to a half interest on such grantee’s death; the abstract showing that he is dead.
    [Ed. Note. — For other cases, see.Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. § 140.] •
    10. Notice (§ 12) — Notice of Marriage.
    Notice of a marriage is notice of all property rights arising from- such status.
    [Ed. Note. — For other cases, see Notice, Cent. Dig. §§ 31; Dec. Dig. § 12.*]
    11. Vendor and Purchaser (§ 134) — Bona Fide Purchaser — Notice.
    The fact that the appraisers of an estate appraised certain land as decedent’s separate estate would not be binding upon a bona fide purchaser of any interest which decedent’s wife in fact had in the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 238, 250-254, 258; Dec. Dig. § 134.]
    Appeal from District Court, Collingsworth County; D. E. Decker, Judge.
    Action by B. H. Davenport against W. G. Sparkman. From a judgment for plaintiff, defendant appeals.
    Beversed and rendered.
    Stark & Stark, of Hillsboro, and Turner & Wharton, of Amarillo, for appellant. R-. H. Templeton, of Wellington, and Barrett & Jones, of Amarillo, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

This litigation is dependent upon the construction to be given to a contract for the sale of certain land situated in Collingsworth county, providing for a forfeiture of $3,000 against the prospective purchaser in favor of the sellet, and involving by virtue of this record the question of the performance by vendor of certain conditions stipulated in the contract, which, if performed, on account of the alleged default of the purchaser, the forfeiture is claimed to have been earned. The appellee, Davenport, as independent executor of the estate of M. W. Davenport, deceased, contracted on August 12, 1911, to convey to the appellant, Sparkman, sections Nos. 49 and 50, in block No. 10, H. & G. N. Ry. Co. surveys, in Col-lingsworth county, for the expressed consideration of $19,200, $4,000 of which, the first payment, was to be paid by Sparkman the 1st day of January, 1912, at which time the deeds were to be delivered, and deferred notes for the balance to be executed.

The provisions of the contract, germane to the solution of this cause, are as follows; the numerical paragraphing being ours:

(1) “This contract is conditioned that the party of the first part will procure and deliver to party of the second part deeds and abstracts of title to the'above-described property within ten days from date, and party of the second part will then have ten days to have said abstract examined by his attorney; if the title as shown by the abstract is good and valid, then first party will make deeds to said land to each tract of land; if title as disclosed by said abstract is not good, then the second party shall procure and submit to party of the first part a statement in writing containing the objections to said abstract within ten days from the date of receiving said abstract If said objections are of such a character that they can be cured and removed within the period of time not to exceed January 1, 1912, then said first party shall be obligated to so cure and remove said objections at his own expense, and it is hereby agreed and understood that the said party of the first part shall have sufficient time to cure the objections and resubmit to party of the second part for his approval.”

(2) “But, if the title to said property as shown by said abstract is not good, and objections thereto are not cured and removed by said first party within the time hereinbe-fore stated, then the said second party shall have the right to declare this contract at an end and no longer binding on him, and same shall become null and void, and the said second party shall be entitled to return of all property paid by him by reason of this contract.”

(3) “As an evidence of good faith and in earnest of this contract, the said party of the second part has this day made and executed a note for the sum of $3,000 in favor of B. H. Davenport, and due January 1, 1912, secured by chattel mortgage on certain mules in Jack county, Texas, with the understanding that, if the said first party does make and tender to the party of the second part a good and perfect deed to said land convey: ing to the said second party, for the price and on the terms hereinbefore stated, and does in fact deliver a complete abstract of title to said property, and the abstract shows good title to said land within the time here-inbefore stated, and said second party fails or refuses to keep and perform the obligations herein imposed upon him by this agreement and make the cash payment of $4,000, on January 1, 1912, as provided in said deed for cash, then and in that event he shall forfeit to said first party the aforesaid sum of $3,000, as evidenced by the said promissory note, as liquidated damages.”

The appellant, Sparkman, refused to accept the deeds alleged to have been tendered by the appellee under the provisions of the contract, and the latter recovered judgment against the former for the full amount of the penalty note provided for in said contract.

Under paragraphs 1 and 2 (our enumeration) of the contract, in an action for specific performance of the contract, if the vendor complies with those provisions, and meets all objections of a material nature addressed to the abstract and title, proffered by the ven-dee, it may be that certain rights in favor of the vendor would accrue on the doctrine of waiver, and which appellee is attempting to apply to the whole contract — the previous question, though, is not before us and undecided. However, we think, under paragraph 3 (our enumeration) of said contract, different rights are provided for, and, though the abstract on demand may have been corrected, still, if under that provision the vendor is in default in delivering a “complete abstract of title to said property,” and which does not show “good title” to the land contracted to be conveyed, the forfeiture does not exist. By its literal terms, the third provision of this contract, regarding it for the moment as distinct from the other provisions, is unequivocal in its declaration of the obligations to be performed by the vendor, which, after compliance and noncompliance by the vendee, the forfeiture is earned.

The appellee asserts the rule that the contract should be construed as a whole, which when applicable necessarily governs, and insisting that the other two provisions of the contract, especially the first, are also addressed to the right of forfeiture provided for in the third provision, and the same should be construed in the light of those provisions. The first provision, it is noted, is mainly addressed to the matter of the preparation, delivery, and the time to be delivered by the vendor to the vendee of said abstract, and the time of examination by the vendee, with the advancement of objections by him to the titlé, with the right of correction of the abstract by the vendor, if the objections may be removed within the time limit of the contract. And further provided by the second provision, if the title as shown by the abstract is not good, and the objections are not removed, the contract is void, and the vendee will be entitled to the restoration of his money. We think the logic of appellee’s position is, although not specially urged, to give him the double right: First, “If I comply with the first provision of the contract — remove all objections tendered to the abstract, whether the abstract ‘in fact’ is complete or incomplete, and irrespective of the character of title really shown — the $3,000 is purchase money, and I can make you take the land and, second, “I have complied with the first provision, and the vendee has failed to comply, having removed all objections to the contract, and I not only can treat the $3,000 as purchase money, and make you perform the contract, but in the alternative, and at my option, I can treat it as a forfeiture.” When it comes to the matter of forfeiture, the contract does not say the forfeiture of the $3,000 may be declared if all objections are removed within the time specified. It says that the $3,000 forfeit note is executed as an “evidence of good faith, with the understanding that, if the said first party * * * does in fact deliver a complete abstract of title, and the abstract shows good title to said land, * * * and said second party fails or refuses to keep the obligations herein imposed upon him by this agreement and make the cash payment of $4,000, he shall forfeit the money. What does the forfeiture provision of the contract mean when it prescribes that the forfeiture note is executed with the understanding that the vendor “does in -fact” tender a “complete abstract” which shall show a “good title” to the property? Does it mean that, if he does not “in fact” show a “complete abstract,” and which fails to show a “good title,” the $3,000 belongs to him? Wte believe the slightest analysis refutes the proposition, and that only a strained construction would sustain appellee’s contention.

“Forfeitures are not favored by the law, and, if the language used is fairly susceptible of an interpretation which will prevent a forfeiture, it will be so construed.” Brown v. Palatine Insurance Co., 89 Tex. 595, 35 S. W. 1061. Questions of contractual forfeiture arise more commonly in cases involving insurance policies than with reference to other contracts; but we take it that the rule of construction would be the same, and, as Justice Brown of the Supreme Court said, in the same case (89 Tex. 594, 35 S. W. 1060): “The same rules of law will be applied as iri the construction of contracts made between individuals under like conditions, and no greater strictness is required in the performance of the one than the other.” It is true we are unable to find a ease decided by our appellate courts with provisions of a similar character; however, we know that the whole undercurrent of the law upon the subject of forfeiture indicates its disfavor in the construction of statutes imposing forfeitures for violations of civic and public obligations, and in the interpretation of contracts providing for penalties for the nonperformance of same—at times abating the nominal penalty and substituting the real damage—there is a leaning of the law in all these matters against the forfeiture. If our construction of the third provision and of the whole contract as affecting the right of forfeiture is correct, a good title aliunde the abstract, as we understand the contract and the authorities, would not aid the seller. As said by the Supreme Court of Iowa, in the case of Brown v. Widen, 103 N. W. 158: “The contract called for an abstract showing good title, and nothing less than this would satisfy the condition, no matter what the vendor’s real title might be. Lessenich v. Sellers, 119 Iowa, 314, 93 N. W. 348. This was a condition precedent to be performed by the vendor before he could require further action on the part of the vendee, and the burden of proof is upon him to show that he in fact complied therewith.” And as further expressed in a later decision by the same court, in the case of Fagan v. Hook, 134 Iowa, 387, 105 N. W. 157: “The title may be good; but one to whom an abstract showing good title has been promised as a condition precedent is not bound to accept any evidence thereof except that contained in the abstract.” And, again, as enunciated by the Supreme Court of California, in the case of Smith v. Taylor, 82 Cal. 533, 545, 23 Pac. 217, 219, 220, in passing upon a written contract for the sale of land, which contained a stipulation that certain money should be refunded if the abstract of title did not show “good title”: “This abstract must show good title, or there was no sale, and in that event he was to return the money. * * * Under the contract, the plaintiff was not bound to make any investigations outside the abstract.” Also, see Loring v. Oxford, 18 Tex. Civ. App. 415, 45 S. W. 395, where the same point is practically decided.

Second. What is an abstract of title, and what would be a complete abstract showing a good title? The Court of Civil Appeals of the Second District (Loring v. Oxford, supra) said: “It seems that ‘abstract of title’ has a somewhat different meaning in different countries (Warvelle on Abstracts, §§ 4, 5, 6), and it is thus defined in Anderson’s Law Dictionary, which is perhaps the most accurate definition for this country: ‘A concise statement of the record evidence of one’s title or interest in realty.’ ” Words and Phrases, under the heading “Abstract of Title,” in substance quotes similar definitions. Necessarily, an arbitrary definition of that character cannot be a hard and fast rule. The facts are not developed in that opinion in the Loring-Oxford Case; but the logic of that opinion is suggestive, as applied to a contract of this character, that, although the abstract may be a complete and perfect summary of the record, however, if it fails to show “a complete or perfect title” (as in this case, if it fails to disclose a complete abstract showing a “good title”), the vendor must fail. In that case Justice Stephens, after quoting from Anderson’s Law Dictionary that an abstract is a “concise statement of the record evidence of one’s title in realty,” further says, “Such an abstract appellee seems to have furnished, though it failed to show a perfect title,” and reversed and rendered the cause.

Mr. Maupin, in his valuable work .on Marketable Title to Real Estate, quotes a definition of an abstract from Sugden on Yen-dors, as “A statement in substance of what appears on the public records, affecting the title,” but in reality enlarges it by saying that: “This definition is perhaps sufficiently exact for practical purposes; but it should be remembered that there may be facts of vital importance to the title which nowhere appear of record, such as the proofs necessary to establish by descent or title by adverse possession. The abstract should, of course, show the ability to establish all such facts by competent evidence. It is customary in some localities to take the affidavits of persons cognizant of such facts, and cause them to be recorded among the land records of the county where the land lies.” Of course, we are not emphasizing as a rule of duty that affidavits of a fact dehors the record should be placed of record, or that affidavits, where the matter of descent arises, is an exclusive method, exhibiting to the examiner evidence of a prerequisite substantive fact, not of record, affecting the title. Warvelle, in his work on Abstracts of Title, p. 43 (3d Ed.), under the head of “Title Conveyances by Heirs,” says: “Where affidavits are resorted to to prove heirship, death of ancestor, etc., they should be well authenticated as well as positive in their averments; but, however well framed they may be, they afford evidence of the lowest order only” — and not quoted by us on the question of the value of affidavits on matters of this kind, hut as suggestive, that, where such a matter arises, or an analogous question, which we think is suggested by this record, some reasonable showing should be made in the abstract to an ordinarily prudent examiner of a necessary fact, constituent to a good title. We believe the better definition of an abstract is contained in Hollifield v. Landrum, 31 Tex. Civ. App. 193, 71 S. W. 982, as follows: “By an ‘abstract’ is meant a statement in substance of what appears in the public records affecting the title, and also a statement in substance of such facts as do not appear upon the public records which are necessary to perfect the title.” A deed in a chain of title recites that the grantors are the heirs and the only heirs of a party who is the immediate preceding grantee and holder of the title upon the public records; surely such a deed in the abstract of title would not be sufficient showing to a reasonably prudent examiner that the purported heirs are heirs?

Third. If we are correct that the third provision of the contract controls with reference to the right of forfeiture, and that it is one devolving the duty upon the vendor to exhibit “in fact” a complete abstract showing a “good title,” measured by this record, with the abstract proffered and the authorities quoted, should the appellee have recovered?

In this chain of title there is the will of Wm. Walter Phelps. He makes a certain devise of land to one of his children, naming him, and certain bequests of a trust fund, derivable from personal assets, to two other children, naming them, and after these things are done he devises and bequeaths “all my estate to my wife and children, share and share alike,” subject to a life estate to the wife in certain real estate, mentioning it. His wife’s name is not mentioned in the will, and the question as to who constitute all the children, taking the Texas land under the residuary devise, is still existent, except, of course, as to the three children specifically named as entitled to a special devise and special legacies, and. who participate in the residuary devise of the Texas lands. All the children of Wm. Walter Phelps are entitled to this devise, and who are they? There is no internal evidence from the will, unless you try to argue by speculation by asserting that the three specially named beneficiaries are all the children of Wm. Walter Phelps; that, if he had any other children, he would specially have provided for them, and would not have shown partiality.

You cannot be an innocent purchaser against an outstanding devisee any more than against an outstanding heir. This will was recorded in the deed records of Collings-worth county, but is not shown to have been probated in Texas. There is a mesne conveyance in this title, purporting to convey the land attempted to be purchased by Spark-man from Davenport, and signed by the three children named as the special beneficiaries in the will of Phelps, and also executed by the executors named in the will, and also by one who purports to have been the wife, and the widow then, of Wm. Walter Phelps.

The executors had no power to convey the land in Texas, notwithstanding the recording of the will in the deed records, unless regularly probated in this state. Clarke v. Webster, 94 S. W. 1088; Webster v. Clarke, 100 Tex. 333, 99 S. W. 1020, 123 Am. St. Rep. 813. Their declaration in their deed that they were “the only parties who by the-will of the said Wm. Walter Phelps” have any title or interest “in the lands, whether as devisees or heirs, is of very slight probative force, if any. 'The case of Moore v. Price, 46 Tex. Civ. App. 304, 103 S. W. 235, was one where a vendor had agreed to fur-' nish an abstract to the vendee “showing a good and marketable title” to the land. While the judgment and opinion of the court could have been based upon the ground of an outstanding title to á part of the land which the vendor was unable to cure, however, the court did hold that a purchaser of real estate entitled to an abstract showing a good title may decline to accept an abstract containing no other proof of title by limitation than the affidavit of the owner, although full and complete, purporting to recite the facts. The case of Poster v. Eoff, 19 Tex. Civ. App. 412, 47 S. W. 403, was one passing upon an alleged agreement, where one party was to furnish another a good and perfect title to the land by warranty deed, and the court said that the heirship of certain parties under whom the vendor claims, “who pretend to-be the heirs of the original grantee, was a fact necessary to be established before the-defendants should be required to accept the title offered by the plaintiff Mrs. Poster. There is no presumption of law that they were heirs, nor does the recital of that fact in their deed establish their heirship, and the defendants would not be required to accept the title of parties claiming to be the heirs upon the mere assertion of those parties that such was the fact. Heirship from the original grantee in this case was a link in the plaintiff’s title, and, if it was missing, or, in other words, not established, it would be as-complete a hiatus in the chain of title as would be the want of a deed conveying the interest of some one connected with the sovereignty of the soil.”

Our decision of this matter has assumed a broader scope somewhat than the assignment and the proposition; but it is specifically raised that “there is no evidence, either by affidavit or otherwise, that the grantors in said instrument were the wife and children of said Wm. Walter Phelps, nor that they had any interest in said land,” etc., and, as to the lack of showing that Mlrs. Ellen Sheffield Phelps, who signed the,deed, was the wife of Whl Walter Phelps, we think the assignment well taken, the abstract being totally devoid of any exhibition of identity, just as much so as if she recited in a deed that she was an heir to a deceased person who was the previous record holder of the title.

Fourth. Again, this record exhibits another will of M. W. Davenport, who is a grantee in this chain of title; the will devising and bequeathing his property to certain named children and grandchildren, suggesting, of course, the marriage relation. The record and abstract is conclusive that he acquired a part of the land, section 50, after marriage; one of his sons conveyed it to him. Whether Mrs. Davenport is dead or alive, or whether she was dead or alive when M. W. Davenport received the deed from the son, the record and abstract are totally silent. Whatever the status is, notice of the marriage relation is imputed by this will and all the consequences derivable therefrom. If alive, a half interest could be hers. It is not necessary to quote the authorities that notice of the marriage is notice of property rights, whatever they may be, flowing from such status. It is true that the appraisers of M. W. Davenport’s estate appraised as his separate estate sections 49 and 50 in this controversy. Such a recitation does not bind any one, if an interest should happen to be outstanding. Koppelmann v. Koppelmann, 94 Tex. 44, 57 S. W. 570. We are not concerned with the question that these objections were not raised by either attorney in passing upon the title. We think that salient matters were not presented by the abstract which were necessary to a complete abstract showing a good title, and the appellee fails in the recovery for the forfeiture, and, as they are matters which necessarily cannot be cured, the contract and abstract clearly presenting the question, our former judgment that the judgment of the district court should be reversed and rendered should stand. -

Our former opinion in this case, in which different reasons are given for the reversal and rendition of this case, is withdrawn, and the motion for rehearing is overruled. The appellee has, and is granted, the right to file an additional or amended motion for rehearing.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    KING et al. v. DRIVER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 29, 1913.)
    1. Injunction (§ 118) — Allegations of Petition— Certainty.
    A petition for an injunction must negative every reasonable inference, arising from the facts alleged, that petitioner might not be entitled to relief.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    2. Injunction (§ 118) — Sufficiency of Petition.
    Where the petition, in a suit to restrain defendant from depriving plaintiffs of the right to enjoy an easement in property under a contract which provided that the easement was granted with the express agreement that plaintiffs should not use the stairway so as to injure defendant’s property or annoy him or his tenants, did not negative any possible inference that plaintiffs .had violated such provision, the injunction should not have been granted.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 223-242; Dee. Dig. § 118.]
    3. Easements (§ 12) — Conveyance.
    An easement over land is such an interest in land as must be conveyed with the same formality as is required in a conveyance of a fee, including an acknowledgment by a married woman.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 35-38, 41; Dec. Dig. § 12.]
    4. Husband and Wife (§ 194) — Conveyances of Wife — Acknowledgment.
    A deed conveying a wife’s separate real estate must be duly acknowledged to be valid, under the direct provisions of Rev. St. 1895, art. 635.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 726; Dec. Dig. § 194.]
    5. Husband and Wine (§ 198) — Sepabate Property— Conveyance— Estobpel to Assert Invalidity.
    In the absence of positive fraud, a married woman is not estopped to deny the validity of her conveyance of an easement in her separate property, on the ground that she did not acknowledge the conveyance by having received money or other benefit under the transaction.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 733,'944; Dec. Dig. § 198.*]
    6. Husband and Wife (§ 182) — Nature of Interest.
    It cannot be claimed that because a house upon land which was a married woman’s separate property was built with community funds, a grant of the perpetual use of a passageway in the house was not an attempt to convey an interest in the wife’s real estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 714, 715, 719; Dec. Dig. § 1S2.]
    Appeal from District Court, Cameron County; AV. B. Hopkins, Judge.
    Action by J. H. Driver and others against Nettie G. King and another. From a judgment for plaintiffs, defendants appeal.
    Reversed, and judgment rendered for defendants.
    J. M. Mothershead, of San Benito, and Graham, Jones, West & Dancy, of Brownsville, for appellants. James B. Wells and Harbert Davenport, both of Brownsville, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALIAFERRO, J.

This is an appeal from an order of the judge of the district court of Cameron county, Tex., in vacation, granting a temporary injunction restraining appellants, Nettie G. King and W. O. King, defendants below, from depriving appellees, plaintiffs below, of their alleged right to reasonable ingress and egress to and from the second story of a certain building owned by appellees in the town of San Benito, over and through a certain stairway in a building situated on an adjoining lot, alleged to be owned by defendant Nettie G. King, which right is alleged to have been secured by virtue of two certain contracts, which were, in substance, as follows: In one, the appellants, Nettie G. King and her husband, conveyed to appellee Driver a perpetual right of passage for himself and his tenant, P. O. Van Ness, through a hall in a house to be built by them upon separate property of the wife. In consideration of the grant of this easement appellants were conveyed a half interest in a portion of the brick wall of ap-pellee’s adjoining building. This contract was signed by King and his wife and by Driver, but was not acknowledged by any of them. The other contract was signed by Driver, Van Ness, and King, but was not signed by Mrs. King. It was an agreement by King to construct the passage or hall in a certain manner, so that it would be suitable for the easy passage of appellees, Driver and his tenant, Van Ness, to and from their own premises. It also renewed the agreement and conveyance of the easement or right of way through the house to appellees. This contract, however, concluded with these words: “This easement is granted with the express agreement that second parties and their tenants shall not use said stairway in a way to injure first party’s property or to annoy him or his tenants and this provision shall be construed as a condition precedent in making this grant.”

Appellees, in their petition, nowhere allege that the passage was not or had not been used by them “in a way to injure” appellants’ property “or to annoy them or their tenants.” The rule in Texas now is established that in petitions for injunction the allegations “must negative every reasonable inference arising upon the facts so stated, from which it might be deduced that petitioner might not, under other supposable facts connected with the subject, be entitled to relief.” Schlinke v. De Witt County, 145 S. W. 665, and cases cited; Hicks v. Murphy, 151 S. W. 845, and cases cited. This writ of injunction was granted without a hearing, and must be here determined upon the pleadings alone. The above clause in the contract, set out in the petition itself, reveals a fact from which it is easily supposable that appellees were not entitled to the extraordinary relief sought, and the trial court should have refused the writ.

The petition further shows upon its face that the land over which appellees attempted to grant an easement was the separate property of Nettie G. King, a married woman, and that the instrument, though signed by her, is not verified by her separate acknowledgment in statutory form. That an easement over land is such an interest in the land as to require in its conveyance the same formality as is necessary for the conveyance of the fee is too well settled for discussion. T. & P. Ry. Co. v. Durrett, 57 Tex. 48; Shepard v. Railway Co., 2 Tex, Civ. App. 535, 22 S. W. 267; Toyaho Creek Irrigation Co. v. Hutchins, 21 Tex. Civ. App. 275, 52 S. W. 101; s. c., 93 Tex. 675, 52 S. W. 101; City of San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 417, 44 S. W. 476. And it is statutory that the conveyance of a wife’s separate real estate is valid only when made by deed duly acknowledged. R. S. 1895, art. 635; T. & P. Ry. Co. v. Durrett, 57 Tex. 48.

Nor is Mrs. King estopped by reason of having received money or a benefit from the transaction. “To estop a married woman from asserting her rights to land it is essential that she should be guilty of some positive fraud, or else of some act of concealment or suppression, which in law would be equivalent thereto.” McDaren v. Jones, 89 Tex. 135, 33 S. W. 851, and eases cited. There is no allegation that Mrs. King was guilty of any fraud or misconduct in this ease.

Appellees insist that since the house built upon the land was built with community funds, and the grant was only for the use of a passageway in this house, it did not attempt to convey an interest in the wife’s real estate, and was therefore valid, although the grant purported to convey a perpetual use. We have been cited to no authorities sustaining this proposition, nor have we found any. Besides the record does not show that the house was built with community funds.

The judgment of the lower court is re-* versed, and judgment here rendered that the temporary injunction granted by that court be dissolved.


author: HIGGINS, J.

text:
    JAPHET et al. v. POLEMANAKOS.
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1913.
    Rehearing Denied Nov. 13, 1913.)
    Landlord and Tenant (§ 192) — Rights oe Lessee — Destruction oe Improvements.
    The lessee of a freehold is liable for the rent, even after the improvements are destroyed by fire, unless the lease expressly relieves him from such liability or the lessor has covenanted to rebuild in case of fire.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 777, 778, 781, 784-786; Dec. Dig. § 192.]
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Action by A. D. Polemanakos against Dan A. Japhet and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, for appellants. L. B. Moody, of Houston, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   HIGGINS, J.

On August 2, 1906, E. D. Polemanakos, ancestor of appellee, by a written contract, leased to appellants for five years, beginning September 1, 1906, at a monthly rental of $200 per month, a part of lots 1 and 2 in block 61, in the city of Houston, together with all improvements thereon. Appellants remained in possession of the premises and paid all of the rental installments thereon until April 1, 1911, upon which date the improvements upon the premises were destroyed by fire, thereby rendering the premises useless to appellants. At the time of the execution of the lease contract there was a two-story building situated upon the premises, which was leased and used by appellants, the lower story for a saloon and the upper story for a rooming house. The lots, without the building, had no rental value. The improvements were not replaced upon the premises and appellants failed and refused to pay the rental installments falling due after March 1, 1911. This suit is to recover the same, and in the trial court resulted in a judgment for the same in favor of Polemanakos.

The issue involved upon this appeal is whether or not the destruction of the improvements upon the premises by fire relieved the lessees from further liability for rent. The decisions of this state are adverse to appellant, and it seems that the great and overwhelming weight of authority is to the effect that the lessee of lands upon which the' improvements are destroyed by fire subsequent to the execution of the lease contract cannot be relieved against an express covenant to pay rent, unless it is so stipulated in the contract, or the lessor has covenanted to rebuild. In the instant case there was no stipulation relieving appellants from their covenant to pay rent in case the improvements were destroyed by fire, nor was there any covenant by the lessor to rebuild the same, and it being a lease of the freehold, rather than of the improvements alone, the trial court did not err in rendering judgment for the unpaid rental installments. Diamond v. Harris, 33 Tex. 636; Chambers v. Mattingly {Tex. Civ. App.) 103 S. W. 663; Taylor on Landlord & Tenant (3d Ed.) §§ 375, 376; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S. W. 1007; Nashville C. & St L. R. R. Co. v. Heikens, 112 Tenn. 378, 79 S. W. 1040, 65 L. R. A. 298; Sun Ins. Office v. Varble, 103 Ky. 758, 46 S. W. 486, 41 L. R. A. 793; Craig v. Butler, 156 N. Y. 672, 50 N. E. 962; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 958; Felix v. Griffiths, 56 Ohio St. 39, 45 N. E. 1092; Lanpher v. Glenn, 37 Minn. 4, 33 N. W. 10, 11; Sedalia Planing Mill & Lbr. Co. v. Swift & Co., 129 Mo. App. 471, 107 S. W. 1093; Kennedy v. Watts, 142 Mo. App. 103, 125 S. W. 211; Bowen v. Clemens, 161 Mich. 493, 126 N. W. 639, 137 Am. St. Rep. 521; Roberts v. Lynn, 187 Mass. 402, 73 N. E. 523; Davis v. George, 67 N. H. 393, 39 Atl. 979; Richmond Ice Co. v. Crystal Ice Co., 103 Va. 465, 49 S. E. 650; Fleming v. King, 100 Ga. 449, 28 S. E. 239; Stautz v. Protzman, 84 Ill. App. 434; Moran v. Bergin, 111 Ill. App. 313; Ward v. Adams, Trustee, 8 Ky. Law Rep. (abstract) 769; Paxson Comfort Co. v. Potter, 30 Pa. Super. Ct. 615; Chamberlain v. Godfrey’s Adm’r, 50 Ala. 530; Cook v. Anderson, 85 Ala. 99, 4 South. 713; Buerger v. Boyd, 25 Ark. 441; Peterson v. Edmonson, 5 Har. (Del.) 378; White v. Molyneux, 2 Ga. 124; Womack v. McQuarry, 28 Ind. 103, 92 Am. Dec. 306; Helburn v. Mofford, 7 Bush (70 Ky.) 169; Fowler v. Payne, 49 Miss. 32; Gibson v. Perry, 29 Mo. 245; Gates v. Green, 4 Paige (N. Y.) 355, 27 Am. Dec. 68; Patterson v. Aekerson, 1 Edw. Ch. (N. Y.) 96; Linn v. Ross, 10 Ohio, 412, 36 Am. Dec. 95; Mannerbach v. Keppleman, 2 Woodw. Dec. (Pa.) 137; Bussman v. Ganster, 72 Pa. 285; Waite v. O’Neil (C. C.) 72 Fed. 348; Beach v. Farish, 4 Cal. 339; Cowell v. Lumley, 39 Cal. 151, 2 Am. Rep. 430; Ward v. Bull, 1 Fla. 271; Robinson v. L’Engle, 13 Fla. 482; Coy v. Downie, 14 Fla. 544; Lamott v. Sterett, 1 Har. & J. (Md.) 42; Fowler v. Bott, 6 Mass. 63. Had the improvements only been leased, their, destruction would probably have relieved the lessees from their covenant to pay rent (Behan v. Ghio, 75 Tex. 87, 12 S. W. 998), but this rule would not apply under the authorities cited above, where an estate for years in the freehold passed by the contract.

Affirmed.


author: HODGES, J.

text:
    CITY OF TEXARKANA v. BOIS et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 30, 1913.)
    Appeal and Error (§ 100*) — Decisions Reviewable— Interlocutory Orders.
    While Rev. Civ. St. 1911, art. 4644, expressly authorizes appeals from orders granting, refusing, or dissolving temporary injunctions, no appeal lies from an order refusing to dissolve such an injunction previously granted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Suit by L. F. Bois and others against the City of Texarkana. From an order overruling a motion to dissolve a temporary injunction, defendant appeals.
    Appeal dismissed.
    Rodgers & Dorough, of Texarkana, for appellant. Graham & Smitha, of Texarkana, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

This is an appeal from an order refusing to dissolve a temporary injunction previously granted by the district judge of Bowie county. The city of Texar-kana purchased a tract of land for the purpose of enlarging one of its cemeteries. On March 31st the appellees applied for and obtained a temporary injunction prohibiting the use of the land for the purposes of a burying ground. It appears that on June 30th a motion to dissolve that injunction was overruled, and from that order overruling the motion this appeal is prosecuted.

It is sufficient to say that orders of that class are not appealable under the statute as amended. Article 4644 of the Revised Civil Statutes of 1911 provides for appeals from orders granting, refusing, 6r dissolving temporary injunctions. There is no provision for an appeal' from an order refusing to dissolve one which had been previously granted. That question has been definitely determined by our Supreme Court in Baumberger v. Allen, 101 Tex. 352, 107 S. W. 526.

The appeal is dismissed.


text:
    BLOUNT v. HENRY et ux.
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 30, 1913.)
    1. Tbial (§ 194) — Instructions—Comments on Evidence.
    An instruction that if defendant stated to a vendor in the presence of a purchaser prior to a sale that he made no claim to the land, he could not thereafter claim the land, but was estopped by his own statement, was properly refused as on the weight of evidence, where there was testimony stating the language employed in the conversation referred to very differently.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    2. Trial (§ 252) — Instructions — Applicability to Evidence.
    A charge submitting a mere abstract proposition of law, not warranted by the facts in the case, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dee. Dig. § 252.]
    Appeal from District Court, Houston County; B. H. Gardner, Judge.
    Action by E. A. Blount against Essie Henry and wife. From the judgment, plaintiff appeals.
    Affirmed.
    Adams & Young, of Crockett, for appellant. J. W. Madden and Earle Adams, Jr., both of Crockett, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

This is an action of trespass to try title, instituted by the appellant, Blount, against the appellees, Henry and wife. It appears from the evidence that Blount held the paper title to the land in controversy, and that Henry and wife claimed to have acquired a title to 100 acres by 10 years’ adverse possession. On trial the court charged that the appellant had shown title to all of the land sued for, and instructed the jury to find in his favor, unless they should find that Henry and wife had established their, right by 10 years’ adverse possession. The jury rendered a verdict awarding plaintiff all the land in controversy except 100 acres. As to this they found in favor of the appellees.

The first assignment of error complains of the failure of the court to instruct a verdict in the appellant’s favor. It does not appear from the record that any such instruction was requested; on the contrary, the appellant requested quite a number of special charges submitting different issues of fact developed by the evidence.

The second assignment of error complains of the refusal of the court to give the following special charge: “If the defendant, before Wootters sold to Smith, Maas, Gould, and Means, said to Wootters in Smith’s presence that he did not make any claim to the land in controversy, and, relying on such disclaimer, Smith and his associates purchased afterwards said land, then Essie Henry is not entitled to claim said land, because he is es-topped from so doing by his own statements.” The evidence shows that Blount, the appellant, held under the Smith referred to in this charge. There was no error in refusing this instruction, because, if otherwise correct, the evidence did not justify it. It is doubtful if the testimony most favorable to the appellant upon that issue could be construed as sufficient to constitute an estoppel. Henry, one of the appellees, testifies very differently as to the language employed by him in the conversation referred to. The charge clearly would have been on the weight of the evidence.

The third assignment of error complains of the refusal to give the following special charge: “Where two parties own adjoining tracts of land and one of them encroaches on the land of the other by getting a part of his neighbor’s land in his inclosure, such an encroachment is not to be construed as holding possession of the entire tract encroached upon, but the possession of the one encroaching will be only of the land actually inclosed.” This charge attempts to submit a mere abstract proposition of law, which was not warranted by the facts in the case, and is therefore not correct.

The judgment is affirmed.


author: RAINEY, C. J.

text:
    WILSON et al. v. SHERWIN-WILLIAMS PAINT CO.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Mechanics’ Liens (§ 263) — Enforcement —Parties.
    In an action against an original contractor .and the owner of a building for materials furnished to a subcontractor and to enforce the lien against the building, representatives of the subcontractor were not necessary parties where he died insolvent and the only property he had was exempt.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§, 471-481; Dec. Dig. § 263.]

      2. Appeal and Error (§ 1036) — Review-Harmless Error — Parties.
    Even if they were necessary parties, defendants were not prejudiced, as the subcontractor left no property subject to execution.
    [Ed. Note. — For other cases, see Appeal and Error,, Cent. Dig. §§ 4069-4074; Dec. Dig. § 1036.]
    3. Mechanics’ Liens (§ 121) — Proceedings to Perfect — Notice to Owner.
    Though notice of materials furnished a subcontractor was not given the owner of a building until after all the materials were furnished and the lien filed, yet, as it was given before the owner had paid the original contractor, the materialman was entitled to enforce his lien.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 164; Dee. Dig. § 121.]
    4. Mechanics’ Liens (§ 118) — Proceedings to Perfect — Notice jo Owner.
    An original contractor cannot complain that notice of materials furnished a subcontractor was not given to him, since the statute only requires notice to be given to the owner of the building.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent Dig. §, 161; Dec. Dig. § 118.*]
    5. Mechanics’ Liens (§ 116) — Payment to Principal Contractor — Notice.
    Where the owner of a building, after notice of the claim of a materialman for materials furnished a subcontractor, paid the original contractor, both he and the original contractor became personally liable to the materialman, since the effect of the notice was to impound the money due from the owner to the contractor.
    [Ed. Note. — For other cases, see Mechanics’ Liens; Cent. Dig. §§ 150-159; Dec. Dig. § 115.]
    Appeal from District Court, Dallas County; R. C. Roberts, Judge.
    Suit by the Sherwin-Williams Paint Company against J. B. Wilson and another. Judgment and decree for plaintiff. Defendants appeal.
    Affirmed.
    Holloway & Holloway, of Dallas, for appellants. F. D. Robertson and Leake & Henry, all of Dallas, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellee sued J. B. Wilson, as owner, and Alex Watson Construction Company, contractor, of a certain building to recover for material furnished one Hieatt, a subcontractor working under the original contractor, Alex Watson Construction Company, and to foreclose the materialman’s lien. The defendant Alex Watson Construction Company replied by original answer, and the defendant Wilson by second amended answer. Each set up, by exception and by plea in abatement, that the representatives of Hieatt were necessary parties defendant-The defendants also pleaded a general denial; also, that no notice was given to the owner or to the original contractor of the -material as furnished; that no notice at all was given until after the filing of the mechanic’s lien and until after the subcontractor had been paid in full by the original contractor, with the exception of a balance of 8101.33; that the plaintiff knew of the contract between Hieatt and the Alex Watson Construction Company and knew that the said Hieatt was drawing the amount of his pay rolls each week as provided in his contract, and that the plaintiff failed and neglected to give notice of the material furnished from time to time as is required by the statute, and that the plaintiff was thereby estopped from asserting its claim as to hny funds beyond the $101.33; also, that all artisans and mechanics for whom said pay rolls were advanced were entitled to a prior and preference lien against the property and against the funds on hand ahead of the claims of materialmen. The case was tried before the court, a jury being waived. The exceptions and pleas in abatement were overruled. Personal judgment was rendered in favor of the plaintiff, the Sherwin-Williams Company of Texas, against the defendants, J. B. Wilson and the Alex Watson Construction Company, for $1,528.92; the decree also establishing and foreclosing the mechanic’s and materialman’s lien against the property in question..

The conclusions of fact of the judge of the district court' are found to be correct, and the same are adopted as the conclusions of this court, to wit:

1. That the defendant J. B. Wilson is and was the owner of the property described in the plaintiff’s petition, and that he contracted with the Alex Watson Construction Company, as the general contractor, for the erection of the building thereon.
2. That the general contractor, the Alex Watson Construction Company, contracted with J. A. Hieatt by written contract, dated June 12, 1911, by which it was agreed that the said J. A. Hieatt should paint the said building, and for such work and material the Alex Watson Construction Company agreed to pay him the sum of $3,000; payments to be made weekly on actual pay rolls for work done on the building, and the balance to be, paid within five days after the completion and acceptance of the entire job of painting.
3. That the plaintiff, the Sherwin-Williams Company of Texas, a Texas corporation, on various days beginning July 1, 1911, and up to and including September 21, 1911, furnished to the said J. A. Hieatt, the subcontractor, various paints and other materials to the extent and value of $2,171.30. That the same were delivered to the said Hieatt and to his agents at the place of business of the Sher-win-Williams Company of Texas, and that they were ordered for the building in question and were charged on the plaintiff’s accounts to the said J. A. Hieatt on account of the said Wilson building; the said Hieatt having several accounts with the plaintiff at the time and having several buildings under contract. That the plaintiff furnished all of said materials in good faitb supposing that they were all to be used in said Wilson building. That in fact a portion of said materials, to tlie extent and value of $1,528.92, were used in the painting of said building and were wrought into and became a part of said building. That the remaining portion of said materials, $642.38 in value, were not used in said building, but that the plaintiff had no knowledge that the same were not so used in said Wilson building.
4. That no notice of the furnishing of said materials was given to the said J. B. Wilson, or to the said original contractor, the Alex Watson Construction Company, from time to time as said materials were furnished. That on September 30, 1911, written notice of the furnishing of said materials was given to the said original contractor, the Alex Watson Construction Company; said notice being in the words following, and also having attached thereto itemized statements of each bill of material with the prices therefor and the amounts due, said itemized bills being of the dates of the sale of said materials from July 1, 1911, to September 21, 1911, to wit: “Dallas, Texas, September 30, 1911. The State of Texas, County of Dallas. To Alex Watson Construction Co. of Dallas, Dallas County, Texas: You are hereby notified that J. A. Hieatt is indebted to the Sherwin-Williams Company of Dallas, Texas, in the sum of twenty-one hundred and seventy-one ($2,-171.30) dollars and thirty cents for material furnished on the building now being erected by you for J. B. Wilson in the city of Dallas, Dallas County, Texas, and located on lot three (3), block 76½, according to the official map of the city of Dallas, and that the Sher-win-Williams Company, acting through me as the duly authorized agent, shall hold you responsible to the Sherwin-Williams Company for the payment thereof until the same be settled; a full and correct account whereof, in accordance with the itemized account hereto attached, has been properly attested to and filed for record in the county clerk’s office, of Dallas county, Texas. Witness my hand this 30th day of September, A. D. 1911. J. S. Covert, Agent for the Sherwin-Williams Company.”
. 5. That on October 9, 1911, the plaintiff gave to the said J. B. Wilson written notice as follows; the said notice being attached to a duplicate copy of all of said itemized statements, the same as in the case of the notice to the said Alex Watson Construction Company, to wit: “Dallas, Texas, September 30, 1911. The State of Texas, County of Dallas. To J. B. Wilson of Dallas, Dallas County, Texas: You are hereby notified that J. A. Hieatt is indebted to the Sherwin Williams Company, of Dallas, Texas, in the sum of twenty-one 'hundred and seventy-one ($2,-171.30) dollars and thirty cents, for material furnished on the building now being erected by the Alex Watson Construction Company for you in the city of Dallas, in said county and state, and located on lot three (3), block 76½, according to the official map of the city of Dallas, and that the Sherwin-Wil-liams Company, acting through me as the duly authorized agent, shall hold you responsible to the Sherwin-Williams Company for the payment thereof until the same be settled; a full and correct account whereof, in accordance with the itemized account hereto attached, has been properly attested to and filed for record in the county clerk’s office of Dallas county, Texas. Witness my hand this 30th day of September, A. D. 1911. J. S. Covert, Agent for the Sherwin-Williams Company.”
6. That no other notices of the plaintiff’s claim had been given to the said original contractor, or to‘the said owner, prior to the foregoing notices.
7. That on September 30, 1911, the mechanic’s lien claim, as set out in the plaintiff’s petition, was filed for record and duly recorded in the mechanic’s lien records of Dallas county.
8. That the said written notices were given, and the said mechanic’s lien claim filed, within 90 days after the accrual of the plaintiff’s indebtedness against the said J. A. Hieatt.
9. That at the time of the giving of said notices to the original contractor and to the said owner, there remained in the hands of the said owner, due to the'original contractor on the original contract price for the construction of said building, a sum exceeding $10,000. That after the said notices, the said owner paid to the said original contractor the full amount so owing on account of the construction of said building.
10. That prior to said date of September 30, 1911, the said J. A. Hieatt, the subcontractor, completed all of said work under his subcontract with the exception of the amount of $159.25 for labor and $67.60 for materials which the said Hieatt failed to perform and furnish, and that the said aggregate sum of $226.85 was necessary to the completion of said work and was paid out by the said original contractor to complete the same. That the said Hieatt also performed certain extra work amounting to $110. That prior to September 30, 1911, the original contractor had paid to the said Hieatt, the subcontractor, from week to week on account of pay rolls rendered on said subcontract the aggregate amount of $2,781.82. That there was due from the said original contractor, to the said Hieatt, on September 30, 1911, a balance of $101.33, on account of said original contract and extras, after deducting said payments to the said Hieatt. That the said sum of $101.33 is still due and unpaid from the Alex Watson Construction Company to the said J. A. Hieatt.
11. That thereafter the said J. A. Hieatt died at Dallas, Tex., in February, 1912, insolvent, and leaving no property outside of his homestead and other exempt property, beyond the $101.33, so due from the said Ales Watson Construction Company. That he left a widow and seven children residing at Dallas, Tex., as set out in the plaintiff’s petition. That none of the said heirs have received anything of value from his estate, either by devise or descent, with the exception of such exempt property.
12. That the original plaintiff in this cause was the Sherwin-Williams Company, a corporation organized under the laws of the state of Ohio. That the present plaintiff is the Sherwin-Williams Company of Texas, a corporation organized in 1908 under the laws of the state of Texas. That in fact the business was conducted and the materials in question were sold by the Sherwin-Williams Company of Texas, and not by the said Sherwin-Williams Company, the Ohio corporation. That the said companies are two distinct corporations.

1. The first, second, third, and fourth assignments of error are to„ the same effect; that is, they complain of the court’s overruling of defendant’s exceptions to plaintiff’s petition, the ground being the want of necessary parties, in that the representatives of Hieatt, deceased, were not parties to this action. We think no error was committed by the court in this particular. Hieatt was dead, and surviving him were a widow and seven children. He died insolvent, and the only property he had was a homestead and some exempt personal property. The Alex Watson Construction Company owed him $101.33, and there was nothing which made it worth while to have an administrator of the estate appointed. The widow and children had received from him no property which would make them liable to account to creditors, and to have made them parties to this proceeding would have increased the costs of the proceeding and otherwise proven absolutely useless. The law does not require the doing of an useless thing. The making of the widow and children parties would have proven of no practical benefit to either party, and therefore, if the strict rules of the law required such, the defendants have in no way been injured by the overruling of the exception.

The fifth, sixth, seventh, and eighth assignments of error are related and complain of the court for establishing and foreclosing the mechanic’s lien because notice was not given as the materials were furnished, but given after all the materials were furnished and the mechanic’s lien filed, and further 'that the Alex Watson Construction Company, without notice, had paid to the said Hieatt the amount due him, except $101.33. At the time Wilson was notified of appellee’s claim, he was indebted to Alex Watson Construction Company on the original contract price over $10,000, but subsequently paid all out' to said construction company. While notice was not given to him as the material was furnished, it was given before he had paid the original contractor, and before the 90 days for fixing lien had expired. The statute does not require notice to be given the contractor of the claim for materials furnished, and the fact that the construction company had paid Hieatt does not militate against appellee’s right to recover against Wilson, as he held in- his hands a sum due the contractor. largely in excess of appellee’s claim. Padgitt v. Construction Co., 92 Tex. 626, 50 S. W. 1010.

It is suggested that the failure to give the statutory notice, as the items are furnished, can only be excused when no one is prejudiced by the delay. No one can be prejudiced in this case except the construction company, and it has no right to complain. The law makes no provision for notice to be given it by the materialman of the material furnished, from which we conclude that, as it was the duty of the contractor to construct the building, he ought to know what, material goes into it and where it came from, and therefore able to protect himself from loss. If he overpays his subcontractor, he must stand the consequences, and as in this case his remedy is against the subcontractor as between the contractor and the paint company, we think the equity is with the paint company.

The ninth and tenth assignments complain of the judgment for fixing personal liability against J. B. Wilson and the Alex Watson Construction Company, and it is contended that, while the statute subjects the owners of property in a proper case to the lien of a materialman, it does not create a personal liability against the owner. This contention of appellant as a rule is correct, but we think under the facts of this case the appellants are both personally liable to ap-pellee. Within 20 days after the material was furnished notice was given to Wilson, and at that time Wilson had in his hands more than enough money due the contractor to pay appellee’s claim. The effect of the notice to Wilson was to impound the money due the contractors in Wilson’s hands, and he thereby became personally liable to ap-pellee. As said in the case of Lonergan v. Trust Co., 101 Tex. 80, 104 S. W. 1069, 130 Am. St. Rep. 803: “From the time of the service of the notice upon the owner of the. property he can make no further payment to the contractor without incurring liability for the lien debt, if proper steps shall be taken to establish it, to the extent of his indebtedness under the contract when the notice is served.” In said case it is also said: “The owner of the property is liable to the materialman only as he, the owner, would be liable to the contractor.” Wilson having paid out the money to the contractor after notice, he became liable personally for it to appellee. The nature of his debt to the contractor was a personal obligation, and such is declared his obligation to appellee under tile circumstances. The contractor is liable for having received it from the owner after it was impounded. So we think no error was committed as complained of. Rev. Oiv. St. 1911, art. 5635.

The judgment is affirmed.


author: HUFF, C. J.

text:
    WING & SON v. PADGETT.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1913.
    Rehearing Denied Nov. 15, 1913.)
    Sales (§ 473) — Conditional Sales — Necessity of Record — Purchaser from Buyer-Title Obtained.
    Plaintiffs placed a piano with a possible buyer on trial, the written agreement therefor providing that, if after four weeks’ trial it was satisfactory, the buyer would make an agreement to purchase, on terms stated, by monthly payments; the piano to become the buyer’s property on full payment. After the four weeks’ trial, the buyer made the first payment, expressing his satisfaction. The formal agreement of purchase was never made. Heidi, that under the statute (Rev. Civ. St. 1911, art. 5Ó54) providing that all agreements for the sale of chattels retaining title in the seller after delivery to the buyer shall be void as to bona fide purchasers and creditors, unless registered like chattel mortgages, there being a completed sale with reservation of title in the seller when the buyer accepted the piano and made the first payment, and there having been no registry of the contract, a purchaser in good faith from the buyer took good title.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1377-1390; Dec. Dig. § 473.*]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by Wing & Son against H. A. Pad-gett. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Dedmon & Potter and Charles E. Witt, all of Ft. Worth, for appellant. J. C. Miller and Gillespie & Altman, all of Ft. Worth, for ap-pellee.

      For otter eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

Appellants sued appellee to recover a piano, in the county court of Tar-rant county. Appellants are dealers in pianos in New York, and on the 22d day of November, 1910, appellants, apparently in response to a letter from J. C. Polk, stated, “Since you wish to receive the piano in a month or so, we suggest you place your order with us now,” to prevent a rush. After describing the piano as “very beautiful,” they say, “You will find a free trial blank again inclosed which needs simply to be filled out and returned.” J. C. Polk on December 5, 1910, lived in Ft. Worth, Tex., but, for reasons not disclosed in this record, has moved to parts unknown. On the day last mentioned, he made a request for the trial of one of the pianos sold by appellants, the form of which was furnished by appellants to Polk, which he filled out and signed. It is headed: “This is positively not an order. It only gives your permission for us to send a piano for free trial.” At the side of the trial order is printed: “To send for a piano on trial simply fill out and return this blank. You pay nothing down or on deposit. We pay all expenses in advance. We will ship the piano as soon as possible after we receive the blank, giving us permission to do so. You are not to keep the piano unless it proves entirely satisfactory in every respect and will be under no obligation to do so, no more than if you were examining it in our wareroom or factory. Our willingness to send the Wing piano on trial in this manner to any part of the United States at our own risk and expense is conclusive evidence of its high quality. We hire truckmen to unpack piano and deliver it right in your parlor.”

The blank filled out is as follows: “Free Trial Blank. December 5, 1910. Messrs. Wing & Son, 9th Ave., 13th & Hudson Sts., New York: You may deliver to my house one Wing piano, «style 29, in dark, rich mahogany case, with stool and scarf, to this address: Town, Ft. Worth; Street, No. 1059 Butter; State of Texas. This piano is to be placed in my parlor without any expense to me whatever on trial only. Wing & Son are to pay the freight, cartage and all other expenses. There is no agreement by me to purchase this piano but I will allow it to remain in my house on trial for four weeks and if it proves satisfactory, and I decide to purchase it, I will make an agreement with you to pay you $12.00 down, three hundred and forty-three dollars, ($343.00) (beneath is printed “State fully price of piano on above line”), in the following way: $12.00 per month, $-, (beneath this “State amount of first payment”) four weeks after arrival $12.00 (beneath this is “State amount of monthly or other payments”). The piano to become my property upon completion of full payment as above. If, however, the piano does not prove satisfactory, you are to remove it from my house without any expense to me. It is distinctly understood that I am to pay nothing for freight, cartage, or any other expense. Yours truly, J. O. Polk, Ft. Worth, Texas. Address: 1059 Butter St.” — and is indorsed, “Received December 12, 1910.” On December 13, 1910, appellants wrote Polk that they had just received the trial blank dated December 5, 1910, and stated therein: “The price of the piano, it is agreed is three hundred and forty-three dollars ($343.00) payable $12.00 cash after trial and $12.00 per month thereafter.” They say in the. letter they will take a little more time with Polk’s permission, in selecting the piano, etc.

The piano was shipped out by appellants February 14,1911. March 3,1911, Polk wrote the following letter from Ft. Worth, Tex.: “Ft Worth, 3 — 3—1911. Dear Wing and sons: I write to let you know that I received the most magnificent piano Sat. Feb. 25 and it came to me just as it left you in good shape and my wife slue is just tickled to death over it. Everybody is struck on it. I myself think it is the beautifully piano I ever saw. Now after the SO days is out you may be sure you will get your first payment, or before. Now 1 will say good by and you will hear from me in short. Resp. Tours, J. O. Polk. Was 1059 Rosdail. Now 1000 Jefferson Ave.”

On the 8th day of April, 1911, Polk remitted to appellants $12.50, which appellants received and receipted therefor by letter of April 26, 1911, in which it is stated: “We have your favor of the 8th instant with remittance of $12.50, which we credit on first payment on a piano. We thank you for this and inclose receipt.” After calling attention to their guaranty of the piano and that they were not responsible for tuning, etc., but in connection therewith used the expression, “The saving you have secured by purchasing from us” could not be had from others, and asking for his further opinion of the piano as compared with others, and concludes, “We also inclose regular agreement, which you will please sign and return to us.” The instrument mentioned is as follows: “J. C. Polk, Et. Worth, Texas, Feb. 25, 1911. $343.00. I promise to pay to Wing & Son at their office in New Tork three hundred and forty-three dollars, in the following way:

Twelve dollars on March 1, 1911. $ 12
And twelve dollars each month for twenty-seven months thereafter. 324
And one month after that a final payment of seven dollars . 7
The above being for a certain Wing piano, style 29, wood mahogany. Case No. 37925.
Total .$343
“It is understood and agreed that said piano is now and shall be held in my possession as bailee and shall remain the property of Wing & Son until this note shall have been paid in full. -.”

Thereafter appellants wrote Polk on May 23, June 23, and July 12, 1911, urging Polk to sign and return the sale contract. This Polk never did. Appellants, failing to get a response to their letters from Polk, secured the services of Mr. Dedmon, an attorney, who investigated the matter and learned “Mr. Polk” was a negro and had transferred the piano to H. A. Padgett of Ft. Worth, the ap-pellee herein, who stated he had bought the .instrument from Polk, paying therefor $70. It appears from the record that appellants had made inquiry as to Polk’s standing, etc., before sending out the piano and were informed he was chief of police of Ft. Worth. The appellee, Padgett, testified for himself that he was in the loan business in Ft. Worth, Tex., buying salaries and making small loans; that he did not know Wing & Son and never knew that they had any claim on the piano in question; that Polk told him there was nothing against the piano except two loans to local parties, aggregating about $70; that he had loaned Polk $35 on the piano and afterwards paid off the other two loans and canceled his own debt in consideration of the transfer of the piano from Polk to himself. He made no effort to ascertain from appellants or from any other source the ownership of the piano. Appellants did not file trial blank filled out by Polk, his letter, or any other paper or instrument with reference to the piano, for registration in the county clerk’s office of Tarrant county, as required for chattel mortgages. A jury was selected to try the case. The trial judge peremptorily instructed the jury to return a verdict for appellee, which they did, and judgment was entered in accordance therewith.

Up to the time J. C. Polk accepted the piano, the relation between appellants and J. O. Polk was that of bailor and bailee, and the instruments evidencing that relationship were not required to be filed as a chattel mortgage. Thus far, we agree with the contention of appellants. If J. O. Polk accepted the piano upon the terms proposed, then the relation of bailor and bailee was changed to one of vendor and vendee, or mortgagor and mortgagee under our statute. Our statute provides that: “All reservations of the title to or property in chattels as security for the purchase money thereof shall be held to be chattel mortgages and shall, when possession is delivered to the vendee, be void as to creditors and bona fide purchasers, unless registered as required of chattel mortgages.” Rev. Civ. St. 1911, art. 5654. The scope and purpose of this article has been frequently discussed by the Supreme Court and Courts of Civil Appeals, relieving us of that duty. Harling v. Creech, 88 Tex. 300, 31 S. W. 357; Eason v. De Long, 38 Tex. Civ. App. 531, 86 S. W. 347. The question for our determination is: Was there a sale effected with “reservation of title,” “as security for the purchase money thereof”? In the “free trial blank” sent out by appellants to Polk, to be filled out and signed by him, Polk stipulated December 5, 1910, “I will make an agreement with you to pay you $12.00 down, three hundred and forty-three dollars ($343.-00) in the following way: $12.00 per month; four weeks after arrival $12.00. The piano to become my property upon completion of full payment as above.” On the 13th of December, 1910, appellants wrote, acknowledging receipt of the filled out trial blank and therein shy: “The price of the piano is agreed on. It is three hundred and forty-three dollars ($343.00), payable $12.00 cash after trial and $12.00 per month thereafter.” The appellants thereby agreed to accept the price offered by Polk and also agreed to the terms offered by him. The only thing left to complete the trade was a trial by Polk and his satisfaction with the instrument. The piano was shipped by appellant February 14, 1911, and received February 25, 1911, by Polk, according to bis letter of March 3, 1911. After the trial of the piano by Polk, we do not think appellants should have a doubt, and we are quite sure we have none, that it proved “entirely satisfactory” to Polk. He says he received "the most magnificent piano.” “I myself think it is the beautifully piano I ever saw.” His wife was “tickled to death with it.” “Everybody is struck on it.” Polk continued “after the thirty days is out you may be sure you will get your first payment, or before.”

We think from the testimony Polk was enthusiastically satisfied with the piano and that he accepted under the proposed terms with alacrity. Polk sent $12.50 to appellants April 8, 1911, 50 cents more that he agreed to pay on the first payment, but in the exuberance of his enthusiasm he was prodigal in his payment. And oni the 26th of April, 1911, appellants acknowledged the receipt of the money on the first payment and receipted therefor. Every term of a sale was completed. Appellants found a purchaser for their piano, who accepted it and agreed with them on the price and terms, was satisfied with the instrument, made the first payment, and readily assented to pay the balance as stipulated. In the letter acknowledging receipt of the money, appellants express gratification over Polk’s satisfaction and call attention to the special features of their guaranty, with reference to tuning the piano and assure him “the saving you have secured by purchasing from us” was not to be had elsewhere. They thereby recognized that Polk had purchased. It is insisted that appellants inclosed in the letter of April 26th a “regular agreement” to be signed and returned to them, which Polk never did, and therefore no agreement was reached. The contract up to that time did not require a “regular agreement” before the sale was complete. Polk had only stipulated that he would make “an agreement.” After this agreement had been reached and the money accepted thereon, appellants then asked for the execution of a “regular agreement.” The fact that this was not signed did not defeat the agreement theretofore entered into. Polk stipulated that he should pay $343 for the piano, $12.00 cash and the balance in monthly installments of $12 each, and that the piano was to become his property upon the completion of the full payments as above. Appellants thereby clearly reserved the title in the instrument to secure the purchase money.

Under our statute, this was a chattel mortgage, which if not reduced to writing and registered as required of chattel mortgages is “void as to creditors and bona fide purchasers, unless in writing and recorded as chattel mortgages.” It is undisputed that it was not so registered. It is also an undisputed fact, as established by this record, that appellee was not only a creditor but a purchaser of the piano for value, without notice of appellants’ claim. Appellee therefore took a good title thereto as against appellants. The circumstances in this case show a great hardship has been worked against appellants, but this is not the fault of the law, and, in so far as the record shows, not the fault of appellee. The appellants have trusted a stranger too far and must suffer the consequences. We think the trial court properly instructed the jury.

The ease is therefore affirmed.


text:
    CITIZENS’ PLANING MILL CO. v. TUNSTALL et al.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 25, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Nuisance (§ 3) — Private Nuisances— What Constitutes Nuisance.
    A planing mill, erected within about 70 feet of a residence in a densely settled residential portion of a city, was a permanent nuisance.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §,§ 4, 5, 9-25; Dec. Dig. § 3.]
    2. Continuance (§ 26) — Absence oe Witnesses — Diligence .
    Defendant’s application for a continuance was properly overruled, where the case had been on file for more than a year, and no process had been issued for any witnesses, and the application did not give the names or residences of any witnesses wanted.
    [Ed. Note. — For other cases, see Continuance, Cent. Pig. §§ 74-93; Dec. Dig. § 26.]
    3. Nuisance (§ 50) — Private Nuisance — Measure oe Damages — Diminution oe Rental or Salable Value.
    Where a planing mill, erected near plaintiff’s residence, constituted a permanent nuisance, the measure of damages to the "property was the depreciation in the market value, and not the difference in rental value before and after the creation of the nuisance.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 118-127; Dec. Dig. § 50.]
    4. Nuisance (§ 50) — Private Nuisance — Damages.
    Where a planing mill, erected near plaintiff’s residence, was a nuisance, plaintiff could recover, in one action, damages resulting from the discomfort as well as from the injury to the property.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§, 118-127; Dec. Dig. § 50.]
    5. Appeal and Error (§ 1033) — Review-Harmless Error.
    Where, in an action for a nuisance created by the erection of a planing mill near plaintiff’s residence, damages were awarded as for a permanent nuisance, the fact that the injunction prayed for was ignored by the court and jury was not prejudicial to defendant, but favorable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    6. Appeal and Error (§§ 1040, 1068) — Harmless Error — Overruling Exception.
    The overruling of defendant’s exception to plaintiff’s allegation of damage by the increased cost of insurance, due to defendant’s maintaining a nuisance, a planing mill, and the refusal of the court to charge to find against plaintiff on that item, were not prejudicial to defendant, where no evidence was offered on that point, and no recovery for such damage was awarded by the jury.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105, 4225-4228, 42.30; Dec. Dig. §§, 1040, 1068.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Mattie E. Tunstall and another against the Citizens’ Planing Mill Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Read & Lowrance and W. M. Bates, all of Dallas, for appellant. J. G. Wilson and C. P. Greenwood, both of Dallas, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Mrs.' Mattie E. Tunstall, a widow, brought this suit for herself and as next friend of her minor daughter, Gertie L. Tunstall, to recover of appellant for a nuisance created by the erection of a planing mill near the residence of appellees.

Plaintiff alleged: “That, while they were in the quiet and peaceable enjoyment of their home, on or about the 1st day of February, 1911, the defendant corporation, without any regard for the rights of plaintiffs, proceeded to build and construct, complete and place in operation, a planing mill on a certain tract or parcel of land just south of plaintiff’s home. That it extends about 150 feet along parallel with said alleyway, and being on the south side of same, and opposite and immediately across said alley, from plaintiff’s barn and rear premises, and in about 70 feet of plaintiff’s dwelling house. That said planing mill extends about 150 feet east and west and about 100 feet north and south. That the rear of said planing mill was built within 10 feet of plaintiff’s barn and rear premises. That said planing mill is operated by steam, and is filled with a vast amount of machinery, and is operated for the purpose of cutting and planing and sawing lumber. That a vast amount of lumber is kept piled up by defendant on its said premises in close proximity to the plaintiff’s said premises, and that a large number of men and employés are kept at work upon said premises continually. That a large amount of lumber, shavings, and other combustible material are constantly kept on said premises. That defendant has been constantly operating said planing mill ever since its construction, and threatens to continue to do so permanently. That in the operation of said planing mill, loud and deafening noises are made by the saws, ripsaws, planers, steam, and whistle, and the constant emitting of steam, and that the noises are so great that it is often impossible to carry on a conversation in plaintiff’s home, and difficult all the time to do so in an ordinary and natural tone of voice. That the operation of said saws, ripsaws, planers, and machinery create a continuous, loud, harsh, unpleasant, buzzing sound, that is not only disagreeable to plaintiffs in their home, but that is harsh to, and injurious upon, the nerves and nervous system of plaintiffs, both physically and mentally. That the operation of said mill and machinery frequently causes a great volume of black smoke and soot to be carried into plaintiff’s home, settling upon the furniture, bedding, wearing apparel, and household goods of plaintiffs, thereby damaging said property; and that smoke, dust, and noxious vapors are blown and carried from said planing mill into the said house, greatly damaging said property and causing inconvenience. That before the erection of said planing mill, plaintiffs’ property was of the reasonable market value of $3,500, and that the erection of the planing mill has depreciated- the market value of same more than $1,000, to plaintiffs’ actual damage in the depreciation of said property the sum of $1,000. That they had resided upon said property as their home for a number of years before the erection of said planing mill, and were enjoying it as a place of residence. That it was situated about 2½ miles east of the courthouse, and in a densely settled residence portion of said city, and that they were entitled to the continued peaceable use of it as a home. That the erection and operation of said plan-' ing mill has subjected plaintiffs to continual annoyance, inconvenience, and discomfort. That said wrongs inflicted by defendant have seriously and continuously interfered with, and caused plaintiffs to be disturbed in, the peaceable enjoyment of their home, and that the inconvenience, discomfort, and annoyance inflicted upon them renders said properly unfit as a place of residence, and that plaintiffs have been subjected continuously to great physical and mental discomfort, annoyance, and inconvenience, to a degree almost unbearable, to their actual damage in the further sum of $2,000. Defendant answered by general and special exceptions, general denial, and by special answer, alleging what it claims the facts to be. Plaintiffs filed exceptions, and replication to the answer of defendant, and a denial of the matters and things set up in defendant’s answer. The jury returned a verdict in favor of plaintiffs in the sum of $1,000 as damages for depreciation in the value of said property, and in the further sum of $2,000 damages, on account of inconvenience, annoyance, and discomfort, suffered by plaintiffs, and apportioned the damages equally between the mother and child.”

We conclude that plaintiffs’ allegations state a good cause of action for a recovery for permanent damages and that the evidence supports the allegations.

1. The court committed no error in requiring appellant to go to trial at the time it was tried. The case was set for trial September 19th, and to accommodate appellant’s counsel it was passed until September 23d, and on the last date it was reset for the 25th for appellant’s benefit. The case had been on file for more than a year, and no process had been issued for any witnesses, nor was the name or residence of any witness mentioned in the application for a continuance; therefore no diligence was shown by appellant to procure its witnesses. Besides, a number of witnesses were introduced and testified for appellant, and it was not shown that any witnesses other than those who testified were wanted. The circumstances show that a'ppellant had no legal ground for complaining of the action of the court in. overruling the application for continuance.

2. The allegations of plaintiffs’ petition and the evidence adduced thereunder showing that the planing mill constituted a permanent nuisance, the measure of damages is the depreciation in the market value of plaintiffs’ property, and not the difference in rental value before and after the creation of the nuisance. Daniel v. Railway Co., 96 Tex. 327, 72 S. W. 578; Rosenthal v. Railway Co., 79 Tex. 325, 15 S. W. 268; Railway Co. v. McGehee, 75 S. W. 841.

Where the petition claims damages for personal discomfort, which, if supported by the evidence, as is the case here, the injured party is also entitled to recover for the damages sustained for the discomfort and is not limited to recovery for depreciation in the value of property. In the Daniel Case, supra, Mr. Justice Brown, speaking for the Supreme Court, said: “No case decided by this court justifies the conclusion that, if a structure, permanent in character, is a nuisance from which injury results to adjacent property, and by which nuisance the health of the occupants is impaired or the comfortable enjoyment of it is destroyed, the injured party is limited to compensation for the impairment of the value of the property. To the contrary, it is a rule of our law that full compensation may be awarded in one suit to the owner for all damages sustained from the same cause, and we see no reason why a party damaged in the value of his property and in his health or the enjoyment of the property should be •denied the right to recover for either or both wrongs. The existence of a permanent nuisance may cause injury by destroying the comfort of a home and not cause loss in the market value of the property, or it may cause injury to both; hence adequate compensation must embrace all the damage done and no more.”

3. Where the recovery had is for a permanent nuisance, the fact that the injunction prayed for is ignored by the court and jury does not constitute error, as it works no injury to appellant, but on the other hand is favorable to him. Kennedy v. Garrard, 156 S. W. 570.

4. Plaintiff pleaded damages by reason | of increase of insurance on her property. Exception presented by defendant was overruled. No evidence was presented by plaintiff in support of said plea, and the court ignored same in his charge. It is evident from the verdict that the same was not considered by the jury in reaching a verdict, and the appellant suffered no injury from the action of the court in failing to sustain exceptions to the plea and in failing to give a special charge by appellant to the effect to find against plaintiff on said issue. The failure of the plaintiff to introduce evidence in support of said plea and the ignoring of same by the court and jury shows no error.

5. The appellant complains of the court’s ‘refusal to give several special charges requested by it. The court instructed the jury fully on all material issues raised by the pleadings and evidence. On the question of nuisance the instructions were such that the jury could not have been misled as to what was necessary to constitute a nuisance, and under the facts they were warranted in finding said planing mill was a nuisance. We are of the opinion that the appellant was not injured by the refusal of said charges, and said assignments are overruled.

6. The numerous assignments relating to the admission and rejection of testimony are also overruled. These principally related to testimony in regard to the market value of plaintiff’s property and the depreciation thereof, which incidentally involved its location as to whether it was business or residence property. There was considerable testimony introduced along these lines, and the facts developed were such that the jury could not have been prejudiced to the detriment of appellant, and if there was any error it was not of the character to warrant a reversal of the case.

7. We conclude that the verdict and judgment are warranted by the facts; that no reversible error is shown to have been committed by the court; therefore the judgment is affirmed.


author: MOURSUND, J.

text:
    HOUSTON & T. C. RY. CO. v. HIRSCH.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 29, 1913.)
    1. Evidence (§§ 489, 568) — Opinion Evidence — Value.
    While plaintiff’s opinion as to the value of the loss of the use of wearing apparel constituting his baggage is admissible in evidence in an action against a carrier for damage for delay in delivery, it may be disregarded by the jury if unreasonable.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2274, 2392-2394; Dec. Dig. §§ 489, 568.]
    2. Carriers (§ 408) — Baggage—Delay in Delivery — Excessive Damages.
    Evidence, in an action against a railroad company for the value of the use of wearing apparel constituting plaintiff’s baggage, delivery of which, was delayed by the carrier, held to show that a verdict of $225 was excessive and will be reduced to $50.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by Jules Hirseh against the Houston & Texas Central Railway Company. Erom a judgment for plaintiff, defendant appeals.
    Affirmed as modified, provided the ■amount of the judgment is reduced; otherwise, reversed and remanded for new trial.
    Lane, Wolters & Storey, of Houston, for •appellant. Meyer 0. Wagner, of Houston, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellee, on May 21, 1912, recovered judgment against appellant for $225, with interest thereon from date of judgment at the rate of 6 per cent, per an-num, as damages sustained by him on account of delay in transporting a certain trunk as baggage from Houston, Tex., to Boston, Mass. The trunk contained wearing apparel belonging to appellee, who on December 20, 1910, purchased from appellant a ticket from Houston to Boston, where his family temporarily resided, and checked his trunk as baggage. He arrived in Boston on December 23d, but did not receive his trunk until the morning of January 2d. On December 27th appellee wired appellant’s general passenger agent, complaining because of non-arrival of his trunk and asking what he should dd. On December 29th the appellant’s baggagemaster at Houston telegraphed him that the trunk would leave Houston that afternoon. The trunk contained one full dress suit, a tuxedo suit, a Prince Albert suit, two business suits, a silk hat, a derby hat, sixteen shirts, a topcoat, a large amount of underwear, thirty collars, a pair of pumps, a pair of dress shoes, two extra vests, a fur coat, a lot of gold shirt and cuff buttons, a lot of handkerchiefs, and a large quantity of neckwear. The aggregate cost of this supply of wearing apparel, as testified to by appellee, was about $424.50, but a large portion thereof had been purchased a year before the time and had been used to some extent. Appellee testified that his damage on account of the delay in recovering the trunk was at least $700. Upon motion for new trial, misconduct of the jury was alleged, but the testimony of two jurors merely showed that upon several ballots the jurors varied greatly in their estimates of the damages, one persisting through several ballots in voting for $700 damages, while the others favored giving lower sums, one voting for $25. The final average being approximately $225, that sum was finally agreed upon. There was no agreement to abide by the average.

The only issue raised upon this appeal is whether the verdict is excessive.

The recovery was solely for the value of the use of the apparel, and while the jury did not accept the opinion of appellee to the effect that such value was at least $700, which amount was $200 higher than demanded in the suit, yet they allowed the sum of $225, which, considering the short time the apparel was detained, is entirely out of proportion to the value thereof. No explanation is made tending to show why the use would have been so very valuable, and the opinion of a man who says the use for nine days of apparel, costing in the aggregate about $425, was worth at least $700, can be of no assistance in arriving at the true amount of the damages.

While it is held that such opinion is admissible (Railway v. Vancil, 2 Tex. Civ. App. 427, 21 S. W. 303), the same may be so extravagant and unreasonable as to show on its face that it constitutes no guide at all to the jury.

The verdict is so excessive as to convince us that the jury took into consideration the highly exasperated condition of plaintiff’s mind, instead of confining themselves to the issue of what was the value of the use of the apparel.

We are unwilling to affirm the judgment for more than $50, and therefore reverse the same and remand the cause for a new trial, unless appellee shall within 20 days from this date file in this court a remittitur of all damages in excess of $50, upon the filing of which remittitur, however, the judgment will be reformed and affirmed.